AI Drafter 
TaxTMI 
TaxTMI 
2012 (8) TMI 941
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....the detenu along with Deepak Jare 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 `5.03 crores, was seized under the provisions of the Customs Act, 1962. 3. It is further stated that simultaneous search operations were carried out at the stated places, allegedly used as residence and also office premises of the detenu and his companions including the permanent room booked at Hotel Taj Lands end at Room No. 1902, Bandstand, Bandra (W) 400050. The searches led to seizure of unaccounted cash amount of aggregate Rs. 2,65,70,000/-, Skoda Fabia Car, five high end cars i.e. two Bentley and three Mercedez, laptops, computer CPU, 14 mobile phones and other incriminating items such as plain bottle seals without any markings, broken bottle seals, metal dies containing insignia of var....
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....iners were stuffed with cover export goods on paper, such as Mango Pulp, Guava Pulp, Plastic crates etc, and sealed with Central Excise and Shipping Line bottle seals after due examination. However, enroute i.e. the journey from exporters' factory to Nhava Sheva, the containers were diverted to a godown in Talegaon or Jainapur, original seals were broken and consignment replaced with red sanders. After that the containers were sealed with duplicate seals having same serial numbers and markings. Thereafter, the containers were transported to Nhava Sheva. Since the containers were pre-examined and had same seal number, they were allowed to be exported after verification of the seal. 22. You had rented the godowns at Talegaon and Jainapur through your associate Ravi Waikar and had arranged the trailers and drivers for transporting the said containers through your other associate. You used to arrange remittances to the Indian exporter through your Dubai based buyers for the original export consignments so as to avoid any suspicion. You admitted to have exported around 40 containers of red sanders to Dubai in the past and had earned about Rs. 40 Crores by such smuggling activity.....
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....ore passing the Detention order. 26. I have considered your representations dated 10.01.2012 and 10.02.2012 before passing the Detention Order. 27. I have also considered the Show Cause Notice dated 29.02.2012 before passing the Detention Order. 28. Considering the nature and gravity of the offence and the well organized manner in which you have engaged in such prejudicial activities, it is imperative that you should be detained under the provisions of COFEPOSA Act, 1974, with a view to prevent you from indulging in smuggling activities in future. 29. Your smuggling activities fall under Section 113(d) & (h) of the Customs Act, 1962. 30. While passing the detention order under COFEPOSA Act, 1974, I have referred to and relied upon the documents mentioned in the enclosed list which are also being served on you. 31. Whatever time was required for scanning the proposal containing about 2965 pages, and formulating the grounds for issuing the detention order, after receipt of the proposal, was for the purposes of better verification of the material placed before me and applying my mind and arriving at subjective satisfaction. Therefore, I am satisfied that the nexus be....
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....n. The latter two representations have not been considered by the Detaining Authority at all, before passing or issuance of the detention order, though vital documents and would have had bearing on the subjective satisfaction. (iv) The latter two representations, made by the detenu, dated 18.02.2012 and 06.03.2012 were not placed before the Detaining Authority for her consideration, though vital documents. (v) Further, the latter two representations dated 18.02.2012 and 06.03.2012 were received in the office of the Detaining Authority on 26th March, 2012, after passing of the impugned detention order on 14th March, 2012. The Detaining Authority considered the said representations after about 24 days on 19th April, 2012. Thus, there was unexplained delay in deciding the said representations at the hands of the Detaining Authority (vi) Furthermore, although the Detaining Authority dealt with the latter two representations dated 18.02.2012 and 06.03.2012 on 19th April, 2012, the decision taken thereon was communicated at the detenu's residence only on 13th June, 2012. The communication was dispatched after 51 days from the date of the decision on the said representations,....
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....he Respondents have not claimed protection of Section 5(A) of the Act, in the affidavits filed to oppose this Petition. In any case, the detention order in the present case is based on solitary ground, in which case, Section 5(A) will be of no avail. (D) The impugned detention order cannot be supported by the Respondents on the argument of no prejudice caused to the detenu. Instead, the Court should lean in favour of the detenu, if it is demonstrated that the omissions or commissions of the Authorities concerned are unexplained. (E) It is not open to the Respondents to deprive the detenu of a ground otherwise available to the detenu merely on the technical argument of imperfect pleadings or no such ground has been specifically urged in the Petition, while dealing with the Habeas Corpus Petition. 7. The Respondents have filed reply affidavits to counter the allegations made about the acts and ommissions of the Authorities and the grounds urged by the Petitioner. The Learned Advocate General appearing for the Detaining Authority and Counsel for the Respondents, during the arguments, have attempted to demonstrate that each of the abovesaid ground urged by the Petitioner is de....
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....eded to give a report against the detenu, without affording him an effective opportunity of hearing and without properly dealing with his representation. Consequently, the petitioner received on 1.6.2012, order dated 28.5.2012 communicating him the confirmation by the State Government of the impugned detention order under section 8(f) of the COFEPOSA Act, 1974. A copy of the said Confirmation Order dated 28.5.2012 is hereto annexed and marked as EXHIBIT-L. The petitioner submits that failure of the Advisory Board in properly considering the request of the detenu made in the above peculiar circumstances, has rendered the detention illegal, null and void on the vice of Article 14 and 21 of the Constitution of India." (emphasis supplied) 9. In the context of this ground, reliance was placed on the notice received from the Secretary, Advisory Board, dated 4th May, 2012. The same reads thus: "GOVERNMENT OF MAHARASHTRA Speed Post No. PSA-1012/05/COFEPOSA Board/SPL-10 Advisory Board constituted under the COFEPOSA ACT 1974 C/o Home Department (Special) New Administrative Building, 12th floor, Mantralaya, Mumbai 400 032. Dated the 4th May, 2012. To Shri Ajit Bapu Satam,....
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....lative of Article 14, 21 and 22(5) of the Constitution of India. PRAYERS 7. It is therefore prayed that (i) Suitable report may please be forwarded to the State Government for revocation of the impugned detention order No.PSA-1211/CR-88/SPL-3(A) dated 14-03-2012, (ii) Any other direction as deemed fit in the interest of justice." (emphasis supplied) 11. We shall now refer to the reply filed by the Secretary to the Advisory Board. He has stated that he was personally present at the meeting of the Advisory Board which was held on 15.5.2012, when the detenu personally handed over the representation dated 15.5.2012 addressed to the Chairman of the Advisory Board. The Advisory Board thereafter heard the detenu himself and went through the representation of the detenu. The Advisory Board then submitted its report/opinion which was forwarded to the Home Department on 23.5.2012. It is further stated that the detenu was informed vide letter dated 4.5.2012, which was received by the detenu on 7.5.2012 whilst in Nashik Prison. In other words, the detenu was informed well within the stipulated period, that is, before 9 days of the meeting of the Advisory Board. The detenu was pe....
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....nconditionally proceed with the hearing before the Advisory Board on 15.5.2012 in spite of the point made in para 4 of the written representation, it is not open to him or any person to make grievance that the Advisory Board could not have proceeded with the hearing on 15.5.2012. Thus, there is no substance in the plea articulated in the amended ground (P) making grievance about Advisory Board not adjourning the hearing on 15.5.2012. 14. Be that as it may, the other grievance which can be discerned from the amended ground (P), is that, the Sponsoring Authority was represented by the Senior Intelligence Officer before the Advisory Board to defend the detention order. It is then stated that two other detenus on the same day were represented by their advocates before the Advisory Board. Once again, the petitioner has stopped at that without asserting further that the detenu had requested the Advisory Board to give him opportunity to engage advocate to espouse his cause. On the other hand, as is noticed from the reply affidavit filed by the Secretary of the Advisory Board and the noting made in the original file of the Advisory Board, it appears that the detenu presented the written....
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.... engage advocate to represent him during the hearing. 16. The argument of the petitioner, however, is that, it is not as if there was no sufficient time with the Advisory Board to submit its report to the State Government. The three months period for submission of its report was to end on 18.6.2012. Moreover, it was the bounden duty of the Advisory Board to inform or apprise the detenu who was appearing in person that he may consider of engaging advocate as the Department/ Sponsoring Authority was represented by Senior Intelligence Officer. This argument, if we may say so, is, begging the question. We say so because the detenu was aware of the fact that the other detenus were allowed to engage advocate to represent them before the Advisory Board. Inspite of that, having chosen to hand over written representation and argue his case personally, now, he or any one espousing his cause cannot turn around and find fault with the procedure adopted by the Advisory Board. We may observe that we are dealing with a detenu, who was detained pursuant to preventive detention order even in the past and was fully familiar with the procedural aspects. That is reinforced from the fact that he ....
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....djournment or permission to engage Advocate and instead misleading the Advisory Board in believing that he intends to proceed with the hearing in person. 17. Be that as it may, when the detenu appeared before the Advisory Board on 15.5.2012, pursuant to the notice of hearing dated 4.5.2012, received by him on 7.5.2012, he already had a detailed, well articulated, typed representation dated 15.5.2012 running into around 5 pages, which was obviously prepared under legal advice. Most of the grounds now urged in this petition were already taken in the four letters sent by the detenu before issuance of the detention order as also included in the representation made to the Advisory Board on 15.5.2012. With this background of the detenu, coupled with the fact that the detenu having consciously and unconditionally chosen to forego his option of engaging advocate or to ask for adjournment on 15.5.2012, cannot take advantage of that to question the procedure followed by the Advisory Board - which is headed by a sitting Judge of the High Court and two former High Court Judges. It is one thing to say that the detenu had insisted for adjournment and the Advisory Board rejected that request u....
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....Hindi or Malayalam and does understand only Gujarati language. In this background, the Court opined that there is no Rule of law that commonsense should be put in cold storage while considering constitutional provisions for safeguards against misuse of powers by authorities though these constitutional provisions should be strictly construed. The Court noted that the Court is not the place where one can sell all tales. In Paragraph No. 73 of the same decision, the Court adverted to the quote of Benjamin Cardozo, "a Constitution states or ought to state not rules for the passing hour, but principles for an expanding future". It went on to observe that "the concept of grounds", therefore, has to receive an interpretation which will keep it meaningfully in tune with the contemporary notions of the realities of the society and the purpose of the Act in question in the light of concepts of liberty and fundamental freedoms guaranteed by Articles 19(1), 21 and 22 of the Constitution. It held that the expression "grounds" for that matters includes not only conclusion of fact but also all the "basic facts" on which those conclusions were founded, they are different from subsidiary facts o....
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....nder consideration. In the facts of the present case, therefore, it is not possible to countenance the challenge to the grounds of the detention or the detention order being violative of Articles 14, 21 or 22 of the Constitution of India, as is pressed into service by the Counsel for the Petitioner. 22. The Counsel for the Petitioner was at pains to rely on the decision of the Constitution Bench of the Apex Court in the case of A.K. Roy vs. Union of India, (1982) 1 SCC 270. Emphasis was placed on paragraphs 93 and 94 of the reported decision which reads thus: 93. We must therefore, hold, regretfully though, that the detenu has no right to appear through a legal practitioner in the proceedings before the Advisory Board. It is, however, necessary to add an important caveat. The reason behind the provisions contained in Article 22(4) (b) of the Constitution slate is that a legal practitioner should not be permitted to appear before the Advisory Board for any party. The Constitution does not contemplate that the detaining authority or the Government should have the facility of appearing before the Advisory Board with the aid of a legal practitioner but that the said facility shou....
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....tion Ltd.)(1), and if justice to be done, he must at least have the help of a friend who can assist him to give coherence to his stray and wandering ideas. Incarceration makes a man and his thoughts dishevelled. Just as a person who is dumb is entitled, as he must, to be represented by a person who has speech, even so, a person who finds himself unable to present his own case is entitled to take the aid and advice of a person who is better situated to appreciate the facts of the case and the language of the law. It may be that denial of legal representation is not denial of natural justice per se, and therefore, if a statute excludes that facility expressly, it would not be open to the tribunal to allow it. Fairness, as said by Lord Denning M.R., in Maynard v. Osmond can be obtained without legal representation. But, it is not fair, and the statute does not exclude that right, that the detenu should not even be allowed to take the aid of a friend. Whenever demanded, the Advisory Boards must grant that facility." (emphasis supplied). 23. No doubt, the Apex Court has expounded that if the Detaining Authority or the Government takes the aid of a legal practitioner or a legal adviso....
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....ted to produce his witness. The Advisory Board proceeded with the hearing. In the backdrop of those facts, the Apex Court went on to observe that whenever there is a doubt between liberty and bondage, the decision must be in favour of liberty and on that principle, upheld the opinion of the High Court that the Advisory Board could not have proceeded with the hearing without giving opportunity to the detenu who desired to be heard. The exposition in this case is in the context of the fact situation of that case. As aforesaid, in the present case, the detenu made no attempt to ask for adjournment or requested the Advisory Board to allow him to engage a lawyer. None of this happened before the Advisory Board. Instead, the detenu consciously and unconditionally proceeded with the hearing on merits on his own after presenting the written representation. There can be no presumption of a fact that the detenu had requested the Advisory Board to adjourn the case or for that matter, allow him to engage a lawyer. That fact must be clearly pleaded and also established, which is lacking in the preset case. 26. Reliance was then placed on the unreported order of ....
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....3508 of 2011 dated 23.1.2012, the issue was founded on the exposition of the Apex Court in State of Maharashtra vs. Zubeir Haji Kasam (supra). In that, the appraisal that the detenu cannot be represented by legal practitioner before the Advisory Board had misrepresented the detenu from making effective representation before the Advisory Board. The Court held that there was nothing in the intimation that the petitioner was not entitled to request the Advisory Board to allow him to be represented by a lawyer. The Court further held that the detenu did not make any request to the Advisory Board for permitting him to take the assistance of the legal practitioner. The Court, therefore, distinguished the decision of the Apex Court in the case of Zubeir Haji Kasam (supra) and negatived the ground urged by the petitioner therein. 28. Reliance is then placed on the Delhi High Court decision in the case of Kapil Kumar vs. Union of India, 2001 Cr.L.J. 1154. The question considered in that case was whether the Advisory Board could reject the detenu's representation seeking permission to examine his witness, who was waiting outside, without assigning any reason.&n....
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....are of his right to produce witnesses and examine them before the Advisory Board. As a result of which, that valuable right could not be exercised by the detenu. In the present case, the detenu was aware about the option available to him of engaging a lawyer. He adverted to that option explicitly in his written representation, paragraph 4 thereof. Besides, he had noticed that on the same day, the Advisory Board permitted two other detenus to be represented by their lawyers. Notwithstanding this, when his case was taken up for hearing by the Advisory Board, he did not make any oral request for adjournment nor to allow him to engage a lawyer, but himself consciously and unconditionally proceeded with the hearing, as can be discerned from the notings in the original file of the Advisory Board. The petitioner has advisedly not asserted that inspite of oral request made by the detenu, the Advisory Board unreasonably rejected the request in that behalf. Accordingly, we find no merits in the ground under consideration. We are of the opinion that there is no infirmity in the procedure followed by the Advisory Board. Neither any subsisting nor any enured ....
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.... Authority bordering on non application of mind, while forming subjective satisfaction. 34. The response of the Respondents, in particular the Detaining Authority, is essentially that the variation was the outcome of typographical error. In any case, the correct detention number has been mentioned in the grounds of detention at the outset in the opening part itself. The detention order number given in first paragraph was only a deficiency in the form and not of substance. The substance and the basis on which the preventive detention action was taken against the detenu is noticed from the various circumstances and material referred to in the grounds of detention, which pertain to the detenu and none else. It is not as if the detenu has been served with grounds of detention pertaining to some other detention order concerning some other person. In this context, the argument of the Petitioner is that the theory of no prejudice caused to the detenu is untenable, while considering the challenge to preventive detention order dealing with the liberty of a person. 35. In the representation made by the detenu, to the Advisory Board, dated 15th May, 2012 as....
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....Izaz Rashid Baig @ Ajju vs. R. H. Mendonca and Ors. 1999 ALL MR (Cri) 1568. The Division Bench of this Court, in Paragraph 10, has noted that the detention order would be vitiated if there is absence of translation of a vital document or a part of it, which would impair the right of the detenu to make an effective representation. Counsel for the Petitioner had argued that this exposition is contrary to the decision of the Apex Court, which takes the view that the theory of prejudice caused to the detenu cannot be used by the Statutory Authority. It is one thing to say that the variation in the translation was in respect of irrelevant matter. However, it would be a different matter if the State Authorities were to admit that there was variance in the copy furnished to the detenu, which was relevant document but yet contend that the same be overlooked as no prejudice was likely to be caused to the detenu. No such argument has been canvassed before us. 38. Learned Advocate General placed reliance on another decision in the case of D. Anuradha vs. Joint Secretary and Anr. (2006) 5 SCC 142. Reliance was placed on the dictum in Paragraph 22 of....
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....of such a nature as to indicate improper or non application of mind or or that matter, casual and mechanical approach of the Detaining Authority. 41. It is not the case of the Petitioner that the ground specified under the Act is not made out in the detention order or the grounds of detention as such. The variation, if at all, is only of the expression while maintaining the content and substance necessitating issuance of order of preventive detention. The side argument of the Petitioner that such variation has impacted the detenu's right to make effective representation, in our opinion, deserves to be negated for the same reason and being misplaced and imaginary 42. Another shade of the same grievance is that in the detention order, it is stated that the detention order is issued with a view to prevent the detenu in future from smuggling goods, which falls under clause (i) of sub Section (1) of Section 3 of COFEPOSA Act, 1974. However, in Paragraph 28 of the grounds of detention, it is mentioned that it is imperative to detain the detenu under the provisions of COFEPOSA Act, 1974, with a view to prevent him from indulging in smuggling activities in futur....
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....otice the typographical error, then the subjective satisfaction, recorded by the Detaining Authority, suffers from non application of mind. In both these cases, the error was with regard to the vital material, on the basis of which, subjective satisfaction was required to be formed. Inasmuch as, in the case of Abdul Majid, the variation was with regard to the date, on which, statement of the detenu was recorded, which ought to have been verified by the Detaining Authority, before forming subjective satisfaction and in the later case, the variation was with regard to the date on which the raid was conducted. Even that fact was vital for forming the subjective satisfaction. 45. In the present case, however, no variation has been pointed out with regard to any "vital fact", which is required to be considered for "forming subjective satisfaction". The discrepancy is only in respect of the detention order number in Paragraph 1 of the grounds of detention. That is not a relevant fact for forming subjective satisfaction at all. Further, for understanding the significance of the letters mentioned in the detention order number, we called upon the Couns....
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....ssioner of Police, decided on 27th October, 2003. Even in this case, it was found that there was typographical error in respect of figure about the time when the incident had occurred. In the grounds, it was stated that the incident took place on 24th October, 2002 at 18.00 hours, when, in fact, the incident had occurred at 6.00 a.m. That variation was very vital affecting the subjective satisfaction, as in the earlier two cases of the same High Court, referred to above. 49. Reliance is then placed on the decision of Delhi High Court in the case of Bharti Arora vs. Union of India, decided on 24th December, 2011 in WP (Cri.) No. 1672/2011. In this case, the grievance of the Petitioner was that the documents supplied to the detenu had caused confusion in his mind. Inasmuch as the grounds of detention gave impression that the Detaining Authority is Respondent No.3, by mentioning that the representation was to be made to him, whereas, the Detention order was passed by Respondent No. 2. The Court, therefore, proceeded to hold that this affected the right of detenu to make representation at the earliest opportunity. The exposition in that case....
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.... this Court, relied upon by the Petitioner in the case of Shekhar Pawaskar vs. V. K. Saral and Ors., 1990 CRI. L. J. 138. In that case, discrepancy noticed by the Court was in the document supplied in Marathi version. It was wholly incorrect and incomplete translation of the medical certificate, the original of which was in English. That variation obviously could have affected the formation of subjective satisfaction of the Detaining Authority and was in respect of a vital document. Similarly, it was bound to confuse the detenu and affect his right to make effective representation at the earliest opportunity. 53. The petitioner has then relied on para 17 of the decision of the Apex Court in the case of Additional Secretary vs. Alka Subhash Gadia, 1991 (53) ELT 481 (SC), which has taken the view that every unexplained error of omission or commission would make the detention order or its further operation illegal. We have already dealt with each of the so called omissions or commissions of the Sponsoring Authority or the Detaining Authority adverted to by the petitioner. Having held that it was not a case of error of omission or commission by th....
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....ead, it necessarily follows that the Detaining Authority was aware of the fact that the detention order issued against the detenu in the year 2008 was eventually quashed and set aside on the ground of delay in execution. 58. Indeed, the Counsel for the petitioner argued that the noting made in para 8 of the grounds of detention that the detention order was quashed on the ground of delay in execution is incorrect. But, on reading the decision of the High Court, there is no manner of doubt that the said detention order passed against the detenu was quashed on the ground of delay in execution. The past events of arrest of the detenu in 2003 and 2004, therefore, would certainly be relevant and germane material for forming opinion that the detenu was habitual and regular offender. The Detaining Authority has considered the totality of the material placed before her "including the statement of the detenue" u/s 108 of the Customs Act evidencing the nature of and the gravity of the offence and well organised manner in which the detenu had engaged himself in prejudicial activities which necessitated issuance of preventive detention order against him to....
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....he same detenu. The earlier detention order was passed on 20.1.1992 which was set aside by the High Court on 25.8.1992 but in the impugned detention order passed on 25.8.1992, no reference was made to the fact that the High Court had set aside the previous detention order. On this finding, the Court answered the controversy and found that the subjective satisfaction was vitiated. 62. As aforesaid, in the present case, on reading the grounds of detention as a whole, it is noticed that the Detaining Authority has not only referred to the order of detention passed against the detenu under COFEPOSA Act in 2008 but has also shown her awareness to the fact that the said detention order was quashed on the ground of delay in execution. Further, the action of preventive detention was necessitated on account of the continual prejudicial criminal activities of the detenu, who was operating as the kingpin of the gang engaged in smuggling red sanders to Dubai as unraveled from the recent seizure of huge quantity of red sanders from the three truck trailers used for transporting the containers on 3.9.2011 and also huge unaccounted cash amount. The subjective satisfacti....
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....Authority, which were vital documents, would have bearing on the subjective satisfaction of the Detaining Authority. Thus, on the grounds of non placement and also non consideration of the latter two representations, the subjective satisfaction is vitiated. The Petitioner asserts that the latter two representations were duly delivered and received well ahead of passing of the detention order in the office of the Detaining Authority. No explanation is forthcoming, as to what prevented placement of those representations before the Detaining Authority. 65. With regard to the non placement and non consideration of the latter two communications submitted by the detenu, it is argued by the Counsel for the Respondents that the detenu cannot draw analogy of the requirement of dealing with the representations made to the concerned authority, after passing of the detention order, which right flows from Article 22(5) of the Constitution of India and also from the provisions of the COFEPOSA Act. As regards the so called representations of the detenu, sent before passing of the detention order, that is, at best, only in the nature of favourable material which along wi....
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....erting back to the decision of the Apex Court in the case of Ahmad Nasar (Supra), it is noticed that the detenu had sent letter to the "Detaining Authority", through Jail, before passing of the detention order. His advocate had also sent a letter to the Customs Authority, before passing of the Detention order. The detenu had contended that the said letters were vital documents and would have had bearing on the subjective satisfaction of the Detaining Authority. However, the same were not placed before the Detaining Authority. Notably, in that case, the letter sent by the detenu, through Jail, was addressed to the Detaining Authority and that letter was received by the Secretary concerned, who had signed the proposal for detention, before it was sent to the Minister concerned, being the Detaining Authority. The Secretary, on receipt of the said letter, from the detenu, through Jail, found that the detenu's retraction of confession, was only repetition of what was contended in the detenu's bail application, which was already placed before the Detaining Authority and was considered by him. The Court, however, found as of fact that the letter received by....
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....y has no role whatsoever at the pre-issuance of detention order stage. The Detaining Authority is independent and has to form subjective satisfaction on its own on the basis of material placed before it. The Additional Chief Secretary can neither dictate to the Detaining Authority nor any provision in the Act or the Constitution has been brought to our notice, which authorises him to interdict the process of consideration of proposal for passing preventive detention order against an individual. Notably, the provisions of the COFEPOSA Act and the Constitution of India permit revocation or modification of detention order, "once it is passed". 72. Be that as it may, the four communications were admittedly sent to the Additional Chief Secretary and not to the Sponsoring Authority or the Detaining Authority, before passing of the detention order by the Detaining Authority. Indeed, it is possible for the Petitioner to contend that the office of the Additional Chief Secretary, having received the latter two communications, sent by the detenu, could have forwarded the same to the Detaining Authority. No such plea has been specifically taken in the Writ Peti....
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....alitatively different and contained new material. In absence thereof, assuming that the detenu had sent two letters well in advance before the passing of detention order, it would make no difference as the Detaining Authority has already considered the first two letters of the detenu which indisputably contained elaborate stand of the detenu running into several pages. Further, the Respondents have justly relied on the decision which expounds that merely because the detenu makes successive representations, that would be of no avail and the detention order cannot be lightly interfered with on the basis of such grievance. The Learned Advocate General has relied on the decision of the Constitution Bench of the Apex Court in the case of Makhan Lal Gokul Chand vs. Administrator, Union Territory of Delhi and Anr. AIR 2000 SC 158. It is held that if fresh material was not brought on record nor any subsequent events were pointed out, which may have warranted a fresh consideration of the representation made by the detenu, successive representations made by the detenu will be of no avail. The Petitioner in that case had successively challenged the detention order by filing fou....
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....onsoring Authority. Nor it is the case of the petitioner that it was forwarded to the Sponsoring Authority or the Detaining Authority before 14.3.2012. The petitioner asserts that the said letter was delivered in the inward of the Home Department. That does not mean that it was delivered in the office of the Sponsoring Authority or the Detaining Authority before 14.3.2012. After receipt in the inward department, it was bound to be processed through proper channel and must have reached the Additional Chief Secretary, Home Department in due course. The Detaining Authority in the reply affidavit, asserts that copy of the said letter was received in her office only on 26.3.2012. Thus, the Sponsoring Authority could not be blamed for having failed to place the document before the Detaining Authority much less before the passing of the detention order. In other words, if the petitioner wanted the said letter to be considered by the Detaining Authority, should have ensured that it is delivered in the office of the Sponsoring Authority or the Detaining Authority well in advance and cannot be allowed to take advantage of his own wrong of having address....
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....on and rejected it on 19.4.2012 does not and will not enure in favour of the detenu, unless it is established that it obligates the Authority to treat such communication as a representation post-detention order. In that case, the argument of delay in consideration of the representation by the Detaining Authority or for that matter, delay in communicating the decision of the Authority of rejecting the letter dated 6.3.2012 does not take the matter any further. 79. The plain language of section 8 of the COFEPOSA Act is suggestive of making a representation against the preventive detention order to the State Government on the basis of the grounds of detention communicated to the detenu. Even the provision in Article 22(5) indicates that after the grounds on which the preventive detention order has been made and is communicated to the person, he is entitled to make representation at the earliest opportunity against the order and not representation in anticipation of the order. Considering the legislative scheme, there is neither any right bestowed on the detenu to make representation before passing of the detention order nor a duty is cast on the Detaining Au....
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....y letter, received from the individual pre-issuance of detention order, as deemed to be representation post-issuance of the detention order for the purpose of section 8 or any other enabling provision of the COFEPOSA Act for revocation or modification of the detention order, after its issuance. 81. Accordingly, we hold that non-placement or non consideration of the communication sent by the detenu dated 6.3.2012 by the "Detaining Authority" immediately upon its receipt would be of any avail to the detenu. Similarly, the grievance of delay in consideration of the said letter by the "Detaining Authority" and delay in communication of the decision taken by the Detaining Authority to the detenu, also cannot be countenanced. Further, the fact that the Detaining Authority has considered the said communication, will not create any right in favour of the detenu if, in law, the Detaining Authority was not obliged to consider the same after passing of the order of detention. The representation u/s 8 of the Act can be made only to the State Government and the power u/s 14 of revocation or modification of the detention order has to be exercised by the State Gov....
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....eerut & anr., 1990 (Supp.) SCC 54 and Niranjansingh vs. State of Madhya Pradesh, (1972) 2 SCC 542. Even in these cases, the representation in question was post issuance of preventive detention order. For the same reason, even these decisions will of no avail to the Petitioner 84. Reliance is then placed by the Learned Advocate General on the case of Rajendrakumar Natvarlal Shah vs. State of Gujarat and Ors. (1988) 3 SCC 153. The Court considered the argument of unexplained delay indicative of subjective satisfaction arrived at by the Detaining Authority was not genuine or that the grounds were stale or illusory or there was no rational connection between the grounds of impugned order of detention. In the present case, the grievance is about the unexplained delay in considering the letter dated 6th March, 2012, sent by the detenu anterior to the issuance of detention order against him and delay in communicating the decision of the "Detaining Authority" to the detenu. As is noted by us earlier, the letter sent by the detenu cannot take the form of representation sent under Article 22(5) of the Constitution of India or any enabling provision in the COF....
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....ing wrong if the Detaining Authority insisted for further generated documents. After receipt of the final proposal and only after being fully satisfied that it was imminent to issue order of preventive detention against the detenu, the Detaining Authority is expected to exercise powers conferred under the COFEPOSA Act to prevent the detenu from indulging in smuggling in future. That is the process of consideration and merely because the file was handled on different dates / occasions does not mean that the subjective satisfaction has been recorded on piecemeal basis. The subjective satisfaction is recorded only when the Detaining Authority is fully satisfied about the necessity of issuance of preventive detention order against the detenu. There is nothing to even remotely suggest that there was possibility of the grounds of detention having been formulated by the Detaining Authority in piecemeal manner. On the other hand, the Detaining Authority, on affidavit, has stated that the grounds were formulated by her contemporaneously while recording her subjective satisfaction about the necessity to issue the preventive detention order against the detenu, upon con....
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....ch case it would certainly be difficult if not impossible for the Detaining Authority to make the order the same night. We think that in the fact and circumstances of the case the Detaining Authority could not have possibly applied his mind to the voluminous documentary evidence which was placed before him and/or the reason along the order of detention has to be quashed. The detenu is directed to be set at liberty forthwith. The appeal is disposed of accordingly. Sd/-" 89. On bare reading of this decision, there is no manner of doubt that the observations are in the context of the facts of that case. In that case, large quantity of contraband was seized. On the next day, the accused was interrogated almost the whole day and came to be formally arrested in the evening. On the same night, the detention order was made against him by the Authority. In that context, it was argued that the Detaining Authority could not have possibly applied his mind in the facts and circumstances of the case, as the documents purportedly relied in making the subjective satisfaction ran into about 234 pages and the documents included the arrest memo prep....
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....terial together and at a time. In the present case, no such grievance has been made. On the other hand, the reply affidavit filed by the Detaining Authority makes it amply clear that the Detaining Authority considered all the materials placed before her, including the further generated documents together and thereafter recorded subjective satisfaction and contemporaneously formulated the grounds of detention. 92. The learned Advocate General has placed reliance on the decision of this Court in the case of Kakkovayal Kuhbi Hamja vs. State of Maharashtra and Anr. (1993) CRI. L. J. 1078. The question whether the delay in making of any order of detention by itself vitiates the subjective satisfaction was considered. The Court opined that delay in passing of an order of detention is not ipso facto fatal to the detention of a person and the real test to judge whether an order of detention is vitiated by reason of delay in passing the same is whether the grounds are stale or illusory or that there is no real nexus between the grounds and the impugned order of detention, or in other words, the live-link between the same is snapped by reason of such delay. 93. ....
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....us to the next ground urged before us. It was argued that the documents mentioned at Page Nos. 1079 to 1202 in the compilation of documents, served on the detenu, along with the grounds of detention were totally blank. Further, the page Nos. 1213 to 1216, 1220 and 1222 to 1325 were copies of blank pages of a Register. That presupposes that the Detaining Authority had not bothered to weed out irrelevant blank pages from the other material. Resultantly, the subjective satisfaction sham and not genuine. The argument deserves to be stated to be rejected. The blank pages were part of the Register, which was included in the proposal submitted to the Detaining Authority. The Detaining Authority could not have separated the blank pages of the Register. If the Detaining Authority were to separate those pages of the Register, there is no guarantee that the detenu would have approved the same and not make grievance that the removed pages from the Register were vital documents. Thus, non-supply thereof was fatal. The inclusion of blank pages, which were part of the Register, in our opinion, does not mean that the subjective satisfaction, re....
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....aining authority. The matter may also be looked at from the point of view of the second facet of Art. 22(5). An opportunity to make a representation against the order of detention necessarily implies that the detenu is informed of all that has been taken into account against him in arriving at the decision to detain him. It means that the detenu is to be informed not merely, as we said, of the inferences of fact but of all the factual material which have led to the inferences of fact. If the detenu is not to be so informed the opportunity so solemnly guaranteed by the Constitution becomes reduced to an exercise in futility. Whatever angle from which the questions is looked at, it is clear that "grounds" in Art. 22(5) do not mean mere factual inferences but mean factual inferences plus factual material which led to such factual inferences. The 'grounds' must be selfsufficient and self-explanatory. In our view copies of documents to which reference is made in the 'grounds' must be supplied to the detenu as part of the 'grounds'" 97. The observations will have to be considered in the context in which the same are mad....
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.... kept the documents as well as additional copy thereof, which is part of some other document, as annexure/Exhibit therewith. Be that as it may, as the Detaining Authority is not expected to weed out irrelevant documents but, examine all the documents placed before it as it is and record its subjective satisfaction on the basis of documents, which it finds to be relevant amongst the documents compiled and placed along with the proposal, the fact that the same document (same judgment of Supreme Court) appears at four different places does not mean that the subjective satisfaction of the Detaining Authority is affected in any manner. We are also not impressed by the criticism that the detenu was mislead because of the same judgment of the Supreme Court was placed at five different places in the compilation of documents served on him, along with the grounds of detention or that it affected his right to make effective representation in any manner. Accordingly, this argument of the Petitioner deserves to be stated to be rejected. 99. Learned Advocate General has also relied upon the exposition of the Apex Court in the case of Gurdev Singh vs. Union of India and Ors. ....
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....ha vs. State of Tamil Nadu, (2011) 5 SCC 244 and on Yumman Ongbi Lembi Leima v. State of Manipur, (2012) 2 SCC 176. Very recently, the Division bench of this Court had an occasion to consider these judgments while examining similar argument in the case of Pramod Ashok Pujari vs. State of Maharashtra & anr., Writ Petition No.2081 of 2012 decided on 7th August, 2012. The argument was that the subjective satisfaction recorded by the Detaining Authority was vitiated as it is permitted only if the ordinary law of the land cannot deal with the situation. It has been held that these decisions are not an authority on the proposition that if the detenu can be punished for criminal activity under the ordinary law, in no case, preventive detention order can be passed against such person. It is well established position that the two regiments are completely different. The ordinary law would punish the criminal and provide for punitive action against him, whereas the preventive detention of the same criminal may be necessary in a given case with a view to prevent him from indulging in manner prejudicial to the maintainance of public order in future. It ....
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....Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The Authorities are different. The nature of proceedings is different. In the prosecution, an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu. In Paragraph 34, after adverting to the earlier decision of the same Court, the Court deduced to brought principles thus: "34.The recent decisions of this Court on this subject are many. The decisions in Borjahan Gorey v. Stateof West Bengal, reported in AIR 1972 SC 2256, Ashim Kumar Ray v. State of West Bengal, reported in AIR 1972 SC 2561; Abdul Aziz v The Distt. Magistrate, Bardwan; reported in AIR 1973 SC 770 = (1973 Cri LJ 590) and Debu Mahto v. State of West Bengal, reported in AIR 1974 SC 816 = (1974 Cri. LJ 699) correctly lay down the principles to be followed as to whether a detention order is valid or not. The decision in Biram Chand v. State of Uttar Pradesh reported in AIR 1974 SC 1161 = (1974 Cri. LJ 817) which is a D....
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....Advocate General has relied on the decision in the case of D. M. Nagaraja vs. Government of Karnataka and Ors. (2011) 10 SCC 215. The argument that ordinary law of the land was sufficient and it was unnecessary to issue order of detention, was considered. The Court rejected that argument on the basis of the subjective satisfaction recorded by the Detaining Authority, which clearly showed that the detenu was not amenable to ordinary law. It indicated that after his release on bail from the prison, on various occasions he started indulging into the same activities. The Court has distinguished the dictum in Rekha's case (supra), while rejecting the argument of the detenu. Even in the present case, the materials relied upon by the Detaining Authority to form subjective satisfaction, points out that it was imperative toissue detention order to prevent the detenu from indulging in smuggling, in future. 107. The detenu, in the perception of the Detaining Authority, is, the kingpin of the organised syndicate; and indulges in smuggling of red sanders by using forged bottles, seals of various central excise offices and shipping lines used for sealing the ....
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....rial was only referred to material. Assuming that it was to be considered as relied upon, in paragraph 8 of the grounds of detention itself, the Detaining Authority was aware that the said order has been quashed by the High Court on the ground of delay in execution thereof. Thus, non-mention of that fact in paragraph 23 which articulates the basis of subjective satisfaction reached by the Detaining Authority would make no different and if it is to be considered as fatal, that material can be ignored and the order of detention must be considered as deemed to have been made separately on the basis of other activities of the detenu referred to in paragraph 23 of the grounds of detention. 109. The Counsel for the Petitioner, however, has countered this submission on the argument that the Detaining Authority has neither claimed protection of section 5A in her affidavit nor the said provision is applicable in the present case where the ground of detention is only of smuggling goods ascribable to section 3(1)(i) and no other ground. In such a case, the Court must hold that the entire order is vitiated and cannot be saved u/s 5A. 110. Considering the fact that we....
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.... of severability under section 5A has not been raised by the Sate in the counter affidavit. However, it went on to observe that even otherwise, the said provision was not applicable on the facts of that case. Accordingly, this is not an authority on the proposition that if the question of severability u/s 5A is not raised in the reply affidavit, the Detaining Authority is precluded from urging that or for that matter, the Court is not obliged to consider the same on its own if the situation so warrants. In that case, the Court found that the detention order was passed on a single ground, in the context of the arrest of the detenu on 2.6.1999 when intercepted by the officers of the Directorate of Revenue Intelligence at the airport when the detenu was about to board a flight to Singapore. In the present case, however, on a bare reading of the grounds of detention and in particular, paragraph 23, the preventive detention order is not passed on one single prejudicial activity but a combination of prejudicial activities. In this context, the Counsel for the petitioner submits that whether the detention order is passed on different criminal activities or one sing....
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.... sufficient to sustain an order of detention, one act may sustain an order of detention if the act is of such a nature as to indicate that it is an organised act or a manifestation of organised activity. The gravity and nature of the act is also relevant. The test is whether the act is such that it gives rise to an inference that the person would continue to indulge in similar prejudicial activity. That is the reason why single acts of wagon breaking, theft of signal material, theft of telegraph copper wires in huge quantity and removal of railway fish plates were held sufficient. Similarly, where the person tried to export huge amount of Indian currency to a foreign currency in a planned and pre-mediated manner, it was held that such single act warrants an inference that he will repeat his activity in future and, therefore, his detention is necessary to prevent him from indulging in such prejudicial activity. If one looks at the acts the COFEPOSA is designed to prevent, they are all either acts of smuggling or of foreign exchange manipulation. These acts are indulged in by persons, who act in concert with other persons and quite often such activity has inte....
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....l the grounds whether there are one or more, would be relatable only to various activities of smuggling and we cannot conceive of any other separate ground which could deal with matters other than smuggling because the act of smuggling covers several activities each forming a separate ground of detention and the Act deals with no other act except smuggling. Indeed, if the interpretation of the High Court in respect of Section 5(A) is accepted, then Section 5A will become otiose. While construing Section 5(A) the High Court observed thus :- But in the present case the subjective satisfaction is based on one ground, that is, for preventing the present petitioner from smuggling goods and in support of that ground various statements have been relied upon and the totality of consideration of all these statements has resulted in the subjective satisfaction of the detaining authority when it passed the impugned order of detention. Now for these totality of circumstances considered by the detaining authority, if one irrelevant or unsustainable element has entered in the process of subjective satisfaction, the process of arriving at subjective satisfaction being comprehensive, the said e....
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....aw to be settled in the peculiar circumstances of this case and the order of the High Court quashing the detention need not be disturbed. We, therefore, hold that the view taken by the High Court on interpretation of Section 5(A) is legally erroneous and is hereby overruled. With these observations the appeal is disposed of without disturbing the order of the High Court quashing the order of detention." 115. Even this decision reiterates the principle that every activity of the detenu spreading over a period or periods, each activity is a separate ground by itself and if one of the grounds is irrelevant, vague or unspecific, then that will not vitiate the order of detention. Similar issue was considered by this Court in the case of Sangita Bala Jadhav Vs. State of Maharashtra, 2011 (113) BLR 3679. In paragraph 19 onwards upto paragraph 26, the efficacy of section 5A has been considered. 116. We have, therefore, no hesitation in accepting the argument of the learned Advocate General that since paragraph 23 of the grounds of detention refer to more than one prejudicial activity of the detenu, even if the non-mention of the fact of the previous detention order having been ....