TaxTMI 
TaxTMI 
2011 (3) TMI 1776
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.... grounds of detention with a view to prevent him from engaging in smuggling, abetting the smuggling, engaging in transporting, concealing, keeping, dealing in smuggled goods and harbouring persons engaged in smuggling goods in future under Section 3(1) of the COFEPOSA Act. 3. The relevant facts leading up to the filing of the present writ petition are as follows : (i) On 15/16.10.2009 the investigation commenced with alleged information that the detenu, along with Shri Vikash Bajoria, Shri Shakil Ahmed, Chhaliya Srivastava and other associates were involved in smuggling activities. A 40 Feet Nepal bound container stuffed with smuggled goods as well as other goods available in Hooghly were seized under Panchnama. A laptop and a computer was taken over from the premises of Chhaliya Srivastava as well as of Shri Deepak Sharma, Assitant of Shri Vikash Bajoria and Chhaliya Srivastava from which 68 nos. of hard copy printouts were retrieved. (ii) Three godowns at Delhi were also searched/sealed. The goods found there were seized. Office of the detenu was also searched and incriminating documents, CPUs and Pen Drive were taken from there. Statements of Shri Rahul Goyal, Shri Vivek Ag....
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....he detenue. The documents referred to and the relied upon documents were served on 23.09.2010. (ix) Writ Petition (Crl) No.1398/2010 was heard for some time and the detenu was granted liberty to file a separate writ petition, if the need arises, raising other grounds in accordance with law. (x) On 29.09.2010 the detenu sent the preliminary representation to the Jail Authorities for forwarding it to the Detaining Authority in which he sought for the documents, if any, relied upon for arriving at satisfaction regarding 'harbouring persons engaged in smuggling of goods, and also informed about other contradictions which had created confusion in the mind of the detenu. But, vide its communication dated 08.10.2010 the Detaining Authority rejected the said preliminary representation of the detenu. (xi) On 03.11.2010, the detenu was granted bail by the High Court of Kolkata. (xii) Thereafter, the detenu made a representation before the Advisory Board and placed the following documents: (1) Judgment dated 07.08.2006 of this Court in the case of Shashi Goyal v. UOI & Ors: 132 (2006) DLT 530 (DB), whereby the earlier detention order dated 19.11.2004 was quashed and set aside. (2)....
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....osed on the detenu and order in original dated 31.07.2009 whereby penalty of ₹ 50 lakh was imposed upon the detenu whereas against the order dated 19.01.2007 a conditional stay had been granted vide order dated 04.03.2008 and other order in original dated 31.07.2009 has already been set-aside by CESTAT vide order dated 04.02.2010 and the matter was remanded for de-novo adjudication. The challenge of the detenu is that the sponsoring authority has failed to place on record these vital information/documents for consideration of the Detaining Authority. Thus, it shows non-application of mind by the Detaining Authority on these vital documents and non-supply of the same to the detenu would infringe the rights guaranteed under Article 22(5) of the Constitution of India for making an effective representation against the impugned order. (c) In Para 45(B), the Detaining Authority relies on seizure of inter alia "2 incriminating CPUs" and other "incriminating documents" vide Annexure - A to the Panchnama dt. 15.10.2009. The use of words 'incriminating' pre-supposes that the documents and contents of CPU were considered by the Detaining Authority, and thus respondent No.2 was bound t....
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....in order to show that the detenu was in any way harbouring anyone by providing boarding or lodging with a view to smuggle the goods. Thus, in the absence of any material, it cannot be said that the detenu had been harbouring the persons engaged in smuggling goods or in abetting the smuggling of goods. 9. In the matter of Davubder Singh Dawar @ Goldie vs. UOI: 1997 Crl L.J. 3168, this Court quashed the detention order as no person engaged in smuggling of goods harboured by the detenu could be shown by the Detaining Authority despite issuing detention order allegedly for preventing the detenu therein from harbouring persons engaged in smuggling of goods. 10. A similar situation has arisen in the present case. It appears that there was no material on record which may show the satisfaction to the effect that the detenu was engaged in harbouring persons involved in the smuggling of goods. In the absence of any material on record, the said findings are not correct. The order of detention passed on that basis has to be quashed. 11. In support of ground (b), the learned counsel for the petitioenr has referred to paras 46 and 47, and 57.3 of the grounds of detention. The same read as und....
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....akh) each upon you, Shri B.K. Goyal & Shri Subhash Bansal. 57.3 You, Shri Bhimendra Kumar Goyal were issued several Summons under Section 108 of the Customs Act, 1962 asking you to appear before DRI for the purpose of investigation, but you did not appear before DRI for the purpose of investigation, but you did not appear before the DRI to join the investigation. Such non appearance against repeated Summons suggests that you, Shri Bhimendra Kumar Goyal are willfully avoiding the investigation. However, from the statements of Shri Chhaliya Shrivastava and Shri Vikash Bajoria it is quite evident that the entire illegal operation of bringing the subject Nepal bound containers to the godown premises namely Kanika International Ltd. and Amit Oil Products Pvt. Ltd. both situated at Dankuni hired by Shri Vikash Bajoria, unloading the expensive misdeclared goods from there by breaking their seals, loading the said emptied containers with low value goods, then sealing them with spurious seals having same numbers as of the original seals and finally sending them for their Nepal destination was masterminded by you, Shri Bhimendra Kumar Goyal, Shri Vikash Bajoria and Shri Chhaliya Shrivastav....
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....aining Authority, was also quashed vide order dated 26.02.2008 on the same grounds while granting liberty to issue fresh detention order and undisputedly the Supreme Court by order dated 11.03.2008 stayed the direction issued by this Court to the effect that the liberty is granted to the respondent to pass a fresh detention order and the said SLP is still pending. However, in the grounds of detention, no such details are mentioned or discussed while coming to the final satisfaction by the Detaining Authority. 14. It is stated in paras 46, 47 and 57.3 of the grounds of detention, that the Detaining Authority referred to the case of earlier detention order dated 19.11.2004 which was adjudicated vide order in original dated 19.01.2007 wherein penalty of ₹ 15 lakhs was imposed on the detenu and order in original dated 31.07.2009 wherein penalty of ₹ 50 lakh was imposed upon the detenu. But the Detaining Authority has failed to mention or discuss about the factual position of the matter that against the order dated 19.01.2007 a conditional stay had been granted vide order dated 04.03.2008 and the order in original dated 31.07.2009 has already been set-aside by CESTAT vide o....
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....this fact is clearly fatal to the case of the respondents. 18. In support of ground (c) pressed by the detenu, learned counsel has referred to para 45(B) of grounds of detention wherein the Detaining Authority relied on seizure of, inter alia, "two incriminating CPUs and other incriminating documents" vide Annexure A to the Panchnama dated 15.10.2009. The contention of the learned counsel for the detenu is that the use of the word 'incriminating' pre-supposes that the documents and contents of CPUs were considered by the Daitaining Authority, thus, the respondents were bound to supply the copies of these documents and the incriminating contents of the CPUs to the detenu pari passu along with the grounds of detention. 19. The reply of the respondents is that it is not disputed that the Detaining Authority mentioned about the seizure of CPU and incriminating documents in the grounds of detention. However, the respondents tried to satisfy the Court that since there was a pre-detention development, there was only a reference in the grounds. The said two CPUs were seized and were kept sealed under the signature of Sh. Rahul Goyal and Sh. Vivek Aggarwal. But there was no discussion abo....
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....medkutty v. Union of India and Another: (1990) 2 SCC 1, after considering the judgments cited by the Respondents including Icchu Devi Choraria v. Union of India & Ors. : (1980) 4 SCC 531 and 3 judges judgment in Ana Carolina D'souza v. Union of India: (1981) Suppl. SCC 53, it was held that without relied upon documents the ground would be incomplete, it was a constitutional imperative and held that non supply of the same pari passu with the grounds was bad in law. The judgment in M. Ahamedkutty (supra) was followed by a three Judges bench in P.U. Abdul Rahiman v. Union of India & Ors: (1991) Supp SCC 274. In Gautam Saikia and etc. v. District Magistrate, Sibsagar and others: 1984 Crl L.J. 597, it was observed: 20. We are of the opinion that in view of the principles of law laid down by the Supreme Court in the cases above, the order of detention in both the cases is invalid being violative of Article 22(5) of the Constitution. The mere fact that the grounds are elaborate and statements are concise, does not absolve the detaining authority from its constitutional obligation to supply the documents referred to above which form an integral part of ground of detention and which influ....
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....a B(I) of the grounds which reads as under: "B.(I) The Grounds as raised in para B(I) are wrong and misconceived and hence denied. It is respectfully submitted that the reference to 'prosecution' at Para 64 has only been made as a passing reference and has no bearing on the satisfaction of the detaining authority and there was no question of supplying any documents on which no reliance has been placed. It is submitted that all the relied upon documents have been supplied to the detenu." However, the fact remains that in para 64 of the grounds of detention, a specific reference has been made about the pending prosecution proceeding while coming to the satisfaction by the Detaining Authority. 26. It is argued by the learned counsel for the detenu that as per the knowledge of the detenu, no prosecution was filed in the case, however, the Detaining Authority relied on pendency of the prosecution proceedings, without supplying particulars thereof. Under these circumstances, we agree with the counsel for the detenu that the claim of the Detaining Authority regarding the pendency of prosecution in absence of either any sanction under Section 137(3) of the Customs Act, 1962, exhibits a....