TMI Blog2001 (10) TMI 1178X X X X Extracts X X X X X X X X Extracts X X X X ..... s writ petition. 2. The prejudicial activities of the detenu which prompted the second respondent (hereinafter also referred to as the detaining authority) to pass the impugned order are contained in the grounds of detention. (Annexure B). In short, they are as under:-- An intelligence was received to the effect that M/s. Quality Apparel Exporters (P) Ltd. and M/s. Quality Exporters, both Mumbai based firms were indulging in export of rags declaring them to be ladies garments with the sinister object of defrauding the Government by way of claiming duty draw back. The intelligence further revealed that about five consignments were likely to be exported on 31-5-2000 and the aforesaid firms had been indulging in the said malpractice in the past and over 150 consignments were shifted from Air Cargo Complex, Sahar, during January, 2000 to May, 2000 and the said firms obtained the duty draw back fraudulently which ran into crores of rupees. In pursuance of the said intellegence, three consignments of cargo declared to be ladies skirts were noticed in the shed, Air Cargo Complex, Sahar in respect of which the Let Shipment orders were given after the goods were examined and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Exporters (P) Ltd. and his wife Parimala Singh was the Managing Director of M/s. Quality Exporters which was proprietary concern owned by Parimala Singh wife Mr. C.D.N. Singh. Consequently, summonses were issued to both of them. From the statement of Mr. C.D.N. Singh recorded on 1-8-2000, it came to light that the detenu used to sign papers for Quality Exporters and he did not remember who had authorised him to do so. . On 16-6-2000, the detenu stated in his statement that he had joined M/s. Quality Exporters in the year 1976 and continued to work in the said company till 1997 in which year he was shifted by the management to M/s. Quality Exporters. He stated that he used to take instructions from Mr. Aditya Singh (son of the aforesaid Mr. C.D.N. Singh) a director in M/s. Quality Apparel and was looking after the export management as per the verbal instructions of Mr. Aditya Singh. On being shown the export related documents against seven shipping bills dated 30-5-2000, namely 44215759, 4425761, 4425763, 443754, 4425769, 4425767 and 4425764, he admitted that he had signed them. In his statement dated 23-6-2000, the detenu stated that the signed the documents as per the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her and its non-placement by the sponsoring authority before the detaining authority has rendered the impugned order null and void and its non-supply to the detenu has violated his fundamental right of making an effective representation under Article 22(5) of the Constitution of India. It has been averred in ground No. 4(iii) that copy of the FIR referred to therein, is annexed as Annexure-E to the petition. 4. Ground No. 4(iii) has been replied to in returns of the detaining authority dated 17-4-2001 and 19-9-2001 and in that of Mr. E.A. Joseph, Assistant Commissioner of Customs, (Preventive) R. I. New Customs House, Mumbai. We now propose extracting in substance the reply contained in the said returns. 4A. We begin with the return of the detaining authority dated 17-4-2001. We find that the reply of the detaining authority is contained in para 3, 4 and 6(iii) of the said return. In para 3 and 4, the detaining authority has denied that non-placement of the FIR against Mr. C.D.N. Singh and others impaired his subjective satisfaction. He had stated therein that his subjective satisfaction to detain the detenu under the impugned order was based on sufficient material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling in terms of Section 2(e) of the COFEPOSA Act. In the said return, the detaining authority has averred that C.B.I. investigates into economic offences from a completely different angle, which has no connection with the concept of smuggling as defined in Section 2(e) of the COFEPOSA Act. He has further averred therein that if the argument of the petitioner that the FIR is a vital document is accepted then, all the documents relating to cases registered by different law enforcement agencies under different relevant enactments would have to be considered by the detaining authority while issuing a detention order under the COFEPOSA Act and this will not be in tune with the provisions of COFEPOSA Act and would be unjustifiable because, such documents would be completely extraneous for the purpose of arriving at the subjective satisfaction as defined under the COFEPOSA Act. At the end of his affidavit, the detaining authority has averred that the FIR filed by the CBI was neither a vital nor a relevant document for his arrival at the subjective satisfaction reached by him. 4C. We now take up the reply to ground No. 4(iii) contained in the return of Mr. E.A. Joseph, Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment against the detenu therein is that he prepared the export documents under the instructions of Mr. Aditya Singh and also signed them. We have seen that in his statement dated 16-6-2000, the detenu admitted that as per the verbal instructions of Mr. Aditya Singh, he has signed all the documents pertaining to the export against shipping bill Nos. (1) 4425759 dated 30-5-2000 (2) 4425760 dated 30-5-2000 (3) 4425762 dated 30-5-2000 (4) 4425761 dated 30-5-2000 (5) 4425763 dated 30-5-2000 (6) 4425764 dated 30-5-2000 (7) 4425765 dated 30-5-2000. 7(A). A perusal of the FIR lodged by the CBI (Annexure E) would show that the said FIR was lodged on 21-6-2000 and the averment therein is that Mr. C.D.N. Singh, Mr. Aditya Singh and Mr. Randhir Singh, original accused Nos. 8, 9 and 10 respectively entered into a criminal conspiracy with seven customs Officers namely Mr. R. Manga Babu, Mr. K.R. Tumbare, Mr. R.V. Apparao, Mr. K.B. Suryavanshi, Mr. K.S. Nair, Mr. A.K. Jena and Mr. C.P. Umar, original accused Nos. 1, 2, 3, 4, 5, 6 and 7 respectively and M/s. Nirvan Company, Sharjah and M/s. Freight Wings and Travels Ltd. Mumbai, original accused Nos. 11 and 12 respectively and others to cheat t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the detenu nor even a whisper of suspicion has been raised against him, the detaining authority may not have passed the impugned order. Which way the mind of the detaining authority would have worked is not for us to conjecture because, that was a matter within the realm of his subjective satisfaction. But, we make no bones in observing that since copy of the said FIR was not placed before the detaining authority nor supplied to the detenu, the detention order would be vitiated both on the vice of non-application of mind of the detaining authority and the detenu's fundamental right of making a representation guaranteed by Article 22(5) of the Constitution of India being impaired. 9. Mr. R.M. Agarwal, learned counsel for the respondent Nos. 1 and 2 emphatically urged that since the detaining authority has detained the detenu in order to prevent him in future from committing smuggling within the meaning of Section 2(e) of the COFEPOSA Act and in the grounds of detention, there was sufficient material for the detaining authority to conclude that the detenu committed smuggling in terms of Section 2(e) of the COFEPOSA Act, his subjective satisfaction would not have changed e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial to show that the detenu was involved in smuggling, in terms of Section 2(e) of the COFEPOSA Act, the detaining authority may still have detained him, after perusing the contents of the said FIR. As observed by us earlier, since it. was a matter in the realm of the subjective satisfaction of the detaining authority, we cannot conjecture which was it would have gone had the said FIR been placed before him. But, to repeat since the said FIR was a vital piece of evidence and was not placed before the detaining authority any its copy was not supplied to the detenu, the impugned order would be vitiated on the vice of non-application of mind and the detenu's fundamental right of making a representation at the earliest opportunity guaranteed by Article 22(5) of the Constitution of India being impaired. 12. Before parting with Mr. Agarwal's submission, we would like to emphasise that subjective satisfaction and objective satisfaction are as distinct and different in connotation, as red and black are and standards to be adopted in determining as to when an order founded on them would be vitiated are equally distinct and different and while dealing with cases resting on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me to a subjective satisfaction as to the passing of the order of detention as mandatorily required under the Act. This finding of the High Court is quite in accordance with the decision of this Court in the case of Asha Devi v. K. Shivraj 1979CriLJ203 and Gurdip Singh v. Union of India, 1981CriLJ2 . 15. We now come to the case of Ayya alias Ayub v. State of U.P. 1989CriLJ991 .A perusal of para 13 of the judgment shows that in that said case, the vital document was a telegram. The question was whether the telegram was despatched by Mirajuddin at 12-30 midnight on 18-2-1988 as contended from the side of the petitioner or at 12-30 noon on 19-2-1988 as suggested by the respondents. Venkatachaliah. J. (as he then was) in para 13 of the judgment did not rule out the possibility of the telegram being sent at, the time contended by the respondents. But, in spite of that, since the said telegram was a vital piece of evidence and was not placed, he struck down the detention order observing thus in the said para: But, it cannot be disputed that such a telegram was sent. This telegram asserts for whatever it was worth that the petitioner was taken into custody at 8.00 p.m. on 18-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etention order would stand vitiated on both the facets of Article 22(5) of the Constitution of India. Since a copy of a vital document was not; placed by the sponsoring authority before the detaining authority, the detention order would be vitiated on the vice of non-application of mind and as a copy of the said FIR was not furnished to the detenu, the latter's fundamental right guaranteed under Article 22(5) of the Constitution of India of making a representation at the earliest opportunity would be vitiated. 17-A. It. should be borne in mind that the right to make a representation, guaranteed to the detenu under Article 22(5) of the Constitution of India, is an effective right and not an illusory right. And when a copy of a vital document is not furnished to the detenu, it ceases to be an effective right and is relegated to an illusory one. The sacrosanct nature of the right can be gauged by the fact that, the framers of the Constitution have made it. a fundamental right. 18. Before we proceed to the operative part of this judgment, we would like to make some observations on the averments contained in the second affidavit dated 19-9-2001 filed by the detaining authority ..... X X X X Extracts X X X X X X X X Extracts X X X X
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