9911796707
TMI Blog2006 (8) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... . Some of the seized goods were goods cleared without payment of Central Excise duty from factories declaring them as meant for export but diverted to local market. In the corresponding airway bills the goods were described as "Industrial Raw Material" as against their specific names. On a consideration of all the material placed before her the detaining authority was satisfied that the petitioner had played a very crucial role in perpetuating the whole fraud on the revenue alongwith two others. The detenu had, therefore, actively aided and abetted the smuggling of the goods as defined by Section 2(39) of the Customs Act, 1962, and as adopted in the COFEPOSA Act, 1974 vide Section 2(e) thereof. Considering the nature and gravity of the offence and the well organized manner in which the detenu was engaged in prejudicial activities, with a view to prevent him in future from abetting smuggling of good, it was necessary to detain him under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. 3. It is the case of the petitioner that the first statement of the detenu was recorded under Section 108 of the Customs Act by the officers of the DRI on March 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 no order of detention was passed and this inordinate delay in issuing the order of detention itself established that there was no urgency in the matter neither was there material to reach the alleged subjective satisfaction, nor was it necessary to detain the detenue under the provisions of the Act. 5. The detaining authority filed a very detailed affidavit in reply explaining the steps taken during this period. She explained that the proposal for the issuance of an order of detention was processed during the tenure of her predecessor and thereafter during her tenure. The processing of such proposals is a continuous process and every effort is made to see to it that necessary steps and the procedures prescribed are legally followed by the detaining authority. The statement of the detenu under Section 108 of Customs Act, 1962 was recorded on March 30, 2005 wherein he disclosed about the nature of his job and his involvement as also the involvement of others, and the role played by him in the exports detailed in the grounds of detention. From the perusal of the documents, it was revealed that from January, 2003 to March, 2005, the concerned firms indulged in exports of various bul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed it to the Deputy Secretary on November 29, 2005. The remarks of the sponsoring authority were called on the representations which was forwarded by the sponsoring authority on December 13, 2005. In the meantime, the sponsoring authority forwarded further generated documents on December 13, 2005 and December 25, 2005. A detailed note was again prepared on January 6, 2006 and was put up for approval before the Under Secretary on the same day. The Under Secretary gave his endorsement and forwarded it to the Deputy Secretary who gave his endorsement on January 7, 2006. The deponent was empowered as the detaining authority by order dated January 10, 2006. The proposal was placed before her and after careful consideration of the representations the same were rejected on January 18, 2006. Thereafter the sponsoring authority again forwarded further generated documents on January 20, 2006. The wife of the detenu also sent a representation on January 20, 2006 The representation and the generated documents were again considered in the Department and thereafter the representation was rejected on January 25, 2006. The generated documents were also processed and the matter put up before the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the representation of a detenu, cannot be strictly applied to the case of processing of a proposal for detention of a person under the Act. No doubt, if there is inordinate delay in issuing the order of detention, it may well be argued that the live link between the prejudicial activity of the detenu and the purpose for which order of detention is issued is snapped, and being stale there was no justification for issuance of an order of detention. In the facts and circumstances of this case, we are satisfied that the details furnished by the detaining authority provide sufficient explanation for the time taken in issuing the order of detention. We are also satisfied that the detaining authority was conscious of the fact that the matter required immediate attention, but in view of the voluminous record which had to be scanned and scrutinized before issuance of the order of detention, the order could not be issued earlier. 8. There is one other reason which explains why the order of detention could not be issued earlier. We have been informed that the petitioner had moved the High Court and obtained an order of stay on June 30, 2005. Such an order was passed in view of the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rounds of detention on the basis of the material collected. She has denied the allegation that she could not have issued the order of detention within such short period and that she had issued the order in great haste, without application of mind, and signed the grounds of detention prepared by others. She has stated that processing of proposal for issuance of detention order was a continuous process undertaken by the detaining authority. It was firstly undertaken by Neela Satyanarayana and from January 10, 2006 by the deponent. 11. We are not impressed by the arguments advanced on behalf of the petitioner. The order of detention was not prepared overnight. As explained by the detaining authority it is a continuous process. The proposal of the sponsoring authority is first examined by the Screening Committee and thereafter by the officers of the Home Department at various levels. The material collected is then placed before the detaining authority for its consideration. In this case the sponsoring authority had made a proposal much earlier, but from time to time further generated documents were being dispatched to the detaining authority which were considered by the detaining auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed an independent subjective satisfaction on the basis thereof. In the facts and circumstances of this case, we are satisfied that the detaining authority did not proceed to issue the order of detention mechanically on the basis of the subjective satisfaction of her predecessor, but applied her mind to the material on record and independently reached the subjective satisfaction that it was necessary, in the facts of the case, to issue the order of detention. The second submission urged on behalf of the petitioner is also rejected. 14. The last submission urged on behalf of the petitioner is that translated copies of all documents, statements and other materials were not furnished to the detenu within the statutory period of five days. The documents served upon the detenu were in the English language which he did not understand. Some letters written by the wife of the detenu to the authorities much before the order of detention was served disclosed that the detenu did not know the English language and was only conversant with Marathi and Hindi languages. There was thus a breach of Article 22(5) of the Constitution of India. For this reliance was placed on the decision of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing regard to the large number of documents to be filed and required to be filled, he could not have conducted his business on such a large scale without being conversant with the English language. He has signed all documents in English. 16. It was urged before us that two representations by the wife of the detenu were submitted before the order of detention was served in which it was stated that the detenu did not understand the English language. Those documents are not before us and, therefore, we wish to make no observation in that regard. On the basis of the material before us we are satisfied that the detenu knows the English language and, therefore, service of the documents upon him in the English language did not breach Article 22(5) of the Constitution of India. However, by way of abundant caution translated copies of documents were provided to him within 10 days of his request. We, therefore, find no merit in the last submission urged on behalf of the detenu. 17. Counsel for the petitioner then sought to urge before us that there was a normal delay in the disposal of the representation and therefore, the detention has become bad. The writ petition was filed soon after th ..... 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