TaxTMI 
TaxTMI 
TaxTMI 
2022 (12) TMI 1069
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....ed 01.02.2022 passed by Respondent No.1 in the interest of Justice. b) issue a writ of certiorari or any other appropriate writ or direction to quash and set aside the memorandum bearing No. PD-15001/08/2022-COFEPOSA dated 04.04.2022 issued by Respondent No.2 in the interest of Justice. c) issue a writ of certiorari or any other appropriate writ or direction to quash and set aside the order bearing No. PD-12001/08/2022-COFEPOSA dated 02.05.2022 passed by Respondent No.2 in the interest of Justice. d) issue a writ of habeas corpus or any other appropriate writ or direction to release the petitioner forthwith in the interest of justice. e) Also pass any other further order or direction in the facts and circumstances of the present petition." 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 investigation against the detenu emanates from an intelligence received by the Directorate of Revenue Intelligence, Delhi Zonal Unit (hereinafter referred to as "DRI") that a consortium consisting of certain Chinese, Taiwanese, and South Korean nationals, in collabo....
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....ection 108 of the Customs Act was recorded on 18/19.11.2021 and the statement of the detenu along with Dongyoung Oh, Liang Zhaobing alias Dawang Tsring, Li Wen Tsung and Choi Yong was recorded on 19.11.2021. In his statement under section 108 of the Customs Act, the detenu admitted with respect to his involvement in the illicit purchase, possession, carrying, transporting and in sale/disposal of the foreign origin gold trafficked into India by the abovementioned cartel. 2.7. On 20.11.2021, the detenu was arrested by officers of the DRI and produced before the Court of learned CMM, Patiala House Courts, New Delhi, and was remanded to Judicial Custody until 04.12.2021. The Detenu filed a bail application before the learned CMM Court and vide order dated 21.12.2021, the learned CMM, Patiala House Court, New Delhi granted bail to the detenu. 2.8. On 24.12.2021, the DRI caused to file a petition (Crl. M.C. No. 51/2022) before the High Court of Delhi, seeking cancelation of bail, granted to the detenu by learned CMM Court. On 17.05.2022, notice was issued to the sole respondent (detenu herein) and vide order dated 13.10.2022, the petition has been re-notified to 07.03.2023. 2.9. On th....
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....his involvement in the illegal purchase, possession, carrying, transporting and in sale/disposal of the foreign origin gold. (b) Further, considering the nature and gravity of offence, in which the detenu had engaged himself in an organized manner; and upon consideration of such prejudicial activities and the detenu's role therein; all of which reflect the detenu's high potentiality and propensity to indulge in such prejudicial activities in future; 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 PETITIONER: - 4. Mr. Tarun Gulati, learned Senior 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. 5. It is submitted in this behalf that vital and duly translated copies of documents, relied upon and referred to in the grounds of detention have admittedly not been served upon the detenu; despite his specific request in this behalf, to the De....
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....g smuggled goods in future" and "I am satisfied that there is need to prevent you from smuggling goods". In this behalf it is stated that it is no more res integra that where various grounds could be joined by the conjunctive "and" the use of the disjunctive "or" in such a case is impermissible. Subsequently, it is an admitted position that, no specific reason and sub-clause has been invoked at the time of passing the detention order, for the reason that, 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. 9. It was further submitted by the learned Senior Counsel for the detenu that the order of detention has been passed ostensibly to prevent the detenu from smuggling, abetting, engaging in transporting and concealing the smuggled goods in future. Be that as it may, the same is perverse and untenable because the entire case against the petitioner is based on inadmissible material which further vitiates the impugned detention order. 10. It was further submitted that by the learned Senior Counsel appearing on behalf of detenu that....
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....tention. 15. In order to buttress his exhaustive submissions, Mr. Tarun Gulati, learned Senior Counsel appearing on behalf of the detenu, has placed reliance on the following decisions:- i. Zakir Khan v. Union of India & Ors., reported as 2022 SCC OnLine Del 1284; ii. Mabelaranah Niranjan Puthran vs. State of Maharashtra, reported as 2014 (306) E.L.T 466 (Bom.); iii. Pooja Batra Vs UOI, reported as 2009 (237) ELT 17 SC; iv. Jagannath Mishra vs. State of Orissa, reported as AIR 1966 SC 1140; v. Sanjay Agarwal vs. UOI, reported as 2019 (369) E.L.T 279 (Del.); vi. Rajesh Gulati vs. Govt. of NCT of Delhi & Anr., reported as 2002 SCC Online SC 805; vii. M. Ahamed kutty v. Union of India, reported as (1990) 2 SCC 1; viii. State of Manipur and Others vs. Buyamayum Abdul Hana alias Anand and Anr., reported as 2022 SCC Online SC 1455; ix. Mallada K Sri Ram vs State of Telengana & Ors., reported as 2022 SCC Online SC 424; x. Icchu Devi Chorari vs Union of India, reported as (1980) 4 SCC 531; xi. Sanjay Agarwal vs Union of India, reported as 2019(369) ELT 279 Del; xii. Anwar Abdulla vs Union of India, reported as (1991) SCC Online Kar 470; ARGUMENTS ON BEHALF OF THE ....
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....faction, while passing the impugned detention order, has been supplied to the detenus, against proper acknowledgement. It is furthermore submitted that, therefore, the subjective satisfaction of the Detaining Authority cannot be stated to have been exercised in a hasty and casual manner. 20. It was further submitted by the learned Standing Counsel for the respondent that only copies of the documents on which the impugned detention order is primarily based, are required to be supplied to the detenu and not any and every document. Mere reference of certain instances for the purposes of completion of narration, would not entitle the detenu to be supplied with copies of such documents. It is submitted that all the relevant and vital document/material was placed by the Sponsoring Authority before the Detaining Authority; the perusal of which led to subjective satisfaction of the Detaining Authority in passing the impugned detention order. 21. It was further submitted that the documents at pages 58 and 59 of the RUDs are printouts of the petitioner's WhatsApp communication with co-accused Li Wen Tsung. On 19.11.2021, the aforementioned documents were duly confronted to the petition....
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....of the Customs Act and that of the co-accused, which is corroborated with the WhatsApp chat of the Petitioner and Li Wen Tsung. 25. In support of his arguments, Mr. Ravi Prakash, learned CGSC appearing on behalf of the respondent has placed reliance on the following decisions: - i. State of Gujarat vs. Adam Kasam Bhaya reported as (1981) 4 SCC 216; ii. Union of India vs. Arvind Shergill reported as (2000) 7 SCC 601; iii. Ashutosh Lahiri vs. State of Delhi reported as AIR 1953 SC 451; iv. K.T.M.S. Mohd. Vs. Union of India reported as (1992) 3 SCC 178; v. K.L. Pavunny vs. Asstt. Collector (HQ), Central Excise Collectorate reported as (1997) 3 SCC 721; vi. Gulam Hussain Shaikh Chogule v. S. Reynolds, Supdt. Of Customs reported as (2002) 1 SCC 155; vii. Jagannath Mishra vs. State of Orissa, reported as AIR 1966 SC 1140; viii. Sanjay Agarwal vs. UOI, reported as 2019 (369) E.L.T 279 (Del.); DISCUSSSION:- 26. Having heard learned counsel appearing on behalf of the parties and after due consideration of the rival submissions in the context of the facts and circumstances of the present case, as well as the relevant provisions of law and the decisions relied upon by the p....
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....nd 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. The Hon'ble Supreme Court of India was pleased to delineate precisely qua the 'subjective satisfaction' of the Detaining Authority in Union of India (UOI) and Ors. v. Dimple Happy Dhakad reported as (2019) 20 SCC 609, which was affirmed by the Hon'ble 3-Judges in that Bench in Union of India (UOI) v. Ankit Ashok Jalan reported as 2020 16 SCC 185, as follows:- "45. Considering the scope of preventive detention and observing that it is aimed to protect the safety and interest of the society, in State of Maharashtra and Ors. v. Bhaurao Punjabrao Gawande (2008) 3 SCC 613, it was held as under: 36. Liberty of an individual has to be subordinated....
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....hat an order of detention is clearly and unequivocally a preventive measure devised to afford protection to the society and particularly where the preventive detention is aimed to protect the security and safety of the nation, the Courts must strike a balance between the liberty of an individual and the needs of the society. 30. To the extent, that the issue, as to whether the non-supply of certain RUDs and the supply of illegible RUDs, vitiates the 'subjective satisfaction' arrived at by the Detaining Authority; and whether the detention order resultantly passed is vitiated on the ground of non-application of mind, is concerned; we have considered the rival submissions, as well as the material placed before us in the present proceedings. It was observed by this Court from a perusal of the relevant original record that several RUDs; including not only those supplied to the Detenu; but also those on the record with the Detaining Authority, are illegible i.e., not readable. 31. In this regard, recently, the Hon'ble Supreme Court, in State of Manipur and Others V Buyamayum Abdul Hanan alias Anand and Another (decided on 19.10.2022) reported as 2022 SCC OnLine SC 1455, observed that ....
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....legal position has been settled by this Court that the right to make representation is a fundamental right of the detenu under Article 22(5) of the Constitution and supply of the illegible copy of documents which has been relied upon by the detaining authority indeed has deprived him in making an effective representation and denial thereof will hold the order of detention illegal and not in accordance with the procedure contemplated under law. 22. It is the admitted case of the parties that respondent no. 1 has failed to question before the detaining authority that illegible or blurred copies were supplied to him which were relied upon while passing the order of detention, but the right to make representation being a fundamental right under Article 22(5) of the Constitution in order to make effective representation, the detenu is always entitled to be supplied with the legible copies of the documents relied upon by the detaining authority and such information made in the grounds of detention enables him to make an effective representation. xxx xxx xxx 24. In other words, the right of personal liberty and individual freedom which is probably the most cherished is not, in any ma....
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....t to do so, tantamount to denial of his constitutional right, thereby vitiating the detention order, founded on the said relevant material. 52. In this regard the Hon'ble Supreme Court has, in Dharmistha Bhagat V State of Karnataka & Ors reported as 1989 Supp (2) SCC 155 and in particular paragraph 5 thereof, observed that non-supply of legible copies of vital documents would render the order of detention illegal and bad. The relevant portion has been extracted hereinbelow: 5. The learned counsel appearing on behalf of Respondent 1, Union of India has contended that even though legible copy of panchnama referred to in the list of documents mentioned in the grounds of detention has not been supplied to the detenu yet the fact that five gold biscuits of foreign marking were recovered from the possession of the detenu was sufficient for subjective 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....
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....y directed to be released forthwith." 53. To the similar effect are the observations recorded in the judgment of the Apex Court in Manjeet Singh Grewal vs. UOI & Ors. reported as 1990 Supp SCC 59." 33. Further, in Union of India vs. Ranu Bhandari, reported as (2008) 17 SCC 348, the Hon'ble Supreme Court has observed as follows: - "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. 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 ....
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....e Relied upon Documents were served to the petitioner within statutory time. The allegation that the documents at pages No.529, 532,533,534 were not legible is wrong and is denied. Para 72: With reference to ground No. (zf), save and except what are matters of record, each and every contention is denied. In this regard it is respectfully submitted that documents at pages 58 and 59 arc printout of WhatsApp chat of the petitioner with co-accused Li Wen Tsung. The said documents had also been confronted to the petitioner during the recording of his statement under Section 108 of the Customs Act,1962 on 19.11.2021 The petitioner, in his own handwriting, had endorsed the fact that the same were his WhatsApp chat with Li Wen Tsung. Moreover, the relevant portion of the text was in English. The petitioner has written himself the relevant part of the said chat in English. Thus, no prejudice, at all, caused to the petitioner. As such the plea of the petitioner is baseless, misleading and untenable. As regards, pages Nos. 529, 532,533,534 of the RUDs, it is submitted that the same are legible and clear. The petitioner had received the said documents against proper acknowledgement. All th....
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.... the signatures of the detenu are obtained on the above mentioned document, leaves no manner of doubt that the contents of the aforementioned document were never explained to the detenu in a language that the detenu understands; and simply because he had acknowledged the same with his signatures in English, does not mean that he is proficient in Chinese or could understand the contents of the documents, which are in Chinese. 40. The Hon'ble Supreme Court in Harikisan vs. State of Maharashtra reported as AIR 1962 SC 911, has adjudicated upon the present question of law, particularly in paragraph 7. The said paragraph is extracted hereinbelow for the sake of facility: - "7. ... To a person, who is not conversant with the English language, service of the Order and the grounds of detention in English, with their oral translation or explanation by the police officer serving them does not fulfil the requirements of the law. As has been explained by this Court in the case of State of Bombay v. Atma Ram Sridhar Vaidya clause (5) of Article 22 requires that the grounds of his detention should be made available to the detenue as soon as may be, and that the earliest opportunity of making ....
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....ary to the Government of India stated that the grounds were explained to the detenu by the prison authorities. In the affidavit the name of the authority concerned or the designation is not mentioned. Nor is there any affidavit by the person who is stated to have explained the contents of the grounds to the detenu. The Under-Secretary further suggested that as the detenu had signed number of documents in English, it must be presumed that he was fully conversant with English. This is an argument which is based on pure speculation when the detenu has expressly stated that he did not know English. Merely because he may have signed some documents it cannot be presumed, in absence of cogent material, that he had a working knowledge of English..." 43. Further, in Lallubhai Jogibhai Patel vs. Union of India & Ors., reported as (1981) 2 SCC 427, in paragraph 20, it is observed and held as under:- "20. It is an admitted position that the detenu does not know English. The grounds of detention, which were served on the detenu, have been drawn up in English. It is true that Shri C.L. Antali, Police Inspector, who served the grounds of detention on the detenu, has filed an affidavit stating ....
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....;s own language. We are of the view that it would be open for the court to consider the facts and the circumstances of a case to reasonably ascertain whether the detenu is feigning ignorance of the language or he has such working knowledge as to understand the grounds of detention and the contents of the documents furnished." 45. Similarly, in Powanammal vs. State of T.N. & Another reported as (1999) 2 SCC 413 the Hon'ble Apex Court observed as under:- "9. However, this Court has maintained a distinction between a document which has been relied upon by the detaining authority in the grounds of detention and a document which finds a mere reference in the grounds of detention. Whereas the non-supply of a copy of the document relied upon in the grounds of detention has been held to be fatal to continued detention, the detenu need not show that any prejudice is caused to him. This is because the non-supply of such a document would amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making an effective representation against the order. But it would not be so where the document merely finds a reference in the order of detention or a....
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....e grounds of detention in a language 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 diffic....
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....were arrested under the provisions of the Customs Act, 1962 on 20.11.2021 and produced before the Magistrate." 52. These above extracted ground highlight the considerable gap of time that elapsed between the retraction of the statements by the detenu and the rebuttal thereof by the DRI. The Detaining Authority would also have been well advised to consider the aspect of admissibility of the statements, which stood retracted; and were only belatedly rebutted by the Sponsoring Authority. Further, we find from the record of the Detaining Authority that strong reliance has been placed upon the statement of not just the detenu but also the statement of Li Wen Tsung, statedly the co-accused. In this behalf, the record reflects that Li Wen Tsung retracted his statement on 17.12.2021. In our view, once the Detaining Authority has relied upon the inculpatory statement of the co-accused, their retractions assumed great relevance in the factual backdrop of the present case. Consequently, the admissibility of the said statements becomes dubious once there is a retraction, which issue that merited due consideration, that was evidently not afforded to it by the Detaining Authority. In this behal....
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....any such document based on its own opinion. All documents, which are relevant, which have bearing on the issue, which are likely to affect the mind of the detaining authority should be placed before him. Of course a document which has no link with the issue cannot be construed as relevant." 54. In a similar vein are the observations of the Hon'ble Supreme Court in P. Sarvanan vs. State of T.N. and Others, reported as (2001) 10 SCC 212 and in particular paragraphs 7, 8 and 9 thereof. The said paragraphs as extracted hereinbelow: - "7. When we went through the grounds of detention enumerated by the detaining authority we noticed that there is no escape from the conclusion that the subjective satisfaction arrived at by the detaining authority was the cumulative result of all the grounds mentioned therein. It is difficult for us to say that the detaining authority would have come to the subjective satisfaction solely on the strength of the confession attributed to the petitioner dated 7- 11-1999, particularly because it was retracted by him. It is possible to presume that the confession made by the co-accused Sowkath Ali would also have contributed to the final opinion that the conf....