TaxTMI 
TaxTMI 
2021 (8) TMI 727
X X X X Extracts X X X X
X X X X Extracts X X X X
.... FACTS OF THE CASE:- 2. The relevant facts qua the detenu as are necessary for the adjudication of the subject writ petition are briefly encapsulated as follows: i) The detenu has been a non-resident Indian citizen based in United Arab Emirates (UAE) and has been engaged in trading in gold/gold jewellery in/from UAE in the name and style of M/s. M.N. Khan Jewellers (FZE). ii) One Amit Pal Singh (co-detenu), who is an employee of M/s. Its My Name Private Limited (hereinafter referred to as 'IMNPL') was entrusted with the work of importing and exporting gold jewellery through handcarry (personal carriage) to UAE; for the purpose of taking part in an exhibition organized by M/s. M.N. Khan Jewellers (FZE), as per the permission by the Gem & Jewellery Export Promotion Council (hereinafter referred to as 'GJEPC'). iii) 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. iv) 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 (he....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Jewellers (FZE), as above mentioned, Amit, Pal Singh, co-detenu, was entrusted with hand-carrying (personal carriage) of the gold jewellery to UAE for the purpose of the said exhibition, in accordance with the permission granted and in compliance with the provisions applicable. xiii) Export of the gold jewellery was done by IMNPL after filing the requisite shipping bills along with necessary documents. xiv) 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 hand-carrying the gold jewellery. xv) The gold jewellery, which remained unsold at the time of exhibition was brought back by the co-detenu Amit Pal Singh, from UAE. The co-detenu Amit Pal Singh, landed at the Indira Gandhi International Airport, New Delhi on 24.04.2019 at around 06.30 p.m. and approached the Red Channel for the purpose of declaration of the g....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uced before the learned Duty Magistrate New Delhi, in the late hours at around 23.00 hrs. xxii) It is submitted that the allegations by the DRI are completely false and incorrect and without any basis whatsoever and in fact the DRI has tried to give a wrong colour to otherwise genuine transactions. xxiii) The said statements under Section 108 of the Customs Act, 1962 (hereinafter referred to as the 'Customs Act') procured from all the aforementioned three persons were immediately retracted verbally before the learned Duty Magistrate and thereafter before the Court of learned Chief Metropolitan Magistrate, Patiala House Courts, New Delhi on 27.04.2019 in writing. Detenu also filed a detailed retraction on 26.05.2019 from Tihar Jail through Superintendent of Jail No. 7, prior to his release on bail. Retractions were filed by the detenu and also Amit Pal Singh and Gopal Gupta (co-detenus) before the learned Chief Metropolitan Magistrate, Patiala House Courts, New Delhi on 27.04.2019 while they were lodged in Tihar Jail. xxiv) At this juncture it is averred by the detenu that vide additional submissions filed by DRI, opposing the bail application of the deten....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... xviii) In relation to the dispute regarding the local address of the present detenu, a verification report was filed in compliance to order dated 20.06.2019 passed by learned Chief Metropolitan Magistrate by the DRI Headquarters, New Delhi. The report expressly states that "..the department has no objection in serving the summons/other correspondence pertaining to Mohd. Nashruddin till pendency of investigation through Mr. Himanhu Lohiya as requested in application and affidavit dated 20.06.2019 filed by Mohd. Nashruddin." xix) In relation to the seizure of the gold jewellery from the co-detenu Amit Pal Singh at the IGI Airport, New Delhi on 24.04.2019 and further seizure of gold jewellery from the IMNPL business premises on 24-25.04.2019, purportedly after completion of the investigation, a Show Cause Notice dated 26.09.2019 was issued by the DRI, New Delhi, wherein the detenu was also made a noticee and penalty was proposed upon the detenu under the provisions of Customs Act. xxx) The detenu's passport was released vide order dated 07.01.2020 by the learned Chief Metropolitan Magistrate, Patiala House Courts, New Delhi and he was permitted to travel abro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ining Authority as well as Central Government on the grounds stated therein and praying for revocation of the detention order. Simultaneously, the detenu vide separate letter dated 27.10.2020 sought for supply of the relevant documents from the Detaining Authority. The Joint Secretary, COFEPOSA however rejected the representation made vide letter dated 27.10.2020 filed by the detenu praying for supply of the relevant documents vide Memorandum dated 09.11.2020. It is the detenu's case that his representation was rejected without any valid or proper explanation and without supplying the documents asked for by him, thereby preventing him from making an effective representation against the impugned detention order. xxxvi) A perusal of the grounds of detention impugned in these proceedings reveals that the role assigned to the detenu therein, pursuant to the investigation carried-out, is that IMNPL, in connivance with the detenu, opened a dummy company in the name and style of M/s. M.N. Khan Jewellers (FZE) in UAE in the year 2015 to manage the business interest of IMNPL and other related firms of the company at Dubai. The detenu is a key member of the syndicate and its conduit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eration of the same; thus affecting the decision making process of the Detaining Authority in recording his subjective satisfaction, and consequently vitiating the Detention Order. It is pertinent to note that the COFEPOSA does not recognize any authority like the 'Sponsoring Authority'. It appears that in the present case the officers of the DRI have been conducting the investigation which they are not authorized under law to do, as they are not 'proper officers' for the said purpose under the provisions of Customs Act. 4. Further, it is submitted that the material documents i.e. (i) Advance Authorisation License, whose Condition 6 was alleged by the DRI to have been violated, stipulating that "The exempt goods imported against the authorization shall only be utilized in accordance with the provisions of Paragraph 4.16 of the Foreign Trade Policy 2015-20 and other provisions and the relevant Customs Notification - [Custom Notification 18/2015 dated 01.04.2015 (for physical exports), 21/2015 dated 01.04.2015 (for deemed exports) 22/2015 dated 01.04.2015 (for Advance Authorization for prohibited goods) and 20/2015 (for Annual Advance Authorization) as the case may be]"; a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... identical, barring a few differences in names and references etc. The petitioner have filed the Detention Order dated 17.05.2019 passed in the case of Happy Arvind Kumar Dhakad along with a comparison of the grounds of detention in the impugned detention orders dated 21.01.2020. A comparison makes it clear that the entire exercise of passing the impugned detention orders is mechanical, as grounds have been lifted from the grounds of an altogether distinct case. Such a blatant copy-paste job by the Detaining Authority shows non-application of mind. 7. It was further submitted that by learned Senior Counsel appearing on behalf of petitioner that the proposal for preventive detention was sent to the Detaining Authority on 02.01.2020 and the meeting of the Central Screening Committee was held on 13.01.2020 and the recommendations of the Central Screening Committee were submitted to the Detaining Authority on 14.01.2020. The Grounds of Detention relies on a rebuttal of retraction application by DRI dated 16.01.2020, which implies that the said document was placed by the Sponsoring Authority before the Detaining Authority only after 16.01.2020 (the said day being a Thursday). It is f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....irst '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-execution writ petitions, the aspect of delay was dealt with in paragraphs 67-69 wherein this Court analysed the explanation of delay given by the respondents. However, at that stage the petitioner did not have the benefit of the impugned detention orders as the same had not been served upon the petitioner. Upon being served with the impugned detention orders the petitioner learnt that any reference to overseas evidenc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Online Del 328. (vii) Saeed Zakir Hussain v. State of Maharashtra reported as (2012) 8 SCC 233. (viii) Pooja Batra v. Union of India reported as 2009 5 SCC 296. (ix) Union of India v. Happy Dimple Dhakkad 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) Gimik Piotr v. State of Tamil Nadu reported as (2010) 1 SCC 609. (xix) Rajesh Gulati v. State of NCT of Delhi reported as (2007) 7 SCC 233. (xx) Naresh Kumar Jain v. UOI reported as 2011 SCC OnLine Del 442. (xxi) T.A. Abdul Rahman v. State of Kerela reporte....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Gupta used to pay AED 6000 as monthly salary to detenu, out of which AED 3000 were credited in detenu's wife's account maintained with Bank of India in Mau District (U.P.) and the remaining amount was paid to the detenu in cash in Dubai. 17. Further, it is submitted that the primary allegation of the petitioner, 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. 18. 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 acq....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rment regarding retractions filed by the detenu is concerned, the detenu 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 afterthought. The subsequent retractions have already been duly rebutted and are on record of the learned Chief Metropolitan Magistrate. Further, the detenu has time and again relied upon the observations made in the bail order dated 03.06.2019 of the learned Chief Metropolitan Magistrate, 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 COFEPOSA, the respondents have vested powers in them to issue detention order against the petitioner. It is further s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....itioner by the Central Government as the representation dated 27.10.2020 was received from the petitioner through his counsel in the office of the Director General, CEIB on 27.10.2020 itself and the requisite information/comments of the Sponsoring Authority were sought on 28.10.2010 on the said representation. The requisite information/comments of the Sponsoring Authority were received on 06.11.2020 and thereafter the matter was referred to the Advisory Board on 10.11.2020. The answering respondents on 02.12.2020 sent copies of the representation of the detenu to the Advisory Board along with the comments on the representation of the detenu, prepared by the Sponsoring Authority. The Advisory Board on 14.12.2020 opined that there exists sufficient cause for detaining the detenu in pursuance to the Detention Order dated 21.01.2020. Thereafter the opinion of the Advisory Board was submitted for necessary approval of the Hon'ble Finance Minister on behalf of the Central Government on 15.12.2020. The approval was received on 21.12.2020 and thereafter the representation was disposed on 23.12.2020 and communicated to the Petitioner on 24.12.2020. Thus, there was no inordinate delay in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t any bias, whilst rendering the impugned order of detention; b) Whether the detenu's constitutionally secured right of making an effective representation has been jeopardized, by the non-supply of legible and complete documents, inspite of the detenu's request in this regard; thereby rendering the order of detention illegal and bad; c) Whether the impugned order of detention passed is bad in law and vitiated on the ground of inordinate delay; d) Whether the impugned detention order is vitiated on the ground of non-application of mind; e) Whether the detaining authority has arrived at its subjective satisfaction without properly appreciating and satisfying itself qua the propensity of the detenu to continue indulging in prejudicial activities; f) Whether there has been delay on the part of the Central Government in deciding the representation filed by the detenu; and lastly g) Whether the detention order stands vitiated owing to the reason that the grounds stated therein have been lifted from the grounds taken in an entirely different case. 32. Insofar as the first issue, viz. whether the Detaining Authority acted independent....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sed the detention order, was actively involved in the investigation, which was being conducted into the case against the petitioner much prior to the passing by him of the detention order. Mr. R.P. Singh, in his letter dated 02.09.2019 elaborately summarized the specifics of the investigation, which was initiated by the DRI in the matter pertaining to the petitioner's involvement in the case of misuse of hand-carry and exhibition provisions of the FTP in collusion with IMNPL, in respect of the precious Metals and Jewellery and Advance Authorization Scheme. 37. In this behalf, it is observed that the respondents have not disputed the contents of the aforesaid letter or the circumstance that Mr. R.P. Singh was the author of the said communication. However, the respondents have in their affidavits dated 10.02.2021, taken the stand, that the said letter dated 02.09.2019 was authored by Mr. R.P. Singh ".......while working in the additional capacity of other vertical i.e. Economic Intelligence of the CEIB....." 38. The petitioner has refuted the said stand by urging that no such distinction is discernible from the said letter itself. It is further submitted by him that in the said....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mpowered' 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 different official capacity. Therefore, the issue of a pre-determined approach and bias, while passing the impugned order of detention, is writ large in the instant case; and as such, the subjective satisfaction of the Detaining Authority in the present case stands vitiated. 43. In our view, the powers conferred under Section 3(1) of the COFEPOSA have not been complied with independently in the present case. We are also in agreement with the submissions made by learned Senior Counsel in this behalf that, there is nothing in Section 3 of the COFEPOSA or in the scheme of the Act, which suggests that the especially empowered officer must act only on receipt of the proposal of some other agency or "Sponsoring Authority". In fact the expression "Sponsoring Authority" and "Detaining Authority" find no mention in the statute. 44. In this behalf, it is therefore observed that there was nothing that prevented Mr. R.P. Singh, whilst acting as J.S. (COFEP....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed 27.10.2020 to the Detaining Authority, which request was erroneously and wrongly refused vide memorandum dated 09.11.2020. 47. It is trite to say that a person detained in pursuance of an order for preventive detention, has a constitutional right to make an effective representation against the same. The authorities are constitutionally charged with the responsibility to ensure that the grounds of detention, including all relevant documents that are considered whilst forming the subjective satisfaction, are provided to the detenu by the Detaining Authority, so as to enable the detenu to make an effective representation to the Advisory Board, as well as to the Detaining Authority. Therefore, the non-supply of legible copies of all relevant documents inspite of a request and representation made by the detenu for the supply of the same, renders the order of detention illegal and bad; and vitiates the subjective satisfaction arrived at by the Detaining Authority. 48. In our considered view, therefore, the supply of the following documents namely, a) Passport, b) Identity Cards of codetenu's, c) WhatsApp chats, d) bill of entry, e) in....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... were illegible and refusing to supply typed copies of the same. It is clearly provided in sub-article (5) of Article 22 of the Constitution of India that: "(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order." Therefore, it is imperative that the detaining authority has to serve the grounds of detention which include also all the relevant documents which had been considered in forming the subjective satisfaction by the detaining authority before making the order of detention and referred to in the list of documents accompanying the grounds of detention in order to enable the detenu to make an effective representation to the Advisory Board as well as to the detaining authority. Therefore, the non-supply of legible copy of this vital document i.e. panchnama dated 12-2-1988 in spite of the request made by the detenu to supply the same renders the order of detention illegal and bad. This Cour....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s evidence from Dubai was received in the first week of November, 2019, by submitting that there is nothing on record to indicate or substantiate the said assertion. It is further stated by the petitioner that, it is only upon the receipt of the detention order that the petitioner became aware that reference to overseas evidence from Dubai which was allegedly received by the DRI in November, 2019, was conspicuous by its absence in the detention order; and no material or documents in this regard were placed before the Detaining Authority. As a matter of fact, what emerges from the detention order, is the position that all the material evidence, including the purported overseas evidence, sought to be relied upon against the petitioner, had already been collected, as early as in July, 2019, as is clear from the record, and had already culminated into the issuance of Show Cause Notice dated 26.09.2019. Therefore, it is apparent that the stand taken by the respondents qua the receipt of overseas evidence from Dubai in November, 2019 was merely window-dressing, used to cover-up the massive delay that transpired from the time of issuance of the said Show Cause Notice dated 26.09.2019 and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng the question of delay in relation to detention order, has observed as follows:- "22. In Rajinder Arora v. Union of India [(2006) 4 SCC 796 : (2006) 2 SCC (Cri) 418] this Court considered the effect of passing the detention order after about ten months of the alleged illegal act. Basing reliance on the decision in T.A. Abdul Rahman [(1989) 4 SCC 741 : 1990 SCC (Cri) 76] the detention order was quashed on the ground of delay in passing the same. xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx 27. As regards the second contention, as rightly pointed out by the learned counsel for the appellant, the delay in passing the detention order, namely, after 15 months vitiates the detention itself. 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. Though there is no hard-and-fast rule and no exhaustive guidelines can be laid down in that behalf, however, when there is undue and long delay between the prejudicial activiti....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... petitioner stands broken. 63. We hasten to add that, whilst arriving on this conclusion, we have given our careful consideration to the judgments relied upon by the respondents on the question of delay in issuing the order of detention. In this behalf, we observe that the reliance placed by the respondents on the decision in the case of Union of India vs. Muneesh Suneja, reported as (2001) 3 SCC 92, does not come to the aid of the respondents, inasmuch as, that was a case where the detention order was quashed by the High Court at the pre-detention stage and consequently, the Supreme Court observed that the same was not a fit case for the issuance of any writ of habeas corpus but for certain other types of reliefs and, therefore, the matter was examined as any other ordinary writ petition. In this behalf, the Hon'ble Supreme Court held as under in the concluding paragraph:- "In addition, we may also notice that the order made by us will not prejudice the interest of the respondent that in the event the said order of detention is given effect to, it is open to the respondent to raise all grounds as are permissible in law notwithstanding what we may have observed in the c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in Licil Antony (supra), the Detaining Authority after scrutinizing and evaluating the proposal dated 25.01.2013, placed the same before the Screening Committee and forwarded the same on 01.02.2013. The Detaining Authority took the decision to detain the detenu on 15.04.2013. The detention order was expeditiously passed on 06.05.2013, after the draft grounds in English were approved on 19.04.2013 post-translation to Tamil, which took time till 03.05.2013. It is in these circumstances that the delay in passing the detention order was considered satisfactory in the facts and circumstances of Licil Antony (supra). However, in the present case, as elaborated hereinabove, there has been no satisfactory explanation forthcoming as to why there was delay of more than 08 months on the part of the Sponsoring Authority in issuing a proposal for the detention of the petitioner. 71. Even in Licil Antony (supra), the Hon'ble Supreme Court in paragraph 09 thereof observed that the delay in issuing order of detention, if not satisfactorily explained, itself is a ground to quash the order of detention. It is in these circumstances that we are of the view that the decision relied upon by the resp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....order is vitiated on account of nonapplication of mind. In this behalf, we are constrained to observe that in the grounds of detention, strong reliance has been placed upon the statements of the detenu and codetenus, recorded under the provisions of Customs Act, 1962. A plain reading of the said grounds of detention clearly reflects the extensive reliance placed upon the said statements by the Detaining Authority, for arriving at its subjective satisfaction. 76. It is immediately evident, however, that the Detaining Authority did not consider the circumstance that the detenu, and the co-detenus and others, whose statements formed the basis of the grounds of detention, had long since retracted their statements. In this behalf, the impugned order of detention makes only a passing reference to the circumstance that the DRI had issued rebuttals to the said retractions on 16.01.2020, barely five days before passing the subject order. This circumstance highlights the considerable gap of time between the retraction of the statements by the detenu and codetenus, and rebuttal thereof by the DRI. This belated rebuttal on the part of the official respondents was relevant and merited consid....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2000) 7 SCC 144 : (2000) 2 Scale 642] the placement of document of other co-accused may prejudice the case of the petitioner. In the first pace the same should not have been placed, but if placed, the confessional statement and the retraction, both constituting a composite relevant fact both should have been placed. If any one of the two documents alone is placed, without the other, it would affect the subjective satisfaction of the detaining authority. What was the necessity of reproducing the details of the confessional statement of another co-accused in the present case? If the sponsoring authority would not have placed this then possibly no legal grievance could have been made by the detenu. But once the sponsoring authority having chosen to place the confessional statement, then it was incumbent on it to place the retraction also made by them. In our considered opinion, its non-placement affects the subjective satisfaction of the detaining authority. This Court has time and again laid down that the sponsoring authority should place all the relevant documents before the detaining authority. It should not withhold any such document based on its own opinion. All documents, which ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 one way or the other are ignored or not considered by the detaining authority before issuing the detention order. In Sk. Nizamuddin v. State of West Bengal [(1975) 3 SCC 395 : 1975 SCC (Cri) 21 : AIR 1974 SC 2353] the order of detention was made on September 10, 1973 under Section 3(2)(a) of MISA based on the subjective satisfaction of the District Magistrate that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community and this subjective satisfaction, according to the grounds of detention furnished to the petitioner, was founded on a solitary incident of theft of aluminium wire alleged to have been committed by the petitioner on April 14, 1973. In respect of this incident of theft a criminal case was filed inter alia against the petitioner in the Court of the Sub-Divisional Magistrate, Asansol, bu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he statute vitiates the subjective satisfaction and renders the detention order invalid then failure to take into consideration the most material or vital facts likely to influence the mind of the authority one way or the other would equally vitiate the subjective satisfaction and invalidate the detention order." 81. In Union of India vs. Ranu Bhandari, reported as (2008) 17 SCC 348, the Hon'ble Supreme Court has also 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 libert....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he did not attempt to travel abroad; as well as the fact that IMNPL had been placed under the Denied Entity List, thereby clearly indicating that it could no longer import gold under the Advance Authorization Scheme, and completely eliminating the possibility of it misusing the said scheme. The consideration of the said aspect is conspicuous by its absence in the impugned detention order. 86. The decision to place IMNPL under the Denied Entity List was taken by the DGFT pursuant to an UO Note dated 21.06.2019, issued by the DRI; which note was never placed before the Detaining Authority. 87. Also the factum of suspension of Vikram Bhasin, the co-accused, who was the Jewellery Appraiser, was neither placed before 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 its due consideration of the Detaining Authority. 88. Lastly, the Detaining Authority did....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erms 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 placed before the Advisory Board. 17.2. If the representation is received just before the reference is made to the Advisory Board and there is not sufficient time to decide the representation, in terms of law laid down in Jayanarayan Sukul [Jayanarayan Sukul v. State of W.B., (1970) 1 SCC 219 : 1970 SCC (Cri) 92] and Haradhan Saha [Haradhan Saha v. State of W.B., (1975) 3 SCC 198 : 1974 SCC (Cri) 816] the representation must be decided first and thereafter the representation and the decision must be sent to the Advisory Board. This is premised on the principle that the consideration by the appropriate Government is completely independent and also that ther....