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2015 (5) TMI 694 - BOMBAY HIGH COURT

2015 (5) TMI 694 - BOMBAY HIGH COURT - TMI - Detention of appellant's husband - Habeas Coprus - Section 3(1) of the Conservation Of Foreign Exchange and Prevention Of Smuggling Activities Act, 1974 (COFEPOSA) - prevention from abatement of the smuggling of goods - Held that:- Division Bench of this Court while deciding the detention matter with respect to the co-detenu - Ajay Kumar Sharma in its judgment and order dated 20th January, 2015 has taken a judicial note with respect to the spacious pl .....

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in deciding the representation by the detaining authority between 12th December, 2014 and 2nd January, 2015 of about 20 days has not at all been explained, least satisfactorily explained by the detaining authority. It has further not been explained in the said affidavit that why it took 20 days for effecting the verification of the identity and the address of the Petitioner and the detenu. The affidavit is totally silent on this aspect. - The affidavit is also silent on this aspect and the dela .....

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he said delay has not at all been satisfactorily explained by the sponsoring authority. - breach of Article 22(5) of the Constitution of India at the behest of the Respondents has rendered the continued detention of the detenu illegal. We are therefore of the view that the delay as stated herein above is not satisfactorily explained and continued detention of the detenu is in violation of the constitutional mandate of Article 22(5) of the Constitution of India and the order of detention stands v .....

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n order bearing No.PSA-1214/CR-36(1)SPL-3(A) dated 29th September, 2014 in exercise of the powers conferred by Section 3(1) of the Conservation Of Foreign Exchange and Prevention Of Smuggling Activities Act, 1974 ('COFEPOSA' for short). By the said order the Respondent No.1 has directed that the said Kirti Vanabhai Patel be detained under the COFEPOSA Act, 1974 with a view to prevent him in future from abating the smuggling of goods as well as from engaging in transporting or concealing .....

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of Revenue Intelligence ('DRI' for short) seized about 132.882 MTs of Red Sanders from Nhava Sheva and another quantity of 18.350 MTs Red Sanders valued at ₹ 53.15 Crores and ₹ 7.34 Crores respectively. During the course of investigation by the officers of the DRI, it is revealed that the detenu was an active member of the cartel that indulged in smuggling of Red Sanders in an organised manner over a period of time. It was further revealed that the detenu was instrumental in .....

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Red Sanders at discrete locations around Navi Mumbai and stuffing thereof in export containers at such locations for shipment through Nhava Sheva port in the guise of onions under third party IECs. That the detenu had also taken on rent a warehouse at village Pendhar, Taluka Panvel which was used for storage of Red Sanders and for filling the same in the export containers. The investigation also revealed that the detenu was closely associated with persons viz. Santosh Pandurang Patil, Ajay Kuma .....

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he then detaining authority and the detaining authority after being subjectively satisfied, issued the present detention order dated 29th September, 2014, as contemplated under Section 3(1) of the COFEPOSA Act. The said detention order is impugned herein. 3. We have heard Mr. T. Chezhiyan, learned counsel appearing for the Petitioner, Mr. J.P.Yagnik, learned counsel appearing for the Respondent Nos.1 and 2 and Mrs. Aruna Pai, learned APP for the Respondent No.3 at length and have also perused th .....

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romptly and expeditiously and there is delay in deciding the said representation. The learned counsel appearing for the Petitioner further contended that the Division Bench of this Court in the case of a co-detenu in Criminal Writ Petition No.4618 of 2014 on similar ground has quashed and set aside the impugned detention order therein on the ground that the continuous detention of the detenu was held to be illegal and vitiated for breach of the mandate of Article 22(5) of the Constitution of Ind .....

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ed a detailed affidavit dated 20th March, 2015 opposing the Petition. 6. The Respondent Nos.1 and 2 in their affidavit dated 16th March, 2015 in response to ground 6(f) of the Petition have tried to explain the delay which has occurred at the instance of the detaining authority at the first instance and secondly at the instance of the Additional Chief Secretary i.e. the Respondent No.2 herein. With respect to the delay which has occurred at the instance of the detaining authority, it has been st .....

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e comments on those points were called by letter dated 9th December, 2014. That the said letter dated 9th December, 2014 was received by the office of the sponsoring authority on 12th December, 2014. It is further averred that as the name of Sangeetha Kirti Patel stated to be wife of the detenu was not known to the sponsoring authority, the premises mentioned in the representation and claimed to be the residence of the detenu was visited by the officers of the sponsoring authority on 2nd January .....

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rned Deputy Secretary was on leave on 2nd January, 2015 and 3rd January, 2015. The Principal Secretary (Appeals and Security) and the detaining authority after considering the representation and parawise comments of the sponsoring authority rejected the representation on 3rd January, 2015 and forwarded the reply to the Petitioner on 3rd January, 2015 itself. 7. As far as representation dated 2nd December, 2014 made by the Petitioner who is the wife of the detenu, addressed to the Additional Chie .....

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arawise comments by its letter dated 2nd January, 2015 which were received by the Additional Chief Secretary on the same day. The assistant submitted the parawise comments on 2nd January, 2015 which were endorsed by the Section Officer on the same day. That Mr. Amitabh Rajan, the then Additional Chief Secretary (Home) retired on 31st December, 2014 and was replaced by Mr. K.P. Bakshi. New Additional Chief Secretary (Home) joined the office on 1st January, 2015. The Additional Chief Secretary dir .....

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e comments to the detaining authority and the Additional Chief Secretary in response to ground Nos.6(f) and (g) of the Petition has stated that the representation dated 2nd December, 2014 was made by Sangeetha Kirti Patel, claimed to be the wife of the detenu and a copy thereof was received by the sponsoring authority on 12th December, 2014 calling for the parawise comments. That as the name of Sangeetha Kirti Patel stated to be wife of the detenu was not known to the sponsoring authority, the p .....

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u. That the said facts are incorporated in the parawise comments that were forwarded to the detaining authority and the Central Government on the same day i.e. 2nd January, 2015. That as per the communication dated 3rd January, 2015 received from the office of the detaining authority, it was stated that the representation dated 2nd December, 2014 made by Sangeetha Kirti Patel was rejected. It has further been stated in the affidavit that as per the communication dated 13th January, 2015 received .....

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of receipt of the above said representation, the concerned officer was preoccupied with the following urgent work relating to representations made by two other Co-detenues, which were received prior to the present representation of the detenu - (i) furnishing parawise comments on representation dated 24.11.2014 made by Co-detenu Ajay Kumar Sharma @ Manish Verma, (ii) furnishing parawise comments on Cr. W.P. No.4618 of 2014 filed in the Honourable Bombay High Court by Smt. Anita Ajay Sharma on b .....

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f the representation) and 02.01.2015 (date of furnishing of parawise comments) there were eleven holidays which have to be excluded from the time taken for furnishing parawise comments on the representation dated 02.12.2014 made by Smt. Sangeetha Kirti Patel. " 10. The Division Bench of this Court while deciding the detention matter with respect to the co-detenu - Ajay Kumar Sharma in its judgment and order dated 20th January, 2015 has taken a judicial note with respect to the spacious plea .....

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sidering and communicating the decision on the representation. If indeed the mandate of Supreme Court is to be honestly carried out by the Authority, the Authority should endeavour to prepare themselves to deal with such representation more expeditiously in the interest of upholding the law." It is pertinent to note here that though the sponsoring authority was well aware about the view taken by a co-ordinate Division Bench of this Court while deciding Writ Petition No.4618 of 2014, in case .....

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on of India by a detenu and its legal implications has observed in paragraphs 19 and 20 as under:- "19. The propositions deducible from the various reported decisions of this Court can be stated thus: The detenu has an independent constitutional right to make his representation under Article 22(5) of the Constitution of India. Correspondingly, there is a constitutional mandate commanding the concerned authority to whom the detenu forwards his representation questioning the correctness of th .....

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liberty-the highly cherished right-which is enshrined in Article 21 of the Constitution. 20. True, there is no prescribed period either under the provisions of the Constitution or under the concerned detention law within which the representation should be dealt with. The use of the word "as soon as may be" occurring in Article 22(5) of the Constitution reflects that the representation should be expeditiously considered and disposed of with due promptitude and diligence and with a sense .....

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is to be noted here that, the delay in deciding the representation by the detaining authority between 12th December, 2014 and 2nd January, 2015 of about 20 days has not at all been explained, least satisfactorily explained by the detaining authority. It has further not been explained in the said affidavit that why it took 20 days for effecting the verification of the identity and the address of the Petitioner and the detenu. The affidavit is totally silent on this aspect. 13. It is further to be .....

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call for the remarks has also not been explained in the said affidavit. It is further pertinent to note here that why it required 6 days by the new Additional Chief Secretary to discuss the matter with the concerned authorities i.e. from 1st January, 2015 on which he assumed the charge till 7th January, 2015, the date on which he discussed the matter with the concerned authorities. The affidavit is also silent on this aspect and the delay of 6 days is remained unexplained. Thus, there is in all .....

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