TMI Blog2021 (8) TMI 727X X X X Extracts X X X X X X X X Extracts X X X X ..... gests that the especially empowered officer must act only on receipt of the proposal of some other agency or Sponsoring Authority . In fact the expression Sponsoring Authority and Detaining Authority find no mention in the statute. Whether the detenu s constitutionally secured right of making an effective representation has been jeopardized, by the non-supply of legible and complete documents, inspite of the detenu s request in this regard, thereby rendering the order of detention illegal and bad? - HELD THAT:- In the present case, the denial by the official respondent to supply legible copies of the relevant documents to the detenu, despite his express request to do so, tantamount to denial of his constitutional right, thereby vitiating the detention order, founded on the said relevant material. Whether the order of detention is bad in law and vitiated on the ground of inordinate delay? - HELD THAT:- In the absence of any mention of such overseas evidence in the subject detention order, the same cannot be considered as germane in order to satisfactorily explain the delay occasioned in passing of the impugned order of detention. The Court can interfere with the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances. Delay on the part of the Central Government in deciding the representation filed by the detenu - HELD THAT:- There was massive delay of 57 days by the Central Government in dealing with the petitioner s representation - it is well settled that the right of the detenu to make a representation and have it considered by the appropriate Government with expedition, is a constitutional right under Article 22(5) of the Constitution of India and any unreasonable and unexplained delay in considering the representation is fatal to the continued detention of the detenu - there has been inordinate and unexplained delay on the part of the Central Government in deciding the statutory representation filed by the detenu. Whether the subject detention order stands vitiated for the reason that the grounds stated therein have been lifted from the grounds taken in an entirely different case? - HELD THAT:- The petitioner herein have produced certified copies of the detention order in the case of UNION OF INDIA, JOINT SECRETARY (COFEPOSA) , GOVT. OF INDIA, MINISTRY OF FINANCE VERSUS DIMPLE HAPPY DHAKAD [ 2019 (8) TMI 139 - SUPREME COURT] (filed by the detenu s wife) from the rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s. Its My Name Private Limited (hereinafter referred to as IMNPL ) was entrusted with the work of importing and exporting gold jewellery through handcarry (personal carriage) to UAE; for the purpose of taking part in an exhibition organized by M/s. M.N. Khan Jewellers (FZE), as per the permission by the Gem Jewellery Export Promotion Council (hereinafter referred to as GJEPC ). iii) IMNPL is a government recognized three-star export house, engaged in the business of manufacturing, import and export of gold jewellery and other allied bullion items. iv) IMNPL has been duly issued an Import Export Code (IEC) bearing No.0514037342 from the office of the Joint Director, Directorate General of Foreign Trade (hereinafter referred to as DGFT ) and is stated to have earned foreign exchange valuing around US Dollars 150 million for the country. v) IMNPL had also obtained Advance Authorization License from the office of DGFT, New Delhi, inter alia permitting import of 1000 kgs of gold bars. vi) IMNPL has against the said Advance Authorization License imported 50 kgs of gold bars and completed export obligation of approximately 19 kgs of gold bars vide Export Invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for export; the photographs of the goods being exported through hand-carry, were also checked and seen by the Customs Jewellery Appraiser posted at the Export Shed Air Cargo; and after verification of the same, the said photographs were signed and appraised by the Appraiser and then given back in sealed cover to the person hand-carrying the gold jewellery. xv) The gold jewellery, which remained unsold at the time of exhibition was brought back by the co-detenu Amit Pal Singh, from UAE. The co-detenu Amit Pal Singh, landed at the Indira Gandhi International Airport, New Delhi on 24.04.2019 at around 06.30 p.m. and approached the Red Channel for the purpose of declaration of the goods brought back by him. xvi) Amit Pal Singh, the co-detenu is stated to have filed reimport documents such as packing lists cum invoice; and provided the sealed packet of photographs to the Customs Appraiser along with the shipping bills, Export Declaration Form and endorsed copies of packing list cum-invoice, given to him at the time of export, respectively for the quantities of unsold gold jewellery being brought back out of earlier exported goods concerning shipping bills dated 20.02.2019 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Duty Magistrate and thereafter before the Court of learned Chief Metropolitan Magistrate, Patiala House Courts, New Delhi on 27.04.2019 in writing. Detenu also filed a detailed retraction on 26.05.2019 from Tihar Jail through Superintendent of Jail No. 7, prior to his release on bail. Retractions were filed by the detenu and also Amit Pal Singh and Gopal Gupta (co-detenus) before the learned Chief Metropolitan Magistrate, Patiala House Courts, New Delhi on 27.04.2019 while they were lodged in Tihar Jail. xxiv) At this juncture it is averred by the detenu that vide additional submissions filed by DRI, opposing the bail application of the detenu, it was reiterated that it is not a case of evasion of customs duty . Consequently, the detenu and co-detenus were granted bail by the learned Chief Metropolitan Magistrate, Patiala House Court, New Delhi vide common bail order dated 3.6.2019 wherein it was pertinently observed that it is not explained that as to how the duty could be saved by replacing the larger quantity of bills of entries of jewellery in India by bill of entry of smaller quantity and that the statement of the accused persons recorded by DRI officials u/s 108 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the seizure of the gold jewellery from the co-detenu Amit Pal Singh at the IGI Airport, New Delhi on 24.04.2019 and further seizure of gold jewellery from the IMNPL business premises on 24-25.04.2019, purportedly after completion of the investigation, a Show Cause Notice dated 26.09.2019 was issued by the DRI, New Delhi, wherein the detenu was also made a noticee and penalty was proposed upon the detenu under the provisions of Customs Act. xxx) The detenu s passport was released vide order dated 07.01.2020 by the learned Chief Metropolitan Magistrate, Patiala House Courts, New Delhi and he was permitted to travel abroad. The DRI carried the said order passed by the learned Chief Metropolitan Magistrate in appeal to the Sessions Court, as well as this Court, but to no avail. xxxi) It is also averred on behalf of the detenu that despite the release of his passport and the permission granted to the detenu to travel abroad; the detenu has not exercised his liberty to travel abroad, exhibiting his bona fides and negating the stand taken by the DRI qua his propensity to indulge in the alleged act in any manner. xxxii) It is curious to observe that after almost 09 month ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the documents asked for by him, thereby preventing him from making an effective representation against the impugned detention order. xxxvi) A perusal of the grounds of detention impugned in these proceedings reveals that the role assigned to the detenu therein, pursuant to the investigation carried-out, is that IMNPL, in connivance with the detenu, opened a dummy company in the name and style of M/s. M.N. Khan Jewellers (FZE) in UAE in the year 2015 to manage the business interest of IMNPL and other related firms of the company at Dubai. The detenu is a key member of the syndicate and its conduit in UAE and abetted the company in the execution of conspiracy relating to misuse of the Advance Authorization Scheme. In order to fulfil the export obligation under the said scheme, IMNPL hatched a conspiracy, whereby gold jewellery was exported to the detenu s company M/s. M.N. Khan Jewellers (FZE), U.A.E. for exhibition purpose through hand-carry, either by co-detenu Amit Pal Singh or by the detenu himself. The said gold jewellery was subsequently re-imported into India fraudulently. On 24.04.2019 M/s. M.N. Khan Jewellers (FZE) filed declaration before the Federal Customs Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents i.e. (i) Advance Authorisation License, whose Condition 6 was alleged by the DRI to have been violated, stipulating that The exempt goods imported against the authorization shall only be utilized in accordance with the provisions of Paragraph 4.16 of the Foreign Trade Policy 2015-20 and other provisions and the relevant Customs Notification - [Custom Notification 18/2015 dated 01.04.2015 (for physical exports), 21/2015 dated 01.04.2015 (for deemed exports) 22/2015 dated 01.04.2015 (for Advance Authorization for prohibited goods) and 20/2015 (for Annual Advance Authorization) as the case may be] ; and (ii) Statements of Mr. Amit Pal Singh and Mr. Gopal Gupta, the co-detenus and the detenu recorded while in judicial custody during the investigation in the case of M/s Bharti Gems Private Limited, were neither supplied to the detenu nor were made part of Relied Upon Documents but have been heavily relied in establishing Grounds of Detention, thus disabling the detenu from making an effective purposeful and meaningful representation. 5. It was further submitted that by learned Senior Counsel appearing on behalf of petitioner that there has been delay in deciding Represen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that by learned Senior Counsel appearing on behalf of petitioner that the proposal for preventive detention was sent to the Detaining Authority on 02.01.2020 and the meeting of the Central Screening Committee was held on 13.01.2020 and the recommendations of the Central Screening Committee were submitted to the Detaining Authority on 14.01.2020. The Grounds of Detention relies on a rebuttal of retraction application by DRI dated 16.01.2020, which implies that the said document was placed by the Sponsoring Authority before the Detaining Authority only after 16.01.2020 (the said day being a Thursday). It is further a matter of record that the Detention Order and Grounds of Detention for the detenu and the co-detenus i.e. Amit Pal Singh and Gopal Gupta, were passed on 21.01.2020 (the said day being a Tuesday). Accordingly, three detention orders running into some 50 pages each i.e., 150 pages plus the Relied Upon Documents, running into some 6000 pages came to be passed on the same day, which it is difficult to believe was possible for an ordinary human to process. It is thus apparent that the Detaining Authority did not apply its mind on the available material at one time and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned Detention Order was passed. 10. It is also submitted that the gap between October, 2019 and January, 2020 was sought to be explained away by receipt of overseas evidence from Dubai, purportedly in the month of November, 2019, as evident from the counter affidavit filed by the respondents in the pre-execution writ petitions and the dates extracted above. Even otherwise, vide order dated 11.09.2020 passed by this Court dismissing the pre-execution writ petitions, the aspect of delay was dealt with in paragraphs 67-69 wherein this Court analysed the explanation of delay given by the respondents. However, at that stage the petitioner did not have the benefit of the impugned detention orders as the same had not been served upon the petitioner. Upon being served with the impugned detention orders the petitioner learnt that any reference to overseas evidence from Dubai in November, 2019 was conspicuously absent and no such documents were placed before the Detaining Authority. Instead, what emerges from the detention order is that all the material evidence, including overseas evidence, sought to be used against the petitioner was already collected by as early as Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20650. (xi) Jeganath v. Principal Secretary reported as 2017 SCC OnLine Mad 27423. (xii) Avtar Singh v. Union of India Ors. reported as 2013 SCC OnLine Del 3806. (xiii) A.Sowkath Ali v. Union of India reported as (2000) 7 SCC 148. (xiv) P. Saravanan v. State of Tamil Nadu reported as (2001) 10 SCC 212. (xv) Ashadevi v. K Shivraj reported as (1979) 1 SCC 222. (xvi) Union of India v. Ranu Bhandari reported as (2008) 17 SCC 348. (xvii) Sahil Jain v. Union of India reported as 2014 (140) DRJ 319. (xviii) Gimik Piotr v. State of Tamil Nadu reported as (2010) 1 SCC 609. (xix) Rajesh Gulati v. State of NCT of Delhi reported as (2007) 7 SCC 233. (xx) Naresh Kumar Jain v. UOI reported as 2011 SCC OnLine Del 442. (xxi) T.A. Abdul Rahman v. State of Kerela reported as (1984) 4 SCC 741. (xxii) Ahmad Nassar v. State of Tamil Nadu reported as (1999) 8 SCC 473. (xxiii) Order dated 12.04.2021 passed by the Hon ble High Court of Delhi in W.P.(Crl.) No.821/2021. 14. Per Contra, Mr. Amit Mahajan, learned Central Government Standing counsel appearing on behalf respondents would submit that impugned deten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also took an active part in the investigation and issued detailed communications with respect to ongoing investigation vide letter dated 02.09.2019, is misleading and frivolous since CEIB is the nodal agency and as such the information was shared with the DGFT for necessary action in the routine course. Also, the detention order passed against the petitioner and other co-detenus under Section 3 of the COFEPOSA was based on Mr. R.P Singh s independent evaluation and subjective satisfaction as an officer of the Detaining Authority. 18. It has been argued on behalf of respondents that the respondents have followed the law in letter and spirit while issuing the impugned Detention Order. It was submitted that an order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. 19. Further, it is submitted that preventive detention is a suspicious jurisdiction i.e. jurisdiction based on suspicion and an action is taken with a view to preventing a person from acting in any manner prejudicial to certain activities enumerated in the relevant det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Chief Metropolitan Magistrate. Further, the detenu has time and again relied upon the observations made in the bail order dated 03.06.2019 of the learned Chief Metropolitan Magistrate, including in his challenge to the Detention Order at the pre-execution stage vide W.P.(CRL.) No. 1009/2020; however, it is submitted that the granting of bail by no stretch of imagination can be inferred as absolving the proposed detenu of the alleged offence. It is also trite that a Court does not go deep into the merits of the matter while considering an application for bail and only forms a prima facie opinion; however the merits of the matter are to be tested at the stage of trial. It is further submitted that by virtue of COFEPOSA, the respondents have vested powers in them to issue detention order against the petitioner. It is further submitted that grant of bail or its denial is not a ground for quashing of the detention order, as long as the said fact is taken note of by the Detaining Authority and subjective satisfaction is arrived at the propensity of the person to indulge into prejudicial activities. 25. It is further argued that the contention of non-consideration of other do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ponsoring Authority were received on 06.11.2020 and thereafter the matter was referred to the Advisory Board on 10.11.2020. The answering respondents on 02.12.2020 sent copies of the representation of the detenu to the Advisory Board along with the comments on the representation of the detenu, prepared by the Sponsoring Authority. The Advisory Board on 14.12.2020 opined that there exists sufficient cause for detaining the detenu in pursuance to the Detention Order dated 21.01.2020. Thereafter the opinion of the Advisory Board was submitted for necessary approval of the Hon'ble Finance Minister on behalf of the Central Government on 15.12.2020. The approval was received on 21.12.2020 and thereafter the representation was disposed on 23.12.2020 and communicated to the Petitioner on 24.12.2020. Thus, there was no inordinate delay in deciding representation of the petitioner by the Central Government. 30. In support of his arguments, Mr. Amit Mahajan, learned CGSC appearing on behalf of the respondents has relied upon the following decisions:- (i) Union of India Ors. v. Muneesh Suneja reported as [(2001) 3 SCC 92). (ii) Licil Antony v. State of Kerala Anr. repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is bad in law and vitiated on the ground of inordinate delay; d) Whether the impugned detention order is vitiated on the ground of non-application of mind; e) Whether the detaining authority has arrived at its subjective satisfaction without properly appreciating and satisfying itself qua the propensity of the detenu to continue indulging in prejudicial activities; f) Whether there has been delay on the part of the Central Government in deciding the representation filed by the detenu; and lastly g) Whether the detention order stands vitiated owing to the reason that the grounds stated therein have been lifted from the grounds taken in an entirely different case. 32. Insofar as the first issue, viz. whether the Detaining Authority acted independently and without any bias whilst passing the impugned order of detention is concerned; we have considered the rival submissions made before us in the backdrop of the original records and material placed before us in the present proceedings. We have also considered the judgment dated 11.09.2020 passed by this Court at the pre-detention stage in W.P.(CRL.) No. 786/2020 titled Mohd. Nashruddin Khan vs Union of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of the FTP in collusion with IMNPL, in respect of the precious Metals and Jewellery and Advance Authorization Scheme. 37. In this behalf, it is observed that the respondents have not disputed the contents of the aforesaid letter or the circumstance that Mr. R.P. Singh was the author of the said communication. However, the respondents have in their affidavits dated 10.02.2021, taken the stand, that the said letter dated 02.09.2019 was authored by Mr. R.P. Singh .while working in the additional capacity of other vertical i.e. Economic Intelligence of the CEIB .. 38. The petitioner has refuted the said stand by urging that no such distinction is discernible from the said letter itself. It is further submitted by him that in the said affidavit dated 10.02.2021, the respondent has also admitted that the CEIB is headed by a Director General, who is assisted by one Joint Secretary, designated as JS (COFEPOSA). Thus, there is no manner of doubt that the letter dated 02.09.2019 is signed by Mr. R.P. Singh, in his capacity as Joint Secretary and not in any other capacity. In this regard, it is also the submission of the petitioner that Mr. R.P. Singh himself filed an affid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isfaction of the Detaining Authority in the present case stands vitiated. 43. In our view, the powers conferred under Section 3(1) of the COFEPOSA have not been complied with independently in the present case. We are also in agreement with the submissions made by learned Senior Counsel in this behalf that, there is nothing in Section 3 of the COFEPOSA or in the scheme of the Act, which suggests that the especially empowered officer must act only on receipt of the proposal of some other agency or Sponsoring Authority . In fact the expression Sponsoring Authority and Detaining Authority find no mention in the statute. 44. In this behalf, it is therefore observed that there was nothing that prevented Mr. R.P. Singh, whilst acting as J.S. (COFEPOSA), from passing the impugned order of detention at the first opportunity. Resultantly, in our view, the argument of pre-determined approach and bias stands established in the present case. 45. Our view is elucidated appositely by the decision of the Hon ble Madras High Court in Madasamy vs. Secretary to Govt. Ors., reported as 2016 SCC OnLine Mad 20650 a nd in particular paragraphs 41 to 43 of the said report, wherein it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts that are considered whilst forming the subjective satisfaction, are provided to the detenu by the Detaining Authority, so as to enable the detenu to make an effective representation to the Advisory Board, as well as to the Detaining Authority. Therefore, the non-supply of legible copies of all relevant documents inspite of a request and representation made by the detenu for the supply of the same, renders the order of detention illegal and bad; and vitiates the subjective satisfaction arrived at by the Detaining Authority. 48. In our considered view, therefore, the supply of the following documents namely, a) Passport, b) Identity Cards of codetenu s, c) WhatsApp chats, d) bill of entry, e) invoice, f) the statement of Mr. Rohit Sharma who is alleged to have defaced the gold bars imported illegally etc. was critical, in order to enable the detenu to make a comprehensive, holistic and effective representation against the impugned detention order, both before the Advisory Board, as well as before the Detaining Authority. 49. In the present case, the denial by the official respondent to supply legible copies of the relevant documents to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion against the order. Therefore, it is imperative that the detaining authority has to serve the grounds of detention which include also all the relevant documents which had been considered in forming the subjective satisfaction by the detaining authority before making the order of detention and referred to in the list of documents accompanying the grounds of detention in order to enable the detenu to make an effective representation to the Advisory Board as well as to the detaining authority. Therefore, the non-supply of legible copy of this vital document i.e. panchnama dated 12-2-1988 in spite of the request made by the detenu to supply the same renders the order of detention illegal and bad. This Court in Mehrunissa v. State of Maharashtra [(1981) 2 SCC 709 : 1981 SCC (Cri) 592 : AIR 1981 SC 1861] has observed that: (SCC p. 710) The detenu was entitled to be supplied with copies of all material documents instead of having to rely upon his memory in regard to the contents of the documents. The failure of the detaining authority to supply copies of such documents vitiated the detention, as has been held by this Court in the two cases cited by counsel. The detenu is, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuments in this regard were placed before the Detaining Authority. As a matter of fact, what emerges from the detention order, is the position that all the material evidence, including the purported overseas evidence, sought to be relied upon against the petitioner, had already been collected, as early as in July, 2019, as is clear from the record, and had already culminated into the issuance of Show Cause Notice dated 26.09.2019. Therefore, it is apparent that the stand taken by the respondents qua the receipt of overseas evidence from Dubai in November, 2019 was merely window-dressing, used to cover-up the massive delay that transpired from the time of issuance of the said Show Cause Notice dated 26.09.2019 and the proposal of detention being issued in January, 2020 and that the same is specious and untenable. In these circumstances, the question of delay assumes relevance and is germane and requires de novo consideration by this Court. 57. Having perused the impugned order of detention, as well as, the grounds of detention, it is observed that although it was urged before this Court by the respondents at the pre-execution stage about the overseas evidence received from Dubai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxxx xxxx xxxx xxxx xxxx 27. As regards the second contention, as rightly pointed out by the learned counsel for the appellant, the delay in passing the detention order, namely, after 15 months vitiates the detention itself. 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. Though there is no hard-and-fast rule and no exhaustive guidelines can be laid down in that behalf, however, when there is undue and long delay between the prejudicial activities and the passing of detention order, it is incumbent on the part of the court to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a reasonable and acceptable explanation as to why such a delay has occasioned. 28. It is also the duty of the court to investigate whether causal connection has been broken in the circumstance of each case. We are satisfied that in the absence of proper explanation for a period of 15 months in issuing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion order was quashed by the High Court at the pre-detention stage and consequently, the Supreme Court observed that the same was not a fit case for the issuance of any writ of habeas corpus but for certain other types of reliefs and, therefore, the matter was examined as any other ordinary writ petition. In this behalf, the Hon ble Supreme Court held as under in the concluding paragraph:- In addition, we may also notice that the order made by us will not prejudice the interest of the respondent that in the event the said order of detention is given effect to, it is open to the respondent to raise all grounds as are permissible in law notwithstanding what we may have observed in the course of this order. 64. A plain reading of the paragraph extracted above leaves no manner of doubt that the detention order may be quashed at the post execution stage, even though it has not been quashed at the pre-detention stage. It leads to but one inescapable conclusion that considerations while examining the validity of detention order at post-detention stage can be different from the considerations that obtain at the time of examining such an order at the pre-detention stage. 65. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay in passing the detention order was considered satisfactory in the facts and circumstances of Licil Antony (supra). However, in the present case, as elaborated hereinabove, there has been no satisfactory explanation forthcoming as to why there was delay of more than 08 months on the part of the Sponsoring Authority in issuing a proposal for the detention of the petitioner. 71. Even in Licil Antony (supra), the Hon ble Supreme Court in paragraph 09 thereof observed that the delay in issuing order of detention, if not satisfactorily explained, itself is a ground to quash the order of detention. It is in these circumstances that we are of the view that the decision relied upon by the respondents do not support their contentions in the present case. 72. Mr. Amit Mahajan, learned Central Government Standing Counsel appearing on behalf of the respondent, has vehemently argued that the question of delay in relation to the passing of the detention order cannot be re-agitated in these proceedings, since that aspect had already been dealt with by this Court in Mohd. Nashruddin vs. Union of India Ors., W.P.(CRL.) No.786/2020 decided on 11.09.2020, wherein it was held that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, however, that the Detaining Authority did not consider the circumstance that the detenu, and the co-detenus and others, whose statements formed the basis of the grounds of detention, had long since retracted their statements. In this behalf, the impugned order of detention makes only a passing reference to the circumstance that the DRI had issued rebuttals to the said retractions on 16.01.2020, barely five days before passing the subject order. This circumstance highlights the considerable gap of time between the retraction of the statements by the detenu and codetenus, and rebuttal thereof by the DRI. This belated rebuttal on the part of the official respondents was relevant and merited consideration by the Detaining Authority, particularly when extensive reliance was evidently placed upon those statements. The Detaining Authority would also have been well-advised to consider the aspect of admissibility of the statements, which stood retracted; and were only rebutted by the Sponsoring Authority, a few days before the passing of the impugned order of detention. Further, we find from the record of the Detaining Authority that strong reliance has been placed upon the statement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the details of the confessional statement of another co-accused in the present case? If the sponsoring authority would not have placed this then possibly no legal grievance could have been made by the detenu. But once the sponsoring authority having chosen to place the confessional statement, then it was incumbent on it to place the retraction also made by them. In our considered opinion, its non-placement affects the subjective satisfaction of the detaining authority. This Court has time and again laid down that the sponsoring authority should place all the relevant documents before the detaining authority. It should not withhold any such document based on its own opinion. All documents, which are relevant, which have bearing on the issue, which are likely to affect the mind of the detaining authority should be placed before him. Of course a document which has no link with the issue cannot be construed as relevant. 79. In a similar vein are the observations of the Hon ble Supreme Court in P. Sarvanan vs. State of T.N. and Others, reported as (2001) 10 SCC 212 and in particular paragraphs 7, 8 and 9 thereof. The said paragraphs as extracted hereinbelow:- 7. When w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etention was made on September 10, 1973 under Section 3(2)(a) of MISA based on the subjective satisfaction of the District Magistrate that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community and this subjective satisfaction, according to the grounds of detention furnished to the petitioner, was founded on a solitary incident of theft of aluminium wire alleged to have been committed by the petitioner on April 14, 1973. In respect of this incident of theft a criminal case was filed inter alia against the petitioner in the Court of the Sub-Divisional Magistrate, Asansol, but the criminal case was ultimately dropped as witnesses were not willing to come forward to give evidence for fear of danger to their life and the petitioner was discharged. It appeared clear on record that the history-sheet of the petitioner which was before the District Magistrate when he made the order of detention did not make any reference to the criminal case launched against the petitioner, much less to the fact that the prosecution had been dropped or the date when the petitioner was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 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. 34. In the said circumstances, we do not see any reason to interfere with the judgment and order of the High Court and the appeal is accordingly dismissed. 35. In parting, we may reiterate what we have indicated hereinbefore, that since the personal liberty and individual freedom of a citizen is curtailed by an order of preventive detention, the detaining authorities must apply their minds carefully and exercise great caution in passing such an order upon being fully satisfied from materials which are both for and against the detenu that such an order is required to be passed in the interest of the State and for the public good. 82. The reliance placed by the respondent on the decision of the Hon ble Supreme Court in Madan Lal Anand vs. UOI, reporte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 21.06.2019, issued by the DRI; which note was never placed before the Detaining Authority. 87. Also the factum of suspension of Vikram Bhasin, the co-accused, who was the Jewellery Appraiser, was neither placed before nor considered by the Detaining Authority. It this behalf, it would be pertinent to observe that it was the case of the Sponsoring Authority itself that ''The role of Vikram Bhasin was so crucial since without his collusion, the smuggling of Gold could not have been possible . It was, therefore, incumbent upon the DRI to place the suspension order qua Vikram Bhasin for its due consideration of the Detaining Authority. 88. Lastly, the Detaining Authority did not consider the conduct of the detenu, post his enlargement on bail whilst rendering the impugned order of detention, since despite the release of his passport and the granting of the requisite permission to travel abroad, the detenu voluntarily chose not to travel overseas, clearly and unequivocally establishing his bona fides and debunking the arguments of his propensity to continue to indulge in prejudicial activities in the immediate future. This was never brought to the notice of the Detaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documents to be placed before the Advisory Board. 17.2. If the representation is received just before the reference is made to the Advisory Board and there is not sufficient time to decide the representation, in terms of law laid down in Jayanarayan Sukul [Jayanarayan Sukul v. State of W.B., (1970) 1 SCC 219 : 1970 SCC (Cri) 92] and Haradhan Saha [Haradhan Saha v. State of W.B., (1975) 3 SCC 198 : 1974 SCC (Cri) 816] the representation must be decided first and thereafter the representation and the decision must be sent to the Advisory Board. This is premised on the principle that the consideration by the appropriate Government is completely independent and also that there ought not to be any delay in consideration of the representation. 17.3. If the representation is received after the reference is made but before the matter is decided by the Advisory Board, according to the principles laid down in Haradhan Saha [Haradhan Saha v. State of W.B., (1975) 3 SCC 198 : 1974 SCC (Cri) 816], the representation must be decided. The decision as well as the representation must thereafter be immediately sent to the Advisory Board. 17.4. If the representation is received af ..... X X X X Extracts X X X X X X X X Extracts X X X X
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