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2015 (3) TMI 775 - DELHI HIGH COURT

2015 (3) TMI 775 - DELHI HIGH COURT - TMI - Detention order - Offence committed under Section 135 of the Customs Act, 1962. - Detention order passed under Section 3(1)(i) and 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - smuggling of goods and illegal transportation and concealment of contraband goods - Held that:- The contentions have to be rejected for several reasons. Firstly, the contention of the petitioner that he knows and understands .....

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or quashing of the detention.

The contention of the petitioner that though he was furnished with the Bengali translation of the letter dated 27th November, 2013, he wasn't supplied with the English version of the same, must perish for the same reason. Once the petitioner accepts that he was furnished with the Bengali translation of the said letter, which he can read and understand, it should be held that there was adequate and proper compliance with the constitutional mandate. < .....

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said order. The Detaining Authority after examining the relevant facts, passed an additional detention order in continuation of the earlier order dated 27th May, 2014, elucidating reasons why the detention order dated 27th May, 2014, should still be served and executed. We do not think that the letter/ order dated 13th June, 2014, which purports to provide additional grounds of detention can stand on its own. It is not by itself a separate and independent detention order. It is necessarily an a .....

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incomplete or inchoate investigation. The detention order is a speaking order and is crystal clear on the factual narration and factual matrix. The object and purpose of preventive detention which is anticipatory and precautionary in nature in the said sense does not relate to an offence punishable in criminal proceedings. A preventive detention order is not a parallel proceeding. - No merit in petition - Decided against petitioner. - Writ Petition (Criminal) No. 1529/2014 - Dated:- 4-3-2015 - .....

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on 3(1) and order dated 13th June, 2014 passed under Section 3(1)(i) and 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA Act, for short). The petitioner was served with the aforesaid detention orders and detained under the COFEPOSA Act on 16th June, 2014 while in judicial custody for offence under Section 135 of the Customs Act, 1962. 2. The writ petition was originally filed on 29th July, 2014 and has since .....

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urt, opposing the application for cancellation of bail was filed. Thereafter, the argument then raised was not pressed. 3. Subsequently, on 2nd February, 2015, learned counsel for the petitioner during the course of arguments, raised new contentions based upon facts, which had earlier not been pleaded or raised in the writ petition as well as the written submissions. This was objected to by the counsel for the respondents, who highlighted the vacillations and new allegations made by the petition .....

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14 and this is contrary to and impermissible under Section 3(1) of the COFEPOSA Act. Secondly, there has been failure on the part of the Sponsoring Authority in not informing and forwarding relevant facts/ documents to the Detaining Authority, which had come to their knowledge and custody, after passing of the first detention order dated 27th May, 2014 but before passing of the second detention order dated 13th June, 2014. Thirdly, the Central Government had failed to consider and decide the fir .....

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5th August, 2008. Fourthly, it is submitted that the detention order has been passed against the petitioner in the present case without ascertaining and verifying the veracity and correctness of the facts, as the Sponsoring Authority in their letter dated 12th June, 2014, have themselves accepted that they were not in a position to complete the investigation. Reference is made to the order dated 28th May, 2014, passed by the Supreme Court on an appeal preferred by the petitioner against the orde .....

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itioner on 17th July, 2014. Further, the Bengali translations of some of the relied upon documents were incomplete and imperfect, and the copy of some of the relied upon documents supplied were incomplete or were not readable and legible. Reliance in this regard was placed on Icchu Devi Choraria (Smt.) versus Union of India, (1981) (1) SCR 640 and other cases. 5. As per the grounds stated in the detention order, the petitioner was detained under the provisions of the Customs Act, on 8th March, 2 .....

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ate, Kolkata had granted bail to the petitioner on 12th March, 2014, on the ground that there was violation of the directions issued by the Supreme Court in D.K. Basu versus State of West Bengal, (1997) 1 SCC 416. Stringent conditions were however imposed, requiring the petitioner to join the investigation and report to the Customs Office from Monday to Friday. The authorities being aggrieved, preferred a petition for cancellation of bail before the Calcutta High Court. The petition filed was al .....

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ved that having regard to the nature of the issue involved, the Directorate of Revenue Intelligence should complete the investigation expeditiously and preferably within four weeks from the said date. The moment investigation was completed, challan would be filed and thereafter the petitioner would be at liberty to move an application for regular bail, which would be considered by the trial court without being influenced by any observation made in the impugned order of the High Court. 7. Thereaf .....

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e the discussion regarding cancellation of bail by High Court, Kolkata and non-surrender of proposed detenue has been made. This office has received a letter today from Shri L.M. Sarkar , Advocate enclosing a copy of the Supreme Court Order dated 28.05.2014 (copy enclosed). On perusal of the said order, it is seen that Hon'ble Supreme Court refused to interfere with the order passed by the High Court cancelling the bail of the petitioner ( Barik Biswas and others). Further, it has been infor .....

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ng after being enlarged on bail. As per the said Hon'ble Supreme Court order, the moment investigation is complete and challan is filed in the court, the petitioner shall be at liberty to move an application for regular bail which shall be considered by the trial court without being influenced by any observation made in the order by the High Court. However, it is difficult to complete the investigation and file prosecution against the accused within the given time. It is therefore felt that .....

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ubject:-Additional Grounds on which detention order F.No.673/14/2014-Cus. VIII, dated 27th May, 2014 has been issued against Barik Biswas , i.e., you, S/o Late Ichhaque Biswas under Section 3(1)( i ) & 3(1)(iii) of the COFEPOSA Act, 1974, keeping in view of your surrendering on 11.06.2014 read with Supreme Court's order dated 28.05.2014 in your appeal." Reference was made to the earlier detention order dated 27th May, 2014, which was made under Section 3(1) of COFEPOSA Act, with a v .....

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Court, dated 28th May, 2014, whereby the Court had refused to interfere with the order passed by the High Court of Calcutta cancelling the bail; surrender made by the petitioner on 11th June, 2014, after more than two weeks of the order passed by the Supreme Court and order passed by the Chief Metropolitan Magistrate, Kolkata remanding the petitioner to judicial custody till 25th June, 2014. Thereafter it was, inter alia, observed:- "2. .....As per the Hon'ble Supreme Court's subje .....

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formed by DRI vide F. No. DRI/KZU/AS/ENQ-5 (INT-5)/2014/COFEPOSA/2954 dated 12.06.2014 that the completion of investigation would take more time and may not be completed within the time stipulated by the Hon'ble Supreme Court, there is every likelihood of you getting bail in near future. Also taking into consideration your conduct throughout the investigation and your tendency to avoid appearance on summons issued and your avoidance to surrender when Non- Bailable Warrant dated 16.05.2014 wa .....

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ign Exchange & Prevention of Smuggling Activities (COFEPOSA) Act, 1974. I further direct that Shri Barik Biswas , i.e , you, be kept in custody in the Presidency Correctional Home, Alipore , Kolkata, consequent to your detention." 10. It is clear to us that the two detention orders, i.e., orders dated 27th May, 2014, and 13th June, 2014, have to be read in seriatim and together and not as two distinct and separate orders. The reason why order dated 13th June, 2014, was passed is apparen .....

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to jail before actual service of the detention order, this change in the background of facts should be brought to the notice of the Detaining Authority. This is required, as within the constitutional framework, the power of preventive detention must be exercised only in exceptional cases and the Detaining Authority must be fully aware and apprised of the facts necessitating preventive detention. For example, if a person is already in custody and there is no imminent possibility of the said perso .....

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e. Nor does it appear that before the service there was consideration of this aspect properly. In the facts and circumstances of this case, therefore, the continued detention of the detenu under the Act is not justified." 11. Thus, the first detention order dated 27th May, 2014, was passed after examining the relevant facts when the petitioner was not in detention. Bail granted by the trial Court had been cancelled, but the petitioner had not surrendered or arrested. Subsequently, the petit .....

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l be served and executed. We do not think that the letter/ order dated 13th June, 2014, which purports to provide additional grounds of detention can stand on its own. It is not by itself a separate and independent detention order. It is necessarily an adjunct and a corollary to the earlier order dated 27th May, 2014. Appropriate in this regard would be reference to the following observations made by the Constitution Bench of the Supreme Court in Attorney General for India and Others versus Amri .....

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re is no such invariable rule and that in a given case one act may suffice. That was a case of wagon-breaking and having regard to the nature of the Act, it was held that one act is sufficient. The same principle was reiterated in Anil Dey v. State of W.B. [(1974) 4 SCC 514 : 1974 SCC (Cri) 550] It was a case of theft of railway signal material. Here too one act was held to be sufficient. Similarly, in Israil SK v. District Magistrate of West Dinajpur [(1975) 3 SCC 292 : 1974 SCC (Cri) 900] and .....

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ily one act may not be held sufficient to sustain an order of detention, one act may sustain an order of detention if the act is of such a nature as to indicate that it is an organised act or a manifestation of organised activity. The gravity and nature of the act is also relevant. The test is whether the act is such that it gives rise to an inference that the person would continue to indulge in similar prejudicial activity. That is the reason why single acts of wagon-breaking, theft of signal m .....

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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 st .....

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either vague or irrelevant. But the ground in support of the third order is relevant, definite and proximate. In such a case, while the first two orders would be quashed, the third order would stand. This is precisely what the first part (the main part) of Section 5-A seeks to do. Where the order of detention is based on more than one ground, the section creates a legal fiction, viz. , it must be deemed that there are as many orders of detention as there are grounds which means that each of suc .....

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the section consisted only of the second part, one can understand the contention that the section is in the teeth of Article 22(5) as interpreted by this Court - this was indeed the situation in K. Yadigiri Reddy v. Commissioner of Police [ILR 1972 AP 1025] as we shall presently indicate. It is difficult to conceive any inconsistency or conflict between Article 22(5) and the first - the main - part of Section 5-A. Parliament is competent to create a legal fiction and it did so in this case. Arti .....

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n no question of any inconsistency between the section and Article 22(5) can arise." 12. Reliance placed by the petitioner on the earlier decision of the Supreme Court in State of Bombay versus Atma Ram Sridhar Vaidya , AIR 1951 SC 157 is misplaced. Section 5A of the COFEPOSA Act was enacted subsequently. In Amritlal Prajivandas and others versus Attorney General for India (supra), it has been held that the said Section is not contrary to Article 22(5) of the Constitution of India. The judg .....

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him as soon as possible and (ii) to be afforded the earliest opportunity of making representation against the order of detention - (see State of Bombay v. Atma Ram Sridhar Vaidya [1951 SCR 167 : AIR 1951 SC 157 : 52 Cri LJ 373]). If the grounds included irrelevant or non-existent grounds, it is submitted, the first right is violated and if the grounds included vague grounds, the second right is violated. According to the learned counsel, Article 22(5), as interpretated by this Court over the las .....

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(5) means and says, it is not open to Parliament to make a law saying that where the grounds upon which the requisite satisfaction has been formed are partly good and partly bad, yet the order must be held to be good with reference to and on the basis of good grounds, eschewing the bad grounds. Such a law, it is submitted, would be in direct conflict with Article 22(5). Let us examine this submission rather closely." 13. The first contention, therefore, fails and ought to be rejected. 14. T .....

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d 27th May, 2014. We do not agree with and accept the contention of the petitioner that the Detention Authority should have reviewed and re-examined the entire factual matrix or it should have requisitioned and furnished all details, including documents, letters etc. that were exchanged and communications that had transpired between the period intervening 27th May, 2014 till 13th June, 2014. That was not the true object and purpose of passing the consequential order dated 13th June, 2014. Once w .....

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earlier judgment of the Supreme Court in the case of Jayanarayan Sukul (supra). In Jayanarayan Sukul (supra) it was held as under:- "20. Broadly stated, four principles are to be followed in regard to representation of detenus . First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authori .....

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duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will send the case along with the detenu's representation to the Advisory Board. If thereafter the Adv .....

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the case of Jayanarayan Sukul (supra). The detention order in the said case was executed on 7th June, 1969. The detenu had made a representation on 26th June, 1969 and the same was decided by the Detaining Authority on 19th August, 1969. The detention of the detenu was forwarded to the COFEPOSA Board on 1st July, 1969 and was finally decided on 13th August, 1969. It is quite apparent that there was a considerable delay in deciding the representation made by the detenue , which was received on 26 .....

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kumar (supra), representation was made by the detenu on 11th March, 2008 and reference was made to the Advisory Board of COFEPOSA after 13 days on 24th March, 2008. The decision on the representation made by the detenue was taken by the Joint Secretary, the Detaining Authority, by memo dated 27th March, 2008 and by the Special Secretary and Director General, Central Economic Intelligence Bureau, Ministry of Finance on 28th March, 2008, i.e., after the matter was forwarded to the Advisory/ COFEPO .....

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hly cherished right enshrined in Article 21 of our Constitution. Clause (5) of Article 22 therefore, casts a legal obligation on the government to consider the representation as early as possible. It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words "as soon as may be" occurring in clause (5) of Article 22 reflects the concern of the .....

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attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal. This has been emphasised and re- emphasised by a series of decisions of this Court. ( See :Jayanarayan Sukul v. State of W.M. [(1970) 1 SCC 219]; Frances Coralie Mullin v.W.C . Khambra [(1980) 2 SCC 275: 1980 SCC (Cri) 419]; Rama Dhondu Borade v.V.K . Saraf , Commissioner of Po .....

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oard, but there may not be time to dispose of the representation before referring the case to the Advisory Board. In that situation the representation must also be forwarded to the Advisory Board along with the case of the detenu . The representation may be received after the case of the detenu is referred to the Board. Even in this situation the representation should be forwarded to the Advisory Board provided the Board has not concluded the proceedings. In both the situations there is no quest .....

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e view that there is sufficient cause for detention, the government after considering the representation could revoke the detention. The Board has to submit its report within eleven weeks from the date of detention. The Advisory Board may hear the detenu at his request. The constitution of the Board shows that it consists of eminent persons who are Judges or persons qualified to be Judges of the High Court. It is therefore, proper that the government considers the representation in the aforesaid .....

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detention. This Court in V.J. Jain case [(1979) 4 SCC 401: 1980 SCC (Cri) 4] has observed (at SCC p. 405) that it is a constitutional obligation under clause (5) of Article 22 to consider the representation before confirming the order of detention. If it is not so considered, the confirmation becomes invalid and the subsequent consideration and rejection of the representation could not cure the invalidity of the order of confirmation. To reach this conclusion, the court has relied upon two earli .....

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representation was forwarded to them. Comments were received on 17th July, 2014. As per Section 8 (b) of COFEPOSA Act, the detention file had to be forwarded to the Advisory Board within a period of five weeks from the date of service of the order of detention. The file was accordingly forwarded to the Advisory Board on 18th July, 2014 as 19th and 20th July were holidays. It is apparent and crystal clear that the Central Government did not have sufficient time to apply their mind and decide upo .....

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tioner by memorandum of the same date. The said decision is within a reasonable time. The Advisory Board as per the counter affidavit filed by the respondent on 8th November, 2014, had not conducted any hearing and given their advice till 21st July, 2014. The hearing before the Advisory Board was fixed on 16th August, 2014. 18. The fourth contention of the petitioner, relying upon judgment in the case of Pooja Batra versus Union of India (supra) is entirely misconceived and fallacious. It would .....

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rystal clear on the factual narration and factual matrix. The object and purpose of preventive detention which is anticipatory and precautionary in nature in the said sense does not relate to an offence punishable in criminal proceedings. A preventive detention order is not a parallel proceeding. 19. The fifth and the last contention raised by the petitioner is based upon the additional affidavit dated 9th February, 2015, filed on 10th February, 2015. The said additional affidavit is predicated .....

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n form which is in English, of which full and complete Bengali translation was not submitted, but the translation furnished/supplied is of respective columns which were written or filled up. Translation of the blank columns was not furnished. Our attention is also drawn to the Arms Licence Form no. III and it is submitted that the said form though bilingual had a noting in English to the effect that on 26th September, 2014, one 32 bore pistol was supplied. Similarly, the Bengali translation of t .....

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oyota Fortuner , bearing a particular number was intercepted, was not supplied. Our attention was drawn to certain other documents, mentioned at page 27 to 30 of the affidavit, of which Bengali translations were supplied, but the Bengali translation of the standard terms and conditions of the pre-paid mobile phone forms, printed in English on the said form had not been submitted. 20. The said contentions have to be rejected for several reasons. Firstly, the contention of the petitioner that he k .....

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al documents have been signed by the petitioner in Bengali, there is clinching evidence available on record to show that the petitioner knows and can write in English. Perusing through the documents filed by the petitioner, we find that he has filed tax invoice dated 26th September, 2013, issued by N.C. Daw & Co. Arms & Ammunitions Dealer, Calcutta. By the said invoice, the petitioner has purchased one 32 bore pistol for ₹ 34, 350/-. The said document is signed by the petitioner in .....

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Appropriate in this regard would be reference to the decision of the Supreme Court in M. Kudubdeen versus Union of India (2010) 15 SCC 741. In the said case, the detention was challenged on the ground of non-supply of translated documents in the language known to the petitioner therein. Keeping in mind the factual matrix of the case, the Supreme Court rejected the plea and observed that non- supply of certain translated documents had not affected the detenue's cherished and constitutionally .....

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al and irrelevant. The said front portion contained certain basic details like name, flight number, number of packages etc. The said details were given by the detenu in his application form. The contention was accordingly rejected observing as under: "3. The first ground pressed by the learned counsel is about the non-supply of documents in the language known to the petitioner which, it is claimed, has adversely affected the detenu's valuable right of making effective representation und .....

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goods was approximately ₹ 7 ,29,000 . In the customs declaration the value of the goods was mentioned as ₹ 30,000. The details about ₹ 30,000 are noticed on the reverse of the document in respect of which the complaint has been made that the English (sic Tamil) translation has not been supplied. It is apparent from a look at the document, namely, the customs declaration that the reverse side of it is predominantly in the Tamil language. It is written by the petitioner. The grie .....

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en filled in that document. The name, flight number and number of packages have been mentioned in the document in question. Against the value of the goods tick mark has been made. The document has been signed by the detenu . In the face of the above details given by the detenu in the aforesaid declaration, the contention that the translation thereof has not been supplied particularly keeping in view that the reverse is in the Tamil language, is without any substance. Therefore, there is no merit .....

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