TMI Blog2014 (3) TMI 1097X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel appearing for the Sponsoring Authority is also not relevant in the present factual scenario. This Court cannot permit the authorities to take shelter of such technical pleas in the matter of a Writ of Habeas Corpus in a preventive detention matter. Territorial jurisdiction - Held that: - it is seen that the petitioner has a residence in the State of Haryana. The Detaining Authority had deputed its representative for the purpose of service of detention order and grounds upon the petitioner in State of Haryana and thereupon the detention order and grounds were served upon him in the State of Haryana, albeit after the orders of this Court. The petitioner was detainied in preventive detention custody at Central Jail, Ambala in Haryana. He has also received the rejection of his pre detention representation in Haryana. Therefore, merely because the respondents have doubts on the bona-fides of the petitioner in taking a residential premises within the jurisdiction of this court although it has proximity to his factory at Baddi, it cannot be held that no part of cause of action has arisen within the jurisdiction of this Court to consider the challenge to the detention order eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive of his fundamental rights guaranteed under Part III of the Constitution of India. The main ground of challenge is non placement by Sponsoring Authority of some very vital documents before the Detaining Authority for her consideration which resulted in non application of mind on the vital documents and vitiation of subjective satisfaction and consequently rendered the detention order illegal, null and void. Neither the fact of non placement has been specifically denied by the respondents, nor any records produced to show to the contrary. 2. The brief facts of the case are as follows:- a) The investigation was commenced on 17.4.2012 by Director of Revenue intelligence (DRI) with seizure of huge quantity of memory card concealed in the consignments imported by the petitioner in the name of four different entities, namely, i) M/s Cenzer Industries; ii) M/s Rishab Industries; iii) M/s J J Watch Electro Mfg. Private Ltd. and iv) M/s Sunray Exports Trading. The petitioner was arrested and released on bail on 18.4.2012. During the course of investigation, the seized goods were provisionally released by securing revenue. b) The investigation revealed that the petitioner was a h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... committed by the petitioner. g) The instant petition alleges non placement, non consideration and non advertance to these two documents namely Written Submissions and the Record of Proceedings of hearing dated 15.1.2013, although the impugned detention order was issued subsequently on 8.4.2013. h) After issuance of the detention order on 8.4.2013, vide order dated 17.5.2013, the case was finally settled by the Settlement Commission and conditional immunities from fine, penalty and prosecution were granted to the petitioner. It is not in dispute that the said order of final settlement has been accepted by the department and is not under challenge. i) The petitioner had earlier unsuccessfully challenged the same detention order before the Bombay High Court and the Hon'ble Supreme Court without surrendering to the same on various grounds. The concluding paragraphs of the judgment of Bombay High Court merits reproduction:- 19. Therefore we see no merit in the challenge to the order of preventive detention at pre execution stage. 20. Accordingly we pass the following order:- i) Petition is rejected. Rule is discharged. ii) However, we may observe that the findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the detenu to claim the advantage of facilities like having his own food. Whatever smacks of punishment must be scrupulously avoided in matters of preventive detention. 5. In view of the above dictum of the Hon'ble Constitution Bench read with Section 4 of the COFEPOSA Act, 1974 which provides that the detention order can be executed anywhere in India, coupled with the fact that no prejudice was being caused to the preventive purpose of detention order, vide the said order dated 17.2.2014 I also directed the petitioner to first surrender on 3.3.2014 before the police authorities in Panchkula, where he himself claimed to be residing. In the interest of justice, I directed the listing of the petition on 5.3.2014 for consideration on post execution basis, subject to the petitioner so surrendering to the detention order. 6. Accordingly, on being so compelled by this court, the petitioner surrendered to the impugned detention order and the representatives of the respondent detaining authority promptly served upon the petitioner the impugned detention order along with the grounds of detention and the relied upon documents in the State of Haryana. The petitioner was thus larged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the offence committed. Applying the same principle, even if I outrightly rejected the challenge at pre execution stage and directed the petitioner to surrender, the petition was required to be considered after surrender of the petitioner as a post detention petition. No right was conferred upon the Detaining Authority to absolve herself from the obligation to satisfy this Court regarding the validity of detention order issued by her. 9. The learned Senior counsel appearing for the petitioner demonstrated prima facie case on various grounds mainly the non placement, non consideration and non advertance to the two vital documents namely detailed written submissions dated 15.1.2013 filed by the petitioner during the course of personal hearing before the Settlement Commission and the record of personal hearing held on 15.1.2013 reflecting the contentions of both sides that although there were allegations of the petitioner being a repeated offender, the Sponsoring Authority was not pressing for the prosecution of the petitioner. He also pointed out that the petitioner had paid the entire dues relating to the case which led to the issuance of detention order and the case was f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a (order dated 29.8.2013 in WP (Crl.) 1221 of 2013 by the Division Bench of Delhi High Court. And the matter was posted for final disposal on 12.3.2014 with a direction to the petitioner to remain present without fail in Court on the said day at 10.00 A.M. 12. On 12.3.2014 the petitioner personally appeared as directed by this Court. The learned Senior counsel appearing for the petitioner fairly agreed to implead the DRI as respondent no. 4 and the application for impleadment was allowed. The Detaining Authority as well the Sponsoring Authority filed their counter affidavits opposing the grant of any relief to the petitioner. 13. Although prima-facie opinion expressed by this Court while granting bail was also available to the respondents, neither the fact of non placement was specifically denied by the respondents in their affidavits nor was any record produced to show to the contrary. Neither the learned Senior counsel appearing for the Detaining Authority nor the learned counsel appearing for the Sponsoring Authority on being specifically asked could make a positive statement that the two vital documents referred to above were actually placed by the Sponsoring Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. I have heard all the parties at length. I have also carefully perused the records placed before me. I find that in view of the above stand taken by the respondents without even disputing the fact of non placement and non consideration of the said documents, the following issues are to be determined:- (i) Whether there exists any bar in considering the grounds of challenge urged by the petitioner after execution of the detention order, in the light of dismissal of his earlier petition by Bombay High Court at pre detention stage. (ii) Whether no part of cause of action has arisen in the jurisdiction of this court to consider the challenge to the impugned detention order. (iii) Whether the respondents are right in claiming that the two documents namely written submissions dated 15.1.2013 and the record of personal hearing made on 15.1.2013 before Settlement Commission were such irrelevant documents which had no bearing on the issue of preventive detention and non placement and non consideration there of was inconsequential. (iv) Whether respondents are correct in claiming that ascertaining the factual position regarding recourse to ordinary punitive law of land is wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he detenu cannot be entertained. It observed thus:- 13. ... ... But, insofar as the question of technical plea which has been raised by the learned counsel on the question of prayer in the Habeas Corpus petition is concerned, we are constrained to observe that in dealing with writs of Habeas Corpus, such technical objections cannot be entertained by this court. 18. On the second issue concerning territorial jurisdiction, it is seen that the petitioner has a residence in the State of Haryana. The Detaining Authority had deputed its representative for the purpose of service of detention order and grounds upon the petitioner in State of Haryana and thereupon the detention order and grounds were served upon him in the State of Haryana, albeit after the orders of this Court. The petitioner was detainied in preventive detention custody at Central Jail, Ambala in Haryana. He has also received the rejection of his pre detention representation in Haryana. Therefore, merely because the respondents have doubts on the bona-fides of the petitioner in taking a residential premises within the jurisdiction of this court although it has proximity to his factory at Baddi, it cannot be held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... So far as the present case is concerned, the order of detention was served on the detenue in Kerala. He wa arrested in Kerala and he was detained in the prison at Trivandrum in the State of Kerala. According to us, these are essential facts which form part of the cause of action. Hence, we hold that this court has got jurisdiction and hence, the Original Petition is maintainable in this court . In Kamala Sarkar versus State of Bihar and others 2002 CriLJ 1414, the Division Bench of the Calcutta High Court observed as follows:- In P. Subramani v. State of Karnataka reported in 1990 CriLJ 1106 a Division Bench of the Madras High Court distinguished the Swaika Properties case (supra) in a case under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act stating-'the ratio cannot be imported to a case of detention which is quite different. In this case, not only the order was served upon the detenu in Salem in Tamil Nadu. His liberty was deprived in the same place and the grounds of detention was also served on him at the same place. Therefore, the essential act of detention physically happened in Tamil Nadu as far as the petition is concerned and, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner within the jurisdiction of this court.... This Court in S.P. Goyal versus Union of India 2003 (1) R.C.R. (Criminal) 83 after considering the decision in D.N. Anand's case held as follows:- .......The petitioner is also apprehending his arrest at the place of his residence i.e. Ludhiana, within the territorial jurisdiction of this court. Under these circumstances, in my opinion, it can certainly be said that a part of the cause of action has arisen within the territorial jurisdiction of this court. That being so, this court would certainly have the jurisdiction to entertain and decide the present writ petition. In view of the above consistent views taken by various High Courts including this Court, I find no merit in the objection of the respondents. The learned Senior counsel appearing for the Detaining Authority relied upon an unreported decision dated 11.10.2012 of the Allahabad High Court in CRM-WP-No. 14978 of 2012 dated 11.10.2012 wherein the said High Court refused to entertain a petition despite there being residence of the petitioner in its jurisdiction. It is seen from the said judgment that firstly the service of detention order was not effected in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repeated offender. In Rekha, (2011) 5 SCC 244 and Munagala Yadamma, (2012) 2 SCC 386, the Hon'ble Supreme Court has held that preventive detention is not a substitute for prosecution, and further observed to the effect that where prosecution is possible, there is no justification to resort to preventive detention. In the present case, the fact that the Revenue did not oppose the applicant's prayer for immunity from prosecution, goes to indicate that the Revenue has no intention to seek criminal prosecution of the applicant. That being so, applying the principles laid down in Rekha (supra) and Munagala Yadamma (supra) any resort or recourse to preventive detention would be entirely unjustified. vi) it may also be relevant to point out that in Subhash Popoatlal Dave, (2012) 7 SCC 533, resort to preventive detention instead of taking resort to ordinary law of the land was considered as a good ground to challenge detention order even at the pre-execution stage. 9. For the above reasons, it is respectfully prayed that this Hon'ble Commission may please settle the entire case and may please grant immunities from fine and penalty and conditional immunities from prosecution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement Commission was also very relevant for the purpose of considering the question of issuance of detention order. 23. I find sufficient merit in the ground of non placement, non consideration and non advertance to these two vital documents. Had the record of personal hearing been placed before the Detaining Authority, she could have asked for the written submissions which were referred therein. However, neither the record of proceedings nor the written submissions were placed before the Detaining Authority. There is merit in the submission of the learned Senior Counsel for the petitioner that since these vital documents do not find any reference in the entire grounds of detention or in the list of documents, it is apparent that the Detaining Authority was not alive to the contents of these documents containing relevant facts and submissions for the purpose of arriving at subjective satisfaction for issuance of any order of preventive detention. The Hon'ble Supreme Court in W.P. (Crl.) No. 602 of 1989 Mohd. Towfeek Mulaffar versus Additional Secretary to Government of Tamil Nadu dated 23.2.1990 was pleased to quash the order of detention on the point that the grounds of det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Detaining Authority. There is no manner of doubt that the documents mentioned above are not only important but of definite impact in the matter of detention and having a bearing on to the issue. Under the circumstances, there thus stands a bounden obligation to place the same before the Detaining Authority for fair play and justice. The Sponsoring Authority conveniently kept it to itself a very relevant mater4ial which could have titled the scale before the Detaining Authority. Needless to record that the sponsoring authority was able to place the letter from the Special Public Prosecutor regarding the condition of bail relaxation of the detenue dated 28.2.2001, but failed to place the orders of the Settlement Commission dated 8.2.2001 and 15.2.2001. Is it a lapse unintended or a deliberate failure? The learned senior advocate appearing for the respondents however hadn't had any answer to the same. The factum of non-placement of relevant documents, in our view, has had a serious effect and definite inroad to petitioner's liberty without application of mind. Non- placement of the order of payment of additional duty of ₹ 11,56,803/- within 30 days from the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll the materials, both for and against him, had been placed for the consideration of the detaining authority and had been considered by it before the detention order was passed, having particular regard to the orders passed by the Settlement Commission appointed under the provisions of the Customs Act, 1962, which absolved the detenu from all criminal prosecution. 33. In the instant case, as some of the vital documents which have a direct bearing on the detention order, had not been placed before the detaining authority, there was sufficient ground for the detenu to question such omission. We are also of the view that on account of the non-supply of the documents mentioned hereinbefore, the detenu was prevented from making an effective representation against his detention. 25. I find that all these precedents clearly lays down that it is essential to place on record relevant documents before the Detaining Authority for being considered before arriving at subjective satisfaction for issuance of detention order or else the detention order would be vitiated. There is no doubt that these two documents originated from the Settlement Commission are very much vital. In any event, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of customs/central excise duty and service tax. The COFEPOSA Act, 1974 deals with the law relating to preventive detention. Such preventive detention action is independent of any adjudication/prosecution proceedings initiated under the relevant provisions of the Customs Act, 1962. I am not impressed by this argument of the respondents. I find that the said averment in the grounds of detention gives erroneous picture as if the prosecution proceedings are initiated under the relevant provisions of the Customs Act, 1962 and preventive action is independent of that. No prosecution proceedings, however, has been initiated. In the instant case various offences allegedly committed by the petitioner are referred, however, the requisite satisfaction on this vital aspect concerning his prosecution in each of these cases is not reflected from the grounds of detention. The Detaining Authority was thus not alive to the actual fact as to whether prosecution proceedings were initiated or were likely to be initiated against the petitioner in each offence alleged against him. Reliance placed by the petitioner on Soma Nath Kundu versus Union of India and others 1987 (32) E.L.T. 657 (Delhi) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t had taken decision to revoke the detention order against others in that case considering the factum of payment of entire dues as sufficient deterrent and preventive measures. 29. It was also urged on behalf of the Detaining Authority by relying upon Sunil Fulchand Shah versus Union of India (2008) 3 SCC 409 and State of Bihar versus Rambalak Singh, AIR (1966) S.C. 1441 that High Court cannot grant bail in the matter of preventive detention. However, a perusal of both the judgments shows a consistent view that the High Court has ample power to grant temporarily release of the detenu on bail in a preventive detention matter, which however, can be exercised in exceptional circumstances. 30. While setting aside the impugned detention order, I find it necessary to quote the following extract from the judgment of Constitution Bench in Kamlesh Kumar Ishwardas Patel versus Union of India 1995 (4) SCC 51:- At this stage it becomes necessary to deal with the submission of the learned Additional Solicitor General that some of the detenus have been indulging in illicit smuggling of narcotic drugs and psychotropic substances on a large scale and are involved in other anti- national ..... X X X X Extracts X X X X X X X X Extracts X X X X
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