TMI Blog2022 (11) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... the principle laid down there would not be applicable in a case where the detaining authority and the appropriate Government are distinct - It was therefore held in Ankit Ashok Jalan that if the law is now settled that a representation can be made to the specially empowered officer who had passed the order of detention in accordance with the power vested in him and the representation has to be independently considered by such detaining authority, the principles concerned adverted to in para 16 of the decision in K.M. Abdulla Kunhi would not be the governing principles for such specially empowered officer. In the present case, the representation made to the detaining authority, i.e., respondent no. 2 on 02.03.2022, who was specially empowered officer passing the order of detention, was decided on 15.03.2022, without waiting for the opinion of the Advisory Board or confirmation of the detention order by the Central Government. The second representation dated 10.03.2022 made by the detenu to the Central Government, i.e, respondent no. 3 was received by the latter after the reference being made to the Central Advisory Board and decided on 09.05.2022, i.e., after receipt of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kg of 995 purity (24 Carat) foreign origin gold, in the form of 'E' 'I' shaped plates, having a market value of Rs. 39,31,38,219/- was recovered. Panchnama dated 18/19.11.2021 showing the recovery of the said 80.126 kg of gold was drawn. The said gold was seized under Section 110 of the Customs Act, 1962, vide seizure memo dated 19.11.2021. (iii) On the same day, i.e., on 18.11.2021, officers of DRI searched the detenu's premises, i.e., M/s D.P. Abhushan, Shop No. 4, 3rd Floor, 1167 Kucha Mahajani, Chandni Chowk, Delhi and seized 7 pieces of gold, weighing 5.409 kgs of primary gold of alleged foreign origin. Panchnama dated 18.11.2021 was drawn, showing a recovery of 5.409 kgs of gold having a market value of Rs. 2,64,44,680/-. The said gold was seized under Section 110 of the Customs Act, 1962, vide seizure memo dated 19.11.2021. (iv) In total, 85.535 kg gold of foreign origin, having total market value of Rs. 41,95,82,899/- has been recovered and seized. (v) On 18/19.11.2021, officers of DRI conducted further searches at four different places belonging to persons involved in the aforementioned smuggling syndicate and arrested four foreign na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M, PHC, New Delhi granting bail to the co-accused Neeraj Varshney and all the four foreign nationals which are pending adjudication. (xviii) DRI filed an application dated 24.12.2021 before the learned CMM, Patiala House Court, New Delhi praying for incorporating an additional condition in the bail order directing the detenu to appear in the office of DRI, DZU, New Delhi at 11 AM on every Monday. Similar applications were also filed by DRI seeking to incorporate the same additional condition with respect to other accused persons. (xix) DRI filed an application dated 21.01.2022, before the learned CMM, Patiala House Court, New Delhi for cancellation of bail granted to the detenu on 13.12.2021 on the ground that the detenu had violated some of the conditions of bail imposed by the learned trial Court while granting bail. (xx) Respondent No. 2 passed the impugned Detention Order bearing F. No. PD-12001/07/2022-COFEPOSA, dated 01.02.2022. (xxi) On 04.02.2022, detenu was apprehended by the DRI, when he had gone to their office to surrender his passport in compliance with the bail order dated 13.12.2021 passed by learned CMM, Patiala House Courts, New Delhi whereupon, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d quashing of the impugned detention order and his forthwith release from custody. (xxvi) The hearing before the Hon'ble Advisory Board was fixed for 04.04.2022 and then for 12.04.2022. However, the matter could not be heard on the said dates. Finally, the matter was fixed for 18.04.2022 and the hearing concluded. During the hearing, representative of sponsoring authority furnished written submissions along with copies of a number of documents. (xxvii) Vide order dated 02.05.2022, the Deputy Secretary to the Government of India, (COFEPOSA Wing) confirmed the impugned detention order, while observing as under: WHEREAS the case of Shri Pramod Singla was placed before the Advisory Board who is of the opinion that there exist sufficient grounds for detention of the detenu Shri Pramod Singla. WHEREAS, the Central Government has considered the report of the Advisory Board and other material on record; and NOW, THEREFORE, in exercise of the powers conferred by section 8(f) of the aforesaid Act, the Central Government hereby confirms the aforesaid detention order and further directs under section 10 ibid that Shri Pramod Singla be detained for a period of one year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been asserted that the same is legally and constitutionally valid in as much as it has been passed by the competent authority with due application of mind and after arrival of subjective satisfaction based on the material facts and circumstances of the case. 5. We have heard learned counsel appearing on behalf of the parties and perused the record, i.e., petition, counter affidavit, rejoinder and the written submissions filed on behalf of the petitioner. 6. Mr. Vikram Chaudhari, learned Senior Counsel appearing on behalf of the detenu, limits his arguments on the sole ground that the impugned detention order dated 01.02.2022 has been rendered invalid in view of the inordinate and unexplained delay on the part of the respondent no. 3, i.e., the Central Government in deciding the representation dated 10.03.2022, filed by the detenu. 7. It is the case of the detenu that while he was incarcerated in jail, he made a representation to respondent no. 3, i.e., Director General, Central Economic Intelligence Bureau, Government of India, Ministry of Finance, Department of Revenue, New Delhi, on 10.03.2022. The said representation was sent through his counsel, highlighting the non-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner's representation. 95. In Ankit Ashok Jalan v. Union of India, reported as (2020) 16 SCC 127 , the Hon'ble Supreme Court has observed, particularly in paragraph 17 thereof, as under:- 17. In terms of these principles, the matter of consideration of representation in the context of reference to the Advisory Board, can be put in the following four categories: 17.1. If the representation is received well before the reference is made to the Advisory Board and can be considered by the appropriate Government, the representation must be considered with expedition. Thereafter the representation along with the decision taken on the representation shall be forwarded to and must form part of the 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Government of India, CEIB, Department of Revenue, Ministry of Finance, Government of India. The aforesaid para 4(iv) is being reproduced hereunder; The allegation regarding delay in deciding the representation by the Central Government is wrong and misleading. The Petitioner made a representation dated 10.03.2022 through the Jail Authorities to the DG, CEIB on behalf of the Central Government requesting therewith to revoke the impugned detention order. The said representation was received on 11 .03 .2022 when the matter of the petitioner had already been referred to the Central Advisory Board, Delhi High Court on 24.02.2022. As per the law settled by the Hon' ble Supreme Court in the matter of Ankit Ashok Jalan vs. Union of India reported as (2020) 16 SCC 127 , the said representation was kept pending for want of the opinion of the Advisory Board in the matter under reference. The opinion tendered by the Central Advisory Board was considered by the Central Government and, accepting the said opinion, confirmed the impugned detention order vide order dated 02.05 .2022 as duly conveyed to the petitioner. Thereafter, the said representation dated 10.03.2022 of the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are being reproduced as under: 18. There can be no difficulty with regard to the applicability of the principles in the 1st and the 4th stage of the aforesaid categories. The difficulty may arise as regards the application of principles at the 2nd and the 3rd stage. But that difficulty was dealt with sufficient clarity in Jayanarayan Sukul and Haradhan Saha as stated hereinabove. If it is well accepted that the representation must be considered with utmost expedition; and the power of the Government is completely independent of the power of the Advisory Board; and the scope of consideration is also qualitatively different, there is no reason why the consideration by the Government must await the decision by the Advisory Board. None of the aforesaid cases even remotely suggested that the consideration must await till the report was received from the Advisory Board. 19. However, it was for the first time that the decision in K.M. Abdulla Kunhi laid down in para 16 that it would be proper for the Government in the two situations dealt with in the said paragraph to await the report of the Board; those two situations being: 19.1. Where the representation is received befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y statutory intent is not to be privy to the report nor does the statute contemplate any role for such specially empowered officer at the stage of consideration of the opinion of the Advisory Board. The report of the Advisory Board may provide some qualitative inputs for the appropriate Government but none to the specially empowered officer who acted as the detaining authority. If that be so, would a specially empowered officer who had passed the order of detention be bound by what has been laid down by this Court in para 16 of the decision in K.M. Abdulla Kunhi in the context of the appropriate Government? xxx 27. Thus, if the law is now settled that a representation can be made to the specially empowered officer who had passed the order of detention in accordance with the power vested in him and the representation has to be independently considered by such detaining authority, the principles concerned adverted to in para 16 of the decision in K.M. Abdulla Kunhi would not be the governing principles for such specially empowered officer. It must be stated that the discussion in K.M. Abdulla Kunhi was purely in the context where the order of detention was passed by the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eipt of the report but the specially empowered officer who acted as detaining authority would be obliged to decide the representation without waiting for such report. 14. During the course of the arguments, when the aforesaid distinction made by the Hon ble Supreme Court in Ankit Ashok Jalan (supra) was pointed out, Mr. Vikram Chaudhari, learned Senior Counsel appearing on behalf of the petitioner submitted that Para 17 of the aforesaid judgment is the ratio decidendi and the aforesaid observations are in nature of obiter dictum . He further submitted that if the aforesaid distinction between the detaining authority and the appropriate government is made, then Para 17 of the judgment in Ankit Ashok Jalan (supra), would not serve any purpose. Learned Senior Counsel took us through the judgment of K. M. Abdulla Kunhi (supra) and drew our attention to Paras 5, 11, 12, 13, 14 and 15 thereof and submitted that the decision in K. M. Abdulla Kunhi (supra) was in the context of the facts in the judgment of Frances Coralie Mullin Vs. W.C. Khambra, (1980) 2 SCC 275 . It was argued by the learned Senior Counsel that in Frances Coralie Mullin (supra), the representation of the det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by learned Senior Counsel and the judgments cited hereinabove. In our considered view, the Hon ble Supreme Court in Ankit Ashok Jalan (supra), has, in no uncertain terms carved out a distinction with respect to the determination of a representation, received after reference to the Advisory Board, sent to the detaining authority and to the appropriate government. While noting the judgment of the Constitution Bench in K.M.Abdulla Kunhi (supra), it has held as under:- 20. Since the decision of this Court in K.M. Abdulla Kunhi was rendered by the Constitution Bench of this Court after considering all the earlier decisions on the point including those in Pankaj Kumar Chakrabarty, Jayanarayan Sukul and Haradhan Saha , we are bound by the principles laid down therein.... It was observed that since the judgment in K.M.Abdulla Kunhi (supra) had dealt with a situation where the detaining authority was the appropriate Government itself, the principle laid down there would not be applicable in a case where the detaining authority and the appropriate Government are distinct. It was therefore held in Ankit Ashok Jalan (supra), as under: 27. Thus, if the law is now settled tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecided two things would decide nothing. A good illustration will be found in London Jewellers Ltd. v. Attenborough. In that case the determination of one of the issues depended on how far the Court of Appeal was bound by its previous decision in Folkes v. R., [in which] the court had given two grounds for its decision, the second of which [as stated by Greer, L.J., in Attenborough case was that : (KB p. 222) where a man obtains possession with authority to sell, or to become the owner himself, and then sells, he cannot be treated as having obtained the goods by larceny by a trick. In Attenborough case it was contended that, since there was another reason given for the decision in Folkes case, the second reason was obiter, but Greer, L.J., said in reference to the argument of counsel : (Attenborough case, KB p. 222) I cannot help feeling that if we were unhampered by authority there is much to be said for this proposition which commended itself to Swift, J., and which commended itself to me in Folkes v. R., but that view is not open to us in view of the decision of the Court of Appeal in Folkes v. R. In that case two reasons were given by all the members of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19.2. Where the representation is received after the case is referred to the Advisory Board. It was also laid down: In both the situations there is no question of consideration of the representation before the receipt of report of the Advisory Board. 18. In the present case, the representation made to the detaining authority, i.e., respondent no. 2 on 02.03.2022, who was specially empowered officer passing the order of detention, was decided on 15.03.2022, without waiting for the opinion of the Advisory Board or confirmation of the detention order by the Central Government. The second representation dated 10.03.2022 made by the detenu to the Central Government, i.e, respondent no. 3 was received by the latter after the reference being made to the Central Advisory Board and decided on 09.05.2022, i.e., after receipt of the said opinion and confirmation of the detention order by the Central Government. Applying the law laid down by the Hon ble Supreme Court, referred to hereinabove, to the facts of the present case, we are of the considered opinion that the detention order cannot be quashed on the ground urged on behalf of the detenu that there was inordinate and unexp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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