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TMI Blog2001 (11) TMI 945X X X X Extracts X X X X X X X X Extracts X X X X ..... is of the order of detention which has spent its force by afflux of time. 4. In pursuance of the detention order passed by the Joint Secretary to the Government of India in the Ministry of Finance (Department of Revenue) on 2-3-2000 in exercise of the power under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 as amended, ('the COFEPOSA Act'); Swarn Singh Sandhu was detained and kept in custody in Central Prison, Nasik. In compliance with the provisions of section 3(3), read with clause (5) of article 22 of the Constitution of India the grounds of detention dated 2-3-2000 along with the documents mentioned and relied upon therein were communicated to the detenu. On receipt of the detention order and the grounds of detention, the detenu addressed representations to the Central Government on 5-4-2000 which were rejected on 11-4-2000. This was followed by the writ petition filed on behalf of the detenu in the Delhi High Court which was dismissed by its judgment and order dated 1-12-2000. The said judgment/order is under challenge in this appeal. 5. In the grounds of detention covering 35 pages the detaining authority has set out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by 32 shipping bills. These exports were made from the port of Mumbai. The total FOB value of the bulk drugs shown to have been exported under these 32 shipping bills amounted to Rs. 29,14,59,690 and the said amount was adjusted against the advance remittances received by Knomo Exports Ltd. It was stated in the grounds that all the 32 bank certificates of export realisation show that the total foreign exchange equivalent to total FOB value has been shown to have been received by Knomo Exports Ltd. and the detenu had signed as director on all these certificates. The said certificates signed by the detenu were submitted to the office of the Joint DGFT along with the copies of the DEPB shipping bills and accordingly DEPB scrips were issued in the name of exporters on record. The papers submitted to Custom House, Mumbai for verification and release of DEPB scrips revealed that one Prashant D. Divekar had signed as proprietor for all the three aforesaid export firms, whereas the entire foreign exchange remittance of these exports had been received by Knomo Exports Ltd. It was stated in paragraph 5 of the grounds of detention that on detailed examination and verification of the 32 sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emittances received by Knomo Exports Ltd. (later renamed as KEL Exports Ltd.) All the related bank certificates of export realisation show that the total foreign exchange equivalent of the cumulative FOB value has been shown to have been received by erstwhile company Knomo Exports Ltd. and the detenu has signed as Director of KEL Exports Ltd. on these certificates. 8. From the narration of facts in the grounds of detention, it is clear that the detaining authority has not only taken note of the allegations made against the detenu; the materials collected by the investigating agency of the department against him but has also taken note of the reply given by the detenu at different stages denying the allegations and levelling counter allegations against the officers of the department to implicate him. 9. In paragraphs 40 and 41 of the grounds of detention, the detaining authority has stated : "40. While arriving at the subjective satisfaction in your case I have also taken into consideration the allegations made and pleas taken in various representations/replies made on your behalf and on behalf of Shri Ajay Vyas. However, in view of the materials placed before me, I do not find a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing authority and non-application of mind and the High Court erred in confirming such illegal and invalid order of detention. Elucidating his contention the learned senior counsel submitted that the detaining authority has not verified the copies of the shipping bills submitted to different authorities in course of the transactions of export to ascertain whether the allegations of forgery and manipulation of the shipping bills levelled against the detenu were true or not. It was the further submission of Shri V.A. Mohta that since the detaining authority has referred to 90 shipping bills relating to exports from the Port at Mumbai and Nhava Sheva Port in Gujarat sending a few samples to the forensic experts and arriving at a subjective satisfaction that the signatures of the Asstt. Commissioner of the Customs Department and other officers borne on the shipping bills were forged suffers from non-application of mind to the matter. 13. Per contra, Shri Mukul Rohtagi, the learned Additional Solicitor General appearing for the respondents contended that in the grounds of detention communicated to the detenu the detaining authority has described in great detail the nature of organised a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf of the detenu under section 3 of the COFEPOSA Act, held : "The High Court has virtually decided the matter as if it was sitting in appeal on the order passed by the detaining authority. The action by way of preventive detention is largely based on suspicion and the court is not an appropriate forum to investigate the question whether the circumstances of suspicion exist warranting the restraint on a person. The language of section 3 clearly indicates that the responsibility for making a detention order rests upon the detaining authority which alone is entrusted with the duty in that regard and it will be a serious derogation from that responsibility if the court substitutes its judgment for the satisfaction of that authority on an investigation undertaken regarding sufficiency of the materials on which such satisfaction was grounded. The court can only examine the grounds disclosed by the Government in order to see whether they are relevant to the object which the legislation in view, that is, to prevent the detenu from engaging in smuggling activity. The said satisfaction is subjective in nature and such a satisfaction, if based on relevant grounds cannot be stated to be inval ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication of mind in this regard, namely, in considering the representation. The same principles applies to the Advisory Board also. According to the submissions of the learned counsel, these documents were not placed before the Advisory Board in its meeting on September 18, 1989. Whatever statement was made by the petitioners on June 22, 1989 prior to the detention and the grounds clearly disclose that there was retraction. It must also be noted in this context that in the grounds in paragraph 10 also it is mentioned that a telegram was received on June 9, 1989 alleging about the wrongful arrest and extraction of the statements and the detaining authority has also taken note of the allegations made against the DRI officers which were found to be false and baseless. The same material was there before the Advisory Board. Therefore there is no force in this submission." In the case of Ashadevi wife of Gopal Ghermal Mehta (Detenu) v. K. Shivaraj, Addl. Chief Secretary to the Government of Gujarat [1979] 1 SCC 222, this Court held that : ". . . The principle that could be clearly deduced from the above observations is that if material or vital facts which would influence the mind of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority should have taken further steps before being satisfied that a case for detention under the COFEPOSA Act has been made out against the detenu. Whether the detention order suffers from non-application of mind by the detaining authority is not a matter to be examined according to any straight-jacket formula or set principles. It depends on the facts and circumstances of the case, the nature of the activities alleged against the detenu, the materials collected in support of such allegations, the propensity and potentiality of the detenu in indulging in such activities, etc. The Act does not lay down any set parameters for arriving at the subjective satisfaction by the detaining authority. Keeping in view the purpose for which the enactment is made and the purpose it is intended to achieve, the Parliament in its wisdom, has not laid down any set standards for the detaining authority to decide whether an order of detention should be passed against a person. The matter is left to the subjective satisfaction of the competent authority. 19. The learned senior counsel Sri V.A. Mohta raised another contention that the detenu had annexed to his representation certain document writte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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