TMI Blog2015 (9) TMI 1494X X X X Extracts X X X X X X X X Extracts X X X X ..... t have any bearing on the grounds of detention, however the order passed in the bail application has already been supplied and even the copy of the bail application has been supplied immediately after serving the detention order along with the grounds of detention, without causing any delay in filing the representation. We have reached the conclusion that the grounds of detention constitute a separate and independent ground under Article 22(5) of the Constitution of India read with Section 5A of COFEPOSA. The said grounds can be separated by applying the principle of segregation. The said grounds and the detention do not suffer from any infirmity.In view of the aforesaid reasons, we do not find any merit in the present writ petition - W.P.(Crl.) No. 1214/2015 - - - Dated:- 4-9-2015 - KAILASH GAMBHIR AND P.S. TEJI JJ. Mr. Pradeep Jain, Mr. Vikas Sareen, Mr. Ashish Batra and Mr. Navneet Panwar, Advocates for the Appellants. Mr. S.K. Dubey, Mr. Jasmeet Singh, CGSC, Ms. Aastha and Ms. Shreya Sinha, Advocates for the Respondents. ORDER P.S. TEJI, J. 1. The petitioner has preferred the present writ petition under Article 226 of the Constitution of India to see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the buying and selling of red sanders at Bengaluru in the alleged crime. Anil Kumar Singh, Thindu Sherpa, Babu @ Bobby and Manjunath were arrested on 28.10.2014 and the DRI filed a complaint under Section 132, 135(1)(a),(b) (c) of the Customs Act, 1962 against all of them on 24.12.2014 before the Ld. CMM, New Delhi. 4. After issuance of summons to the detenue, he applied for anticipatory bail on 10.11.2014 in which he was granted the interim protection. Vide order dated 14.11.2014, the Ld. ASJ dismissed the anticipatory bail application and granted custodial interrogation of the detenue. His statement was recorded on 11.11.2014 and 12.11.2014. During investigation, further allegations were made against the detenue with regard to his past conduct and filing of past cases also. Further summons were issued to the detenue and Pawan Gupta in the months of November and December, 2014 but they did not turn up, due to which complaints under Section 172 and 174 Indian Penal Code were also filed against them. On 27.02.2015, the detenue was apprehended by DRI from Kolkata and he was arrested on 28.02.2015. Ld. CMM, Kolkata vide order dated 28.02.2015, rejected the oral bail prayer of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which were relied and the documents pertaining to the same were served upon the detenue on 29.04.2015, but many vital documents supplied were either incomplete or illegible, which created impediment in the constitutional right of the detenue in making effective representation under Article 22(5) of the Constitution of India read with Section 3(3) of COFEPOSA. (vi) The detaining authority has failed to consider as to why the ordinary law of land was not sufficient to deal with the present situation for which the preventive detention law had to be invoked. (vii) The detaining authority has recorded that Shri Anil Garodia was actively involved in the activity of smuggling of red sanders wood. Reference has also been made to the name of an advocate Sh. Mahesh Anand. A reference has also been made to an application dated 26.11.2014, but no such letter has been relied upon by the detaining authority. The detaining authority has not applied its mind to the material placed before it. (viii) The representation dated 18.05.2015 sent by the detenue to the detaining authority has not been decided till filing of the present petition. 6. A point-wise joint reply has been filed on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detention of the detenue was warranted. (vii) In Kavita W/o Sundere Shankardas v. State of Maharashtra and others, 1982 SCR (1) 138, it has been held that clerical mistake cannot permit the detenue to take advantage of it. (viii) The representation of the detenue was considered and decision was communicated to him vide Memo dated 25.05.2015 and 02.06.2015. 7. The grounds taken by the detaining authority in support of passing of the detention order are that the detenue hatched the conspiracy to smuggle red sanders wood along with Pawan Gupta, Thindu Sherpa and other members of syndicate. For the purpose of illegal export of red sanders, the detenue got certain documents fabricated in the name of M/s. Aqua Plus Global. The detenue also used the identity of Sh. Deepak Sharma while smuggling red sanders from Kolkata. The detenue was physically present while the red sanders were being concealed at Bakhtawarpur godown. The detenue planned a strategy to smuggle the red sanders. The detenue also converted ill- gotten money out of smuggling activities in procuring both movable and immovable properties in the name of his son and wife. The detenue introduced Sh. Shankar, supplier of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signment, in our opinion, should not be treated as the starting point. In the present case, the detenue had remained in the background. Subsequent investigation as per the respondents, revealed his involvement. Search was conducted at the godown at Bakhtawarpur from 25.10.2014 to 27.10.2014 and the co-accused, namely, Anil Kumar Singh, Thindu Sherpa, Bobby and Manjunath were apprehended and their statements were recorded. The seized goods were handed over to CWC, Gurgaon, Haryana on 28.10.2014. Search was conducted at the house of the detenue and Sh. Pawan Gupta, but they were not found there. On 11.11.2014 12.11.2014, statement of the detenue was recorded. On 14.11.2014, anticipatory bail application of the detenue was dismissed. On 17.11.2014 and 26.11.2014, summons were issued against the detenue but he was not found present at his house. Summons were once again issued to the detenue on 10.12.2014. On 24.12.2014, complaint was filed against remaining four co-accused persons under the provisions of Customs Act, 1962. On 27.02.2015, the detenue was spotted at Kolkata and on 28.02.2015 he was arrested. He was produced before the Ld. CMM, Kolkata who allowed the transit remand wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. Even in a case of undue or long delay between the prejudicial activity and the passing of detention order, if the same is satisfactorily explained and a tenable and reasonable explanation is offered, the order of detention is not vitiated. We must bear in mind that distinction exists between the delay in making of an order of detention under a law relating to preventive detention like COFEPOSA and the delay in complying with procedural safeguards enshrined under Article 22(5) of the Constitution. In view of the factual scenario as aforesaid, we are of the opinion that the order of detention is not fit to be quashed on the ground of delay in passing the same. 13. After due consideration of the facts of the present case and in the light of the observations made in Licil Antony (supra), it is evident that the sponsoring authority has sufficiently explained the delay of about six months in passing the detention order and therefore, it is difficult to hold that the live link had broken and had come apart. 14. Next limb of the argument advanced by the counsel for the petitioner is that the detaining authority has wrongly drawn the conclusion that the detenue is likely to be re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detenue on bail; (c) prayer for bail was rejected by CMM, Kolkata, therefore, it cannot be said that no bail application was filed or prayer for bail was made; (d) in any case the detenue is entitled to be released on bail after 60 days under Section 167 Cr.P.C. if complaint is not filed; and (e) the propensity to continue to indulge in the prejudicial activities especially of smuggling of red sanders wood are summarised in the grounds of detention as mentioned above. The detenue was arrested on 28.02.2015 and the detention order was passed on 27.04.2015. There were only two days‟ left for the completion of the period of 60 days from the date of arrest and the complaint was not filed till that day. 16. We are of the view that subjective satisfaction is based upon the material facts. The detenue was arrested on 28.02.2015 and charge- sheet was filed on 27.04.2015. File was put up for consideration before the detaining authority on 24.04.2015 and 25th and 26th being Saturday and Sunday, the detention order was passed on 27.04.2015. 17. The argument advanced by the counsel for the parties shows that the process to proceed with the presentation of the charge sheet was initi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved that: It is well settled in our Constitutional framework that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defence. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. 20. From a reading of the above quoted paragraph, it is apparent that if the detenue is in custody and there is no imminent possibility of his release then the rule of preventive detention should not be exercised. However, when there is an imminent possibility that the said detenue who is in custody may be released then in such cases, the power of preventive detention can be exercised. The satisfaction accorded by the detaining authority was on the basis of likelihood of getting bail by the detenue in the case by the competent court and in any case he will also be entitled for bail after 60 days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d during the course of arguments. Even otherwise, the process of detention was initiated on 20.04.2015 and under all circumstances, the decision was required to be taken by 27.04.2015, particularly when two holidays i.e. 25.04.2015 being Saturday and 26.04.2015 being Sunday were falling in between. The argument that the detaining authority on 27.04.2015 should have further called for the report whether the charge-sheet was filed or not, is neither part of the process nor desirable, as the time was running out, particularly in case of non-filing of the complaint by 27.04.2015. 24. As far as the other aspect of the matter is concerned, the counsel for the petitioner argued that the detenue vide letter dated 13.05.2015 had made request thereby seeking certain documents which were relied upon to which the ADG, COFEPOSA vide letter dated 25.05.2015 replied that all the relevant documents will be supplied to the detenue and thereafter on 02.06.2015, certain documents were supplied to the detenue. Most importantly, RUD 32 i.e. bail application No.551/2015 was not provided to the petitioner within the period of 5 days or extended period of 15 days as provided by Section 3(3) of COFEPOSA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced as under: 5A. Grounds of detention severable. Where a person has been detained in pursuance of an order of detention under sub-section (1) of section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly (a) Such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are- (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, and it is not therefore possible to hold that the Government or officer making such order would have been satisfied as provided in subsection (1) of section 3 with reference to the remaining ground or grounds and made the order of detention; (b) The Government or office making the order of detention shall be deemed to have made the order of detention under the said sub-section (1) after being satisfied as provided in that sub-section with reference to the remaining ground or grounds. The language of Section 5A of COFEPOSA makes it abundantly clear that if the order of det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... export huge amount of Indian currency to a foreign country in a planned and premeditated manner, it was held that such single act warrants an inference that he will repeat his activity in future and, therefore, his detention is necessary to prevent him from indulging in such prejudicial activity. If one looks at the acts the COFEPOSA is designed to prevent, they are all either acts of smuggling or of foreign exchange manipulation. These acts are indulged in by persons, who act in concert with other persons and quite often such activity has international ramifications. These acts are preceded by a good amount of planning and Organisation. They are not like ordinary law and order crimes. If, however, in any given case a single act is found to be not sufficient to sustain the order of detention that may well be quashed but it cannot be stated as a principle that one single act cannot constitute the basis for detention. On the contrary, it does. In other words, it is not necessary that there should be multiplicity of grounds for making or sustaining an order of detention. 26. In the present case, the detention order has been passed on 27.04.2015 on the grounds mentioned in para 37. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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