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TMI Blog2000 (12) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... to smuggling of goods as defined in section 2(39) of the Customs Act, 1962 and as adopted in the COFEPOSA Act, 1974 via section 2( c ) thereof since your acts and omissions have rendered the goods involved liable to confiscation under sections 111 and 113 of the Customs Act, 1962 read inter alia with Rule 11 and Rule 14 of Foreign Trade (Regulation) Rule 1993, framed under Foreign Trade (Development and Regulation) Act, 1992. In view of the facts mentioned above, I have no hesitation in arriving at the conclusion that you have been engaging in smuggling goods. Considering the nature and gravity of the offence, the well-organised manner in which the prejudicial activities have been indulged in by you, your role therein as well as your dubious conduct as brought out above all of which reflect your high potentiality and propensity to indulge in such prejudicial activities in future, I am satisfied that there is a need to prevent you from indulging in such prejudicial activities in future by detention under the COFEPOSA Act, 1974. In view of the above, and further having regard to the chronological sequence of events and your high propensity and potentiality to indulge in such ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterials came which were taken note of. (2) There are materials to show that Sponsoring Authority and Detaining Authority were acting in unison and therefore, there was no independent application of mind. (3) Some of the relied upon documents are not in a language which is known either to the detenu or the detaining authority and therefore, the order of detention is vitiated. (4) Before the order of detention was passed, proposal for detention was placed before the Screening Committee, which did not consider it necessary to suggest detention. Without any further material, only after lapse of few days order of detention has been passed. (5) Certain materials which could have weighed with the Detaining Authority while arriving at the subjective satisfaction were not placed by the Sponsoring Authority on the ground that they were not relevant. It is not for the Sponsoring Authority to decide as to what material is relevant. He should have placed all material which is linked with the subjective satisfaction, before the Detaining Authority, as it is the subjective satisfac-tion of the Detaining Authority and the Sponsoring Authority had no right to withhold the materials. By way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... So far as the submission regarding non-supply of English translation of Arabic Documents is concerned, it has been submitted that the documents in question related to receipt of goods by foreign buyer and contained a Bill of Lading. The documents on which the detenu relied related to variety of Shipping Bills a small portion of which is in Arabic. There was no allegation by detaining authority that export was not made at all. Detention order was based on the allegation that Shipping Bills were forged after export was made and the documents were submitted by the detenu himself along with his representation. Therefore, non-supply of translation did not in any way vitiate the order of detention. Further it has not been shown as to what prejudice has been caused due to non supply of translation. It does not in any manner cause prejudice to him in making an effective representation. There is no reference to or reliance on any document in Arabic. At the most it could be said that a passing reference was made to the document. In any event, even if it is conceded for the sake of argument that English translation ought to have been furnished, that does not vitiate the entire order of deten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quirements and safeguards to be followed when it is necessary to deprive any person, for any cause whatsoever and for, however, brief a period of his personal liberty by placing him under arrest or keeping him in detention. Those are ( i ) to be informed, as soon as may be, of grounds of such arrest; ( ii ) not to be denied the right to consult and to be defended by a legal practitioner of his choice; ( iii ) to be produced before the nearest Magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate ( iv ) not to be detained in custody beyond the said period of twenty four hours without the authority of a Magistrate. Clauses (1) and (2) contain the guarantee of the four Fundamental Rights enumerated above. Clause (3) contains two exceptions and provides that the constitutional guarantees do not apply to ( a ) enemy aliens, and ( b ) persons arrested or detained under any law providing for preventive detention. Clauses (4) and (7) are devoted to laying down certain fundamental principles as to preventive detention and guaranteeing certain Fundamental Rights to persons who are a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... society, and the purposes of the Act in the light of concepts of liberty, and fundamental freedoms. While the expression grounds for that matter includes not only conclu- sions of fact but also all the basic facts on which those conclusions were founded; they are different from subsidiary facts or further particulars or the basic facts. The detenu is entitled to obtain particulars of the grounds which will enable him to make an effective representation against the order of detention. 10. Personal liberty protected under article 21 is held so sacrosanct and so high in the scale of constitutional values that Courts have shown great anxiety for its protection and wherever a petition for writ of habeas corpus is brought up it has been held that the obligation of the detaining authority is not confined just to meet the specific grounds of challenge, but is required to show that the impugned detention meticulously accords with the procedure established by law. Indeed the English courts a century ago, echoed the stringency and concern of this judicial vigilance in matters of personal liberty in the following words: "Then comes the question upon the habeas corpus . It is a general ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of similar propensities on the part of the offender. This jurisdiction has been called a jurisdiction of suspicion; but the compulsions of the very preservation of the values of freedom of democratic society and of social order might compel a curtailment for individual liberty. To lose our country by a scrupulous adherence to the written law said Thomas Jefferson would be to lose the law itself, with life, liberty and all those who are enjoying with us, thus absurdly sacrificing the end to the needs. This, no doubt, is the theoretical jurisdiction for the law enabling preventive detention. But the actual manner of administration of the law of preventive detention is of utmost importance. The law has to be justified by the genius of its administration so as to strike the right balance between individual liberty on the one hand and the needs of an orderly society on the other. But the realities of executive excesses in the actual enforcement of the law have put the Courts on the alert, ever ready to intervene and confine the power within strict limits of the law both substantive and procedural. The paradigms and value judgments of the maintenance of a right balance are not static ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conomic discipline etc., being envisaged as a necessary evil to be administered under strict constitutional restrictions. In Smt. Icchudevi Choraria v. Union of India AIR 1980 SC 1983, Bhagwati, J. spoke of this judicial commitment : ". . . The court has always regarded personal liberty as the most previous possession of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade." (p. 1988) ". . . This is an area where the Court has been most strict and scrupulous in ensuring observance with the requirement of the law, and even where a requirement of the law is breached in the slightest measures, the Court has not hesitated to strike down the order of detention. . . ." (p. 1988) In Vijay Narain Singh v. State of Bihar AIR 1984 SC 1334 Justice Chinnappa Reddy in his concurring majority view said : ". . . I do not agree with the view that those who are responsible for the national security or for the maintenance of public order must be the sole judges of what the national security or public order requires. It is too perilous a proposition. Our Constitution does not give a carte blanche to any org ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are some observations to this effect in Aswin Kumar B Malari v. State of Madhya Pradesh 1987 (3) Bombay CR 11, we do not think that the observations made therein are of general application. As indicated above, sponsoring authority while considering a question whether order of detention is to be passed is under consideration and before a final decision has been taken can place some materials before the detaining authority. If he feels that they would reinforce his satisfaction about the necessity of detention order it may be the final straw for subjective satisfaction. There can be no illegality on the material being considered. There may be cases where a subjective satisfaction has already been reached and subsequently some material comes, which provide additional grounds for detention, the position may be somewhat different, but that question does not arise in the present case. It is not possible for detaining authority while considering large volume of documents on a single day to take a decision. If that happens the usual plea is taken, as has been done in the present case that a large number of documents could not have been considered on a single day and it is practically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tations made earlier to the order of detention. It is relevant to take note of representations made on behalf of the detenu S.S. Sandhu, Ajay Vyas and it is by one Kartar Lal Vaish. Initial representations were made on 20-12-1999, 20-1-2000 and finally on 21-2-2000. These related to the apprehended detention of Ajay Vaish, Rajeev M. Pathak and S.S. Sandhu and others. Along with the said representation, several documents were annexed including the documents in Arabic language. In the representation dated 21-2-2000, it was indicated that the Customs Authorities have been provided with proof in relation to overseas buyer that the foreign buyer has received the materials and bills of entry at the foreign port. Letter from foreign buyer was also annexed. A recent judgment of Apex Court is of great relevance in this regard. In B. Mahalingam v. Distt Magistrate District Collector AIR 2000 SCW 2029, it was observed by the Apex Court: "The petitioner, brother of a detenu, under the provisions of Tamil Nadu Act 14 of 1982 filed a petition for Habeas Corpus before the High Court of Madras challenging the legality of the order of detention as well as the continued detention of the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not, therefore, possible to hold that the Government or officer making such order would have been satisfied as provided in sub-section (1) of section 3 with reference to the remaining ground or grounds and made the order of detention; ( b )the Government or officer making the order of detention shall be deemed to have made the order of detention under the said sub-section (1) after being satisfied as provided in that sub-section with reference to the remaining ground or grounds." 18. The provision, stipulates when detention order is based on two or more grounds then such order of detention shall be deemed to have been made separately. Thus such detention order shall not be deemed to be invalid on the ground one of such grounds is vague, non-existent, not relevant or not proximately connected. Reliance is placed on Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala AIR 1986 SC 687 was a case where retraction of confession made by the detenu not referred to in the grounds of detention. The Apex Court in view of section 5A held that detention order should not vitiate on the ground of non-application of mind if subjective satisfaction arrived at on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adesh AIR 1990 SC 1272 it was held as under: ". . . What Section 5A provides is that where there are two or more grounds covering various activities of the detenu, each activity is a separate ground by itself and if one of the ground is vague, non-existent, not relevant, not connected or not proximately connected with such person or invalid for any other reason whatsoever, then that will not vitiate the order of detention." (p. 1275) 21. Abdul Sathar Ibrahim Manik v. Union of India AIR 1991 SC 2261 is a case under the Act where detenu was already in jail. The question was whether the bail application made by the detenu and an order of its rejection, if not placed before the detaining authority, what would have its effect. It was held, it would not amount to the suppression of relevant material on the facts of this case as the detaining authority was aware of the actual custody of the detenu. It also held non-supply of the said two documents to the detenu would also not vitiate the detention order since they were only referred to and not relied on by the detaining authority. The Apex Court held : ". . . In the instant case, the facts are different. In the counter-affida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration of the detaining authority. It is not a case where he has screened out materials. Merely because some materials which have been referred to in the statements recorded and/or indicated in seized docu-ments have not been placed before the detaining authority that cannot per se show that the sponsoring authority did not think it material for consideration of the detaining authority. We shall deal with documents specifically referred to by petitioner. Grievance is made relating to certain documents which were seized during search on 17-11-1994 in the office premises of Pragati Sales Corporation, Knomo Exports and residences of Directors of the said Knomo Exports at Nepean Sea Road were not forwarded to the detaining authority. All the documents mentioned in Panchnamas which were seized were not relied upon by the Detaining Authority. Reference may be made to some of the forms non-supply of which has been highlighted. It is stated that GR forms were not fully supplied. These forms are prescribed by the RBI for limited purpose of bank related formalities. These forms contain details like value, weight, quantity, description which have been fabricated/manipulated in the Shipping ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aju. In his statement Shri Raju has categorically stated that the entries made in the Cargo receipts are merely on the basis of party s declaration and not on the basis of the actual inspection. He further stated that only 1/6th of the space of the container was occupied by cargo. The gross weight in Consumer Load Plan (in short CLP) and in challan copies is in quintals and not in metric tones. On visual inspection each container had approximately 800 kgs of cargo only, and also that each carton had 6-8 Kgs weight. All these facts indicate that the details mentioned therein are all false and the Cargo receipt details become redundant. The CLP does not contain any detail which do not figure in the shipping bills and the CLP evidences the loading of cargo in the containers. Present case pertains to manipulation/forgery done in the entries in the shipping bills which have already been submitted to the detaining authority. All the shipping bills have been placed for consideration of the detaining authority. It was pointed out that duplicate copies of the shipping bills bearing mark AC(X) below the examination order have already been submitted as part of the forensic examination report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be invalid. The concerned authorities have to take note of the various facts including the fact that this was a solitary incident in the case of the detenu and that he had been granted bail earlier in respect of which the application for cancellation of the same was made but was rejected by the Court. In this case there has been due application of mind by the concerned authority to that aspect of the matter as we have indicated in the course of narration of facts. Therefore, the view taken by the High Court in the circumstances of the case cannot be sustained." For the purpose of exercise of the power of detention it is not necessary to prove to the hilt that the person concerned had committed any of the offences as stated in the Act. It is sufficient if from the material available on record the detaining authority could reasonably feel satisfied about the necessity for detention of the person concerned in order to prevent him from indulging in activities prejudicial to the maintenance of public order. In the absence of any provision specifying the type of material which may or may not be taken into consideration by the detaining authority and keeping in view the purpose the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fresh proposal sent by the Sponsoring Authority i.e. the Bombay Port has been duly noted. As indicated above, there were two separate proposals received from Navasheva and Bombay. Minutes of all the meetings of the Screening Committee were placed before the Detaining Authority. 25. It is to be noted that Screening Committee had not on the first occasion observed that there was no case made out for detention. It had only deferred the matter. Subsequently, another proposal was received. We find no substance in the plea of the petitioner regarding non-application of mind by the Detaining Authority vis-a-vis the Screening Committee s views in view of the aforesaid decision. 26. Much has been made of the alleged lifting some portions of the proposal submitted by the Sponsoring Authority. We have perused the original records. It is true that some portions of the Sponsoring Authority s recommendations have been incorporated in the final order of detention. But mere fact that some portions of the recommendations were taken from the proposal and incorporated in the final decision does not show non-application of mind. It cannot be laid down as rule of universal application tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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