TMI Blog2012 (1) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1974 (for short COFEPOSA Act). 2. Heard Mr.D.S.Mhaispurkar, learned Counsel for the petitioner and Mr.J.P.Yagnik, learned APP for the Respondents at length. Rule. Mr.Yagnik waives service. By consent of the parties, Rule is made returnable forthwith and the petition is taken up for final hearing. 3. The facts and circumstances, giving rise to the filing of the present writ petition, briefly stated are as under:The officers attached to the Nhava Sheva Preventive Unit, NhavaSheva, detained the export consignment of M/s.Noble Impex under 8 shipping bills (filed under the Drawback Scheme) all dated 26.10.2010, after scrutiny of the export data available on EDI System of Jawaharlal Nehru Port Trust, NhavaSheva, Uran. In the scrutiny of the documents of the above shipping bills, it was revealed that there was gross misdeclaration with respect to quantity, quality and valuation of the declared export goods viz. Dupattas and Sarong , besides claiming disproportionately higher amount of drawback. The goods totally valued at ₹ 3,67,98,880/( FOB) with drawback claim of ₹ 34,20,030/were detained under the panchanama dated 29.10.2010 for further investigation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not placed before the Detaining Authority. Though the Detaining Authority considered the confession made by said Naimuddin, the retractions made by Naimuddin were not placed by the sponsoring authority before the Detaining Authority. The statements and its retractions were vital documents, which would have influenced the mind of the Detaining Authority one way or the other and hence failure to consider those documents has rendered subjective satisfaction of the Detaining Authority null and void. (Ground No. X ). 7. He further submitted that the Detaining Authority has considered the statements of the detenu recorded on 02.11.2010, 24.11.2010 and 06.12.2010. However, those statements were retracted vide retraction dated 13.11.2010 06.12.2010. The sponsoring authority has neither placed those retractions before the Detaining Authority nor the Detaining Authority was aware about these retractions. As such, the satisfaction arrived at by the Detaining Authority is severely impaired for want of considering the vital documents. (Ground No. Y .). In support of these submissions, he relied upon the following judgments: (1) Madanlal Anand V/s.Union of India, AIR 1990 SC 176 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 108 of the Customs Act, 1962 that he has misdeclared, overvalued the goods of inferior quality. He further admitted having signed invoices and packing lists other documents such as shipping bills were filed by one Bala Jadhav for exporting those goods. Hence the order of detention issued with a view to preventing the detenu from indulging in smuggling activities in future, shows total non application of mind and is thus null and void (Ground No. N ). 10. He also submitted that the sponsoring authority has neither placed before the Detaining Authority nor did the Detaining Authority consider the statement of the said Naimuddin recorded on 01.12.2010, 03.12.2010 and 06.12.2010. From perusal of these statements it is apparent that he specifically admitted that the work of preparing invoices and packing list for consignment of 120 packages was prepared by Sanjay Waghmare on behalf of M/s.Noble Impex and he was not aware as to who prepared invoices and packing list for the remaining 130 consignments. In these statements, Naimuddin has indicated the name of Waghmare for transportation of goods as well as preparation of export documents. He also admitted his being I.E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imuddin, Bala Jadhav, Sanjay Waghmare and the detenu, as recorded under section 108 of the Customs Act, 1962. However, the Detaining Authority failed to supply to the detenu the copies of the statement of Ashok Dhakane, Bala Jadhav and Sanjay Waghmare, thereby the detenu was not communicated the grounds of detention paripasu. Hence the detenu was deprived of his right to make representation at the earliest opportunity. On this ground alone, the order of detention is liable to be quashed and set aside (Ground No. F ). In support of this proposition, he relied upon the following judgments: ( 1) Thahira Harris V/s. State of Karnataka, AIR 2009, SC 2184, (2) Ibrahim Ahmed Batti V/s.State of Gujrat, (1982) 3 SCC 440. 13. On the other hand, Shri. Yagnik submitted that while passing the order of Detention dated 20.07.2011, the Detaining Authority had referred to and relied upon the documents mentioned in the enclosed list and the said documents were duly served on the detenu. Perusal of Annexure to the order of Detention would indicate that the Detaining Authority relied upon (i) 8 shipping bills, (ii) statement of Sayed Naimuddin dated 18.11.2010, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter on the Advocate of the Revenue. He further submitted that the order of Detention is not vitiated for nonconsideration of the retractions and the subjective satisfaction of the Detaining Authority is not impaired for want of considering the retractions. In support of these submissions, he relied upon the following judgments: (1) Prakash Chandra V/s. Commissioner and Secretary, SM 14 CR.WP.3253.11 Government of Kerala, AIR 1986 SC 687. (2) Madan Lal Anand V/s. Union of India, AIR 1990 SC 176. (3) Raverdy Marc Germain Jules V/s. State of Maharashtra, (1982) 3 SCC 135. (4) L.M.S. Ummu Saleema V/s. B. B. Gujral, (1981) 3 SCC317. (5) Noor S. Makani V/s. Union of India, (1994) 1 SCC 381. 15. He further submitted that the Detaining Authority had relied upon the bail orders dated 04.11.2011 and they were duly served upon the detenu. The Detaining Authority did not refer to and rely upon the bail applications and the failure to supply the bail applications does not in any manner prejudice the detenu from making representation, particularly, when he was fully aware of the contents of the applications. In support of this preposition, he relied upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation and taking into account the comments of the Sponsoring Authority rejected the representation on 07.09.2011 and the rejection was communicated to the detenu on the same day, i.e., on 07.09.2011. He, therefore prayed for dismissal of the Petition. 18. We have considered the rival submissions made by the learned counsel for the parties. We have also gone through the record of the Respondents as also the original record in Remand Application No.102 of 2010 of the learned JMFC, Uran. 19. In so far as Ground X is concerned, it is contended that Sayed Naimuddin retracted his statement vide letters 13.11.2010 and 06.12.2010 and these retractions were not placed before the Detaining Authority. Perusal of the record of the Remand Application No.102 of 2010 would indicate that Naimuddin had sent retraction dated 13.11.2010 to the learned JMFC through speed post and the retraction dated 06.12.2010 was received by hand by the Assistant Superintendent of JMFC on 14.12.2010. No order is passed on the retraction dated 13.11.2010. On that statement the learned JMFC passed order on 14.12.2010 to the effect that the application be kept with C.R.No.102/RA/2010. In the first place, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounds. 21. Mr.Mhaispurkar, strenuously contended that even if the sponsoring authority was not aware of these retractions it cannot be disputed that the retractions are on the file of learned JMFC and that the petitioners were supplied with the certified copy of the same by the said Court. The sponsoring authority ought to have obtained retraction from the file of the learned JMFC. In support of these submissions, he relied upon the judgment of the Apex Court in the case of Deepak Bajaj and the judgment of the Delhi High Court in the case of Andrew Simon King (supra). 22. In so far as judgment in the case of Deepak Bajaj (supra) is concerned, in that case, the retractions were given by (i) Kuresh Rajkotwala to the DRI dated 04.12.2006, (ii) Bharat Chavan to the DRI dated 09.05.2008, (iii) Bipin Thakker to the DRI dated 19.01.2008 and Sharad Bhoite retraction to the DRI dated 24.04.2007, before the Additional Chief Metropolitan Magistrate, Esplanade Court, Mumbai and his affidavit as also Kuresh Rajkotwala s affidavit was filed before the Additional Chief Metropolitan Magistrate, Esplanade Court, Mumbai. On behalf of the Respondents it was submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Deepak Bajaj (supra) and of the Delhi High Court in the case of Andrew Simon King (supra) do not advance the case of the detenu. 24. In the case of Madanlal Anand (Supra) in Paragraph Nos.27 to 29, it was held that even if the retraction was not considered by the Detaining Authority, still that would not make the detention order bad, as such detention order could always be deemed to have been made separately on each of such grounds and the reference was made to Section 5A of the COFEPOSA Act. In the case of K.Satyanarayanan Subudhi, the order dated 20.05.1990 passed by the learned Additional Chief Judicial Magistrate (Special) Cuttack which contained retraction was not made available before the Detaining Authority and the Detaining Authority could not consider the same while forming his subjective satisfaction in making the order of detention in question. In that case the detenu as soon as he was produced before the Magistrate retracted from the confessional statement. Thus the officers of the Revenue who produced the detenu before the learned Magistrate were aware of the retraction. It is in that context the Apex Court held that the only ground on which the order of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06.01.2004 retracting his earlier statement. According to the appellant the retraction was communicated to the concerned authorities. The retraction was addressed to the Superintendent of Customs (AIR), Customs House, Chennai1 and was received on 07.01.2004 by the Assistant Commissioner of Customs (Adjudication AIR), Customs House, Chennai1. In that context, in Paragraph 10 the Apex Court did not accept the contention urged on behalf of the Respondents that the letter should have been addressed to the sponsoring authority viz. Additional Director General, Directorate of Revenue Intelligence, Chennai1 on whose recommendation, the Detaining Authority passed order of detention. This is because the date on which the retraction was made and communicated by the appellant, no detention order was passed, and therefore, there was no question of knowing that the communication has to be addressed to the sponsoring authority. The detenu had handed over the letter of his retraction to his Advocate, who got it delivered in the office of the Assistant Commissioner of Customs (Adjudication AIR), Customs House, Chennai1, though it was addressed to the Superintendent of Customs (AIR), Customs Hous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t if the detenu was serious in his request that his retraction should be considered by the Detaining Authority while considering his representation, one would expect him to send the copy of the letter of retraction alongwith his representation, instead of copy of certificate of posting. It was further observed that one cannot help a suspicion that the evidence was being brought into existence to support assertion that a letter of retraction was sent on 14.08.1980. In the counter, the Detaining Authority stated that no such letter was received by the Assistant Collector of Customs. The Assistant Collector of Customs had informed the Detaining Authority and the Collector of Customs that he had made thorough search for the letter said to have been written on 14.08.1980 and that no such letter has been received in his office. After observing this, the Apex Court was satisfied that the alleged letter of retraction was only a myth. In our opinion, this judgment applies on all fours to the present case. We have already considered the averments made in Grounds X and Y of the petition and one cannot help but observe that the petitioner has carefully not given better and further particul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of the contents of the application made by himself. 33. Mr.Mhaispurkar relied upon the judgment of the Apex Court in the case of Kamal Kishore Saini (supra). In paragraph 7 of that case, the Apex Court recorded that the High Court was justified in holding that the assertion made in the return that even if the relevant material such as the application of three undertrials as well as the statement in the bail application of the detenu referring to the statement of the undertrials that the detenu had been implicated falsely, had been placed before the Detaining Authority, he would not have changed the subjective satisfaction as the same has never been accepted as correct proposition of law. As noted earlier in the present case, the Detaining Authority did not refer to and rely upon the application for bail made by Naimuddin and the detenu and the copy of the bail order passed in their favour was supplied to the detenu. In our considered opinion, the failure to supply bail application did not cause prejudice to the detenu from making representation, particularly when, he was fully aware of the contents of the application made by himself, as observed by the Apex Court in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Authority as well as the Detaining Authority were justified in relying upon the confessional statements made by Naimuddin and the detenu under Section 108 of the Customs Act, 1962. We are, therefore, of the opinion that the judgment of the Apex Court in the case of Thahira Haris (Supra) does not advance the Petitioner s case. In the case of Ibrahim Ahmed Batti (Supra), the Apex Court observed that failure to supply the documents and materials casually or passingly referred to in the course of narration on facts in the grounds of Detention and which are not relied upon by the Detaining Authority in making the Detention order would not render the Detention illegally. In the case of Smt. Icchadevi Choraria v/s. Union of India, (1980) 4 SCC 531, the Apex Court, clearly, enunciated the principle to the effect that the copies of all documents, statements and material which influenced the mind of the Detaining Authority in arriving it at the subjective satisfaction about the necessity to detain the detenu must be communicated to the detenu within the time prescribed under Section 3 (3) of the COFEPOSA Act. In the instant case, as noted earlier, the Detaining Authority while passing the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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