TaxTMI 
TaxTMI 
TaxTMI 
2018 (7) TMI 455
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....aining authority on the basis of which the impugned order of detention was issued. The grounds of detention referred to the alleged activities committed by the detenu and others contravening the provisions of Indian Customs Act, 1962. The grounds of detention further mentions that the detaining authority is satisfied that the detenu and others are in the habit of regularly smuggling gold into India from abroad without declaring the same before the Customs Authorities and paying applicable duty and subsequently selling it in the market which amounts to "smuggling" in terms of Section 2 of the Customs Act, 1962. The underlying common thread is the propensity of the detenu to abet smuggling of gold for making illicit profit and putting the National economy into danger which needs to be curbed and it is necessary to prevent him from indulging in such activities further. It is further stated that the detaining authority is reasonably satisfied that the detenu have abetted activities amounting to smuggling in terms of Section 2(39) of Customs Act, 1962 and Section 2(e) of COFEPOSA Act, 1974 which have rendered the goods involved liable to confiscation under the Customs Act, 1962. 3. Mrs....
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....y him between the period when he received the proposal in the instant case and 07.12.2017 when the impugned order of detention was issued. It was not possible for the detaining authority to himself peruse and scan the documents and the material and formulate the grounds of detention within short span of time. The learned Advocate further submitted that the documents at pages 648 to 657 were dated 24.11.2017, 29.11.2017 and 27.11.2017 respectively and the documents at pages 684 to 686 were dated 14.11.2017 and 24.11.2017 respectively. The document at Sr. No. 6A at page 46 is a statement of Shri. Mushtaq Sayed dated 4.12.2017 and the document at Sr. No. 30 is the statement of Shri. Karnaram Choudhary dated 24.11.2017 which were considered by detaining authority. The detaining authority should disclose as to on or which date the said statements and documents covering into 687 pages were placed before the detaining authority and the time taken for scanning and perusing the said statements and documents along with other documents and for formulating the grounds of detention. She further submitted that assuming that the detaining authority had himself scanned all the documents and the ....
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....thority which were running into about 687 pages were perused by him while issuing the order of detention against the detenu and codetenus. Mrs. Pai further submitted that it cannot be said that there was non-application of mind and there was casual and cavalier exercise of statutory power by the detaining authority while issuing the order of detention against the detenu. She further submitted that it is not incumbent upon the detaining authority to state as to how many other orders of detention were issued by him before the present order of detention was issued against the detenu and other codetenus. The detaining authority have himself perused, scanned the material and formulated the grounds of detention. There was sufficient time for the detaining authority to peruse, scan and formulate the grounds of detention and contemporaneously issue the order of detention against the detenu and the codetenus. It is therefore submitted that the detaining authority has not considered the documents in piecemeal and has issued the order of detention on the basis of the material on record and on the basis of the documents placed before him which were relied upon for issuing the order of deten....
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....nnexure "C". The said document indicate that it is a list of relied upon documents in respect of detention order issued against the detenu dated 7.12.2017. The list is prefers to 65 documents bearing total number of 687 pages. The document at Sr. No. 6A is statement of Mushtaq Abubaker dated 4.12.2017 recorded under Section 108 of The Customs Act, 1962. The document listed at Sr. No. 59 and 64 refers to the letter dated 27.11.2017 recording journeys performed by Peerzada Mohammed Iliyas Sajjad Pasha, and others and the Retraction application dated 14.11.2017 filed by Sayed Mushtaq Abubaker along with letter dated 27.11.2017 filed by sponsoring authority. The affidavit in reply filed by the detaining authority states that the additional documents which have been relied upon for issuing the order of detention, which are 687 pages in total, were received vide sponsoring authorities letters dated 01.11.2017, 04.11.2017, 17.11.2017, 22.11.2017, 27.11.2017, 28.11.2017 and 4.12.2017. The said contention is chaotic, creates confusion and reflects non-application of mind. The list of documents at Annexure "C" referred to the documents relied upon by the detaining authority for issuing order....
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....ity took over the investigation and also forwarded the documents to the detaining authority. On 04.11.2017, 17.11.2017, 22.11.2017, 27.11.2017, 28.11.2017 and 04.12.2017, the sponsoring authority forwarded the remaining documents to the detaining authority. Thus, the reply refers to 118 documents forwarded to the detaining authority on 01.11.2017 which is followed by the additional documents on the respective dates reflected therein. The list of documents refers to 65 documents and 687 pages which were purportedly relied upon by the detaining authority for issuing order of detention. The aforesaid reply however refers to 118 documents and it also indicates that additional documents were forwarded on the subsequent dates. The said reply is therefore contradictory to the contention of the detaining authority. The reply further creates confusion and depicts non-application of mind and cavalier approach on the part of authorities while dealing with the preventive detention. In this regard we have perused the file which was placed before us by the learned Counsel for the Respondents. It is apparent from the file that the proposal was dated 12.10.2017. The proposal and documents forward....
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....ner it has been contended that on 9th February, 2018 at the time of meeting of Advisory Board the detaining authority has submitted time chart showing chronological sequence of events in respect of detenu and codetenus in which it is stated that on 06.11.2017 the detaining authority received additional documents. The said time chart showing chronological sequence of events in respect of detenus is annexed to the rejoinder. On perusal of the same it is apparent that at Sr. No. 27 the office of the detaining authority have received further copies of additional relied upon documents generated during investigation received from sponsoring authority and similarly on 30.11.2017, 04.12.2017 and even on 07.12.2017 additional in puts required in the case of viz call data analysis etc., the statement of Mohammed Sayed recorded under the Customs Act, 1962, the documents regarding Bail applications, Panchanama, Release Memo etc., the statement of Mushtaq Abubaker and further pending relied upon documents were received. It is clear that the detaining authority has lastly received the relied upon documents on 07.12.2017 and on the very same date the detaining authority has formulated the grounds....
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....rd of about 2965 pages. In Paragraph 85, 86 and 87 of the said decision it was observed that the detaining authority continued to receive documents until 12th March, 2012 and the order of detention was issued on 14th March, 2012. This Court observed that there is nothing wrong if the detaining authority insisted for further generated documents. After receipt of the final proposal and only after being fully satisfied that it was imminent to issue order of preventive detention against the detenu, the detaining authority is expected to exercise powers conferred under the COFEPOSA Act to prevent the detenu from indulging in smuggling in future. That is the process of consideration and merely because the file was handled on different occasions does not mean that the subjective satisfaction have been recorded on piecemeal basis. There is nothing to suggest that there was possibility of the grounds of detention having been formulated by the detaining authority in piecemeal manner. The detaining authority, on affidavit, has stated that the grounds were formulated by her contemporaneously while recording her subjective satisfaction about the necessity to issue the preventive detention order....
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.... authority in the affidavit in reply. The other decision relied upon by Mrs. Pai, the Counsel for the Respondents was in the case of A.K. Gopalan (Supra). The Supreme Court had considered the arguments advanced at the instance of detenus that there was no application of mind by the Government of India before the orders in question were passed, for as many as 140 orders were passed on the same day which shows that the mind could not have been applied to each individual case before several orders were passed all at once on one day. The Supreme Court rejected the said contention on the ground that the reply was tendered by the Government of India wherein it was stated that the question as to the detention of the persons who were ordered to be detained on 4th March, 1965 was under consideration of the Government of India for quite sometime and that only the detention orders were passed on one day. It was also stated by the detaining authority that it was satisfied with respect to each individual person ordered to be detained that the detention was necessary for reasons already set out and it was after such satisfaction that the orders were passed though they happened to be passed on t....
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....ing constitutional provisions for safeguards against misuse of powers by authorities though these constitutional provisions should be strictly construed. In paragraph 81 and 82 of the said decision it was observed that there was evidence before the authorities that 60 gold biscuits of foreign origin without any explanation of their importation were found in the possession of the detenu. No explanation was given for possession the goods which were smuggled. The statement of Object and Reasons states that smuggling of foreign exchange and related activities have a deleterious effect on the national economy and thereby a serious adverse effect on the security of state. The society must be protected from that social menace by immobilizing the persons by detention of the persons engaged in those operations and to disrupt the machinery established for further smuggling and foreign exchange manipulations. Preventive detention unlike punitive detention which is to punish for the wrong done, is to protect the society by preventing wrong being done. Though such powers must be very cautiously exercised not to undermine the fundamental freedoms guaranteed to our people, the procedural safeguar....