TMI Blog2022 (5) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the passing of the impugned orders of detention. Once the Detaining Authority has relied upon the inculpative statements of the co-accused their retractions assumed great relevance in the factual backdrop of the present case. Consequently, the admissibility of the said statements becomes dubious once there is a retraction, which issue merited consideration, was evidently not afforded to it by the Detaining Authority. The legal position is that, if the documents are relevant and have a direct bearing on the case, they must be placed before the Detaining Authority for its subjective satisfaction . It is trite to say that when a person is detained in pursuance to an order of preventive detention, the statutory authorities are constitutionally charged with the responsibility of ensuring that the grounds of detention, including legible copies of all RUDs and other relevant documents 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 failure and non-supply of legible c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t: Mr. Chetan Sharma, Additional Solicitor General alongwith Mr. Anurag Ahluwalia, CGSC with Mr. Danish Faraz Khan, for R-1 and R2 Union of India; Mr. Harpreet Singh, Senior Standing Counsel with Investigating Officer Mr. Sumit Kumar for R-3/DRI J U D G M E N T SIDDHARTH MRIDUL, J 1. These two writ petitions under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure 1973, have been instituted on behalf of Zakir Khan (hereinafter Detenu No. 1 ), the Petitioner in W.P.(CRL.) 72/2022 and Sanjeev Kumar @ Sanjeev Kumar Yadav ( Detenu No. 2 ), the Petitioner in W.P.(CRL.) 73/2022 (hereinafter collectively referred to as the Detenus ), praying for quashing of detention orders, both dated 26.11.2021, bearing No. PD-PD-12001/17/2021-COFEPOSA and PD12001/18/2021- COFEPOSA, issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter COFEPOSA ) against the Petitioners/Detenus No. 1 and 2 respectively; and for further directions that the detenus be set at liberty forthwith. As these Petitions raise common questions of law and are premised on similar facts, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the clearance work of imports made in relation to the firms purportedly controlled/owned by the Detenu No. 1 was handled by one Sanjeev Kumar Yadav (Detenu No.2), having Custom Broker firm namely, M/s Sanjeev Kumar situated at Khasra No. 808, Gali No. 6B, K Block, Mahipalpur, New Delhi. Accordingly, search proceedings under the Customs Act, 1962 were carried out at the said office of Sanjeev Kumar whereupon certain documents were allegedly found stored in the said premises, in the form of files, loose documents etc. in respect of the said firms purportedly controlled/owned by the Detenu No.1. The officers of the DRI resumed the said documents for further investigations. v) On or about the 18/19.10.2021, the Detenus were arrested by officers of the DRI and produced before the Court of CMM (Duty Magistrate), Patiala House Courts through Virtual Conference at around 08:30 PM (as it was a holiday) and were remanded to 3 days Judicial Custody. vi) On 22.10.2021, Detenus were produced before the Learned Court of CMM, Patiala House Courts, New Delhi and remanded to 14 days judicial custody till the 04.11.2021. vii) The Detenus admittedly filed retraction applications on the 28.10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illegible and many other documents that had been relied upon and referred to were not furnished, communicated and/or supplied at all; and therefore, demanding legible copies of all of the above, so as to enable them to make an effective representation. This detailed representation was rejected by the Detaining Authority vide order dated 28.12.2021 (received by the Detenus in the jail on 29.12.2021). iii) On the 04.01.2022, a constitutionally provided representation was filed by the Detenus before the COFEPOSA Advisory Board (hereinafter Advisory Board ). 3. A further perusal of the grounds of detention, impugned in these proceedings reveal that the role assigned therein to the Detenu No.1 pursuant to the investigation carried out is that: - (a) Detenu was the founding member/owner of three Hong Kong based supplier firms viz. M/s Trackon Logistics Limited, Yottabyte International Co. Limited and M/s SFS Import Export Co. Limited, and from these supplier firms, goods were imported in the name of shell entities/dummy firms owned by the Detenu No.1 and that he used to decide the prices at which such goods are to be invoiced and declared before the Indian Customs. The valu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and undervalued using licenses of other Customs Brokers despite the fact that the Detenu No.2 himself has a Customs Broker License in his name. ARGUMENTS ON BEHALF OF THE PETITIONERS: - 5. Mr. Vikram Chaudari, learned Senior Counsel appearing on behalf of the Detenus vehemently assails the impugned orders of detention; Firstly, by submitting that, the now admitted position regarding the supply of illegible copies of Relied Upon Documents ( RUDs ) including but not limited to those supplied to the Detenus, but also those on the record with the Detaining Authority; and the axiomatic consequential non-consideration thereof by the Detaining Authority has rendered of the impugned detention order invalid. Counsel also submitted that the supply of illegible copies of RUDs to the Detenus, has further severely prejudiced the detenus from filing an effective representation before the Detaining Authority as well as the Advisory Board. 6. It is submitted in this behalf by the Ld. Senior Counsel that, the proposal for preventive detention was received by the Detaining Authority from the Advisory Board only on 24.11.2021 and with surprising alacrity less than 2 days thereafter o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.2021; xii. RUDs to the 3 Show Cause Notices (at serial number 37, 38 40 of the list of RUDs respectively); xiii. Final proceedings in the aforementioned SCNs Notices (at serial number 37, 38 40 of the list of RUDs respectively) or the final orders passed thereof in adjudication or appeal; xiv. Application has been moved by the Petitioner and Sanjeev Kumar informing the Court that they do not want to move any bail application; xv. Preliminary investigation report enclosed in letter dated 18.10.2021 received from DRI HQ; xvi. Statement of Sh. Ravichandra Mishra registered by Income Tax department referred to in the Detention Order; xvii. Signed pages of Sh. Javed Khan s statement dated 22.10.2021; xviii. Summons issued to persons who have allegedly not joined investigation (mentioned in Ground [xxvi] of the impugned detention order) At this stage it is observed that in the RUDs, that were supplied, the following documents were found to be completely illegible: - Sr. No. of list of RUDs Description Page No. 3. Statement of Z ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nored by the Detaining Authority, which is a clear non-application of mind. It is trite to state that, if a vital piece of evidence which is likely to influence the subjective satisfaction of the Detaining Authority is not placed before it, then the detention order would be vitiated in law and fact on the ground of suffering from the vice of non-application of mind. In support of this argument, the learned Senior Counsel placed reliance on the following decisions of the Hon ble Supreme Court: - (i) Taramati Chandulal Sejpal v. State of Maharashtra; (1981) 2 SCC 17; (ii) Icchudevi Choraria v. Union of India, (1980) 4 SCC 531; (iii) Kamla Kanyalal Khushalani v. State of Maharashtra, (1981) 1 SCC 748; (iv) Shalini Soni v. Union of India, (1980) 4 SCC 544; (v) Ibrahim Ahamad Batti v. State of Gujarat, (1982) 3 SCC 440; (vi) Ahmed Nasar v. State of Tamil Nadu, (1999) 8 SCC 473; (vii) Kamlesh Kumar Ishwardas Patel v. Union of India, (1995) 4 SCC 51; (viii) State of Rajasthan v. Talib Khan, (1996) 11 SCC 393; and (ix) Chandra Prakash v. State of U.P., (2002) 4 SCC 234. 8. It is furthermore submitted that, the Detenus repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue and national security In this behalf it is stated that it is no more res integra that where various grounds could be joined by the conjunctive and the use of the disjunctive or in such a case is impermissible. It is further submitted that, the Grounds of Detention served to Detenu No.1 are exactly the same as those served on the co-accused Detenu No.2; and all that the Detaining Authority has done is substitute the name of Detenu with the expression you . That apart, both the Detentions Orders are ex-facie verbatim copies of each other. The Impugned Detention Order is thus, passed in the most cavalier manner, thereby resultantly invalidating the same. 11. In order to buttress his exhaustive oral submissions, Mr. Vikram Chaudari, learned Senior Counsel appearing on behalf of the Detenus, has pressed into reliance the following decisions: - i. Rajesh Vashdev Adnani v. State of Maharashtra reported as (2005) 8 SCC 390. ii. Rakesh Sherpal Singh Rana v. State of Maharashtra, reported as 2000 SCC OnLine Bom 684. iii. Narendra Bahadur Lama v. Union of India, reported as 2001 SCC OnLine Del 521. iv. Dimple Prakash Shah vs. UOI- reported as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u for copies of such documents. In the present case, all the relied upon documents have been duly supplied to the Detenu under his dated acknowledgement within the stipulated statutory time period of 5 days, from the date of detention. 14. It is also submitted that that the language used in the Detention Order as well as in the Ground of Detention is in consonance with the Section 3 (1) of the COFEPOSA Act, 1974 and the same are not based on any inference drawn by the Detaining Authority. The Detention Order has been passed and issued following the due process of law and after due application of mind and deliberations after taking into consideration the facts of the case. It is consequently denied that the order of detention has been passed a in casual manner. 15. It is urged that the Detaining Authority has not relied on illegible documents. It is asserted that the Hon ble Court must sift and weigh, between vital and essential documents, and not be swayed by the purported illegible documents which have not influenced the decision making of the Detaining Authority in any manner. 16. It is submitted that all evidences relied upon in this case and served on the Detenus were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions. 19. In this behalf, it is submitted that, it is incumbent upon the Detenus to show that prejudice was caused owing to the illegible RUDs. It is further submitted that the Detenu must show that the failure to supply the RUDs or the supply of illegible RUDs had impaired or prejudiced his right, however, slight or insignificant it may be. Reliance is place on Kamarunnissa Ec. versus Union of India and Ors. reported as (1991) 1 Supreme Court Cases 128. 20. The learned ASG asserted vehemently on behalf of the detaining authority in his oral arguments that, the illegible documents are irrelevant and ought to be eschewed from consideration; in view of the provision of Section 5A of the COFEPOSA, which stipulates that the grounds of detention may be severable, particularly in cases where the order of detention has been passed on the basis of two or more grounds. It is submitted that, the grounds which indicate reliance upon the illegible RUDS may therefore, in law, be severed from the remaining grounds that have led to the subjective satisfaction of the Detaining Authority. It is further submitted that, the Detenu instead of seeking legible copies, should have ignored the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of law and the decisions relied upon by the parties and having perused the material on record, including the pleadings and the original file, the following issues arise for the consideration of this Court in these proceedings: - A) Whether the non-supply of certain RUDs and the supply of illegible RUDs, vitiates the subjective satisfaction arrived at by the Detaining Authority; and whether the detention orders passed are resultantly vitiated on the ground of nonapplication of mind; thereby rendering them invalid and bad in law. B) Whether in the event that issue A (Supra) is answered in the affirmative, the argument premised on S.5A of the COFEPOSA Act, in the facts and circumstances of the present case will have the effect of saving the detention order from invalidation. 24. At the outset we consider it relevant to observe that on a specific query from the Court as to why no criminal prosecution has been filed as yet against the Detenus resulting in their release on statutory bail under the mandate of Section 167(2) of the CrPC, no cogent or satisfactory explanation was offered or forthcoming. 25. We find it apposite at this stage to extract the observations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the present petitions, it was noted as follows: - Mr. Vikram Chaudhri, learned senior counsel appearing on behalf of the petitioners in these writ petitions has handed over in Court today the original set of relied upon documents RUDs furnished to the detenues at the time of their detention. The Court has perused the said documents. The Court has further asked Mr. Sumit Kumar, Senior Intelligence Officer, Directorate of Revenue Intelligence to examine the said original documents and inform this court as to whether they are the set of documents that were served upon the detenues. The said official appearing on behalf of DRI confirms that the set of documents produced in court on behalf of the detenues are the originals, which were served upon them at the time of their detention. 28. It is observed that it was fairly admitted before this Court that several RUDs including not only those supplied to the Detenus, but also those on the record with the Detaining Authority are illegible i.e., not readable. In this regard, this Court s decision in Mohd. Nashruddin v. Union of India Ors., reported as 2021 SCC OnLine Del 4017 and the relevant paragraphs thereof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of foreign marking were recovered from the possession of the detenu was sufficient for subjective satisfaction of the detaining authority in making the said order of detention. So the detention order cannot be termed as illegal and bad for non-supply of legible/typed copy of the said document i.e. panchnama dated 12-2-1988. The panchnama dated 12-2-1988 which had been referred to in the list of documents referred to in the grounds of detention and a copy of which had been given to the detenu along with the grounds of detention, is not at all legible as is evident from the copy served on the detenu. It is also not in dispute that on receiving the documents along with the grounds of detention the detenu had made a representation to Respondent 1 stating that some of the documents including the panchnama which had been supplied to him are illegible and as such a request was made for giving typed copies of those documents to enable the detenu to make an effective representation against the same. The detaining authority on receipt of the said representation sent a reply denying that the copies of those documents were illegible and refusing to supply typed copies of the same. It is clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that prejudice was caused to them owing to the supply of illegible RUDs; the specific contention being that, the Detenu must establish that the failure to supply the RUDs or the supply of illegible RUDs had impaired or prejudiced his right. 31. In our opinion, the aforementioned contention raised on behalf on the official respondents is untenable in light of the Hon ble Supreme Court s decision in Mrs. Tsering Dolkar vs. Administrator, Union Territory Of Delhi Others reported as (1987) 2 SCC 69 and in particular paragraph 12, wherein it was observed as under: - 12. The learned Additional Solicitor General relied upon the feature that the petitioner-wife knew both English and Tibetan languages and an effective representation as a fact had been made. There can be no two opinions that the requirement of law within the provisions of Article 22(5) of the Constitution is that the detenu has to be informed about the grounds of detention in a language which he understands. The fact that the detenus wife knew the language in which the grounds were flamed does not satisfy the legal requirement. Reliance was placed by the learned Additional Solicitor General on a decision of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Ld. CMM, Patiala House, New Delhi stating inter alia that retraction application contained untrue averments and are without any substance, afterthought, and farce. In reply, DRI stated that the applicant tendered his voluntary statement under his signature and the said statement has also been confirmed in his handwriting towards the end. Further, the retraction has been made 10 days of the statement; the long gap between the recording of the statement and the retraction application makes it clear that the retraction application filed by him is an afterthought and based on legal tutoring. It was further stated by DRI that the applicant was medically examined at Ram Manohar Lohia Hospital Delhi and thereafter produced before the Ld. Duty Magistrate. As per the reply of the DRI filed before the Ld. CMM Patiala House, New Delhi no injury marks (fresh or otherwise) or bruises was reported by the duty doctors during the medical examination. xxxvii. You i.e. Sanjeev Kumar Yadav filed an application dated 28.10.2021 before the Ld. CMM, Patiala House, New Delhi stating that the statements dated 18/19.10.2021 before the DRI officers have been obtained under coercion and torture. You ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o-accused their retractions assumed great relevance in the factual backdrop of the present case. Consequently, the admissibility of the said statements becomes dubious once there is a retraction, which issue merited consideration, was evidently not afforded to it by the Detaining Authority. In this behalf, reliance is placed on this Courts decision in Gopal Gupta vs. Union of India Ors. reported as 2021 SCC OnLine Del 3926. 33. In this behalf, it is also trite to state that the Sponsoring Authority was under a legal obligation to have placed the said retractions before the Detaining Authority for the latter s subjective satisfaction. In this regard, it would be beneficial first to consider the observations of the Hon ble Supreme Court in A Sowkath Ali vs. Union of India Others, reported as (2000) 7 SCC 148 and particularly in paragraph 20 thereof. The said paragraph is extracted hereinbelow for the sake of facility: - 20. There can be no doubt, it was not necessary, while considering the case of the petitioner detenu, to place all or any of the documents which are relevant and are relied on in the proceedings of a co-accused, but where the sponsoring authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would have come to the subjective satisfaction solely on the strength of the confession attributed to the petitioner dated 7- 11-1999, particularly because it was retracted by him. It is possible to presume that the confession made by the co-accused Sowkath Ali would also have contributed to the final opinion that the confession made by the petitioner on 7-11-1999 can safely be relied on. What would have been the position if the detaining authority was apprised of the fact that Sowkath Ali had retracted his confession, is not for us to make a retrospective judgment at this distance of time. 8. The second contention that non-placement of the retraction made by Sowkath Ali would not have affected the conclusion as the petitioner's confession stood unsullied, cannot be accepted by us. The detaining authority had relied on different materials and it was a cumulative effect from those materials which led him to his subjective satisfaction. What is enumerated in Section 5-A of the COFEPOSA Act cannot, therefore, be applied on the fact situation in this case. 9. In this context, it is to be mentioned that the detention order passed against Sowkath Ali was quashed by this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 SCC 128 , does not come to their aid, since in the present case we agree with the submissions made on behalf of the Detenus, that the present is a case of non-placement of vital facts and documents before the Detaining Authority owing to their illegibility and that the subjective satisfaction is vitiated since the latter was not in possession of vital RUDs. The ratio in Kamarunnisa (supra) is, therefore, distinguishable on the facts thereof. Therefore, we have no hesitation in holding that, the Detaining Authority fell into error in relying upon illegible documents which is the equivalent of non-placement of RUDs, by the act of omitting them from consideration, thereby vitiating its subjective satisfaction, for suffering from the vice of non-application of mind. 39. It is trite to say that when a person is detained in pursuance to an order of preventive detention, the statutory authorities are constitutionally charged with the responsibility of ensuring that the grounds of detention, including legible copies of all RUDs and other relevant documents that are considered whilst forming the subjective satisfaction, are provided to the detenu by the Detaining Authority; so as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity that, all the documents supplied to the detenues were relied upon by it for arriving at subjective satisfaction. 44. It is settled law and not in dispute that under section 3 of COFEPOSA it is only the detaining authority, which can ultimately decide to pass or not, a detention order against any person, and that too, after himself perusing each and every document and material placed before it. It is also not in dispute that the subjective satisfaction of the detaining authority itself is to be arrived at after perusing all the relevant documents and material. This is a constitutionally provided condition precedent for passing a valid order of Detention. We find considerable force in the contention that had the Detaining Authority himself perused the RUDs for arriving at its subjective satisfaction and formulation of grounds, it would have been alive to the fact that various RUDs placed before it were illegible. 45. It is pertinent to observe the Detenus submission that the order of detention was passed in a tearing hurry without due application of mind. A timeline of the passing of the detention order is as follows; the last document furnished to Detenu is dated 24.11.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or legally unsustainable. However, it must be observed that, on the other hand, if the detention order is founded substantially on one composite ground, though containing various species or sub-heads, the detention order would be vitiated if such ground is found fault with. 48. The instant case, does not attract the dictum enunciated in Gautam Jain (Supra), since the grounds of detention in the present petition are not severable, in view of the patent and palpable vice of non-application of mind by the Detaining Authority antecedent and attendant in the passing of the detention order. Premised on averments made of behalf of the Respondents, it is found that illegible documents supplied to the detenu were clearly and categorically admitted to have been relied upon by the Detaining Authority. Therefore, the instant case is distinguishable from the aforementioned case; as the very grounds of detention in these impugned orders are not severable in the peculiar facts and circumstances of the present petition. 49. In the case of Praduman Singh v. Union of India Ors., 2004 SCC Online Del 446 , this Court had held that- 15. There seems to be force in this argument because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase in hand is somewhat disturbing because even before the detaining authority considered the matter and applied its mind to the material placed before him and recorded his satisfaction about making the detention order, the lower functionaries had actually put up a draft of detention order for the approval/vetting by the detaining authority which implies that the lower functionaries presumed that the detaining authority is going to pass the detention order in all eventualities/probabilities. Such a procedure or practice of putting up draft orders for approval/vetting by the competent authorities/senior functionaries can perhaps be justified in the routine discharge of administrative functions and duties in various Ministries and Departments of the Governments while dealing with purely administrative matters. The Rules of business allocation of the Government permits such a procedure but when it comes to the passing of quasi-judicial orders or a detention order under various preventive detention laws, it has to be different. Adoption of such a practice or procedure would vitiate the order as the detaining authority is likely to be influenced by such an assistance rendered by the lo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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