TaxTMI 
TaxTMI 
2020 (8) TMI 230
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.... PD12002/ 16/2019COFEPOSA on various grounds. 2.2 The Petitioner in Special Civil Application No. 1713 of 2020 namely Nita Chunilal Parmar has challenged the Order of detention dated 2.8.2019 bearing F No. PD12002/ 14/2019COFEPOSA on the grounds mentioned in the Petition. 2.3 All the petitioners have prayed to quash and set-aside the impugned order of detention passed against them by detaining authorities and set them free. 3. All the three petitions have been arisen from the same incident and on the same set of facts and materials and, therefore, all the three petitions are being disposed of by this common judgment. This Court has considered voluminous documents placed on the record of this case, consisting of more than 1500 pages, which includes written submissions of both the sides and the decisions cited at the bar. 3.1 In view of the facts that the detention orders passed against the respective petitioners of the three petitions have been arisen from the same set of facts and circumstances and they are interwoven, the facts of Special Civil Application No. 22512 of 2019 is taken as a lead matter. 4. The brief facts of the Petition is that on 4.6.2019, the Office....
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....eafter Mr. Jignesh Savaliya and Mr. Lokesh Sharma were arrested and confessed that gold was to be handed over to Mr. Rutugna Trivedi or to any other person as per instruction of Mr. Rutugna Trivedi. However, later on both of them retracted their statements before the learned trial Court in bail application. It is alleged that Office of Akhandjyot Private limited and other offices and residence of all the three petitioners and other persons who have been involved in the smuggling activities, search was carried out by the Authorities and various documents were seized under detailed Panchnama in presence of Panchas and the officers of the concerned authorities. 4.4 It is alleged by the petitioner that on 15.6.2019, he along with others preferred a Special Criminal Application No.6629 of 2019, praying for a writ of prohibition directing to prohibit the authorities from arresting the petitioner and others without following the mandatory provisions of the Code of Criminal Procedure, 1973. The present petitioner and others also sought permission to have an advocate at visible, but not audible, distance during their interrogation by the Officers of the Deputy Commissioner of Customs, Ah....
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.... (12) The Order of detention is exfacie punitive in nature. (13) There is no proximity of offence of 2014 for the purpose of passing impugned order of detention. (14) There is delay in passing the detention order. (15) The Sponsoring Authority has kept back various important documents from the detaining authority. (16) The ground of detention averred in the detention order is based on retracted statement of all the petitioners and codetenu. There is no legal evidence against the petitioners. 5. The affidavit-in-reply on behalf of respondent is filed by the Authority wherein they have opposed the petition on all the grounds and has submitted that the detention order is legal and valid and it was passed after subjective satisfaction of the authority on the materials laid before him and the materials which include the seizure of documents, email chats, Accounts, dairy maintained by the accused, materials emerged from the statement of the travel agents of the details of the travel by concerned persons in same flight and the fact averred from the statement which were recorded under Section 108 of the Customs Act, which are admissible in evidence, h....
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....d Mr. Harsheel D. Shukla, learned advocate for respondent No.1 and 2 at length. Perused the materials placed on record, taken into consideration the written suhbmissions filed by both the sides and rejoinder written submission of the Petitioners and the decisions cited at bar. 9. Mr. Sanjanwala, learned Sr. Counsel for the petitioners submitted that the detention order under challenge is patently bad and illegal and it is against the safeguards envisaged by COFEPOSA Act and Article 22(5) of the Constitution of India. Mr. Sanjanwala, learned Sr. Counsel has also submitted that there is no direct involvement of the detenu of the present case but the role has been attributed on the two retracted statement of the two detenu for arriving to the conclusion and arising at a prognosis for future that the detenu is likely to indulge into prejudicial activity again. It is submitted by Mr. Sanjanwala, learned Sr. Counsel that the two codetenu on whose statements reliance is placed namely Jignesh Savaliya and Mr. Lokesh Sharma have retracted their statements by filing affidavits immediately before the Magistrate when they were produced before him and they have clearly stated that their stat....
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....ubhai Goswami has been released by the Hon'ble Supreme Court and Mr. Mehul Bhimani has been released by the Delhi High Court. While referring both these decisions, the learned Sr. Counsel for the petitioners has submitted that the whole theory of conspiracy of smuggling does not survive. He has also submitted that the detenu was not a party to the conspiracy to smuggled gold and they were other persons which are mentioned in the grounds. Learned Sr. Counsel has also submitted that the present petitioner is in no way connected with the socalled conspiracy and smuggling of gold and there is no nexus between the earlier transaction with the present one. 9.3 Mr. Sanjanwala, learned Sr. Counsel for the petitioner has also submitted that admittedly, in the present case, for the allegations made for all the trips excluding the last 2019 tips, there is not even an allegation that there were any such trips in which the gold was seized. According to learned Sr. Counsel, unless the gold is seized, it cannot be confiscated and, therefore, it would not amount to smuggling. While referring Section 111 and 113 of the Customs Act, learned Sr. Counsel has submitted that when the goods have n....
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...., it is a colourable exercise of powers and the punitive detention was resorted to. 9.7 While inviting the attention of this Court regarding the various cases, learned Sr. Counsel for the petitioners has submitted that at the time of passing of impugned order of detention, the detenu Mr. Lokesh Sharma was already in judicial custody as he was arrested on 4.6.2019 and his Bail Application was rejected by the Sessions Court on 6.7.2019 and in reply to the Bail Application on 2.7.2019, no apprehension is expressed that if released on bail, the detenu is likely to indulge into same activity. According to him, the default bail was granted on 29.8.2019. 9.8 While inviting the attention of this Court to various Panchnama and statements, learned Sr. Counsel has submitted that nothing was found in the premises of the petitioner and it clearly show that there was no involvement of the present petitioner. He has also contended that the material seized by drawing panchnama are not of such a nature to connect the present accused with the socalled activity of smuggling. 9.9 Regarding Constitutional right under Article 22(5) of the Constitution of India and also Statutory right under Sec....
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....impugned orders of detention passed against each petitioners. FURTHER SUBMISSIONS IN SCA NO. 23147 OF 2019 (PETITION OF MR. LOKESH SHARMA) 10. In addition to the aforesaid general submissions made by Mr. Sanjanwala, learned Sr. Counsel for the petitioners pertaining to all the petitioners, has also made further submission in relation to detenu Mr. Lokesh Subhash Sharma and has submitted that when the detention order was passed the detenu was already arrested on 04.6.2019 and his bail appplication was rejected by Sessions Court on 6.7.2019. He has also submitted that in reply to the bail Application, the detenu, on 2.7.2019, no apprehension is expressed that if released on bail, the detenu is likely to indulge in same activity. He has further submitted that the documents which are referred to by the Authority are totally illegible and therefore it has affected the right of the detenu to make effective representation under Article 22 of the Constitution of India. 10.1 Mr. Sanjanwala, learned Sr. Counsel for the petitioners has also contended that as per the settled law, however grevious it may be, detention cannot be ordered on the single incident. For this argument, he has ....
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....very first available opportunity and, therefore, those statements cannot be used for the purpose of passing preventive detention order against the detenu. 11.1 Mr. Sanjanwala, learned Sr. Counsel has also submitted that the detenu is not a party to such smuggling. He has also submitted that the detenu has not done any act or ommission with regard to gold and that she has not acquired possession of any smuggled goods. While drawing attention of this Court to Wechat message on 8.10.2018, the learned Sr. Counsel has submitted that the only allegation made in the ground of detention is that there was Wechat message on 8.10.2018, however, no gold has been found between 19.6.2018 and 5.10.2018 and, therefore, the order of detention is bad in law. 11.2 Mr. Sanjanwala, learned Sr. Counsel has also submitted that the present detenu has been detained on the ground that there was Wechat message alleged to be sent by codetenu Jignesh Savaliya on 8.10. 2018 and that statement has been retracted by him and even from that date, there is an unexplained delay of more than 8 months. Learned Sr. Counsel has contended that present incident is that of 4.6.2019 and the Order of detention is passed....
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..... 15. Copy of Order dated 27.1.2020 in Writ Petition (Cri.) 388 of 2019 passed by Hon'ble Supreme Court of India in case of Nilesh Parekh v. Union of India & Anr.; 16. Copy of Order dated 3.2.2020 in SCA No. 18941 of 2019 in the case of Sanjaykumar Mulchanbhai Shah v. Union of India passed by Coordinate bench; 17. Copy of the Judgment dated 5.2.2020, passed by te High Court of Delhi in the case of Mehulbhai Rasikbhai Bhimani v. Union of India and Others, in Writ Petition (Cri.) No. 2528 of 2019; 18. Copy of Order dated 27.2.2020 in SCA No. 18938 of 2019 in the case of Jitendrakumar Dhanjibhai Rokad v. Union of India, passed by Coordinate bench; 19. Copy of the Judgment passed by Hon'ble Supreme Court in case of Ankit Ashok Jalan v. Union of India and Ors, passed in Writ Petition (Cri.) 362 of 2019; 20. Pankajkumar Chakrabarty and Others v. State of West Bengal, reported in AIR 1970 SC 97; 21. Harish Pahwa v. State of U.P. and Ors, reported in AIR 1981 SC 1126; 22. Mohinuddin v. District Magistrate, Beed and Others, reported in AIR 1987 SC 1977; 23. Aslam Ahmed Zahire Ahmed Shaikh v. Union of In....
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....paid and there is illegality committed by all the persons against whom the authority has passed detention order. By referring the role of each person, learned ASG Mr. Vyas has submitted that individual petitioners have taken part in smuggling of the gold. Mr. Vyas, learned ASG has also submitted that the gold is restricted item as per Customs Circular and foreign trade policy. Mr. Vyas, learned ASG has also submitted that only the empowered authority can import gold and no other person can import gold. Mr. Vyas, learned ASG has also contended that the preventive detention is only for a restricted period and there is a conflict between right of individual as well as right of society at large. 13.1 While referring the various documents, Mr. DevangVyas, learned ASG has submitted that there are oral evidence in the form of statement of various persons and documents either in electronic and/ or Accounting Book and Diary kept by the concerned persons. Learned ASG has also submitted that there are stringent provisions. He has also contended that on the secret information, Mr. Savaliya and Mr. Lokesh Sharma were arrested on 4.6.2019 with gold of almost 25 kg and during the investigation....
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....ion was supplied on 6.8.2019, clearly within statutory provision as contained in subsection 3 of Section 3 of the COFEPOSA. He has also contended that, thus, there is no delay in supplying the grounds and the stand taken by the Petitioners is not sustainable. 13.5 Regarding Petitioner Rutugna Trivedi and Nitaben Parmar, Mr. Devang Vyas, learned ASG has submitted that their conduct is required to be taken into consideration by this Court as they were arrested on 14.10.2019. He has also contended that these persons have earlier filed Special Civil Application before this Court for seeking direction to the authority that they should not be arrested without following due process of law as envisaged under Criminal Procedure Code and this Court has directed the authority to permit the petitioner to appear through their advocate with rider that advocate should be at a distance wherefrom he can watch/ see but he may not hear what ever has been recorded. Learned ASG has submitted that after passing of such order, the authority has sent almost three summons to Rutugna Trivedi and Nitaben Parmar to remain present for interrogation but they did not care and, therefore, the authority had to ....
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....ted on 4.6.2019 and who had brought the gold from Dubai, which was handed over to him by wife of Mr. Rutugna Trivedi, at Aerobridge of Bay No. 32,Mr. Lokesh Sharmahad handed over the same to Mr. JigneshSavaliya, and upon the instruction of the Officers of the Deputy Commissioner of Customs, Ahmedabad, Mr. Savaliya called Mr. Sharma at Gate No.5 and after searching his baggage, it was found that there was gold. Mr. Devang Vyas, learned ASG has also submitted that there are statement of various staff members of the travel agency as well as the person working at Airport, which clearly suggest that smuggling activities were carried out at the instance of Mr. Rutugna Trivedi and the carrier has smuggled gold at the instance of Mr. Rutugna from his wife at Dubai. While referring the Wechat messages as well as the contents of the Diary, wherein names of various persons have been mentioned and the quantity of the gold and amount is also mentioned, Mr. Vyas, learned ASG has also contended that all these documents establish that the account for smuggling gold were settled through emails. 13.10 Regarding retraction of statements, Mr. Vyas, learned ASG has also submitted that during the hea....
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....8.2019, reference to the State was made on 28.8.2019; report from Advisory Board was dated 14.10.2019 and confirmation was given on 25.10.2019. Mr. Vyas, learned ASG has submitted that there is no delay on the part of detaining authority and the statutory provisions, as contained in Section 3 as well as Section 8 of the COFEPOSA Act are fulfilled strictly by the authority. 13.15 Mr. Vyas,learned ASG has submitted that the basic facts which are narrated in the impugned detention order itself is a ground for detention. While relying on the following authority, learned ASG for the respondent has submitted to dismiss all the three petitions. 14. Mr. Devang Vyas, learned ASG for Mr. Nirzar Desai, learned advocate for respondent has relied on the following decisions: 1. Mukesh Tikaji Bora v. Union of India and Others, reported in (2007) 9 SCC 28 (2 Judges Bench); 2. Ibrahim Nazeer v. State of Tamil Nadu and Another, reported in (2006) 6 SCC 64 (2 Judges Bench); 3. Gurdev Singh v. Union of India, reported in (2002) 1 SCC 545 ( 2 Judges Bench); 4. Rajappa Neelakantan v. State of Tamil Nadu and Others, reported in (2000) 7 SCC 144 ( 2 Judge Bench); ....
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....ased on one ground, it is not necessary to go into the details of the other grounds. While referring to the judgment of the coordinate bench of Justice S.H.Vora in a similar matter, which was arisen out of the same facts and circumstances, Mr. Sanjanwala, learned Senior Counsel has submitted that those judgments squarely applicable to the present facts and on the ground of parity, the present petition needs to be allowed by this Court. Learned Sr. Counsel has also submitted that the other codetenu, who have filed the writ petition before the Delhi High Court, have been released on the same ground of delay by following the judgment passed by Hon'ble Supreme Court in case of Pramodgiri Goswami. Mr. Sanjanwala, learned Sr,. Counsel has also stated that reliance placed by Mr. Vyas, learned ASG on the provisions of Section 111 and 113 of the Customs Act is totally misconceived as there is no any act or omission by the detenu and if it is not so, the goods will not be liable to be confiscated under Section 111 or Section 113 of the Customs Act. According to him, there is no allegation that there were any such trips in which gold was seized. According to him, unless the gold is seized it ....
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....ntion order. 15.4 Regarding decision relied upon by Mr. DevangVyas, learned ASG, the learned Senior Counsel Mr. Sanjanwala has submitted that the same are not on the points and they are distinguishable on facts. Learned Senior Counsel has prayed to set-aside the impugned detention Order in relation to the respective Petitions and Petitioners be released immediately from the detention. 15.5 Mr. Sanjanwala, learned Senior Counsel for the petitioners has submitted in his rejoinder that it is the duty of the government counsel to satisfy that there was satisfactory material to sustain the detention order. According to him, even if no ground is raised by the detenu, it is the duty of the government to satisfy the Court regarding fulfillment of all the procedural aspect in strict manner. Regarding non-supplying of the grounds under the detention order, the learned Senior Counsel has submitted that in the impugned detention order, only facts have been narrated but no ground whatsoever is assigned to substantiate the detention order. He has also stated that in present petitions, no procedure safeguard is proved by the authority. He has also contended that the argument of learned ASG ....
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....harged on bail on 6.1.2004. Several inquiries were conducted both inside and outside India. A report in relation to overseas inquiry was received on 12.5.2004. On 25.6.2004 proposal of detention was sent which was approved on 2.12.2004. On 20.12.2004, the authorities of the DRI stated that transactions after 11.10.2003 were not under scrutiny. Furthermore, the authorities of the DRI by a letter dated 28.02.2005 requested the Bank to defreeze the bank accounts of Appellants. The order of detention was passed on 5.4.2005. 8. Indisputably, delay to some extent stands explained. But, we fail to understand as to why despite the fact that the proposal for detention was made on 2.12.2004, the order of detention was passed after four months. We must also notice that in the meantime on 20.12.2004, the authorities of the DRI had clearly stated that transactions after 11.10.2003 were not under the scrutiny stating: "....In our letter mentioned above, your office was requested not to issue the DEPB scripts to M/s. Girnar Impex Limited and M/s. Siri Amar Exports, only in respect of the pending application, if any, filed by these parties up to the date of action i.e. 11.10.2003....
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.... the detenu under Art. 22 (5) was reiterated by this Court in Khairul Haque v. The State of West Bengal, W. P. No. 246 of 1969, decided on Sept. 10, 1969* in these words : "It is implicit in the language of Art. 22 that the appropriate Government, while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation. It has to consider the representation on its own without being influenced by any such view of the Board. There was, therefore, no reason for the Government to wait for considering the petitioners representation until it had received the report of the Advisory Board. As laid down in Sk. Abdul Karim v. State of West Bengal (AIR 1969 SC 1028) (supra), the obligation of the appropriate Government under Art, 22 (5) is to consider the representation made by the detenu as expeditiously as possible. The consideration by the Government of such representation has to be, as aforesaid, independent of any opinion which may be expressed by the Advisory Board. The fact that Art. 22 (5) enjoins upon the detaining authority to afford to the detenu the earliest opportunity to make a representation must implicitly me....
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.... the detention order was only for abetting the smuggling of goods. The satisfaction recorded in the Gurmukhi version of the grounds for detention is not consistent with the purpose for detention found in the detention order. It left the detenu confused whether he should represent against the grounds in the detention order or the satisfaction recorded in the grounds of detention. We are, therefore, of the opinion that because of this variance the detenu was unable to make an effective representation against his detention and was thereby denied his right under Art. 22(5) of the Constitution". 19. In the case of Ashadevi v. K. Shivraj (supra), the two Judges bench of the Hon'ble Supreme Court of India has observed in Para6 that: "It is well settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority before issuing the detention order." 20. In the case of R. Prakash v. State of Karnataka (supra), the two Judges be....
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....nd others (supra), the two Judges bench of the Hon'ble Supreme Court of India has observed in Para7 that: "7. It is well settled in our Constitutional framework that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order. A bald statement is merely an ipso dixit of the officer. If there were cogent materials for thinking that the detenu might be released....
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.... detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not realy and genuinelly satisfied as regards the necessity for detaining the detene with a view to preventing him from acting in a prejudicial manner." 25. The above decision has been followed in the case of Rajinder Arora v. Union of India and others (supra). 26. The Hon'ble Supreme Court of India, in the case of Pramodgiri Premgiri Goswami v. Union of India & Ors. (supra), Writ Petition (Cri) No. 359 of 2019 dated 27.1.2019, has observed and held as under: "...In the grounds of detention it is clearly stated that the petitioner appears to be part of a ring of smugglers, and between March, 2013 and March, 2015, 731.705 kgs of gold were seized, which trace themselves back to this ring, worth around Rs. 204.60 Crores. The petitioner's statement was also recorded on 24/25.09.2019 which, however, was retracted on 27.09.2019. After hearing Mr. Saurav Kirpal, learned Advocate for the petitioner and Mr. K.M. Nataraj, learned Additional Solicitor General for the ....
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....lic order, security of the country etc. are in danger of a breakdown. But while recognizing the need of preventive, detention without recourse to the normal procedure according to. law, it provides at the same time certain restrictions on the, power of detention both legislative and executive which it considers as minimum safeguards to ensure that the power of such detention is not illegitimately or arbitrarily used. The power of preventive detention is thus acquiesced in by the Constitution as a necessary evil and is, therefore, hedged in by diverse procedural safeguards to minimise as much as possible the danger of its misuse. It is for this reason that Art. 22 has been given a place in the Chapter on guaranteed rights". 31. In the case of Harish Pahwa v. State of U.P. and Ors (supra), the Hon'ble Apex Court has observed as under; "3. ......We may make is clear, as we have done on numerous earlier occasions, that this Court does not look with equanimity upon such delays when the liberty of a person is concerned. Calling comments from other departments, seeking the opinion of Secretary after Secretary and allowing the representations to lie without being attended t....
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....n behalf of the Government in such matters: Niranjan Singh v. State of Madhya Pradesh2, Habibullah Khan v. State of West Bengal3, Jagdish Prasad v. State of Bihar and another4 and Mohd. Alam v. State of West Bengal. 6. .....When life and liberty of a citizen are involved, it is expected that the Government will ensure that the constitutional safeguards embodied in Art. 22(5) are strictly observed. We say and we think it necessary to repeat that the gravity of the evil to the community resulting from antisocial activities can never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws. The history of personal liberty is largely the history of insistence on observance of the procedural safeguards" 33. In case of Aslam Ahmed Zahire Ahmed Shaikh v. Union of India and others (supra), the Hon'ble Supreme Court has observed as under : "7. It is neither possible nor advisable to lay down any rigid period of time uniformly applicable to all cases within which period the representation of detenu has to be disposed of with reasonable expedition but it must necessa....
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....rity and submitted to the Advisory Board during pendency of the reference before it. It is difficult to spell out such an inference from the contents of Article 22(5) in support of the contention of the learned Solicitor General. The contents of Article 22(5) as well as the nature of duty imposed thereby on the detaining authority support the view that so long as there is a representation made by the detenu against the order of detention, the aforesaid dual obligation under Article 22(5) arises irrespective of the fact whether the representation is addressed to the detaining authority or to the Advisory Board or to both. The mode of address is only a matter of form which cannot whittle down the requirement of the Constitutional mandate in Article 22(5) enacted as one of the safeguards provided to the detenu in case of preventive detention". 37. In case of Usha Agarwal v. Union of India and others (supra), the Hon'ble Supreme Court has observed as under: " 11. A detention under COFEPOSA Act is anticipatory and preventive. It is neither punitive nor curative. Preventive detention being one of the two exceptions to the constitutional protection under Article 22 against....
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....ia. (Criminal Writ Petn. No. 4344 of 1980 decided on 24101980: (reported in 1980 Cri LJ 1487). In both these cases, this Court has taken the view that on a proper construction of Article 22 (5) of the Constitution, the service of the grounds of detention on the detenu can be complete only if they are accompanied by the documents or materials on which the order of detention is based, for then alone will the detenu be able to make an effective representation. In other words, if the documents which form the basis of the order, of detention are not served on the detenu along with the grounds of detention, in the eye of law there will be no service of the grounds of detention and that circumstance would vitiate his detention and make it void ab initio" 39. In the case of Mukesh Tikaji Bora v. Union of India and Others (Supra), the Hon'ble Supreme Court has observed in Para10 as under: " 10. At this juncture it would be appropriate to take note of what was stated by this Court in Sadhu Roy v. The State of West Bengal. In that case final police report terminated the criminal proceedings. The question was whether in such an event order of detention can be passed. This Court....
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....etention order suffers from non-application of mind by the detaining authority is not a matter to be examined according to any straitjacket formula or set principles. It depends on the facts and circumstances of the case, the nature of the activities alleged against the detenu, the materials collected in support of such allegations, the propensity and potentiality of the detenu in indulging in such activities etc. The Act does not lay down any set parameters for arriving at the subjective satisfaction by the detaining authority. Keeping in view the purpose for which the enactment is made and the purpose it is intended to achieve, Parliament in its wisdom, has not laid down any set standards for the detaining authority to decide whether an order of detention should be passed against a person. The matter is left to the subjective satisfaction of the competent authority." 42. In the case of Rajappa Neelakantan v. State of Tamil Nadu and Others (supra), the Hon'ble Supreme Court has observed in Para7 as under: "7.....It is not the law that whenever there is any delay the detention order would be vitiated. The law is that the delay should not be unexplainable and that th....
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.... governed by the rule of law, the drastic power to detain a person without trial for security of the State and/or maintenance of public order, must be strictly construed. This Court, as the guardian of the Constitution, though not the only guardian, has zealously attempted to preserve and protect the liberty of a citizen. However, where individual liberty comes into conflict with an interest of the security of the State or public order, then the liberty of the individual must give way to the larger interest of the nation". 43.In the minority opinion, G.T. Nanavati, J. although differed with the view of majority on the question of law but he also noted: "11. the distinction between preventive detention and punitive detention has now been well recognised. Preventive detention is qualitatively different from punitive detention/sentence. A person is preventively detained without a trial but punitive detention is after a regular trial and when he is found guilty of having committed an offence. The basis of preventive detention is suspicion and its justification is necessity. The basis of a sentence is the verdict of the court after a regular trial. When a person is pre....
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....s defined under clause (39) of Section 2 of the Customs Act, 1962 which provides that "smuggling" in relation to any act or omission will render such goods liable to confiscation under Section 111 or Section 113.Section 111 contemplates confiscation of improperly imported goods and Section 113 contemplates confiscation of goods attempted to be improperly exported. This has nothing to do with the penal provisions i.e. Sections 135 and 135A of the Customs Act which provide for punishment of an offence relating to smuggling activities. Hence, to contend that for exercising power under the COFEPOSA Act for detaining a person, he must be involved in criminal offence is not borne out by the said provisions. 10. The other important aspect is that the COFEPOSA Act and FEMA occupy different fields. The COFEPOSA Act deals with preventive detention for violation of foreign exchange regulations and FEMA is for regulation and management of foreign exchange through authorised person and provides for penalty for contravention of the said provisions. The object as stated above is for promoting orderly development and maintenance of foreign exchange market in India. Preventive detention la....
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....idual freedom and is not seen as compatible with rule of law, yet the framers of the Constitution placed the same in Part III of the Constitution. While giving to an individual the most valuable right - personal liberty - and also providing for its safeguard, the Constitution has perceived preventive detention as a potential solution to prevent the danger to the state security. The security of the State being the legitimate goal, this Court has upheld the power of the Parliament and State Legislatures to enact laws of preventive detention. The Court has time and again given the expression 'personal liberty' its full significance and asserted how valuable, cherished, sacrosanct and important the right of liberty given to an individual in the Constitution was and yet legislative power to enact preventive detention laws has been upheld in the larger interest of state security. " 61. Section 3 of COFEPOSA provides for power to make orders detaining certain persons. Subsection (1) thereof to the extent it is relevant, it reads as follows : ".3 Power to make orders detaining certain persons (1) The Central Government or the State Government or any officer of the Central....
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....tion of the detenu is necessary shall be supplied to him" From the aforesaid authorities it is clear that the detenu has a right to be supplied with the material documents on which the reliance is placed by the detaining authority for passing the detention order but the detention order will not be vitiated, if the document although referred to in the order is not supplied which is not relied upon by the detaining authority for forming of its opinion or was made basis for passing the order of detention. Crux of the matter lies in whether the detenue's right to make a representation against the order of detention, is hampered by non-supply of the particular document. 45. In the case of State of Tamil Nadu Through Secretary to Government, Public ( Law and orderF) and Another v. Nabila and Another (supra), the Hon'ble Supreme Court has observed in Para12 as under: "12. Indisputably, the object of law of preventive detention is not punitive, but only preventive. In case of preventive detention no offence is to be proved nor is any charge formulated. The justification of such detention is suspicion and reasonability and there is no criminal conviction which c....
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.... currency in future." Therefore, it is evident that the Detaining Authority while passing the detention orders was aware of the fact that the detenus are actually in custody; that there is a real possibility of their being released on bail; and that on being so released they would in all probability indulge in prejudicial activities and therefore it is essential to prevent them from smuggling of gold and foreign currency in future". "44. As per catena of decisions of this Court, even if a person is in judicial custody, he can be detained under the relevant provisions of the concerned Act, like COFEPOSA etc. However, there must be a proper application of mind and the Detaining Authority must have been subjectively satisfied on considering the relevant material that there is a reason to believe that there is a real possibility of detenus being released on bail and that on being so released the detenus will in all probability indulge in prejudicial activities. In the recent decision, this Court in the case of Dimple Happy Dhakad (supra) had an occasion to consider the aforesaid aspect and after considering the decisions of this Court in the cases of Kamarunnisa (supra); Union....
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....d take that factor into account while making the order; but, even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made even in anticipation to operate on his release. This appears to us, to be the correct legal position." " 49. In the case of Kamarunnissa (supra), this Court concluded as under: "(1) A detention order can validly be passed even in the case of a person who is already in custody. In such a case, it must appear from the grounds that the authority was aware that the detenu was already in custody. (2) When such awareness is there then it should further appear from the grounds that there was enough material necessitating the detention of the person in custody. This aspect depends upon various considerations and facts and circumstances of each case. If there is a possibility of his being released and on being so released he is likely to indulge in prejudicial activity then that wou....
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.... orders cannot be quashed on this ground. It is to be noted that the detenus have been granted bail by the Court on the very date the orders of detention were quashed by the High Court, i.e., on 2.8.2019. Therefore, the apprehension in the mind of the Detaining Authority that the detenus are likely to be released on bail was well founded and fortified. Therefore, the High Court has fallen in error in quashing and setting aside the detention orders on the ground that 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". 47. In the case of Gautam Jain v. Union of India (supra), two Judges Bench of the Hon'ble Supreme Court has observed in Para18, 19, 20, 22 as under: "18. ....Both the parties are at adidem that if the detention order is based on more than one grounds, independent of each other, then the detention order will still survive even if one of the grounds found is nonexisting or legally unsustainable...". 19. In order to hav....
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.... "18. ... From these decisions it is clear that while the expression "grounds" in Article 22(5) , and for that matter, in Section 3(3) of the COFEPOSA, includes not only conclusions of fact but also all the 'basic facts' on which those conclusions are founded, they are different from subsidiary facts or further particulars of these basic facts. The distinction between 'basic facts' which are essential factual constituents of the 'grounds' and their further particulars or subsidiary details is important. While the 'basic facts' being integral part of the 'grounds' must, according to Section 3(3) of COFEPOSA "be communicated to the detenu, as soon as may be, after the detention, ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than 15 days from the date of detention", further particulars of those grounds in compliance with the second constitutional imperative spelled out from Article 22(5 ) in Khudi Ram's case, are required to be communicated to the detenu, as soon as may be practicable, with reasonable expedition. It follows, that if in a case the socalled "....
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....son that detailed grounds on which the detention order is passed are supplied to the detenue. Various circumstances which are given under subsection (1) of Section 3 of the Act, on the basis of which detention order can be passed, cannot be treated as 'grounds'. On the contrary, State of Gujarat v. Chamanlal Manjibhai Soni, reported in (1981) 2 SCC 24 case clarifies that there is only one purpose of the Act, namely, preventing smuggling and all other grounds, whether there are one or more would be relatable to the various activities of smuggling. This shows that different instances would be treated as different 'grounds' as they constitute basic facts making them essentially factual constituents of the 'grounds' and the further particulars which are given in respect of those instances are the subsidiary details. This view of ours gets strengthened from the discussion in Vakil Singh's case where 'grounds' are referred to as 'materials on which the order of detention is primarily based'. The Court also pointed out that these 'grounds' must contain the pith and substance of primary facts but not subsidiary facts or evidential details....
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.... released, he is likely to indulge in such prejudicial activities and therefore, it is necessary to detain him in order to prevent him from engaging in such activities. 45. The court must be conscious that the satisfaction of the detaining authority is "subjective" in nature and the court cannot substitute its opinion for the subjective satisfaction of the detaining authority and interfere with the order of detention. It does not mean that the subjective satisfaction of the detaining authority is immune from judicial reviewability. By various decisions, the Supreme Court has carved out areas within which the validity of subjective satisfaction can be tested....." 49. Upon consideration of the provisions of the COFEPOSA Act as well as Customs Act and the decisions referred to above, the following settled legal propositions emerge: 1. The Constitution recognizes preventive detention though it takes away the liberty of a person without any enquiry or trial. 2. The Court has time and again given the expression "personal liberty" it full significance and asserted how valuable, cherished, sacrosanct and important the right of liberty given to an individual i....
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....The detaining authority may further satisfy that the detenu is to be released from custody under prejudicial activities of the detenu indicating that if he is released, he is likely to indulge in such prejudicial activities and, therefore, it is necessary to detain him in order to prevent him from engaging in such activities. 14. Preventive detention results in negation of personal liberty of an individual; it deprives an individual freedom and is not seen as compatible with the rule of law, yet the Framers of the Constitution placed the same in Part III of the Constitution. 15. It is a trite law that all documents which are not material are not necessary to be supplied. What is necessary to be supplied is the relevant and the material documents, but, thus, all relevant documents must be supplied so as to enable the detenu to make an effective representation which is his fundamental right under Article 22(5) of the Constitution of India. Right to make an effective representation is also a statutory right. 16. If the activity of any person is person is prejudicial to the conservation or augmentation of foreign exchange, the authority is empowered to make a....
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.... that the failure to supply the documents had impaired his right, however, slight or insignificant it may be. 50. The COFEPOSA Act, 1974 has been enacted for the purpose of preventive detention in certain cases for the purposes of conservation and augmentation of foreign exchange and prevention of smuggling activities and for matters connected therewith. As per the object of the Act, as there were violations of foreign exchange regulations and smuggling activities were having an increasingly deleterious effect on the national economy and thereby a serious adverse effect on the security of the State, to prevent such activities and for providing detention of persons concerned in any manner therewith by preventive detention, the Act has been enacted, which has come into force on 30.12.1974. 51. The importance of foreign exchange in the development of a country needs no emphasis. The conservation and augmentation of foreign exchange continued to be an important thing. All though, contravention of its provision is not regarded as a criminal offence yet it is an illegal activity jeopardizing the very economic fabric of the country. For violation of Foreign Exchange Regulation, pena....
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....ment, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from- (i) smuggling goods, or (ii) abetting the smuggling of goods, or (iii) engaging in transporting or concealing or keeping smuggled goods, or (iv) dealing in smuggled goods otherwise than by engaging intransporting or concealing or keeping smuggled goods, or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, it is necessary so to do, make an order directing that such person be detained: (2) When any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order. (3) For the purposes of clause (5) of article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds ....
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....e object of the Act, it needs to be observed that the word "or" is used here is for disjunctive purpose. Thus, the purpose as enumerated in clause (i) to (v) of subPage section(1) of Section 3 it itself separate one. At the same time, if against any person detention order is passed for more than 1 or 2 grounds, then that fact alone cannot be treated an illegal exercise or colourable exercise of power by the detaining authority. 58. At this stage, it is worthwhile to refer to Section 5(A) which has been added w.e.f 01.07.1975. The provisions contained therein are as under: Section 5(A) " Grounds of detention severable Where a person has been detained in pursuance of an order of detention under subsection (1) of section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly- (a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are- (i) vague, (ii) nonexistent, (iii) not relevant, (iv) not connected or not proximately connected with such person, ....
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....al and valid. 60. The relevant provisions prescribing time limit for making reference to the Advisory Board and maximum period for deciding the same by the Advisory Board are contained in Section 8 of the COFEPOSA Act. The relevant provisions reads as under: SECTION 8: "Advisory Board: For the purposes of subclause (a) of clause (4), and subclause (c) of clause (7) of Article 22 of the Constitution,- (a) xxx xxx xxx; (b) save as otherwise provided in section 9, the appropriate Government shall, within five weeks from the date of detention of a person under a detention order make a reference in respect thereof to the Advisory Board constituted under clause (a) to enable the Advisory Board to make the report under sub-clause (a) of clause (4) of article 22 of the Constitution; (c) the Advisory Board to which a reference is made under clause (b) shall after considering the reference and the materials placed before it and after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government, or from the person concerned, and if, in a....
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....as been defined in clause (e) of Section 2 of COFEPOSA Act, wherein it is provided that smuggling has the same meaning as in clause 39 of Section 2 of Customs Act, 1962 or its grammatical variation and cognate expression shall be construed accordingly. Thus, which activity should be considered as smuggling for the purpose of deciding the activity which may fall in the definition of smuggling, one has to refer to clause 39 of Section 2 of the Customs Act, 1962. 61.1 On perusal of the clause 39 of Section 2 of Customs Act, 1962, it reveals that the word "smuggling" has been defined in a manner that smuggling, in relation to any goods means any act or omission which would render such goods liable to confiscation under Section 111 or Section 113. 61.2 Now, Section 111 of the Customs Act provides for confiscation of improperly imported goods, etc. According to the provisions contained in Section 111, the numbers of various situation have been provided wherein if those goods are brought from a place outside India is liable to be confiscated, which include prohibited or dutiable goods, etc. At the same time, Section 113 of the Customs Act, the provision is made for the export of goo....
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....ned, he has been attributed the role of carrier. There are other persons namely Divya Kishor Bhundia, Shri Dharmagna Arvindkumar Trivedi, Shri Bhargav Kanubhai Tanti, Mr. Birendra Singh Yadav, Shri Mukeshkumar Bhaishankarbhai Trivedi, Shri Vipul Navinchandra Joshi are treated as Carriers. The role attributed to Shri Jigensh Savaliya who has filed separate Special Civil Application, is regarded as instrumental in taking gold out of the Airport premises after collecting the same from carrier. Thus, out of all of these persons, present Petitioners i.e. Rutugna Trivedi, Lokesh Sharma and Nitaben Parmar have preferred these Petitions. 64. At this stage, it is pertinent to note that allegation of authority against the financer namely Jitendra Rokad and Mehul Bhimani, both of them have been released from the detention order either by Hon'ble Delhi High court or by this Court on the ground that there is no proximate link between the activities of 2014 and 2019. It appears from the copy of the both the decisions that delay in passing the order has resulted in release of the detenu who are alleged to have been part of the entire ring of smuggling of gold from Dubai to India. 65. It....
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....lowing residential and business premises and this exercise was started from 4.6.2019 till 1.7.2019. It also appears from the grounds that the detaining authority has relied upon the statement of the following persons: 1. Mr. Jignesh Govindbhai Savaliya was recorded on 5.6.2019; 2. Mr. Lokesh Sharma was recorded on 5.6.2019; 3. Ms. Rekha Avinash Sharma, Airport Operations Manager, Globe Ground India Pvt. Ltd. Ahmedabad was recorded on 5.6.2019; 4. Samir Yusufbhai Sama, Supervisor with M/s. Aroon Aviation Pvt. Ltd, SVPI Airport, Ahmedabad was recorded on 18.6.2019; 5. Illiyajkhan A Pathan, Loader with M/s. Aroon Aviation Pvt. Ltd., SVPI Airport, Ahmedabad was recorded on 25.6.2019; 6. Tejas Kanubhai Dayatar, Ramp Service Agent, Air India Air Transport Service Ltd, Ahmedabad was recorded on 6.6.2019; 7. Shri Jigar Kapadia, Senior Security Agent, Air India Air Transport Service Ltd, (AIATSL) at SVP International Airport, Ahmedabad was recorded on 6.6.2019; 8. Jitendrakumar Dhanjibhai Rokad was recorded on 28.6.2019 and 29,6,2019; 9. Bhimani Mehul Rasikbhai was recorded on 28.6.2019 and 29.6.2019; ....
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....the basis of the aforesaid decisions of the Hon'ble Supreme Court in case of Pramodgiri Premgiri Goswami v. Union of India and Ors (Supra) and in the case of Mehulbhai Rasikbhai Bhimani v. Union of India and Ors (Supra) by Hon'ble Delhi High Court, the coordinate bench of this High Court has also passed the order of release of detenu Jitendrakumar Rokad, who is alleged to be financer and first prejudicial act was recorded in the month of January, 2014 to July, 2015 and the detention order was passed on 2.8.2019, which is after a period of four years. It was also observed therein that the case of petitioner i.e. Jitendra Rokad also stands on the same footing and thus the matter was disposed of as there was no proximity link and there was inordinate and unexplained delay in passing the detention order. 71.1 Heavy reliance has been placed on aforesaid two decisions for grant of same relief on the ground of parity by the petitioners herein. 72. Regarding application of principle of parity, it is pertinent to note that in the case of Premgiri Pramodgiri Goswami v. Union of India and Others (supra), it appears that said matter is not similar to present matter as there was seizure o....
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....uggling of gold from Dubai to India. Even if the submission made on behalf of the petitioners regarding delay in passing the detention order is believed for the sake of arguments, then delay would come to 59 days only. Such delay can be assailed by the petitioner of Special Civil Application No.23147 of 2019 viz. Mr.Lokesh Sharma only, as he was arrested but this ground of delay cannot be made applicable in case of other two petitioners, as they have evaded their interrogation and arrest. At the same time, though Mr.Lokesh Sharma can assail the delay of 59 days in passing the detention order, the fact remains that Shri Lokesh Sharma, petitioner of Special Civil Application No.23147 of 2019 was arrested on 4.6.2019 at the SVPI Airport, Ahmedabad, and against whom detention order was passed on 2.8.2019 and the same was served to him on 3.8.2019 and the grounds thereof were served on 6.10.2019 and it was confirmed by the authority on 25.10.2019. Considering the provisions of Section 8B and 8C of the COFEPOSA Act, which are already referred to herein above, if we consider the date of detention order being 2.8.2019 and finality of detention order by the authority on 25.10.2019, the span....
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....o note that the detaining authority has also relied upon the statement of one Mr.Vijay Raval alias Vijay, who is working as Sales Executive in M/s.Akhandjyot Jewel LLP, which is owned by Mr.Rutugna Trivedi. As stated in his statement recorded under Section 108 of the Customs Act, 1962 on 13th June 2019, he had met Mr.Jignesh Savaliya at the function of M/s.Akhandjyot Group; that thereafter as per the instruction of his boss, Mr.Rutugna Trivedi, he had gone to meet Mr.Jignesh Savaliya many a times; that one day at the time of going home from his office situated at Manek Chawk, Mr.Rutugna Trivedi called him and gave mobile number 90999 88877 of Mr.Jignesh Savaliya and asked him to contact Mr.Jignesh Savaliya on his mobile and collect one parcel from him and hand over said parcel to Mr.Rutugna Trivedi at his office premises; that Mr.Jignesh Savaliya came and gave him one backpack; that he took the backpack and felt that it was very heavy; that he immediately came to know that it was containing gold bars; that he has also realized that these are smuggled gold bars as M/s.Akhandjyot Group never imported gold bars officially, and Mr.Jignesh Savaliya was working at International Airport; ....
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....s to take the nine brown coloured packets containing gold bars outside the Airport Terminal by exiting from the cargo gate of the airport and hand over the same to either Shri Rutugna Trivedi or any person sent by him outside the Airport Terminal. "................ Thereafter, the officers accompanied we the panchas and Shri Jignesh Savaliya proceed to Gate No.5 of the arrival side of the airport. After about 5 minutes one person comes at gate no.5 and introduces himself as Lokesh Sharma holding Indian Passport No.R2966583. Mr.Jignesh Savaliya as well as Mr.Lokesh Sharma both admit that they know each other." "Here, in presence of we the panchas, the AIU officer asks the passenger Mr.Lokesh Sharma to open his bags and show it to them. On this the passenger opens his black colour trolley bag and request the officer to check the bag. During checking the black colour checkin trolley bag, some boarding passes are recovered. Also the AIU officers recovered one business card from his checkin trolley bag. On asking about the business card, the passenger Shri Lokesh Sharma informs that this business card is of Mr.Rutugna Arvindkumar Trivedi, who is the owner of the said r....
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.... were summoned thrice by the authority, they have not appeared and only after written direction by this Court, they have appeared before concerned authority. Therefore, the ground of delay in considering representation, as raised by them is not acceptable in the peculiar facts and circumstances of this case, as they themselves have tried to see that they are not arrested. 76. One of the grounds raised by the petitioner is regarding non-supply of the material documents to them. It is settled law that it is not the rule that each and every document to be supplied to the detenu, which has been referred to by the authority. The documents which are relied upon by the authority for the grounds of detention and which are material are required to be supplied to the detenu and ancillary document may not be supplied by the detaining authority. In this case, so far as the petitioner Neetaben Parmar is concerned, the documents in the form of pen drive and Vchat messages have been seized from her premises and it was well within her knowledge. So far as ground raised by other petitioners is concerned, on perusal of the material on record, it clearly appears that necessary material documents h....