2020 (2) TMI 243 - HC - Customs

Legality and validity of detention order - COFEPOSA Act - alleged smuggling of goods, abetting smuggling of goods and engaging in transporting or concealing or keeping smuggled goods - gold - cigarettes - betel nuts - inordinate delay in passing detention order - HELD THAT - The detention order stands vitiated on account of inordinate and explained delay in passing detention order, non supply of vital material / documents, more particularly bail orders of the Competent Court and release of co-detenue Shri Ramnarayan Laddha, on identical fact situation, his detention order was revoked by the Advisory Board - So on these three grounds, present petition deserves to be accepted and accordingly, it is hereby allowed. Detention order passed by respondent no.2 is hereby quashed and set aside. The petitioner shall be released forthwith, if he is not required in any other offence - petition allowed.

Summary

Issues Involved:
1. Inordinate delay in passing the detention order.
2. Failure to supply all relevant material to the detaining authority.
3. Differential treatment of the petitioner compared to a co-detenue.

Detailed Analysis:

1. Inordinate Delay in Passing the Detention Order:
The petitioner challenged the validity of the detention order dated 11.05.2018, asserting an inordinate delay in its issuance. The last prejudicial act was recorded in August 2017, and the detention order was passed ten months later. The petitioner argued that this delay vitiated the detention itself. The Court referenced the Supreme Court's decision in T.A. Abdul Rehman v. State of Kerala, which emphasized that the test of proximity is not rigid but depends on the facts and circumstances of each case. The Court found that the detaining authority failed to provide a reasonable explanation for the delay, thus breaking the causal connection between the prejudicial activities and the detention order.

2. Failure to Supply All Relevant Material to the Detaining Authority:
The petitioner argued that the sponsoring authority did not supply vital documents to the detaining authority, which could have influenced the decision. These documents included a copy of the regular bail order, letters regarding the retraction of the petitioner's statements, and other relevant materials. The Court cited the Delhi High Court's decision in Sahil Jain v. Union of India, which held that failure to consider vital facts that could influence the detaining authority's mind renders the detention order invalid. The Court concluded that the omission of these documents vitiated the subjective satisfaction required for the detention order.

3. Differential Treatment of the Petitioner Compared to a Co-detenue:
The petitioner contended that a co-detenue, Mr. Ram Narayan Laddha, was released under similar circumstances, and the differential treatment violated Article 14 of the Constitution of India. The Court noted that both the petitioner and Mr. Laddha were part of an organized syndicate involved in smuggling activities. The Court referenced the Delhi High Court's decision in Boris Sobotic Milkolic v. Union of India, which stated that if the case of the petitioner is not materially different from that of the co-detenues, the detention order should not stand. The Court found that the detaining authority failed to justify the differential treatment, thus rendering the detention order invalid.

Conclusion:
The Court quashed the detention order on three grounds: inordinate and unexplained delay, non-supply of vital documents, and differential treatment compared to a co-detenue. The petitioner was ordered to be released forthwith if not required in any other offense. The Civil Application was disposed of accordingly.