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2014 (1) TMI 1020 - DELHI HIGH COURTIssue of writ of habeas corpus - Denial of release of detenue - Recovery of gold smuggling - Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) - whether the detention order dated 11.06.2013 had been passed on several grounds or is a composite order where two or more facts have been taken into consideration - whether the Bail Order dated 26.05.2009 passed by the Delhi High Court in the previous criminal case and the replies to the three show cause notices filed by the Detenue, in view of the Detaining Authority having considered the three show cause notices, were vital and important material, non-consideration of which would vitiate the order of detention - Held that:- previous order granting freedom to the Detenue by any Court was a relevant material to affect the subjective satisfaction of the Detaining Authority one way or the other - Bail Order dated 26.05.2009 passed by the Delhi High Court in the earlier case under the Customs Act was vital and relevant material to be considered by the Detaining Authority before passing the detention order. The Bail Order having not been considered, the detention order is vitiated and is liable to be set aside. While passing the detention order, the Detaining Authority considered the previous conduct of the Detenue and assessed the propensity of Detenue’s conduct. As has been observed earlier, in some cases a single act may be sufficient to pass an order of detention - replies to the show cause notices were not considered by the Detaining Authority. In fact, the same were not even placed before it - A perusal of the detention order falsifies the stand of the Respondents that the three show cause notices were not taken into consideration by the Detaining Authority while passing the order of detention. The Detaining Authority goes on to mention that the adjudication order in question had not attained finality as an appeal had been preferred by the Commissioner of Customs before CESTAT, New Delhi. The replies to the three show cause notices have been placed on record by the Detenue. There were serious allegations of illegal import of high end gold jewellery and misuse of SEZ facility against the Detenue and others. Show cause notice is a charter of allegation and by replies to the notices, the Detenue claimed innocence and therefore, the replies to the show cause notices were vital, important and relevant material to be considered by the Detaining Authority. By considering only the show cause notices against the Detenue without considering these replies, there was a serious prejudice caused to the Detenue as we do not know how the Detaining Authority would have reacted on considering the replies. Show cause notices and particularly the Detenue’s replies thereof were the most relevant and essential material to be placed before the Detaining Authority before issuance of the detention order - there is no escape from the conclusion that all the relevant and vital material/documents were not placed before the Detaining Authority. The detention order is consequently vitiated; the same is accordingly set aside - Decided in favour of Petitioner.
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