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2015 (9) TMI 1494 - DELHI HIGH COURT

2015 (9) TMI 1494 - DELHI HIGH COURT - TMI - Detention order challenged - Held that:- The language of Section 5A of COFEPOSA makes it abundantly clear that if the order of detention is made on two or more grounds, the said order of detention shall be deemed to have been separately on each ground and accordingly the detention order shall not be deemed to be invalid merely because one or some of the grounds is or are invalid. In the present case, the bail applications relating to co-accused Manjun .....

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the grounds mentioned in para 37.1 and does not have any mention about the bail application of co-accused Manjunath. The bail application filed by co-accused Manjunath does not 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. - .....

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I 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 seek a writ in the nature of Certiorari to quash the detention order bearing F.No.673/13/2015- Cus.VIII dated 27.04.2015 passed under Section 3(1)(i) and .....

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hi 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 Gu .....

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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 ₹ 6 crore was found apart from bath tubs. Residence of Anil Kumar Singh alleged accomplice of detenue was searched on 25.10.2014 and certain documents, a laptop and a pen drive were seized. He was taken to the godown at Bakhtawarpur, New Delhi where persons, namely, Thindu Sherpa, Manju Nath and Bobby were found. .....

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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 .....

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mand. Detenue was produced before the Ld. Duty MM, Delhi on 01.03.2015 and was granted four days‟ police remand. His statement under Section 108 of the Customs Act, 1962 was recorded on 03.03.2015. Thereafter, the impugned detention order was passed on 27.04.2015 and on the same day, complaint against the detenue under Section 132, 135(1) (a), (b) & (c) of the Customs Act, 1962 was filed before the Court of Ld. Duty MM, Patiala House Court, New Delhi, who passed an order to place the s .....

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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 com .....

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r for filing the complaint under Section 132, 135 of the Customs Act, 1962 was not placed before the detaining authority. Some other documents were also withheld by the DRI from the detaining authority. The non-placement of said documents before the detaining authority renders the detention order liable for revocation. (v) The grounds of detention 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 i .....

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n 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- .....

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tenue. Some documents were called on 26.02.2015. On 01.03.2015, it was found that the papers relating to seizure made by DRI Muzaffarpur in which the name of detenue surfaced were incomplete and the 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 a .....

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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 authority were duly supplied to the detenue. Detenue sought copies of certain documents vide representation da .....

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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 .....

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le and immovable properties in the name of his son and wife. The detenue introduced Sh. Shankar, supplier of red sanders to Pawan Gupta and lured others also to be the part of the act. The detenue met Sh. Satish Gami, a resident of Bihar in the year 2012 who used to give red sanders to one Sh. Satpal Sharma for illegal export from Kolkata. The detenue falsely got prepared documents in the name of other company and also mis-declared the description of goods. Call detail records of phone used by t .....

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d 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 .....

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e arrest of the detenue, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority. On similar issue, he relied upon the judgment in the case of Rajender Arora v. Union of India and Ors., (2006) 2 SCC (Crl.) 418 and Raj Kumar v. Union of India, AIR 2006 SC 938. 10. On the first contention, undisputedly the container containing red sanders wood was detained on 20.10.2014. But in the facts of the present case, the date of seizure of co .....

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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 u .....

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discussions had taken place between the officers of the sponsoring authority and the detaining authority. The dates 25.04.2015 and 26.04.2015 were public holidays being Saturday and Sunday and on 27.04.2015, the detention order was passed against the detenue. 11. In our opinion, the respondents in the supplementary affidavit explained the delay and attributed the same to the extensive search of various premises in different places and examination of persons apart from departmental delays. It is .....

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hoate 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 .....

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dicial activity and the purpose of detention is snapped depends on the facts and circumstances of each case. 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 COF .....

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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 released on bail especially when the detenue has neither filed any bail application nor any bail application was pending and further in the case of the co-accused persons, all the bail applications .....

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r 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 .....

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y 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 prevent him from indulging in such activities and therefore, detention order was necessary. In case either of these facts does not exist the detention order would stand vitiated." 15. The counsel for the respondents, on the other hand, argued that the grounds of detention meet the test laid down by .....

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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 fa .....

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for the petitioner has not pointed out any factual status which could lead to certainty for filing the charge-sheet within the prescribed time. Normally, the charge sheet is to be filed within 60 days from the date of arrest. If one meticulously counts the days, then the charge sheet was required to be filed by 29.04.2015, but even in the ordinary manner, the period was going to expire on 27.04.2015 i.e. date when the charge sheet was filed. Apparently, the charge sheet was presented before the .....

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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 .....

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nd by mis-declaring the export cargo to be bath tubs, the detaining authority was justified in holding that the detenue had high potential to indulge in the aforesaid prejudicial activities again. 19. In Binod Singh v. District Magistrate, Dhanbad, Bihar and Others, (1986) 4 SCC 416, it was observed 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 contempl .....

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ere 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 un .....

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rder. 21. The next point of argument which requires consideration is two-fold. It has been argued by the counsel for the petitioner that firstly, the sponsoring authority i.e. DRI withheld the filing of the 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 sup .....

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re 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 documents or supply of incomplete and illegible documents delayed the right of the detenue to file the r .....

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nder 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 a .....

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he period of 5 days or extended period of 15 days as provided by Section 3(3) of COFEPOSA which is in violation of Article 22(5) of the Constitution of India which prevented the detenue in preparing his effective representation. In support of this contention, petitioner relied upon judgment in the case of Smt. Icchu Devi Choraria v. Union of India and Ors.,1981 SCR (1) 640 in which it was observed as under: "We must therefore now proceed to examine whether there was any breach of the requir .....

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ds 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 exceptio .....

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gwith the grounds of detention or in any event 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. If this requirement of clause (5) of Article 22 read with section 3, sub-section (3) is not satisfied the continued detention of the detenu would be illegal and void." 25. As per the provisions of Section 5A of the COFEPOSA, the grounds of detention are separable. Section 5A of COFEPOSA is .....

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nnected 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 s .....

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cused Manjunath, although was not supplied to the detenue along with the relied upon documents, RUD 32 i.e. bail application No.551/2015 within the prescribed time, but it was supplied on 02.06.2015 and this would not vitiate the detention order as it had been filed before the filing of the representation by the detenue. More the reason, the bail application of co-accused Manjunath is not the ground for detention of the detenue. The Hon‟ble Supreme Court in the case of Attorney General for .....

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vant 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 su .....

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opper wires in huge quantity and removal of railway fish- plates were held sufficient. Similarly, where the person tried to 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 eit .....

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