TaxTMI 
TaxTMI 
2008 (9) TMI 15
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....Foreign Inward Remittance Certificate shown by him did not relate to his earnings from the use of the imported cars. In addition to the above, all the vehicles which were imported under the aforesaid licences were registered as private vehicles. 5. Shri Sanjay Bhandari was found to have violated various provisions/conditions of the Exim Policy, Foreign Trade Policy and Customs exemptions notifications and during the investigations conducted by the Directorate of Revenue Intelligence, 51 out of 61 vehicles were seized, though most of them were released provisionally on payment of differential duty and execution of Bonds and Bank Guarantees. Shri Bhandari's said activities were held to amount to smuggling as defined in Section 2(39) of the Customs Act as adopted in Section 2(e) of the COFEPOSA Act, 1974. Considering the nature and gravity of Shri Bhandari's activities over a period of time and his high potentiality and propensity to indulge in such prejudicial activities in future, the order of detention was issued against him on 15th December, 2005, under Section 3(1) of the COFEPOSA Act, 1974. 6. Aggrieved by the order of detention, the detenu's wife, Ranu Bhandari, filed a Hab....
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....cuments mentioned in the detention order or referred to therein were not required to be supplied to the detenu. The learned Additional Solicitor General reiterated that in the instant case all the documents on which the Detaining Authority had relied while issuing the detention order, had been duly supplied to the detenu, who, however, insisted that he should have also been provided with certain documents which were within his knowledge. The said documents had been itemised as his representation dated 12.12.2005, the show-cause notice dated 22.7.2004 which had been received by him, his writ petition No.5431 of 2002 and the I.E.C. Code pertaining to the three proprietorship firms belonging to him, which had not been placed before the Detaining Authority. It was submitted that not only did the detenu have knowledge of all the said documents, but they were available with the detenu. 11. In support of his aforesaid contention the learned Additional Solicitor General firstly relied on the decision of this Court in Radhakrishnan Prabhakaran vs. State of Tamil Nadu [(2000) 9 SCC 1790], wherein while considering an identical question this Court, inter alia, observed as follows: "We mak....
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.... order. 15. The learned Additional Solicitor General urged that the instant case would fall within that class of cases wherein this Court has held that non-supply of all the documents mentioned in the detention order, which had no relevance in regard to the Detaining Authority's satisfaction in passing the order of detention, would not vitiate the same. It was submitted that the High Court had erroneously proceeded on the basis of the other class of cases wherein this Court had held that even if one of the grounds of detention was found to be vague or defective or any of the documents on which reliance had been placed by the Detaining Authority had not been supplied to the detenu, it would vitiate the detention order, although the same did not apply in the facts of this case. It was submitted that the impugned order of the High Court was contrary to the views expressed by this Court in similar matters and the same was, therefore, required to be set aside. 16. The judgment and order of the High Court was, however, strongly defended on behalf of the respondent-wife of the detenu. It was submitted by Mr. Vikram Chaudhary, learned counsel appearing for the respondent, that this Cou....
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....The detenu, therefore, had the right to be supplied with the grounds of detention along with the documents which were referred to or relied upon and if there was failure or even delay in furnishing those documents, it would amount to denial of making an effective representation. It was also observed that it was immaterial whether the detenu already knew about their contents or not, but the non-supply of the copies thereof was fatal as was held in Mehrunissa v. State of Maharashtra [(1981) 2 SCC 709]. It was emphasised that in order to appreciate this point it would have to be kept in mind that the detenu is in jail and has no access even to his own documents. 19. Learned counsel submitted that in the case of Ashadevi wife of Gopal Ghermal v K.Shivraj [(1979) 1 SCC 222], this Court had indicated that if material or vital facts, which could influence the mind of the Detaining Authority one way or the other on the question whether or not to issue the detention order, are not placed before the Detaining Authority or are not considered by the said authority, it would vitiate its subjective satisfaction rendering the detention order illegal. 20. Learned counsel submitted that the sai....
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....stounds you, Each time you look at a star. Stay free, with no walls to hide you, You're as free as the roving tide, So there's no need to hide. Born free and life is worth living, It's only worth living, if you're born free." 24. The aforesaid words aptly describe the concept of personal liberty and individual freedom which may, however, be curtailed by preventive detention laws, which could be used to consign an individual to the confines of jail without any trial, on the basis of the satisfaction arrived at by the Detaining Authority on the basis of material placed before him. The Courts which are empowered to issue prerogative writs have, therefore, to be extremely cautious in examining the manner in which a detention order is passed in respect of an individual so that his right to personal liberty and individual freedom is not arbitrarily taken away from him even temporarily without following the procedure prescribed by law. 25. We have indicated hereinbefore that the consistent view expressed by this Court in matters relating to preventive detention is that while issuing an order of detention, the Detaining Authority must be provided with all the materials available a....
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....adhakrishnan Prabhakar's case (supra) which had make it mandatory for the Detaining Authority to supply copies of all documents which had been relied upon by the Detaining Authority to the detenu, whether he had knowledge of their contents or not. Of course, in Radhakrishnan Prabhakar's case (supra) it was also made clear that there is no legal requirement that a copy of every document mentioned in the order has to be supplied to the detenu. What is, therefore, imperative is that copies of such documents which had been relied upon by the Detaining Authority for reaching the satisfaction that in the interest of the State and its citizens the preventive detention of the detenu is necessary, have to be supplied to him. Furthermore, if in this case, the detenu's representation and writ petition had been placed before the Detaining Authority, which according to the detenu contained his entire defence to the allegations made against him, the same may have weighed with the Detaining Authority as to the necessity of issuing the order of detention at all. 29. We are inclined to agree with the submissions made on behalf of the respondent that, notwithstanding the nature of the allegations ....