TMI Blog2022 (1) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... ng it. The basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenue acting in a manner similar to his past acts and preventing him by detention from doing the same. Further it has been held that a criminal conviction is for the act already been done which can be possible by a trial and legal evidence and there is no parallel between prosecution in a Court of Law and detention order under the Act as one is punitive action and the other is the preventive act - it has been held that Article 14 is inapplicable because preventive detention and prosecution are not synonymous as the purposes are different and the authorities are different. In prosecution, the accused is sought to be punished for a past act and in preventing detention the past act is merely the material for interference about the future course of probable conduct on the part of the detenue. The contention of the Learned Counsel for the petitioner that the cases which are basis for the detention to have no live link has to be rejected. Of the two cases black pepper case has concluded holding the detenue guilty for violating the provisions of Customs Act. With re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey .......for the Respondent No. 4 JUDGMENT (Judgment of the Court was delivered by T.S.SIVAGNANAM, J.) 1. The petitioner is the son of the detenue who has been detained under Section 3(1) of the Conservation of Foreign Exchange Prevention of Smuggling Activities Act 1974, [the Act], by order of detention dated 15.01.2021.The said order states that the appropriate authority is satisfied that with a view to prevent the detenue from smuggling of goods, abetting the smuggling of goods and dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods in future, it is necessary 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 abs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first case it is apparent that some of the customs officers were involved in the alleged fraudulent exports but none of them have been detained. Thus, it is contended that the order of detention is in gross violation of the fundamental rights of the detenue as guaranteed under the Constitution of India. With these grounds and referring to certain specific instances and factual details, the order of detention has been challenged. 2. Mr. Sagar Bandopadhyay, Learned Counsel appearing for the appellant assisted by Mr. Arijit Chakraborty, Learned Counsel in their oral submissions challenged the order of detention on the following grounds:- (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 oppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 SCC 339 (3) (2020) 13 SCC 632 (4) (2018) 12 SCC 150 (5) (2006) 4 SCC 796 (6) (2020)16 SCC 127, Reliance was also placed on the decision of the High Court of Delhi in W.P. Criminal (CRL)630 of 2021 dated 30.09.2021 Naveen Kasera alias Naveen Agarwal Vs. Union of India Ors. pertaining to a co-detenue. These decisions have been referred to support the argument that the detention order must be passed on a reasonable prognosis of the future behavior of a person based on his past conduct in the light of the surrounding circumstances. The live and proximate link must exist between the past conduct of person and the imperative need to detain him and if such 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as bad in law. To support such detention reliance was placed on the decision in Pooja Batra Vs. Union of India (2009) 5 SCC 296, for the proposition that the subject of satisfaction of the detaining authority must be genuine and akin to its objects. Reliance was placed on the decision in the Moulana Sham Shunnise Vs. Addl. Chief Secretary, (2010) 15 SCC 72. (iii) With regard to the argument pertaining to non-consideration of relevant material and/or non-disclosures of relevant material before the detaining authority, it is submitted by the Learned Counsel that several documents which were part of case-records lying before the Chief Metropolitan Magistrate, Calcutta and the Adjudicating Authority 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 detainin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned Counsel submitted that the bail order which was one of the relied upon documents is a manufactured and concocted document. In this regard, the Learned Counsel has drawn our attention to Pages 380 and 381 of the informal paper book volume 3 and submitted that the document which was placed before the detaining authority is a concocted document. Further it is submitted that the second bail petition of the detenue has not been referred to in the order of detention. Therefore, it is submitted that the order of detention is liable to be quashed on ground of non-consideration of relevant materials and non-disclosure of relevant material before the detaining authority and placing concocted document 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CEIB for the Central Government and they were rejected only on 09.04.2021 nearly after 30 days, which is violative of Article 22 of the Constitution of India. On the above grounds, the Learned Counsel sought for setting aside the order of detention. On the above grounds the petitioner seeks for setting aside the order of detention. 4. The respondent would contend that the detenue was running the business of freight forwarding in Calcutta and behind the facade of the said business he has been found to be involved in several case of defrauding the Government of its legitimate dues which was detected by the DRI, Kolkata Zonal Unit. Investigation revealed that the detenue had played a pivotal role in the case of 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s charges for getting the documents processed by Customs. The statements of the other persons namely Sovan, Parth Mishra, Manish Kumar Jain, Sujit Swarnakar alias Mantu, Sajal Swarnakar were also referred. Further it is stated investigation has revealed that different layering is designed to keep the detenue away from the persons who actually handle the processing of documents for exports. It is further submitted that considering involvement of the detenue, he was arrested on 12.12.2018 for offences punishable under section 132 and 135 of the Customs Act and was produced before the Learned Chief Metropolitan Magistrate, Calcutta on 13.12.2018 and he was remanded to judicial custody on 28.12.2018, the detenue was released on bail subject 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is submitted that there are sufficient materials to indicate that it is the detenue who played a vital role in smuggling of goods using fraudulent export documents and therefore, there was a need for detention of the detenue under the provisions of the COFEPOSA Act with a view to prevent him from smuggling of goods, abetting of smuggling goods and dealing in smuggled goods and otherwise than by engaging in transporting or concealing or keeping smuggled goods in terms of Section 3(1) of the Act. Thus, there is need to immobilize the detenue by passing the order of detention with a view to prevent him from smuggling of goods or abetting of smuggling goods. The detenue was heard by Advisory Board where he was represented by Counsel and 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reiterated their previous statements given on 17.12.2018, 20.12.2018, 24.12.2018, 01.03.2019, 15.05.2019, and 05.12.2019. Further it is submitted that the representation of the detenue were duly considered by the respective competent authorities and disposed of bearing in mind the direction of the Hon ble Supreme Court in Case of Golam Biswas Vs. Union of India Criminal Appeal No. 829 of 2015.Further it is submitted that legible copies of all the documents mentioned had already been received by the detenue and further seeking the same again is a ploy to create road blocks to the detention. Further the allegations that fabricated copy of the bail order was placed as a relied upon documents is absolutely false and what was placed was the 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 groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought for in accordance with Section 65 B of the Evidence Act, 1872, however, such certification is not necessary. Further, supply of copies of summons would in no manner affect the detenue to make representations and what is relevant is the voluntary statement. With regard to the photocopies of the Cross Border Register, it has been referred to by the detaining authority to show that there was export only on paper without physical delivery of goods and therefore, the other records are not relevant. Furthermore, it is submitted that there is no averments in the representation dated 18.02.2021 that any of the documents supplied in the compilation of relied upon documents are illegible or missing. Furthermore, no representation was made prior 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 illegi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation is 5 years under section 28(4) of the Customs Act. Therefore, it is submitted that investigation is yet to be completed and pursuant to the investigation from 10.12.2018 incriminating material have been found against the detenue so as to justify his detention. Thus, subjective satisfaction as to the future conduct of the detenue is to be arrived at by looking at his antecedents which are proximate in time. Further it is submitted that the grounds of detention or severable in nature and even if one ground is substantiated the order of detention could be confirmed. The respondent authorities have established all the grounds of detention which have been mentioned and therefore, the order of detention is valid and it is prayed that the 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 53 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eventive justice requires an action to be taken to prevent the apprehended objectionable activities. Further it has been held that the scope of review of order of detention by the High Court is limited and while dealing with Habeas Corpus application undue importance is not to be attached to technicalities but at the same time where the Court is satisfied that an attempt has been made to deflect the course of justice by letting loose red herrings the Court has to take serious note of unclean approach. 11. The Hon ble Supreme Court in Khudiram Das Vs. State of West Bengal[(1975) 2 SCC 81], has held that the power of detention is not quasi -judicial power and while passing the detention order on the basis of material which the detaining authority considered 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... izure and host of other facts mentioned in the grounds. Further in terms of Section 108(3) of the Customs Act enjoys on the person summoned to serve upon any subject to which he is summoned, he is not excused from speaking the truth on the premises that such statement could be used against him and in cases where there was no retraction of the confession statement made under section 108 of the Customs Act then there will be nothing wrong in the detaining authority relying on such statements as they furnish sufficient and adequate materials on the basis of which the detaining authority can form its opinion. 13. In Gajanan Krishna Yalgi (supra), it was pointed out that the standard of evidence required for conclusion is different from that required for a reasonable 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 fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the future to act in a manner prejudicial to the maintenance of public order. Further the past conduct or history of the person on which the authority purports to act should ordinarily be proximate in point of time and should have the rational connection with the conclusion that the detention of the person is necessary. It was pointed out, that it would be irrational to taken into account the conduct of a person which took the place 10 years before the date of detention. Further it was held that it is both inexpedient and undesirable to lay down in inflexible test about the validity of the satisfaction of the authority will have to be considered on the facts of each case. 16. In Dimple Happy Dhakad, it was held that the satisfaction of the detaining authority is subjective 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder. On 11.12.2018 statement under section 108 of the Act was recorded from Partha Mishra who stated that he received shipping bills from the detenue through other persons including Sovon for processing the same through customs without actual physical export of goods. Statement was recorded from Sovon under section 108 of the Customs Act wherein it is stated that the detenue had asked him to get shipping bills cleared without actual physical export of goods. The detenue was arrested on 12.12.2018 and detained and statement under section 108 of the Act was recorded wherein he has stated that he had given export document to Sovon and Partha Mishra for getting export documents cleared through customs without actual physical export of goods. Further, the detenue stated that all the 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 cleara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o live link has to be rejected. Of the two cases black pepper case has concluded holding the detenue guilty for violating the provisions of Customs Act. With regard to illegal availments of IGST refunds it appears that it is large scale conspiracy where several persons are involved and the detaining authority was satisfied from the materials available and the statements recorded under section 108 not only from the detenue but other co-accused that the detenue was the main person in the entire illegal operation. Furthermore, the case of illegal availment of refunds of IGST is in the process of investigation. The detenue has himself admitted that he was investigated by the DRI from 2010 onwards on more than 5 occasions. Therefore, we can safely hold that there is sufficient live link available 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the detenue is clearing export of goods on paper without actual physical exports of goods would undoubtedly fall within the ambit of a smuggling activity and therefore alleged illegal availment of IGST would fall within the definition of smuggling . Thus, the contention raised by the Learned Counsel in Ground No. (i) and (ii) are answered against the detenue. 22. We now move on to consider the contention that there was no consideration of the relevant material and non- disclosure of relevant material before the detaining authority. This argument is based upon the contention that the statement given by the detenue under section 108 has been retracted before the Learned Chief Metropolitan Magistrate and such retraction was not placed by the sponsoring authority or before the detaining authority. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment under section 108 on 13.06.2019, 17.06.2019, 25.06.2019, 02.07.2019, 24.07.2019 and 31.10.2019. In all these statements the detenue has been implicated. These statements have not been withdrawn or retracted. Therefore, the detaining authority was fully justified in recording his satisfaction by relying on the two statements recorded from the detenue one in the year 2018 and the other in the year 2019 where the detenue does not disclose that the statement recorded from him on 12.12.2018 was retracted. Therefore, the third contention raised by the Learned Counsel for the detenue stands rejected. 22.(A). The Learned Counsel for the petitioner would vehemently contend that the documents sought for by the detenue were not furnished, certain documents were illegible, the representations given by 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 note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed to be illegible. Thus, it is clear that the contention of the detenue that the certain documents were illegible is a clear after thought, more particularly that at the earliest point of time the detenue never pointed out which of those documents which are illegible and merely because the documents are hand written it cannot ipso facto become illegible. The written submissions given by the counsel that representation was made based on legible material alone stands rejected. 22.(B). We are satisfied that the representation dated 18.02.2021 was with an intension to delay the proceedings before the Advisory Board. Further the representation dated 27.02.2021 was submitted by the detenue only after the detaining authority addressed a letter dated 17.02.2021 to the detenue that he has not received 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenue Naveen Kesara alias Naveen Agarwal has not been shown to be involved in the black pepper case . As the grounds of detention are severable, the detenue before us cannot place reliance on the said decision. That apart the Court proceeded that the incident/case which was the ground case for detaining the co-detenue was registered two years before the order of detention, and on going through a time-chart filed by the respondents the Court came to the conclusion that there is no single reference to any other or further business or transaction that the co-detenue may have indulged in between 11.12.2018 and 15.01.2021 that may be termed as prejudicial activity . On the contrary in the case of the detenue the chain of events shows his propensity to engage in the same illegality in future. The detenue was 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 112(a) (b) and 114(1) of the Customs Act but did not place the reply to the show cause; therefore held the same to have vitiated the subjective satisfaction. Before us the show cause notice, after considering the reply has culminated in an order of adjudication, imposing penalty on the detenue. It goes without saying that the allegations in the show cause notice as well as the reply of the detenue in the black pepper case were forming part of the order of adjudication, which as on date remains as such, as according to the detenue he has sufficient time to challenge the same by way of appeal. Hence the decision cannot be made applicable to the case before us. 23.(G). The Learned Counsel place reliance on the decision in Smt. Dharmistra Bhagat to support his contension that non-supply of legible copies or non-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 docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lay was unexplained leading to setting aside the order of detention. (v) In Sama Aruna the correctness of the order of detention passed under Telangana Prevention of Dangerous Activities of Bottleggers, Dacoits Drug Offenders, Goondas, Immoral Traffic Offenders and hand Grabbers Act 1986 ( 1986 Act) was tested. It was pointed out that, only those activities so far back in the past which lead to the conclusion that the detenue is likely to engage in or prepare to engage in such activities in the immediate future can be taken into account. It was held that incidents which are said to have taken place nine to fourteen years earlier, cannot form the basis for being satisfied that the detenue is going to engage in, or make preparations for engaging in such activities. On the scope of judicial review of order of detention, it was held 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 absen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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