2012 (12) TMI 861 - HC - Customs

Preventive detention Smuggling of goods - Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) - Smuggling of red sanders to Dubai - The red sanders recovered from the three containers - Seized under the provisions of the Customs Act, 1962 The detenu was served with the grounds of detention, which advert to the continual criminal activities of the detenu necessitating issuance of detention order, with a view to prevent him from indulging into smuggling activities in future Petitioner says and submits that the detaining authority has not formulated the grounds of detention at all - Detaining authority has merely replaced the names of detenu and co-detenues with words like you and your in the grounds of detention served on the detenu and co-detenues, implying that the grounds of detention have been formulated by the sponsoring authority and not by the detaining authority - The petitioner says and submits that the detention law, in the instant case, has been invoked against the detenu as he refused to bribe the concerned senior officers of the sponsoring authority Held that - Following the decision in case of Rajesh Vashdev Adnani vs. State of Maharashtra (2005 (10) TMI 493 - SUPREME COURT) that similar cosmetic changes were noticed in the grounds of detention purportedly formulated by the Detaining Authority. The Detaining Authority has not made any amends to ensure that the grounds of detention, and more particularly, the basis on which the subjective satisfaction has been reached must be formulated by the Detaining Authority on his own and not by bodily lifting the contents of the proposal sent by the Sponsoring Authority by making cosmetic changes thereto. Such approach of the Detaining Authority has been repeatedly frowned upon by the Courts considering the fact that the exercise of power to detain a person without a trial on the basis of circumstances of suspicion is a very drastic order to be passed, which cannot be and ought not to be resorted to lightly. Direct the State Authorities to forthwith release the detenu. In favour of assessee

Issues Involved:
1. Subjective satisfaction of the Detaining Authority.
2. Delay in issuance of the detention order.
3. Piecemeal consideration of the proposal.
4. Formulation of grounds of detention.
5. Non-placement of vital documents.
6. Non-consideration of pre-detention representations.
7. Discrepancies in grounds of detention and relied upon documents.
8. Previous arrests and detention.
9. Delay in sending report to the Central Government.
10. Inclusion of irrelevant and extraneous documents.

Issue-wise Detailed Analysis:

1. Subjective Satisfaction of the Detaining Authority:
The petitioner argued that the subjective satisfaction recorded by the Detaining Authority was vitiated as it overlooked whether the normal law of the land would have sufficed instead of preventive detention. The court found that the Detaining Authority's satisfaction was based on the material placed before it, indicating the necessity to prevent the detenu from engaging in prejudicial activities in the future.

2. Delay in Issuance of the Detention Order:
The petitioner contended there was an unexplained delay in issuing the detention order, primarily based on the seizure of red sanders on 2.9.2011, while the detention order was issued on 14.3.2012. The court did not find this delay to be unjustifiable, as the time taken was for better verification and application of mind.

3. Piecemeal Consideration of the Proposal:
The petitioner argued that the Detaining Authority considered the proposal in a piecemeal manner, which vitiated the subjective satisfaction. The court did not find substantial evidence to support this claim.

4. Formulation of Grounds of Detention:
The petitioner asserted that the grounds of detention were not formulated by the Detaining Authority but were verbatim reproduced from the proposal received, indicating non-application of mind. The court found this argument valid, as the grounds of detention were substantially the same as the proposal, with only cosmetic changes. This was indicative of a lack of independent formulation by the Detaining Authority.

5. Non-placement of Vital Documents:
The petitioner claimed that vital documents were not placed before the Detaining Authority, such as accompaniments to the show-cause notice, documents disclosing the weight of the containers, and statements of CHA. The court did not address this issue in detail as the petition succeeded on other grounds.

6. Non-consideration of Pre-detention Representations:
The petitioner argued that pre-detention representations were not placed before the Detaining Authority, which was mandatory. The court found that the Detaining Authority failed to consider these representations, further vitiating the detention order.

7. Discrepancies in Grounds of Detention and Relied Upon Documents:
The petitioner highlighted discrepancies between the grounds of detention and the relied-upon documents, indicating non-application of mind. The court agreed that such discrepancies were indicative of a lack of due consideration by the Detaining Authority.

8. Previous Arrests and Detention:
The petitioner argued that the Detaining Authority did not consider the detenu's previous arrests and quashing of a detention order in 2006. The court did not find this argument sufficient to vitiate the detention order on its own.

9. Delay in Sending Report to the Central Government:
The petitioner claimed that the State Government failed to send the report to the Central Government within the specified period, making the continued detention illegal. The court did not address this issue in detail as the petition succeeded on other grounds.

10. Inclusion of Irrelevant and Extraneous Documents:
The petitioner argued that the documents accompanying the grounds of detention contained irrelevant and extraneous documents, which abridged the detenu's right to make an effective representation. The court did not address this issue in detail as the petition succeeded on other grounds.

Conclusion:
The court found that the Detaining Authority's grounds of detention were not independently formulated but were verbatim reproductions of the proposal from the Sponsoring Authority. This indicated non-application of mind, making the detention order vitiated. Consequently, the court directed the immediate release of the detenu, Deepak Sharad Jare, unless required in any other criminal case. The petition was made absolute in terms of prayer clause (a), and the rule was made absolute accordingly.

← Previous Next →