TaxTMI 
TaxTMI 
2017 (7) TMI 73
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed 10.10.2016 has been passed are as under: 2.1. Based upon specific intelligence, the Delhi Zonal Unit ("DZU") of the Directorate of Revenue Intelligence ("DRI") seized 60 gold bars weighing 9,955.2 grams at CELEBI Warehouse, Domestic Terminal, Air Cargo Complex, New Delhi on 01-02.09.2016. The contraband was appraised at the market value of Rs. 3.06 crores. The gold was recovered from a parcel/cargo consignment collected by one, Sartaj, from the delivery point at the Warehouse. It 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 consignment. The consignment was described as "bullion". 2.2. The statement of Sartaj was recorded under Section 108 of the Customs Act, 1962 on 02-03.09.2016, wherein he stated that he was working as a driver for M/s Rara Brothers for a salary of Rs. 9,000/- per month and that in such capacity, he was assigned the duty to take delivery of goods from the Air cargo, New Delhi for a commission of Rs. 500/- per shipment over and above his salary. He used to undertake the task under the instructions of Sh.Narender Kumar Jain (owner of M/s Rara....
X X X X Extracts X X X X
X X X X Extracts X X X X
....wahati by transfer or through person. The detenue was paid Rs. 75,000/- per month for the work and Sartaj was paid Rs. 500/- per consignment by the detenue. The process was discontinued in February, 2015, when Sh.Narender Kumar Jain was implicated in a case pertaining to 12 gold bars and was later released on bail. The work resumed again in October-November, 2015, but the number of shipments was less than before. The work continued in the name of M/s Rara Brothers Pvt. Ltd. till March, 2016 and stopped in the name of the company due to financial crunch. Thereafter, the detenue opened a partnership firm, namely M/s Aameen Traders and the detenue along with Sh.Narender Kumar Jain have 50% partnership in M/s Aameen Traders. The same modus operandi was resorted to, i.e. smuggled gold from Burma was sent to Delhi, collected by Sartaj and delivered to the detenue. The panchnama drawn on 01-02.09.0216 was shown to him and he confirmed that the parcel was brought by him and the detenue and the gold was smuggled into India from Burma. He knew the detenue for the last 28-30 years and in the year 2014, the detenue had proposed to take care and manage the business/staff; the detenue and Sh.Nar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....th. 5. Prior to dealing with the contentions urged at the bar, we may also mention that, after the present judgment was reserved, the detention order of a co-detenue, namely Mr.Narender Kumar Jain, has been quashed by a coordinate bench of this Court in Sandhya Jain v. Union of India & Anr., W.P. (Crl) 245/2017 dated 31.05.2017. The learned bench found that no satisfaction was arrived at in respect to there being an imminent possibility of grant of bail to the detenue and securing his release vitiating the subjective satisfaction of the detaining authority and the detention order. Since neither a similar ground has been urged by the petitioner herein nor was the detenue in custody at the time of passing of the detention order, the judgment does not have any bearing on the present proceedings. 6. As the contentions urged by the petitioner are multiple and diverse, we deem it appropriate to deal with them under separate heads. FAILURE TO PROVIDE GROUNDS AND DOCUMENTS IN VERNACULAR 7. The first contention raised by Mr.Nasir is that the documents and grounds of detention were not supplied to the detenue within stipulated time prescribed by Section 3(3) of COFEPOSA Act and i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mmunicated is provided in Section 3(3) of the COFEPOSA Act. The sub-section provides that the grounds of the detention order are to be given as soon as possible and ordinarily not later than five days. Only in exceptional circumstances and for reasons to be recorded in writing, the detention order may be served within 15 days from the date of detention. As to what amounts to exceptional circumstances is always a question of fact to be gone into by the courts [State of Rajasthan v. Talib Khan, (1996) 11 SCC 393 (paragraphs 6 and 7)]. 10. In the present case, the detenue was detained on 18.11.2016 and accordingly, the grounds were to be served not later than 23.11.2016. It was only after his detention that the respondents learnt that the detenue was not well versed in English and hence, an extension was sought for 10 more days. This was granted by the letter dated 21.11.2016 and the time limit was extended upto 03.12.2016. As the grounds and the documents were served on 01.12.2016 along with their Hindi translations and thus, it cannot be said that there was any violation of Section 3(3) COFEPOSA Act or the constitutional mandate. 11. Even the decision of the Apex Court in Ibra....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssed the detention order without application of mind in mechanical manner and on the basis of presumptions and assumptions. That even there is no evidence regarding transportation of consignment/receipt of consignment from the Air Cargo or abetment of smuggling. Hence, learned counsel concludes that the grounds of detention are self-contradictory and vague. 14. Learned counsel for the petitioner submits that going through the grounds as set out in paragraph 26 (a), (b), (c) and (d) reveals that the detenue has no concern with the activities. It is submitted that the role which is ascribed to the detenue is only to the extent of sale of the gold at Delhi to the customers after testing and converting in one kg bar and therefore, the detention order is not based on any material warranting interference by this Court. 15. Learned ASG for the respondents submitted that the meeting of the screening committee was held on 06.10.2016 and its recommendation was communicated to the Sponsoring Authority on 07.10.2016. The proposal alongwith the documents was submitted by the sponsoring authority to the detaining authority on 07.10.2016 itself. Given the fact that the smuggling activities ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....alysed the submissions of the counsel for the parties. The submissions of Mr.Nasir in this regard are twofold: first, the detaining authority has passed the detention order in a mechanical manner which is evident from the fact that the same was passed within less than one day of the proposal and the documents being placed before it; and second, that there is no link of the detenue with the alleged smuggling activities. In respect of the former, we are of the view that the same is without any force in view of the stand of the respondents that owing to the sheer scale of smuggling and its continuation since 2014, the case was processed as top priority and the detaining authority worked overtime on the weekend. In this regard, we are fortified by the judgment of the coordinate bench in Sandhya Jain (Supra) wherein a similar argument pertaining to ante dating of the detention order was urged and rejected by the bench. The bench had gone on to observe that "there is no presumption that official duty is not performed on Saturdays and Sunday" (paragraph 14). 18. We are also unable to accept the other submission of the learned counsel for the petitioner. The contention that there was no....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... him. The smuggled gold was thus brought in from Guwahati and converted into 1 kg bars was sold by you, to the customers in Delhi for which he was being paid a sum of Rs. 75,000/- per month.. The sale proceeds of the sold gold were transferred to Guwahati by transfer or through person. 25. It is also seen from the details of the Airway Bills and Delivery Orders/ receipts furnished by M/s Jet Airways, Air Cargo Complex, New Delhi and CELEBI Warehouse, New Delhi respectively that the smuggled was being transported from Guwahati to Delhi in the name of M/s Rara Brothers Pvt. Ltd. and M/s Aameen Traders by Shri Narendra Kumar Jain and Shri Raju Arora, i.e. you, since January, 2014 onwards and has been continuing till June, 2016 which fact has been corroborated by the persons involved in their voluntary statements recorded under Section 108 of the Customs Act as narrated above. The total gross weight of the bullion consignments comes to 7,263.4 kg and thus it is concluded that the actual weight of the smuggled gold in these consignments should be around 7,000 kg. (Approx.) having estimated market value of around 2,000/- crores. 26. From the above it is clear that: a) You, along with ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....role in the whole smuggling operations. No doubt the actual smuggling from Myanmar (Burma) was undertaken by Sh.Narendra Kumar Jain and not the detenue and so was the transportation; however, the detenue was a vital cog in the smuggling operation handling the business of M/s Rara Brothers in Delhi including ensuring the delivery of goods, their conversion into marketable form and their ultimate sale as well as ensuring the distribution of the bounty. There was material before the detaining authority to come to the conclusion and hence, it cannot be said that the subjective satisfaction of the detaining authority was wrongly arrived at or the grounds of detention are self-contradictory or vague. The role of the detenue has been specifically described. 21. Even otherwise it is settled law that this Court in proceedings under Article 226 of the Constitution is limited to scrutinizing whether the detention order has been passed on the material placed before it, it cannot go further and examine the sufficiency of the material. This Court does not sit in appeal over the decision of the detaining authority. This Court cannot substitute its own opinion over that of the detaining authori....
X X X X Extracts X X X X
X X X X Extracts X X X X
....it is a well settled proposition of law that the confessional statement can be relied upon by the detaining authority provided the retraction of the same is also placed before it. Both the confessional statement and retracted statement constitute a composite relevant fact and it is incumbent upon the sponsoring authority to place both before the detaining authority. Placement of one to the exclusion of the other may be found to constitute non-placement of relevant material vitiating the subjective satisfaction of the detaining authority. [See K. Satyanarayan Subudhi v. Union of India, 1991 Supp (2) SCC 153 (paragraph 3); A. Sowkath Ali v. Union of India, (2000) 7 SCC 148 (paragraph 19 and 20); P. Saravanan v. State of T.N., (2001) 10 SCC 212 (paragraph 7); and Baby Devassy Chully v. Union of India, (2013) 4 SCC 531 (paragraph 19)] 26. In the present case, both the statement and its retraction were placed before the detaining authority as is evidenced from paragraph 7 of the Grounds of Detention. Further we find no merit in the submission that the detention order is per se illegal as being based on the retracted statement of Sh.Narendra Kumar Jain. Accordingly, no infirmity ca....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted [sic: intimated] about the detention of Raju Arora. Today at about 5:30 pm Smt Sabnam w/o Raju Arora informed Telephonic about his detention." 34. Accordingly, in view of the stand taken by the respondents, the contention of the petitioner must be rejected as being factually incorrect. RESORT TO PREVENTIVE DETENTION WHEN ORDINARY LAW IS SUFFICIENT TO DEAL WITH THE SITUATION 35. During the course of arguments, it was also faintly urged by Mr.Nasir that since the ordinary law of the land was sufficient to curtail the alleged activities of the detenue and the resort to preventive detention is bad in law. Criminal prosecution under Customs Act was sufficient in the present case and not preventive detention and hence, the detention order is bad in the eyes of law. Reliance was placed on Rekha v. State of Tamil Nadu, (2011) 5 SCC 244. 36. Prior to dealing with the contention of the petitioner, we may note that this very bench in Atikur Rahaman v. Union of India & Anr., 2017 SCC OnLine 7563: MANU/DE/0741/2017 had extensively dealt with the law in this regard including Rekha (Supra), the relevant paragraphs read as under: "82. Law enabling the State to deprive a person's....
X X X X Extracts X X X X
X X X X Extracts X X X X
....85. A Full Bench of the Supreme Court in Rekha v. State of Tamil Nadu, (2011) 5 SCC 244, was dealing with a case wherein a detention order was passed against a detenue, who was already in custody, under the "alleged imminent possibility of the accused coming out on bail." Since the only allegation against the detenue was that he was selling expired drugs after changing their labels, the Apex Court came to the conclusion that the ordinary law was sufficient to deal with the situation. Consequently, the detention order was quashed. Justice Markandey Katju, giving the opinion for the bench, observed as under: "13. In our opinion, Article 22(3)(b) of the Constitution of India which permits preventive detention is only an exception to Article 21 of the Constitution. An exception is an exception, and cannot ordinarily nullify the full force of the main rule, which is the right to liberty in Article 21 of the Constitution. Fundamental rights are meant for protecting the civil liberties of the people, and not to put them in jail for a long period without recourse to a lawyer and without a trial. As observed in R. v. Secy. of State for the Home Deptt., ex p Stafford [(1998) 1 WLR 503 (CA....
X X X X Extracts X X X X
X X X X Extracts X X X X
....relevant provisions in the Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal. ... 33. No doubt it has been held in the Constitution Bench decision in Haradhan Saha case [(1975) 3 SCC 198: 1974 SCC (Cri) 816] that even if a person is liable to be tried in a criminal court for commission of a criminal offence, or is actually being so tried, that does not debar the authorities from passing a detention order under a preventive detention law. This observation, to be understood correctly, must, however, be construed in the background of the constitutional scheme in Articles 21 and 22 of the Constitution (which we have already explained). Article 22(3)(b) is only an exception to Article 21 and it is not itself a fundamental right. It is Article 21 which is central to the whole chapter on fundamental rights in our Constitution. The right to liberty means that before sending a person to prison a trial must ordinarily be held giving him an opportunity of placing his defence through his lawyer. It follows that if a person is liable to be tried, or is actually being ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... paragraphs 18 to 20 aforegoing. The detenue was not a mere carrier and was in-charge of the Delhi operations of the racket as the kingpin Sh.Narendra Kumar Jain was based in Guwahati. It is clear that the activities of the detenue were of a serious nature and perpetrated with a great deal of expertise and coordination. The activities were of a massive scale and had been continuing for about two years. This had led to the detaining authority satisfying itself about the propensity and potentiality of the detenue to further indulge in such activities. Hence, it is clear that the ordinary law of the land was insufficient to curtail the activities of the detenue and the resort to the law of preventive detention was justified. FAILURE OF THE RESPONDENTS TO DECIDE THE REPRESENTATION DATED 09.12.2016 38. The final and the primary bone of contention between the parties pertains to the effect of the failure on the part of the respondent to decide the representation dated 09.12.2016. 39. Learned counsel for the petitioner submitted that there is no reply from the detaining authority of the representation dated 09.12.2016 till date, which is a clear violation of Article 22(5) read wi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... detenue was forwarded to Advisory Board on 04.01.2017. Thereafter, another representation dated 19.12.2016 was received from the detenue and was also duly forwarded to the Advisory Board on 04.01.2017. The Advisory Board heard the detenue in its meeting on 10.01.2017 and after taking into consideration all the material facts pleadings made by the detenue, opined in its report dated 27.01.2017 that there exists sufficient cause for detaining the detenue. After the receipt of the opinion of the Advisory Board, the representation dated 09.12.2016 "was not processed inadvertently due to oversight and no separate reply was issued to the detenue"; while the representation dated 19.12.2016 was processed and being found devoid of merit was rejected by the respective competent authorities and communicated to the detenue by separate memorandums dated 30.01.2017 and 06.02.2017. 43. Later on, the respondents again filed another second additional counter affidavit dated 15.05.2017. This once again stirred the cauldron and introduced a new contention, i.e. the letter dated 09.12.2016 being merely a request letter and not a representation and thus, not required to be decided. This stand belie....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... consider a representation of a person detained renders the further detention of the detenue illegal [See Kamleshkumar Ishwardas Patel v. Union of India, (1995) 4 SCC 51 (paragraph 46) and Union of India v. Harish Kumar, (2008) 1 SCC 195 (paragraphs 9 - 15)]. Even slightest delay in consideration of the representation has been held to vitiate the detention of the detenue [See Raj Kumar v. UOI & Ors., 2013 (1) JCC 691: MANU/DE/6394/2012 (paragraphs 16 - 18) and Smitha Dey Bhattacharya v. Union of India and Ors., 219 (2015) DLT (paragraph 39 - 41)]. 48. At the same time, the right to make a representation cannot be abused and successive representations on the same grounds and same material need not be decided by the authorities. We may notice two judgments in this regard. The first being Abdul Razak Dawood Dhanani v. Union of India, (2003) 9 SCC 652, wherein the Supreme Court was seized of a matter pertaining to the failure of the Central Government to decide the second representation of the detenue. The detenue had made a representation and before it could be decided, the matter was referred to the Advisory Board. The Advisory Board considered the case of the detenue therein and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... two representations we do not find any new ground or fresh material in the second representation made by the detenu. The same grounds and the same materials as stated in the first representation have been stated in the second representation, except for the difference in language and the manner of presentation. Having not found any new ground or fresh material or any subsequent event justifying a consideration of the second representation of the detenu, we are not persuaded to hold that in these circumstances the Central Government was bound to consider the second representation and pass a separate order disposing of the same. In fact all the grounds stated in the second representation were also stated in the first representation which was rejected by the Central Government after obtaining the opinion of the Advisory Board and after due consideration. There was, therefore, no obligation on the part of the Central Government to pass a similar order again on the basis of the second representation which did not contain any new or fresh grounds justifying a fresh consideration." (Emphasis Supplied) 49. A coordinate bench of this Court, of which one of us (G.S.Sistani, J.) was a memb....
X X X X Extracts X X X X
X X X X Extracts X X X X
....processed. 51. Ordinarily, it is the successive representation which need not be decided, if premised on the same grounds and same material, and not the anterior representation which can be disregarded. However, in the present case, an additional fact has crept in. Before either of the representations were received by the respondents, the matter also stood referred to the Advisory Board. As per Golam Biswas (Supra) (paragraph 16) and K.M. Abdulla Kunhi v. Union of India, (1991) 1 SCC 476 (paragraph 16), it was incumbent upon the respondents to forward the representations to the Board. This was done on 04.01.2017. The detaining authority could only consider the representations after the advice of the Board. This made the date effective receipt for both the representations 27.01.2017, i.e. the date report of the Board. Then the second representation was processed and rejected to the exclusion of the first. We may note that an analogous situation had arose in Abdul Razak Dawood Dhanani (Supra), wherein both the first and second representation were sent to the Advisory Board and on the receipt of its report, only the first was processed. In this background, the Apex Court found that....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ds of detention and documents relied upon, supplied to the detenu. It is reveals that on going through the grounds and documents supplied to the detenu, most of the documents were in English language and those supplied in Hindi were very complicated language used in translation. Most complicated words/technical words of English written in Hindi. So language use in translation of documents written in English did not permit him to understand the meaning. Till date the detenu is not in a position to understand the real cause and grounds of the detention. Most of the documents relied upon are not legible and readable and most of the material and documents are in English language, which is not the language of the detenu." "That failure on behalf of detaining authority, in not supplying the documents Representation dated 09.12.2016 (Sum and substance of submissions) Representation dated 19.12.2016 (Relevant portion quoted) This amount to deprivation of the right of the detenue under Article 22(5). and grounds and information in the language of the detenu, means violation of safeguard guaranted under article 22 (5) of the constitution. As such the de....
X X X X Extracts X X X X
X X X X Extracts X X X X
....en papers voluntarily but under duress, torture by harassment and by force." "It is also submitted that as per the letter sent to detenu dated 21.11.2016. It is mentioned about the statement extorted from the detenu, on 17.11.2016 and 18.11.2016 Representation dated 09.12.2016 (Sum and substance of submissions) Representation dated 19.12.2016 (Relevant portion quoted) although no statement was made by the detenu but obtained signature on the typed Hindi paper by inducement, force, duress, and other unconstitutional manners. It is worth mentioning overhere that no such statement supply to the detenu. After consideration the alleged statement under section 108 Customs Act of the detenu, the time as per section 3(3) COFEPOSA Act extended that is part and parcel of documents, which is considered by the detaining authority." Paragraph 6 No exceptional cause for extending time further than 5 days for serving the ground of detention. "It is expected that all the records of detenu is being kept by the detaining authority. No request was made by the detenu to supply the documents and grounds in Hindi. Then official of the DRI are no....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s one more observation which we would like to make and which we considered as of great importance in matter of preventive detention. In order that the procedure attendant upon detention should confirmed to the mandate of Article 21 in the matter of fairness, justness and reasonableness. We considered it imperative that immediately after a person is taken in custody in pursuance of an order of detention. The members of his household, preferably the parents, the child or the spouse must be informed in writing of the passing of the order of detention and of the fact that the detenu has been taken in custody". It is submitted that no such information was given. It is a clear case of violation of article 21 of Constitution of India." Paragraph 7 Seeks copy of proposal of sponsoring authority and information/documents sent to the screening committee and its opinion. "The detenu, also instructed to his advocate to ask legible copies of grounds and information regarding making proposal by sponsoring authority for detention, to detaining authority and also the copy of the purposal made to detaining authority and when the proposal made by the sponsoring authority to the s....