2021 (8) TMI 727 - HC - Customs

Detention of petitioner - Smuggling - gold/gold jewellery - validity of action of Detaining Authority - right of making an effective representation is jeopardized - inordinate delay of impugned order of detention passed - non-application of mind - 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 or not - delay on the part of the Central Government in deciding the representation filed by the detenu or not - grounds stated in detention order have been lifted from the grounds taken in an entirely different case. Whether the Detaining Authority acted independently and without any bias whilst passing the impugned order 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. Whether the detenu s constitutionally secured right of making an effective representation has been jeopardized, by the non-supply of legible and complete documents, inspite of the detenu s request in this regard, thereby rendering the order of detention illegal and bad? - HELD THAT - In the present case, the denial by the official respondent to supply legible copies of the relevant documents to the detenu, despite his express request to do so, tantamount to denial of his constitutional right, thereby vitiating the detention order, founded on the said relevant material. Whether the order of detention is bad in law and vitiated on the ground of inordinate delay? - HELD THAT - In the absence of any mention of such overseas evidence in the subject detention order, the same cannot be considered as germane in order to satisfactorily explain the delay occasioned in passing of the impugned order of detention. The Court can interfere with the order of detention on the ground of inordinate and unexplained delay, a fortiori, there has been substantial, unexplained delay in passing the impugned order of detention. As a result, in the absence of any satisfactory explanation for it, the inordinate delay leads to snapping of the required live and proximate link and direct nexus with the immediate need to detain the petitioner. Whether the impugned detention order is vitiated on account of nonapplication of mind? - HELD THAT - A plain reading of the said grounds of detention clearly reflects the extensive reliance placed upon the said statements by the Detaining Authority, for arriving at its subjective satisfaction - once the Detaining Authority has relied upon the inculpatory statements of the co-accused, their retractions also 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. 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 legal position that emerges on this aspect is that, if the documents are relevant and have a direct bearing on the case, they were required to have been placed before the Detaining Authority for its subjective satisfaction . The Detaining Authority did not consider the conduct of the detenu, post his enlargement on bail whilst rendering the impugned order of detention, since despite the release of his passport and the granting of the requisite permission to travel abroad, the detenu voluntarily chose not to travel overseas, clearly and unequivocally establishing his bona fides and debunking the arguments of his propensity to continue to indulge in prejudicial activities in the immediate future. This was never brought to the notice of the Detaining Authority, thereby precluding the latter from considering this relevant and germane circumstance, whilst arriving at its subjective satisfaction in this behalf - the Detaining Authority has erred in arriving at the finding qua the propensity of the detenu to involve himself in further prejudicial activities, by failing to consider the facts and circumstances. Delay on the part of the Central Government in deciding the representation filed by the detenu - HELD THAT - There was massive delay of 57 days by the Central Government in dealing with the petitioner s representation - it is well settled that the right of the detenu to make a representation and have it considered by the appropriate Government with expedition, is a constitutional right under Article 22(5) of the Constitution of India and any unreasonable and unexplained delay in considering the representation is fatal to the continued detention of the detenu - there has been inordinate and unexplained delay on the part of the Central Government in deciding the statutory representation filed by the detenu. Whether the subject detention order stands vitiated for the reason that the grounds stated therein have been lifted from the grounds taken in an entirely different case? - HELD THAT - The petitioner herein have produced certified copies of the detention order in the case of UNION OF INDIA, JOINT SECRETARY (COFEPOSA) , GOVT. OF INDIA, MINISTRY OF FINANCE VERSUS DIMPLE HAPPY DHAKAD 2019 (8) TMI 139 - SUPREME COURT (filed by the detenu s wife) from the records available in the Supreme Court of India. A purposive, comparative consideration of the grounds of detention dated 17.05.2019 in Dimple Happy Dhakad (supra), also passed by Mr. R.P. Singh, the Detaining Authority in these proceedings and the impugned detention order, the inference clearly 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 order was mechanical, as the grounds have been lifted from the grounds of an altogether distinct case. Such a blatant copy-paste job by the Detaining Authority demonstrates clear non-application of mind. The impugned order of detention is vitiated on this ground as well - issue decided in favour of the detenu and against the respondents - petition allowed.

Summary

Issues Involved:
1. Independence and Bias of the Detaining Authority
2. Non-supply of Legible and Complete Documents
3. Inordinate Delay in Passing the Detention Order
4. Non-application of Mind by the Detaining Authority
5. Propensity of the Detenu to Continue Prejudicial Activities
6. Delay in Deciding Representation by the Central Government
7. Lifting of Grounds from an Entirely Different Case

Issue-wise Detailed Analysis:

1. Independence and Bias of the Detaining Authority:
The court examined whether the Detaining Authority acted independently and without bias while passing the detention order. The petitioner provided a letter dated 02.09.2019 authored by Mr. R.P. Singh, which indicated his active involvement in the investigation prior to passing the detention order. The court found that Mr. R.P. Singh was closely monitoring the investigation, which compromised his independence and indicated a pre-determined approach and bias. The dual role played by Mr. R.P. Singh in the investigation and as J.S. (COFEPOSA) vitiated the subjective satisfaction required under Section 3(1) of COFEPOSA.

2. Non-supply of Legible and Complete Documents:
The petitioner requested legible copies of several documents, which were denied by the Detaining Authority. The court emphasized that the detenu has a constitutional right to make an effective representation against the detention order, which requires the supply of all relevant documents. The non-supply of legible copies of critical documents, such as the passport, identity cards of co-detenus, WhatsApp chats, bill of entry, invoice, and the statement of Mr. Rohit Sharma, rendered the detention order illegal and bad.

3. Inordinate Delay in Passing the Detention Order:
The petitioner argued that there was an unexplained delay of 272 days in passing the detention order. The court found that the respondents failed to provide a satisfactory explanation for the delay. The purported overseas evidence from Dubai, which was cited by the respondents, was not mentioned in the detention order or placed before the Detaining Authority. The unexplained delay led to the snapping of the live and proximate link between the prejudicial activities and the detention order, rendering it invalid.

4. Non-application of Mind by the Detaining Authority:
The Detaining Authority relied heavily on the statements of the detenu and co-detenus, which had been retracted. The court noted that the retractions and the belated rebuttal by the DRI were not adequately considered by the Detaining Authority. Additionally, the statements of co-accused Vikram Bhasin and Mahesh Jain, who had also retracted their statements, were not placed before the Detaining Authority. The failure to consider these retractions and the admissibility of the statements indicated non-application of mind, vitiating the subjective satisfaction of the Detaining Authority.

5. Propensity of the Detenu to Continue Prejudicial Activities:
The court observed that the Detaining Authority failed to consider the detenu's conduct post his enlargement on bail, including the release of his passport and his decision not to travel abroad. The placement of IMNPL under the Denied Entity List and the suspension of Vikram Bhasin were also not considered. These factors were relevant in assessing the detenu's propensity to continue prejudicial activities, and the failure to consider them rendered the detention order invalid.

6. Delay in Deciding Representation by the Central Government:
The court found that there was a delay of 57 days by the Central Government in deciding the detenu's representation. The right to make a representation and have it considered with expedition is a constitutional right under Article 22(5) of the Constitution of India. The inordinate and unexplained delay in considering the representation was fatal to the continued detention of the detenu.

7. Lifting of Grounds from an Entirely Different Case:
The court noted that the grounds of detention in the present case were almost identical to those in the case of Dimple Happy Dhakad, indicating a mechanical copy-paste job by the Detaining Authority. This demonstrated clear non-application of mind and rendered the detention order invalid.

Conclusion:
The court held that the issues raised by the petitioner were valid and decided in favor of the detenu. The detention order dated 21.01.2020 was set aside and quashed, and the detenu was directed to be set at liberty forthwith unless required in connection with any other case.