TMI Blog2014 (1) TMI 1020X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence (DRI) that the Detenue, who was holding Indian passport No.K 7271778 issued at Delhi on 14.09.2012, was involved in the smuggling of gold/gold articles and is arranging visits of a national of United Arab Emirates, namely Mr. Mana Saleh Sultan Alsuwaidi, (MSSA), holding diplomatic passport no. P ARE 0025401 issued on 16.03.2010 at Abu Dhabi by the Minister of Foreign Affairs, United Arab Emirates, (UAE). Said MSSA was presently posted as Commercial Attache in UAE Embassy in Delhi. The DRI had specific information that the Detenue would be arriving on 11.03.2013 from Singapore by Flight No.SQ 406 at IGI Airport, New Delhi and would be smuggling in gold/gold articles of foreign origin from Singapore either by himself or carrying the same in the baggage of earlier said MSSA with his consent and knowledge with the intention to misuse the diplomatic immunity available to MSSA. 3. In pursuance of the specific information, the DRI arranged two independent witnesses near the exit gate of the customs arrival hall. On 11.03.2013 at about 6:00 a.m., the DRI officers intercepted the Detenue while he had crossed the green channel in the arrival hall. The Detenue was confronted with the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7,154/- as per Annexure A and B to the Panchnama dated 11.03.2013, assayed by Jewellery Appraiser present at the spot. Another laminated Jute bag of Emirates (Beige coloured) containing personal effects purportedly of Shri Komal Jain (i.e. Detenue) as detailed in Annexure C to the Panchnama dated 11.03.2013 was also searched. The DRI officers introduced the Detenue with MSSA in presence of the panchas. The DRI officers then asked MSSA and the Detenue whether they knew each other, to which both replied in negative. The Detenue was shown the gold jewellery/gold articles as detailed in Annexure A and B to the Panchnama dated 11.03.2013 and asked whether the said gold jewellery/articles recovered from the baggage of MSSA belonged to the Detenue, but the Detenue denied having any connection with the said recovered gold jewellery/articles. Thereafter, in presence of the panchas and all the above persons, the DRI officers showed a message to the Detenue, sent to e-mail id: mana.alsuwaidi@gmail.com, which was available in the Apple i-phone Mobile No.9811051500, IMEI no.013053002632267 carried by the Detenue. The e-mail message read as under: OUT (to mana.alsuwaidi@gmail.com) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ign diplomat and action taken against him were important and relevant information and documents and should have been placed and considered by the Detaining Authority and the absence of having placed on record any statement recorded from MSSA and non-supply of such statements alongwith the grounds of detention to the Detenue would make the detention order liable to be quashed, as it vitiates the satisfaction of the Detaining Authority. 8. It is further submitted that non-placement of record of reports and investigations conducted by the officials of Ministry of External Affairs and the correspondence exchanged with the Ministry of External Affairs in this regard which was essential in view of the fact that panchnama dated 11.03.2013 had not been signed by either the diplomat or the Detenue, nor copies of Panchnama were given to them, shows that the Detaining Authority has failed to focus its attention to relevant facts and material and has passed the detention order mechanically. 9. It is also contended that the Detaining Authority has at page 7 of grounds of detention stated that the e-mail was sent from Apple i-phone No: 9811051500, IMEI No: 013053002632267 at 09:13 p.m., whil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lery / gold articles nor had he claimed himself to be the owner of the said goods. 16. It is also submitted that the Detaining Authority in para 21 of the grounds of detention had erroneously concluded that the Detenue was actively engaged/involved in the smuggling of gold jewellery/gold articles while there existed not even a single instance to make such conclusion. Neither in the instant case the articles were seized from the Detenue nor was there proof of any such established or proved past event placed before the Detaining Authority to conclude the propensity of activity. In fact, material before the Detaining Authority was that the earlier proceedings against the Detenue had been dropped. 17. It is contended that there was no relevant material placed before Detaining Authority to conclude that the Detenue utilised the services of the diplomat to evade law and avoid detection of smuggling of gold jewellery/gold articles, allegedly involving customs duty of more than Rs.3 crores without any computation. Also, liability to pay customs duty is on the person who clears the goods from the Customs Area, i.e. in the present case upon the diplomat and not the Detenue, and thus it s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the SCNs, proceedings had been dropped against the Detenue and in the other it was declared that the Detenue had not committed any offence. 22. It is also submitted that the Detaining Authority has erroneously concluded that the unsigned printed invoice no: 54840 dated 09.03.2013 towards sale of assorted gold jewellery total weighing 32565.33 gms valued at US$.1,581,556.47 issued by M/s Mahesh Co. PTE Ltd., 36 Cuff Road, Singapore in favour of M/s Aspire international Trading LLC, Dubai found from the personal search of the Detenue, tallied with the gold jewellery/gold articles allegedly seized from the foreign diplomat. It is submitted that the very panchnama relied upon by the Detaining Authority showed that the examination of baggages allegedly carried by foreign diplomat resulted into recovery of assorted gold jewellery/articles weighing 36565.33 gms. valued at Rs.9,7977,154.00. The conclusion of the Detaining Authority that the assorted gold jewellery/articles allegedly seized from the diplomat tallied with the invoice is not germane to the material on record and shows complete non-application of mind on part of the Detaining Authority, rendering the order null and void. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eized from the residence of the Detenue at 134, Jain Colony, Veer Nagar, Gur Mandi, New Delhi as mentioned in the relevant Panchnama; XI. Endorsement of execution of the search warrants for aforesaid searches conducted in the case; XII. Copies of the telegrams sent to DG, DRI and the Commissioner of Customs, IGI Airport, New Delhi on 11.03.2013 and notings made thereon by different officials of DRI and Commissioner of Customs, IGI Airport and disposal of these telegrams. These telegrams have not all been placed before the Detaining Authority; XIII. In the grounds of detention at page 6, the Detaining Authority has written IMEI No: 013053002632267, which is not the IMEI No. for Phone No: 9811051500. The call details obtained from the service provider also do not support this IMEI number and the basis for relating connection between Phone No: 9811051500 with IMEI No. 013053002632267 has not been supplied which has caused great prejudice to the Detenue in making effective representation; XIV. The Idea Cellular Ltd., New Delhi vide its communication to the DRI has referred to 91 notices from DRI to which they have responded on 20.05.2013. Copy of these notices have not been sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entire relevant material was placed before and was considered by the Detaining Authority. After due application of mind, the Detaining Authority was satisfied that the Detenue was involved in smuggling activities and had also used a foreign national in his sinister design to avoid the detection. With regard to the specific grounds taken by the Petitioner, it is stated that there is a typographical error in mentioning the time of sending of the e-mail as 19:13 p.m. instead of 09:13 p.m. at page 14. It is stated that the sending of e-mail established the close proximity between the Detenue and the foreign diplomat, which is further supported by the purchase of air tickets of the diplomat also by the Detenue. Regarding non signing of the Panchnama by the Detenue and MSSA, the Respondents stated that since the diplomat as well as the Detenue refused to sign the Panchnama, their signatures could not be obtained. 26. It is admitted that the gold jewellery was actually not seized from the Detenue, but the seizure of an invoice from the Detenue of corresponding weight established that the jewellery carried by the foreign diplomat belonged to the Detenue. With regard to the seizure of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were not supplied to him as the same was not relied upon by the Detaining Authority, and thus, there was no necessity to supply the same to the Detenue, and at the same time, the Respondents stated that the forensic examination of the mobile phone was placed before the Detaining Authority. The Respondents admited that the Bail Order dated 26.05.2009 and the replies to the three show cause notices issued to the Detenue were not placed before the Detaining Authority. The Respondents plea with regard to the same was that the same were not relevant and vital material to be considered by the Detaining Authority. 29. It is well settled that the subjective satisfaction requisite on the part of the Detaining Authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the Detaining Authority one way or the other are ignored or not considered by the Detaining Authority before issuing the detention order. If material or vital facts which would influence the mind of the Detaining Authority one way or the other on the question whether or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emely limited grounds. The court cannot substitute its own opinion for that of the Detaining Authority when the grounds of detention are precise, pertinent, proximate and relevant. That sufficiency of grounds is not for the court but for the Detaining Authority for the formation of subjective satisfaction that the detention of a person with a view to preventing him from acting in any manner prejudicial to public order is required and that such satisfaction is subjective and not objective. The object of the law of preventive detention is not punitive but only preventive and further that the action of the executive in detaining a person being only precautionary, normally, the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of conduct in an exhaustive manner. The satisfaction of the Detaining Authority, therefore, is considered to be of primary importance with certain latitude in the exercise of its discretion. 32. Although, a large number of grounds were raised in the writ petition, however, at the time of hearing, Mr. R.K.Handoo, learned counsel for the Petitioner laid stress on the ground that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etention is necessary in order to prevent the person detained from acting in a manner prejudicial to certain objects which are specified by the law concerned. The action of the executive in detaining a person being only precautionary, normally the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of conduct in an exhaustive manner, the failure to confirm to which should lead to detention. The satisfaction of the Detaining Authority, therefore, is considered to be of primary importance, with great latitude in the exercise of its discretion. The Detaining Authority may act on any material and on any information that it may have before it. Such material and information may merely afford basis for a sufficiently strong suspicion to take action, but may not satisfy the tests of legal proof on which alone a conviction for offence will be tenable. The compulsions of the primordial need to maintain order in society without which the enjoyment of all rights, including the right to personal liberty of citizens would lose all their meanings, provide the justification for the laws of preventive detention. Laws that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellery was being brought into India without payment of the customs duty thereon by the Detenue. Thus, non consideration of the replies to the three show cause notices in the earlier proceedings and the Bail Order dated 26.05.2009 in relation to the earlier criminal case were of no consequence. Relying on Abdul Sathar Ibrahim Manik v. Union of India Ors., (1992) 1 SCC 1; Vinod K. Chawla v. UOI Ors., (2006) 7 SCC 337; Sanjay Dogra v. Union of India Ors., 132 (2006) DLT 52 (DB); Madan Lal Anand v. UOI Ors., (1990) 1 SCC 81; and D. Anuradha v. Joint Secy. Anr., (2006) 5 SCC 142, Mr. Dubey urges that even otherwise non placement of the replies to the show cause notices and the Bail Order was not so material as to vitiate the detention order. 36. It goes without saying that as per Section 5A of the COFEPOSA Act, it has been laid down that where a person has been detained in pursuance of an order of detention under Section 3 (1), which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and thus, on account of fiction such order shall not be deemed to be invalid or became inoperative merely because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it was held that such single act warrants an inference that he will repeat his activity in future and, therefore, his detention is necessary to prevent him from indulging in such prejudicial activity. If one looks at the acts the COFEPOSA Act is designed to prevent, they are all either acts of smuggling or of foreign exchange manipulation. These acts are indulged in by persons, who act in concert with other persons and quite often such activity has international ramifications. These acts are preceded by a good amount of planning and organisation. They are not like ordinary law and order crimes. If, however, in any given case a single act is found to be not sufficient to sustain the order of detention, that may well be quashed but it cannot be stated as a principle that one single act cannot constitute the basis for detention. On the contrary, it does. In other words, it is not necessary that there should be multiplicity of grounds for making or sustaining an order of detention. 37. Thus, now the question for consideration is 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 consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contents pertain to the proceedings in the High Court and the Supreme Court and the detention law does not contemplate that the Detaining Authority is required to take into account the different court proceedings whether independent proceedings, under the law not initiated, conducted, managed or looked after by the Detaining Authority. [It is well known that the different Ministries of the Government carry out different types of work in different ways and the Detaining Authority is not required under the law to take notice of work of the Ministries or court proceedings. The court proceedings and adjudication proceedings are initiated and conducted by different authorities which are not required under the law to submit their reports or communicate their actions to the Detaining Authority. The Detaining Authority, in turn, is not required under the law to carry out the process of collection of any material about any court proceeding or proceedings before other authorities for the purpose of issuance of a detention order. The contents of the paragraph refers to such proceedings which are not required to be collected by the Detaining Authority from such authorities or courts.] 41. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the detention. In our view the absence of consideration of this important document amounts to non-application of mind on the part of the Detaining Authority rendering the detention order invalid. 42. Thus, the Supreme Court categorically held that the 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. 43. Similarly, in Irfan Ibrahim Qadri v. Medha Gadgil Ors. 2013 Crl. L.J. 1455 (Bombay), a contention was raised before a Division Bench of the Bombay High Court that the previous offence in relation to which the bail was granted to the Detenue did not form part of the grounds of detention as the detention order was based on a subsequent incident of 26.08.2011 and subsequent prejudicial conduct of the Detenue. The contention that it was not at all necessary for the Sponsoring Authority to place the Bail Order of an earlier incident was negatived holding as under:- 11........An order of preventive detention is always based on subjective satisfaction of the Detaining Authority. Every document which may affect the subjective satisfaction of the Detaining Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bail even if not placed before the Detaining Authority will not amount suppression of relevant material. The Supreme Court further held that in case the Detenue had been released on bail and is at liberty at the time of passing of the order of detention, the Detaining Authority has to necessarily rely on the same. The relevant portion of the judgment in Abdul Sathar Ibrahim Manik is extracted hereunder:- 12. The Constitution Bench in Rameshwar Shaw case (1964) 4 SCR 921 held thus: (SCR p. 929) whether the detention of the said person would be necessary after he is released from jail, and if the authority is bona fide satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released. *** Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case. Following the above principles, another bench of three Judges of this Court in N. Meera Rani v. Government of T.N. (1989) 4 SCC 418, after reviewing the various other decisions, it was observed that: A revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. In Sanjay Kumar Aggarwal v. Union of India (1990) 3 SCC 309 after reviewing all the relevant cases including Chelawat case (1990) 1 SCC 746, this Court observed as under: (SCC p. 316, para 11) It could thus be seen that no decision of this Court has gone to the extent of holding that no order of detention can validly be passed against a person in custody under any circumstances. Therefore the facts and circumstances of each case have to be taken into consideration in the context of considering the order of detention passed in the case of a detenu who is already in jail. We have already, in the instant case, referred to the grounds and the various circumstances noted by the Detaining Authority and we are satisfied that the detention order cannot be quashed on this ground. In a very recent judgment of this Court in Kamarunnissa v. Union of India (1991) 1 SCC 128 all the abovementioned decisions dealing with the detention of a person in custody have been reviewed and it is finally held as under: (SCC p. 140, para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having not been considered, the detention order is vitiated and is liable to be set aside. 48. Now is the turn to refer to the other material, that is, replies to the three show cause notices not having been placed before the Detaining Authority. 49. We have already held above that the order of detention is a composite order. In other words, 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. However, in this case, it will be relevant to refer to para 23 of the detention order where the Detaining Authority observed as under:- 23. It is seen from the above that Shri Komal Jain i.e. you without having any regard to the legal requirements or the interest of the nation have been interested only in your personal gain even at the cost of Government Exchequer. The well planned manner in which you have been masterminded the smuggling to defraud the exchequer and in this case luring a foreign diplomat to assist in such nefarious smuggling activities, in such a way as to make it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 SCC 81, to contend that the order of detention cannot be vitiated for non-consideration of the replies to the show cause notices by the Detaining Authority and their non-supply to the Detenue. 52. We are unable to be persuaded by the contention raised. In our opinion, the authorities relied upon by the learned counsels are not applicable to the facts of the present case. In Vinod K. Chawla, statement of Ashish Chawla, son of the Detenue was not supplied to him. The Supreme Court observed that there was no retraction of his own statement by the Detenue (the appellant). There was just a passing reference to the statement of Ashish Chawla, son of the appellant and thus, retraction of the statement by Ashish Chawla had no bearing at all in formation of opinion and subjective satisfaction of the Detaining Authority. 53. In Sanjay Dogra, a Division Bench of this Court held the non-supply of the shipping bills to be of no significance as what was relied upon by the Detaining Authority were the details of the shipping bills, which had been duly supplied to the Detenue. The details of the shipping bills which were supplied contained all the relevant material particulars such as, shipp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l under clause 10 for action under clauses 9(1)(a) (d) of the Imports (Control) Order, 1955 as amended as to why the five import licences should not be cancelled and rendered ineffective (Annexure F to Cr. Writ 545/88); 19. Even assuming that the above documents/orders were not placed before the Detaining Authority, we fail to understand how the same could have influenced the subjective satisfaction of the Detaining Authority in favour of the detenu. As has been discussed above, the abeyance order was passed on the detenu when the authorities concerned found that the above two firms had no factories and, therefore, there was no question of their manufacturing readymade garments from the imported material and exporting them within a period of six months from the date of first clearance in accordance with the conditions under the advance licences. The show cause notices issued to the said firm, M/s Expo International, also would reveal that the detenu had failed to comply with the condition of the licences and, indeed, there was no chance of the conditions being complied with inasmuch as there was no manufacturing devices of the said firms. We are of the view that even if the doc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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