TMI Blog2017 (6) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... for Mr. Satish Aggarwala, Adv. for DRI. MUKTA GUPTA, J. 1. In this writ petition under Article 226 of the Constitution of India, the challenge is to the order of detention dated 10th October, 2016 passed by the Joint Secretary to Government of India against husband of the petitioner i.e. Narender Kumar Jain directing his detention under Section 3(1) of the Conservation of Foreign Exchange Prevention of Smuggling Activities Act, 1974 (in short the COFEPOSA Act ). The detention order dated 10th October, 2016 was served on the petitioner s husband on the same day followed by the grounds of detention and relied upon documents served on 11th October, 2016. 2. Briefly the facts set out in the grounds of detention on the basis of which the detention order dated 10th October, 2016 has been passed are: 2.1 Upon receipt of a specific intelligence, the Delhi Zonal Unit (DZU) of the Directorate of Revenue Intelligence (DRI) seized 60 gold bars weighing 9955.2 grams at CELEBI warehouse, Domestic Terminal, Air Cargo Complex, New Delhi on 1st/2nd September, 2016 from one Sartaj vide Panchnama dated 1st/2nd September, 2016. The market value of the seized gold was appraised at &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccasions and that in the year 2014 he started procuring foreign origin gold, which was smuggled from Burma by various carriers, who used to bring 1-2 kgs of gold to his shop at Guwahati. This gold was 24 carat pure gold and most of the time he paid in cash though on some occasions through cheque. Though there was no marking on gold but he was aware that the gold was of foreign origin smuggled into India. His employee Vijay Tiwari packed the smuggled gold bars in plastic/ metal boxes and further wrapped in clothes and sent the parcels to Delhi by air declaring them as Bullion, the consignor s name being Rara Brothers Pvt. Ltd. Guwahati and consignee s name being Rara Brothers Pvt. Ltd., Delhi. He would send the Airway Bill number through Sartaj @ Panuu through SMS and gave him the document to prepare GMR entry card for going to the Cargo office for receiving the parcels. The authority letter was signed by him and in his absence by Anoop on his behalf. Sartaj used to hand-over the gold to Raju Arora at his office where after Raju Arora used to sell the smuggled gold with the help of staff to customers in Delhi and transfer the sale proceeds to Guwahati or through person. Raju Arora w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a proper and effective representation in the absence of the documents. It is contended that in para-27 (a) of the grounds of detention, the Detaining Authority has relied upon the voluntary statements of the carriers of the smuggled gold seized by the DRI, Guwahati however, no such statements were either placed before the Detaining Authority nor supplied to Narender Kumar Jain pari passu the grounds of detention. He further states that though the grounds of detention noted that the bail application of Narender Kumar Jain had been rejected by the learned CMM vide order dated 7th October, 2016, however, the copy of the order dated 7th October, 2016 was not placed before the Detaining Authority. The order dated 7th October, 2016 itself shows that there was no possibility of bail being granted to Narender Kumar Jain, thus obviating the need for a detention order. Non-placement of the material document i.e. the order dated 7th October, 2016 has materially affected the subjective satisfaction of the Detaining Authority hence the detention order is vitiated. 4. Learned counsel further contends that the DRI officials entered the jail premises at 10.40 AM and after serving the detentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rebutting the arguments of learned counsel for the petitioner contends that in para-27 (a) of the grounds of detention, the Detaining Authority noted the voluntary statements of the carriers of the smuggled gold seized by DRI, Guwahati, as enumerated in para-22 of the grounds of detention. Para-22 of the ground of detention clearly shows the role of the petitioner s husband in four earlier cases on the basis of orders in original. The four orders in original are mentioned at Sr. No.44-47 of the relied upon documents which have been duly supplied to the petitioner s husband. The petitioner s husband has admitted receiving the detention order and the grounds of detention along with the legible copies of all the documents. Hence the relied upon documents having been placed before the Detaining Authority and also supplied to the petitioner s husband, the detention order is not vitiated on this count. 8. Learned Standing Counsel for Union of India further submits that in para -33 of the grounds of detention, the Detaining Authority has mentioned that the bail application dated 14th September, 2016 filed by the petitioner s husband before the learned CMM has been rejected vide order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, were neither placed before the Detaining Authority nor supplied to the petitioner vitiating the subjective satisfaction, it would be relevant to note paras-22, 27 (a) of the grounds of detention as under: 22. Investigation has also revealed that you and M/s Rara Brothers Pvt. Ltd. have been involved in smuggling of gold on numerous occasions in the past as well, particularly in the eastern part of India and cases have been booked by the DRI, Guwahati Regional Unit in these instances which are detailed below: Sl.No. Case No. Qty (Kg.) Value (Rs. in crores) Order-In-Original No. Role played by Sh. Narendra Kumar Jain 1. 04/CL/IMP/GOLD/DRI/GAU/201415 dated 02.11.2014 6 1.59 CCP/NER/9/2016 dated Shillong, 30.03.2016. Penalty of ₹ 5 Lakhs imposed on Shri Narendra Kumar Jain. An Appeal against this OIO has been filed in CESTAT, Kolkata His name came up when the arrested accused Sh. Dipal Kundu divulged a phone number 8011582276 at that of Ramj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Penalty of ₹ 20 Lakhs imposed on Shri Narendra Kumar Jain. An Appeal against this OIO has been filed in CESTAT, Kolkata The recovery of seizure of gold was made from Shri Biman Bhowmick and 3 others on 11.02.2015. They produced documents showing the consigner of the gold as M/s Rara Brothers. Searches were made at the premises of Rara Brothers. In the statement dated 11.02.2015, Shri Narendra Jain denied to have known the carriers. He also denied to have issued any invoices in this regard. The books of his accounts resumed also did not support such stock of primary gold prior to the detection of gold from which such quantity could be lawfully issued or dispatched. He categorically stated that apart from the purchase and sale invoices that were resumed by DRI Guwahati on 11.02.2015 he had no other record of sale and purchase of gold. Narendra Jain and his employees did not turn up for investigation. Later he retracted his statement and furnished certain documents which were fabricated subsequently to stake his claim on the seized gold. Shri Narendra Jain was arrested in this case on 17.04.2015 and released on bail on medical grounds on 23.05.2015. It has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that irrespective of the fact whether they were placed before the authority or not the copies thereof ought to have been supplied to the petitioner pari passu the grounds of detention and that failure to supply the same has deprived the petitioner of an opportunity of making an effective representation and therefore the detention as such is illegal and violative of Article 22(5) of the Constitution of India. There is no dispute that the detenu moved for bail under Section 437 CrPC on October 29, 1990 before the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam and by an order dated November 2, 1990 the bail application was rejected. The first grievance of the petitioner is that these two documents were not placed before the detaining authority and they were suppressed. In support of this plea reliance is placed on the grounds wherein the detaining authority has stated that he was aware that the petitioner was in judicial custody and possibility of his release on bail in the near future cannot be ruled out. It is submitted that this statement itself shows that the detaining authority was not aware that a bail application in fact was made and the same has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n custody but there is every likelihood of his being released on bail. This itself shows that these documents were not before the authority. Therefore it cannot be said that the documents referred to and relied upon in the grounds were not supplied to the detenu and the ratio in Ahamedkutty case [(1990) 2 SCC 1 : 1990 SCC (Cri) 258 ] on this aspect does not apply to the facts in the instant case. It is not necessary to refer to in detail various decisions of this Court wherein it has been clearly laid down that the documents referred to or relied upon in the grounds of detention only are to be supplied. This has been settled by a long line of decisions: Ramachandra A. Kamat v. Union of India [(1980) 2 SCC 270 : 1980 SCC (Cri) 414] , Frances Coralie Mullin v. W.C. Khambra [(1980) 2 SCC 275 : 1980 SCC (Cri) 419] , Icchu Devi Choraria v. Union of India [(1980) 4 SCC 531 : 1981 SCC (Cri) 25] , Pritam Nath Hoon v. Union of India [(1980) 4 SCC 525 : 1981 SCC (Cri) 19] , Tushar Thakker v. Union of India [(1980) 4 SCC 499 : 1981 SCC (Cri) 13] , Lallubhai Jogibhai Patel v. Union of India [(1981) 2 SCC 427 : 1981 SCC (Cri) 463] , Kirit Kumar Chaman Lal Kundalia v. Union of India [(1981) 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that official duty is not performed on Saturdays and Sundays. Hence, this contention of learned counsel for the petitioner that the grounds of detention were ante dated is also liable to be rejected. 15. Coming to the last contention raised by learned counsel for the petitioner that there is no satisfaction of the Detaining Authority that there was an imminent possibility of the bail being granted, it would be relevant to note para-33 of the grounds of detention as under: 33. I am aware that you are still in judicial custody and that your bail application dated 14.09.2016 filed before the Hon ble CMM has been rejected vide order dated 07.10.2016. However, taking into account the magnitude and the protracted pre-judicial activities carried out by you in the past two years and the fact that you have already been arrested earlier on17.04.2015 by DRI, Guwahati in connection with a case mentioned in Para 22 above and released on bail on 23.05.2015 on medical grounds has not deterred you from continuing your pre-judicial activities, I am of the view that there is a possibility of you applying for bail again and continue your activities. (Emphasis supplied) 16. As noted a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... likelihood of the detenu to be released on bail together with other relevant factors, namely, his antecedents as well as his likelihood of involvement and in continuing to commit similar offences are to be borne in mind. But therein two of the co-detenus had already been released on bail and thus, the detaining authority could arrive at his subjective satisfaction. However, in this case, the co-accused of the appellant had not been released on bail and in that view of the matter the detaining authority was required to apply his mind on the material on record to arrive at its subjective satisfaction. 19. Further in Rekha vs. State of Tamil Nadu (supra) relied upon by learned Standing Counsel for Union of India, the Supreme Court held: 10. In our opinion, if details are given by the respondent authority about the alleged bail orders in similar cases mentioning the date of the orders, the bail application number, whether the bail order was passed in respect of the co-accused in the same case, and whether the case of the co-accused was on the same footing as the case of the petitioner, then, of course, it could be argued that there is likelihood of the accused being relea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neither says that such release was likely or that it was imminent. Evidently, the statement falls short of the requirement enunciated by this Court in Kamarunnissa [(1991) 1 SCC 128: 1991 SCC (Cri) 88]. Even in the return filed in this petition, the authority has not stated (in response to Ground B of the writ petition) that there was material before him upon which he was satisfied that the petitioner was likely to be released or that such release was imminent. In Ground B of the writ petition, the petitioner had alleged: [T]hat the respondent knew perfectly well that a complaint has already been filed in Court against the petitioner. He also knew that his two applications for bail were rejected by the Court. Between June and August, the petitioner had made no attempt whatsoever to secure any bail either from the trial court or from any superior court. Without any application of mind to this aspect of the matter, the respondent acted perversely in coming to the conclusion that the petitioner was ever likely to indulge in any offence of smuggling, to prevent which the respondent found it necessary to pass the order Annexure A hereto. 22. Similar view was express ..... X X X X Extracts X X X X X X X X Extracts X X X X
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