TaxTMI 
TaxTMI 
2015 (3) TMI 775
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....originally filed on 29th July, 2014 and has since been pending. When the arguments were being put forth in this Bench on 20th January, 2015, it was noticed that the counsel for the petitioner had made certain factual assertions in the written submissions, which were not stated/ pleaded in the writ petition. Learned counsel for the respondents prayed for some time, so as to examine the said factual assertions and if required, file an affidavit. Pursuant thereto, a copy of the objection petition filed by the petitioner before the Calcutta High Court, opposing the application for cancellation of bail was filed. Thereafter, the argument then raised was not pressed. 3. Subsequently, on 2nd February, 2015, learned counsel for the petitioner during the course of arguments, raised new contentions based upon facts, which had earlier not been pleaded or raised in the writ petition as well as the written submissions. This was objected to by the counsel for the respondents, who highlighted the vacillations and new allegations made by the petitioner. Allowing the prayer made by the petitioner, time was granted to file an additional affidavit along with photocopy of documents to show and urge....
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....gali translations of some of the relied upon documents were incomplete and imperfect, and the copy of some of the relied upon documents supplied were incomplete or were not readable and legible. Reliance in this regard was placed on Icchu Devi Choraria (Smt.) versus Union of India, (1981) (1) SCR 640 and other cases. 5. As per the grounds stated in the detention order, the petitioner was detained under the provisions of the Customs Act, on 8th March, 2014 at about 1. 30 P.M., with 44.659 kilograms of smuggled gold, which was being transported in a Toyota Fortuner Car, bearing Registration No. WB 26 S 2600 in Beliaghat area of Taki Road, district of North 24- Parganas . The car was being driven by Moksed Mandal . The total value of the gold seized was of Rs. 1, 355.99 lacs . Several other facts stand recorded in the detention order, but these do not require elucidation and discussion in this writ petition. 6. The Chief Metropolitan Magistrate, Kolkata had granted bail to the petitioner on 12th March, 2014, on the ground that there was violation of the directions issued by the Supreme Court in D.K. Basu versus State of West Bengal, (1997) 1 SCC 416. Stringent conditions were ho....
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.... judicial custody till 25.06.2014. The copy of this order will be sent as soon as it is received by us. It may be noted that Shri Barik Biswas has surrendered 2 weeks after the order of the Supreme Court. There is also every possibility of bail being granted to him again by the lower court and given his propensity to evade law, there is every likelihood of his absconding after being enlarged on bail. As per the said Hon'ble Supreme Court order, the moment investigation is complete and challan is filed in the court, the petitioner shall be at liberty to move an application for regular bail which shall be considered by the trial court without being influenced by any observation made in the order by the High Court. However, it is difficult to complete the investigation and file prosecution against the accused within the given time. It is therefore felt that the detaining authority may allow serving of the Detention Order in this case. Now, in view of para E( ii) of the instructions issued under F.No . 671/6/2001-Cus VII dated 12.07.2001, the matter is being brought to your notice. Accordingly, decision regarding service of Detention Order to the said person may be informed to e....
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....e is every likelihood of you getting bail in near future. Also taking into consideration your conduct throughout the investigation and your tendency to avoid appearance on summons issued and your avoidance to surrender when Non- Bailable Warrant dated 16.05.2014 was issued by CMM, Kolkata and the fact that you have a very high propensity to indulge in smuggling of goods and its transportation & concealment in future also, I am satisfied that you ought to be immobilised by way of putting you under Preventive Detention. 4. Accordingly I order that you be detained in terms of Detention Order bearing F.No . 673/14/2014-Cus. VIII dated 27.05.2014 passed by me, in exercise of the powers conferred by Section 3(1 )( i ) & 3(1)(iii) of Conservation of Foreign Exchange & Prevention of Smuggling Activities (COFEPOSA) Act, 1974. I further direct that Shri Barik Biswas , i.e , you, be kept in custody in the Presidency Correctional Home, Alipore , Kolkata, consequent to your detention." 10. It is clear to us that the two detention orders, i.e., orders dated 27th May, 2014, and 13th June, 2014, have to be read in seriatim and together and not as two distinct and separate orders. The reason ....
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....tention order in continuation of the earlier order dated 27th May, 2014, elucidating reasons why the detention order dated 27th May, 2014, should still be served and executed. We do not think that the letter/ order dated 13th June, 2014, which purports to provide additional grounds of detention can stand on its own. It is not by itself a separate and independent detention order. It is necessarily an adjunct and a corollary to the earlier order dated 27th May, 2014. Appropriate in this regard would be reference to the following observations made by the Constitution Bench of the Supreme Court in Attorney General for India and Others versus Amritlal Prajivandas and Others, (1994) 5 SCC 54: "48. Now, it is beyond dispute that an order of detention can be based upon one single ground. Several decisions of this Court have held that even one prejudicial act can be treated as sufficient for forming the requisite satisfaction for detaining the person. In Debu Mahato v. State of W.B. [(1974) 4 SCC 135 : 1974 SCC (Cri) 274] it was observed that while ordinarily-speaking one act may not be sufficient to form the requisite satisfaction, there is no such invariable rule and that in a given ca....
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....ion that may well be quashed but it cannot be stated as a principle that one single act cannot constitute the basis for detention. On the contrary, it does. In other words, it is not necessary that there should be multiplicity of grounds for making or sustaining an order of detention. 49. Now, take a case, where three orders of detention are made against the same person under COFEPOSA. Each of the orders is based upon only one ground which is supplied to the detenu . It is found that the ground of detention in support of two of such orders is either vague or irrelevant. But the ground in support of the third order is relevant, definite and proximate. In such a case, while the first two orders would be quashed, the third order would stand. This is precisely what the first part (the main part) of Section 5-A seeks to do. Where the order of detention is based on more than one ground, the section creates a legal fiction, viz. , it must be deemed that there are as many orders of detention as there are grounds which means that each of such orders is an independent order. The result is the same as the one in the illustration given by us hereinabove. The second part of it is merely clar....
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....of making representation against the order of detention - (see State of Bombay v. Atma Ram Sridhar Vaidya [1951 SCR 167 : AIR 1951 SC 157 : 52 Cri LJ 373]). If the grounds included irrelevant or non-existent grounds, it is submitted, the first right is violated and if the grounds included vague grounds, the second right is violated. According to the learned counsel, Article 22(5), as interpretated by this Court over the last more than four decades, means this: An order of preventive detention is based upon the subjective satisfaction of the authority and where such satisfaction has been arrived at on grounds some of which are relevant and definite grounds and some irrelevant, vague and non-existent, it is not possible or permissible for the court to predicate which grounds have influenced the formation of his satisfaction - which means that the order of detention must fall to the ground; if this is what Article 22(5) means and says, it is not open to Parliament to make a law saying that where the grounds upon which the requisite satisfaction has been formed are partly good and partly bad, yet the order must be held to be good with reference to and on the basis of good grounds, esch....
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.... not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will send the case along with the detenu's representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu . If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu." 16. Reliance is placed upon the observations made by the Supreme Court under the fourth principle. Before w....
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....detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words "as soon as may be" occurring in clause (5) of Article 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement however, is that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal. This has been emphasised and re- emphasised by a series of decisions of this Court. ( See :Jayanarayan Sukul v. State of W.M. [(1970) 1 SCC 219]; Frances Coralie Mullin v.W.C . Khambra [(1980) 2 SCC 275: 1980 SCC (Cri) 419]; Rama Dhondu Borade v.V.K . Saraf , Com....
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....ains for consideration is whether the government should consider and dispose of the representation before confirming the detention. This Court in V.J. Jain case [(1979) 4 SCC 401: 1980 SCC (Cri) 4] has observed (at SCC p. 405) that it is a constitutional obligation under clause (5) of Article 22 to consider the representation before confirming the order of detention. If it is not so considered, the confirmation becomes invalid and the subsequent consideration and rejection of the representation could not cure the invalidity of the order of confirmation. To reach this conclusion, the court has relied upon two earlier judgments of this Court: ( i ) Khudiram Das v. State of W.B. [(1975) 2 SCC 81 : 1975 SCC (Cri) 435] and (ii) Khairul Haque v. State of W.B. [ W.P. No. 246 of 1969, decided on September 10, 1969 (Unreported)]" 17. Reverting to the facts of the present case and applying the ratio decidendi in K.M. Abdulla Kunhi (supra), we find that the representation in the present case dated 8th July, 2014 was received only on 11th July, 2014. As comments were required from the concerned departments, the representation was forwarded to them. Comments were received on 17th July, 2014.....
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.... affidavit is predicated and premised on the assertion that the petitioner is well conversant only in Bengali and he can read and write Bengali and does not understand and cannot read English. Along with the affidavit, the petitioner has enclosed a copy of the pre-paid mobile application form which was bilingual i.e. English and Bengali and it is stated that certain parts of the form relating to verification etc. are not bilingual and are only in English. Our attention is also drawn to another pre-paid mobile application form which is in English, of which full and complete Bengali translation was not submitted, but the translation furnished/supplied is of respective columns which were written or filled up. Translation of the blank columns was not furnished. Our attention is also drawn to the Arms Licence Form no. III and it is submitted that the said form though bilingual had a noting in English to the effect that on 26th September, 2014, one 32 bore pistol was supplied. Similarly, the Bengali translation of the inventory of the goods, recovered and seized under Section 110 of the Customs Act, was provided but without the Bengali translation of the handwritten note to the effect th....
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....n M. Kudubdeen versus Union of India (2010) 15 SCC 741. In the said case, the detention was challenged on the ground of non-supply of translated documents in the language known to the petitioner therein. Keeping in mind the factual matrix of the case, the Supreme Court rejected the plea and observed that non- supply of certain translated documents had not affected the detenue's cherished and constitutionally conferred right of making an effective representation under Article 22 (5) of the Constitution. The detenu had studied upto class V and claimed that he did not know English language and knew only Tamil language. This was disbelieved by the Supreme Court for the reason that the petitioner had written Rs. 30 ,000 /- in English. Further the assertion that the Tamil translation of the front portion of the declaration form had not been supplied was considered by the Supreme Court as inconsequential and irrelevant. The said front portion contained certain basic details like name, flight number, number of packages etc. The said details were given by the detenu in his application form. The contention was accordingly rejected observing as under: "3. The first ground pressed by th....