TaxTMI 
TaxTMI 
2012 (1) TMI 269
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....returnable forthwith and the petition is taken up for final hearing. 3. The facts and circumstances, giving rise to the filing of the present writ petition, briefly stated are as under:The officers attached to the Nhava Sheva Preventive Unit, NhavaSheva, detained the export consignment of M/s.Noble Impex under 8 shipping bills (filed under the Drawback Scheme) all dated 26.10.2010, after scrutiny of the export data available on EDI System of Jawaharlal Nehru Port Trust, NhavaSheva, Uran. In the scrutiny of the documents of the above shipping bills, it was revealed that there was gross misdeclaration with respect to quantity, quality and valuation of the declared export goods viz."Dupattas" and "Sarong", besides claiming disproportionately higher amount of drawback. The goods totally valued at Rs. 3,67,98,880/( FOB) with drawback claim of Rs. 34,20,030/were detained under the panchanama dated 29.10.2010 for further investigation. 4. During the course of investigation, the statements of the detenu and Sarvashri Ashok Pandurang Dhakane, Bala Baburao Jadhav, Sanjay Nivrutti Waghmare and Sayed J.Naimuddin were recorded under section 108 of the Customs Act, 1962. They admitted wron....
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....were vital documents, which would have influenced the mind of the Detaining Authority one way or the other and hence failure to consider those documents has rendered subjective satisfaction of the Detaining Authority null and void. (Ground No. "X"). 7. He further submitted that the Detaining Authority has considered the statements of the detenu recorded on 02.11.2010, 24.11.2010 and 06.12.2010. However, those statements were retracted vide retraction dated 13.11.2010 & 06.12.2010. The sponsoring authority has neither placed those retractions before the Detaining Authority nor the Detaining Authority was aware about these retractions. As such, the satisfaction arrived at by the Detaining Authority is severely impaired for want of considering the vital documents. (Ground No. "Y".). In support of these submissions, he relied upon the following judgments: (1) Madanlal Anand V/s.Union of India, AIR 1990 SC 176, (2) K.Satyanarayanan Subudhi V/s. Union of India, 1991 Supp.(2) SCC 153, (3) Deepak Bajaj V/s.State of Maharashtra, (2008), 16 SCC 14, (4) Prakashchandra V/s. Commissioner & Secretary, Government of Kerala, AIR 1986 SC 687, (5) L.C.George V/s.Union of India, 200....
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....enu from indulging in smuggling activities in future, shows total non application of mind and is thus null and void (Ground No. "N"). 10. He also submitted that the sponsoring authority has neither placed before the Detaining Authority nor did the Detaining Authority consider the statement of the said Naimuddin recorded on 01.12.2010, 03.12.2010 and 06.12.2010. From perusal of these statements it is apparent that he specifically admitted that the work of preparing invoices and packing list for consignment of 120 packages was prepared by Sanjay Waghmare on behalf of M/s.Noble Impex and he was not aware as to who prepared invoices and packing list for the remaining 130 consignments. In these statements, Naimuddin has indicated the name of Waghmare for transportation of goods as well as preparation of export documents. He also admitted his being I.E.C.Holder and Exporter as well as his active participation in the export business. Answers given by Naimuddin in these statements show that the detenu was not at all involved in the said prejudicial activity and hence the said statements were vital documents, which proved the innocence of the detenu. The subjective satisfaction recorded ....
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....epresentation at the earliest opportunity. On this ground alone, the order of detention is liable to be quashed and set aside (Ground No. "F"). In support of this proposition, he relied upon the following judgments: ( 1) Thahira Harris V/s. State of Karnataka, AIR 2009, SC 2184, (2) Ibrahim Ahmed Batti V/s.State of Gujrat, (1982) 3 SCC 440. 13. On the other hand, Shri. Yagnik submitted that while passing the order of Detention dated 20.07.2011, the Detaining Authority had referred to and relied upon the documents mentioned in the enclosed list and the said documents were duly served on the detenu. Perusal of Annexure to the order of Detention would indicate that the Detaining Authority relied upon (i) 8 shipping bills, (ii) statement of Sayed Naimuddin dated 18.11.2010, (iii) statement of Sayed Naimuddin dated 02.11.2010, (iv) statement of the detenu dated 06.12.2010, (v) statement of the detenu dated 24.11.2010, ( vi) statement of the detenu dated 02.11.2010, (vii) photo index of the detenu, (viii) Government Approved Valuers Report dated 30.11.2010, (ix) Textile Committee Report dated 22.12.2010, (x) Seizure memo dated 12.01.2011, ....
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....) Madan Lal Anand V/s. Union of India, AIR 1990 SC 176. (3) Raverdy Marc Germain Jules V/s. State of Maharashtra, (1982) 3 SCC 135. (4) L.M.S. Ummu Saleema V/s. B. B. Gujral, (1981) 3 SCC317. (5) Noor S. Makani V/s. Union of India, (1994) 1 SCC 381. 15. He further submitted that the Detaining Authority had relied upon the bail orders dated 04.11.2011 and they were duly served upon the detenu. The Detaining Authority did not refer to and rely upon the bail applications and the failure to supply the bail applications does not in any manner prejudice the detenu from making representation, particularly, when he was fully aware of the contents of the applications. In support of this preposition, he relied upon the following judgments: (1) Abdul Sathar Ibrahim Manik V/s. Union of India, AIR 1991 SC 2261. (2) Sunita Jain V/s. Union of India, (2006) 3 SCC 321. (3) Radhakrishnan Prabhakaran V/s. State of Tamil Nadu and others, (2000) 9 SCC 170. (4) Ashadevi V/s. K. Shivraj, (1979) 1SCC 222. (5) Union of India V/s. Manoharlal Narang, (1987) 2 SCC 241. (6) Senthamilselvi V/s. State of T. N. and another , SM 15 CR.WP.3253.11 (2006) 5 SCC 676. 16. While counteri....
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....X' is concerned, it is contended that Sayed Naimuddin retracted his statement vide letters 13.11.2010 and 06.12.2010 and these retractions were not placed before the Detaining Authority. Perusal of the record of the Remand Application No.102 of 2010 would indicate that Naimuddin had sent retraction dated 13.11.2010 to the learned JMFC through speed post and the retraction dated 06.12.2010 was received by hand by the Assistant Superintendent of JMFC on 14.12.2010. No order is passed on the retraction dated 13.11.2010. On that statement the learned JMFC passed order on 14.12.2010 to the effect that the application be kept with C.R.No.102/RA/2010. In the first place, it is not specifically asserted in Ground 'X' that these retractions were forwarded to the sponsoring authority. In fact it is not even indicated in Ground 'X' as to how these retractions were placed on record of the JMFC. In order to satisfy ourselves about the correctness of these grounds, we called for the original record of R.A.No.102 of 2010, from where it is evident that the retractions were neither served upon the revenue, nor upon its Advocate. The learned JMFC also did not pass any order on these retractions. ....
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....h Court in the case of Andrew Simon King (supra). 22. In so far as judgment in the case of Deepak Bajaj (supra) is concerned, in that case, the retractions were given by (i) Kuresh Rajkotwala to the DRI dated 04.12.2006, (ii) Bharat Chavan to the DRI dated 09.05.2008, (iii) Bipin Thakker to the DRI dated 19.01.2008 and Sharad Bhoite retraction to the DRI dated 24.04.2007, before the Additional Chief Metropolitan Magistrate, Esplanade Court, Mumbai and his affidavit as also Kuresh Rajkotwala's affidavit was filed before the Additional Chief Metropolitan Magistrate, Esplanade Court, Mumbai. On behalf of the Respondents it was submitted that the retractions were made before the DRI and the Additional chief Metropolitan Magistrate and not before the sponsoring authority who was the Additional Director, Revenue Intelligence. It was further submitted that the sponsoring authority was not aware of these retractions and hence, it could not have placed them before the Detaining Authority. The Apex Court did not find merit in the submissions as most of the retractions were made to DRI, who belongs to the same Department as the sponsoring authority. It was duty of the DRI to have ....
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....dhi, the order dated 20.05.1990 passed by the learned Additional Chief Judicial Magistrate (Special) Cuttack which contained retraction was not made available before the Detaining Authority and the Detaining Authority could not consider the same while forming his subjective satisfaction in making the order of detention in question. In that case the detenu as soon as he was produced before the Magistrate retracted from the confessional statement. Thus the officers of the Revenue who produced the detenu before the learned Magistrate were aware of the retraction. It is in that context the Apex Court held that the only ground on which the order of detention could have been sustained was vitiated for non consideration of retraction. 25. In the case of A.Sowkath Ali (Supra), it was held that when the sponsoring authority placed before the Detaining Authority the codetenu's confessional statement which were relied on by the Detaining Authority in connection with the detention of the petitioner detenu, nonplacing of the codetenu's statement before the Detaining Authority would affect his subjective satisfaction. In view of the facts and circumstances of the present case, we are of the o....
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....General, Directorate of Revenue Intelligence, Chennai1 on whose recommendation, the Detaining Authority passed order of detention. This is because the date on which the retraction was made and communicated by the appellant, no detention order was passed, and therefore, there was no question of knowing that the communication has to be addressed to the sponsoring authority. The detenu had handed over the letter of his retraction to his Advocate, who got it delivered in the office of the Assistant Commissioner of Customs (Adjudication AIR), Customs House, Chennai1, though it was addressed to the Superintendent of Customs (AIR), Customs House, Chennai1 and both the offices are located in the same building viz. Customs House, Chennai. Having regard to the facts and circumstances of the case, the Apex Court came to the conclusion that it cannot be said that the letter was not communicated to the appropriate authority. As the Assistant Commissioner of Customs is responsible officer and he should have known to whom such letters should be sent. In paragraph 11 of that report, it was made clear that the Court is not laying down a broad preposition to the effect that the letter addressed t....
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....nt Collector of Customs. The Assistant Collector of Customs had informed the Detaining Authority and the Collector of Customs that he had made thorough search for the letter said to have been written on 14.08.1980 and that no such letter has been received in his office. After observing this, the Apex Court was satisfied that the alleged letter of retraction was only a myth. In our opinion, this judgment applies on all fours to the present case. We have already considered the averments made in Grounds 'X' and 'Y' of the petition and one cannot help but observe that the petitioner has carefully not given better and further particulars about serving of retraction either on the Revenue or its Advocate. 31. Mr.Yagnik relied upon the judgment of the Apex Court in the case of of Noor Suleman Makani (supra). In that case, the order of detention was passed on 18.09.1992 and the confessional statements were retracted subsequent to the passing of detention order. The said judgment therefore is not applicable to the present case. 32. Mr.Mhaispurkar submitted that neither the sponsoring authority placed the bail applications filed by the detenu as well as the said Sayed before the Detaini....
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....ing Authority, he would not have changed the subjective satisfaction as the same has never been accepted as correct proposition of law. As noted earlier in the present case, the Detaining Authority did not refer to and rely upon the application for bail made by Naimuddin and the detenu and the copy of the bail order passed in their favour was supplied to the detenu. In our considered opinion, the failure to supply bail application did not cause prejudice to the detenu from making representation, particularly when, he was fully aware of the contents of the application made by himself, as observed by the Apex Court in the case of Abdul Sattar Ibrahim Manik (supra). The judgment in the case of Kamal Kishore Saini, does not advance the petitioners' case. 34. Mr.Mhaispurkar also relied upon the judgment of the Division Bench of this Court in the case of Arvind Ganeshmal (supra). In that case, the Division Bench considered the judgment of the Apex Court in the case Abdul Sattar Ibrahim Manik (supra) and in particular paragraph 12 (6) thereof. In the said judgment, in Paragraph 13, after bearing in mind principles laid down earlier, the Apex Court observed that the failure to supply....
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....y the Detaining Authority in making the Detention order would not render the Detention illegally. In the case of Smt. Icchadevi Choraria v/s. Union of India, (1980) 4 SCC 531, the Apex Court, clearly, enunciated the principle to the effect that the copies of all documents, statements and material which influenced the mind of the Detaining Authority in arriving it at the subjective satisfaction about the necessity to detain the detenu must be communicated to the detenu within the time prescribed under Section 3 (3) of the COFEPOSA Act. In the instant case, as noted earlier, the Detaining Authority while passing the Detention order has not referred to and relied upon these statements as would be evident from Annexure to the order of Detention. Mr. Mhaispurkar submitted that the documents and materials relied upon in the order of Detention form an integral part of the grounds and must be supplied to the detenu pari passu the grounds of Detention. In support of this preposition, the relied upon the judgment of the Apex Court in the case of Kamla v/s. State of Maharashtra AIR 1981 SC 814. In that case, the Apex Court also relied upon the ratio in Icchadevi Choraria (Supra). In our opini....