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TMI Blog2020 (2) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 smuggling of goods, abetting smuggling of goods and engaging in transporting or concealing or keeping smuggled goods. 4. The petitioner made representation on 10.09.2019 through Jail Superintendent, Sabarmati Central Jail to the Chairman, Advisory Board, COFEPOSA. Despite direction of this Court vide order dated 27.08.2019 directing the Advisory Board to consider representation within 3 weeks from the date of receipt of this order but not later than 4 weeks, the said representation is not decided. Order dated 27.08.2019 passed by this Court was served upon the Detaining authority ie respondent no.2 on 29.08.2019. However, representation was required to be considered on or before 19.09.2019. Since the hearing itself was given to the petitioner on 25.09.2019 i.e. after three weeks from the date of receipt of the order, the detention order is required to be quashed. 5. In nutshe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... General of Directorate of Revenue Intelligence, Ahmedabad. 7 Show cause notice F.No.S/43-05/SIIB/CHM/Radhika/2017- 18 dated 18.07.2018. 8 Order in Original No.MUN-CUSTM-000-COM-24-18-19 dated 25.02.2019 passed by the Principal Commissioner of Customs, Mundra. 9 Order in Original No.MUN-CUSTM-000-COM-20-18-19 dated 10.12.2018 passed by the Commissioner of Customs, Mundra. 10 Order in Original No.AHM-CUSTM-000-COM-002-19-20 dated 28.06.2019 passed by the Commissioner of Customs, Ahmedabad. 11 Appeals filed by the petitioner challenging the order-inoriginal No.MUN-CUSTM-000-COM-24-18-19 dated 25.02.2019 and order in Original No.MUN-CUSTM-000- COM-20-18-19 dated 10.12.2018 passed by the Commissioner of Customs, Mundra. 8.3. In support of grounds so urged before this Court, learned Senior Counsel has placed reliance on three following decisions:- (1) Sahil Jain v/a. Union of India reported in 2013 SCC Online Delhi 4540. (2) Ashadevi wife of Gopal Ghermal v/s. K. Shivraj, Addl. Chief Secretary to the Govt. of Gujarat reported in (1979) 1 SCC 222. (3) R.Rani v/s. State of Tamil Nadu reported in 2002 (150) ELT 1395 (Mad.). 8.4. Last but not least, it is urg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, for smuggling of Gold and other items, Shri Sanjaykumar Mulchand Shah has used the IEC of M/s. Bhagyoday Enterprise. Also M/s. Radhika Impex has been used by him to smuggle areca nut. During the investigation process, Shri Sanjaykumar Mulchand Shah has created a ficitious character named Saleem to mislead the investigation. The creation of multiple layers of companies and using proxy IEC for smuggling reveals the criminal mind set of Shri Sanjaykumar Mulchand Shah. (ii) Statement of Shri Kamlesh Bhai working for Ms/. Bright Shipping Pvt. Ltd., a CHA revealed that Shri Sanjaykumar Mulchand Shah has arranged the documentation work for customs clearance and transportation of containers. This shows that for all the activities related to clearance of the smuggled cargo, Shri Sanjaykumar Mulchand Shah was in the forefront. (iii) Bank statement of M/s. Bhagyoday Enterprise and M/s. Radhikha Impex (both firms which has been used for smuggling) has revealed that it has been funded by M/s. Somnath Metal Pvt. Ltd. and M/s. H.B.Metal Pvt. Ltd. Which are owned by Shri Sanjaykumar Mulchand Shah. Huge amount have transferred into the accounts. This shows that Shri Sanjaykumar Mulchand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kerala (supra). 12. So far as second ground is concerned, it appears that Sponsoring authority has not supplied all relevant material to the detaining authority, more particularly, documents viz. copy of regular bail order dated 29.12.2017 passed by the Hon'ble Gujarat High Court in Criminal Misc. Application (For Regular Bail) No.30460 /2017, letter dated 09.11.2017 addressed to the Ld. Additional Chief Metropolitan Court regarding retraction of the statement of the petitioner recorded on 07.11.2017 and 08.11.2017 recorded by the Directorate of Revenue Intelligence, Letter dated 09.11.2017 addressed to the Ld. Additional Chief Metropolitan Court regarding retraction of the statement of the petitioner recorded on 07.11.2017 and 08.11.2017 recorded by the Directorate of Revenue Intelligence and Letter dated 13.11.2017 addressed by the Registrar of the Metropolitan Magistrate to the Hon'ble Additional Metropolitan Magistrate regarding retraction of the statement. The above documents noted herein-above has bearing on the issue and if provided and considered by the detaining authority, it would influence the mind of the detaining authority one way or other, but unfortunately, they ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied upon while framing the ‟ grounds of detention by the Detaining Authority hence the same were not supplied to the Detenue. A perusal of the detention order falsifies the stand of the Respondents that the three show cause notices were not taken into consideration by the Detaining Authority while passing the order of detention. Para 22 of the detention order makes a reference not only to the three show cause notices but also to the adjudication order dated 31.01.2011 whereby the penalty proposed against the Detenue was ordered to be dropped. The Detaining Authority goes on to mention that the adjudication order in question had not attained finality as an appeal W.P. (Crl.) 1136/2013 Page 33 of 38 had been preferred by the Commissioner of Customs before CESTAT, New Delhi. The replies to the three show cause notices have been placed on record by the Detenue. There were serious allegations of illegal import of high end gold jewellery and misuse of SEZ facility against the Detenue and others. Show cause notice is a charter of allegation and by replies to the notices, the Detenue claimed innocence and therefore, the replies to the show cause notices were vital, important and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nuts, as per respondents case. 14. At this juncture, it is relevant to note observations recorded by the Hon'ble Delhi High Court in the case of Boris Sobotic Milkolic v/s. Union of India reported in 2018 (361) ELT 609 (Del.), more particularly, para 34 and 35, which reads as under :- "34. Mr. Diwakar was unable to point out how the case of the Petitioner on merits was any different from that of the co-detenues. The only explanation offered is that while the co-detenues underwent some period of detention, the Petitioner did not. If on merits, the case of the Petitioner is no different from that of the co-detenues and the detention orders in respect of the co- accused have not been confirmed by the Advisory Board, the Court sees no purpose being served in the Petitioner being detained on the basis of the impugned detention order, the grounds for which are no different from the detention orders issued in respect of the co-detenues, which have not been confirmed by the Advisory Board. 35. As reminded by the Supreme Court in Rajesh Gulati v. Govt. of NCT of Delhi (supra), the purpose of a detention order is to prevent the commission of crime. However, in the present case with t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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