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TMI Blog2001 (11) TMI 945X X X X Extracts X X X X X X X X Extracts X X X X ..... gment and order dated 1-12-2000 of the Delhi High Court in Gurdev Singh v. Union of India [Criminal Writ Petition No. 352 of 2000] dismissing the writ petition. 3. At the commencement of hearing of the case Shri V.A. Mohta, the learned senior counsel appearing for the appellant submitted that though the detenu has already undergone the period of detention this Court may decide the legality and validity of the detention order since the appellant apprehends that certain further actions may be taken on the basis of the order of detention which has spent its force by afflux of time. 4. In pursuance of the detention order passed by the Joint Secretary to the Government of India in the Ministry of Finance (Department of Revenue) on 2-3-2000 in exercise of the power under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 as amended, ('the COFEPOSA Act'); Swarn Singh Sandhu was detained and kept in custody in Central Prison, Nasik. In compliance with the provisions of section 3(3), read with clause (5) of article 22 of the Constitution of India the grounds of detention dated 2-3-2000 along with the documents mentioned and relied upon th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther investigation made after search of the premises of these firms revealed that one more company, namely Knomo Exports Ltd. (later changed to KEL Exports Ltd.) was also related to exports made by the said three firms. The detenu was a Director of Knomo Exports Ltd. (renamed as KEL Exports Ltd.). It was further stated in the grounds of detention that investigations revealed that the aforementioned three firms have claimed the benefit of DEPB scheme against exports of various bulk consignments of drugs covered by 32 shipping bills. These exports were made from the port of Mumbai. The total FOB value of the bulk drugs shown to have been exported under these 32 shipping bills amounted to Rs. 29,14,59,690 and the said amount was adjusted against the advance remittances received by Knomo Exports Ltd. It was stated in the grounds that all the 32 bank certificates of export realisation show that the total foreign exchange equivalent to total FOB value has been shown to have been received by Knomo Exports Ltd. and the detenu had signed as director on all these certificates. The said certificates signed by the detenu were submitted to the office of the Joint DGFT along with the copies of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he detenu and his attempt to leave Mumbai for Delhi violating the condition in the bail order. 7. In the grounds of detention the detaining authority has also set out in detail the organised move made by the detenu and his associates to secure similar benefits of the customs duty in respect of 58 forged and manipulated shipping bills showing export of garments from Nhava Sheva port in Gujarat. The FOB value of the 58 shipping bills was around 30 crores and this amount was also adjusted against the advance remittances received by Knomo Exports Ltd. (later renamed as KEL Exports Ltd.) All the related bank certificates of export realisation show that the total foreign exchange equivalent of the cumulative FOB value has been shown to have been received by erstwhile company Knomo Exports Ltd. and the detenu has signed as Director of KEL Exports Ltd. on these certificates. 8. From the narration of facts in the grounds of detention, it is clear that the detaining authority has not only taken note of the allegations made against the detenu; the materials collected by the investigating agency of the department against him but has also taken note of the reply given by the detenu at differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , all of which reflect his high potentiality and propensity to indulge in such prejudicial activities in future, the authority was fully satisfied that there was need to prevent the detenu from indulging in such prejudicial activities in future by a detention order under the COFEPOSA Act. 12. The main thrust of the arguments advanced by Shri V.A. Mohta, the learned senior counsel appearing for the appellant was that the order of detention was vitiated by non-consideration of relevant materials by the detaining authority and non-application of mind and the High Court erred in confirming such illegal and invalid order of detention. Elucidating his contention the learned senior counsel submitted that the detaining authority has not verified the copies of the shipping bills submitted to different authorities in course of the transactions of export to ascertain whether the allegations of forgery and manipulation of the shipping bills levelled against the detenu were true or not. It was the further submission of Shri V.A. Mohta that since the detaining authority has referred to 90 shipping bills relating to exports from the Port at Mumbai and Nhava Sheva Port in Gujarat sending a few sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the retraction, both constituting a composite relevant fact should have been placed. If any one of the two documents alone is placed without the other, it would affect the subjective satisfaction of the detaining authority. Therefore, non-placement of the retraction affects the subjective satisfaction of the detaining authority." (p. 149) 15. In Union of India v. Arvind Shergill [2000] 7 SCC 601, this Court, taking an exception to the approach of the High Court in deciding the writ petition filed on behalf of the detenu under section 3 of the COFEPOSA Act, held : "The High Court has virtually decided the matter as if it was sitting in appeal on the order passed by the detaining authority. The action by way of preventive detention is largely based on suspicion and the court is not an appropriate forum to investigate the question whether the circumstances of suspicion exist warranting the restraint on a person. The language of section 3 clearly indicates that the responsibility for making a detention order rests upon the detaining authority which alone is entrusted with the duty in that regard and it will be a serious derogation from that responsibility if the court substitutes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts made in the counter affidavit, this Court observed : "The next submission of the learned counsel is that the detaining authority has not applied his mind properly in rejecting the representation made by the detenu. ****** It can therefore be seen that the detaining authority has considered the allegations that the detenu was manhandled etc. At any rate, the detaining authority has clearly noted that the detenu has retracted from the alleged statement, therefore it cannot be said that there is non-application of mind in this regard, namely, in considering the representation. The same principles applies to the Advisory Board also. According to the submissions of the learned counsel, these documents were not placed before the Advisory Board in its meeting on September 18, 1989. Whatever statement was made by the petitioners on June 22, 1989 prior to the detention and the grounds clearly disclose that there was retraction. It must also be noted in this context that in the grounds in paragraph 10 also it is mentioned that a telegram was received on June 9, 1989 alleging about the wrongful arrest and extraction of the statements and the detaining authority has also taken note of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etaining authority in the case is based on consideration of all the relevant materials placed before it by the sponsoring authority. It is not the case of the appellant that the sponsoring authority did not place before the detaining authority any material in its possession which is relevant and material for the purpose and such material, if considered by the detaining authority, might have resulted in taking a different view in the matter. All that is contended on behalf of the detenu is that the detaining authority should have taken further steps before being satisfied that a case for detention under the COFEPOSA Act has been made out against the detenu. Whether the detention order suffers from non-application of mind by the detaining authority is not a matter to be examined according to any straight-jacket formula or set principles. It depends on the facts and circumstances of the case, the nature of the activities alleged against the detenu, the materials collected in support of such allegations, the propensity and potentiality of the detenu in indulging in such activities, etc. The Act does not lay down any set parameters for arriving at the subjective satisfaction by the deta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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