TaxTMI 
TaxTMI 
2015 (5) TMI 880
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....ct, 1974 (hereinafter referred to as „COFEPOSA‟) and the order dated 11.9.2014 confirming the detention order for a period of one year. For the sake of convenience, the detenue is hereafter referred to as „the petitioner‟. 3. The facts of the case, as per the writ petition inter alia are as under: 1. "The Directorate of Revenue Intelligence Head Quarter New Delhi initiated investigation on the basis of intelligence that one company M/s Gaurav Pharma Ltd. Sampla Haryana (owned by Mr. K.K. Arora), a 100% Export Oriented Unit had been diverting duty free imported pharmaceutical goods to domestic tariff area without payment of duty. 2. During the period 23.3.2013 to 26.3.2013 on the basis of allegation of diversion of duty free goods into local market, DRI raided various transporter‟s place as well as in the premises of M/s. Gaurav Pharma Ltd and it‟s consignees when goods were seized from their premises. Goods after testing from experts found to be "ascorbic acid (vitamin - C)" in place of declared Goods " Calcium Phosphate ", "Lime Powder", "Playex tablet". Hence it was alleged that imported inputs were diverted in Domestic Tariff Area wit....
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....as recorded in Bengali language. 8. It has been alleged that on 3.5.2013 Detenue sent an affidavit admitting doing export jobs of the alleged firms and an assistant of Late Dilip Chakrabarty and retracted his earlier statement dated 16.04.2013 recorded before DRI -Kolkata. That summon was issued by DRI on 08.05.2013 for appearance on 17.05.2013 to Detenue. 9. It is alleged that on 17.5.2013 Detenue re-iterated his earlier affidavit dated 03.05.2013. This affidavit in fact, was prepared and sent by Sri Vitesh using detenue‟s blank signed documents obtained from him against personal loan and detenue had no knowledge about the same. 10. That on 22.5.2013 Detenue was served with letter from DRI -Delhi that the contents of detenue‟s letter was wrong and afterthought. That on 19.6.2014 Detenue was asked to attend the local police station at - Baduria PS over phone by the police official. The detenue attended P.S. On 19.06.2014 at about 6:35pm when Detention Order dated 18.02.2014 served on the Detenue (only English version). That on 20.6.2014 Detenue was placed in the Presidency Correctional Home,Kolkotta. 11. That on 23.6.2014 Grounds of detention was given to de....
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.... the petitioner at that stage orally requested for the order in Bengali language, as he was not conversant with English language. 7. It is submitted that on 23.6.2014 grounds of detention along with relied upon documents in English language were served upon the petitioner. The petitioner again requested for translation of the documents in Bengali language and finally the documents were supplied to the petitioner in Bengali language in two parts on 13.8.2014 and 9.9.2014 after expiry of about 80 days. 8. Counsel also submits that Bengali version of the documents were supplied in part on 13.8.2014 i.e. just one day before the hearing of the Advisory Board which was held on 14.8.2014 and the remaining part of the documents in Bengali language were supplied on 9.9.2014 i.e. long after the hearing of the Advisory Board and just two days before the confirmation by the Central Govt i.e. on 11.9.2014. Therefore, such act and conduct of the respondent is in complete violation / breach of Article 22 (5) of the Constitution of India therefore the detention order is liable to be quashed on this score alone. 9. It is the case of the petitioner that respondents were well aware that the ....
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....l submits that the petitioner is well conversant with the English language, which is evident from the fact that various letters were addressed by him to the sponsoring authority during the investigation in English language. Reliance is also placed on Annexure -III filed along with the counter affidavit, wherein the petitioner had in his own writing made the following endorsement in English language: "I have put my signature on each page of said detention order, as token of receipt. Received copy of grounds of detention containing pages serially numbered from 01 to 84. Malay Bhattacharyya" 12. In support of his submission that the petitioner can read, write and understand English language, it is also submitted by counsel for the respondents that the petitioner had sent a retraction dated 17.5.2013, which was also written and signed by him in English. Counsel also contends that the petitioner had neither informed the officer, who served the grounds of detention to the petitioner nor the jail authorities through whom the grounds of detention and documents relied upon were served on the petitioner, that he does not know English language and only knows Bengali. It is contended ....
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....ssay or pass any language test. A working knowledge of English enabling him to understand the grounds would be enough for making a representation. He could very well send his representation in the language known by him. 11. In Parkash Chandra Mehta v. Commissioner and Secretary, Government of Kerala & Ors., [1985] 3 SCR 697, Venilal D. Mehta, his daughter Miss Pragna Mehta and son Bharat Mehta were detained under the COFEPOSA Act by an order dated 19th June, 1984 and the detention order was challenged in this Court under Article 32 of the Constitution of India. They were alleged to have been in possession of 60 gold biscuits of foreign origin. After their arrest the father and his daughter were taken to the Central Excise and Customs Department, Cochin where statements on their behalf were written in English by the daughter. The father Venilal D. Mehta put his signature in English as Balvant Shah but the daughter told the officers concerned that the correct name of her father was Venilal Mehta. In the writ petition it was the case of the father that he could not understand, read, speak or write English but could only sign his name in English. He was served with the grounds of de....
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.... he signed the mercy petition not knowing the contents, not understanding the same merely because his wife sent it though he was sixty years old and he was in business and he was writing at a time when he was under arrest, his room had been searched, gold biscuits had been recovered from him. Court is not the place where one can sell all tales. The detaining authority came to the conclusion that he knew both Hindi and English. It had been stated so in the affidavit filed on behalf of the respondent. We are of the opinion that the detenu Venilal Mehta was merely reigning ignorance of English." 12. After referring to the decisions in Hadibandhu Das v. District Magistrate, Cuttack & Anr., Nainmal Partap Mal Shah v. Union of India & Ors., and Ibrahim v. State of Gujarat & Ors. this Court in Prakash Chandra Mehta rejected the contention that the grounds of detention were not communicated to Venilal Mehta in a language understood by him. 13. Considering the facts and circumstances of the instant case and in view of the fact that no objection regarding non-communication of the grounds in a language understood by the detenu was made within the statutory period for furnishing the grou....
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....ly conversant with the English language. 20. The Supreme Court of India has also observed that what is required is a workable knowledge of language and not that the detenue is required to write an essay or pass any English test. In view of the settled position of law, this submission of learned counsel for the petitioner is rejected. II- DELAY IN EXECUTION OF THE DETENTION ORDER 21. The second ground, which has been raised by the learned counsel for the petitioner, is the delay in executing the order of detention. It is contended by counsel for the petitioner that the order of detention was passed on 18.2.2014. This order was served on the petitioner after a gap of almost four months i.e. on 19.6.2014. 22. Counsel for the petitioner submits that there is delay in execution of the detention order inasmuch that order of detention was passed on 18.2.2014, the same was served on the petitioner on 19.6.2014, after a gap of 4 months. In support of his submission, reliance is placed on Saud Nihal Siddique Vs. Union of India (UOI) and Anr. reported at 2011 (2) JCC 884; and Ferdousi Rahman Vs. Union of India (UOI ) Anr. reported in - 2013 (1) JCC 386. 23. Learned counsel for ....
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....circular was issued against the petitioner on 28.3.2014. As the petitioner was not apprehended respondent no.2 passed an order on 31.3.2014 under Section 7(1) b of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) ACT. A copy of the order dated 31.3.2014 was published in the official gazette as also in the local newspaper of Kolkota on 24.4.2014. Copies of the gazette and the newspaper have been placed on record. It has also been stated in the counter affidavit that on 1.5.2014 a report under Section 7(1)(a) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act was issued and the same was sent to ADG, DRI (Headquarters), New Delhi, for filing the same before the concerned Chief Judicial Magistrate. 27. In the case of Indradeo v. State of West Bengal, reported at AIR 1973 SC 1062, it has been held as under: "Where at the time of the passing of detention order, the person sought to be detained was absconding and he was arrested ten months thereafter, mere omission to take steps under Sections 87, 88, Cr.P.C. in issuing proclamation etc. about the person absconding will not per se render the d....
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....he concerned Chief Judicial Magistrate. 32. In our view, the Department has been able to satisfactorily explain the steps taken by them to serve the petitioner and, thus, the submission of learned counsel for the petitioner is rejected. III- DELAY IN DISPOSAL OF THE REPRESENTATION DATED 8.8.2014 33. Another ground urged by the petitioner is that the delay in deciding the representation made by the petitioner on 7.8.2014 before the Central Government i.e. the Special Secretary cum Director General, CEIB, Government of India, which was rejected on 2.9.2014. It is contended that on account of the unexplained delay in disposal of the representation the order of detention is liable to be vitiated. 34. In support of his submission with regard to delay in considering the representation of the petitioner, counsel has placed reliance on Ichhu Devi Choraria Vs. UOI & Ors. reported at AIR 1980 SC 1983, Mahesh Kumar Chauhan @ Banti Vs. UOI & Ors. reported at (1990) 3 SCC 148; Rajamal Vs. State of Tamil Nadu & Anr. reported at AIR 1999 SC 684; and Rama Dhondu Borade Vs. Commissioner of Police And Ors. reported at AIR 1989 SC 1861. 35. In counter affidavit, while denying that ther....
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....is rejoinder. On the same day, i.e., 20.06.2008 itself, it was sent to the sponsoring authority, i.e. Customs Authority, who sent their comments on 27.6.2008. The comments on the said representation were sent to the COFEPOSA department on 27.06.2008, 28/29.06.2008 were holidays being Saturday and Sunday and on the next day i.e. 30.06.2008, the representation of the detenu was considered by the competent officer of the COFEPOSA department and the same was rejected. The rejection order was communicated to the detenu on 01.07.2008 and received by him on 02.07.2008. 14. In the light of the details furnished in the counter affidavit, we do not find any substance in the contention and satisfy that there was any delay much more than the bare minimum time required to obtain the comments of the sponsoring authority accordingly, we reject the said contention also." 37. Counsel for the respondent has also placed reliance on Union of India Vs. Yumnam Anand Anand M. reported at (2007) 10 SCC 190 and more particularly paragraphs 9 and 10 which are reproduced below: "9. The High Court was of the view that parawise comments were not required to be called for and it was held that the same ....
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....anuary 18, 1990. It appears that there was postal delay in the receipt of the communication by the detenus but for that the detaining authority cannot be blamed. It is, therefore, obvious from the explanation given in the counter that there was no delay on the part of the detaining authority in dealing with the representations of the detenus. Our attention was drawn to the case law in this behalf but we do not consider it necessary to refer to the same as the question of delay has to be answered in the facts and circumstances of each case. Whether or not the delay, if any, is properly explained would depend on the facts of each case and in the present case we are satisfied that there was no delay at all as is apparent from the facts narrated above. We, therefore, do not find any merit in this submission." 38. Mr.Sanjay Jain, learned senior counsel for the petitioner also points out that during the period starting from 11.8.2014 to 28.8.2014 there were six holidays and thus it cannot be said that there was inordinate delay in deciding the representation of the petitioner. 39. Counsel for the petitioner has also relied in the case of Rajamal Vs. State of Tamil Nadu & Anr. repor....
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....008. Its disposal cannot be left to the whims and convenience of the Respondents, especially since it is a preventive and not a punitive detention that is being dealt with. We find no reason why the requisite decision was not taken on the representation "as soon as may be .... but ordinarily not later than five days". The unsatisfactory and legally unacceptable reason which has been proffered is forthcoming, however that the Respondents were concentrating on making the Reference to the Advisory Board within the statutory period of five weeks. The Respondents are clearly mistaken and misdirected in doing so. They should have instead concentrated first on disposing of the Representation of the Detenu." 41. On careful examination of the judgments sought to be relied upon by counsel for both the parties, it emerges that the representation is to be decided without any unreasonable delay and the explanation of the delay would depend on the facts and circumstances of each case. The objective of an expeditious disposal of the representation is closely associated with the liberty of a person. In the case of Rajamal (Supra), the detention order was quashed and the explanation rendered tha....
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....ine between the alleged occurrence and the object of detention stood snapped. 46. Counsel for the petitioner has placed reliance on the guidelines issued by the Department while dealing with the matters related to COFEPOSA Act, 1974, which are reproduced below: "A. Time gap between date of detention of a case and passing of Detention order should be shortest possible. The Courts / Advisory Boards have taken adverse view of any undue / unexplained delay in passing the Detention Order. It must, therefore, be the constant endeavour to ensure that detention Orders are issued in shortest possible time from the time of detention of a case. For this purpose, the following important aspects must be kept in view by the Investigating / Sponsoring Authorities" (i) Soon after a case is detected an assessment of the nature and gravity of the case in the context of the object and purpose of Cofeposa Act, 1974 read with the existing guidelines issued from time to time for implementation of this Act should be made at a senior level concerned with investigation of the case. This is a crucial stage when a decision has to be taken by the concerned investigating / sponsoring Authority that....
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....agraph: "Even in a case of undue or long delay between the prejudicial activity and the passing of detention order, if the same is satisfactorily explained and a tenable and reasonable explanation is offered, the order of detention is not vitiated. We must bear in mind that distinction exists between the delay in making of an order of detention under a law relating to preventive detention like COFEPOSA and the delay in complying with procedural safeguards enshrined under Article 22(5) of the Constitution. In view of the factual scenario as aforesaid, we are of the opinion that the order of detention is not fit to be quashed on the ground of delay in passing the same." 49. Since the counter affidavit has not explained the delay in passing the detention order and reference has been made to paragraph 25 of the grounds of detention, we deem it appropriate to reproduce paragraph 25 of the grounds: "25. Having regard to the chronological sequence of events in this case and whatever time was required for scanning the proposal and the voluminous relied upon documents (RUDs), formulating the grounds for issuance of Detention order after the receipt of the proposal was for the purpo....
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....as satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the causal connection has been broken in the circumstances of each case. 11. Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner. (Emphasis supplied)" 52. The provisions of the COFEPOSA Act vests extra ordinary power in the Government to detain a person, without recourse to ordinary law of the land and without a trial by the Court, and thus, the power is to be exercised with due care and caution. In the case of Rajesh Gulati Vs Government of NCT of Delhi reported at (2002) 7 SCC 129, wherein, it has been held: "The law permitting preventiv....
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.... was apprehended for breach of foreign exchange regulation in February 1981 and without launching any prosecution the detenu was detained in October 1981 the passage of time being the result of full and detailed consideration of facts and circumstances of the case after thorough examination at various levels, this Court observed that it could not be said that the detention was in any way illegal inasmuch as the detaining authority had fully and satisfactorily applied his mind to the question of detention." 56. We find force in the submissions made by counsel for the petitioner that there is unexplained delay in passing the detention order of approximately 8 months. The chart showing the chronological sequence of events prepared by the respondents would show that the proposal was approved for preventive detention of the petitioner on 28.6.2013, however, the detention order was passed only on 18.2.2014, we are not satisfied with the explanation which is sought to be relied upon by the respondent in the counter affidavit as also in paragraph 25 of the detention order. 57. A Division Bench of the Delhi High Court in the case of Raj Kumar Vs. Union of India,[WP(Cr.)No.680/2008 dec....
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....ar Chauhan alias Banti v. Union of India, (1990) 3 SCC 148 : (AIR 1990 SC 1455), right upto its reiteration in Gazi Khan alias Chotia v. State of Rajasthan, (1990) 3 SCC 459 : (AIR 1990 SC 1361)." 58. There is no quarrel with the propositions laid down in the judgments relied upon by learned Additional Solicitor General appearing on behalf of the respondents, however, we are of the view that the judgments sought to be relied upon are not applicable to the facts of the present case. The counter affidavit is blissfully silent with regard to the delay in passing the order of detention and in the counter affidavit reference has been made to paragraph 25 of the grounds of detention on the basis of which the respondents wish to explain the delay. We have reproduced in the paragraph aforegoing paragraph 25 of the grounds of detention, which in our view do not give any explanation, much less a satisfactory explanation with regard to delay. The underlying principle which cannot be ignored is that unexplained delay in passing the order of detention is likely to vitiate the order of detention and snap the nexus between the incident and the detention. No doubt there can be no hard and fast ....