TMI Blog2014 (2) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... ments which were not retracted. They give a vivid account of the active participation of Sandeep and Jayant in the smuggling of gold for considerably long time. There is a seizure of a bag containing 5.804 kg of jewellery and gold bars which were made on 10th/11th August 2012. Hence, sufficiency of material before the Detaining Authority cannot be disputed. Therefore, in the facts of the cases in hand, the orders of detention are not vitiated on account of nonplacement of retraction of statements of Sandeep. The Writ Petitions are rejected - Decided against the appellant. - Criminal Writ Petition No. 3436 of 2013, Criminal Writ Petition No. 3499 of 2013 - - - Dated:- 24-1-2014 - A. S. Oka And S. C. Gupte,JJ. For the Petitioner : Smt. A. Z. Ansari For the Respondent : Shri J. P. Yagnik, APP No.1State. Ms. A.S. Pai, Special PP No. 3D. R.I. JUDGMENT ( Per A. S. Oka, J ) 1. By these Petitions under Article 226 of the Constitution of India, the challenge is to the separate orders dated 22nd August 2013 passed in exercise of powers under Sub-Section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he statement of Shri Uday Singh Meena recorded under Section 108 of the said Act of 1962. Reliance is also placed on the various statements of both the Jayant and Sandeep recorded under Section 108 of the said Act of 1962. Reliance was also placed on the statements of Sagar Chheda recorded under Section 108 of the said Act of 1962. Further, reliance was placed on the statements of one Pravin Popatlal Jain, Atul Bafna and Mandip Jain recorded under Section 108 of the said Act of 1962. Apart from these statements, the Detaining Authority referred to and relied upon the statements of Chirag Ramesh Vora, Rajesh Bhogilal Vora and Bhavesh Walchand Parmar which were also recorded under Section 108 of the said Act of 1962. The allegation made against Sandeep Jain is that he was a kingpin of the syndicate indulging in smuggling of gold bars and gold jewellery from Dubai who had entered into a conspiracy with said Jayant , Sagar Chheda, Mandip Jain, Pravin Jain, Murarilal Meena and Uday Singh for smuggling the gold jewellery and gold bars from Dubai. It is alleged that Sandeep was the financier of the smuggling activities. It is alleged that from April 2011 till July 2011 four to five consig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shows non-application of mind and that the subjective satisfaction is vitiated on that ground. 5. The learned counsel appearing for the Petitioner in support of both the Petitions pointed out that there is a gross delay in passing the order of detention. She pointed out that on 10th August 2012, the DRI seized gold from Uday Singh Meena, Sub-Inspector of CISF worth Rs.1.6 crores at Mumbai Airport. The first statement of the detenu were recorded on 11th August 2012. Both Sandeep and Jayant were arrested on 11th August 2012 and they availed of benefit of order of bail on the same date. The orders of detention were belatedly made on 22nd August 2013. She submitted that there is a gross delay in passing the order of detention and hence, the livelink between the alleged prejudicial activities and necessity of passing the order of detention has been snapped. She urged that the delay has not been explained. She urged that though the impugned orders show that the subjective satisfaction was recorded of the existence of the ground under clause (ii) of Sub-Section (1) Section 3 of COFEPOSA Act, some of the grounds of detention show that the satisfaction was recorded under some other clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon a decision of this Court in the case of Mr. Prithvi Sovern Kuntal v. The State of Maharashtra and Others 2001 ALL MR (Cri) 1163. 8. In support of her submission based on nonplacement of reply to the show cause notice, she relied upon a decision of the Apex Court in the case of Kurjibhai Dhanjibhai Patel v. State of Gujarat and Others 1985(1) Scale 964 as well as the decisions of this Court in the case of Smt. Sarina Nafees Hyder Rizvi v. State of Maharashtra and Others 1999 Cri. LJ 434 and Smt. Pallavi Vinod Patni v. State of Maharashtra and Others2001 Cri. L J 3197. 9. In support of her contention that nonplacement of retraction statement vitiates the order of detention, she relied upon the decisions of the Apex Court in the case of State of U.P. v. Kamal Kishore Saini AIR 1988 SC 208, Ayya alias Ayub v. State of U.P. and Another AIR 1989 SC 364 and A. Sowkath Ali v. Union of India and Others JT 2000(8) SC 385. On the point of non-application of mind by the Detaining Authority, she relied upon a decision of the Apex Court in the case of Bannalal Vahilda Chavla v. Union of India and Others (1999) 6 SCC 210. In support of the ground of non-consideration by the Detaining Aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 of the COFEPOSA Act i.e. with a view to prevent the detenu from abetting smuggling activities in future. What is set out in the different paragraphs of the grounds supplied to the detenu in support of the order of detention cannot be the separate grounds referred to in Section 5A of the COFEPOSA Act. She, therefore, submitted that Section 5A of the COFEPOSA Act will have no application in the facts of the cases. 12. We have carefully considered the submissions. Section 3 of the COFEPOSA Act reads thus: 3. Power to make orders detaining certain persons. (1) The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011 though this syndicate came under the scanner of DRI and Jayant Mehta who used to carry contraband on behalf of you was apprehended but nothing incriminating could be recovered from him as he had already exchanged the bag with CISF officer who had cleared the same through staff gate. Despite this you continued your smuggling activities. Admittedly you had smuggled around 120 to 140 kgs of gold bars/gold jewellery since last six months i.e. since February 2012. You are the main link between the suppliers based in Dubai and the domestic market and owing to your past conduct, rise in gold price and profits generated in the smuggling of gold there is every propensity that you would continue indulging in smuggling of gold. 15. As far as Criminal Writ Petition No.3436 of 2013 is concerned, the allegations against the detenu Jayant Rikhabchand Mehta have been summarized in Ground No.33 of the order of detention which reads thus: 33. You were a leading member of the syndicate indulging in smuggling of gold bars and gold jewellery from Dubai. You had been indulging in the smuggling activities since April 2011. Initially, you used to accompany Sandeep Jain to Dubai for purchase of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g smuggling activities. For abetting smuggling activities, it is not necessary for the detenu to travel abroad. Therefore, this contention has no merit. The decisions relied upon by the learned counsel appearing for the Petitioners are in cases where the order of detention was only for preventing the detenu from indulging in smuggling activities in future. 18. Now as regards the ground of delay in passing both the orders of detention is concerned, there is an explanation offered by the Detaining Authority. It is stated that the seizure of the goods was effected on 10th/11th August 2012. We find from the grounds of detention that from 10th August 2012 onwards till 1st November 2012, statements of the accused, coaccused and others were recorded under Section 108 of the said Act of 1962. On 19th November 2012, a proposal for detention was kept before the Screening Committee. Perusal of the affidavits of the Detaining Authority as well as Sponsoring Authority shows that the proposal was received by the Sponsoring Authority on 23rd November 2012. On 3rd December 2012, the proposal along with documents running into 292 pages was forwarded to the Detaining Authority. The Detaining Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds the second contention, as rightly pointed out by Learned Counsel for the Appellant, the delay in passing the detention order, namely, after 15 months vitiates the detention itself. The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the livelink between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. Though there is no hard and fast rule and no exhaustive guidelines can be laid down in that behalf, however, when there is undue and long delay between the prejudicial activities and the passing of detention order, it is incumbent on the part of the court to scrutinize whether the Detaining Authority has satisfactorily examined such a delay and afforded a reasonable and acceptable explanation as to why such a delay has occasioned. 28. It is also the duty of the court to investigate whether casual connection has been broken in the circumstance of each case. We are satisfied that in the absence of proper explanation for a period of 15 months in issuing the order of detention, the same has to be set aside. Sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for purchasing the gold bars and gold jewellery. He used to earn Rs.25,000/to Rs.30,000/per trip from Dubai from the detenu Sandeep Jain. Therefore, it is not possible to accept that the live link was snapped due to delay. Moreover, in the reply, the Detaining Authority has explained the delay. Therefore, we are unable to accept the submission that the impugned order is vitiated on the ground of delay in passing the order of detention. 20. Another ground urged by the learned counsel appearing for the Petitioner is that in the grounds of detention, the Detaining Authority has referred to the show cause notice dated 8th February 2013 but reply filed by Sandeep to the said show cause notice was not placed before the Detaining Authority which was a vital document. On this aspect, the learned counsel appearing for the Petitioner relied upon a decision of the Apex Court in the case of Kurjibhai Dhanjibhai Patel (supra) and other decisions. In the facts of those cases, the reply filed by the detenu himself was not placed before the Detaining Authority. In Criminal Writ Petition No.3436 of 2013, there was no reply submitted by the detenu. In Criminal Writ Petition No.3499 of 2013, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will not vitiate the impugned orders. Only other contention in the reply of Sandeep to the show cause notice is that he may be permitted to cross examine certain witnesses. Such an innocuous reply could not have affected the subjective satisfaction of the Detaining Authority either way. In the facts of these two cases, the reply was not at all a vital document. Hence, even if the reply filed by the detenu himself is not placed before the Detaining Authority, the subjective satisfaction of the Detaining Authority is not vitiated. The decisions relied upon by the Petitioners will have no application to the facts of these two cases in hand as in the facts of those cases it was found that the reply was a vital document. 22. Another contention is regarding failure on the part of the Sponsoring Authority to place before the Detaining Authority retraction of the statements under Section 108 of the Customs Act, 1962 of the Sandeep. The Detaining Authority has relied upon the statements under Section 108 of the Customs Act, 1962 of Jayant and thirteen other persons. There is no retraction of these statements. The Detaining Authority has set out in the grounds the contents of these statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es from several factors. These have been separately mentioned. One of them is the contention but this ground was taken into consideration without taking note of the retraction made thereafter. But the inference of the satisfaction was drawn from several factors which have been enumerated before. We have to examine whether even if the facts stated in the confession are completely ignored, then too the inferences can still be drawn from other independent and objective facts mentioned in this case, namely, the fact of seizure after search of 60 gold biscuits from the suitcase of the daughter in the presence of the father which indubitably belonged to the father and admitted by him to belong to him for which no explanation has been given and secondly the seizure of the papers connected with other groups and organisations. Pratap Sait and others to whom gold has been sold by the father are relevant grounds from which an inference can reasonably be drawn for the satisfaction of the detaining authority for detaining the detenus for the purpose of Section 3(1)(iii) and 3(1)(iv). We are of the opinion that the impugned order cannot be challenged merely by the rejection of the inference draw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere kept. (4) The connection with the various dealers as mentioned hereinbefore and the statements of the employees of the dealers that the father and the sons used to come with gold bars. 77. These materials were in addition to the statements and confessions made under Section 108 of the Customs Act by the father, the sons and the daughter. So even if the statements made under Section 108 by the father, the sons and the daughter are ignored and obliterated, the other facts remain and these are materials good enough to come to the prima facie belief that detention of the detenus was necessary. 78. Reliance was placed in the case of Ashadevi v. K. Shiveraj, Addl. Chief Secretary to the Government of Gujarat 2001 ALL MR (Cri) 1163. There a detention order under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 was passed by the respondent against the detenu with a view to prevent him from engaging in transporting smuggled gold. When the detenu was in the custody of the Customs Officers, his advocate addressed a letter and sent a telegram to them protesting against his detention and illegal custody beyond 24 hours and also expr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . There is no retraction of these statements. The Detaining Authority has set out in the grounds the contents of these statements which were not retracted. They give a vivid account of the active participation of Sandeep and Jayant in the smuggling of gold for considerably long time. There is a seizure of a bag containing 5.804 kg of jewellery and gold bars which were made on 10th/11th August 2012. Hence, sufficiency of material before the Detaining Authority cannot be disputed. Therefore, in the facts of the cases in hand, the orders of detention are not vitiated on account of nonplacement of retraction of statements of Sandeep. 25. The learned counsel appearing for the Petitioners contended that there is a variance in the subjective satisfaction of the Detaining Authority recorded in the impugned orders and the grounds of detention. In the grounds of detention, a satisfaction has been recorded of necessity of passing order even under the other clauses of Sub-Section 1 of Section 3 of COFFEPOSA Act. But, in the case of Sandeep, in paragraph 35 of the grounds of detention,there is also a satisfaction recorded about the necessity of passing an order of Detention under clause (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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