TaxTMI 
TaxTMI 
2022 (11) TMI 222
X X X X Extracts X X X X
X X X X Extracts X X X X
....t petition qua the detenu are as follows: (i) The Directorate of Revenue Intelligence, Delhi Zonal Unit (Respondent No. 4, hereinafter referred to as 'DRI') received intelligence, that a syndicate comprising certain Chinese, Taiwanese and South Korean nationals, in association with some Indian individuals are indulging in smuggling of gold, into India through air cargo by concealing the gold in transformers of electroplating/re-working machines etc., and one such consignment has been imported by the said syndicate in the name of M/s Healthy Future Leaders Private Limited and is likely to arrive at Delhi Cargo Services Centre, Air Cargo Complex, IGI Airport, New Delhi on 18.11.2021, vide House Airway Bill No. SZGF21113657. (ii) Acting on the said intelligence, the said purported consignment was examined by the officers of DRI on 18/19.11.2021 at Import Shed, Delhi Cargo Service Centre, Air Cargo Complex, IGI Airport, New Delhi and 80.126 kg of 995 purity (24 Carat) foreign origin gold, in the form of 'E' & 'I' shaped plates, having a market value of Rs. 39,31,38,219/- was recovered. Panchnama dated 18/19.11.2021 showing the recovery of the said 80.1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ation filed by the detenu. (xii) Vide order dated 13.12.2021, the learned CMM, Patiala House Courts granted bail to the detenu. (xiii) The detenu, immediately on his release from the jail, filed his retraction application dated 14.12.2021 before the learned CMM Patiala House Court, New Delhi. (xiv) Vide four separate orders dated 21.12.2021, the learned CMM, Patiala House Court, New Delhi granted bail to all the four foreign nationals. (xv) Vide order dated 21.12.2021, the learned CMM, Patiala House Court, New Delhi granted bail to the accused Neeraj Varshney. (xvi) On 21.12.2021, DRI filed a Crl. M.C. No. 3536/2021, under section 482 Cr.P.C. before the Hon'ble Delhi High Court, challenging the order dated 13.12.2021 passed by the learned CMM, PHC, New Delhi granting bail to the detenu. (xvii) DRI filed separate petitions before the Hon'ble Delhi High Court under section 482 Cr.P.C. challenging the orders dated 21.12.2021 passed by the learned CMM, PHC, New Delhi granting bail to the co-accused Neeraj Varshney and all the four foreign nationals which are pending adjudication. (xviii) DRI filed an application dat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....enu in the jail on 15.03.2022) had informed the detenu that the representation dated 02.03.20222 stands rejected with the following statement: "...the aforesaid representation dated 02.03.2022 has been carefully examined and considered by the Joint Secretary (COFEPOSA), the Detaining Authority, but it is regretted that the same has been rejected." (xxv) After the rejection of the detenu's representation dated 02.03.2022 vide communication dated 15.03.2022 and having received no communication with respect to his representation dated 10.03.2022 addressed to the Director General, CEIB, New Delhi, the detenu made another representation dated 04.04.2022 to the Hon'ble Chairman and his companion members of the Central Advisory Board, High Court of Delhi, New Delhi, through his counsel pointing out several vital documents that had not been supplied and submitting that failure to supply the same violated Article 22(5) of the Constitution of India; thus vitiating the detention. The detenu further prayed for the revocation and quashing of the impugned detention order and his forthwith release from custody. (xxvi) The hearing before the Hon'ble Advisory ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l as fact. B. Inordinate and unexplained delay in passing of the impugned detention order. C. Inordinate and unexplained delay on the part of the Central Government in deciding the representation filed by the detenu. D. The absence of subjective satisfaction and non-placement of vital documents by the sponsoring authority and/or non-consideration thereof by the detaining authority and non-supply thereof to detenu. E. Use of the word "or in the detention order under grounds of detention. F. Detention was vitiated in view of the violation of settled mandate of law and procedure. G. Non-application of mind by detaining authority while passing the detention order renders the same to non-est in the eyes of law. H. Inchoate and incomplete investigation. I. Non-compliance of procedural safeguards/requirements. 4. In response to the aforesaid petition, a counter affidavit on behalf of respondent nos. 1 to 3 has been filed contesting the aforesaid grounds raised on behalf of the petitioner. Supporting the order of detention, it has been asserted that the same is legally and constitutionally valid in as much as it has....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nion of India and Ors., 2021 SCC OnLine Del 4017, wherein it was held as under:- "93. On the sixth issue regarding the delay on the part of the Central Government in deciding the representation filed by the detenu, it would be relevant to consider the circumstance that the detenu was detained on 12.10.2020 and filed representation dated 27.10.2020 with the Detaining Authority, as well as before the Central Government. Although the Detaining Authority rejected his representation on 09.11.2020, no decision was taken by the Central Government on the detenu's representation. Instead the Central Government made a reference dated 10.11.2020 to the Central Advisory Board, which gave its opinion qua the sufficiency of the grounds with regard to the detenu's detention. The subject representation was finally rejected by the Central Government only on 23.12.2020, three days after confirmation by it of the order of detention by the Central Advisory Board. 94. A bare perusal of the above clearly reflects that there was massive delay of 57 days by the Central Government in dealing with the petitioner's representation. 95. In Ankit Ashok Jalan v. Union of In....
X X X X Extracts X X X X
X X X X Extracts X X X X
....resentation is fatal to the continued detention of the detenu. 97. In this view of the matter and the circumstance that this proposition is too well settled by a long line of decisions, it is not considered necessary for us to examine the authorities relied upon by the respondents on this aspect. 98. We, therefore, hold that there has been inordinate and unexplained delay on the part of the Central Government in deciding the statutory representation filed by the detenu." 10. Per contra, Mr. Ajay Digpaul, learned Central Government Standing Counsel (hereinafter referred to as 'CGSC'), appearing on behalf of the respondents, submitted that the impugned detention order, dated 01.02.2022, passed by the competent authority under Section 3(1) of the COFEPOSA is legal and constitutional and the same has been passed by the competent authority with due application of mind and suffers from no illegality. With respect to the aforesaid ground urged by the petitioner, learned CGSC invites the attention of this Court to Para 4(iv) of the para-wise reply in the counter affidavit filed by Mr. Naresh Kumar, Deputy Secretary to the Government of India, CEIB, Department of Revenu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....es significance in view of the decision in Ankit Ashok Jalan vs. Union of India & Ors., (2020) 16 SCC 127. The Hon'ble Supreme Court, in Ankit Ashok Jalan (supra), was dealing with a situation where the representation by the detenu was made to the detaining authority who was a specially empowered officer exercising the powers of detention. 12. Learned Senior Counsel placed reliance on Para 17 of Ankit Ashok Jalan (supra), wherein the Hon'ble Supreme Court had categorized four stages for receipt and disposal of a representation made by the detenu. In particular, learned Senior Counsel relied upon the third category, as laid down in Para 17.3 of the said judgment. "17.3. If the representation is received after the reference is made but before the matter is decided by the Advisory Board, according to the principles laid down in Haradhan Saha, the representation must be decided. The decision as well as the representation must thereafter be sent to the Advisory Board." However to determine the present issue at hand, the discussion and the conclusion in the subsequent paras of Ankit Ashok Jalan (supra) will be relevant and are being reproduced as under: "18. There....
X X X X Extracts X X X X
X X X X Extracts X X X X
....w proceed to deal with these submissions. xxx 23. It must also be borne in mind that in all cases, the appropriate Government would be acting in two capacities; one while considering the representation and the other while taking appropriate decision after a report is received from the Advisory Board that there is sufficient cause for detention. Since the decision would be required to be taken in these two capacities, it was observed in K.M. Abdulla Kunhi that it would be proper for the appropriate Government to wait till the report is received from the Advisory Board in cases dealt with in para 16 of the decision. But such may not be the case with the detaining authority who is a specially empowered officer. xxx 25. In terms of Section 8, the report of the Advisory Board is meant only for the consumption of the appropriate Government and apart from the operative part of the report which is to be specified in a separate paragraph as per sub-section (c), the mandate in terms of sub-section (e) is to keep the report of the Advisory Board completely confidential. Thus, a specially empowered officer who may have passed the order of detention, by statu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing authority, namely, the specially empowered officer and to the appropriate Government as well as to the Advisory Board. In such situations there will be incongruity as stated above, which may be required to be corrected at some stage. However, such difficulty or inconsistency cannot be the basis for holding that a specially empowered officer while acting as a detaining authority would also be governed by the same principles as laid down in para 16 of K.M. Abdulla Kunhi." (emphasis supplied) 13. A bare perusal of the aforesaid discussion of the Hon'ble Supreme Court reflects that a clear distinction has been carved out with respect to consideration of representation made by the detenu, at the third stage, to the detaining authority, who could be the specially empowered officer who has passed the order of detention, as in the present case; and to the appropriate government. While noting the principle in Para 16 of the judgment in K.M. Abdulla Kunhi Vs. Union of India, (1991) 1 SCC 476, it was held that when the representation from the detenu is received after the matter has been referred to the Advisory Board, it would be proper for the appropriate government to wait till th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ent, in our view, settles the issue and answers the questions raised by Mrs. Mhatre on the basis of K.M. Abdulla's case. The Hon'ble Supreme Court, in Moosa's case, has taken Kunhi's case as well as other cases cited by Ms. Tripathi into consideration and has clearly laid down that the appropriate Government would not be justified in postponing the consideration of the representation while the matter was pending before the Advisory Board because the obligation of the Government to consider the representation was different from that of the Advisory Board. 31. In the instant case before us, admittedly, the representation of the detenu was received by the State Government after the matter was referred to the Advisory Board. The representation was kept pending and it was considered only after the receipt of the report of the Advisory Board. In the light of the discussion in the Judgments referred to hereinabove this course was impermissible and it violated the mandate of section 22(5) of the Constitution of India and thereby infringed the detenu's right to make his representation at the earliest for its expeditious consideration." 15. We have considered ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....4.6, 14.7, 14.8 & 14.9 of the judgment in Ankit Ashok Jalan (supra) has considered K.M.Abdulla Kunhi (supra) in detail. More specifically, it is recorded in Para 21 of Ankit Ashok Jalan (supra) as under : "21. We now proceed to deal with these submissions." It is thus clear that the decision of the Hon'ble Supreme Court in Ankit Ashok Jalan (supra) in Para 30 was in the context of an issue which arose for consideration in the said case and on which the judgment was delivered. Moreover, the Hon'ble Supreme Court in PASL Wind Solutions Private Limited vs. GE Power Conversion India Private Limited, (2021) 7 SCC 1 held that; "54. It is clear that there can be more than one ratio decidendi to a judgment. Thus, in Jacobs v. London County Council, the House of Lords, after referring to some earlier decisions, held, as follows : (AC pp. 36970 : All ER p. 741) ... however, this may be, there is, in my opinion, no justification for regarding as obiter dictum a reason given by a Judge for his decision, because he has given another reason also. If it were a proper test to ask whether the decision would have been the same apart from the proposition alleged to be obiter, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ied upon a judgment of a Division Bench of this Court in Mohd. Nasiruddin Vs. Union of India (supra) wherein it was held that inordinate and unexplained delay on the part of the central government in deciding the representation filed by the detenu is fatal to his continued detention. It is pertinent to note that the representation of the detenu in Mohd. Nasiruddin (supra) was received well before the reference was made to the Advisory Board. In the present case, admittedly, the representation made to the central government was after the reference to the Advisory Board. In this context, the observation made by Hon'ble Supreme Court in Para 19 of Ankit Ashok Jalan (supra) assumes significance. The observation made in Para 19 is reproduced hereunder: "19. However, it was for the first time that the decision in K.M. Abdulla Kunhi laid down in para 16 that it would be proper for the Government in the two situations dealt with in the said paragraph to await the report of the Board; those two situations being: 19.1. Where the representation is received before the matter is referred to the Advisory Board and where there may not be sufficient time to dispose of the represe....