TaxTMI 
TaxTMI 
TaxTMI 
2004 (11) TMI 614
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....ainers containing fraudulent export cargo of M/s. S. G. International Pvt. Ltd., Kolkata, meant for loading on the vessel M. V. THOR LONE, were intercepted by the officers of Dock Intelligence Unit (Prev.) on 15.11.2003 at Netaji Subhas Dock Yard after issue of the dock challan. As no representative of the said exporter, of which the detenu is the director, was available, the seals of the containers were opened in presence of the authorized representative of the Customs House Agent M/s. S. N. M. Agency, two independent witnesses & CISF Personnel, and it was found that out of recovered 3109 cartons as against declared quantity of 2729 cartons (in 13 shipping bills), 2206 cartons contained waste rubber materials/cuttings/trash/broken bricks in wet condition and the balance 903 cartons contained the declared goods. The said 13 shipping bills of different dates were filed for export of 2729 cartons of goods declared as Leather Gloves and Leather Wallet with a declared FOB value of ₹ 4,91,60,000/. The bills of export for duty-free goods revealed that the said M/s. S. G. International Pvt. Ltd. being a unit of Falta Economic Zone (FSEZ) had procured the purported export consignment....
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....ays on the detaining authority to show, as Article 21 of the Constitution provides in unambiguous terms that no one shall be deprived of his life or personal liberty except in accordance with the procedure established by law. The observation of the Apex Court in this regard in Ichhu Devi Choraria v. Union of India, reported in [1981]1SCR640 may be reproduced : "This Constitutional right of life and personal liberty is placed on such a high pedestal by this Court that it has always insisted that whenever there is any deprivation of life of personal liberty, the authority responsible for such deprivation must satisfy the Court that it has acted in accordance with the law. This is an area where the Court has been most strict and scrupulous in ensuring observance with the requirements' of the law, and even where a requirement of the law is breached in the slightest measure, the Court has not hesitated to strike down the Order of Detention or to direct the release of the detenu even though the detention may have been valid till the breach occurred. The Court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal detenti....
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....w the involvement of the detenu in smuggling activity in the past and that a Detention Order was issued against the detenu on 21.01.2002 under the COFEPOSA Act, 1974 which revoked by the Central Govt. on the opinion of the Central Advisory Board on 29.04.2002. The Detention Order dated 21.01.2002, the grounds of detention and order dated 29.04.2002 for revocation of the Detention Order were already served on the detenu on 19.02.2002, 20.02.2002 and 02.05.2002 respectively................." 8. In serial No. 256 (page 94) of the list of documents relied upon by the detaining authority, the above letter dated 14.05.02004 of the Deputy Director has been depicted which is at pages 1537 - 1545. A glance to the above will reveal that reliance of the previous grounds of detention has not only been admitted but also has sought to be justified by the detaining authority asserting that Order of Detention dated 21.01.2002, grounds of detention and order dated 29.04.2002 for revocation of the Detention Order were served upon the detenu. Such fact of reliance upon the previous order is also buttressed by necessary inference from para 69 of the impugned Detention Order itself which runs as ....
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....re order". The same view has been echoed in AIR1989SC1881 & 1996 Cr LJ 3957. 9. Therefore, in view of the above discussion, we are unable to accept the above contention of Mr. Banerjee. The decision in (Bom), so referred to by him cannot be said to have any application in the present facts and circumstances. Accordingly, the earlier grounds of detention dated 21.01.2002, revoked by the Central Govt. on the opinion of the Central Advisory Board on 29.04.2002, having been taken into consideration and relied upon by the detaining authority along with other materials in passing the impugned Order of Detention, the impugned Order of Detention is bad in law as it vitiate the subjective satisfaction of the detaining authority in passing the said order. As such, the Order of Detention is liable to be set aside. 10. As regards ground (II) above i.e. non-supply of documents, Mr. Ghosh on taking us through different pages of the paper book & affidavit-in-opposition and on referring to the decisions of Ichhu Devi, [1981]1SCR640 ; Salani Soni, 1980CriLJ1487 & Sunil Dutt, 1982CriLJ193 , argued that it is obligatory on the part of the detaining authority to supply all the documents to the ....
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....t provided as the same were nothing but replica of the provided 13 number of shipping bills, but all other desired documents were supplied and the shipping bills and reverse side thereof are legible. Now, on a "proper construction of Clause (5) of Article 22 read with Sub-section (3) of Section 3 of the COFEPOSA Act, it is necessary for the valid continuance of the detention that subject to Clause (6) of Article 22, copies of documents, statements and other materials relied upon in the grounds of detention shall have to be furnished to the detenu along with the grounds of detention within five days from the date of detention and in exceptional circumstances and for reasons to be recorded in writing not later than 15 days from the date of detention. One of the primary objects of communicating the grounds of detention to the detenu is to enable him, at the earliest opportunity, to make a representation against his detention, and the detenu cannot possibly be expected to make an effective representation unless he is also furnished copies of the documents, statements and other materials relied upon in the grounds of detention. If this requirement of Clause (5) of Article 22 read w....
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....lls are meant for different purposes and so the contention of the respondents that other copies of the bills are nothing but replica of the duplicate and triplicate is not at all correct. As a matter of law, how or in what way a document will be used in preparing an effective representation against the Order of Detention is a matter fully within the domain of the detenu and not the detaining authority whose statutory obligation is to furnish all the documents and materials relied upon in passing the Order of Detention to the detenu. "It is immaterial whether the detenu already knew about their contents or not. In Mehrunnisa v. State of Maharashtra, 1981CriLJ1283 , it was held that the fact that the detenu was aware of the contents of the document not furnished was immaterial and non-furnishing of the copy of the seizure list was held to be fatal. To appreciate this point one has to bear in mind that the detenu is in jail and has no access to his own documents. In Md. Zakir v. Delhi Administration, it was reiterated that it being a Constitutional imperative for the detaining authority to give the documents relied on and referred to in the Order of Detention of pari passu with t....
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....ause it is the Constitutional mandate which required the detaining authority to give the documents relied on or referred to in the Order of Detention part passu the grounds of detention in order that the detenu may make an effective representation immediately instead of waiting for the documents to be supplied with, as was held in the decision Md. Zakir v. Delhi Administration, reported in 1982CriLJ611 . Furnishing illegible copies of documents and/or incomplete documents to the detenu cannot be said to be any supply at all since the very raison d'etre of such supply to enable the detenu to make an effective and purposeful representation is frustrated. In the case of Kamala Devi Kedia v. Union of India, reported in 1998 C Cr LR (Cal) 456, it was held the supply of illegible documents virtually amounts to non-supply of relevant documents which vitiates the detention. Therefore, refusal on the part of the detaining authority to supply legible copies of the relevant documents to the detenu infringed the detenu's right under Article 22(5) of the Constitution and thus the Order of Detention is liable to be set aside. In this connection, the decisions in Bhupinder Singh v. Union ....
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....das Ramchand Shah v. K. L. Verma, reported in 1989CriLJ983 , may be referred to. The facts and circumstances of the decision reported in 1982CriLJ1730 , so referred to by the learned Counsel for the petitioner, being quite different, the same cannot be said to have any application in this case, Incidentally, it may be mentioned that the statements of the said Sri Goenka dated 25.11.2003 & 27.11.2003 (pages 445-452 & 471-472) were also relied upon as will be evident from Sl. Nos. 85 & 87 of the list of relied upon documents and paragraph 20 of the grounds of detention, and so the averment in paragraph 27 of the affidavit-in-opposition that the statement of Sri Goenka dated 24.05.2004 only was relied upon does not appear to be correct to that extent. Nevertheless, in view of the above discussion, this part of the argument of Mr. Ghosh is not sustainable. 15. As regards (e) above i.e. non-supply of incriminating documents, Mr. Ghosh on referring to paragraphs 21 & 24 of the grounds of detention and petition respectively advanced argument contending that when certain incriminating documents are said to have been recovered and seized as per list annexed, from the premises of Sri Pawan ....
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....authority thereby vitiating the Order of Detention. In this context, relevant paragraph of Jaleel Khan's decision (para 11) may be reproduced : "As regards the documents seized, it is evident from the affidavit-in-reply that the documents by themselves were not placed before the detaining authority, but the only thing that was put before him was the Panchanamas which only referred to the said documents without setting out the contents thereof. It could not have been, therefore, possible for the detaining authority without knowing the contents thereof to determine before passing the Detention Order, whether or not they were material and would have influenced him one way or the other in making the Detention Order. The very fact that in the grounds of detention the said documents are referred to or described as 'incriminating documents', would show that even according to the detaining authority the documents were such as would incriminate the petitioner. They would be, therefore, material to be considered before making the Detention Order. Therefore, without having an opportunity to consider the said documents before making the order, the detaining authority cannot ....
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....old that subjective satisfaction is not impaired. If this being the position, then, it must be held that there was no application of mind by the detaining authority and the Order of Detention therefore in its turn is vitiated. Once we come to this position, the other challenge in the petition, namely, that the documents referred to as incriminating documents were not furnished, has become good challenge and on that ground also the detention stands vitiated". "Once the documents are referred to in grounds of detention, it becomes the bounden duty of the detaining authority to supply the same to the detenu as part of the grounds or-pari passu the grounds of detention. There is no particular charm in the expression 'relied on', 'referred to' or 'based on' because ultimately all the expressions signify one thing, namely that the subjective satisfaction of the detaining authority has been arrived at on the documents mentioned in the grounds of detention. The question whether the grounds have been referred to, relied on, based on, is merely a matter of describing the nature of the grounds. This not having been done in the present case the continued det....
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....ted in [1981]3SCR647 , may be relied upon in this connection. And, thirdly those materials have been rejected in the list of documents tendered by the employee of the detenu viz. Pradip Chakraborty (SI. No. 56) at pages 393-394, and as such, it could not be expected to be reflected in the inventory list. 18. As regards contention of Mr. Ghosh that though in paragraph 16 of the grounds of detention, it has been mentioned that on preliminary examination of the records available on the spot, the detaining authority drew certain inference that two other companies viz. M/s. Peoples Tannery & M/s. Sree Exports (P) Ltd. are also functioning from the same premises and are availing export benefits like DEPB and Drawback etc., no such material was communicated to the detenu and so when on the basis of uncommunicated materials the detaining authority passed the Order of Detention, it is liable to be set aside. In paragraph 3 of the grounds of detention, it has been mentioned that the detenu is the Director of M/s. Sree Exports (P) Ltd. of 17A, Sura Third Lane, Kolkata-10 & senior partner of M/s. Peoples Tannery of 72, Matheswar Tolla Raod, Kolkata - 46 which has been echoed in paragraph 12 o....