TaxTMI 
TaxTMI 
TaxTMI 
2019 (9) TMI 433
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.... to as 'the detenus') respectively, and to set them at liberty forthwith. 2. The facts as are relevant for the adjudication of the present proceeding are briefly encapsulated as follows:- (i) In the light of specific intelligence, the Directorate of Revenue Intelligence, Kolkata Zonal Unit (for short 'DRI') intercepted one "Anand" on 09.06.2019 near Dankuni Toll Plaza, West Bengal, while he was travelling on a bus from Siliguri to Kolkata, carrying 8 Kgs. of gold of foreign origin valued at Rs. 2.71 crores approximately. (ii) The said Anand, vide his statements recorded on 09.06.2019 and 10.06.2019 indicated that, he had been engaged by the detenus to receive the 8 bars of smuggled gold from Indo-Bhutan border at Jaigaon from an unknown person, to be transported and delivered to Kolkata and Delhi. (iii) As per the detenus, they were apprehended by officers of DRI on 10.06.2019 at about 2.00 p.m. at the Food Court of Quest Mall, 33, Syed Amir Ali Avenue, Park Circus, Beck Bagan Row, Kolkata, West Bengal-700017 and taken to the latter's office. (iv) The detenus' self-incriminating confessions were purportedly obtained under Section 108 of the Customs Act, 1962 (hereinaf....
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....ed; and there being no imminent possibility of their being released on bail; nor any material relied upon therein to raise an apprehension that they may be so released in the near future - since no bail application was pending - the same are ex facie illegal and without any basis; and (b) The RUD's have not been perused by the Detaining Authority, inasmuch as, the retraction petition of the said Anand, which is a vital document, has neither been placed before the Detaining Authority nor considered by it, in accordance with law; the document purported to be a copy of the 'retracted petition' in respect of the said Anand, placed at Sl.No.30 of the list of RUD, is actually the latter's bail application, and thus the subjective satisfaction is sham, erroneous and incomplete; and, therefore, violative of the detenus' right to effective representation as mandated and guaranteed by the Constitution, by law. . 4. In order to buttress his submissions, Mr. Vikram Chaudhri, learned Senior Counsel has placed reliance on the following decisions:- (i) T.V. Sravanan alias S.A.R. Prasana Venkatachaariar Chaturvedi vs. State Through Secretary and Another reported as (2006) 2 SCC 664. (ii....
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....presently lodged at Presidency Correctional Home, Kolkata. xvii. Petition have been filed on behalf of you i.e. Shri Ashok Kumar Jalan and Shri Amit Jalan before the Ld. Chief Metropolitan Magistrate, Kolkata, retracting their statements given before DRI officers. xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxi. It is on record vide letter F.No.T-23/7/Cal/95/Part dated 24.06.2019 of the Joint Director, Office of the Special Director, Eastern Region, Enforcement Directorate, Kolkata that you i.e. Shri Ashok Kumar Jalan alias Pappu Jalan S/o Late Madan Lal Jalan was detained in Presidency Jail on 2.10.1994 under COFEPOSA Act, 1974 vide Detention Order No.673/160/94 dated 22.09.1994. Subsequently the detention order was quashed by Hon'ble Calcutta High Court and you i.e. Ashok Kumar Jalan were released from jail on 23.12.1994. In another case a Detention Order No.673/14/2002 - Cus VII dated 20.05.2002 under COFEPOSA Act, 1974 was issued against you i.e. Shri Ashok Kumar Jalan alias Pappu and you were detained on 13.06.2002. Subsequently the said detention order was revoked by Central Government vide Order dated 21.08.2002 on the basis of opinion of the COFEPOSA Advisory Board....
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....lan have engaged yourself in such prejudicial activities and your role therein, all of which reflect your high potentiality and propensity to indulge in such prejudicial activities in future, I am satisfied that there is a need to prevent you i.e. Shri Ashok Kumar Jalan from smuggling goods. Hence, you i.e. Shri Ashok Kumar Jalan ought to be detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act, 1974 with a view to preventing you from smuggling goods, abetting the smuggling of goods and dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods in terms of Section 3(1) of the COFEPOSA Act, 1974. 6. I am aware that prosecution under Section 135 of the Customs Act, 1962 may be launched against you and adjudication proceedings are also likely to be initiated soon, which are however, punitive in nature and independent of the preventive detention provided under the COFEPOSA Act, 1974. However, considering your i.e. Shri Ashok Kumar Jalan high propensity to indulge in the prejudicial activities, I am satisfied that in the meantime you should be immobilized by detention under the COFEP....
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....on the same footing as the case of the accused. All that has been stated in the grounds of detention is that "in similar cases bails were granted by the courts". In our opinion, in the absence of details this statement is mere ipse dixit, and cannot be relied upon. In our opinion, this itself is sufficient to vitiate the detention order. 8. It has been held in T.V. Sravanan v. State [(2006) 2 SCC 664 : (2006) 1 SCC (Cri) 593] , A. Shanthiv. Govt. of T.N. [(2006) 9 SCC 711 : (2006) 3 SCC (Cri) 371] , Rajesh Gulati v. Govt. of NCT of Delhi[(2002) 7 SCC 129 : 2002 SCC (Cri) 1627] , etc. that if no bail application was pending and the detenu was already, in fact, in jail in a criminal case, the detention order under the preventive detention law is illegal. These decisions appear to have followed the Constitution Bench decision in Haradhan Saha v. State of W.B. [(1975) 3 SCC 198 : 1974 SCC (Cri) 816] wherein it has been observed: (SCC p. 209, para 34): "34. ... where the person concerned is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could ....
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....or a long period without recourse to a lawyer and without a trial. As observed in R. v. Secy. of State for the Home Deptt., ex p Stafford [(1998) 1 WLR 503 (CA)] : (WLR p. 518 FG) " ... The imposition of what is in effect a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily with ordinary concepts of the rule of law." Article 22, hence, cannot be read in isolation but must be read as an exception to Article 21. An exception can apply only in rare and exceptional cases, and it cannot override the main rule. 26. It was held in Union of India v. Paul Manickam [(2003) 8 SCC 342 : 2004 SCC (Cri) 239] that if the detaining authority is aware of the fact that the detenu is in custody and the detaining authority is reasonably satisfied with cogent material that there is likelihood of his release and in view of his antecedent activities he must be detained to prevent him from indulging in such prejudicial activities, the detention order can validly be made. 27. In our opinion, there is a real possibility of release of a person on bail who is already in custody provided he has moved a bail application which is pending. It follows....
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....gistrate within 24 hours of arrest. To prevent misuse of this potentially dangerous power the law of preventive detention has to be strictly construed and meticulous compliance with the procedural safeguards, however technical, is, in our opinion, mandatory and vital. 36. It has been held that the history of liberty is the history of procedural safeguards. (See Kamleshkumar Ishwardas Patel v. Union of India [(1995) 4 SCC 51 : 1995 SCC (Cri) 643] vide para 49.) These procedural safeguards are required to be zealously watched and enforced by the court and their rigour cannot be allowed to be diluted on the basis of the nature of the alleged activities of the detenu. As observed in Rattan Singh v. State of Punjab [(1981) 4 SCC 481 : 1981 SCC (Cri) 853] : (SCC p. 483, para 4) "4. ... May be that the detenu is a smuggler whose tribe (and how their numbers increase!) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them, and if freedom and liberty are to have any meaning in our democratic set up, it is essential that at least those safeguards are not denied....
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.... of issuance of the order of detention. The principle in this regard is well settled. In Rameshwar Shaw v. District Magistrate, Burdwan [(1964) 4 SCR 921 : AIR 1964 SC 334 : (1964) 1 Cri LJ 257] this Court observed: (SCR pp. 929-30) "[12.] As an abstract proposition of law, there may not be any doubt that Section 3(1)(a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail; but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. ... Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case." 8. The principle was further elucidated in Binod Singh v. District Magistrate, Dhanbad [(1986) 4 SCC 416 : 1986 SCC (Cri) 490] in the following words: (SCC pp. 420-21, para 7) "7. It is well settled in our constitutional framework that the power of directing preventive detention given to the appropriate authorities mus....
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....ons Court which was rejected on 17-11-2004. The appellant had moved another bail application before the High Court which was withdrawn on 3-12-2004. The detaining authority noticed that the appellant had not moved any bail application subsequently but it went on to state that there was imminent possibility of the appellant coming out on bail by filing another bail application before the Sessions Court or the High Court since in similar cases bails are granted by the Sessions Court after a lapse of time. The order of detention was passed on 15-12-2004 i.e. merely 12 days after the dismissal of the bail application by the High Court. There is nothing on record to show that the appellant had made any preparation for filing a bail application, or that another bail application had actually been filed by him which was likely to come up for hearing in due course. 13. A somewhat similar reasoning was adopted by the detaining authority in Rajesh Gulati v. Govt. of NCT of Delhi [(2002) 7 SCC 129 : 2002 SCC (Cri) 1627] . This Court noticing the facts of the case observed: (SCC pp. 133-34, para 13) "13. In this case, the detaining authority's satisfaction consisted of two parts-one: ....
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....in (supra), it is clear, categorical and unequivocal that the settled position of law is that when the detenus are in judicial custody and there is no imminent possibility of their release on bail and even no bail applications are pending, the power of preventive detention ought not to be exercised. 15. The decision of the Hon'ble Supreme Court in Dimple Happy Dhakad (supra), relied upon on behalf of the Detaining Authority, does not come to their aid, inasmuch as, it was clearly expressed by the Hon'ble Supreme Court in that case as well that the satisfaction of the Detaining Authority, that the detenu may be released on bail, cannot be the mere ipse dixit of the Detaining Authority, and that the Guideline No.24 (Part-A of Don's) of the 'Hand Book on Compilation of Instructions on COFEPOSA Matters' clearly stipulates that, when the detenu is in judicial custody, the Detaining Authority has to record in the grounds of detention its awareness thereof and then indicate the reasons for the satisfaction that there is imminent possibility of his release from the custody. 16. Insofar as, the threshold objection raised on behalf of the official respondent to the effect that, in view o....
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....ons and judicial precedents discussed above, and the examination of the grounds of detention in the light thereof, we have no option but to hold that, paragraph 7 and other paragraphs of the impugned detention orders dated 01.07.2019 do not meet the criteria and ratio enunciated in the decisions of the Hon'ble Supreme Court in Rekha (supra) and T.V. Sravanan (supra), inasmuch as, there is a clear lapse and failure on the part of the Detaining Authority, to examine and consider the germane and relevant question relating to the imminent possibility of the detenus being granted bail, while recording its subjective satisfaction and passing the detention orders. The same are, therefore, unsustainable and liable to be set aside and quashed. We also hold that, the nonplacement of the relevant material, in the form of Anand's retraction petition and its non-consideration by the Detaining Authority, also vitiates the detention order, in terms of the decision of the Hon'ble Supreme Court in Deepak Bajaj vs. State of Maharashtra and Another reported as (2008) 16 SCC 14 and in particular paragraph 31 thereof, wherein it is observed as under:- "31. Most of the retractions were made to DRI, a....