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2021 (8) TMI 679 - HC - CustomsValidity of detention order - re-import of gold jewellery - allegation of misuse of Advance Authorization Scheme through circular trading of gold jewellery exported under the guise of exhibition from India through hand- carrying and subsequently re-importing (smuggling) the same fraudulently into India. Whether the Detaining Authority acted independently and without any bias, whilst rendering the impugned orders 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. There was nothing that prevented Mr. R.P. Singh, whilst acting as J.S. (COFEPOSA), from passing the impugned orders of detention at the first opportunity. Resultantly, the argument of pre-determined approach and bias stands established in the present case. Whether the impugned orders of detention passed are bad in law and vitiated on the ground of inordinate delay - HELD THAT:- Although it was urged before this Court by the respondents at the pre-execution stage about the overseas evidence received from Dubai in November, 2019; however, no reference to such evidence is to be found in the impugned detention orders - in the absence of any mention of such overseas evidence in the subject detention orders, the same cannot be considered as germane in order to satisfactorily explain the delay occasioned in passing the impugned orders of detention. The Court can interfere with the orders of detention on the ground of inordinate and unexplained delay, a fortiori, there has been a delay in passing the impugned orders of detention. As a result, in the absence of a satisfactory explanation, the inordinate delay leads to snapping of the live and proximate link and direct nexus between the alleged prejudicial activity and any immediate need to detain the petitioners. Whether the impugned detention orders are vitiated on the ground of non-application of mind? - HELD THAT:- Once the Detaining Authority has relied upon the inculpatory statements 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 questionable once there is a retraction, which issue merited consideration, not accorded to it by the Detaining Authority. The legal position that emerges on this aspect is that, if the documents are relevant and have a direct bearing on the case, they must be placed before the Detaining Authority for its ‘subjective satisfaction’. 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 Detaining Authority whilst arriving at its ‘subjective satisfaction’ failed to properly examine whether the detenus exhibited propensity to continue indulging in any prejudicial activities, for the reason that there was no consideration of the circumstance that IMNPL had been placed under the Denied Entity List, thereby clearly indicating and establishing that it could no longer import gold under the Advance Authorization Scheme; and completely eliminating the possibility of it misusing the said scheme. The consideration of the said aspect is conspicuous by its absence in the impugned detention orders - The Detaining Authority has erred in arriving at the finding qua the propensity of the detenus to involve themselves in further prejudicial activities, by failing to consider the facts and circumstances. Whether there has been delay on the part of the Central Government in deciding the representation filed by the detenus? - HELD THAT:- It would be relevant to consider the circumstance that both detenus were detained on 01.10.2020 and filed representations dated 16.10.2020 and 20.10.2020 respectively, with the Detaining Authority, as well as with the Central Government. Although the Detaining Authority rejected their representations on 03.11.2020, no decision, however, was taken by the Central Government on the detenus’ representations. Instead the Central Government made a reference dated 03.11.2020 to the Central Advisory Board, which gave its opinion qua the sufficiency of the grounds with regard to the detenus detention. The subject representations were finally rejected by the Central Government only on 23.12.2020, three days after confirmation by it of the orders of detention by the Central Advisory Board. Thus, insofar as the case of detenus Amit Pal Singh and Gopal Gupta are concerned, there was massive delay of 69 days and 65 days respectively by the Central Government in dealing with their representations - there has been inordinate and unexplained delay on the part of the Central Government in deciding the statutory representations filed by the detenus. Whether the detention orders stand vitiated owing to the reason that the grounds stated therein have been lifted from the grounds taken in an entirely different case? - HELD THAT:- A purposive comparative consideration of the grounds of detention in UNION OF INDIA, JOINT SECRETARY (COFEPOSA) , GOVT. OF INDIA, MINISTRY OF FINANCE VERSUS DIMPLE HAPPY DHAKAD [2019 (8) TMI 139 - SUPREME COURT], also passed by Sh. R.P. Singh, the Detaining Authority in these proceedings; and the impugned detention orders, gives substance to the inference 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 orders is mechanical, as the grounds have been lifted from the grounds of an altogether distinct case. Such a blatant copy-paste by the Detaining Authority demonstrates a clear non-application of mind - the impugned orders of detention are liable to be vitiated on this ground as well.
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