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TMI Blog2019 (6) TMI 1363X X X X Extracts X X X X X X X X Extracts X X X X ..... his court the file concerning such consideration along with the orders passed thereon. The rule was then made returnable on 12/06/2019. We need not go to the circumstances in which thereafter the matters came to be placed before us as alternate Bench. However, learned counsel appearing for respondent nos. l 1 to 3 in these matters at the outset urged that the meeting of the Advisory Board is scheduled on 11/7/2019 and therefore, consideration of the present matters should be postponed. It is not in dispute that as per directions contained in the order dated 4/6/2019, respondent no. 3 has already considered and rejected the representation and communicated it to the petitioners. It is in this backdrop that we have heard Mr. Chaudhary learned senior counsel for the petitioners, Mr. Yadnik, learned APP for respondent State and Smt. Pai for respondent nos. 1 to 3. 2. Opposing the preliminary objection raised by respondent no.1 to 3 and pressing for hearing, learned senior advocate relied upon the judgments of the Hon'ble Apex Court in Piyush Kantilal Mehta Vs. Commissioner of Police, Ahmedabad City and another 1989 Supp (1) Supreme Court Cases 322 particularly paragraph 6, to submit th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record to show that time of 4 or 5 days taken for service of the documents relied upon was required to prepare the copies as alleged in the reply. 8. Our attention is invited to guidelines contained in Handbook of compilations on instructions issued on COFEPOSA matters to urge that the guideline nos. 14, 21 and 24 in Part A which mandates "Dos" and guideline no.9 in Part B which points out "Donts" have been violated here. 9. Various judgments have been relied upon by the learned senior advocate to drive home the contentions. We will make reference to those judgments as and when occasion therefor arises. 10. Advocate Pai has invited our attention to ground of detention served upon the respective petitioners to show that there the facts showing the conduct and involvement of respective petitioner are looked into and from their conduct, gravity of matter and huge financial loss suffered by the revenue over a span of time, preventive detention is found essential. Capacity and propensity have also been looked into and then subjective satisfaction that preventive detention is essential has been reached. She invited our attention to the judgment of the Apex Court in the case of Hardha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution did not file any chargesheet on the strength of the material on which they have proceeded to detain the petitioners and it is an important facet which must be kept in mind. He further states that the grounds of detention were already served along with detention order on 18/5/2019 itself and as such there is no question of serving relied upon documents thereafter. He reiterates that the impugned orders/grounds nowhere express any apprehension of release on bail. He further adds that as both the petitioners were already in custody, the order of detention with the complete grounds including documents relied upon could have been served upon them at any time and there was no urgency which justifies the course chosen by the respondents. 15. He has invited our attention to the fact that in the list of documents relied upon to support the ground of detention, last document is dated 16/5/2019 and its reply filed by the Sponsoring Agency opposing grant of bail to the petitioners. This reply therefore, has become available after its filing in court on 16/5/2019 and law requires respondent no. 3 Authority to consider the impact thereof afresh. This exercise could not have been co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble Apex Court has observed that while discharging the constitutional obligation to enforce the fundamental rights of the people more particularly the right to personal liberty, these considerations cannot influence the process. History of liberty is the history of procedural safeguards and certain minimum safeguards are required to be "zealously watched and enforced by the Court". 18. In Mohd Zakir Vs. Delhi Administration and Ors. (1982) 3 Supreme Court Cases 216 in paragraph 2 Hon'ble Apex Court has also observed that the question of demanding documents is wholly relevant because it is the constitutional mandate which requires the detaining authority to give documents relied upon or referred to in the order of detention, pari passu the grounds of detention in order that the detenue may make effective representation immediately instead of waiting for the documents to be supplied with. 19. In the case of Shalini Soni Vs. Union of India (1980) 4 SCC 544 in paragraph 7 the Hon'ble Apex Court has observed that when there is an express statutory obligation to communicate not merely the decision but the grounds on which the decision is founded, it is a necessary corollary that the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27/6/1996 unaccompanied by the documents and the material on the basis of which order of detention was issued. These documents and material were served on them on 30/6/1995. This was held invalid and orders of detention were found an initio null and void. 23. In Sanjay Waman Mhatre @ Khardya Vs. Shri R.D. Tyagi, Commissioner of Police, Mumbai and Ors. Criminal Writ Petition No. 690 of 1996 again the Division Bench of this court has taken same view and followed earlier two Division Bench judgments. 24. In the present petitions, the order of detention dated 17/5/2019 was served on the respective petitioners along with grounds on which the detention was ordered. The grounds of detention on its last page in paragraph 9 to 12 observe as under: "9. While passing the Detention order under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, I have relied upon the documents mentioned in the enclosed list, which are also being served to you along with the Grounds of Detention. 10. You i.e. Shri Happy Arvindkumar Dhakad have the right to represent against your detention to the Detaining Authority, to the Central Government as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be given on different dates. 27. When these guidelines, judgments mentioned by us supra are applied to the impugned orders/grounds of detention reproduced supra, it is apparent that the respondent no. 3 detaining authority has not envisaged separate service upon the detenue of the part of grounds along with the order of detention and remaining part i.e. relied upon documents thereafter. The List of documents relied upon by respondent no. 3 is enclosed with the grounds of detention and it is expressly recorded that these documents are also being served upon the petitioners along with the grounds of detention. The detenue is also made aware of the right to represent. In paragraph 12, it is expressly recorded that the grounds are communicated for the purpose of clause (5) of Article 22 of the Constitution of India and as required under section 3(3) of the COFEPOSA Act. This communication (grounds of detention) therefore, does not contemplate or authorize the piecemeal service of grounds of detention upon the petitioner. The authority passing the order contemplates service together of entire material i.e. full order containing the process of reaching the subjective satisfaction and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e diamonds were secreted in two balloons in his rectum by one person and other 2 detenues had created cavities for concealing 100 capsules each in their bodies. Hon'ble Apex Court also found that this revealed that they had necessary training and this was all being done by them because of lucrative money which they earned from such smuggling. It is recorded that they were not ordinary carriers. This finding therefore, does derogate in any way from the proposition of the law laid down by the Hon'ble Supreme Court which we have reproduced supra. 30. At this stage, learned advocate for respondent nos. 1 to 3 invites our attention to the fact that she had also pressed into service paragraph 5 of the grounds of detention in the matter of Nisar Aliyar. The findings therein are again on vital role played by the petitioner Nisar Aliyar in smuggling of gold. These findings do not in any way dispense with the requirement of recording the finding of real possibility of his being released on bail. As noticed supra, the procedural safeguards are sacrosanct and must be honoured 31. As we have already observed supra, the impugned orders and grounds of detention nowhere expressly mention any suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise is cardinal here as the bail applications were earlier rejected by the competent court. There is no demonstration on record of any such exercise. There is no such application of mind demonstrated even before 16/5/2019 and after 16/5/2019. 34. Respondent no. 3 Detaining authority was aware of the requirement of serving orders of detention and grounds of detention with relied upon documents. It is in the face of this requirement and knowledge it passed the order which we have mentioned supra. The submission that preparation of pages and bulk of record did not enable the respondents to serve relied upon documents simultaneously with the order of detention upon the petitioners, is therefore, unsustainable. The authorities could have in appropriate cases indicated that because of huge records and necessary clerical work, relied upon documents would be served in terms of section 3(3) of COFEPOSA Act. The order does not carry any mention on these lines and on the contrary it gives an impression to the contrary. 35. In the light of the consideration and our findings, following the law laid down by Hon'ble Apex Court in Piyush Kantilal Mehta Vs. Commissioner of Police (Supra), w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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