TaxTMI 
TaxTMI 
2008 (9) TMI 830
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....se for detaining the detenu under Section 3(1) of the said Act. Upon receipt of report/opinion of the Advisory Board, the detention order has been confirmed under Section 8(f) of the said Act. The confirmation order was also served on the detenu. 3. By the present writ petition the sustainability of the detention is questioned on two grounds. First ground is as to the delay that has been caused in issuance of the detention order which includes the delay caused by the sponsoring authority in moving the proposal for detention. The second ground is that a vital document was not placed before the Advisory Board when the case of the detenu was referred to the Board, as required by Section 8(b) of the said Act. On this basis it is contended that such non-placement of a vital document has resulted into causing infringement of the right of the detenu guaranteed under Section 8 of the said Act and further that the confirmation of the detention of the detenu therefore suffers from non-application of mind. 4. Before dealing with the grounds of detention of the detenu under challenge, we may set out few facts that led to passing of the detention order, which are reflected in th....
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....Customs Act, 1962. It is further alleged that the detaining authority was satisfied that unless detained, the detenu was likely to continue to do the aforesaid activities and, therefore, it was necessary to detain the detenu under the said Act with a view to prevent the detenu to do said illegal acts. 5. As aforesaid, the first ground of attack on the detention of the detenu is that an inordinate delay is caused in issuance of detention order, which includes delay caused by the sponsoring authority as well in moving a proposal for the detention. For better appreciation of the said ground, we set out hereunder the relevant chronology of dates and events. 6-7-2007 - The incident aforesaid occurred at Mumbai Air-Port 7-7-2007 - The detenu was arrested in connection with the said incident. The detenu gave voluntary statements u/s 113 of the Customs Act and named Mr. Harchandani as the master mind. The detenu also identified his photograph. On the same day, when produced before the Additional Chief Metropolitan Magistrate, the detenu moved an application retracting his statements naming Mr. Harchandani as master mind and instead accused the officers of inducing him to n....
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....received by the State. The same was thereafter processed by Under Secretary, Deputy Secretary; 24-3-2008 - The Additional Chief Secretary (Home) considered the report, opinion of the Advisory Board and was pleased to confirm the detention order issued u/s 8(f) of the said Act; 25-3-2008 - Confirmation order was issued; 28-3-2008 - The same was served on the detenu. 6. On behalf of the respondents affidavits have been filed not only by the detaining authority but also by the sponsoring authority explaining the steps that were taken in the present matter by each of them trying to justify that in the shortest possible time the impugned action was taken by each of them and that there is no delay caused as alleged by the petitioner. 7. Inasmuch as the contention of the petitioner that the sponsoring authority itself has caused delay in moving the proposal is concerned, the aforesaid chronology of events demonstrates that the incident took place between 6th and 7th July, 2007 and a proposal was prepared by the sponsoring authority on 18th September, 2007 which was put up before the Screening Committee on 7th November, 2007. The Screening Committee appears to have....
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....y and odd days to prepare the proposal after release of the detenu. It also appears that the sponsoring authority in the mean while applied for rebuttal of retraction of statements by the detenu on 1st August, 2007. After taking into consideration the over ail activities of the sponsoring authority and the time taken by it for the same though it appears that it was possible for the sponsoring authority to move the proposal at some what early date, we do not think that the sponsoring authority has caused an inordinate delay in moving its proposal for taking action against the detenu. 11. Now, turning to the alleged delay caused by the detaining authority in issuing the detention order after receiving the proposal from the sponsoring authority, what we observe from the aforesaid chronology is as under. The proposal was received by the detaining authority on 26th November, 2007. The same was scrutinized initially at the level of Assistant, then at the level of Under Secretary, then Deputy Secretary and was put up before the sponsoring authority on 5th December, 2007. The sponsoring authority thereafter has considered the proposal and is said to have personally formulated th....
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....en otherwise it has been reasonably explained."                         (emphasis supplied) The aforesaid observation of the Supreme Court shows that delay 'ipso facto' in passing an order of detention after an incident is not fatal to the detention of a person involving in such an incident. The Court is required to appreciate the potentiality in the detenu and/or the likelihood of his repeating the alleged illegal activities. 13. If we apply these principles to the facts of this case, it becomes clear that (as pointed out by the sponsoring authority by its affidavit, the relevant portion whereof is extracted by us hereinabove) it is not that the detenu has committed the alleged illegal act for the first time on 6th/7th July, 2007. What he did on 6th/7th July, 2008 was just a repetition of something that was done by him earlier also on 23rd May, 2007, when the detenu was caught. Even when an action was taken against the detenu on an earlier occasion, within two months thereof, the detenu is alleged to have committed a somewhat similar act. Moreove....
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....es is not disputed. On the contrary it is contended on behalf of the respondents by learned APP that the aforesaid documents i.e. reply to the show cause notice is not a vital document at all and, therefore, it's non-placement before the Advisory Board as also the Confirming Authority, cannot vitiate the confirmation of the detention of the detenu. It was further contended that even otherwise, a perusal of the said document shows only narration of facts which includes retraction of the statements by the detenu, which fact has already been placed before both, the Advisory Board as also the Confirming Authority. It was contended that such non-placement of the document has not caused even otherwise any prejudice to the detenu. 17. Learned counsel appearing on behalf of the petitioner has placed reliance on the following decisions in support of the aforesaid ground :- (I) 2000-All. MR (Cri)-1092 - (Smt. Nirmala Bharat Keshwani v. The State of Maharashtra and others); (II) AIR-1991-SC-1375 - (K. Satyanarayan Subudhi v. Union of India and others); (III) An order of Supreme Court in Criminal Appeal No. 115 of 198....
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.... would help the aforesaid Mr. Harchandani, the co-accused of detenu. In any case, admittedly this retraction was placed before the Advisory Board as also the Confirming Authority. 20. A perusal of the aforesaid document in issue dated 27th February, 2008 (i.e. the reply to the show cause notice issued by the advocate on behalf of detenu, which, in submission of the detenu ought to have been placed before the Advisory Board and the Confirming Authority) shows that it contains all factual statements which are already on record and which also form part of the show cause notice itself that was admittedly on record. This reply in issue also refers to the retraction of statement by the detenu and particularly states as under :- "(5) Sir, during investigations, statements were recorded and various questions were put, but my client stated that currencies belong to him and same is reflected in para 31, page 12 of the S.C.N." Thus by this reply the detenu has admitted the currencies seized belong to him and not to the said Mr. Harchandani. Thus the perusal of all the relevant material on record in this regard gives a clear picture that both the retraction as also the reply....
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....ard and the Confirming Authority, was not at all a vital document. 24. In the case of Prakashchandra Mehra (supra), the Supreme Court in this regard in paragraph 77 has observed thus :- "......but in this case the confessional statement was not the only fact upon which the detaining authority had passed an order. In the premise, even if the confessional statements which were retracted as such could not be taken into consideration, there are other facts independent of the confessional statement as mentioned hereinabove which can reasonably led to the satisfaction that the authorities have come to......" In the present case also, it is not that the Advisory Board or the confirming authority has confirmed the detention of the detenu only on the ground of show cause notice, the reply to which was not placed before them. There was other material on record also, apart from the show cause notice, which, in our view, will reasonably led to the satisfaction that these authorities have come to. Even otherwise, as explained hereinabove, the reply to the show cause notice does not contain anything at all which is not on record. In our view, this aspect of the matter also compels ....