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2021 (8) TMI 679 - HC - CustomsValidity of detention order - re-import of gold jewellery - allegation of misuse of Advance Authorization Scheme through circular trading of gold jewellery exported under the guise of exhibition from India through hand- carrying and subsequently re-importing (smuggling) the same fraudulently into India. Whether the Detaining Authority acted independently and without any bias, whilst rendering the impugned orders of detention? - HELD THAT - The powers conferred under Section 3(1) of the COFEPOSA have not been complied with independently in the present case. We are also in agreement with the submissions made by learned Senior Counsel in this behalf that, there is nothing in Section 3 of the COFEPOSA or in the scheme of the Act, which suggests that the especially empowered officer must act only on receipt of the proposal of some other agency or Sponsoring Authority . In fact the expression Sponsoring Authority and Detaining Authority find no mention in the statute. There was nothing that prevented Mr. R.P. Singh, whilst acting as J.S. (COFEPOSA), from passing the impugned orders of detention at the first opportunity. Resultantly, the argument of pre-determined approach and bias stands established in the present case. Whether the impugned orders of detention passed are bad in law and vitiated on the ground of inordinate delay - HELD THAT - Although it was urged before this Court by the respondents at the pre-execution stage about the overseas evidence received from Dubai in November, 2019; however, no reference to such evidence is to be found in the impugned detention orders - in the absence of any mention of such overseas evidence in the subject detention orders, the same cannot be considered as germane in order to satisfactorily explain the delay occasioned in passing the impugned orders of detention. The Court can interfere with the orders of detention on the ground of inordinate and unexplained delay, a fortiori, there has been a delay in passing the impugned orders of detention. As a result, in the absence of a satisfactory explanation, the inordinate delay leads to snapping of the live and proximate link and direct nexus between the alleged prejudicial activity and any immediate need to detain the petitioners. Whether the impugned detention orders are vitiated on the ground of non-application of mind? - HELD THAT - Once the Detaining Authority has relied upon the inculpatory 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 questionable once there is a retraction, which issue merited consideration, not accorded to it by the Detaining Authority. The legal position that emerges on this aspect 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 . Whether the detaining authority has arrived at its subjective satisfaction without properly appreciating and satisfying itself qua the propensity of the detenu to continue indulging in prejudicial activities? - HELD THAT - The Detaining Authority whilst arriving at its subjective satisfaction failed to properly examine whether the detenus exhibited propensity to continue indulging in any prejudicial activities, for the reason that there was no consideration of the circumstance that IMNPL had been placed under the Denied Entity List, thereby clearly indicating and establishing that it could no longer import gold under the Advance Authorization Scheme; and completely eliminating the possibility of it misusing the said scheme. The consideration of the said aspect is conspicuous by its absence in the impugned detention orders - The Detaining Authority has erred in arriving at the finding qua the propensity of the detenus to involve themselves in further prejudicial activities, by failing to consider the facts and circumstances. Whether there has been delay on the part of the Central Government in deciding the representation filed by the detenus? - HELD THAT - It would be relevant to consider the circumstance that both detenus were detained on 01.10.2020 and filed representations dated 16.10.2020 and 20.10.2020 respectively, with the Detaining Authority, as well as with the Central Government. Although the Detaining Authority rejected their representations on 03.11.2020, no decision, however, was taken by the Central Government on the detenus representations. Instead the Central Government made a reference dated 03.11.2020 to the Central Advisory Board, which gave its opinion qua the sufficiency of the grounds with regard to the detenus detention. The subject representations were finally rejected by the Central Government only on 23.12.2020, three days after confirmation by it of the orders of detention by the Central Advisory Board. Thus, insofar as the case of detenus Amit Pal Singh and Gopal Gupta are concerned, there was massive delay of 69 days and 65 days respectively by the Central Government in dealing with their representations - there has been inordinate and unexplained delay on the part of the Central Government in deciding the statutory representations filed by the detenus. Whether the detention orders stand vitiated owing to the reason that the grounds stated therein have been lifted from the grounds taken in an entirely different case? - HELD THAT - A purposive comparative consideration of the grounds of detention in UNION OF INDIA, JOINT SECRETARY (COFEPOSA) , GOVT. OF INDIA, MINISTRY OF FINANCE VERSUS DIMPLE HAPPY DHAKAD 2019 (8) TMI 139 - SUPREME COURT , also passed by Sh. R.P. Singh, the Detaining Authority in these proceedings; and the impugned detention orders, gives substance to the inference is that barring a few differences in the names and references etc -mutatis mutandis-the grounds are unerringly identical. The said comparison ground-for-ground leads but to one inescapable conclusion, that the entire exercise of passing the detention orders is mechanical, as the grounds have been lifted from the grounds of an altogether distinct case. Such a blatant copy-paste by the Detaining Authority demonstrates a clear non-application of mind - the impugned orders of detention are liable to be vitiated on this ground as well.
Issues Involved:
1. Independence and Bias of the Detaining Authority 2. Delay in Passing Detention Orders 3. Non-Application of Mind by the Detaining Authority 4. Propensity of the Detenu to Continue Prejudicial Activities 5. Delay in Deciding Representation by the Central Government 6. Copy-Paste Grounds from a Different Case Detailed Analysis: 1. Independence and Bias of the Detaining Authority: - The petitioners argued that the Detaining Authority, Mr. R.P. Singh, was involved in the investigation much before passing the detention orders, indicating a lack of independence and bias. This was evidenced by a letter dated 02.09.2019, which predates the detention order by approximately four and a half months. - The court found that Mr. R.P. Singh was actively involved in the investigation and coordinating with different agencies, thus failing to act independently as required under Section 3(1) of COFEPOSA. The dual role played by him compromised the independence and unbiased nature required for passing detention orders. 2. Delay in Passing Detention Orders: - The petitioners highlighted an inordinate delay of 272 days from the date of the alleged incident to the passing of the detention orders. - The court noted that the respondents initially justified the delay by citing the receipt of overseas evidence from Dubai in November 2019. However, this evidence was not mentioned in the detention orders or placed before the Detaining Authority. - The court concluded that the delay was unexplained and led to snapping the live and proximate link between the alleged prejudicial activities and the need for detention, thus vitiating the detention orders. 3. Non-Application of Mind by the Detaining Authority: - The Detaining Authority heavily relied on the statements of the detenus and co-detenus recorded under the Customs Act, without considering their retractions. - The court found that the Detaining Authority did not consider the retractions or the belated rebuttals by the DRI, which were issued just five days before passing the detention orders. This indicated non-application of mind. - The court also noted that the statements of co-accused Vikram Bhasin and Mahesh Jain, who had retracted their statements, were not placed before the Detaining Authority, further vitiating the subjective satisfaction. 4. Propensity of the Detenu to Continue Prejudicial Activities: - The court observed that the Detaining Authority failed to consider that IMNPL was placed under the Denied Entity List, eliminating the possibility of misusing the Advance Authorization Scheme. - The suspension of co-accused Vikram Bhasin and the seizure of detenu Amit Pal Singh's passport were not considered, which were relevant factors for determining the propensity to indulge in prejudicial activities. - The court found that the Detaining Authority did not consider the post-bail conduct of the detenus or the order of CESTAT directing provisional release of the goods, indicating a lack of proper examination. 5. Delay in Deciding Representation by the Central Government: - The court noted a significant delay of 69 and 65 days by the Central Government in deciding the representations filed by detenus Amit Pal Singh and Gopal Gupta, respectively. - The court held that the delay in considering the representations violated the detenus' constitutional rights under Article 22(5) of the Constitution of India, which mandates expeditious consideration of representations. 6. Copy-Paste Grounds from a Different Case: - The petitioners provided evidence that the grounds of detention in their case were identical to those in a different case involving Dimple Happy Dhakad, indicating a mechanical exercise and non-application of mind. - The court found that the grounds of detention were blatantly copied from another case, which demonstrated a clear non-application of mind and vitiated the detention orders. Conclusion: - The court quashed the detention orders dated 21.01.2020 against the detenus, Gopal Gupta and Amit Pal Singh, and directed their immediate release unless required in connection with any other case. - The writ petitions were disposed of in favor of the petitioners, and the judgment was to be provided to the parties and uploaded on the court's website.
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