TaxTMI 
TaxTMI 
2006 (8) TMI 668
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....rieved of the order of detention dated 10.12.2005 under the provisions of COFEPOSA. She has, thus, invoked the jurisdiction of this Court under Article 226 of the Constitution by filing this petition for issuance of writ of habeas corpus and the immediate release of her husband, the detenu. 3. In the writ petition, it is submitted that the order of detention dated 15.12.2005 is illegal, arbitrary, mala fide, unjustified and unwarranted, and as such, the continued the detention of the detenu in jail is contrary to law and ought to be quashed. 4. Brief facts of the case as set out in the counter affidavit of the detaining authority is as under: Shri Sanjay Bhandari obtained EPCG licenses as Service Provider, in his four firms/company, namely M/s History Logistics (IEC No. 0502010233 issued on 14.5.2002) under category 'Hotel & Restaurants' & 'Tour & Transport'; M/s Raj Mahal Bhindar Logistics (IEC No. 0500053782 issued on 4.12.2000) under category 'Hotels; M/s V.K. Tours & Transport Logistics (IEC No. 0595024459 issued on 17.8.1995) under category 'Hotel Project and 'Tour & Transport'; M/s Northwest Marwar Resorts & Health Spa Pvt. Ltd. Logistics (IEC No. 0504069039 issued o....
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....nt persons. He also admitted the violation of the provisions of Exim Policy and Customs Notifications in respect of all the EPCG licenses and vehicles imported there under issued to all the aforementioned four firms/company. Investigations conducted so far have indicated that the cars imported under EPCG licenses by Shri Sanjay Bhandari were transferred to various Indian customers. From the costing sheets made by Shri Sanjay Bhandari for transferring these imported cars indicated that they were intended to be sold by claiming varying percentage of the duty saved as service charges from the customers of the imported cars; there was no business activities at all the declared premises; that no car had been installed/put into use at the declared places for declared purposes; that no forex had been earned from the use of the imported cars; that the cars have been transferred to the Indian customers under the guise of hire/leave agreement, that the forex shown to have been earned from overseas has no nexus with the use of the cars imported under EPCG Scheme. All the cars were registered as private vehicles and no as tourist/transport vehicles as per the requirement of Motor Vehicle Ac....
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.... registered in their name immediately, Therefore, they entered into a hire/leave agreement for interregnum period; that in may cases the security/lien for Bank Guarantee submitted to the Customs and insurance charges, service & maintenance charges and in some cases CHA charges, were paid by the customers for whom the cars were imported; that Shri Sanjay Bhandari had obtained loans/finances from the financiers by incorporating the name of customers as co-applicant and getting the installments towards the said vehicle loans paid by them; that the vehicles were taken by most of the customers in brand new condition immediately after import and were in their exclusive control & possession for their personal use; that in some cases the registration numbers were not allotted as per choice of the customers; that in some cases the registration numbers were obtained at the address of the customers; that they had not earned any forex from the use of the said cars; that they had not paid any forex for the cars to Shri Sanjay Bhandari; that the vehicles were not in the possession of Shri Sanjay Bhandari during the period in which he had shown earning of foreign exchange from them towards fulfil....
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....m Policy 1997-2002, 2002-2007 and Foreign Trade Policy 2004-09 and Customs Notification No. 40/2000 Customs, 55/2003 Customs and 97/2004 Customs. Shri Sanjay Bhandari had also filed tender with the Rajasthan Tourism Development Corporation, Jaipur for allotment of non-operational Midways Hotels, Motels & Cafeterias of Jodhpur cluster in his firm, M/s History Logistics and he was also entering in an agreement for taking of a Hotel Sand D at Pali Road, Jhalamand, District Jodhpur from Wing Commander R.S. Ranawat on lease. In view of the foregoing, the activities of Shri Sanjay Bhandari amount of smuggling as defined in Section 2(39) of the Customs Act, 1962 and as adopted in the COFEPOSA Act, 1974 via Section 2(e) thereof since his acts of omission and commission including application of fraudulent practices have rendered impugned goods liable to confiscation under Section 111(o) of the Customs Act, 1962. Considering, the nature and gravity of the offence, the well planned manner in which he had engaged in prejudicial activities over a period of time and his high potentiality & propensity to indulge in such prejudicial activities in future, his detention under Section 3(1) of the ....
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.... was duly considered by the detaining authority at the time of issuance of detention order as mentioned at para 30 of the grounds of detention. All the grounds and contentions raised by the detenu in the said representation have been considered by the detaining authority and all the relevant documents have been supplied to the detenu. The copy of the said representation was not required to be given to the detenu as the same was not primary documents on the basis of which detention was issued. 7. The relevant ground of detention supplied in support of detention order reads as under: I have also taken into consideration various representations, retractions and allegations made by you. However, having regard to the material placed before me, I am satisfied that such representations, retractions and allegations are baseless and devoid of any merit and hence I reject the same. 8. The representation dated 12.12.2005, although appears to have been considered yet does not find mention nor is part of the relied upon documents. Consequently, copy thereof was not served along with the grounds of detention. Counsel submits that non-supply of vital material vitiates the order of detent....
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....icles in question, which are still alive. These documents being vital have not been placed before the detaining authority, nor copies thereof been supplied to the detenu, although the detaining authority categorically admits as under: All the documents recovered from the premises situated at K-13A, 2nd Floor, Green Park Extension, New Delhi of the detenu vide Panchnama dated 30.8.2005 were placed before the detaining authority for his consideration and satisfaction. 12. Further, the detaining authority in its affidavit in respect of the aforesaid documents submits: ...were placed before the detaining authority by the sponsoring authority and were duly considered before passing the order of detention. 13. Counsel further submits that although the panchnama dated 30.8.2005 is a part of the relied upon documents figuring at page 518 Serial No. 30 of the list of relied upon documents at page 123 thereof, but the said documents which are the part of the panchnama, do not figure in the relied upon documents. Nor were they supplied to the detenu. 14. Counsel also submits that two vital and relevant documents, namely, agreement dated 9.11.2000, executed between Shri Ra....
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....t and reply filed by the DRI and other Misc. petitions filed by M/s V.K. Tours and Transport and High Court's order dated 28.8.2002 and 11.9.2002. 18. From the above, counsel draws conclusion that the writ petition was neither placed before the detaining authority nor considered and consequently no copy of the same was supplied to the detenu. 19. Counsel submits that Annexure A to T, which are a part of the application filed by the detenu before the Settlement Commission were not supplied though mentioned in the list of relied upon documents at Serial No. 240. He draws our attention to the counter affidavit of the detaining authority where it is stated as under: The application along with annexures filed by the detenu before the Settlement Commission, was placed before the detaining authority. The detaining authority has considered and shown his awareness about such application filed by the detenu at para 25 of the grounds of detention, however, the same is not the ground of detention. 20. Counsel for the petitioner submits that it is the admitted stand of the detaining authority that the vital documents though considered by the detaining authority are not part of the d....
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....(47)ELT188(SC) (ix) Sophia Gulam Mohd. Bham v. State of Maharashtra and Ors. 1999CriLJ4064 (x) Mst. Icchu Devi Choraria v. Union of India and Ors. [1981]1SCR640 (xi) Wasi Uddin Ahmed v. The District Magistrate, Aligarh, U.P. and Ors. 1981 Crl. L.J. 1825 (xii) Mohd. Hussain v. Secretary, Govt. of Maharashtra, Home Department, Mantralya Bombay and Ors. 1982 I.L.J. 1848. 23. Yet another ground of attack is the delay in consideration of the representation dated 1.2.2006, as also no independent consideration by the Central Government to the said representation. Counsel submits that pursuant to the impugned order dated 15.12.2005 and the detenu was taken into custody on 17.12.2005. On 1.2.2006 representation was moved by the detenu to the Central Government. On 13.2.2006, the detenu received memorandum from the Deputy Secretary to the Government of India, in terms whereof he was informed that his aforesaid representation dated 3.2.2006 had been carefully considered by the detaining authority, but the same has been rejected. On 14.2.2006, he received information that his representation dated 13.2.2006 addressed to the Special Secretary and Director General, Central Economic Intelligenc....
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....al not germane for passing the order of detention, the entire order of detention shall stand vitiated in law. 27. Counsel for the Detaining Authority submits that the only relevant, cogent and vital documents are required to be supplied. All documents seized from the premises vide panchnama dated 30.08.2005 were placed before the Detaining Authority for consideration and satisfaction. All the documents on which the order of detention was based and the subjective satisfaction of the Detaining Authority was formed, were supplied to the detenu. Further, all the documents placed before the Detaining Authority are not required to be supplied. He relies upon the Supreme Court judgment in the cases of Sunila Jain v. Union of India and Anr. 2006 TIOL-17-SC-COFEPOSA, Hari Das Amar Chand Shah v. K.L. Verma and Ors. 1989CriLJ983 and Madan Lal Anand v. Union of India 1990 (45) ELT 2004. 28. In reply to the petitioner's allegation that IEC Code in respect of three firms were cancelled and not brought to the notice of the Detaining Authority, counsel for the respondent submits that the IEC Code of the detenu's firms has not been cancelled. Only two show cause notices dated 31.5.2006 have b....
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....gation that M/s Raj Mahal Bhindar had given an authority to the detenu for taking EPCG licenses, counsel submits that only few lines of the said agreement and authority cannot be read in isolation. The basic premise of the agreement between Shri Randhir Singh Bhindar, partner of the premise of Raj Mahal Bindar and the detenu was to run the hotel on lease. It is an admitted fact by the detenu in his statement dated 30.8.2005 that no such hotel was ever developed and run by him in Bhindar. In any case, only a few lines in the agreement cannot be made the basis of attack. 32. As regards the cars earning foreign exchange, counsel submits that admittedly cars were never put to any use for which they were imported and, Therefore, the question of the business in which the cars were used earning foreign exchange does not arise. 33. Lastly, counsel submitted that show cause notice F. No. S/40-EPCG-456 (A)/03-04 JCH dated 22.7.2004, which was neither relied nor supplied supplied, was not necessary. Since this show cause notice issued to the detenu in respect of violation of conditions of Notification No. 4(RE)-2001/1997-2002 dated 31.3.2001 including the conditions regarding submission....
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....ding to the detaining authority's affidavit, was placed and considered by the detaining authority, should have found mention in the relied upon document and the same supplied to the detenu to make an effective representation. The representation dated 12.12.2005 and its consideration should have been reflected in the grounds of detention. In the present case, we find that this vital document/material has not been relied upon nor does it find reflection in the grounds of detention nor copy thereof supplied to the detenu. This in itself is sufficient to vitiate the order of detention. Copy of the show cause notice bearing No. F. No. S/40-EPCG-456(A)/03-04 JCH dated 227.2004, issued by the Customs Authorities to M/s History Logistics, which, the detaining authority says, was placed before the detaining authority for consideration and considered to draw the detaining authority's subjective satisfaction, does not find part of the relied upon documents nor has the same been supplied to the detenu. Similarly, copies of documents comprised in the Panchnama dated 30.8.2005 have not been supplied to the detenu although the Panchnama finds mention in the grounds of detention but the documents ....