TaxTMI 
TaxTMI 
2021 (8) TMI 679
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.... Gupta, the petitioner in W.P.(CRL.) 1829/2020 and Amit Pal Singh, the petitioner in W.P.(CRL.) 1830/2020 (hereinafter collectively referred to as the 'detenu'), praying for quashing of detention orders bearing No. PD-12001/01/2020-COFEPOSA and PD-12001/02/2020COFEPOSA respectively, both dated 21.01.2020, and for further directions that the detenu be set at liberty forthwith. FACTS OF THE CASE:- 2. The relevant facts qua the detenus, as are necessary for the adjudication of the subject writ petitions are briefly encapsulated as follows: - i) Both the detenus are statedly employees of a company namely, M/s. Its My Name Private Limited (hereinafter referred to as 'IMNPL'). ii) IMNPL is a government recognized three star export house, engaged in the business of manufacturing, import and export of gold jewellery and other allied bullion items. iii) IMNPL has been duly issued an Import Export Code (IEC) bearing No.0514037342 from the office of the Joint Director, Directorate General of Foreign Trade (hereinafter referred to as 'DGFT') and is stated to have earned foreign exchange valuing around 150 million USD for the country. iv) IMNPL has also....
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....xhibition to be held from 18.02.2019 to 30.03.2019 from M/s. M.N. Khan Jeweller, based in United Arab Emirates (UAE), duly signed by its director Mr. Mohd. Nashruddin Khan; and in pursuance thereto had approached GJEPC seeking permission for participation, which was duly allowed vide letter dated 15.02.2019 for the entire duration of the exhibition, as afore-noted. xiii) In pursuance to this invitation, detenu Amit Pal Singh was entrusted with the work to hand-carry (personal carriage) the gold jewellery to UAE for the purpose of exhibition, in accordance with the permission granted and in compliance with the provisions applicable. xiv) Export of the gold jewellery was done by IMNPL after filing the requisite shipping bills along with necessary documents. xv) The subject gold was duly assessed by the Customs at the time of clearance for export; the photographs of the goods being exported through hand-carry, were also checked and seen by the Customs Jewellery Appraiser posted at the Export Shed Air Cargo; and after verification of the same, the said photographs were signed and appraised by the Appraiser and then given back in sealed cover to the person han....
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....n, who was the director of M/s. M.N. Khan Jeweller, UAE and was travelling on the same flight as Amit Pal Singh (the detenu) was also intercepted and detained by the DRI. xxiv) Gopal Gupta detenu, who is employed as a Chartered Accountant by IMNPL was also detained by the DRI vide arrest memo dated 26.04.2019. xxv) Statements of the detenus were recorded on 25.04.2019 under Section 108 of the Customs Act, 1962 (hereinafter referred to as the 'Customs Act') and they were taken into custody by the DRI, who formally placed them under arrest on 26.04.2019. xxvi) It is observed here that, bail was granted to the detenus on 03.06.2019. xxvii) One Vikram Bhasin, who was the Customs Jewellery Appraiser at the IGI Airport, New Delhi was subsequently arrested by the DRI on 31.05.2019 and his statements were statedly recorded by the DRI. The said Vikram Bhasin (Customs Jewellery Appraiser, IGI Airport, New Delhi) was released on bail vide order dated 23.07.2019. xxviii) IMNPL requested the DRI for provisional release of the seized goods, which request was rejected by the ADJ, Adjudication, Delhi vide order dated 04.10.2019. xxix) Before re....
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.... of Entry for import of gold and packing list & invoice for export, preparation/validation of documents pertaining to exhibition export and re-import of M/s Its My Name Pvt. Ltd, in addition to accountancy work and maintaining accounts for sale/purchase of gold in IMNPL. (b) Detenu described the modus operandi vide his voluntary statement recorded under Section 108 Customs Act dated 25.04.2019, whereby the reimported gold jewellery was mis-declared at the time of import, using improper documentation. The Bill of Entry presented to Customs at the time of import was later replaced in the files in collusion with Vikram Bhasin, the then Jewellery Appraiser, IGI Airport, New Delhi, who allegedly used to replace Bill of Entry of large quantity with those of small quantity of gold jewellery in the official records; after clearance of the gold jewellery, which was exported from India and again brought (smuggled) back into India, in the guise of unsold gold jewellery and cleared through Customs by presenting either registered or unregistered manual Bill of Entry qua the reimport of unsold gold jewellery out of gold exported for exhibition; (c) The foreign origin duty free ....
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....; and making several visits from India to Dubai for the purpose of the exhibition of gold jewellery at Dubai on behalf of the firm, IMNPL and by hand-carrying the gold jewellery with him. The said detenu re-imported and smuggled the gold jewellery from Dubai to India (for IMNPL) on each of his visit by using illegal import documentation in the form of illicit Bills of Entry, which had been used multiple times in the past. (d) Detenu specifically smuggled gold jewellery into India, which was declared to be exported to Nepal by M/s. M.N. Khan Jewellers in Dubai, in collusion with Musthafa Kamal, Mohd. Nashruddin and the Customs official at IGI Airport, New Delhi, on his earlier visits on 29.03.2019 and 02.04.2019 on the strength of Custom Gate Pass Serial No.1561 dated 29.03.2019 and 1563 dated 02.04.2019 (e) Detenu was intercepted by DRI officials at IGI Airport on 24.04.2019 when they noticed that M/s. M.N. Khan Jewellers, Dubai has filed declaration before Dubai Customs that 51.362 kgs gold jewellery were exported to Kathmandu, Nepal through hand-carry by Mr.Musthafa Kamal Ramalap and 0.745 kgs gold jewellery was exported to Delhi through hand-carry by the detenu....
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....the present proceedings confirms that Mr. R.P. Singh authored the aforesaid letter. However, the affidavit then goes on to explain that the said letter was authored by Mr. R.P. Singh "...while working in the additional capacity of other vertical i.e. Economic Intelligence of the CEIB...". However, axiomatically no such distinction is discernible from the letter itself. Paragraph 5 of the subject affidavit further states that CEIB is headed by a Director General who is assisted by one Joint Secretary designated as J.S. (COFEPOSA) and two Addl. Directors General. Pertinently, the letter dated 02.09.2019 is signed by Mr. R.P. Singh in his capacity as Joint Secretary and not in any other capacity. As a result, Mr. R.P. Singh was seized of the matter and was sharing intelligence and coordinating between different agencies as on 02.09.2019. Even if it is assumed that Mr. R.P. Singh authored the letter dated 02.09.2019 in "additional capacity of other vertical", though there is no material to suggest so, it is clear that he was actively engaged in the matter for months prior to passing the impugned detention orders and was abreast of the investigation for onward dissemination, coordinatio....
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.... Learned Senior Counsel would further urge that the ground of delay was first urged by the petitioners in the aforesaid writ petitions filed at the pre-detention/pre-execution stage. At that time, the respondents sought to explain the delay in the counter affidavit as follows:- 26.09.2019 Investigation concluded and culminated into Show Cause Notice. 2nd Week Oct.2019 Proposal for invoking COFEPOSA was first 'mooted'. 1st Week Nov. 2019 Further overseas evidence was received from Dubai. 02.01.2020 Proposal was further analysed. 13.01.2020 Proposal was put up to Central Screening Committee (CSC). 14.01.2020 Recommendations of the CSC were submitted to the Detaining Authority. 21.01.2020 Impugned Detention Order was passed. 10. It is also submitted that the gap between October, 2019 and January, 2020 was sought to be explained away by receipt of overseas evidence from Dubai, purportedly in the month of November 2019, as evident from the counter affidavit filed by the respondents in the pre-execution writ petitions and the dates extracted above. Even otherwise, vide order dated 11.09.2020 passed by this Court, dismissing the pre-exe....
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.... 6 of the Customs Act. The effect and consequence of the judgment in the case of Canon India (supra) is that the DRI Officers are not "Proper Officers" under the Customs Act as the said Notification No.40/2012 is invalid, and resultantly non-est. 13. Consequently, DRI Officers are not properly and validly authorized to exercise powers and functions of Customs Officers under the various Sections mentioned in the said Notification No.40/2012. More importantly for the present case, the DRI Officers are not authorized under Sections 100, 103, 106, 106A and 110(1) and 110(3) of the Customs Act, meaning thereby that DRI does not have any power of search, seizure and confiscation of allegedly smuggled goods. Section 110(1) and 110(3) would reveal that only a "Proper Officer" under the Customs Act can exercise the power of confiscation of smuggled goods. Since Notification No.40/2012 has been held to be invalid, DRI Officers were never authorized by law to confiscate the allegedly smuggled goods. If the confiscation in the present case is bad in law and without legal authority, no case of smuggling can be foisted upon the petitioners. Even the Show Cause Notice dated 26.09.2019 is bad i....
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....108 of the Customs Act of the Petitioners and the co-detenu Mohd. Nashruddin Khan, the impugned Detention Orders further rely on the inculpatory statements of 02 more co-accused persons, namely Shri. Vikram Bhasin and Shri. Mahesh Jain. Vikram Bhasin's statements dated 26.04.2019, 27.04.2019, 23.05.2019, 24.05.2019 and 20.09.2019 recorded under Section 108 of the Customs Act were reproduced in the impugned detention orders as well as Mahesh Jain's statements dated 14.06.2019 and 15.06.2019. While the impugned detention orders rely upon the statements of Vikram Bhasin and Mahesh Jain, their subsequent retractions are not placed before the Detaining Authority. The non-placement of retractions of co-accused, whose inculpatory statements have been otherwise relied upon, goes to the root of the matter and tends to vitiate the subjective satisfaction of the Detaining Authority. Vikram Bhasin's retraction dated 03.06.2019 was addressed to Mr. Manish Khurana, learned CMM, Patiala House Courts, New Delhi and had the effect of retracting all his previous statements. The DRI cannot claim it had no knowledge of the same as they filed a reply dated 17.01.2020 - just 4 days prior to the ....
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....not placed before Detaining Authority. It is the case of the respondents that ''The role of Vikram Bhasin was so crucial since without his collusion, the smuggling of Gold could not have been possible". Vikram Bhasin was suspended on 03.06.2019. Crux of the allegations against the Petitioners was that they were smuggling gold jewellery with the aid of the Customs Jewellery Appraiser. However, the fact that the said Vikram Bhasin was under suspension was not considered by the Detaining Authority as the Suspension Order was never placed before it by the DRI. 20. It is further argued that Petitioner Amit Pal Singh's passport was seized at the time of his arrest and was never released. The order dated 28.08.2019 passed by the learned CMM, Patiala House Courts, New Delhi would reveal that the passport of petitioner Amit Pal Singh was withheld on the request made by the DRI. This fact was never placed before the Detaining Authority, nor was the said order dated 28.08.2019. 21. Further, it is submitted that petitioners were granted bail vidé order dated 03.06.2019 passed by the learned CMM, Patiala House Courts, New Delhi. The impugned detention orders were passed....
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....ently the Detaining Authority has not applied its mind to the order and makes only a fleeting reference to the same. Neither is the reasoning given in the CESTAT order dealt with, nor does the Detaining Authority apply its mind to the documents dealt with by the CESTAT. Documents such as the Advance Authorization Scheme, the Export Exhibition Scheme and Customs Notification No.18/2015 dated 01.04.2015 which are referred by the CESTAT in its order do not form part of the Relied Upon Documents. The CESTAT order was challenged by DRI in CUSAA No.229/2019 before the High Court. The High Court did not interfere with the order of release as far as 51 kgs of gold and 44.778 kgs of silver is concerned. Release only with respect to 25,299.680 gms was restrained. However, the order of the High Court in CUSAA No.229/2019 was passed on 01.06.2020 i.e., after the passing of the detention order dated 21.01.2020. As such, on the date of the passing of the impugned detention orders, the CESTAT order was not disturbed and ought to have been considered. A review bearing Revision Petition No. 117/2020 against the order dated 01.06.2020 is pending before a Division Bench of this court. 24. It was f....
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....in the Counter Affidavit have stated that the "...Panchnamas pertaining to the investigations in the cases of M/s Bharti Gems or M/s Bullion Line LLP do not pertain to the SA and therefore could not have been shared". Firstly, the investigation is being conducted by DRI. Secondly, the explanation that the DRI did not have access to documents is an abdication of the constitutional responsibility of the Sponsoring Authority to place all relevant material before the Detaining Authority. 28. Learned Senior Counsel would also urge that statements of the petitioners and the co-detenu Mohd. Nashruddin Khan were recorded in the case of Bharti Gems whilst in judicial custody. However, the said statements were not placed before the Detaining Authority. Further, the Show Cause Notice dated 30.08.2020 issued in the case pertaining to Bharti Gems has been stayed by a Division Bench of Hon'ble Rajasthan High Court vide order dated 11.01.2021 in Writ Petition (Civil) No.14008/2020. 29. Further, it is submitted that IMNPL issued a detailed representation dated 08.05.2019 vidé email to the DRI seeking release of its employees and seized goods. The representation is a vital document as ....
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....authority for the proposition that the Central Government is exempt from deciding the detenu's representation expeditiously. Golam Biswas (supra) only lays down that the Central Government should not reject the detenu's representation during the pendency of proceedings before the Advisory Board. This does not mean that the Central Government is exempt from expeditious disposal of the detenus representation or that it can sit over the same till such time it makes a reference to the Advisory Board, even though it had sufficient time and opportunity to deal with it prior to making the reference. 32. It is also submitted that in the present case, the representations of petitioners Amit Pal Singh and Gopal Gupta were filed on 16.10.2020 and 20.10.2020, respectively. It is pertinent to note that as per Section 8(b) of COFEPOSA, the reference to the Advisory Board has to be made within 5 weeks from the date of detention. Therefore, the Central Government had to make the reference to the Advisory Board on or before 05.11.2019. Admittedly, the reference was made on 03.11.2019. However, the representations dated 16.10.2019 and 20.10.2019 were filed well before the reference had to be ....
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....kkad reported as 2019 (20) SCC 609. (x) Madasamy v. Pasumponpandian reported as 2016 SCC OnLine Mad 20650. (xi) Jeganath v. Principal Secretary reported as 2017 SCC OnLine Mad 27423. (xii) Avtar Singh v. Union of India & Ors. reported as 2013 SCC OnLine Del 3806. (xiii) A.Sowkath Ali v. Union of India reported as (2000) 7 SCC 148. (xiv) P. Saravanan v. State of Tamil Nadu reported as (2001) 10 SCC 212. (xv) Ashadevi v. K Shivraj reported as (1979) 1 SCC 222. (xvi) Union of India v. Ranu Bhandari reported as (2008) 17 SCC 348. (xvii) Sahil Jain v. Union of India reported as 2014 (140) DRJ 319. (xviii) Husainbi Abdullah v. State of Maharashtra reported as 2013 SCC OnLine Bom 160. (xix) Gimik Piotr v. State of Tamil Nadu reported as (2010) 1 SCC 609. (xx) Moulana Shamshunissa & Ors. V. Additional Chief Secretary & Ors. reported as (2010) 15 SCC 72. (xxi) Rajesh Gulati v. State of NCT of Delhi reported as (2007) 7 SCC 233. (xxii) Naresh Kumar Jain v. UOI reported as 2011 SCC OnLine Del 442. (xxiii) T.A. Abdul Rahman v. State of Kerela reported as (1984) 4 SCC 74....
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....porting the said jewellery without the required documents and permissions and posed an imminent and insidious threat to the economic security of the country. 38. Further, it is submitted that the primary allegation of the petitioners that Mr. R.P Singh was not only aware but also took an active part in the investigation and issued detailed communications with respect to ongoing investigation vide letter dated 02.09.2019, is misleading and frivolous, since CEIB is the nodal agency and as such the information was shared with the DGFT for necessary action in the routine course. Also, the detention order passed against the petitioner and other co-detenus under Section 3 of the COFEPOSA was based on Mr. R.P Singh's independent evaluation and subjective satisfaction, as an officer of the Detaining Authority. 39. It has been argued on behalf of respondents that the respondents have followed the law, in letter and spirit, while issuing the impugned detention order. It was submitted that an order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive deten....
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....enu did not file any retraction at the time of first production before the Judicial Magistrate. The retraction was filed subsequently and was general and vague in nature and was filed as an after-thought. The subsequent retractions have already been duly rebutted and are on the record of the learned CMM, Patiala House Courts, New Delhi. Further, the detenu has time and again relied upon the observations made in the bail order dated 03.06.2019 made by the learned CMM, Patiala House Courts, New Delhi, including in his challenge to the detention order at the pre-execution stage vide W.P.(Crl.) No.1009/2020. However, it is submitted that the granting of bail by no stretch of imagination can be inferred as absolving the proposed detenu of the alleged offence. It is also trite that a Court does not go deep into the merits of the matter while considering an application for bail and only forms a prima facie opinion; however, the merits of the matter are to be tested at the stage of trial. It is further submitted that by virtue of the COFEPOSA the respondents are vested with powers to issue detention order against the petitioner. It is further submitted that grant of bail or its denial is n....
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.... his arrest. Only on 27.04.2019 was the retraction filed, which was duly rebutted by the DRI on 29.05.2019 by filing additional submissions before the learned CMM, Patiala House Courts, New Delhi. It is noted that the rebuttal clearly mentions that the retraction made by the detenu was general and vague and already stands rebutted vidé the evidence contained in the Show Cause Notice dated 26.09.2019 duly served upon the detenu. Therefore, no prejudice has been caused to the detenu. 51. It has been argued on behalf of Respondents that persons engaged in smuggling activities pose a serious threat to the economy and thereby to the security of the nation; and as a precaution no hard and fast rule can be precisely formulated that would be applicable under all circumstances; rather it follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and order of detention. 52. Lastly, it is also submitted that there was no inordinate delay in deciding the representation of the petitioners by the Central Government as the representation dated 16.10.2020 was received from the petitioner through his counsel in th....
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.... 190. (xiii) Golam Biswas v. Union of India & Anr reported as (2015) 16 SCC 177. (xiv) Mohammad Seddiq Yousufi v. Union and Anr. decided on 21.01.2020. (xv) Sheetal Manoj Gore v. State of Maharashtra & Ors reported as (2006) 7 SCC 560. (xvi) Maya Ajit Satam v. The State of Maharashtra reported as 2012 (114) BOMLR 2969. (xvii) Shabnam Arora v. Union of India and Ors reported as 2017 (357) ELT 127 (Del.). 54. These petitions were heard at great length by us and extensive submissions were put forth by learned Senior Counsel appearing on behalf of the parties, who have also filed detailed written submissions. Therefore, we have taken utmost care in taking note of all the rival contentions and the principles of law attracted for adjudication, in writing our considered decision, because of which, it has not been possible to write a brief judgment. DISCUSSION AND CONCLUSION:- 55. Having heard learned counsel appearing on behalf of the parties and after due consideration of the rival submissions in the context of the facts and circumstances on record, as well as the relevant provisions of law and the decisions relied upon by the parties....
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....ecretary (COFEPOSA) to the DGFT, the opening paragraph of which reads as under:- "This has reference to a letter bearing DR/HQGI/338/VI/Enq-2/ENT-NIL/2019/2835 dated 02.08.2019, in the matter of a case of misuse of hand carry & exhibition provision of the Foreign Trade Policy (FTP) in respect of precious Metals & Jewellery and Advance Authorization Scheme, received in the Bureau from Directorate of Revenue Intelligence. 2. It has been reported that a person was intercepted by DRI at IGI airport on 24.04.2019 and found in possession of 51.172 kg of assorted gold jewellery......" The aforesaid letter concludes with the following directions:- "9 ......since the case involves huge revenue implication/fraud angle and has multi-agency ramifications, it is requested that the Bureau may be given periodic updates in the matter so that effective coordination in the investigation may be achieved." 59. It is pertinent to observe here that the aforesaid letter predates the detention order dated 21.01.2020 by approximately four and half months. 60. From a plain reading of the said communication dated 02.09.2019, it is clear beyond doubt that Mr. R.P. Singh, wh....
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....rs, that Mr. R.P. Singh was actively involved in the case pertaining to the detenus for a long period, prior to the passing by him of the impugned detention orders; and was admittedly coordinating the investigation undertaken by the competent agencies in that regard. 66. The dual role played by Mr. R.P. Singh - first, in the Economic Intelligence vertical of CEIB (as claimed by the respondents) during the active investigation; and second, as J.S. (COFEPOSA), in passing the impugned Detention Orders, goes to the root of the matter and defeats the very purpose of appointing a "specially empowered" officer under Section 3(1) of the COFEPOSA, whose satisfaction, jurisprudentially, must be independent and free from any bias or predisposition. In our opinion, the test to be applied for bias or predisposition is that of 'identity of intellectual apparatus', namely, whether the person who passed the detention order, purporting to act as the 'specially empowered' human agency, has dealt with the same matter prior to that in any other capacity. It is of no consequence to say that the same person, with the same intellectual apparatus, acted under a different official designation or in a di....
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....ipation of the Detaining Authority in the process of sponsoring the name of the detenus for detention would go to the root of the matter and, therefore, is sufficient to set aside the orders of detention on the ground of predetermination. We are, therefore, of the view that the detention orders are unsustainable in law." 70. To the similar effect are the findings recorded in the judgment of the Madras High Court in Jeganathan @ Jegan vs. Secretary to Govt. & Ors., reported as 2017 SCC OnLine Mad 27423. 71. Insofar as the second issue whether the orders of detention are bad in law and vitiated on the ground of inordinate delay is concerned, our attention was invited on behalf of the petitioner to the Chart of Events placed on record, in conjunction with the dates thereof, which preceded the passing of the detention orders. 72. It is the petitioners' submission that there was inordinate and unexplained delay of 272 days in passing the impugned detention orders from the date of the alleged initial incident. 73. In this regard, it is submitted on behalf of the petitioners that the respondent had sought to justify the delay before this Court at the pre-execution stage by con....
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....used the impugned order of detention as well as the grounds of detention, it is observed that although it was urged before this Court by the respondents at the pre-execution stage about the overseas evidence received from Dubai in November, 2019; however, no reference to such evidence is to be found in the impugned detention orders. 78. We are, therefore, of the view that in the absence of any mention of such overseas evidence in the subject detention orders, the same cannot be considered as germane in order to satisfactorily explain the delay occasioned in passing the impugned orders of detention. 79. This Court while passing the said judgment dated 11.09.2020 had proceeded on the basis of the stand taken by the respondents that gathering of overseas evidence had delayed the issuance of the subject detention orders. However, since in the post-execution proceedings, the respondents have failed to even cite or rely upon the purported overseas evidence collected; nor did they place any such evidence before the Detaining Authority, the respondents have failed to explain away the delay on that count. This Court is therefore obliged to re-consider the issue of delay at the post-ex....
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..... 28. It is also the duty of the court to investigate whether causal connection has been broken in the circumstance of each case. We are satisfied that in the absence of proper explanation for a period of 15 months in issuing the order of detention, the same has to be set aside. Since, we are in agreement with the contentions relating to delay in passing the detention order and serving the same on the detenue , there is no need to go into the factual details." b) In T.A. Abdul Rahman vs. State of Kerala and Others, reported as (1989) 4 SCC 741, the Hon'ble Supreme Court has elaborated on the issue of when unexplained delay vitiates the detention order by observing as follows:- "10. The conspectus of the above decisions can be summarised thus: The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidel....
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.... inescapable conclusion that considerations while examining the validity of detention order at post-detention stage can be different from the considerations that obtain at the time of examining such an order at the pre-detention stage. 85. The respondents have also invited our attention to the judgment of Licil Antony vs. State of Kerala and Another, reported as (2014) 11 SCC 326, in addressing the issue of delay in issuing the order of detention. 86. In Licil Antony (supra), while dealing with the question of delay, the Hon'ble Supreme Court in paragraph 18 thereof observed that "the question whether the prejudicial activity of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activity and the purpose of detention is snapped depends upon the facts and circumstances of each case". 87. The facts and circumstances which demonstrate the snapping of the live-link between the alleged prejudicial activity and the purpose of detention have been copiously detailed in the present writ petition and the written submissions filed on behalf of the petitioners. 88. The present case is, therefo....
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....not be re-agitated in these proceedings, since that aspect had already been dealt with by this Court in Mohd. Nashruddin vs. Union of India & Ors., W.P.(CRL.) No. 786/2020 decided on 11.09.2020, wherein it was held that there was no delay in passing of the impugned detention orders. 93. In this behalf, it is observed that this Court was clearly disinclined to accept the argument of delay urged on behalf of the detenus herein at the pre-execution stage, which finding is reflected in paragraphs 68 and 69 of the said judgment dated 11.09.2020. However, as is evident from the dictum of the Hon'ble Supreme Court in Muneesh Suneja (supra), there can be no quarrel with the legal position, that even though the detention order has not been quashed at the pre-detention stage, it may be quashed at the post-detention stage. In this behalf, it would be pertinent to observe that, at the time of mounting a challenge to the impugned detention orders at the pre-detention stage, the petitioners admittedly did not have access to the detention orders, the grounds thereof, as well as the Relied Upon Documents, since the same were served upon them only on 01.10.2020, consequent upon their arrest and ....
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....retracted; and were only rebutted by the Sponsoring Authority, a few days before the passing of the impugned orders of detention. Further, we find from the record of the Detaining Authority that strong reliance has been placed upon the statement of not just the detenus but also the statements allegedly recorded of Vikram Bhasin and Mahesh Jain, statedly the co-accused. In this behalf, the record reflects that Vikram Bhasin and Mahesh Jain retracted their statements as far back as on 03.06.2019, which retractions have evidently not being placed before the Detaining Authority by the Sponsoring Authority. In our view, once the Detaining Authority has relied upon the inculpatory statements of the co-accused their retractions assumed great relevance in the factual backdrop of the present case. Consequently, the admissibility of the said statements becomes questionable once there is a retraction, which issue merited consideration, not accorded to it by the Detaining Authority. 97. In this behalf, it is also trite to state that the Sponsoring Authority was under a legal obligation to have placed the said retractions before the Detaining Authority for the latter's subjective satisfactio....
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....vations of the Hon'ble Supreme Court in P. Sarvanan vs. State of T.N. and Others, reported as (2001) 10 SCC 212 and in particular paragraphs 7, 8 and 9 thereof. The said paragraphs as extracted hereinbelow:- "7. When we went through the grounds of detention enumerated by the detaining authority we noticed that there is no escape from the conclusion that the subjective satisfaction arrived at by the detaining authority was the cumulative result of all the grounds mentioned therein. It is difficult for us to say that the detaining authority would have come to the subjective satisfaction solely on the strength of the confession attributed to the petitioner dated 711-1999, particularly because it was retracted by him. It is possible to presume that the confession made by the co-accused Sowkath Ali would also have contributed to the final opinion that the confession made by the petitioner on 7-11-1999 can safely be relied on. What would have been the position if the detaining authority was apprised of the fact that Sowkath Ali had retracted his confession, is not for us to make a retrospective judgment at this distance of time. 8. The second contention that non-placeme....
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....ict Magistrate when he made the order of detention did not make any reference to the criminal case launched against the petitioner, much less to the fact that the prosecution had been dropped or the date when the petitioner was discharged from that case. In connection with this aspect this Court observed as follows: "We should have thought that the fact that a criminal case is pending against the person who is sought to be proceeded against by way of preventive detention is a very material circumstance which ought to be placed before the District Magistrate. That circumstance might quite possibly have an impact on his decision whether or not to make an order of detention. It is not altogether unlikely that the District Magistrate may in a given case take the view that since a criminal case is pending against the person sought to be detained, no order of detention should be made for the present, but the criminal case should be allowed to run its full course and only if it fails to result in conviction, then preventive detention should be resorted to. It would be most unfair to the person sought to be detained not to disclose the pendency of a criminal case against him to th....
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....hus:" 101. In Union of India vs. Ranu Bhandari, reported as (2008) 17 SCC 348, the Hon'ble Supreme Court has observed so in Paragraphs 33, 34 and 35, which are reproduced hereunder:- "33. In the instant case, as some of the vital documents which have a direct bearing on the detention order, had not been placed before the detaining authority, there was sufficient ground for the detenu to question such omission. We are also of the view that on account of the non-supply of the documents mentioned hereinbefore, the detenu was prevented from making an effective representation against his detention. 34. In the said circumstances, we do not see any reason to interfere with the judgment and order of the High Court and the appeal is accordingly dismissed. 35. In parting, we may reiterate what we have indicated hereinbefore, that since the personal liberty and individual freedom of a citizen is curtailed by an order of preventive detention, the detaining authorities must apply their minds carefully and exercise great caution in passing such an order upon being fully satisfied from materials which are both for and against the detenu that such an order is required....
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....-accused, who was the Jewellery Appraiser, was neither placed nor considered by the Detaining Authority. It this behalf, it would be pertinent to observe that it was the case of the Sponsoring Authority itself that ''The role of Vikram Bhasin was so crucial since without his collusion, the smuggling of Gold could not have been possible". It was, therefore, incumbent upon the DRI to place the suspension order qua Vikram Bhasin for due consideration of the Detaining Authority. 107. Further, insofar as the detenu Amit Pal Singh is concerned, the DRI was required to bring the circumstance of the seizure of his passport at the time of his arrest and non-release thereof, to the notice of the Detaining Authority, since the same was a relevant factor for the purpose of determining whether the said detenu would have the propensity to indulge any further in the alleged prejudicial activities. 108. Lastly, the Detaining Authority did not consider the conduct of the detenus post their enlargement on bail, whilst rendering the impugned orders of detention. 109. Additionally, the order of CESTAT dated 13.11.2019 directing the provisional release of the goods, was also a relevant....
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....e detenu was that as his passport continued to be in the possession of the Customs Authorities, there was no question of the appellant travelling abroad or indulging in any smuggling activity. This plea was accepted by this Court by observing that it was not the case of the detaining authority at any stage that the detenu would be able to continue with his smuggling activities within India, though he could not go abroad his passport having been seized. It was observed thus: (SCC p. 134, para 15) "15. ... The conclusion that despite the absence of his passport the appellant could or would be able to continue his activities is based on no material but was a piece of pure speculation on the part of the detaining authority. These findings are sufficient to invalidate the impugned detention order and it is not necessary to consider the other issues raised by the appellant." 9. This opinion has been further fortified by this Court in Gimik Piotr case[(2010) 1 SCC 609 : (2010) 1 SCC (Cri) 864] . In SCC para 32, it has been held as under: (SCC p. 619) "32. In the present case, the detention order was passed under Section 3(1)(i) of Cofeposa. The Customs Departmen....
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....o the detenus detention. The subject representations were finally rejected by the Central Government only on 23.12.2020, three days after confirmation by it of the orders of detention by the Central Advisory Board. 114. A bare perusal of the above clearly reflects, that insofar as the case of detenus Amit Pal Singh and Gopal Gupta are concerned, there was massive delay of 69 days and 65 days respectively by the Central Government in dealing with their representations. 115. In Ankit Ashok Jalan vs. Union of India and Others, reported as (2020) 16 SCC 127, the Hon'ble Supreme Court observed, particularly in paragraph 17 thereof, as under:- "17. In terms of these principles, the matter of consideration of representation in the context of reference to the Advisory Board, can be put in the following four categories: 17.1. If the representation is received well before the reference is made to the Advisory Board and can be considered by the appropriate Government, the representation must be considered with expedition. Thereafter the representation along with the decision taken on the representation shall be forwarded to and must form part of the documents to be pla....