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2012 (12) TMI 861
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.... to and relied upon by the Detaining Authority and which was the basis for recording of subjective satisfaction that it was necessary to detain Deepak Sharad Jare to prevent him from indulging in prejudicial activities in future. 2. The detenu was served with the grounds of detention, which advert to the continual criminal activities of the detenu necessitating issuance of detention order, with a view to prevent him from indulging into smuggling activities in future. It is stated that on the basis of specific intelligence that a syndicate headed by the detenu alongwith Ajit Bapu Satam was engaged in smuggling of red sanders to Dubai, the offices of DRI intercepted three containers namely CLHU-8757522, BAXU-2594270 and BAXU- 2643415 at Punjab Conware CFS, Nhava Sheva on 2nd September, 2011. The Containers were declared to contain 1883 Nos. of "Plastic Moulded Crates - Model No. 2001", "White Guava Pulp" respectively, but, were found to contain huge quantity of red sanders. The red sanders recovered from the three containers, totally valued Rs.5.03 crores, was seized under the provisions of the Customs Act, 1962. 3. It is further stated that simultaneous search operations were carr....
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....etaining Authority was under obligation to formulate the grounds and pass the detention order after considering it at a time. D) The subjective satisfaction of the Detaining Authority is vitiated also because it is evident that the Detaining Authority has not formulated the grounds of detention herself but has verbatim reproduced it from the proposal received by her. E) The detention order is vitiated also because of nonplacement of vital documents for consideration before the Detaining Authority such as: i) accompaniments to the show-cause notice served on the detenu; ii) documents disclosing the weight of the containers; and iii) statements of CHA. F) The pre-detention representations sent by the detenu were not placed before the Detaining Authority though it was mandatory to do so and resultantly the Detaining Authority could not and did not consider those representations. This has vitiated the detention order. The side argument is that in any case, the Detaining Authority ought to have con....
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....t to produce a copy of the proposal of sponsoring authority, handed over to the detenu by a senior officer of sponsoring authority in expectation of bribe, as and when required during hearing of the petition. It is evident from the said copy of the proposal that detaining authority has merely replaced the names of detenu and co-detenues with words like "you" and "your" in the grounds of detention served on the detenu and co-detenues, implying that the grounds of detention have been formulated by the sponsoring authority and not by the detaining authority. The petitioner says and submits that the detention law, in the instant case, has been invoked against the detenu as he refused to bribe the concerned senior officers of the sponsoring authority. Nonetheless, it is enjoined upon the detaining authority to disclose to the Honourable Court as to when the said documents, set out in Exhibit-"C", were placed before the detaining authority and the time taken by the detaining authority for scanning and perusing the said documents and for formulating the grounds of detention. The petitioner says and submits that it was enjoined upon the detaining authority, in law, to have herself formulat....
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....ecision in the case of Jaysingh & Ors. vs. State of Jammu & Kashmir, (1985) 1 SCC 561. 11. The Detaining Authority has countered the ground urged by the Petitioner by filing reply dated 3.8.2012. It is one of mere denial. The same reads thus: "12. With reference to paragraph 7(F) of the petition, it is denied that the grounds of detention were not formulated by me. It is denied that the Detention Order is per se mala fide and ab initio, null and void." Even in the further affidavit filed by the Detaining Authority, while dealing with the ground (F), it is stated as follows: "12. With reference to paragraph 7(F) of the petition, it is denied that the grounds of detention were not formulated by me. It is denied that the Detention Order is per se mala fide and ab initio, null and void. I say that I have considered the proposal alongwith the relied upon documents and on my subjective satisfaction I have issued the Order of Detention on 14.3.2012." 12. The reply affidavit filed by the Detaining Authority is to say the least, vague denial of the case made out by the Petitioner in ground (F). Whereas, the Petitioner has substa....
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....at Jainapur or Talegaon where the same were de-stuffed after breaking the Central Excise and Shipping Line bottle seals. The export containers were re-stuffed with red sanders and sealed with duplicate Central Excise and Shipping Line bottle seals. Thereafter they were transported to Nhava Sheva for export. He was responsible for arranging office space for placing export orders as well as making duplicate seals, arranging communication facilities between members of the syndicate. He had purchased an Embossing Machine from a manufacturing unit in Goregaon plain bottle seals from a Delhi based supplier and also arranged metal dies from one Jayesh Panchal for making duplicate seals through his associates Prakash Shewale and Santosh Shinde. He had also hired Alex Fernandas @ Anand and his known persons for transporting containers. "EARLIER INVOLVEMENT IF ANY Deepak Sharad Jare is a regular offender and in the past was involved in many smuggling cases. He was arrested in the year 2006 in a drawback case and a detention order under COFEPOSA Act, 1974 was also issued against him . ................." "CONCLUSION ............. Deepak Jare is a habitual offender and was detained under....
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....red sanders and sealed with duplicate Central Excise and shipping Line bottle seals. Therefore they were transported to Nhava Sheva for export. You were responsible for arranging office space for placing export orders as well as making duplicate seals, arranging communication facilities between members of the syndicate. You had purchased an Embossing Machine from a manufacturing unit in Goregaon, plain bottle seals from a Delhi based supplier and also arranged metal dies for making duplicate seals through your associates. You had also hired Alex Fernandes @ Anand for transporting containers. You are a regular offender and in the past were involved in smuggling cases. You were arrested in the year 2006 in a drawback case and a detention order under COFEPOSA Act, 1974 was also issued against you. You are a habitual offender and were detained under COFEPOSA Act, 1974 in the year 2008. You are an associate of Ajit Satam and used to handle the arrangement of empty containers from genuine exporters. You used to arrange for the duplicate bottle seals, used to reseal the containers after restuffing the same with red sanders. You had hired the services of Prakash Shewale, Bhaskar Tate and....
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....ned in the accompanying list, are enclosed." 14. We have already mentioned that how a copy of this proposal has been leaked and became available to the Petitioner is a matter of investigation and enquiry. That being a serious matter ought to be taken to its logical end. Photostat copy of the proposal made over to the Court by the Counsel for the Petitioner shall be kept in sealed cover, to be preserved by the Registrar (Judicial) of this Court until the enquiry and/or investigation in that behalf is completed. We may observe that it is possible that a copy of the proposal may have been made available to the Petitioner after passing of the detention order. Even then, it is a serious matter as the file containing the proposal is required to be preserved as confidential record. 15. Be that as it may, the leakage of the copy of the proposal forwarded by the Sponsoring Authority to the Detaining Authority has unravelled the casual approach of the Detaining Authority. Similar situation obtained in the case of Jaysingh & Ors. (supra). As it is a short judgment, we deem to apposite to reproduce the same in its entirety as under: "The order of the Court was delivered by CHINNAPPA REDDY,....
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....of the record that the District Magistrate was aware that the petitioner was already in custody. There is nothing to indicate that the District Magistrate applied his mind to the question whether an order of detention under the Jammu & Kashmir Safety Act was necessary despite the fact that the petitioner was already in custody in connection with the criminal case. The cases of the other six petitioners are identical and in the circumstances, we have no option, but to direct their release forthwith, unless they are wanted in connection with some other case or cases." (emphasis supplied) 16. Once again, in another recent case from the State of Maharashtra, similar grievance made by the detenu came up for consideration before the Apex Court, in the case of Rajesh V. Adnani vs. State of Maharashtra, reported in (2005) 8 SCC 390 . Even in that case, similar cosmetic changes were noticed in the grounds of detention purportedly formulated by the Detaining Authority. Counsel appearing for the State did make an attempt to persuade the Court to take the view that the record would evince that there has been due application of mind on the part of the Detaining Authority. T....