TaxTMI 
TaxTMI 
2015 (6) TMI 815
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....r, the petitioner has pursued the petition to avoid other adverse consequences arising from the impugned detention order. 3. The petitioner was preventively detained under Section 3 (1) of the COFEPOSA Act. The order of detention dated 12.12.2012 stated that the detaining authority is satisfied that the petitioner be detained "with a view to prevent him from engaging in smuggling, transporting, concealing and keeping the smuggled goods in future ..... ..... .....". 4. The case of the petitioner is that he came from Bangkok on 20.05.2012, when he checked in hotel "My Inn" at 904, Chandiwali, Main Bazaar, Pahar Ganj, Delhi. The petitioner states that on the same day, some persons - identifying themselves as Directorate of Revenue Intelligence (DRI) Officers, came to the petitioner's room and alleged that he is carrying Fake Indian Currency Notes (FICN). The petitioner was arrested upon a case being registered against him under the Customs Act, 1962. On information from the DRI, the Central Bureau of Investigation (CBI) also registered First Information Report (FIR) under Sections 489B and 489C of Indian Penal Code (IPC) against the petitioner. 5. On 29.06.2012, the petit....
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....petitioner informed that they were calls from Nawab, who informed that he would collect the TV within one or two hours. However, Nawab did not turn up at the spot during the Panchnama proceedings. 8. The GoD further states that the petitioner was served with summons dated 21.05.2012 under Section 108 of the Customs Act, 1962 for his appearance before the Senior Intelligence Officer, DRI on 21.05.2012 at 06:30 a.m. The petitioner assured that he shall appear and make his voluntary statement at 11:00 a.m. on 21.05.2012. The GoD states that the petitioner accordingly made his voluntary statement on 21.05.2012 admitting recovery and seizure of the said FICN having a total face value of Rs. 15,92,500/-, which had been concealed in the TV brought and carried by the petitioner from Bangkok to India by Flight No.AI-333 dated 20.05.2012. 9. The GoD record that on 28.05.2012, a letter was sent to the General Manager, Currency Note Press (CNP), Nashik, Maharashtra informing about the seizure of FICN in question and seeking the convenient date and time for presenting the seized notes for verification. The seized notes were required to be produced for verification in the week commencing 0....
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....ce again stating that his statement under Section 108 of the Customs Act was not voluntarily made. The said bail application was dismissed on 29.06.2012, whereafter the chargesheet came to be filed on 21.08.2012. The petitioner moved another bail application on 14.09.2012. However, the same was rejected on 22.09.2012. The GoD records that thereafter the JC of the petitioner had been extended from time to time. 15. In the aforesaid background, learned counsel for the petitioner has made submissions on the aspect of delay. The first submission of learned counsel for the petitioner is that there was immense delay of seven months in passing of the detention order. He submits that the petitioner was first apprehended, allegedly carrying FICN on 20.05.2012. According to the respondent, the CNP opined with regard to the FICN being counterfeit notes on 05.07.2012. However, the detention order was passed only on 12.12.2012, i.e. after a delay of nearly seven months from the date when the petitioner was first apprehended, and over five months from the date when the aforesaid report with regard to the FICN was received. Learned counsel submits that on account of the said delay, the live li....
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....o explain the time taken, i.e. seven months for passing the detention order on 12.12.2012, when the petitioner was first apprehended on 20.05.2012 , Mr. Soni has sought to draw the attention of the Court to the following extract from the GoD: "25. In the statement given by Shri Adarsh Pal Singh, i.e. you, to the DRI officials, you had mentioned that about a telephonic call received from one Shri Nawab through the Hotel Reception between 6 and 6:30 PM on 20.05.2012 informing that he would visit the hotel within an hour or two to collect the FICN. In your statement you had also admitted having received one call from Shera and one call from Nawab during the Panchnama proceedings in which you were informed that Nawab will be taking delivery of the goods (TV) in a short time. Although, you have stated that the two persons Shera@ Bunty and Aslam had visited your restaurant in Bangkok everyday and on whose request you had agreed to carry the FICN concealed in a TV to India to handover to one Nawab at Delhi for a payment, you had deliberately withheld the details including the telephone numbers of these persons thereby protecting the identity of other members of the smuggling syndicate.....
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....who were using mobile No.+923243044600, 0066846610953 and 0066846431814 through NCB at Bangkok, Thailand and NCB, Islamabad, Pakistan to ascertain the modus operandi of the smuggling syndicate of which you are a part, vide CBI reference number 6756/RC 220 2012 E 0014 EOU-VI dated 02.07.2012 and 6755/RC 220 2012 E 0014 EOU-VI dated 02.07.2012 respectively. 28. From the aforesaid facts it appears that Shri Adarsh Pal Singh S/O Shri Manmohan Singh R/O House No.3/67, Kohli Garden, Civil Lines, Haldwani, Distt. Nainital, Uttara Khand i.e. you, presently lodged in Central Jail, Tihar, Delhi, had smuggled FICN concealed in a TV, mis-declared, carried and dealt with the seized smuggled FICN having face value of Rs. 15,91,500/- which you knew or had reasons to believe were prohibited for import and were liable to confiscation under the provisions of the Customs Act, 1962 and thus you appear to have committed offences punishable under Section 132 & 135 of the Customs Act, 1962. 29. It is clear that Shri Adarsh Pal Singh S/O Shri Manmohan Singh R/O House NO. 3/67, Kohli Garden, Civil Lines, Haldwani, Distt. Nainital, Uttara Khand i.e. you have engaged yourself in smuggling, transporting....
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....n in passing the detention order on 12.12.2012, since the petitioner had remained in custody from 20.05.2012; the chargesheet in the CBI case had been filed on 21.08.2012; and the second bail application had been rejected on 22.09.2012. Therefore, there was every possibility that had the petitioner applied for bail on the third occasion, he would have been granted bail as the investigation had since long been completed and even the chargesheet had been filed by the CBI. 23. Having heard learned counsel for the parties, perused the detention order and the GoD, and considered the decisions relied upon by the petitioner, we are of the view that the impugned order of detention suffers from the vice of unexplained delay in the passing of the detention order, as also the absence of cogent reasons for passing the detention order at the time when the same was passed, as there was no subsisting material to have subjective satisfaction that the petitioner would be granted bail and would be released, unless detained by resort to Section 3(1) of the COFEPOSA Act. 24. Firstly, we find merit in the submission of learned counsel for the petitioner that there was unexplained delay in passing....
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....e. when the petitioner was apprehended with smuggled FICN on 20/ 21.05.2012, and the date of issuance of the detention order is not sufficient. The GoD do not disclose any materials to establish the so-called live link. 27. In T.D. Abdul Rahman v. State of Kerala & Ors., AIR 1990 SC 225, the Supreme Court, after referring to several earlier decisions observed as follows: "10. The conspectus of the above decisions can be summarised thus: The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the court has to ....
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..... you, in your bail applications dated 22.06.2012 and 14.09.2012 filed before the Ld. CMM, Tis Hazari Court in the CBI case, had retracted your statement given u/s 108 of Customs Act, 1962. However, your contentions have been rejected by the Hon'ble Courts keeping in view the facts submitted by CBI. I am also aware that the passport surrendered by you to the DRI Officers is also returnable to you as the DRI has no authority to impound your passport under the provisions of the Passport act, 1967. I am also aware that the bail granted to you by the Ld. ACMM, Patiala Court in the case filed under Customs Act 1962, was dismissed only on account of non appearance of the sureties before the said Court. The case is coming up for hearing on 17.12.2012. In the event of being granted bail by either Court and your passport being not impounded till date, there is a possibility of your absconding and interference in the investigation being conducted into the activities of other members of the smuggling syndicate whose identities you have attempted to protect by withholding information and hence it is imperative to immobilize you by detention under COFEPOSA Act, 1974." 30. Pertinently, th....
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....ountry extracts from the public officials in order to protect the fundamental freedoms of our citizens". (emphasis supplied) 32. In Kamarunnissa v. Union of India and Anr., (1991) 1 SCC 128, the Supreme Court observed: "13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition to question it before a higher Court". 33. In Rajesh Gulati v. GNCT of Delhi, (2002) 7 SCC 129, the Supreme Court observed as follows: "13. In thi....
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....& Ors., (2006) 9 SCC 711 and Rajesh Gulati (supra). The Supreme Court in Navpreet Kaur Chadha (supra), after referring the said decision, observed as follows: ".... .... .... it was observed that in the said cases it has been held that if no bail application was pending and the detenu was already, in fact, in jail in a criminal case, the detention order under the preventive detention law is illegal. Reference was also made to the observations of the Constitution Bench decision in Haradhan Saha v. State of West Bengal, (1975) 3 SCC 198, wherein it was observed:- "34. Where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to be likelihood of such a person indulging in activities which would jeopardize the security of the State or public order." 36. The Supreme Court also quoted from its earlier decision in Rekha (supra) and the extract from Rekha (supra) reads as follows: "10. In our opinion, if details are given by the Respondent authority about ....