TMI Blog2011 (11) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... Detaining Authority in exercise of powers under Section 3(1) of the Conservation of of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the said Act ), upon recording satisfaction that it was essential to detain the detenu with a view to prevent him in future from smuggling of goods and abetting smuggling of goods and engaging in transporting and concealing and keeping smuggled goods and harbouring persons engaged in smugging of goods and abetting smuggling of goods. From the Grounds of Detention served on the said detenu, it is noticed that the said action was initiated against the said detenu, as he was involved along with four others in the case of gross misdeclaration with respect to quantity, quality and valuation of the declared export goods, besides claim of disproportionately higher amount of drawback. The Grounds of Detention refer to the statements of the accused recorded under Section 108 of the Customs Act, 1962, including the admission of the detenu that he had filed the wrong declaration on the shipping bills and had not obtained the permission of proper officer for making amendments. Further, the co-accused, Sanjay Waghm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in future as his smuggling activities were covered by Section 113(d) and (h) (ii) of the Customs Act, 1962. 3. The second petition is filed by the cousin brother of one Sanjay Nivrutti Waghmare (hereinafter referred to as Detenu Waghmare ) to challenge the Detention Order dated 20th July, 2011 bearing No. PSA-1211/CR-17(5)/SPL-3(A) issued by the Detaining Authority in exercise of powers under Section 3(1) of the said Act, upon being satisfied that detention of Detenu Waghmare was essential to prevent him in future from smuggling of goods and abetting smuggling and engaging in transporting and concealing and keeping smuggled goods and harbouring persons engaged in smugging of goods and abetting smuggling of goods. As aforesaid, the Detention Order against Detenu Waghmare has been passed in connection with the same transaction referred to in the Grounds of Detention of Detenu Jadhav regarding smuggling of goods of gross misdeclaration with respect to quality, quantity and valuation of the declared export goods and claim of disproportionately higher amount of drawback regarding the export consignment of M/s. Noble Impex under eight shipping bills. 4. In the Grounds of Detentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame transaction pertaining to export consignment of M/s. Noble Impex under eight shipping bills which came under scanner because of gross misdeclaration with respect to quantity, quality and valuation of the declared export goods and claim of disproportionately higher amount of drawback. After referring to the relevant admission given by the co-accused, it is noticed that Detenu Dhakne was partner of the concerned Clearing House Agency, i.e., M/s. Dhakne Co. The Grounds of Detention stated that Detenu Dhakne abetted the improper exports and claiming drawback fraudulently by offering his C.H.A.services to the exporters. He was shown the sample of export goods. He instructed his staff to prepare the shipping bills and related documents for exports. He had given instructions to Detenu Jadhav to prepare, file the shipping bills and complete Customs dock formalities. He confirmed the name of Bala Jadhav on shipping bills of M/s. Noble Impex on behalf of C.H.A. Firm, M/s. Dhakne Co. He admitted to have offered his C.H.A. service without verifying quality and quantity of the samples of the items to be exported. He has also admitted having given the blank annexure/declaration to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Ors., Criminal Writ Petition No. 2188 of 2011 decided on 11th October, 2011. Incidentally, in that case also, the counsel for the petitioners herein had appeared for the detenu and unsuccessfully pursued these very grounds. She fairly accepts that the principle enunciated in the said decision in relation to the abovesaid grounds would squarely apply and it may not be possible for her to distinguish the same. 9. That leaves us with the other three broad common points urged by the learned counsel for the petitioners. According to the petitioners, the impugned Detention Orders suffer from the vice of non-application of mind. In that, the Detaining Authority, after receipt of the proposal, proceeded to pass order within one day. The argument proceeds that it was impossible for the Detaining Authority to wade through all the four proposals examined together in one day and also formulate grounds therefor. The second shade of challenge to the impugned Detention Order, as suffering from the vice of non-application of mind, is that, there is variance in the alleged activities stated by the Detaining Authority in the Order of Detention and the ones mentioned in the Grounds of Detentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.2011 and forwarded it to Deputy Secretary. The Deputy Secretary endorsed it on 2.7.2011 and the proposal was submitted to me. I endorsed it on 11.7.2011 and directed to get the documents stamped. By its letter dtd. 11.7.2011 the Sponsoring Authority forwarded the copy of Show Cause Notice, dtd. 4.7.2011 which was submitted to me and on 12.7.2011 I as the Detaining Authority directed to include it in relied upon documents. Thereafter on 19.7.2011 the stamped relied upon documents were submitted to me. I as the Detaining Authority directed to issue the detention Order by drafting the Detention Order along with the grounds of detention and also directed to submit the fair copy of the same. Accordingly the fair copy of the Detention Order and the grounds of detention was submitted to me on 20.7.2011 and on the same day the detention order was issued against the detenu. I as the Detaining Authority, on the material facts available on record and after my subjective satisfaction with the documentary presentation as clearly stated in the grounds of detention, communicated to the detenu. I arrived at the decision that the detenu should be detained under the provisions of the COFEPOSA A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cri.W.P. 2333 OF 2011 Cri.W.P. 2683 OF 2011 1. Checklist for Export 8984595 dtd 26-10-10 (with Declaration, Annex-A, Invoice Details, Item Details etc.) Checklist for Export 8984588 dtd 26-10-10 (with Declaration, Annex-A, Invoice Details, Item Details etc.) Checklist for Export 8984570 dtd 26-10-10 (with Declaration, Annex-A, Invoice Details, Item Details etc.) Checklist for Export 8984619 dtd 26-10-10 (with Declaration, Annex-A, Invoice Details, Item Details etc.) Checklist for Export 984577 dtd 26-10-10 (with Declaration, Annex-A, Invoice Details, Item Details etc.) Checklist for Export 8984546 dtd 26-10-10 (with Declaration, Annex-A, Invoice Details, Item Details etc.) Checklist for Export 8984811 dtd 26-10-10 (with Declaration, Annex-A, Invoice Details, Item Details etc.) Checklist for Export 8984796 dtd 26-10-10 (with Declaration, Annex-A, Invoice Details, Item Details etc.) Shipping Bill No. 8984595 dtd 26-10-10 (with Checklist, Invoice, Packing List) Shipping Bill No. 8984588 dtd 26-10-10 (with Checklist, Invoice, Packing List) Shipping Bill No. 8984570 dtd 26-10-10(with Checklist, Invoic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. Statement of Shri Ashok P. Dhakane PD No. 3 dated 19.11.10 Statement of PD dated 03-03-2011 Statement dated 14.03.11 of Shri Saiyed J. Naeemuddin PD No. 1 8. Statement of Shri Ashok P. Dhakane PD No. 3 dated 02.11.10 Statement of Shri Ashutosh Rai dated 08-02-2011 Statement dated 15.12.10 of Shri Bala Baburao Jadhav PD No. 4 9. Statement of PD dated 14.03.2011 Statement of Shri Ashutosh Rai dated 11-02-2011 Statement dated 16.11.10 of Shri Bala Baburao Jadhav PD No. 4 10. Statement of PD dated 21.02.2011 Statement of Shri Khalil A.R.A. Kapadia PD No. 2 dated 06-12-2010 Statement of PD dated 14.03.2011 11. Statement of PD dated 15.12.2010 Statement of Shri S.J. Naeemudidn PD No. 1 dated 01-12-2010 Statement of PD dated 01.03.2011 12. Statement of PD dated 16.11.2010 Statement of PD dated 07.02.2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d formulation of Grounds of Detention. Since more than one person was involved in hatching conspiracy and its execution pertaining to the same transaction, there was nothing wrong for the Detaining Authority to consider all the proposals together. It is, therefore, in the facts of the present case, not possible to countenance the assumption of the petitioners that the Detaining Authority scrutinised four Detention Orders as also formulated separate Grounds of Detention in four cases on the same day. In our opinion, the ground under consideration is devoid of merits. 14. That takes us to the argument that the impugned Detention Orders suffer from non-application of mind and are vitiated because the activities stated in the Orders of Detention are non-existent (not mentioned) in the grounds of Detention. Inasmuch the Order of Detention in each of these cases refer to the activities covered by clauses (i) to (v) of sub-section (1) of Section 3 of the said Act. However, the Grounds of Detention, at best, can be said to be ascribable to the activities covered only under clause (ii) i.e. , abetting the smuggling of goods qua Detenu Jadhav and Detenu Waghmare. As regards Detenu J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e detenues were working in a well-organised manner and by their acts of commission and omission were engaging themselves in prejudicial activities. Similarly, in the case of Detenu Dhakne, the action is founded on the basis that he abetted improper exports and claiming drawback fraudulently by offering his C.H.A. services to the exporter for the alleged prejudicial activities. The exporter and his associate showed the sample of export goods to him and he, in turn, instructed his staff to prepare the shipping bills and related documents for export. He instructed his staff to prepare, file the shipping bills and complete the Customs dock formalities. He offered his C.H.A. service without verifying quality and quantity of the samples of the items to be exported. He gave the blank annexure / declaration to his employee, Detenu Jadhav. He admitted misdeclaration in description, quantity, quality, valuation of the export goods and claiming drawback fraudulently by the exporter. In substance, he was indulging and abetting in smuggling activities. 17. Expression smuggling has been defined in Section 2(39) of the Customs Act, 1962. It means, in relation to any goods, any act or omissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointing out that the Order of Detention refers to all the five activities provided for in Section 3(1) of the said Act, under Clauses (i) to (v) thereof, empowering the Detaining Authority to detain any person with a view 26 233211 to preventing him from, in any manner, prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from indulging in specified prejudicial activities; whereas, the grounds of detention, at best, may spell out only activity ascribable to clauses (ii) and (v). In other words, the other activities stated in the Order of detention cannot be supported on the basis of the activities mentioned in the Grounds of Detention. That, according to the petitioners, reflects on the subjective satisfaction recorded by the Detaining Authority; and, resultantly, the Order of Detention is vitiated on that count. Reliance is placed by the petitioners on the decision of our High Court in the case of Bhavesh Kantilal Jain vs. State of Maharashtra reported in 1998 All MR (Cri.) 175 to buttress the argument that the activities referred to in the order of detention from amongst the five activities specified in sub-section (1) of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Grounds of Detention referred to the said activity. In the background of those facts, the counsel appearing for the State in that case had urged that the Order of Detention is saved on the principle of severability, keeping in mind the mandate of Section 5-A of the said Act. That argument, however, came to be rejected in the following words:- 13. ...... Section 5-A provided that where a person had been detained in pursuance of an order of detention under sub-s. (1) of S. 3 which had been made such order of detention could be deemed to have been made separately on each of such grounds and accordingly such order could not be deemed to be invalid or inoperative merely because one or some of the grounds were (i) vague, (ii) non-existent, (iii) not relevant, (iv) not connected or not proximately connected with such person, or (v) invalid for any other reason whatsoever. Now it is necessary to point out that S. 5-A relates to the grounds furnished to a detenu in support of the Order of detention. It does not apply to an Order of detention. The grounds of detention are supplied to a detenu under sub-s. (3) of S. 3 of the COFEPOSA Act. Sub-sec. (3) of S. 3 of the COFEPOSA Act is in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ues formulated in paragraph 16 of the reported judgment, and the same has no bearing on the question under consideration. The question is: Whether Section 5-A of the said Act applies only to the grounds furnished to a detenu and not to an Order of Detention, as has been expounded in the case of Shashikala Rane (supra)? Indeed, the question was specifically posed in that case, as the same had arisen for consideration therein. The Court opined that Section 5-A of the said Act applied only to ground furnished to a detenu in support of the Order of Detention; and it has no relevance to the Order of Detention as such. This is the only logic that can be deduced from the above quoted extract. The other unreported judgment of our High Court relied upon in Makwana's case (supra) merely follows the dictum in Shashikala Rane's case. In our opinion, the above view, with utmost respect, whittles down the intent behind the enactment of Section 5-A, which is primarily, to save the order of detention from being declared invalid or inoperative merely because one or some of the grounds referred to therein are vague; non-existent; not relevant; not connected or not proximately connected with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement occurring in the earlier decision of Division Bench of this Court in Shashikala Rane's case on the point under consideration. 24. In our opinion, in view of the dictum of the Apex Court in Attorney General for India's case (supra), the legal position stated in Shashikala Rane's case, and as followed in the unreported decision in Babulal Makwana's case, stands impliedly over-ruled. The Constitution Bench of the Apex Court posed to itself Question No. 6 as follows:- Whether Section 5-A of COFEPOSA is violative of Clause (5) of Article 22? The challenge was inter alia on the basis that the parliament was not competent to make a law saying that where the grounds upon which the requisite satisfaction has been formed on 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. That law will be directly in conflict with Article 22(5). While answering the said question, the Apex Court has interpreted Section 5-A of the said Act. In paragraph 47, the Court observed thus:- 47. The section is in two parts. The first part says that where an order of detention is made on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the first - the main - part of Section 5-A. Parliament is competent to create a legal fiction and it did so in this case. Article 22(5) does not in terms or otherwise prohibit making of more than one order simultaneously against the same person, on different grounds. No decision saying so has been brought to our notice. Be that as it may, we do not see why Parliament is not competent to say, by creating a legal fiction, that where an order of detention is made on more than one ground, it must be deemed that there are as many orders of detention as there are grounds. If this creation of a legal fiction is competent, then no question of any inconsistency between the section and Article 22(5) can arise. (emphasis supplied) 25. It may be useful to also refer to the dictum of the Apex Court in the case of State of Gujarat v. Chamanlal Manjibhai Soni, (1981) 2 SCC 24, which reads thus:- What Section 5-A (of the COFEPOSA) provides is that where there are a number of grounds of detention covering various activities of the detenu spreading over a period or periods, each activity is a separate ground by itself and if one of the grounds is irrelevant, vague or unspecific but the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nothing to indicate that the Grounds of Detention have been formulated by someone - other than the Detaining Authority herself. The fact that the Detaining Authority considered the noting made by the other officers in succession, by itself, does not mean that it would be a case of non-application of mind, unless something more was shown. Suffice it to hold that in the present case, it is not possible to take the view that the Detaining Authority herself did not examine the proposal independently or formulated the grounds for detention on her own. 28. The counsel for the petitioners had then relied on the decision of the Apex Court in Vijay Kumar Dharna Alias Koka v.Union of India - (1990) 1 SCC 606. We fail to understand how this decision will be of any avail to the petitioners. In that case, the Court noted that there was variance in the Gurumukhi version of the detention order and that in the English version. In Gurumukhi version, it was mentioned that it had become necessary with a view to preventing the detenu from smuggling goods and from abetting the smuggling of goods - activities prescribed in clauses (i) and (ii) of Section 3(1) of COFEPOSA. But in grounds of detention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 11th August, 2011. The said letter was sent by ordinary post, which was received in the Office of the Sponsoring Authority on 16th August, 2011. On 17th August, 2011, the concerned officer was busy in the High Court in connection with criminal writ petition filed by the detenu. The para-wise comments were prepared on 18th and 19th August, 2011. 20th August, 2011, being Saturday, 21st August, 2011, being Sunday and 22nd August, 2011, being a public holiday, the file was put up for discussion and approval of para-wise comments before the Joint Commissioner on 23rd August, 2011. The final para-wise comments sent by Joint Commissioner was despatched on 24th August, 2011. A copy was sent to Mantralaya on 25th August 2011. That copy was received in Mantralaya on 26th August, 2011. 27th and 28th August, 2011 were holidays. On 29th August, 2011, due to heavy rains, the transport system in the city was totally paralysed, as a result of which, there was no attendance in the office. On 30th August, 2011, the representation was submitted along with the para-wise comments and other remarks to the Detaining Authority as well as the Appropriate Authority of the State Government. 31st August ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity of the State Government or the Detaining Authority in that behalf. This argument is completely oblivious of the working of the Government offices. Even though the final decision to be taken on the representation is that of the Detaining Authority or the Appropriate Authority of the State, the file has to be processed through proper channel. That procedure is followed as per the Rules of Business. Such process is intended to have checks and balances in the decision-making process, and more particularly, to abreast the final Authority who is expected to take the decision of all the material and relevant aspects. No fault can be found with such a procedure. Rather, the same is in abidance with the principle of rule of law. What is to be scrutinised by the Court is: Whether the file was continuously moving and was attended to or it is a case of supine indifference and callousness at any one or more stages in the decision-making process? Considering the facts unravelled from the reply-affidavit as well as from the notings in the original file, it is not possible to take the view that there was any inaction, indifference or callousness at any stage in the consideration of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery or special messenger to avoid delay, which inevitably infringes the rights guaranteed to detenu under the Constitution. We may, however, observe that the time taken or spent in transmission of the inter-departmental communication by post will be a just and sufficient explanation by the Authority - as the Authority cannot be faulted for that. 33. As a matter of fact, a Bench of this Court - to which one of us was a party (A.M. Khanwilkar, J.) - in the case of Shashikant A. Alavane v. State of Maharashtra Ors., 2001 Cri. L.J. 1503, particularly paragraphs 20 to 22 thereof, almost a decade back, had occasion to make observation in this regard, considering the fact that the Courts do not look with equanimity upon delays when the liberty of a person is concerned. Indubitably, representations of the detenu are required to be decided with utmost expedition as it cannot brook delay. It has to be taken up for consideration as soon as it is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu. 34. The counsel for the petitioners, however, has pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deed, the avoidable delay in the present case due to sending the communication to the Sponsoring Authority by ordinary post can be frowned upon, but it would not be a case of negligence or callousness, or inaction of the Authority as such. 38. Taking over all view of the mater, therefore, the challenge on the ground that there has been delay in consideration of the representation either by the Appropriate Authority of the State Government or the Detaining Authority, as the case may be, is devoid of merit. Additional points in the case of detenu Waghmare: 39. That takes us to the additional ground urged in the petition filed in the case of Detenu Waghmare. It is the case of the petitioner that the said detenu has studied only up to 10th standard in Marathi Medium. He does not have workable knowledge of English Language. However, the impugned order, along with the Grounds of Detention, served on him was in English Language. Besides, that was not explained to the detenu in Marathi. Thus, the Grounds of Detention, in law, have not been communicated to the detenu, and it is, in fact, an infraction of Article 22(5) of the Constitution of India. The Detaining Authority, in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plea taken by the petitioner that he has had no workable knowledge of English is a disputed question of fact. It is word against word. But then the respondents have produced contemporaneous documentary evidence which certainly suggests that the detenu himself had sent those letters in English under his signature in English. The counsel for the petitioner, however, was at pains to persuade us to take the view that the detenu has no knowledge of English, but had merely signed documents prepared by someone else presumably his Advocate. She submits that, as regards the last document relied upon by the respondents, viz., representation made by the detenu under his signature sent through jail against the Detention Order to the concerned Authority, the same was, in fact, prepared by her and was sent to the Superintendent of Prison under cover of her letter dated 6th August, 2011 (as produced before the Court). Even if we accept this explanation, it does not, however, explain as to how the detenu had sent other correspondence in English to the Commissioner of Customs (Preventive) in response to the summons on different dates. The learned Advocate for the detenu wants the Court to assume t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d being founded on pure speculation. In the present case, however, in addition to asserting that the record in the office of the Sponsoring Authority indicates that the detenu was conversant with English, the respondents have also relied on documentary evidence to substantiate that in the past the detenu had entered into communication in his own name with the concerned Authorities in English under his own signature which was also in English. Admittedly, the detenu has studied up to 10th standard. No rejoinder is filed by the detenu to deny the fact asserted by the respondents or to explain the circumstances in which he had sent the stated communications in English. It is not a case of mere signature on number of documents in English by the detenu. Further, the fact asserted by the respondents on affidavit that when the order and grounds of detention were sought to be served on the detenu, he asked to hand it over directly to the petitioner herein who was present at the spot. That factual position asserted by the respondents has remained unchallenged and uncontrovertd. Further, the petitioner does not say that he is not conversant with English language and that he did not underst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement under Section 108 of the Customs Act. The Detaining Authority has referred to other material such as statements of Detenu Dhakne dated 1st December, 2010 and Ashutosh Rai dated 8th February, 2011 and 11th February, 2011 and 31st March, 2011 to counter the suggestion that no material was placed before the Detaining Authority, from which, it can be said that the detenu had arranged for transport of the goods to be exported from Surat to Mumbai and kept the said goods at a warehouse. 45. Suffice it to observe that the fact that I.E. Code was not placed before the Detaining Authority along with compilation of documents cannot be the basis to assume that the Detaining Authority could not have arrived at the subjective satisfaction as recorded by her on the basis of the material already produced before her, which would go to show that the detenu was involved in the crime and had propensity to indulge in prejudicial activities in future - considering the over all view emerging from the material on record. The Detaining Authority has explained that position in the reply-affidavit as well. Somewhat similar argument is made at the instance of Detenu Dhakne. We shall elabora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his on indulgence in smuggling activities in future. It is merely one of the remedial measures taken for stopping the future participation of the detenu in similar matters. Further the detention of the detenu under COFEPOSA ACT, 1974, is preventive measure only to prevent the detenu from indulging in smuggling activities. It is the irresponsible attitude of the detenu who as a bonafide CHA is bound by the obligations as mentioned in the Customs House Agents Regulations, 2004, which the detenu has failed to do and therefore, it cannot be said that the detention order is malafide and null and void. 49. The Sponsoring Authority, while dealing with the said contention, has stated thus:- The detaining authority on the material facts available on record and after satisfying herself with the documentary presentation as clearly stated in the grounds of detention, communicated to the detenu, as to how she arrived at the decision that the detenu should be detained under the provisions of the COFEPOSA Act. The petitioner's claim is not tenable regarding the suspension of CHA licence of the detenu. The suspension order annexed as Annexure D to this petition, specifically mentions t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly a measure to prevent the detenu from indulging in prejudicial activities in future. The fact that the order of the Commissioner was not placed before the Detaining Authority or, for that matter, supplied to the detenu along with the Grounds of Detention, in our opinion, does not take the matter any further. Indubitably, the justness of the subjective satisfaction of the Detaining Authority ought to be tested on the basis of the material placed before her. That subjective satisfaction cannot be doubted on account of non inclusion of order suspending C.H.A. Licence of detenu's Company. Reliance was placed on the observation of the Apex Court in the case of Gimik Piotr (supra). In that case, the passport of the detenu was already impounded when order of detention was passed against him under Section 3(1)(i) of Act. In this backdrop, it was argued on behalf of the detenu that the Detaining Authority having failed to examine the issue as to whether the detenu would be able to continue his prejudicial activities of smuggling goods, and it was not open to the Detaining Authority to speculate that the detenu would continue to indulge in the prejudicial activities even in absence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he detenu had indulged in any prejudicial activities even after the suspension of licence and, for that reason, the Detaining Authority could not have reached the subjective satisfaction that preventive detention was imperative. It is not possible to countenance this submission. The Detaining Authority, in the present case, has considered the statements of all the accused recorded under Section 108 of the Customs Act, as also other material which indicates that the prejudicial activity was conducted in organised manner and Detenu Dhakne was part of that larger conspiracy, and has propensity to commit such offences in future. For committing such organised prejudicial activity, existence or non-existence of CHA licence can be no impediment if the person has other means and resources to continue the activities. In other words, there is no tangible reason to doubt the subjective satisfaction of the Detaining Authority that the detenu has propensity to indulge in the prejudicial activities in future. 53. The other additional ground on behalf of Detenu Dhakne is about the delay in deciding representation by the Detaining Authority and the State Government. This argument is canvassed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvited from the Sponsoring Authority. That communication was sent to the Sponsoring Authority on 26th August, 2011. The para-wise comments were received from the Sponsoring Authority on 23rd September, 2011. The other relevant events as unfolded during the intervening period, can be culled out from the notings on the file, can be stated as under. 56. The representation was received in the Office of the Joint Commissioner on 2nd September, 2011. We have already dealt with the same argument that the officers from Mantralaya should not have sent communication to the Sponsoring Authority, inviting his para-wise comments by ordinary post . For the same reason, the explanation given by the respondents for the time between 26th August, 2011 till 2nd September, 2011 will have to be accepted. It is also noticed that 3rd and 4th September, 2011 were holidays. The representation was then received in COFEPOSA Section on 5th September, 2011. The para-wise comments-preparation was done between 6th and 7th September, 2011. The file was then put up before the Joint Commissioner for approval on 8th September, 2011. The discussion on the said file took 67 233211 place on 9th September, 2011. Onc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the processing of second representation, there is no manner of doubt that it has been done with utmost expedition and the final decision is taken by the Detaining Authority on 27th September, 2011 after processing the file through proper channel. As regards the first representation, there is no reason to think that it is a case of inaction or callousness till 14th September, 2011. Thereafter, the Detaining Authority chose to keep the said representation pending for being decided together with the second representation made by the same detenu. It is not a case of the first representation having remained unattended between 14th till 23rd September, 2011 without a just cause, as such. The first representation was required to be kept aside to be decided along with the second representation, after the para-wise comments thereon were received from the Sponsoring Authority. As soon as the para-wise comments were received from the Sponsoring Authority on 23rd September, 2011, the same was processed with utmost despatch in the office of the Detaining Authority and final decision thereon was taken on 27th September, 2011. Taking over all view of the matter, therefore, it is not a case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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