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TMI Blog2014 (1) TMI 1020X X X X Extracts X X X X X X X X Extracts X X X X ..... was necessary with a view to prevent him from smuggling the goods in future. 2. Along with detention order, the Detenue was served with the grounds of detention. Before adverting to the challenge laid by the Petitioner, it will be appropriate to have an insight into the grounds which led to the detention of Komal Jain. According to the Detaining Authority, there was a specific information with the officers of the Directorate of Revenue Intelligence (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lable with the DRI officers. A notice under Section 102 of the Customs Act, 1962 was served upon MSSA, who agreed for examination of his baggage. MSSA gave his willingness to examine the baggage in presence of the Gazetted Officers of the DRI. The examination of the two brown coloured bags (one hand bag and one stroller bag) carried by MSSA resulted in recovery of assorted gold jewellery/gold articles weighing 36565.33 gms. valued at Rs. 9,79,77,154/- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations without any application of mind. The Detaining Authority had not been apprised of any proceedings conducted and / or initiated against the foreign diplomat from whose baggage the recovery was effected. It is submitted that the foreign diplomat was declared as persona non-grata and he ceased to be a diplomat. The reports submitted by the Sponsoring Authority and the responses received in regard to the alleged activities of the foreign 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 sig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the Detenue along with grounds of detention or within 5 days of the service of the grounds of detention handicapping him to make effective representation, the same renders the detention order null and void. 15. It is also pleaded that the Detaining Authority failed to appreciate that Section 123 of the Customs Act has no application whatsoever to the Detenue as he was neither in possession of the allegedly seized gold jewellery / 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notices filed by the Detenue and by the others. On the basis of these replies, SCN No. DRI F. No: 333/VI/3/2009-GI.Pt., the proceedings before the Commissioner of Customs were adjourned sine die till further instructions. These replies, hearing records and cross examinations ought to have been placed before the Detaining Authority and supplied to the Detenue along with grounds of detention, especially when in one of 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms Act mentioned at page 131 of the list of relied upon documents. Only few pages which are at page nos. 132 to 140 of the relied upon documents have been supplied out of the 98 pages and 2 of these pages i.e. Page No. 134 and 140 are unsigned; IX. The panchnama of the search of Ms. Meenakshi Anand's residence has not been placed before the Detaining Authority by the Sponsoring Authority; X. Files/documents seized 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er has been passed by the CESTAT against the Detenue disturbing the dropping of the proceedings and hence the detention order is passed without application of mind. 25. Respondents No.1 and 2 (Union of India and the Detaining Authority) filed a joint affidavit resisting the petition. Apart from reiterating the facts as mentioned in the grounds of detention, the Respondents took up the plea that the 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the same witnesses, were forged and fabricated documents. The Respondents explained that initially the DRI officers visited Krishna Nagar office at 10:00 a.m. Since the address was found to be non-existent, the team reached Karol Bagh and searched the office at 10:30 a.m. 28. The Respondents admited that the proceeding sheet containing the data retrieved from the mobile phone of the Detenue 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 dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material has not been considered or extraneous material has been taken into consideration in passing the detention order or similar other matters. In Subramanian v. State of Tamil Nadu & Anr., (2012) 4 SCC 699, the Hon'ble Supreme Court observed as under:- "14. .....The court does not interfere with the subjective satisfaction reached by the Detaining Authority except on exceptional and extremely 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 objectiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it was held as under:- "8.........Preventive detention is an anticipatory measure and does not relate to an offence, while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The object of the law of preventive detention is not punitive but only preventive. It is resorted to when the executive is convinced that such detention 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covered from him. The foreign diplomat MSSA was also intercepted at that very time and later on jewellery as per the earlier said invoice was recovered from the diplomat. There were other material including certain e-mails sent by the Detenue to the diplomat and certain calls made to him, which sufficiently established the nexus between Detenue and the diplomat to show that the jewellery 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson would continue to indulge in similar prejudicial activity. That is the reason why single acts of wagon-breaking, theft of signal material, theft of telegraph copper wires in huge quantity and removal of railway fish-plates were held sufficient. Similarly, where the person tried to export huge amount of Indian currency to a foreign country in a planned and premeditated manner, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, whereby freedom was allowed to Ram Lal, was not considered by the Detaining Authority. A plea was put forward by Union of India that this order (of the Supreme Court) was not a relevant material and was, therefore, not considered by the Detaining Authority. The Supreme Court extracted the reply of the Detaining Authority as under:- "At any rate it is submitted that the 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation of mind on a vital and relevant material need not necessarily lead to the conclusion that application of mind on such materials would always be in favour of the detenu. Application of mind in such cases is insisted upon to enable the Detaining Authority to consider one way or the other, as to what effect a relevant material could have, on the authority that decides 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t cited at the Bar. In fact, the bail had not been granted in Abdul Sathar Ibrahim Manik (supra) rather the bail application moved by the Detenue was rejected and while passing the detention order, the Detaining Authority had observed that there was a possibility of the Detenue being released on bail in the near future. The Supreme Court held that the order refusing 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 whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontext of making an order for detention of a person already in custody implies that there must be cogent material before the Detaining Authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that 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 circumsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Detenue rather than that of the Respondents. 47. In view of the above discussion, we have no hesitation to hold that the 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. 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a serious prejudice caused to the Detenue as we do not know how the Detaining Authority would have reacted on considering the replies. 51. The learned counsels for Respondents No.1 to 4 rely on Vinod K. Chawla v. UOI & Ors., (2006) 7 SCC 337; Sanjay Dogra v. Union of India & Ors., 132 (2006) DLT 52 (DB) and Madan Lal Anand v. UOI & Ors., (1990) 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 Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 4-L for action under Section 4-I of the Imports and Exports (Control) Act, 1947 as amended, and under clause 8 of the Imports (Control) Order, 1985 (as amended) (Annexure H to Cr. Writ 545/88); (4) Show cause notice dated March 27, 1985 issued by the office of the Chief Controller of Imports & Exports to M/s Expo International 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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