TaxTMI 
TaxTMI 
2017 (6) TMI 35
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....h the detention order dated 10th October, 2016 has been passed are: 2.1 Upon receipt of a specific intelligence, the Delhi Zonal Unit (DZU) of the Directorate of Revenue Intelligence (DRI) seized 60 gold bars weighing 9955.2 grams at CELEBI warehouse, Domestic Terminal, Air Cargo Complex, New Delhi on 1st/2nd September, 2016 from one Sartaj vide Panchnama dated 1st/2nd September, 2016. The market value of the seized gold was appraised at Rs. 3.06 crores. The consignment was booked by M/s. Aameen Traders, Guwahati to M/s. Aameen Traders, Delhi and Sartaj was the authorized representative of M/s. Aameen Traders for collection of the said consignment sent through Jet Airways vide airway bill No.48510383 and the description of the goods in the airway bill was given as 'Bullion'. In his statement under Section 108 of the Customs Act, 1962 on 2nd/3rd September, 2016 Sartaj inter-alia stated that he was working as a driver for M/s. Rara Brothers on a salary of Rs. 9000/- per month and was assigned the duty to take delivery of goods from Air Cargo, New Delhi and was paid Rs. 500 per shipment in addition to his salary. He visited Air Cargo to take delivery of gold on directions of Narend....
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....ough SMS and gave him the document to prepare GMR entry card for going to the Cargo office for receiving the parcels. The authority letter was signed by him and in his absence by Anoop on his behalf. Sartaj used to hand-over the gold to Raju Arora at his office where after Raju Arora used to sell the smuggled gold with the help of staff to customers in Delhi and transfer the sale proceeds to Guwahati or through person. Raju Arora was paid Rs. 75,000/- per month for this work and Sartaj Rs. 500/- per consignment. The process continued till February, 2015 when a case of 12 kg of gold bars was booked against him by DRI, Guwahati Regional Unit wherein he was arrested in April, 2015 and released on bail in May 2015. The work was re-continued in October/ November, 2015 however the number of shipments were decreased. Due to financial crises, after March 2016 the work started in the name of the company M/s. Aameen Traders. 2.3 In view of the recovery and seizure of 9955.2 grams gold valued at Rs. 3,06,34,141/- from the possession of Sartaj and the admission of Sartaj and Narender Kumar Jain recorded under Section 108 of the Customs Act, they were both arrested on 3rd September, 2016 and....
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....ity of bail being granted to Narender Kumar Jain, thus obviating the need for a detention order. Non-placement of the material document i.e. the order dated 7th October, 2016 has materially affected the subjective satisfaction of the Detaining Authority hence the detention order is vitiated. 4. Learned counsel further contends that the DRI officials entered the jail premises at 10.40 AM and after serving the detention order on the husband of petitioner came out at 11.10 AM. As per the detention order and grounds of detention, both were prepared on 10th October, 2016 which is not possible as by 10.40 AM the DRI officers had reached the jail for serving the detention order. Further 8th and 9th October, 2016 were Saturday and Sunday. It is thus obvious that only the detention order was prepared in the absence of grounds of detention on 10th October, 2016 and the grounds of detention were prepared later on and ante-dated and that is why they were served on the petitioner's husband on 11th October, 2016. In the absence of formulation of grounds of detention prior to passing of the detention order, subjective satisfaction of the detaining authority is vitiated. 5. It is lastly urge....
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.... before the Detaining Authority and also supplied to the petitioner's husband, the detention order is not vitiated on this count. 8. Learned Standing Counsel for Union of India further submits that in para -33 of the grounds of detention, the Detaining Authority has mentioned that the bail application dated 14th September, 2016 filed by the petitioner's husband before the learned CMM has been rejected vide order dated 7th October, 2016. This fact was based on the notes of proceedings dated 7th October, 2016 received from DRI's Special Public Prosecutor and by the time the grounds of detention were prepared and detention order was passed, the order dated 7th October, 2016 was not made available to either the sponsoring authority or the Detaining Authority. Hence the order dated 7th October, 2016 was neither relied upon nor copy thereof supplied to the petitioner's husband. 9. Rebutting the contention that the grounds of detention were prepared after the detention order was served, learned Standing Counsel for Union of India states that there is no presumption that the government officials do not work on Saturday and Sunday. He states that the grounds of detention were formulat....
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....s imposed on Shri Narendra Kumar Jain. An Appeal against this OIO has been filed in CESTAT, Kolkata His name came up when the arrested accused Sh. Dipal Kundu divulged a phone number 8011582276 at that of Ramjanam, the person who was supposed to take delivery of the impugned gold on 02.11.2014 i.e. the day of seizure. Enquiry revealed that the said number was registered in the name of an employee of the firm M/s Rara Brothers Pvt. Ltd., the Director of which was Shri Narendra Kumar Jain. The searches conducted on 04.11.2014 at the office premises of M/s Rara Brothers Pvt. Ltd. resulted in recovery of primary gold weighing 89.8 gms. of foreign origin from the possession of Narendra Jain which were seized as he could not produce any supporting documents in respect of the said gold. 2. 05/CL/IMP/GOLD/DRI/GAU/201415 dated 19.12.2014 7.33 2 CCP/NER/18/2015 dated Shillong, 21.12.2015. Penalty of Rs. 10 Lakhs imposed on Shri Narendra Kumar Jain. As per available records, neither appeal has been filed nor penalty has been paid. Shri Parikshit Paul, the carrier of gold in his statement dated 19.12.2014 and 21.05.2015 stated that he carried the seized gold for Shri Na....
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....lear that; a) You, along with Shri Raju Arora, knowingly smuggled gold into India through carriers since 2014 as per your own admission in the statement recorded on 02/09/2016 and 03/09/2016 u/s 108 of the Customs Act, 1962 and which is evident from the voluntary statements of the carriers of smuggled gold seized by DRI, Guwahati as enumerated in para 22 above. 12. As noted above para-27 (a) of the grounds of detention notes about the factum of voluntary statements of the carrier of the smuggled gold seized by DRI, Guwahati as enumerated in para-22 of the grounds of detention. Column- 5 and 6 of the Tabular chart in Para-22 are based on the orders in original bearing numbers CCP/NER/9/2016, CCP/NER/18/2015, CCP/NER/20/2016, CCP/NER/8/ 2016 dated 30th March, 2016, 21^st December, 2015, 21st December, 2015 and 22nd March, 2016 respectively. All the four orders in original are relied upon documents as per Serial No. 44-47 of the list of relied upon documents and are at pages 1209-1258 of the list of documents. The orders in original noted the voluntary statements of the carriers. Since the Detaining Authority relied upon the voluntary statements of the carriers as noted in the o....
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....e detaining authority. In the counter-affidavit filed by respondent 2, State of Kerala, it is categorically denied that the bail application and the order refusing bail were suppressed from the detaining authority and that at the time of sponsoring the petitioner's name the copies of the bail application and the order refusing bail were not made available to the department and therefore they were not placed before the authority. From these averments, one of the questions that arise for consideration is whether the failure to supply these two documents to the detenu or alternatively whether the failure to place the bail application and the order refusing bail before the detaining authority does in any way affect the detention order. The learned counsel in this context sought to place reliance on some of the judgments of this Court. In M. Ahamedkutty v. Union of India [(1990) 2 SCC 1: 1990 SCC (Cri) 258] the contention was that the bail application and the order granting bail which were relied upon by the detaining authority were not supplied to the detenu and therefore the detention was illegal. A Division Bench of this Court noticed that in the grounds it was clearly mentioned ....
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....ture it is also necessary to note that such of those documents which are not material and to which a casual or passing reference is made in the grounds, need not be supplied. In Mst L.M.S. Ummu Saleema v. B.B. Gujral [(1981) 3 SCC 317 : 1981 SCC (Cri) 720] , after referring to some of the earlier decisions of this Court, it was held thus: (SCC p. 320, para 5) "It is, therefore, clear that every failure to furnish copy of a document to which reference is made in the grounds of detention is not an infringement of Article 22(5), fatal to the order of detention. It is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effective representation, that amounts to a violation of the fundamental rights guaranteed by Article 22(5). In our view it is unnecessary to furnish copies of documents to which casual or passing reference may be made in the course of narration of facts and which are not relied upon by the detaining authority in making the order of detention." It will therefore be seen that failure to supply each and every document merely referred to and not relied upon will not amount....
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.... that earlier also when interim bail was granted on medical grounds, it did not deter the petitioner's husband from continuing his prejudicial activities. The satisfaction of the Detaining Authority is on the propensity of committing the prejudicial activity and not the imminent possibility of grant of bail. 17. Learned Standing Counsel for Union of India in this respect relying upon the decision in Sayed Abulala (Supra) contends that while arriving at the satisfaction the Detaining Authority was conscious of the fact that the petitioner's husband was in actual custody and there was reason to believe on the basis of reliable material placed before him that there was real possibility of his being released on bail and on being released, he would in all probability indulge in prejudicial activities. Thus, it was essential to detain him. The three essential ingredients having been satisfied, merely non-mentioning of the fact that there was an imminent possibility of the petitioner's husband being released on bail would not vitiate the detention order. 18. In Sayed Abulala (Supra) Supreme Court laid down the three essential conditions required for passing the detention order as un....
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....oner, then the petitioner is ordinarily granted bail. However, the respondent authority should have given details about the alleged bail order in similar cases, which has not been done in the present case. A mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored." 20. As noted in para-33 of the grounds of detention as reproduced above, the satisfaction of the authority is not based on the fact that the co-accused has been granted bail or that there is a parity in the role of the co-accused who has been granted bail and the petitioner's husband. Satisfaction is in respect of the propensity to continue to indulge in prejudicial activity and that there was a possibility of applying for bail again. No satisfaction was arrived at that there was an imminent possibility of grant of bail to the petitioner's husband either because the co-accused was granted bail or that in such like cases bail is granted or that he was earlier granted bail. 21. The issue whether in the absence of the satisfaction of the detaining authority that there was an imminent possibility of grant of bail, detention order is vitiated, which arises in the....