TaxTMI 
TaxTMI 
2022 (11) TMI 221
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.... At the outset, it would be pertinent to note that vide common judgment dated 02.05.2022, in the case titled Zakir Khan vs. Union of India & Ors., reported as 2022 SCC OnLine Del 1284, this Court quashed and set aside detention orders issued against the co-detenus therein. 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: - 2.1. The detenu is engaged in his profession as a Customs House Agent ("CHA") and has been handling the customs clearing work for various importers/exporters at customs ports in Kolkata and other Indian ports. The investigation against the detenu emanates from an investigation initiated by Income Tax Department and thereafter by the Directorate of Revenue Intelligence ("DRI") against one Zakir Khan whose consignments were cleared as a CHA by the detenu. The detenu, it is alleged, cleared import consignments of Zakir Khan's firms knowingly and being fully aware of the fact that Zakir Khan used to import old and used laptops, mobile phones, computer/mobile accessories from Dubai, Hong Kong, China and USA by mis-declaration and underva....
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....ive Lakh and Eighty Five thousand Four Hundred and Eight Only), and goods imported by M/s R K Overseas (IEC- AMHPR9196F) vide Container No. WHLU5698385, valued at Rs. 12,20,37,060/- (Rupees Twelve Crore Twenty Lakhs Thirty Seven thousand and Sixty Only) and goods imported by M/s Viha International (IEC- HMPPS4660J) vide Container No. PCIU8010617, valued Rs. 13,32,92,300/- (Rupees Thirteen Crore Thirty Two Lakhs Ninety Two thousand and Three hundred Only). 2.5. That during the forensic analysis of mobile phones resumed by the Income Tax Department, a WhatsApp group in the name "Yoga with twist" was discovered installed allegedly in the mobile phone of Zakir Khan, wherein Zakir Khan is the group administrator and the other participants of the group include Zakir Khan's China Mobile number, one Priyanka Razdan's two Mobile Nos. and also the Mobile No. of the detenu. In the said group, the said Priyanka Razdan shared a Bill of Lading number corresponding to container number WHLU5698385 which is allegedly indicative of the fact that the detenu was well aware of the actual quantity and description of the restricted goods being so imported. 2.6. That the detenu was summo....
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....ich reflect the detenu's high potentiality and propensity to indulge in such prejudicial activities in the future; therefore, it was concluded by the sponsoring authority that there is a need to prevent the detenu from smuggling of goods. ARGUMENTS ON BEHALF OF THE PETITIONERS: - 4. Mr. Shubhankar Jha, learned counsel appearing on behalf of the detenu vehemently assails the impugned order of detention whilst submitting that the non-supply of relied upon documents (hereinafter referred to as the 'RUDs') has jeopardized the only right available to the detenu i.e. the right of making an effective representation. Further that, it is now an admitted position with regard to the supply of illegible copies of the subject RUDs, including but not limited to, those supplied to the detenu; and the axiomatic consequential non-consideration thereof by the Detaining Authority rendering the impugned detention order as invalid; specifically in light of the decision of this Court in Zakir Khan v. Union of India & Ors. reported as 2022 SCC OnLine Del 1284; and consequently, the detenu urges release from detention on the ground of parity as being better placed than the detenus in the Zakir (Supr....
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....uments/ emails mentioned in Panchnama dated 18.10.2021 drawn at Customs Broker M/s Sai Dutta Clearing Agency Pvt. Ltd. Mumbai. Further documents mentioned in Annexure A to Panchnama dated 18.10.2021 not supplied to the detenu. 16. In Panchnama dated 13.10.2021 certain documents showing details of the goods found in the container and seized were enclosed as Annexure however, neither such annexure provided, nor such documents were provided to the detenu. 24. In Panchnama dated 22.10.2021 drawn at M/s Jyoti Enterprises a list of articles with number of pages seized is given in tabulated form however, no such documents have been provided to the detenu. 28,32, 44. Order for extension of judicial remand of Zakir Khan and Sanjeev Kumar was not supplied to the detenu. 44. It is mentioned in letter dated 18.11.2021 issued by Sh. Satish Aggarwala Advocate that a certain application has been moved by the accused informing that they do not want to move any bail application and that the court directed that application kept on record. Copy of such application and court order in this regard was not supplied. Other documents and RUDs that are stated to be illegible/dim a....
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....Anr. reported as 1999 2 Supreme Court Cases 413. iii. Mohd. Nashruddin v. Union of India, reported as 2021 SCC OnLine Del 4017. iv. Ankit Ashok Jalan v. Union of India, reported as (2020) 16 SCC 127. v. Tsering Dolkar v. Administrator, Union Territory of Delhi & Ors. reported as (1987) 2 Supreme Court Cases 69. ARGUMENTS ON BEHALF OF THE RESPONDENT 11. Per Contra, Mr. Kirtiman Singh, the learned Central Government Standing Counsel appearing on behalf of the official respondents would submit that the impugned detention order dated 28.12.2021 was passed by the detaining authority under Section 3 (1) of the COFEPOSA only after arriving at his subjective satisfaction based on relevant and sufficient material. It is further submitted that it is settled law as held by the Hon'ble Supreme Court in a catena of judgments that if there is some material before the detaining authority to arrive at his subjective satisfaction with regard to the propensity of the proposed detenu being involved in prejudicial activities in the future, the contention of non-consideration of other documents/material cannot be a ground for vitiating the detention order. 12. It is ....
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....d circumstances, as well as the relevant provisions of law and the decisions relied upon by the parties; and having perused the material on record the following issues arise for the consideration of this Court in these proceedings: - A) Whether the supply of illegible RUDs vitiates the subjective satisfaction of the detaining authority thereby rendering the impugned detention order invalid. B) Whether in the event that issue (A) is answered in the affirmative, the argument premised on S.5A of the COFEPOSA Act, in the facts and circumstances of the present case will have the effect of saving the detention order from invalidation. C) Whether the present detenu is similarly placed as the detenus in the Zakir (supra) case so as to attract the ground of parity. 17. We find it apposite at this stage to consider and reiterate 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 ....
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....nal set of relied upon documents RUDs furnished to the detenues at the time of their detention. The Court has perused the said documents. The Court has further asked Mr. Sumit Kumar, Senior Intelligence Officer, Directorate of Revenue Intelligence to examine the said original documents and inform this court as to whether they are the set of documents that were served upon the detenues. The said official appearing on behalf of DRI confirms that the set of documents produced in court on behalf of the detenues are the originals, which were served upon them at the time of their detention." 20. It is observed that the Ld. CGSC in the present petition has fairly admitted in oral submissions that the RUDs supplied to the detenu were the same as those supplied in the Zakir (Supra) case as the present petition arose from the same investigation. Therefore, several RUDs supplied to the detenu, as well as those on the record with the detaining authority were admittedly illegible/dim/blank pages. In this regard this Court's in Mohd. Nashruddin v. Union of India & Ors., reported as 2021 SCC OnLine Del 4017 observed as follows: - "47. It is trite to say that a person....
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....ve satisfaction of the detaining authority in making the said order of detention. So the detention order cannot be termed as illegal and bad for non-supply of legible/typed copy of the said document i.e. panchnama dated 12-2-1988. The panchnama dated 12-2-1988 which had been referred to in the list of documents referred to in the grounds of detention and a copy of which had been given to the detenu along with the grounds of detention, is not at all legible as is evident from the copy served on the detenu. It is also not in dispute that on receiving the documents along with the grounds of detention the detenu had made a representation to Respondent 1 stating that some of the documents including the panchnama which had been supplied to him are illegible and as such a request was made for giving typed copies of those documents to enable the detenu to make an effective 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) Wh....
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....o 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 to be passed in the interest of the State and for the public good." 22. In view of the admitted position by the official respondents and the above extracted decision of this court, we are of the opinion that, the RUDs supplied to the detenu, as well as, relied upon by the Detaining Authority in arriving at its 'subjective satisfaction' were admittedly illegible, therefore, grossly violating the constitutional right of making an effective representation, guaranteed to the detenu under Articles 14,21 and 22(5) of the Constitution of India. 23. In this behalf, the contention made on behalf of the official respondents is to the effect that, it is incumbent upon the de....
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....h the responsibility 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 detenu 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. 26. The decision of the Hon'ble Supreme Court in Kamarunnisa vs. Union of India, reported as (1991) 1 SCC 128, does not come to the aid of the official respondents, since in the present case, we agree with the submissions made on behalf of the detenu, that the present is a case of non-placement of vital facts and documents before the Detaining Authority owing to their illegibility and that the 'subjective satisfaction' is vitiated since the latter was not in possession of vital RUDs. The ratio in Kamarunnisa (supra) is, therefo....
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....ua severability of grounds stipulated under the provision of 5A of the COFEPOSA Act, are neither attracted nor available, in law. 30. It is well settled and not in dispute that under the provisions of Section 3 of COFEPOSA, it is only the detaining authority, which can ultimately decide to pass or not, a detention order against any person, and that too, after perusing each and every document and material placed before it. It is also not in dispute that the 'subjective satisfaction' of the detaining authority itself is to be arrived at after perusing all the relevant documents and material produced. This is a constitutionally provided condition precedent for passing a valid order of detention. It is also an admitted position that many of the RUDs placed before the detaining authority were illegible/dim/blank pages. We, therefore, find considerable force in the contention that had the detaining authority itself perused the RUDs for arriving at its 'subjective satisfaction' and formulation of grounds, it would have been alive to the fact that many of the RUDs placed before it were wholly illegible. 31. In view of the foregoing discussion, this issue is resultantly decided in fav....