2021 (8) TMI 727 - HC - Customs

Detention order quashed due to procedural flaws and bias, detenu to be released

The court found in favor of the detenu, holding that the detention order was invalid due to various reasons including the lack of independence and bias of ... Preventive detention - subjective satisfaction of the detaining authority - predetermination / identity of intellectual apparatus (bias) - non-supply of relevant documents affecting effective representation under Article 22(5) - inordinate and unexplained delay breaking the live-link - non-application of mind - reliance on retracted statements and failure to place retractions - delay by the Central Government in deciding representationPredetermination / identity of intellectual apparatus (bias) - subjective satisfaction of the detaining authority - Detaining Authority acted with bias by having been actively involved in the investigation prior to passing the detention order, vitiating its subjective satisfaction. - HELD THAT: - The Court found that the officer who passed the detention order had earlier authored communications and coordinated the investigation (notably a letter dated 02.09.2019), demonstrating prior involvement. Applying the 'identity of intellectual apparatus' test, the same person having dealt with the matter earlier in another capacity meant the detaining function was not independent; such pre-determination defeats the purpose of a 'specially empowered' officer under Section 3(1) and vitiates subjective satisfaction. [Paras 36, 41, 42, 43, 44]Detaining Authority's subjective satisfaction is vitiated for bias; detention order cannot stand on this ground.Non-supply of relevant documents affecting effective representation under Article 22(5) - preventive detention - Failure to supply legible and relevant documents requested by the detenu deprived him of the right to make an effective representation and vitiated the detention order. - HELD THAT: - The Court reiterated that a detenu must be supplied copies of all relevant documents considered in forming subjective satisfaction. The detenu had requested legible copies (passport, identity cards of co-detenus, WhatsApp chats, bill of entry, invoice, statement of Rohit Sharma, etc.) which were refused, thereby denying the constitutional entitlement to effective representation. Precedents were applied to hold non-supply fatal to the detention. [Paras 46, 47, 48, 49, 50]Non-supply of legible and material documents vitiates the detention order.Inordinate and unexplained delay breaking the live-link - preventive detention - There was substantial, unexplained delay in passing the detention order which snapped the requisite proximate link between alleged prejudicial activities and the need for detention. - HELD THAT: - The Court examined the chronology, noting lengthy intervals between the incident/arrest and the detention proposal. The respondents' post-execution claim of overseas evidence received in November 2019 was not reflected in the detention order or relied upon before the detaining authority. In absence of a satisfactory contemporaneous explanation, the delay was held to be inordinate, severing causal nexus and justifying quashing. [Paras 56, 58, 60, 61, 62]Detention order set aside for inordinate and unexplained delay that broke the live-link.Non-application of mind - reliance on retracted statements and failure to place retractions - Detaining Authority failed to apply mind by not considering vital material, including retractions of statements relied upon, thus vitiating its subjective satisfaction. - HELD THAT: - The grounds heavily relied on statements under the Customs Act which had been retracted by the detenu and co-accused. The sponsoring authority did not place those retractions before the detaining authority, nor did the detainer examine admissibility and the impact of retractions. Jurisprudence requires that if inculpatory statements of others are placed, their retractions must also be placed; omission prejudices formation of genuine subjective satisfaction. [Paras 80, 81, 82, 83, 84]Detention order vitiated for non-application of mind in failing to consider vital material and retractions.Subjective satisfaction of the detaining authority - preventive detention - Detaining Authority did not properly assess the detenu's propensity to continue indulging in prejudicial activities; relevant facts showing lack of propensity were not considered. - HELD THAT: - The Court noted omission of material facts: release of the detenu's passport and his choice not to travel abroad after bail (indicative of bona fides), placement of IMNPL on Denied Entity List (eliminating ability to misuse scheme), suspension of a crucial appraiser, and CESTAT order for provisional release of goods. These unplaced/ignored facts were germane to propensity assessment and their omission undermined the detaining authority's conclusion. [Paras 86, 87, 88, 89, 90]Detention order unsustainable for failure to consider material facts negating propensity to re-offend.Delay by the Central Government in deciding representation - effective representation under Article 22(5) - Central Government unduly delayed in deciding the detenu's statutory representation, which was fatal to continued detention. - HELD THAT: - The detenu filed representation on 27.10.2020; the matter was referred to the Advisory Board on 10.11.2020 and decision communicated only in late December 2020. The Court applied settled principles that representations must be considered with expedition and classified categories for reference to Advisory Board; an unexplained 57-day delay by the appropriate Government in this context was held inordinate and prejudicial. [Paras 92, 93, 94, 95, 96]Central Government's delay in deciding the representation vitiates the detention.Non-application of mind - preventive detention - Grounds of detention were materially identical to those used in an entirely different case, demonstrating a mechanical 'copy-paste' exercise and non-application of mind. - HELD THAT: - A side-by-side comparison with another detention order passed by the same detaining authority revealed that the grounds, save for names and incidental references, were effectively identical. The Court treated this as conclusive evidence of mechanical drafting and lack of independent consideration, which is a further instance of non-application of mind undermining subjective satisfaction. [Paras 97, 98, 99]Detention order invalidated for being mechanically lifted from a distinct case, reflecting non-application of mind.Final Conclusion: For multiple independent reasons - bias/predetermination of the detaining authority, non-supply of vital documents denying effective representation, inordinate unexplained delay breaking the live-link, non-application of mind (including reliance on retracted statements and grounds copied from another order), failure to assess propensity, and delay by the Central Government in deciding representation - the detention order dated 21.01.2020 is set aside; the detenu is directed to be released forthwith unless required in connection with any other case. Issues Involved:1. Independence and Bias of the Detaining Authority2. Non-supply of Legible and Complete Documents3. Inordinate Delay in Passing the Detention Order4. Non-application of Mind by the Detaining Authority5. Propensity of the Detenu to Continue Prejudicial Activities6. Delay in Deciding Representation by the Central Government7. Lifting of Grounds from an Entirely Different CaseIssue-wise Detailed Analysis:1. Independence and Bias of the Detaining Authority:The court examined whether the Detaining Authority acted independently and without bias while passing the detention order. The petitioner provided a letter dated 02.09.2019 authored by Mr. R.P. Singh, which indicated his active involvement in the investigation prior to passing the detention order. The court found that Mr. R.P. Singh was closely monitoring the investigation, which compromised his independence and indicated a pre-determined approach and bias. The dual role played by Mr. R.P. Singh in the investigation and as J.S. (COFEPOSA) vitiated the subjective satisfaction required under Section 3(1) of COFEPOSA.2. Non-supply of Legible and Complete Documents:The petitioner requested legible copies of several documents, which were denied by the Detaining Authority. The court emphasized that the detenu has a constitutional right to make an effective representation against the detention order, which requires the supply of all relevant documents. The non-supply of legible copies of critical documents, such as the passport, identity cards of co-detenus, WhatsApp chats, bill of entry, invoice, and the statement of Mr. Rohit Sharma, rendered the detention order illegal and bad.3. Inordinate Delay in Passing the Detention Order:The petitioner argued that there was an unexplained delay of 272 days in passing the detention order. The court found that the respondents failed to provide a satisfactory explanation for the delay. The purported overseas evidence from Dubai, which was cited by the respondents, was not mentioned in the detention order or placed before the Detaining Authority. The unexplained delay led to the snapping of the live and proximate link between the prejudicial activities and the detention order, rendering it invalid.4. Non-application of Mind by the Detaining Authority:The Detaining Authority relied heavily on the statements of the detenu and co-detenus, which had been retracted. The court noted that the retractions and the belated rebuttal by the DRI were not adequately considered by the Detaining Authority. Additionally, the statements of co-accused Vikram Bhasin and Mahesh Jain, who had also retracted their statements, were not placed before the Detaining Authority. The failure to consider these retractions and the admissibility of the statements indicated non-application of mind, vitiating the subjective satisfaction of the Detaining Authority.5. Propensity of the Detenu to Continue Prejudicial Activities:The court observed that the Detaining Authority failed to consider the detenu's conduct post his enlargement on bail, including the release of his passport and his decision not to travel abroad. The placement of IMNPL under the Denied Entity List and the suspension of Vikram Bhasin were also not considered. These factors were relevant in assessing the detenu's propensity to continue prejudicial activities, and the failure to consider them rendered the detention order invalid.6. Delay in Deciding Representation by the Central Government:The court found that there was a delay of 57 days by the Central Government in deciding the detenu's representation. The right to make a representation and have it considered with expedition is a constitutional right under Article 22(5) of the Constitution of India. The inordinate and unexplained delay in considering the representation was fatal to the continued detention of the detenu.7. Lifting of Grounds from an Entirely Different Case:The court noted that the grounds of detention in the present case were almost identical to those in the case of Dimple Happy Dhakad, indicating a mechanical copy-paste job by the Detaining Authority. This demonstrated clear non-application of mind and rendered the detention order invalid.Conclusion:The court held that the issues raised by the petitioner were valid and decided in favor of the detenu. The detention order dated 21.01.2020 was set aside and quashed, and the detenu was directed to be set at liberty forthwith unless required in connection with any other case.