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TMI Blog2022 (1) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... to make an order of detention under section 3(1) of the Act. The impugned order has been challenged on the ground that infringes his fundamental rights enshrined under Article19, 20 and 21 of the Constitution of India, that the order suffers from illegalities and procedural irregularities and thus is liable to be set aside. Further the subjective satisfaction of the detaining authority in issuing the order of detention is totally vitiated due to non-consideration of the relevant materials, total non application of mind to the relevant material and absence of live link between the instance of alleged smuggling activities and the date when the order of detention was issued. It is further contended that the detaining authority failed to apply the mind into the materials made available before him as there was no material which could be the basis of arriving at a subjective satisfaction, that those materials did not constitute the ingredients of exercise of powers under section 3(1) of the Act. It is submitted that relevant materials such as retraction statements of the detenue as well as of other persons, bail petitions, relevant statements of primary witnesses, reply to the show caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unds:- (i) There is no live link between the incidents of alleged smuggling activities and the date on which the order of detention was issued (ii) Subjective satisfaction for formation of opinion in issuing detention of order under Section 3(1) of the Act has been completely vitiated. (iii) Non-consideration of relevant materials by and/or non- disclosure of relevant materials before the Detaining Authority. (iv) Refusal to supply additional documents and the legible copies of some relied upon documents thereby denying proper opportunity to the detenue to make effective representation. (v) Cryptic and delayed consideration of representations of the detenue by the Central Government. 3. The Learned Counsel elaborated on the above grounds by raising the following contensions:- (i) It is submitted that from the grounds of detention it is seen that the order is passed based on two cases one is the subject matter of Case No. 136 of 2018 and the other in Case No. 19 of 2019 both on the file of the Chief Metropolitan Magistrate, Calcutta. So far as the first case, the allegation pertain to certain fraudulent exports made by different firms to Bangladesh without any goods bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... live link is absent it must be taken to have been snapped and the detention is vitiated. The detention order which is founded on stale incidents must be regarded as an order of punishment for a crime, passed without a trial though purporting to be an order of preventive detention. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent from doing it. Further it is submitted that this Court while reviewing, the detention order will not substantiate its judgment for the decision of the executive, nonetheless the court will enquire whether the decision of the executive is made upon matters laid down by the statue as relevant for reaching such a decision. This is so because what is at stake is the personal liberty guarantee the detenue by the constitution which cannot be deprived except for reasons laid down by law and for a purpose sanctioned by law. Further the case of stale incidents in the detention order is too pernicious to be ignored and the order must therefore go both on account of being vitiated due to malice in law and for taking into account matters which ought not to have been taken into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority under the Customs Act were not considered by the detaining authority in formation of his opinion for arriving at a subjective satisfaction about necessity to issue the order of detention, and none of these document (bail order) was placed before the detaining authority by the sponsoring authority. Further it is submitted that the manipulated documents were placed before the detaining authority which will go to show that the relevant material have not been placed before the detaining authority in proper form. The Learned Counsel had referred to a list of 12 documents pertaining to both the cases referred to in the order of detention and submitted that these documents were not disclosed before the detaining authority. Emphasis was laid on the retraction statements of the detenue and that of the other persons who are also charged along with the detenue and it is submitted that the retraction was not considered especially when the retraction was made before the Learned Chief Judicial Magistrate. It is submitted that the detenue had stated that statement was obtained from him by cohesion and if the statement given by the detenue is to be relied on by the authority then the retract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the detaining authority. In support of the aforementioned contension the Learned Counsel placed reliance on the decisions in the case of Sita Ram Somani Vs. State of Rajasthan and others (1986) 2 SCC 86, Ahmed Nassar Vs. State of Tamil Nadu and Others (1999) 8 SCC 473, Union of India Vs. Ranu Bhandari (2008) 17 SCC 348, Ayya Alias Ayub Vs. State of U.P and Another (1989) 1 SCC 374 and Pallavi Vinod Patni Vs. State of Maharashtra and others, (2001) Cr LJ 3197. As mentioned above these decisions were to support the arguments that if materials or vital facts which were in 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 not considered by the detaining authority it would vitiate its subjective satisfaction rendering the detention order illegal. These decisions have also been relied on for the proposition that all documents irrespective of whether they are against the detenue or in his favour and whether detenue had engaged thereof or not must be furnished to the detenue to enable him to make an effective representation in exercise of his rights under Article 22 (5) of the Constitution. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f fraudulent attempt either to evade duty through mis- declaration or to earn undue export benefits through mis-declaration of the export products. It is submitted that upon thorough investigation by DRI it was found that the detenue is involved in two cases namely with regard to the fraudulent export consignment with claim of refund of IGST and other export benefits through Petrapole Land Customs Station and the other is smuggling of high value foreign origin black pepper abusing the facilities under the Indo-Nepal Treaty on Trade and Transit. 5. With regard to the first case, it is submitted that group of persons were involved in the conspiracy for making undue enrichment through IGST refunds and other export benefits and the main person in the syndicate is the detenue and one other person running office of Petrapole LCS and working under a Customs broker. All these persons in collusion with some officers of Customs at Petrapole LCS have formed a syndicate and perpetrating the fraud over a period of time by preparing false documents such as forged purchase orders, forged exports invoices etc. and based on the same shipping bills were filed which would have been processed for exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bject to conditions. It is further submitted that in the order dated 13.12.2018 Learned Chief Metropolitan Magistrate mentioned that prayer has been made on behalf of the detenue for retraction of statement given to DRI. The Court recorded that the detenue is at liberty to do so by filing appropriate petition duly attested by the lockup in-charge. The respondent would state that no such petition was ever forwarded to DRI by the detenue. Further it is submitted that the statement given by the Sujit Swarnakar alias Mantu, Sajal Swanakar, Partha Mishra, Subhashis Das alias Sovon and Manish Kumar Jain which were referred to and relied on were not retracted before the DRI. It is submitted that the detenue has claimed that only on 05.03.2021 on the first meeting before Central Advisory Board, it was stated that the statement was retracted before the Learned Chief Metropolitan Magistrate immediately after their arrest. However, all the said persons in their statement which was recorded by the DRI under section 108 of the Customs Act reiterated their earlier statements and did not mention anything about retractions of earlier statements. This subsequent statement was recorded in the corre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the advisory board rendered its opinion which was considered by the Central Government and the order of detention was confirmed vide order dated 08.04.2021. It is reiterated that no petition for retraction of the statement, as averred, had been provided to the DRI either by the Lower Court or by the person who retracted the statement. It is further submitted that none of the affidavits of either the detenue or Partha Mishra or Subhashis Das bears any date though all of them are signed by the lock up in charge on 13.12.2018. Further the purported petition of the detenue praying for acceptance of retraction petition is without any date and signature. It is further submitted that with regard to the retraction petition filed by the detenue and two others the Learned Chief Metropolitan Magistrate in his order dated 13.12.2018 has recorded the prayer made on behalf of the accused for retraction of statement given to DR Iand ordered that they are at liberty to do so by filing appropriate petition duly attested by the lock up incharge. It is submitted that this fact has not been suppressed and it is part of the relied upon documents, 4B of the ground of detention. Further it has been disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order sheet which was made available from the concerned court. Further with regard to the supply of incomplete Cross Border Register it is submitted that the purpose for which the concerned page was supplied is to establish that fraudulent export consignment of Segahox Enterprises is tagged with a genuine bill of export in an attempt to show that the export was effected, and the same is evident from the copy CBC register at Page 229 RUD 11 of grounds of detention. According to the respondent this establishes fraudulent export of Segahox Enterprises which was tagged with a genuine bill of export and which has been specifically discussed in paragraph (ii) and (u) on the grounds of detention. On the above grounds the respondent seeks to sustain the order of detention. 7. The Learned Additional Solicitor General submitted that there has been no actual withdrawal of the statements of the detenue and the prayer for filing retraction petition by the detenue was noted and from the order dated 13.12.2018 passed by the Learned Chief Metropolitan Magistrate, it is seen that the detenue was granted liberty to file appropriate petition for retraction of his statements. However, no such petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior to 18.02.2021 and the representation was made 26 days after detenue received the relied upon documents which was supplied to him on 23.01.2021. Therefore, the representation is only to delay the proceedings and lacks bonafide. Further, in the representation dated 27.02.2021 legible copies of certain documents have been sought for. These documents are hand written documents and merely because they are hand written it cannot be said to be illegible and perusal of the documents would show that they are readable and this is clear from the written submission filed before the Advisory Board on 05.03.2021. Further the contention in the written submissions filed before this Court that reference is made only to readable portion of these documents is incorrect as the detenue was fully aware of the contents of the documents which he states to be illegible. Furthermore, the representation dated 27.02.2021 was submitted after more than one month after relied upon documents were supplied and therefore, intention of the detenue is to delay the proceedings before the Advisory Board. The representations were considered by the authorities by duly applying their mind and there is nothing to indic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same be sustained. In support of his contention the Learned Additional Solicitor General placed reliance on the decision of the Hon'ble Supreme Court in Union of India Vs. Ankit Ashok Jalan, 2020 (16) SCC 185, Haradhan Saha Vs. State of W.B & Ors., 1975 (3) SCC 198, Union of India Vs. Paul Manickam & Anr., 2003 (8) SCC 342, Jamseena Vs. Union of India, 2021 SCC Online Kerala High Court 3572, Gajanan Krishnan Yalgi Vs. Emperor, AIR 1945 Bombay 533 (DB), Kacharu Ram Vs. District Magistrate, AIR 1966P&H 399 (FB), Surjeet Singh Chhabra Vs. Union of India & Ors., 1997 89 ELT 646, State of T.N Vs. Abdullah Kadher Batcha & Anr. 2009 (1) SCC 333, Rameshwar Shaw Vs. District Magistrate, Burdwan & Anr., AIR 1964 SC 334, Union of India & Anr. Vs. Dimple happy Dhakkad,2019(20) SCC 609, and Gautam Jain Vs. Union of India, 2017 (345) ELT 586 (SC). 8. We have elaborately heard the Learned Counsels for the parties and carefully perused the materials placed on record. 9. The Hon'ble Supreme Court in Haradhan Saha (supra) elaborately explained the concept of preventive detention to mean that the detention of a person is not to punish him of something he has done but to prevent him from doing it. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered relevant, having regard to the past conduct which in the light of the surrounding circumstances and other relevant materials and arrived at the conclusion that the detenue is likely to act in a prejudicial manner as contemplated in any of the sub clauses (i) (ii) (iii) of Clause 1 by sub section 1 of Section 3 (of the Act) and if so whether it is necessary to detain him with a view to prevent him from so acting. These are essentially matters which have to be administratively decided by objective standards and they are essentially matters which is to be administratively determined for the purpose of taking administrative action. 12. In Suman Vs. State of Tamil Nadu AIR 1986 Madras 318, it was held that proceeding under COFEPOSA Act are neither judicial or quasi-judicial character nor are they of criminal or quasi-criminal character. The jurisdiction to detain by way of preventive detention is a jurisdiction of suspicion and not based on proof of any offence or act beyond all reasonable doubt. It is further held that there cannot be a parallel between prosecution in a Court of Law and a detention under COFEPOSA Act. Further the principles of Evidence Act is foreign to the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onable satisfaction of the necessity for detention in the interest of public safety or maintenance of public order, for the purpose of detention it is enough if the Government or any officer duly empowered is reasonably satisfied of the necessity of his detention and there can be no benefit of doubt, since the public safety and maintaining of public order are para-mount concern of the Government. 14. Before we examine the factual matrix, we need to take note of the following decisions as well. In the Radhakrishnan Prabhakaran Vs. State of Tamil Nadu, (2000) 9 SCC 170, it has been held that there is no legal requirement that a copy of every document mentioned in the order (detention order) shall inevitably be supplied to the detenue and what is important that the copies of only such of those documents as have been relied on by the detaining authority for reaching the satisfaction that preventive detention of the detenue is necessary and shall be supplied to him. The said view was reiterated in J. Abdul Hakeem Vs. State of Tamil Nadu (2005) 7 SCC 70, and in Sunila Jain Vs. Union of India (2006)3 SCC 321, following the said decision in the case of Abdullah Kadher Batcha (supra) it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive in nature and the court cannot substitute its opinion for the subjective satisfaction of the detaining authority and interfere with the order of detention. However, it does not mean that subjective satisfaction of the detaining authority is immune from judicial review and by various decision of the Hon'ble Supreme Court certain areas have been carved out within which the validity of subjective satisfaction can be tested. 17. Bearing the above legal principles in mind we now proceed to move on and consider the arguments of the Learned Counsel for the petitioner which are under 5 heads as mentioned above. 18. The first argument was regarding the absence of a live link between the alleged incidents of smuggling activities and the date of the order of detention. The petitioner would contend that two cases have been referred to in the grounds of detention and the first case where there is an allegation of improper availment of refunds of IGST without actual physical export of goods the matter which took placed one year prior to the order of detention and the same cannot be construed to have any live link with the order of detention. Further the allegations in the second case perta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he exports attracted 28 % GST and that he received 40 % GST refunds on the exports as commission from Manish Jain who used to send him documents. This is also part of the relied upon documents. Similarly, statement was recorded from one Sujal Swarnakar under section 108 of the Act on various dates from 17.12.2018 to 23.02.2020,he has spoken about the tagging of the shipping bill with other documents for clearance without actual physical exports of goods. On 25.09.2019 another statement was recorded from the detenue under section 108 of the Act wherein he has candidly accepted that he has gone through the statement made by him under section 108 of the Act on 12.12.2018 and signed the statement. Further the detenue accepted that he has been investigated by the DRI in five cases by during 2010, 2012, 2017, 2018, and 2019. This statement of the detenue forms part of the relied upon documents. Statement was recorded from Arvind Rana under section 108 of the Act from 25.06.2019 to 31.10.2019 who has stated that he had opened the doors of the Nepal Bound Container without tampering the customs seals and replaced the black pepper with plywood and then closed the doors of the container. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lable on record so as to indicate that all the past events are sufficient to form an opinion by the detaining authority to pass the order of preventive detention against the detenue. 20. The cases which have been noted in the Grounds of detention are proximate in time, especially when in one of the cases the investigation is still in progress. Hence the ground cases referred are neither stale nor irrelevant and are proximate. The other argument was that though in the order of detention it has been stated that the detenue has been detained to prevent him from doing smuggling activities there is no such averment/allegation in the grounds of detention. The said contention is liable to be rejected on several grounds. Firstly, the definition of smuggling as defined under section 2(39) cannot be read in isolation. The same has to be read along with section 111 and 113 of the Act. Clause (a) (g) (h) (i) (j) of Section 111 brings within its ambit unloading of dutiable goods when being transported etc. which would fall within the detention of smuggling as defined under section 2(39). The second case, namely black pepper case, is a clear case of smuggling. Similarly, Clauses (h) and (i) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority. In this regard, the Learned Counsel for the petitioner had elaborately referred to various petitions presented by the detenue as well as petition presented on his behalf and the orders passed by the Learned Chief Metropolitan Magistrate. To examine the correctness of the said contention advanced on behalf of the detenue, we have to note certain facts. The order passed by the Learned Chief Metropolitan Magistrate dated 13.12.2018 clearly shows that there was no petitions filed by the detenue for retraction of the statement given by him on 12.12.2018 under section 108 of the Act. The Court has recorded that the detenue along with other accused would be at liberty to file appropriate petition for retraction of the statement. Therefore, as on 13.12.2018 there was no petition on the file of the Court below recording any retraction. If such is the factual position, the detenue has to demonstrate before us that the retraction petition was filed and the date of filing of such petition and more importantly that the retraction petition was served on the detaining authority or the sponsoring authority. If that has not been established by the detenue the detenue can never plead that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the detenue and his son were mechanically rejected, therefore, the order of detention is bad in law. From the copies of the documents which was sought for by the detenue we find that he had sought for certain copies of shipping bills in accordance with Section 65B of the Evidence Act. Such provision is inapplicable in case of preventive detention as has been held in decisions we have noted above. Therefore, no such certification under section 65B is required. The demand for copies of summons appears to be irrelevant as, what was relied on is the statement and not the summons. Therefore, non-supply of copies of summons can cause no prejudice to the detenue. With regard to the material which was seized from Global Exim Logistics is concerned we find that the panchnama and seizure list forms part of the relied upon documents and further in the grounds of detention the detaining authority has made only a narrative of the facts based on the seized documents and they are not documents based on which the subjective satisfaction has been recorded. However, we find that the seized shipping bills relating to the detenue's case are part of the relied upon documents. Similarly, the enquiry r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived any representation from the detenue. Even after receipt of the letter dated 17.02.2021 from the detaining authority, the detenue submitted his representation only on 27.02.2021. The delay on the part of the detenue remains unexplained and would work against the detenue. This is also amplified from the fact that the representation dated 27.02.2021 is after more than a month after the relied upon documents were served on the detenue. As noted the representation does not refer to any alleged retraction of the statements recorded under Section 108 of the Customs Act either by the detenue or the co-accused in both cases. Therefore, the fourth contention raised on behalf of the detenue stands rejected. 23. The fifth and the last contension raised by the Learned Counsel for the petitioner is with regard to the manner in which the representations were considered. The concerned authority has taken note of the representations and has sent reply to the detenue as well as to the son of the detenue that the same are not feasible of consideration. Obviously, the authority cannot be accepted to write a judicial order and if the reply sent to the detenue shows application of mind on the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under investigation by DRI since 2010. The statements of the co-acused which remain untouched clearly implicate the detenue. The role of the co-detenue based on which he was detained are distinguishable. In any event it is not for this Court to substitute its views to that of the satisfaction recorded by the detaining authority. On careful examination of the facts before us, we are of the clear view that the decision in the case of Naveen Kasera alias Naveen Agarwal, rendered by the High Court of Delhi can be of no assistance to the detenue before us. The Learned Counsel for the detenue placed reliance on the decision in Pooja Batra (supra) on the issue of subjective satisfaction. In the said case the Hon'ble Supreme Court found that on the date of passing the detention order the import of the subject consignment was at the stage of notice calling for re-opening the issue, which was held to be not valid material for passing an order of detention. The facts of the present case, which we have elaborately set out above presents a different picture altogether. More importantly, in the case on hand the investigation of one of the ground cases, is in progress. Hence the detention is dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -supply of documents sought for is a ground to set aside the order of detention. In the said decision the Hon'ble Supreme Court on facts found refusal to supply relevant documents prevented him from making an effective representation, thereby infringing his right under Article 22(5) of the Constitution. In the preceding paragraph we have assigned reasons as to how the documents sought for by the detenue are irrelevant as they are not documents based on which the detaining authority recorded satisfaction. The demand for legible copies has also been, on facts, held to be not justified, particularly noting the conduct of the detenue. Hence this decision is distinguishable on facts. 23.(H). Similarly the decision in Thahira Haris is also distinguishable on facts wherein admittedly relied upon documents were not supplied to the detenue, which is not the case before us. Equally the decision of this Court in Ruma Moitra would not apply to the case on hand, as on facts the court concluded that the entire factual material considered by the detaining authority were not furnished to the detenue but only the inferences of the facts arrived at by the detaining authority. 23.(I). Now we deal w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that a Court does not substitute its judgment for the decision of the executive nonetheless the Court has a duty to enquire that the decision of the executive is made upon matters laid down by the statute as relevant for reaching such a decision. (vi) In Khaja Bilal Ahmed, the order of detention was quashed as on facts it was found there was absence of a clear indication of a casual connection, a mere reference to pending criminal cases cannot account for the requirements of Section 3 of the Customs Act. 23.(J). In the earlier part of the judgment we have in extenso set out the facts which undoubtedly go to show that the order of detention impugned in this writ petition is based on a reasonable prognosis of the future behavior of the detenue and the surrounding circumstances. The live and proximate link is writ large on the face of the materials placed before the detaining authority which clearly shows that considering the past conduct of the detenue even after the first case there is imperative need to detain him under Section 3 of the Act. Hence the decisions relied, on facts, does not in any manner assist the case of the detenue. 24. In the result we hold that there exist ..... X X X X Extracts X X X X X X X X Extracts X X X X
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