2018 (8) TMI 1611 - HC - Customs

Preventive detention - Jurisdiction - whether that is a sufficient ground for invoking the extraordinary measure of preventive detention? - COFEPOSA Act. Detention of Mr. Sanjay Agarwal - Held that - It is apparent to the Court that the Detaining Authority was unclear about the grounds on which it should authorise the detention of Mr. Sanjay Agarwal. This is evident from the reading of para 34 where repeatedly the word or is used to separate out the different grounds. This is suggestive of two things first, the Detaining Authority was unsure if the facts brought on record constituted one or more of these grounds; and second, there was in fact non-application of mind as simply taking the wording of the Section 3(1) COFEPOSA and repeating it as part of the grounds would not constitute a finding arrived at after an application of mind - This is not an issue of mere vagueness, but of absolute non-application of mind. Detention of Mr. Ajay Agarwal - Held that - The detention order in respect of Ajay Aggarwal sites past instances but nothing in the present. The absence of any live link with any present instance is nowhere discernible on a reading of the grounds of detention. Further, by not referring to the conditions attached to the grant of anticipatory bail, to simply state that Mr. Ajay Aggarwal would continue to indulge in activities related to smuggling demonstrates a non-application of mind by the Detaining Authority to the facts governing his case. The detention orders dated 1st June 2018 passed in respect of each of the Petitioners, i.e. Mr. Sanjay Agarwal and Mr. Ajay Agarwal, to be unsustainable in law and they are accordingly hereby quashed - petition allowed.

Issues Involved:
1. Validity of preventive detention orders under COFEPOSA.
2. Application of mind by the Detaining Authority.
3. Variance between detention orders and grounds of detention.
4. Use of disjunctive 'or' in detention orders.
5. Compelling reasons for preventive detention.
6. Supply and legibility of Relied Upon Documents (RUDs).
7. Past conduct and its relevance to preventive detention.

Detailed Analysis:

1. Validity of Preventive Detention Orders under COFEPOSA:
The court addressed two writ petitions seeking quashing of preventive detention orders dated 1st June 2018 passed by the Joint Secretary, Government of India, under Section 3(1) of COFEPOSA. The orders aimed to prevent the petitioners from "smuggling goods, abetting the smuggling of goods, or engaging in transporting, or concealing or keeping smuggled goods or dealing in smuggled goods in future."

2. Application of Mind by the Detaining Authority:
The court found that the Detaining Authority demonstrated non-application of mind. The detention orders were verbatim copies of each other, merely substituting the name of the detenue with 'you'. This indicated a lack of individual consideration for each case, as highlighted in Rajesh Vashdev Adnani v. State of Maharashtra.

3. Variance Between Detention Orders and Grounds of Detention:
The court noted discrepancies between the detention orders and the grounds of detention. For instance, in Mr. Sanjay Agarwal's case, the detention order mentioned preventing him from "concealing smuggled goods," which was absent in the grounds of detention. Such variance caused confusion and indicated non-application of mind, as discussed in Vijay Kumar Dharna @ Koka v. Union of India.

4. Use of Disjunctive 'or' in Detention Orders:
The use of the disjunctive 'or' in the detention orders was criticized. The court observed that this casualness in drafting reflected non-application of mind by the Detaining Authority, as supported by the Supreme Court decisions in Jagannath Misra v. State of Orissa and Ananta Mukhi @ Ananta Hari v. State of West Bengal.

5. Compelling Reasons for Preventive Detention:
The court emphasized that preventive detention should be used in exceptional cases and not as a substitute for regular criminal law. The imminent possibility of statutory bail was not considered a compelling reason for preventive detention. The court cited Rekha v. State of Tamil Nadu, noting that preventive detention is not meant to be punitive.

6. Supply and Legibility of Relied Upon Documents (RUDs):
The court found that several RUDs were illegible, which vitiated the detention. The failure to supply clear and legible documents to the detenue was a significant issue, as highlighted in Manjit Singh Grewal @ Gogi v. Union of India.

7. Past Conduct and Its Relevance to Preventive Detention:
The court found that the past conduct of Mr. Sanjay Agarwal was not sufficiently specific to warrant preventive detention. The instances cited were not clearly linked to acts of 'smuggling'. The court also noted that the past conduct did not provide compelling reasons for preventive detention under Section 3(1) COFEPOSA.

Conclusion:
The court quashed the detention orders dated 1st June 2018 for both Mr. Sanjay Agarwal and Mr. Ajay Agarwal, finding them unsustainable in law. Both petitioners were ordered to be released forthwith from custody. The writ petitions were allowed with no orders as to costs.

← Previous Next →