TaxTMI 
TaxTMI 
2001 (10) TMI 1178
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....0 and their true copies are annexed as Annexures A and B respectively to this writ petition. 2. The prejudicial activities of the detenu which prompted the second respondent (hereinafter also referred to as the detaining authority) to pass the impugned order are contained in the grounds of detention. (Annexure B). In short, they are as under:-- An intelligence was received to the effect that M/s. Quality Apparel Exporters (P) Ltd. and M/s. Quality Exporters, both Mumbai based firms were indulging in export of rags declaring them to be ladies garments with the sinister object of defrauding the Government by way of claiming duty draw back. The intelligence further revealed that about five consignments were likely to be exported on 31-5-2000 and the aforesaid firms had been indulging in the said malpractice in the past and over 150 consignments were shifted from Air Cargo Complex, Sahar, during January, 2000 to May, 2000 and the said firms obtained the duty draw back fraudulently which ran into crores of rupees. In pursuance of the said intellegence, three consignments of cargo declared to be ladies skirts were noticed in the shed, Air Cargo Complex, Sahar in respect of wh....
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....joined M/s. Quality Exporters in the year 1976 and continued to work in the said company till 1997 in which year he was shifted by the management to M/s. Quality Exporters. He stated that he used to take instructions from Mr. Aditya Singh (son of the aforesaid Mr. C.D.N. Singh) a director in M/s. Quality Apparel and was looking after the export management as per the verbal instructions of Mr. Aditya Singh. On being shown the export related documents against seven shipping bills dated 30-5-2000, namely 44215759, 4425761, 4425763, 443754, 4425769, 4425767 and 4425764, he admitted that he had signed them. In his statement dated 23-6-2000, the detenu stated that the signed the documents as per the instructions of Mr. Aditya Singh and he did not have any knowledge that the directors of the said firm were making false exports with a view to make draw back entry and he denied that he had connived with the directors of the firm. A perusal of the grounds of detention would show that the gravamen of the allegation against the detenu is that after preparing the export documents under the instructions of Mr. Aditya Singh and signing them, he forwarded them to one Dashrathlal Bhagwandas G....
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....y dated 17-4-2001 and 19-9-2001 and in that of Mr. E.A. Joseph, Assistant Commissioner of Customs, (Preventive) R.& I. New Customs House, Mumbai. We now propose extracting in substance the reply contained in the said returns. 4A. We begin with the return of the detaining authority dated 17-4-2001. We find that the reply of the detaining authority is contained in para 3, 4 and 6(iii) of the said return. In para 3 and 4, the detaining authority has denied that non-placement of the FIR against Mr. C.D.N. Singh and others impaired his subjective satisfaction. He had stated therein that his subjective satisfaction to detain the detenu under the impugned order was based on sufficient material which had been placed before him and which had been served on the detenu. He has also stated therein that on the said material he was subjectively satisfied that in order to prevent the detenu from committing smuggling of goods in future, it was imperative to detain him. He has further mentioned therein that the detention orders have also been issued against three directors of M/s. Quality Apparel (P) Ltd. In para 4(iii), the detaining authority has also denied that non-placement of t....
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....agencies under different relevant enactments would have to be considered by the detaining authority while issuing a detention order under the COFEPOSA Act and this will not be in tune with the provisions of COFEPOSA Act and would be unjustifiable because, such documents would be completely extraneous for the purpose of arriving at the subjective satisfaction as defined under the COFEPOSA Act. At the end of his affidavit, the detaining authority has averred that the FIR filed by the CBI was neither a vital nor a relevant document for his arrival at the subjective satisfaction reached by him. 4C. We now take up the reply to ground No. 4(iii) contained in the return of Mr. E.A. Joseph, Assistant Commissioner of Customs (Preventive) and R. & I. Mumbai. In short, it is as under :-- It is denied that the detenu had no role to play in the alleged smuggling activities. He was preparing the necessary export related documents and this leaves no doubt about his being part and parcel of the conspiracy. In his statement recorded under Section 108 of the Customs Act, the detenu had admitted that he used to prepare the second set of invoices thereby declaring different prices on invoi....
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....6) 4425764 dated 30-5-2000 (7) 4425765 dated 30-5-2000. 7(A). A perusal of the FIR lodged by the CBI (Annexure E) would show that the said FIR was lodged on 21-6-2000 and the averment therein is that Mr. C.D.N. Singh, Mr. Aditya Singh and Mr. Randhir Singh, original accused Nos. 8, 9 and 10 respectively entered into a criminal conspiracy with seven customs Officers namely Mr. R. Manga Babu, Mr. K.R. Tumbare, Mr. R.V. Apparao, Mr. K.B. Suryavanshi, Mr. K.S. Nair, Mr. A.K. Jena and Mr. C.P. Umar, original accused Nos. 1, 2, 3, 4, 5, 6 and 7 respectively and M/s. Nirvan Company, Sharjah and M/s. Freight Wings and Travels Ltd. Mumbai, original accused Nos. 11 and 12 respectively and others to cheat the Government of India by misusing the incentive scheme of export. A perusal of the said FIR would also show that Mr. C.D.N. Singh, Mr. Aditya Singh and Mr. Randhir Singh were owners and partners of M/s. Quality Apparels and M/s. Quality Exporters (P) Ltd. and fraudulently exported rags and series in stitched condition by using forged and fabricated documents showing rayon, ladies skirts and with the connivance of the said customs officers and the two companies referred to above, receive....
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.... on the vice of non-application of mind of the detaining authority and the detenu's fundamental right of making a representation guaranteed by Article 22(5) of the Constitution of India being impaired. 9. Mr. R.M. Agarwal, learned counsel for the respondent Nos. 1 and 2 emphatically urged that since the detaining authority has detained the detenu in order to prevent him in future from committing smuggling within the meaning of Section 2(e) of the COFEPOSA Act and in the grounds of detention, there was sufficient material for the detaining authority to conclude that the detenu committed smuggling in terms of Section 2(e) of the COFEPOSA Act, his subjective satisfaction would not have changed even had the FIR lodged by the CBI (Annexure-E to the petition) been placed before him. In fact, Mr. Agarwal went to the extent of urging that the said FIR was an extraneous document. 10. We have reflected over Mr. Agarwal's submission and regret do not find any merit in it. As mentioned earlier, the said FIR was a relevant and vital piece of material which should have been placed before the detaining authority, which way the subjective satisfaction of the detaining authority would....
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....t placed before the detaining authority any its copy was not supplied to the detenu, the impugned order would be vitiated on the vice of non-application of mind and the detenu's fundamental right of making a representation at the earliest opportunity guaranteed by Article 22(5) of the Constitution of India being impaired. 12. Before parting with Mr. Agarwal's submission, we would like to emphasise that subjective satisfaction and objective satisfaction are as distinct and different in connotation, as red and black are and standards to be adopted in determining as to when an order founded on them would be vitiated are equally distinct and different and while dealing with cases resting on them, if this Court becomes oblivious of the inherent distinction between them and acts on the maxim what is good for the goose is also good for the gander and applies the same standards, it would be perpetuating injustice. 13. The Supreme Court in a catena of decisions has held that if a vital piece of evidence which could have influenced the mind of the detaining authority is not placed before it, the detention order would be vitiated on the vice of non-application of mind. The four ....
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.... a telegram. The question was whether the telegram was despatched by Mirajuddin at 12-30 midnight on 18-2-1988 as contended from the side of the petitioner or at 12-30 noon on 19-2-1988 as suggested by the respondents. Venkatachaliah. J. (as he then was) in para 13 of the judgment did not rule out the possibility of the telegram being sent at, the time contended by the respondents. But, in spite of that, since the said telegram was a vital piece of evidence and was not placed, he struck down the detention order observing thus in the said para: But, it cannot be disputed that such a telegram was sent. This telegram asserts for whatever it was worth that the petitioner was taken into custody at 8.00 p.m. on 18-2-1988. The contention of Shri Garg is that the non-consideration of this telegram which had a bearing on the complicity or otherwise of the -petitioner in the alleged offence vitiates the detention on non-application of mind. The detaining authority in its affidavit, says :...Deponent is not in a position to say about the facts of the telegram. It might have been given in peshbandi. What weight the contents and assertions in the telegram should carry is an altogeth....
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.... at the earliest opportunity would be vitiated. 17-A. It. should be borne in mind that the right to make a representation, guaranteed to the detenu under Article 22(5) of the Constitution of India, is an effective right and not an illusory right. And when a copy of a vital document is not furnished to the detenu, it ceases to be an effective right and is relegated to an illusory one. The sacrosanct nature of the right can be gauged by the fact that, the framers of the Constitution have made it. a fundamental right. 18. Before we proceed to the operative part of this judgment, we would like to make some observations on the averments contained in the second affidavit dated 19-9-2001 filed by the detaining authority. It is the detaining authority has made himself bold to say that : If the argument of the petitioner that filing of FIR by the CBI is a vital document is accepted then, in that case all documents relating to cases if registered by different law enforcement agencies under different relevant enactments are to be considered by the Detaining Authority while issuing a detention order under the COFEPOSA Act. This will neither be in tune with the provisions of the COFEPO....