2022 (1) TMI 814 - HC - Customs

Seeking grant of bail - Smuggling - high value foreign origin black pepper abusing the facilities under the Indo-Nepal Treaty on Trade and Transit. - alleged fraudulent exports - live link between the incidents of alleged smuggling activities and the date on which the order of detention was issued or not - Subjective satisfaction for formation of opinion in issuing detention of order under Section 3(1) of the Act - Non-consideration of relevant materials by and/or non- disclosure of relevant materials before the Detaining Authority - refusal to supply additional documents and the legible copies of some relied upon documents thereby denying proper opportunity to the detenue to make effective representation - Cryptic and delayed consideration of representations of the detenue by the Central Government. HELD THAT - The Hon ble Supreme Court in HARADHAN SAHA VERSUS STATE OF WB. 1974 (8) TMI 104 - SUPREME COURT elaborately explained the concept of preventive detention to mean that the detention of a person is not to punish him of something he has done but to prevent him from doing it. The basis of detention is the satisfaction of the executive of a reasonable probability of the likelihood of the detenue acting in a manner similar to his past acts and preventing him by detention from doing the same. Further it has been held that a criminal conviction is for the act already been done which can be possible by a trial and legal evidence and there is no parallel between prosecution in a Court of Law and detention order under the Act as one is punitive action and the other is the preventive act - it has been held that Article 14 is inapplicable because preventive detention and prosecution are not synonymous as the purposes are different and the authorities are different. In prosecution, the accused is sought to be punished for a past act and in preventing detention the past act is merely the material for interference about the future course of probable conduct on the part of the detenue. The contention of the Learned Counsel for the petitioner that the cases which are basis for the detention to have no live link has to be rejected. Of the two cases black pepper case has concluded holding the detenue guilty for violating the provisions of Customs Act. With regard to illegal availments of IGST refunds it appears that it is large scale conspiracy where several persons are involved and the detaining authority was satisfied from the materials available and the statements recorded under section 108 not only from the detenue but other co-accused that the detenue was the main person in the entire illegal operation. Furthermore, the case of illegal availment of refunds of IGST is in the process of investigation - there is sufficient live link available on record so as to indicate that all the past events are sufficient to form an opinion by the detaining authority to pass the order of preventive detention against the detenue. The antecedent activities of the detenue is clearing export of goods on paper without actual physical exports of goods would undoubtedly fall within the ambit of a smuggling activity and therefore alleged illegal availment of IGST would fall within the definition of smuggling . There exists live link between the alleged incidents referred in the grounds of detention, which are undoubtedly smuggling activities, with regard to the date on which the order of detention was passed the by the detaining authority who has validly recorded satisfaction for issuing the order of detention under section 3(1) of the Act and while doing so he has taken note of the relevant material and antecedent of the detenue and his propensity to commit the same in future and the detenue has not been prejudiced in any manner as relevant documents which formed basis of the order of detention have been supplied - the Learned Counsel had contended that the bail order is a concocted document. This argument deserves to be rejected as the copy of the bail order which has been furnished to the detenue is a typed copy and that has been clearly demonstrated by the Learned Additional Solicitor General by producing both the hand written order as well as the typed order. The writ petition is dismissed.

Issues Involved:
1. Live link between the incidents of alleged smuggling activities and the date of the order of detention.
2. Subjective satisfaction for the formation of opinion in issuing the detention order under Section 3(1) of the Act.
3. Non-consideration of relevant materials by and/or non-disclosure of relevant materials before the Detaining Authority.
4. Refusal to supply additional documents and legible copies of some relied-upon documents, thereby denying proper opportunity to the detenue to make an effective representation.
5. Cryptic and delayed consideration of representations of the detenue by the Central Government.

Detailed Analysis:

1. Live Link Between Incidents and Detention Order:
The petitioner argued that there was no live link between the alleged smuggling activities and the order of detention, as the incidents occurred a year prior. The Court found that the detaining authority considered the gravity of the activities and the propensity of the detenue to engage in similar acts in the future. The chain of events, including statements under Section 108 of the Customs Act and the detenue's involvement in fraudulent export activities, was sufficient to form the opinion that preventive detention was necessary. The Court held that the cases were proximate in time, and the order of detention was justified.

2. Subjective Satisfaction:
The petitioner contended that the subjective satisfaction of the detaining authority was vitiated. The Court noted that the detaining authority relied on statements recorded under Section 108 of the Customs Act, which implicated the detenue in smuggling activities. The Court held that the detaining authority was justified in recording satisfaction based on the materials available, including the detenue's own admissions. The Court rejected the argument that the alleged illegal availment of IGST refunds did not constitute "smuggling" under Section 2(39) of the Customs Act.

3. Non-Consideration of Relevant Materials:
The petitioner argued that relevant materials, including retraction statements, were not placed before the detaining authority. The Court found no evidence that the alleged retraction petitions were served on the DRI or taken on record by the Chief Metropolitan Magistrate. The Court noted that the detenue did not mention any retraction in his subsequent statements under Section 108 of the Customs Act. The Court held that the detaining authority was justified in relying on the statements and that the contention of non-consideration of relevant materials was not established.

4. Refusal to Supply Additional Documents:
The petitioner contended that the refusal to supply additional documents and legible copies denied the detenue a proper opportunity to make an effective representation. The Court found that the documents sought were either irrelevant or not relied upon by the detaining authority. The Court noted that the detenue did not immediately raise the issue of non-supply or illegibility of documents and that the representations were made with an intention to delay the proceedings. The Court held that the contention of non-supply of documents was not sustainable.

5. Consideration of Representations:
The petitioner argued that the representations were considered mechanically and without application of mind. The Court found that the authorities had carefully examined and considered the representations within a reasonable time. The Court noted that the replies to the representations indicated proper consideration and were not devoid of reasons. The Court held that the contention of improper consideration of representations was not established.

Conclusion:
The Court dismissed the writ petition, affirming the order of detention. The Court held that there was a live link between the incidents and the detention order, the subjective satisfaction of the detaining authority was valid, relevant materials were considered, additional documents were not necessary, and the representations were properly considered. The Court found no violation of the detenue's rights and upheld the order of preventive detention.

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