TMI Blog2007 (7) TMI 714X X X X Extracts X X X X X X X X Extracts X X X X ..... rief facts of the case as have been stated in the synopsis to the writ petition, pursuant whereto the petitioner has filed this petition in the High Court at Delhi, are as under: The petitioner is a businessman and carries on business of import and export in the name and style of M/s. V-4 Manufacturing Company. The petitioner is a permanent resident of New Delhi. It is the case of the officers of DRI and on 7.9.2005 an import consignment of M/s. Everest Exports had arrived at Air Cargo Complex, New Delhi and after clearance by the importer free of customs duty, the said consignment was taken to the residential premises of the petitioner on 8.9.2005 and unloaded there instead of being taken to NSEZ. It is further alleged that upon search of the basement of the said premises, the goods imported by M/s. Everest Exports viz., MOUNTED PCBs valued at Rs. 6 lakhs were found. On examination of the goods, the same were found to be high value computer goods such as Intel Pentium Processors and E-RAMs of 512 MB capacity having market value of Rs. 1.8 crores. It is alleged that the officers also found Airway Bill Stickers which had been torn off from the boxes. It is further alleged that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice premises of his learned Advocate and was beaten by the officers and taken to the DRI officer. At the DRI office, the petitioner's brother was forced to give an incriminating statement pursuant to duress, coercion, physical, mental and psychic torture. Thereafter, the petitioner was arrested at 11.30 PM on the said date and was produced before the Link Magistrate on 14.10.2005. Upon his production before the learned Court, the petitioner asked his learned Advocate to prepare a retraction on his behalf which was hurriedly prepared and after obtaining the signature of the petitioner the same was filed before the learned Magistrate which was taken on record. The learned Magistrate was pleased to remand the petitioner to jail custody till 18.10.2005. The petitioner was subsequently enlarged on bail by the learned Additional Session Judge, New Delhi on 29.10.2005. With a view to seek vengeance against the petitioner's family and to harass them, the officers of DRI forcefully entered and searched the residential premises of the petitioner on 14.11.2005 without any search authorization and misbehaving with the women folk of the house constraining the petitioner's mother ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner and the Hon'ble Court was pleased to given liberty to the petitioner to invoke the jurisdiction of this Hon'ble Court. In the meantime, the petitioner's father and younger brother were detained in pursuance of the said orders of detention and were taken to Central Jail, Tihar, New Delhi where the said order were served on them. They were served with the grounds of detention along with a bunch of relied upon documents inside Central Jail, Tihar, New Delhi on 14.6.2006. The petitioner moved a pre-arrest writ application before the Hon'ble High Court of Punjab and Haryana and the said Hon'ble Court was pleased to grant pre-arrest bail to the petitioner and was further pleased to stay the execution of the order on him till 20.6.2006 to give him time to invoke the jurisdiction of this Hon'ble Court in terms of its order dated 12.6.2006. 3. Learned Counsel for the petitioner contends that he can challenge the order of detention prior to its execution on any of the grounds mentioned in 1992 Supp. (1) SCC 496; Additional Secretary to the Government of India and Ors. v. Alka Subhash Gadia and Anr. He contends that the order under challenge ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n orders of detention for the purpose of detaining the petitioner in pursuance of the said order of detention passed under the COFEPOSA Act. The entire action of the respondents in passing the detention orders is tainted with malice, wholly illegal, arbitrary and malafide. V. BECAUSE an order of detention under the COFEPOSA Act can be lawfully passed against a person or persons, who are engaged in smuggling or other related activities. For the purpose of detaining a person or persons, there must be relevant materials before the detaining authority on the basis of which, it can pass an order of detention on the subjective satisfaction. In the instant case, the goods in question seized by the officers of the DRI on 08.09.2005 were admittedly imported by Shri Bhuvan Aggarwal, the sole proprietor of M/s. Everest Exports, who had taken the basement of the building on leave and license basis. The goods found were stored in that basement, which is under occupation and control of Bhuvan Aggarwal. The petitioner is not in any manner connected or related with the goods seized. In this context, it is pertinent to assert that there is no material to connect the petitioner with the commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the grounds a case of abetting within the meaning of Clause (ii) of Sub-section (1) of Section 3 of COFEPOSA has been made out depicting complete non-application of mind on the part of the detaining authority. X. BECAUSE the detaining authority has passed the instant order of detention with a view to preventing the petitioner from smuggling goods in future, the entire narrative in the grounds of detention, even if assumed to be correct though not admitted to be correct, makes out a case of abetting the smuggling of goods and/or dealing in smuggled goods otherwise than by transporting, concealing or keeping smuggled goods. Statements of different persons which have been relied on by the detaining authority and made the basis for passing the instant order of detention against the petitioner portrays the petitioner's father Shri Ashwani Aggarwal as the mastermind and the person controlling the activities of the four firms in question. The petitioner has been projected as a person who has abetted the smuggling of goods. In the premises, the instant order of detention ought to have been passed under Section 3(1)(ii) with a view to preventing the petitioner from abetting the smu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elligence Officer, DRI, contacted the petitioner's father-in-law and told him that Shri Tewari had demanded a further sum of Rs. 50 lakhs for not implicating the petitioner's father and brother including the petitioner in the case in question. As the petitioner's father was not prepared to pay the said amount of Rs. 50 lakhs as demanded by Shri Tewari, he addressed a letter of complaint to the CBI authorities on 17.9.2005. The said letter of complaint was treated as an FIR and a case was registered by the CBI authorities against the officers in question. Shri Y.S. Verma was, thereafter, caught red handed by the officers of CBI taking a bribe of Rs. 5 lakhs from the petitioner's father-in-law and pursuant to the search conducted at the residence of Shri Tewari, assets disproportionate to his known sources of income amounting to approximately Rs. 45 lakhs were found. The said case had a direct link with the case started against the petitioner, his father and brother. In the course of investigation, search witnesses were examined and their statements were recorded by the officers of CBI. The officers of DRI were also examined and their statements were recorded. Similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority. The fact that an FIR was lodged by the CBI authorities in pursuance of a written complaint filed by the petitioner and in the course of investigation Shri Y.S. Verma was caught red handed by the officers of CBI taking bribe of Rs. 5 lakhs and assets disproportionate to the known sources of income of Shri Manish Mani Tewari were found upon search of his residential premises clearly demonstrates that the preset orders of detention obtained by the sponsoring authority from the detaining authority are neither for the purpose of the COFEPOSA Act nor for any lawful purpose but the same has been obtained with a view to seek revenge against the petitioner. Neither the Constitution of India nor the COFEPOSA Act authorise and/or sanction the obtaining of orders of detention for the purpose of setting scores against those persons who had dared to make allegations of corruption against the officers concerned. The facts of the case highlighted hereinbefore demonstrates that the said order of detention has not been passed for the purpose of the COFEPOSA Act but have been passed in a motivated, illegal, arbitrary and malafide manner. In the circumstances, the case in had present features w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty free goods into the local market and not of smuggling goods. The present order of detention passed for preventing the petitioner from smuggling goods in future appears to be contrary to the material placed on record in the writ petition. This, Therefore, could be a case of non-application of mind. 7. Before proceeding with the challenge to the detention order on the grounds mentioned in the writ petition, we would necessarily have to deal with the maintainability of this pre-detention writ petition. In Alka Subhash Gadia's case (supra), the Supreme Court has in no uncertain terms held as under: it is not correct to say that that courts have no power to entertain grievance against any detention order prior to its execution. The courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the officers of CBI of search and seizure made at the residence of Ashwani Aggarwal on 8.9.2005 as also the statement of Ashwani Aggarwal and statement of Kailash Bansal has not been placed before the Detaining Authority. It is also alleged that the statement recorded by the DRI and the report relating to the search of the residential premises of Manish Mani Tewari and recovery of disproportionate assets to his known sources of income amounting to Rs. 45 lakhs has not been placed before the Detaining Authority. It was also contended that the copy of the show cause notice dated 23.12.2005 issued by the Development Commissioner for cancellation of letter of permission was not placed before the Detaining Authority. This was issued at the behest of the DRI authorities and was available with the officers prior to the issuance of the order of detention. 10. The aforesaid documents which the petitioner claims were vital, relevant and germane for consideration by the Detaining Authority having not been placed for consideration, renders the detention order bad. The Detaining Authority did not get an opportunity to apply his mind to the vital and relevant documents mentioned above. Faili ..... 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