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2021 (8) TMI 727 - HC - CustomsDetention of petitioner - Smuggling - gold/gold jewellery - validity of action of Detaining Authority - right of making an effective representation is jeopardized - inordinate delay of impugned order of detention passed - non-application of mind - detaining authority has arrived at its subjective satisfaction without properly appreciating and satisfying itself qua the propensity of the detenu to continue indulging in prejudicial activities or not - delay on the part of the Central Government in deciding the representation filed by the detenu or not - grounds stated in detention order have been lifted from the grounds taken in an entirely different case. Whether the Detaining Authority acted independently and without any bias whilst passing the impugned order of detention? - HELD THAT:- The powers conferred under Section 3(1) of the COFEPOSA have not been complied with independently in the present case. We are also in agreement with the submissions made by learned Senior Counsel in this behalf that, there is nothing in Section 3 of the COFEPOSA or in the scheme of the Act, which suggests that the especially empowered officer must act only on receipt of the proposal of some other agency or “Sponsoring Authority”. In fact the expression “Sponsoring Authority” and “Detaining Authority” find no mention in the statute. Whether the detenu’s constitutionally secured right of making an effective representation has been jeopardized, by the non-supply of legible and complete documents, inspite of the detenu’s request in this regard, thereby rendering the order of detention illegal and bad? - HELD THAT:- In the present case, the denial by the official respondent to supply legible copies of the relevant documents to the detenu, despite his express request to do so, tantamount to denial of his constitutional right, thereby vitiating the detention order, founded on the said relevant material. Whether the order of detention is bad in law and vitiated on the ground of inordinate delay? - HELD THAT:- In the absence of any mention of such overseas evidence in the subject detention order, the same cannot be considered as germane in order to satisfactorily explain the delay occasioned in passing of the impugned order of detention. The Court can interfere with the order of detention on the ground of inordinate and unexplained delay, a fortiori, there has been substantial, unexplained delay in passing the impugned order of detention. As a result, in the absence of any satisfactory explanation for it, the inordinate delay leads to snapping of the required live and proximate link and direct nexus with the immediate need to detain the petitioner. Whether the impugned detention order is vitiated on account of nonapplication of mind? - HELD THAT:- A plain reading of the said grounds of detention clearly reflects the extensive reliance placed upon the said statements by the Detaining Authority, for arriving at its subjective satisfaction - once the Detaining Authority has relied upon the inculpatory statements of the co-accused, their retractions also assumed great relevance in the factual backdrop of the present case. Consequently, the admissibility of the said statements becomes questionable once there is a retraction, which issue merited consideration, not accorded to it by the Detaining Authority. Whether the detaining authority has arrived at its subjective satisfaction without properly appreciating and satisfying itself qua the propensity of the detenu to continue indulging in prejudicial activities? - HELD THAT:- The legal position that emerges on this aspect is that, if the documents are relevant and have a direct bearing on the case, they were required to have been placed before the Detaining Authority for its ‘subjective satisfaction’. The Detaining Authority did not consider the conduct of the detenu, post his enlargement on bail whilst rendering the impugned order of detention, since despite the release of his passport and the granting of the requisite permission to travel abroad, the detenu voluntarily chose not to travel overseas, clearly and unequivocally establishing his bona fides and debunking the arguments of his propensity to continue to indulge in prejudicial activities in the immediate future. This was never brought to the notice of the Detaining Authority, thereby precluding the latter from considering this relevant and germane circumstance, whilst arriving at its subjective satisfaction in this behalf - the Detaining Authority has erred in arriving at the finding qua the propensity of the detenu to involve himself in further prejudicial activities, by failing to consider the facts and circumstances. Delay on the part of the Central Government in deciding the representation filed by the detenu - HELD THAT:- There was massive delay of 57 days by the Central Government in dealing with the petitioner’s representation - it is well settled that the right of the detenu to make a representation and have it considered by the appropriate Government with expedition, is a constitutional right under Article 22(5) of the Constitution of India and any unreasonable and unexplained delay in considering the representation is fatal to the continued detention of the detenu - there has been inordinate and unexplained delay on the part of the Central Government in deciding the statutory representation filed by the detenu. Whether the subject detention order stands vitiated for the reason that the grounds stated therein have been lifted from the grounds taken in an entirely different case? - HELD THAT:- The petitioner herein have produced certified copies of the detention order in the case of UNION OF INDIA, JOINT SECRETARY (COFEPOSA) , GOVT. OF INDIA, MINISTRY OF FINANCE VERSUS DIMPLE HAPPY DHAKAD [2019 (8) TMI 139 - SUPREME COURT] (filed by the detenu’s wife) from the records available in the Supreme Court of India. A purposive, comparative consideration of the grounds of detention dated 17.05.2019 in Dimple Happy Dhakad (supra), also passed by Mr. R.P. Singh, the Detaining Authority in these proceedings and the impugned detention order, the inference clearly is that barring a few differences in the names and references etc–––mutatis mutandis–––the grounds are unerringly identical. The said comparison ground-for-ground leads but to one inescapable conclusion, that the entire exercise of passing the detention order was mechanical, as the grounds have been lifted from the grounds of an altogether distinct case. Such a blatant copy-paste job by the Detaining Authority demonstrates clear non-application of mind. The impugned order of detention is vitiated on this ground as well - issue decided in favour of the detenu and against the respondents - petition allowed.
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