TaxTMI 
TaxTMI 
2022 (5) TMI 89
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....ev Kumar @ Sanjeev Kumar Yadav ("Detenu No. 2"), the Petitioner in W.P.(CRL.) 73/2022 (hereinafter collectively referred to as the "Detenus"), praying for quashing of detention orders, both dated 26.11.2021, bearing No. PD-PD-12001/17/2021-COFEPOSA and PD12001/18/2021- COFEPOSA, issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter "COFEPOSA") against the Petitioners/Detenus No. 1 and 2 respectively; and for further directions that the detenus be set at liberty forthwith. As these Petitions raise common questions of law and are premised on similar facts, they are being disposed off by this common order. 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) The Income Tax Department conducted a search and seizure operation on 10.10.2021 at 23 premises allegedly belonging to the Detenu No. 1 and persons allegedly associated with him. Thereupon, a Statement (Annexure P-4) of the Detenu No.1 was recorded u/s 132(4) of the Income Tax Act, 1961, on the 11.10.2021, wherein the Detenu No.....
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....aid firms purportedly controlled/owned by the Detenu No.1. The officers of the DRI resumed the said documents for further investigations. v) On or about the 18/19.10.2021, the Detenus were arrested by officers of the DRI and produced before the Court of CMM (Duty Magistrate), Patiala House Courts through Virtual Conference at around 08:30 PM (as it was a holiday) and were remanded to 3 days Judicial Custody. vi) On 22.10.2021, Detenus were produced before the Learned Court of CMM, Patiala House Courts, New Delhi and remanded to 14 days judicial custody till the 04.11.2021. vii) The Detenus admittedly filed retraction applications on the 28.10.2021, before the learned CMM Court thereby, retracting their statements recorded on 18/19.10.2021 before the DRI. viii) The DRI then caused to be filed an application before the learned CMM, Patiala House Courts, New Delhi seeking permission to record statements of the Detenus u/s 108 of the Customs Act, 1962, which was allowed vide order dated 01.11.2021. ix) On 02.11.2021, another container No. PCIU8010617 (40") imported by M/s Viha International at Kolkata Port, with a declaration to contain HDMI cables, ....
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.... filed by the Detenus before the COFEPOSA Advisory Board (hereinafter "Advisory Board"). 3. A further perusal of the grounds of detention, impugned in these proceedings reveal that the role assigned therein to the Detenu No.1 pursuant to the investigation carried out is that: - (a) Detenu was the founding member/owner of three Hong Kong based supplier firms viz. M/s Trackon Logistics Limited, Yottabyte International Co. Limited and M/s SFS Import & Export Co. Limited, and from these supplier firms, goods were imported in the name of shell entities/dummy firms owned by the Detenu No.1 and that he used to decide the prices at which such goods are to be invoiced and declared before the Indian Customs. The value of the imported goods declared by these shell entities before Customs was allegedly roughly 5% (1/20th) of the actual purchase value of these goods; (b) That the Detenu No.1 was the mastermind behind perpetrating the entire modus operandi of mis-declaration /undervaluation of imports through several dummy firms owned/controlled by him and differential remittances for the imported goods were remitted through hawala channels in order to evade custom duties, t....
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...."RUDs") including but not limited to those supplied to the Detenus, but also those on the record with the Detaining Authority; and the axiomatic consequential non-consideration thereof by the Detaining Authority has rendered of the impugned detention order invalid. Counsel also submitted that the supply of illegible copies of RUDs to the Detenus, has further severely prejudiced the detenus from filing an effective representation before the Detaining Authority as well as the Advisory Board. 6. It is submitted in this behalf by the Ld. Senior Counsel that, the proposal for preventive detention was received by the Detaining Authority from the Advisory Board only on 24.11.2021 and with surprising alacrity less than 2 days thereafter on the 26.11.2021, the impugned detention order was passed after considering and relying upon 977 pages of RUDs including the admittedly illegible documents. It is further submitted that it would be humanly impossible for the Detaining Authority to sift through such voluminous documents diligently in the said short span of a day and half; and for the Detaining Authority to arrive at the subjective satisfaction; and as a result the impugned Detention Orde....
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....t they do not want to move any bail application; xv. Preliminary investigation report enclosed in letter dated 18.10.2021 received from DRI HQ; xvi. Statement of Sh. Ravichandra Mishra registered by Income Tax department referred to in the Detention Order; xvii. Signed pages of Sh. Javed Khan"s statement dated 22.10.2021; xviii. Summons issued to persons who have allegedly not joined investigation (mentioned in Ground [xxvi] of the impugned detention order)" At this stage it is observed that in the RUDs, that were supplied, the following documents were found to be completely illegible: - Sr. No. of list of RUDs Description Page No. 3. Statement of Zakir before I/Tax Deptt 61 to 68, 75 to 89, 93 to 100 & 105 to 110 3. Statement of Priyanka Razdan before I/Tax Deptt 135, 137 to 139, 141 to 150, 155, 156, 166, 167, 170 to 172 9. Statement of Sanjeev Kumar u/s 108 Customs Act 217, 220 & 223 15. Panchnama dated 18.10.2021 drawn at the office of Custom Broker M/s Sai Dutta Clearing Agency Pvt. Ltd 244 & 245 18. Letter dated 19.10.2021 from I/Tax pertaining to forensic image of PR iphone and Zakir....
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....an, (1996) 11 SCC 393; and (ix) Chandra Prakash v. State of U.P., (2002) 4 SCC 234." 8. It is furthermore submitted that, the Detenus representation dated 21.12.2021 seeking legible copies of RUDs was summarily rejected by Detaining Authority vide communication dated 28.12.2021 in the most casual, cavalier and mechanical manner. It is reiterated that, not furnishing, or supplying the relevant material(s) or document(s) despite demand, is grossly violative of the fundamental rights of the detenus as enshrined and guaranteed under Article(s) 14, 21 & 22 of the Constitution. 9. The learned Senior Counsel appearing on behalf of the Detenus submits that, the Detaining Authority has merely acted as a rubber stamp by issuing the Detention Order, based solely upon the specious allegations made by the Sponsoring Authority. There was no subjective satisfaction and considered formulation of grounds on the part of the Detaining Authority, which could warrant the passing of the detention order under Section 3(1) of the COFEPOSA. The Detaining Authority has relied upon certain documents, copies whereof were not made a part of the RUDS, as for example, in Para xiv of Grounds of Det....
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....rted as 2000 SCC OnLine Bom 684. iii. Narendra Bahadur Lama v. Union of India, reported as 2001 SCC OnLine Del 521. iv. Dimple Prakash Shah vs. UOI- reported as 2010 SCC Online Del 1605. v. Anwar Abdulla v. UOI, reported as 1991 SCC Online Kar 470. vi. Mohinder Singh Gill v. Chief Election Commr., reported as (1978) 1 SCC 405. vii. Gautam Jain v. Union of India, reported as (2017) 3 SCC 133. viii. Mohd. Nashruddin v. Union of India, reported as 2021 SCC OnLine Del 4017. ix. Manjit Singh Grewal v. UOI, reported as 1990 (Supp) SCC 59. x. Dharmista Bhagat v. State, reported as 1989 Supp (2) SCC 155. xi. Bhupinder Singh v. UOI, reported as (1987) 2 SCC 234. xii. A. Geetha vs. State of T.N., reported as (2006) 7 SCC 603. ARGUMENTS ON BEHALF OF THE RESPONDENT 12. Per Contra, Mr. Chetan Sharma, the learned Additional Solicitor General of India appearing on behalf of the Respondents would submit that the impugned detention orders dated 26.11.2021 passed by the Competent Authority under Section 3 (1) of the COFEPOSA are legal, valid and constitutional and the same have been passed by the Competen....
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....ts which have not influenced the decision making of the Detaining Authority in any manner. 16. It is submitted that all evidences relied upon in this case and served on the Detenus were invariably produced before the Detaining Authority for the latter's subjective satisfaction. It is further submitted that any proposal for preventive detention under COFEPOSA must pass through an elaborated procedure of screening and approval from officers of the Department as well as from a Screening Committee comprising of senior officers of Customs, CBI and the Law Department. Only thereafter does the detaining authority consider the proposal along with all the relevant materials and arrive at the subjective satisfaction that preventive detention of the detenu(s) is necessary. The Detention Order is then issued along with the detailed grounds of detention. It is further submitted that, every document / material which was relied upon for the purpose of arriving at the subjective satisfaction in the issuance of the detention order, has been supplied to the Detenus under proper acknowledgement. It is further submitted that therefore, the subjective satisfaction of the detaining authority cannot b....
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....ing grounds that have led to the subjective satisfaction of the Detaining Authority. It is further submitted that, the Detenu instead of seeking legible copies, should have ignored the illegible document and should have filed his representation by excluding the illegible documents. The summary of the argument was that in view of section 5A issues relating to illegible documents having been placed before the Detaining Authority, and consequent supply of illegible documents as relied upon document must be ignored. Reliance in this regard has been placed on the judgement of the Hon'ble Supreme Court in Gautam Jain v. Union of India reported as (2017) 3 SCC 133. 21. It is lastly submitted that, the case laws on which the Detenus have placed reliance in support of their case are distinguishable from the present case as in those cases, the alleged illegible documents were vital documents and had a bearing on the mind of the detaining authority. However, in the present case the alleged illegible documents are not vital and material or have a bearing on the formulation of the grounds of detention. The alleged illegible documents are the additional and supporting documents in the for....
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....utory bail under the mandate of Section 167(2) of the CrPC, no cogent or satisfactory explanation was offered or forthcoming. 25. We find it apposite at this stage to extract the observations made by the Hon'ble Supreme Court in a recent decision in Mallada K. Sri Ram vs. The State of Telangana & Ors. in Criminal Appeal No. 561 of 2022 (Arising out of SLP (Crl) No. 1788 of 2022, reported as LQ/SC/2022/476, specifically paragraph 15 as is reproduced hereunder: - "15. A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the maintenance of public order. In this case, the apprehension of a disturbance to public order owing to a crime that was reported over seven months prior to the detention order has no basis in fact. The apprehension of an adverse impact to public order is a mere surmise of the detaining authority, especially when there have been no reports of unrest since the detenu was released on bail on 8 January 2021 and detained with effect from 26 June 2021. The nature of the allegations against the detenu are grave. However, the personal liberty of an accused cannot be sacrificed on the altar of preventive ....
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....hority are illegible i.e., not readable. In this regard, this Court's decision in Mohd. Nashruddin v. Union of India & Ors., reported as 2021 SCC OnLine Del 4017 and the relevant paragraphs thereof are reproduced hereunder:- "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, W.P.(CRL.) 1924/2020 Page 52 of 86 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 docu....
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....ve representation against the same. The detaining authority on receipt of the said representation sent a reply denying that the copies of those documents 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 docume....
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....guage which he understands. The fact that the detenus wife knew the language in which the grounds were flamed does not satisfy the legal requirement. Reliance was placed by the learned Additional Solicitor General on a decision of this Court in Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala & Ors., [1985] 3 SCR 679 in support of his contention that unless the detenu was able to establish prejudice on account of the fact that the grounds of detention and the documents accompanying the grounds were not in a language known to the detenu the order would not be vitiated. There is no clear indication of the test of prejudice being applied in that case. On the facts relevant before the Court, a conclusion was reached that the detenu was merely reigning ignorance of English and on the footing that he knew English, the matter was disposed of. We must make it clear that the law as laid down by this Court clearly indicates that in the matter of preventive detention, the test is not one of prejudice but one of strict compliance with the provisions of the Act and when there is a failure to comply with those requirements it becomes difficult to sustain the order. (See ....
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.... You i.e. Sanjeev Kumar Yadav filed an application dated 28.10.2021 before the Ld. CMM, Patiala House, New Delhi stating that the statements dated 18/19.10.2021 before the DRI officers have been obtained under coercion and torture. You accordingly prayed the Hon'ble Court that your statement dated 18/19.10.2021 may be ignored and you mat be allowed to retract the same. The DRI filed a rebuttal dated 24.11.2021 before the Hon'ble Court stating inter alia that retraction application contained untrue averments and are without any substance, afterthought, and farce. In reply, DRI stated that the applicant i.e. you tendered your voluntary statement under his signature and the said statement has also been confirmed in your handwriting towards the end. Further, the retraction has been made 10 days of the statement; the long gap between the recording of the statement and the retraction application makes it clear that the retraction application filed by you is an afterthought and based on legal tutoring. It was further stated by DRI that the applicant i.e. you was medically examined at Ram Manohar Lohia Hospital Delhi and thereafter produced before the Ld. Duty Magistrate. As per the reply ....
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....no doubt, it was not necessary, while considering the case of the petitioner detenu, to place all or any of the documents which are relevant and are relied on in the proceedings of a co-accused, but where the sponsoring authority opts out of its own volition to place any document of the other co-detenu, not merely as a narration of fact but reiterating in details the confession made by him, then it cannot be said it would not prejudice the case of the detenu. If this has been done it was incumbent for the sponsoring authority to have placed their retraction also. As held in Rajappa Neelakantan case [(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 place 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 spo....
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....numerated in Section 5-A of the COFEPOSA Act cannot, therefore, be applied on the fact situation in this case. 9. In this context, it is to be mentioned that the detention order passed against Sowkath Ali was quashed by this Court when he challenged that detention order under Article 32 of the Constitution (vide A. Sowkath Ali v. Union of India [(2000) 7 SCC 148 : 2000 SCC (Cri) 1304 : (2000) 5 Scale 372]." 35. Further, 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.....
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.... of ensuring that the grounds of detention, including legible copies of all RUDs and other 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 failure and non-supply of legible copies of all RUDs despite of a request and representation made by the Detenus for the supply of the same, renders the order of detention illegal and bad in law; and vitiates the subjective satisfaction arrived at by the Detaining Authority. 40. We, therefore, answer the first issue by observing that, the Detaining Authority gravely erred in relying upon illegible documents which is equivalent to non-placement of RUDs by the act of omitting them from due consideration which consequently vitiates the subjective satisfaction arrived at by the detaining authority. Resultantly, in our considered view, the impugned detention order stands invalidated. 41. It therefore becomes incumbent upon us to determine the alternative issue framed hereinabove. Insofar as the second issue, as to whet....
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....erve the Detenus submission that the order of detention was passed in a tearing hurry without due application of mind. A timeline of the passing of the detention order is as follows; the last document furnished to Detenu is dated 24.11.2017 (RUD-60 to 64). Since one of the last document is prepared only on 24.11.2017 by the counsel for the detenu and filed in the lower Court on the same day, copy of which was supplied to the sponsoring authority on 24.11.2017 itself, which was presumably forwarded by the sponsoring authority to the Detaining Authority only on or about 25.11.2021, it is axiomatic that it would be humanly impossible for the Detaining Authority to scrutinize 977 pages of documents and formulate the grounds of detention and thereafter pass the detention order on 26.11.2017 within a day and a half that too against two detenus. The Detaining Authority while arriving at its conclusions, inter alia, in Para 11 of the Grounds of Detention has clearly and categorically averred as under: "11. While passing the Detention Order under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act; 1974, I have referred to and relief up....
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....he peculiar facts and circumstances of the present petition. 49. In the case of Praduman Singh v. Union of India & Ors., 2004 SCC Online Del 446, this Court had held that- "15. There seems to be force in this argument because according to this reply, the file was submitted to the detaining authority on 6th May, 2003 along with the document at Sl. No. 37 of the relied upon documents together with the draft Grounds of detention by the Deputy Secretary (COFEPOSA) so that in case the detaining authority ultimately decided to pass the detention order against the accused person, it may also like to go through the Grounds of detention placed on the file and vet the same with whatever changes or additions it may deem fit. Whether such a procedure/practice as has been adopted in the case can be said to be in accordance with law or established procedure and practice which is followed in such like matters? We must remember that Section 3 of the Act provides for power to make detention order. Sub-Section (1) of Section 3 of the Act speaks of the authorities who are competent to make detention orders. In the case of Central Government, an officer not below the rank of a Joint Secret....
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....ention order under various preventive detention laws, it has to be different. Adoption of such a practice or procedure would vitiate the order as the detaining authority is likely to be influenced by such an assistance rendered by the lower functionaries, with whatever bona fide or sincerity it may be. It would have been a different thing if the entire material had been placed before the detaining authority and he had applied his mind and reached a satisfaction about the need to detain the petitioner on certain grounds and then the lower functionaries had assisted him in formalising the task of preparation and issuance of the detention order. We have, therefore, no hesitation in holding that the impugned detention order can again be termed as without application of mind by the detaining authority himself and the satisfaction recorded in the case in hand was not solely of the detaining authority. The impugned order is vitiated on this count as well." 50. Significantly, the aforementioned judgement also held, ".......Therefore, it is not possible to hold that the impugned order which is vitiated on account of non-application of mind by the detaining authority, can be save....