TMI Blog2020 (2) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... I, SR. ADVOCATE WITH MR HARDIK P MODH WITH MR AMIT LADDHA, FOR THE PETITIONER MR NIRZAR S DESAI FOR THE RESPONDENT NOTICE SERVED BY DS FOR THE RESPONDENT JUDGMENT 1. Present petition under Articles 14, 21, 22 and 226 of the Constitution of India is directed against the detention order F.No.PD-12002/09/2018-COFEPOSA dated 11.05.2018 passed under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred as COFEPOSA for short) for the period of one year against the petitioner. 2. The petitioner is Indian habitant. The petitioner is Director of M/s.Somnath Metal Pvt. Ltd. for more than 9 years and is in business of import and trading of various types of metal scrap. 3. By way of present petition, Mr. Sanjaykumar Shah through his father Mr.M.J.Shah, presently in Sabarmati Jail since 03.09.2019, challenges legality and validity of detention order dated 11.05.2018 issued by Joint Secretary, Government of India in exercise of powers under section 3(1) of COFEPOSA. In terms of the said order of detention, the petitioner has been detained since 03.09.2019, with a view to prevent him from smuggli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er before this Court is that the detention order was passed against him mainly on the alleged premise that the petitioner along with Shri Ramnarayan Laddha and others formed orgainzed syndicate for smuggling of gold, cigarettes and betel nuts valued more than ₹ 10 Crores approximately involving duty evasion of ₹ 4 crores by importing goods through M/s. Bhagyodaya Enterprise and M/s. Radhika Impex at Mundra and Kandla port, 8. Learned Senior advocate Mr. Y.S.Lakhani for the petitioner has challenged detention order principally on three grounds (i) That there is inordinate delay in passing the detention order against the detenue petitioner, which vitiates the detention itself. Detention order was passed on 11.05.2018, which is after a period of 10 months and alleged activities occurred in the year 2017. At this stage, learned Senior Counsel Mr. Lakhani referred to decision of the Hon ble Apex Court in the case of T.A. Abdul Rehman v/s. State of Kerala reported in (1989) 4 SCC 741. The Hon ble Apex Court in the said case, in para 10, has pointed out as under :- 10. The conspectus of the above decisions can be summarised thus : The question whether the prejudici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that authority failed to consider subsequent events which took place while order of detention was not being executed upon the petitioner on account of protective order passed by this Court for a period of 15 months i.e. from 11.05.2018 to 03.09.2019. As per submissions, following events happened which were not considered and /or taken into consideration before serving detention order upon the petitioner. :- Sr. No. Particulars. 1 A copy of Anticipatory bail order dated 17.07.2018 passed by the Hon ble Gujarat High Court in Criminal Misc. Application No.1902 / 2018. 2 Statement dated 05.07.2018 of the petitioner recorded by DRI. 3 Letter dated 05.07.2018 retracting statement recorded on 05.07.2018. 4 A copy of letter dated 11.07.2018 addressed by Senior Intelligence Officer, DRI to the petitioner. 5 A letter dated 13.07.2018 addressed by the petitioner to DRI reiterating the stand made by the petitioner in his letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the petitioner was maintained and therefore, there is lack of non application of mind and order smacks of malafide action and that too without pointing out subjective satisfaction that there is likelihood of prejudicial activities on the part of the petitioner. At the end, learned senior advocate would submit that present petition may be allowed. 9. Per contra, respondent no.3 has filed affidavit in reply and maintained that detention order is legal and valid and refuted all the grounds more particularly above three grounds on which submission is made at bar to quash and set aside detention order. 10. Learned advocate Mr. Desai for respondent no.3 authority would submit that case of the petitioner and said Shri Ram Narayan Laddha is not same and identical though it is based on same set of relied documents. According to him, the petitioner is real conspirator behind smuggling and in support of such contention, he has placed reliance on averments made in para 16, which reads as under:- 16. With regard to Ground I of the petition, I say that the petitioner has mentioned that as the co-detenue Shri Ram Narayan Laddha has been released on merit and the identical tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion order dated 11.05.2018 against the petitioner vitiates detention itself. In the case on hand, last prejudicial act recorded against the petitioner was in the month of August, 2017, whereas, detention order is passed on 11.05.2018, which is after a period of 10 months. As such, test of proximity is not mechanical test by merely counting number of months between the offending acts and the order of detention, but when there is undue delay, then, the Court has to scrutinize whether the detaining authority has satisfactorily examined such a delay occurred. The only explanation provided by the respondent authority is such that the petitioner joined investigation on 25.10.2017 and that too he appeared for investigation only after High Court order dated 16.10.2017 passed in Criminal Misc. Application (for anticipatory bail) No.25454 of 2017. So in nutshell, justification for delay is on account of non appearance and non cooperation on the part of the petitioner. As such, explanation is per-se irrelevant because nexus of causal connection is required to be established between prejudicial activities and passing of the detention order. In the case on hand, the detaining authority has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vital facts which would influence the mind of the Detaining Authority one way or the other on the question whether or not to make the detention order are not placed before or are not considered by the Detaining Authority, it would vitiate its subjective satisfaction rendering the detention order illegal. After all, the Detaining Authority must exercise due care and caution and act fairly and justly in exercising the power of detention and if taking into account matters extraneous to the scope and purpose of the statute vitiates the subjective satisfaction and renders the detention order invalid, then failure to take into consideration the most material or vital facts likely to influence the mind of the authority one way or the other would equally vitiate the subjective satisfaction and invalidate the detention order. (Ashadevi v. K. Shivraj, Addl. Chief Secy. to the Govt. of Gujarat Anr., (1979) 1 SCC 222). 47. In view of the above discussion, we have no hesitation to hold that the Bail Order dated 26.05.2009 passed by the Delhi High Court in the earlier case under the Customs Act was vital and relevant material to be considered by the Detaining Authority before passing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter of fact that detention order issued to the petitioner and said Shri Ram Narayan Laddha is almost on identical facts. While considering issue of imposing penalty on Shri Ram Narayan Laddha, it is specifically recorded by the Principal Commissioner, Customs House, Mundra, Kutch in the proceedings being Order-in-Original No.MUN-CUSTM-000-COM- 24-18-19 dated 25.02.2019 that Shri Ramnarayan Laddha was actively engaged in creating the firm in the name of M/s. Radhika Impex for the purpose of smuggling of contraband goods and he controlled all the business and banking transactions of M/s. Radikha Impex along with present petitioner. It is further found and observed in the said proceedings that the present petitioner adopted a modus operandi in creating firms / companies in the name of others and thus, he played vital role in smuggling of goods and betel nuts. Such factual finding if examined viz-a-viz grounds of detention alleged in the impugned order, then only conclusion can be drawn is such that both said Mr. Ramnarayan Laddha and the petitioner stand almost on identical footing. The Court did not find any different and distinct role attributable to the petitioner, more particular ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
