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TMI Blog2015 (9) TMI 1494X X X X Extracts X X X X X X X X Extracts X X X X ..... New Delhi with a view to prevent him from smuggling of goods, transportation and concealment of the smuggled goods in future. 3. The facts giving rise to the present writ petition are that an information was received by the Directorate of Revenue Intelligence (DRI) that one syndicate was involved in illegal storage and illegal export of „Red Sanders woods‟ (Pterocarpus Santalinus) which is a prohibited item for export under the Foreign Trade Policy read with CITES. It was alleged that one Pawan Gupta and Deepak Verma were the kingpin of the syndicate who were procuring sanders from South India and illegally exporting the same in containers through ICD, Tughlakabad by concealing the same with other items declared in the shipping bill. The illicit export of red sanders to Sharjah, UAE was being attempted in container No.TTNU-3869887/20 under the guise of "Acrylic Bath Tubs and Bath Tub Accessories" under shipping bill No.0018327 dated 16.10.2014 which was filed in the name of M/s Acqua Plus Global, Plot No.3, NSEZ, Noida. Said container was examined vide panchnama dated 21.10.2014 and 24.10.2014. On its examination, 12820 kgs of red sanders wood valued at Rs. 6 crore wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2015, he was served with the grounds of detention along with the relied upon documents. 5. The detention order has been challenged by the detenue on various grounds which are as under : (i) There has been a long delay of about six months from the date of alleged activity till passing of the detention order dated 27.04.2014. The present case was detected in the month of October, 2014 and all the goods were recovered and seized during the said month. In a preventive detention matter where the detenue has been taken into preventive detention, delay is not acceptable. (ii) The subjective satisfaction drawn by the detaining authority assuming that there is likelihood that detenue would be enlarged on bail and also that detenue will be entitled for bail after 60 days under Section 167 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") in case the complaint is not filed, is completely baseless and without any cogent material. No bail application of the detenue was filed nor was pending before the Court. (iii) The detention order has been passed on 27.04.2015 and on the same date, the complaint under Section 132/135 of the Customs Act, 1962 was filed befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same were called for. On 03.03.2015, it was informed that the detenue was arrested in Kolkata and thereafter necessary formalities were followed. On 09.04.2015, call detail records were examined. On 16.04.2015, the officer from DRI was called and on 17.04.2015 discussions were made by the detaining authority with the officer of DRI. From 17.04.2015 to 24.04.2015, ADG (C) was on tour for Advisory Boards meeting. On 23.04.2015, the detaining authority asked for some more details and on 27.04.2015, detention order was passed. Thus, there was no unnecessary delay in passing the detention order. (ii) The detaining authority was reasonably satisfied on cogent material that there was likelihood of release of detenue requiring prevention from indulging in prejudicial activities and this position is well settled in the cases of Rameshwar Shaw v. District Magistrate Verdhman, AIR 1964 SC 334 and in Abdul Sathar Ibrahim Manik v. Union of India, (1992) 1 SCC 1. (iii) Since the date of filing of the complaint is same as that of detention order, therefore, its placement before the detaining authority did not arise. (iv) All the relevant documents which were relied upon by the detaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ast conduct of the detenue, there is a possibility that he may continue with the said prejudicial activity if he is granted bail. 8. In the above circumstances, the present petition has been preferred. We have considered the submissions of the parties, in depth. During the course of arguments, the counsel for the petitioner restricted his arguments on grounds (i) to (v) only. 9. However, grounds (i), (ii) and grounds (iii) to (v) (collectively) are a matter of concern and requires detailed adjudication. Learned counsel for the petitioner has argued that the present case was detected by the sponsoring authority in the month of October, 2014, goods were seized in October, 2014, arrests of co-accused persons were made in the same month and the statements were recorded in November, 2014, but the detention order has been passed after a delay of around six months i.e. on 27.04.2015. In support of this contention, reliance has been placed on judgment in the case of T.A. Abdul Rehman v. State of Kerala & Ors., 1989 SCR (3) 945 in which it was observed by the Hon'ble Supreme Court that when there is unsatisfactory and unexplained delay between the date of the order of detention and the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive search of various premises in different places and examination of persons apart from departmental delays. It is only after completing the necessary investigation that the sponsoring authority sponsored the case for detention of the detenue. To show and establish the involvement of the detenue in the alleged crime, material and evidence has to be collected before a detention order is passed. Preventive detention order cannot be passed in haste and hurry and without cogent and reliable material, for otherwise, the detention order would be questioned on the ground that the investigation was incomplete or inchoate to implicate and condemn the detenue. Further, the detaining authority must have sufficient and adequate time to examine the evidence and statements, to have response to their queries and to apply their mind. Therefore, the judgments relied upon by the petitioner in case of T.A. Abdul Rehman (supra), Rajender Arora (supra) and Raj Kumar (supra) are of no assistance to the petitioner as the same are distinguishable from the facts and circumstances of the present case. 12. The Hon‟ble Supreme Court in the case of Licil Antony v. State of Kerala & Anr., (2014) 11 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rlier judgments in Rajesh GuIati v. Govt. of NCT of Delhi, Ibrahim Nazeer v. State of T.N. and Senthamilselvi v. State of T.N. and held: "10. that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. The conclusion that the detenu may be released on bail cannot be ipse dixit of the detaining authority." Its subjective satisfaction based on materials, normally, should not to be interfered with." 9. In view of the above, it can be held that there is no prohibition in law to pass the detention order in respect of a person who is already in custody in respect of criminal case. However, if the detention order is challenged the detaining authority has to satisfy the Court the following facts: (1) The authority was fully aware of the fact that the detenu was actually in custody. (2) There was reliable material before the said authority on the basis of which he could have reasons to believe that there was real possibility of his release on bail and further on being released he would probably indulge in activities which are prejudicial to public order. (3) In view of the above, the authority felt it necessary to preven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tent authority for 28.04.2015 at 02.00 PM. Admittedly, there is an order passed by the Ld. CMM, Kolkata dated 27.02.2015 which clearly shows that the prayer for bail of the detenue was rejected by the Court. 18. As discussed above, it shows that for reaching the subjective satisfaction, there should be a likelihood that the detenue would be released on bail on the ground of technicalities. In the present case, the sanction to prosecute the detenue was obtained by the sponsoring agency i.e. DRI on 20.04.2015 and hardly a period of about one week was remaining for the filing of the complaint. Apparently, the opinion of the detaining authority that the detenue is likely to be released on bail under Section 167 Cr.P.C. in case the charge sheet is not filed within the period of 60 days, is well founded on the record. Even if the argument advanced by the counsel for the petitioner is presumed to be correct that the DRI was having time uptil 29.04.2015 to file the charge-sheet, then also no fault can be found in recording the satisfaction that the detenue was likely to be released on bail. Also having regard to the past conduct of the detenue, there is a possibility that he might continu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he complaint and the sanction order for filing the complaint from the detaining authority in order to get the detention order issued. Secondly, the relevant documents on the basis of which the detention order was passed were served upon the detenue only on 29.04.2015 and many vital documents supplied to the detenue were incomplete and illegible. It is nowhere the case of the petitioner that the sanction for prosecution was with the sponsoring authority and sponsoring authority, with malafide intention, with the purpose to conceal the documents from the detaining authority, withheld the documents. 22. Dealing with the first aspect of the contention, it is quite apparent that the authority which passed the detention order and the authority which filed the complaint against the detenue were two different authorities and also it is to be noted that the complaint was not filed till the time of passing of the detention order, particularly when the prescribed period for filing the complaint was going to expire shortly. Admittedly, the detenue has filed the representation on 13.05.2015 without any delay. From no stretch of imagination, it can be said that the alleged non-supply of docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order." Section 3, sub-section of the COFEPOSA Act provides as under: "For the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order, of the grounds on which the order has been made shall be made, as soon as may be, after the detention, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days from the date of detention." There can therefore be no doubt that on a proper construction of clause (5) of Article 22 read with section 3, sub-section (3) of the COFEPOSA Act, it is necessary for the valid continuance of detention that subject to clause (6) of Article 22 copies of the documents, statements and other materials relied upon in the grounds of detention should be furnished to the detenu alongwith the grounds of detentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detenue. The Hon‟ble Supreme Court in the case of Attorney General for India & Ors. v. Amratlal Prajivandal & Ors., (1994) 5 SCC 54 observed that : "47. The section is in two parts. The first part says that where an order of detention is made on two or more grounds, "such order of detention shall be deemed to have been made separately on each of such grounds", while the second part says that such order shall not be deemed to be invalid or inoperative merely for the reason that one or some of the grounds are either vague, non-existent, irrelevant or unconnected. That the second part is merely a continuation of and consequential to the first part is evident from the connecting words "and accordingly". The second part goes further and says that the order of detention must be deemed to have been made on being satisfied with the remaining good ground or grounds, as the case may be. Both the parts are joined by the word "and". 48. In short, the principle appears to be this: Though ordinarily 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 organized act or a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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