AI Drafter - (New and Powerful) 
Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter. 
TaxTMI 
TaxTMI 
2014 (3) TMI 1098
X X X X Extracts X X X X
X X X X Extracts X X X X
....4, this Court rejected the prayer for interfering with the orders of detention even before its execution as not maintainable and misconceived. Petitioners were compelled to surrender to the detention order to show their bona-fides. Only after surrender to the detention orders, was the main petition taken up for its consideration on merits. 2. The facts leading to the filing of the instant petition are that upon receipt of an information by the Directorate of Enforcement, New Delhi, an organized Syndicate headed by Naresh Kumar Jain was continuously and actively involved in illegal foreign trade transactions in lieu of payment and receipt of Indian Currency unauthorizedly through wide Hawala network, searches were conducted under the provisions of Section 37 of FEMA 1999 read with Section 132 of the Income Tax Act,1961 at various places and as a result thereof, Indian currency, foreign currency and certain documents and articles were recovered and seized in the months of September and November, 2009. It was alleged that said Naresh Kumar Jain was a person who stayed in Dubai from 1995 till May, 2009. He came to India from Dubai without any valid documents. In Dubai, he was engage....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2011 to 2014 to show that the petitioners are residents of village Pabana Hasanpur in District Karnal. It is also asserted in the said application filed by the petitioners that they have their bank account Nos. 96552200009627 and 96552200009631 respectively at Syndicate bank in village Pabana Hasanpur in District Karnal. The said application was allowed by this Court on 25.2.2014. Further, in this writ petition, reliance has been placed by the petitioners on the earlier order of detention passed against the petitioner's brother Naresh Kumar Jain (co-detenu in the instant case as well) on 6.9.1995 by the then Detaining Authority-respondent No.1 under Section 3(1) of the COFEPOSA Act. In the order dated 20.2.2003 passed by this Court disposing of a writ petition filed by the petitioner's father Abhey Ram Jain challenging the said order of detention dated 6.9.1995, this Court had observed that in view of lapse of time, the Government might pass a fresh order, if required. Thereafter, vide order dated 13.7.2007 (Annexure P-2) passed by the Hon'ble Supreme Court, the Special Leave Petition filed by the Detaining Authority assailing the said order of this Court was dismissed.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion on the same facts and grounds and then seeking detention at Karnal raise questions upon bona-fide of the petitioners who have not come before this Court with clean hands. It is submitted that the petitioners are abusing the process of the Court and their intention is just to avoid submitting to the detention order by filing one petition after the other before he Hon'ble Supreme Court as well as before this Court. It is also submitted that entertaining the instant writ petition would defeat the very intent behind passing of the impugned detention orders. It is also further submitted that having failed to secure any relief either before the Hon'ble Supreme Court or before this Court earlier, the filing of the present writ petition is misconceived and deserves dismissal. 6. I found strong merit in the objections regarding issue of maintainability of challenge at pre-execution stage in the light of the Full Bench judgment of this Court cited by the respondents to buttress their objection to the maintainability of the challenge at pre-execution stage after dismissal of the petitions under Articles 226 and 32 of the Constitution of India earlier. Since the Hon'ble Sup....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e community. It is neither fair nor just that a detenu should have to suffer detentin in 'such place' as the Government may specify ....... . Besides keeping a person in detention in a place other than the one where he habitually resides makes it impossible for his friends and relatives to meet him or for the detenu to claim the advantage of facilities like having his own food ..... ... .... Whatever smacks of punishment must be scrupulously avoided in matters of preventive detention." 10. There is no dispute to the fact that the close relative of the petitioners are residing in Karnal. There is no dispute to the fact that the petitioners have residence in Delhi as well as in Haryana as disclosed in the petition itself. No prejudice would be caused to preventive purpose of detention orders, even if the place of detention is Karnal. On 28.2.2014, the following order was passed :- " (a) Issue notice returnable by 06.03.2014. Dasti service is permitted. (b) The petitioners are directed to surrender before the Senior Superintendent of Police/Superintendent of Police, Karnal, on 04.03.2014 at 11 AM. (c) The Senior Superintendent of Police/Superinten....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d against both the petitioners. 14. The only ground of challenge passed on behalf of the petitioners is non-placement before the Detaining Authority of vital documents having a bearing on the subjective satisfaction, non-consideration and non-advertence thereto in the grounds of detention by the Detaining Authority. Amongst various such documents which are claimed by the petitioners as vital and not placed, I find that the following documents were not at all adverted to in the grounds of detention: (i) Various complaints made in October, 2009 by the petitioners against the Sponsoring Authority, namely, Enforcement Directorate including those made before - a) Station House Officer, Police Station Ashok Vihar, New Delhi, dated 5.10.2009 alleging highhanded manhandling of the petitioner Satpal Jain by the officer of the Sponsoring Authority; (b) Letter to the Human Rights Commission dated 9.10.2009 levelling further allegations against the officer of the Sponsoring Authority including threat of detaining him under the COFEPOSA; ( c) Ministry of Finance through its Secretary etc. dated 21.10.2009 which levels further allegations against the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ments would have contributed to the final subjective satisfaction one way or the other. What would have been the position if the Detaining Authority was apprised of each of these documents is not for me to make a retrospective judgment at this distance of time. As the above vital documents which have a direct bearing on the subjective satisfaction of the Detaining Authority in issuing the detention order do not find any mention in the grounds of detention or in the list of documents which admittedly mentions the entire documents referred and relied upon by the Detaining Authority, I found no hesitation to hold prima-facie that the said vital documents were not placed before the Detaining Authority for consideration before arriving at subjective satisfaction. In view of the prima-facie ground urged by he learned senior counsel appearing for the petitioners, pending final hearing of the matter, the prayer for grant of bail till the next date of hearing was allowed vide order dated 6.3.2014. Bail was granted subject to the conditions that both the petitioners shall execute separate personal bonds for a sum of Rs. 50,000/- each before the Jail Superintendent who shall bind the respecti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....i) S.I.Roop Lal v. Lt. Govrnor, AIR 2000(1) SC 594. In respect of the interim order dated 28.2.2014 of this Court, it was urged that although there was no impediment in serving the detention orders in Karnal in view of Section 4 of the COFEPOSA Act, 1974, however, power to regulate place and condition of detention vested with the Government under Section 5 (a) of the said Act. The observation in A.K.Roy's case(supra) would not entitle the detenus to choose their place of detention. Petitioners were ordinarily residing and working for gain in Delhi. It was submitted that if the petition is dismissed, petitioners may be directed to be detained at Delhi. In respect of interim order dated 6.3.2014, it was urged that the respondents failed to place before the Court the provisions of Section 12(6) of the COFEPOSA Act, 1974. The intent behind the observations concerning the grant of bail in Alka Subhash Gadia's case(supra) was not satisfied in the instant case. In Tahira Begum's case(supra), bail was granted in preventive detention matter as reply was not filed in one week's time so granted by the Hon'ble Supreme Court. However, in the present case, petitioners were no....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n law nor on facts. 22. I have heard all the parties at length. I have also carefully perused the records placed before me. I find that the following issues are to be determined for deciding the petition: (i) Whether there exists any bar in considering the grounds of challenge urged by the petitioners in the light of the dismissal of earlier petition by this Court. (ii) Whether no part of cause of action has arisen in the jurisdiction of this Court to consider the challenge to the impugned detention orders. (iii) Whether there is merit in respondent's contention that the petition was not required to be considered even after the detention of the petitioners, in view of the available alternative remedy before the Advisory Board. (iv) Whether the respondents are right in claiming that the documents not placed were such irrelevant documents which had no bearing on the issue of preventive detention and non-placement and non-consideration thereof was inconsequential. (v) Whether the impugned detention orders are sustainble in the eyes of law. 23. The findings in the earlier rejection by this Court were in the context of examining the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ecause the respondents have doubts on the bona-fides of the petitioners in invoking jurisdiction of this Cout, it cannot be said that no part of cause of action has arisen in the jurisdiction of this Court, to consider the challenge to the detention orders, muchless after its execution in the jurisdiction of this Court by compelling the petitioners to surrender to the respective detention orders. Respondents could not show any precedent where jurisdiction was held as lacking despite such part of cause of action arising in the jurisdiction of the High Court. Moreover, there is a long line of decisions rendered by various High Courts substantiating that these facts would constitute part of cause of action that has arisen in the territorial jurisdiction of this Court. In Umed Mal v. Union of India 1998 Crl. L.J. 3465 (Rajasthan High Court-Full Bench), it was held: " 21. Applying the above tests, we cannot escape the conclusion that the factual detention of a person at a particular place would supply cause of action for challenging the detention order. .... ..... If detention has to retain its preventive character and is not to be allowed to become punitive in practice, if ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... infringed, for necessary reliefs." In B. Shareefa Ummer vs. Joint Secretary to the Govt. of India, 1998 CRI.L.J. 185, it has been held by the Division Bench of Kerala High Court that: "11. ....So far as the present case is concerned, the order of detention was served on the detenu in Kerala. He was arrested in Kerala and he was detained in the prison at Trivandrum in the State of Kerala. According to us, these are essential facts which form part of the cause of action. Hence, we hold that this Court has got jurisdiction and hence the Original Petition is maintainable in this Court." In Kamala Sarkar vs. State of Bihar, 2002 CRI.L.J. 1414, it has been held by the Division Bench of Calcutta High Court that: "22. In P.Subramani v. State of Karnataka reported in 1990 Cri.L.J. 1106 a Division Bench of the Madras High Court distinguished the Swaika Properties case (AIR 1985 SC 1289) (supra) in a case under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act stating- 'the ratio cannot be imported to a case of detention which is quite different. In this case, not only the order was served upon the detenu in Salem in Tamil Nadu. His....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sued in Delhi was maintainable. It has been observed therein in paragraph 15 as under:- "15. ... ... The authorities had thus, gone after the petitioner both at his Delhi address as well as at his Ambala address. It cannot, thus, be gainfully said that no cause of action arose to the petitioner within the jurisdiction of this Court ... ...". In S.P.Goyal vs. Union of India, 2003(1) RCR (Criminal) 83, after considering, inter alia, the said judgement in D.N.Anand's case (supra), this Court held as follows:- "13. ...... The petitioner is also apprehending his arrest at the place of his residence i.e. Ludhiana, within the territorial jurisdiction of this court. Under these circumstances, in my opinion, it can certainly be said that a part of the cause of action has arisen within the territorial jurisdiction of this court. That being so, this court would certainly have the jurisdiction to entertain and decide the present writ petition." In the case of Tejinder Singh Makkar, v. State off Punjab and others, Crl. Writ Petition No. 912 of 2007, this Court relying upon Section 4 of the COFEPOSA Act, 1974, judgment in D.N. Anand's case(supra) , Trilok Nath Mit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion on the very same set of facts at pre-execution stage which was barred under Rule 7 of the Allahabad High Court Rules, 1952. Thus, the said judgment is not applicable to the facts of the instant case. Therefore, the objection regarding lack of any part of cause of action within the territorial jurisdiction of this Court stands rejected. 26. Vide order dated 27.5.2008, the Delhi High Court (DB) in Charan Singh v. Union of India, LPA No. 9 of 1993, passed an order directing the appellant therein to surrender to the detention order which was unexecuted since 1991 and refrained the Detaining Authority to take any coercive steps against the appellant for a period of 10 days thereafter so as to enable the appellant to take recourse to appropriate remedies. Special Leave Petition (Criminal) No. 5157/5158 of 2008 filed thereagainst by the Union of India was heard and dismissed by the Hon'ble Supreme Court vide order dated 28.7.2008. In the instant case, the detention orders were directed to be executed and the petitioners were taken into custody. Only after ensuring that the petitioners have surrendered and the orders of detention were served upon them, the petition was taken up ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....owed the counsel to raise any point in this court, which was not urged before the High Court. However, we are mindful of the decision of this Court in Mohinuddin @ Moin Master v. District Magistrate, Beed and others, 1987(2) RCR(Criminal) 338: 1987(4) SCC 58 where this Court has held that the habeas corpus petition cannot be dismissed on the ground of imperfect pleadings. We have, therefore, allowed learned counsel to canvass this point. ..." Thus, neither the technical objection nor any alleged imperfect pleadings can deter the Court from considering a challenge to a preventive detention order, that too when the detention order has been executed. 28. The third issue is already settled by the judgments of the Hon'ble Supreme Court. I do not find any merit in the respondents' contention that the writ petition was not required to be considered even after the detention of the petitioners in view of the alternative remedy available before the Advisory Board. In Prabhu Dyal Deorah v. The Distict Magistrate, Kamrup, (1974)1 SCC 103, while rejecting similar contentions, the Hon'ble Supreme Court was pleased to observe as follows:- "16. .... .... We do not think ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ondents is that they were not material documents and had no bearing on subjective satisfaction. 30. Annexure P-4 is a copy of the FIR No. 443 dared 25.9.2009 registered by Satbir Singh, Assistant Director (Sponsoring Authority) against Bimal Jain and his associates under Sections 186/353/34 of the Indian Penal Code at Police Station Ashok Vihar, New Delhi. The Assistant Director alleges in the FIR that Bimal Jain and his associates tried to manhandle him after search operations when he was with other officers of his Enforcement Directorate and obstructed him from returning to his office and also tried to threaten him with dire consequences. My attention was drawn to letters dated 10.11.2009 and 21.10.2009 of Bimal Jain addressed to the Assistant Director wherein while seeking permission to bring an Advocate during investigation. , he has referred to one FIR and has alleged that the contents of the FIR were false. My attention also was drawn to letter dated 25.9.2009 of Satpal Jain to the Assistant Director. It is seen that the said FIR dated 25.9.2009 filed by Shri Satbir Singh, Assistant Director/Sponsoring Authority, alleges that Bimal Jain and his associates tried to manhandl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Finance through its Secretary wherein it has been recorded as follows:- " 5. That during the course of conducting all end raids, no incriminating material was recovered which may have appeared to have apparently enraged the said official and those officialos forming the said raiding party. 7. That illegal efforts were then made by the raiding party led by the accused persons herein and the applicant was pressurized to append his signaturesa to blank papers and formats and despite opposition from him and he was forced to sign those papers while the applicant seriously apprehends that those could be misused by the agency officials against him. 11.That since then, the applicant had been meeting various police officials in the said Police Station, Pitampura, Delhi, but nothing was done in the matter and the police officials had blatantly refused even to investigate the matter muchless take any action against Shri Satbir Rathi on the mundane plea that he is a Government officer. 13. That since the prosecution of the said officials, namely, Shri Satbir Rathi, working as Asstt. Director in the Enforcement Directorate, Delhi Zonal Office falling under yo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....taining Authority had herself perused the said letters, she ought to have called upon the Sponsoring Authority to produce the FIR and further proceedings thereunder. 38. Moreover, the Sponsoring Authority was also bound to place on record FIR No. 443 of 2009 along with proceedings connecting thereto for consideration of the Detaining Authority. 39. In my view, each of these documents is such a vital document which would have a bearing on the subjective satisfaction of the Detaining Authority. It is true, as observed by the Hon'ble Supreme Court, in Vinod K. Chawla's case(supra), that each and every document need not be placed before the Detaining Authority but vital and relevant documents which have a bearing on the subjective satisfaction ought to have been placed before the Detaining Authority by the Sponsoring Authority. These documents of the petitioners as well as of the Sponsoring Authority go to the root of the matter. Whether upon consideration of these documents, if placed, the Detaining Authority could have suspected the proposal for invoking draconian measures of preventive detention as a tool to settle aggravated personal vengeance and as punitive measures....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the State and the general public. 33. In the instant case, as some of the vital documents which have a direct bearing on the detention order, had not been placed before the detaining authority, there was sufficient ground for the detenu to question such omission." ( c ) In Deepak Bajaj v. State of Maharashtra, 2008(16) SCC 14, it was held as follows:- "17. In Frances Coralie Mullin v. W.C. Khambra, (SCC p.279, para 5) this Court observed: "5. ... ... No freedom is higher than personal freedom and no duty higher than to maintain it unimpaired." 35.In Union of India v. Manoharlal Narang, this Court deprecated the contention that the detaining authority is not required to collect all materials about any court proceedings etc. from different ministries or departments for the purpose of issuance of a detention order. The Court observed that non- consideration of a relevant material will certainly invalidate the detention order. We respectfully agree with the above view, and reiterate it. 36. In A. Sowkati Ali v. Union of India, this Court observed that if the detaining authority has relied on a confessional statement then the retraction of that confe....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... as follows:- " 4. ... ... From what has been stated in the counter filed by the Union of India and the two counters filed by the State of Rajasthan, it appears to be clear to us that the documents mentioned by the appellant in his petition were not placed before the detaining authority and, therefore, were not considered by the detaining authority. It is possible that they were placed before the Screening Committee in the first instance, but that is immaterial. It was the detaining authority that, had to consider the relevant material before taking a decision whether it was necessary to detain the appellant under the COFEPOSA Act. That was not done and there was, therefore, a clear non-application of mind by the detaining authority to relevant material. Unfortunately, the High Court viewed it as a question of jurisdiction that is to say, the High Court thought that the detaining authority had jurisdiction to make the order of detention despite the retraction by the accused of his earlier confessional statement and the pendency of the criminal case against the appelllant in which bail had been granted subject to conditions. No one can dispute the right of the detaini....
X X X X Extracts X X X X
X X X X Extracts X X X X
....le to do so and the said documents far from being completely extraneous for the purposes of arriving at subjective satisfaction under the said Act would be whgolly relevant in arriving at it and influencing it. It should be borne in mind that eternal vigilance is the price which the law expects from the detaining and sponsoring authorities if they want detention orders to be affirmed by this Court under Article 226 of the Constitution of India. In their laxity lies the liberty of the detenu." On the basis of the said document, Government instructions were then issued on 25.8.2005 emphasizing on the safeguards and requirements to be observed while sponsoring proposals for preventive detention defined under the COFEPOSA Act mainly for ensuring that the materials forwarded to the Detaining Authority must be complied with in all respects. The judgment in Smt. Elsy George's case(supra) was extensively relied upon in these instructions which have stipulated that while sponsoring proposals for preventive detention materials/documents forwarded to the Detaining Authority must be complete in all respects and in particular, attention should be paid to all vital documents whic....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is true that sometimes even a smuggler may be able to secure his release from detention if one of the safe-guards or requirements laid down by the Constitution or the law has not been observed by the detaining authority but that can be no reason for whittling down or diluting the safeguards provided by the Constitution and the law. If the detaining authority wants to preventively detain a smuggler, it can certainly do so, but only in accordance with the provisions of the Constitution and the law and if there is a breach of any such provision, the rule of law requires that the detenu must be set at liberty, howsoever wicked or mischievous he may be. The law cannot be subverted, particularly in the area of personal liberty, in order to prevent a smuggler from securing his release from detention, because whatever is the law laid down by the courts in the case of a smuggler would be equally applicable in the case of preventive detention under any other law. This Court would be laying down a dangerous precedent if it allows a hard case to make bad law. We must, therefore, interpret the provisions of the Constitution and the law in regard to preventive detention without being i....