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TMI Blog2012 (12) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 - Writ Petition No.1884 of 2012 - - - Dated:- 24-8-2012 - A.M. Khanwilkar and A.R. Joshi, JJ. Appellants Rep by: Mr. V.B. Sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h amount of aggregate Rs.2,65,70,000/-, Skoda Fabia Car, five high end cars i.e. two Bentley and three Mercedez, laptops, computer CPU and other incriminating items such as plain bottle seals without any markings, broken bottle seals, metal dies containing insignia of various Customs and Central Excise Officers, packets of metal fonts, stamping foils, numeric dies, etc. 4. The Detaining Authority then referred to gist of the statements recorded u/s 108 of the Customs Act of detenu and his companions, namely, Prakash Shewale, Shri Bhaskar Tate, Jayesh Natwarlal Panchal, Ajit Bapu Satam, Pradeep Kanu, Pawan Shah, Nitin Chougule, Alex Thomas Fernandez @ Anand. Reference is also made to statements of Lalchand Choudhury, Ram Singh, Jairaj @ Saleem, Vijay Jayawant Kowley, Mehabub Allauddin Shaikh, Parshram Ambi, Shri Rajkumar Basappa Kumbhar, Shri Rajesh Bhupal Rajput, Shri Deepak Raghu Kude, Shri Mohammed Jalaluddin, S/Shri Pramod Kumar Singh, Dushyant Singh, Suresh Singh and Shivanand Singh and Shri Aadil Abid Tapia. 5. On the basis of the material placed before the Detaining Authority, subjective satisfaction was formed by the Detaining Authority that it was essential to issue pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s arrests and detention of the detenu; coupled with the fact that the quashing of detention order issued in 2006 has not been mentioned in the subjective satisfaction reached by the Detaining Authority, the same is vitiated. I) There has been failure on the part of the State Government to send the report to the Central Government within the specified period and the continued detention of the Petitioner is illegal. J) The documents accompanying the grounds of detention on the detenu contain several irrelevant and extraneous documents. As a necessary corollary, it must follow that the subjective satisfaction recorded by the Detaining Authority suffers from non-application of mind. In any case, the detenu's right to make effective representation at the earliest opportunity has been abridged. 7. The Respondents have filed reply affidavits to counter the allegations about the acts and commission of the authorities and the grounds urged by the Petitioner. We have heard Counsel appearing for both the sides on the above points. Some of the legal points raised in this petition were also raised in the companion writ petition, being W.P.(Cri.) No.1409 of 2012 , filed on behalf o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfaction purported to have been arrived at, by the detaining authority, is sham in the eye of law and impugned order of detention, in that case, is per se mala fide and ab intio null and void." 9. This ground has been raised on the basis of assertion made in the Writ Petition that the Petitioner has come in possession of the photocopy of proposal forwarded by the Sponsoring Authority which has been given to the co-detenu by a Senior Officer of Sponsoring Authority in expectation of bribe. Photostat copy of the said proposal was handed in to the court. Relying on the said proposal, the argument of the Petitioner proceeds that the grounds of detention are substantially the same except some cosmetic changes made relating to the description of the detenu in the grounds of detention. Rest of the contents are bodily lifted and adopted by the Detaining Authority, which is indicative of non-application of mind by the Detaining Authority. 10. Since the Photostat copy of the proposal was produced before the Court, we called upon the learned APP to take instructions whether the document produced across the bar was the correct copy of the proposal. The learned APP, on instructions, has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Authority except modifying the description of the detenu and some cosmetic changes. In the proposal he has been addressed by name "Deepak Sharad Jare" whereas in the grounds of detention, para 18, reproduced in its entirety, is described as "You" and the other changes made are cosmetic changes. 13. The relevant portion of the proposal forwarded by the Sponsoring Authority and on which basis the subjective satisfaction has been recorded by the Detaining Authority, being verbatim except the cosmetic changes can be demonstrated by reproducing the relevant extract of the proposal and the grounds of detention, which reads thus: RELEVANT CONTENTS OF PROPOSAL SUBMITTED TO THE DETAINING AUTHORITY CORRESPONDING CONTENTS OF GROUNDS OF DETENTION "ROLE PLAYED BY DEEPAK SHARAD JARE Deepak Sharad Jare was leading member of a organized syndicate involved in smuggling of red sanders (prohibited for export under EXIM policy) by using duplicate bottles seals of various Central Excise offices and Shipping Lines used for sealing the export containers. He entered in to a conspiracy with Ajit Satam for smuggling red sanders to Dubai by replacing the original exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainers. Apart from the smuggling of red sanders an environmentally endangered species and prohibited item for export the syndicate had been tampering with bottle seals. The sanctity of sealed containers rests with the integrity of one time bottle seal, hence tampering with the same poses a serious threat not only to the security of the supply chain but also to the country as this can be used to smuggle dangerous contraband in or out of the country. Considering the nature and gravity of the offence and the well organized manner in which he has engaged in such prejudicial activities, he is required to be detained under Section 3(1)(i) of the COFEPOSA Act, 1974 for smuggling goods , with a view to prevent him from indulging in smuggling activities in future. ..........................." "18. You are a leading member of a organized syndicate involved in smuggling of red sanders which is prohibited for export under EXIM policy by using duplicate bottles seals of various Central Excise offices and Shipping Lines used for sealing the export containers. You entered into a conspiracy with Ajit Satam for smuggling of red sanders to Dubai by replacing the original export consignmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reat not only to the security of the supply chain but also to the country as this can be used to smuggle dangerous contraband in or out of the country. 20. You were arrested on 03.09.2011 and released on bail on 27.09.2011. 21. I have considered your retraction dated 03.09.2011 and 14.09.2011 and rebuttal filed by the department on 19.09.2011 before passing the detention order. 22. I have considered your representations dated 10.01.2012 and 10.02.2012 before passing the Detention Order. 23. I have also considered the Show Cause Notice dated 29.02.2012 before passing the Detention Order. 24. Considering the nature and gravity of the offence and the well organized manner in which you have engaged in such prejudicial activities, it is imperative that you should be detained under the provisions of COFEPOSA Act, 1974, with a view to prevent you from indulging in smuggling activities in future. 25. Your smuggling activities fail under Section 113(d) (h) of the Customs Act, 1962. 26. While passing the detention order under COFEPOSA Act, 1974, I have referred to and relied upon the documents mentioned in the enclosed list which are also being served on you. 27. Whatever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, a perusal of the grounds of detention shows that it is a verbatim reproduction of the dossier submitted by the senior Superintendent of Police, Udhampur to the District Magistrate requesting that a detention order may kindly be issued. At the top of the dossier, the name is mentioned as Sardar Jai Singh, father's name is mentioned as Sardar Ram Singh and the address is given as village Bharakh, Tehsil Reasi. Thereafter it is recited "The subject is an important member of..." Thereafter follow various allegations against Jai Singh, paragraph by paragraph. In the grounds of detention, all that the District Magistrate has done is to change the first three words "the subject is" into "you Jai Singh, s/o Ram Singh, resident of village Bharakh, Tehsil Reasi". Thereafter word for word the police dossier is repeated and the word "he" wherever it occurs referring to Jai Singh in the dossier is changed into "you" in the grounds of detention. We are afraid it is difficult to find greater proof of non-application of mind. The liberty of a subject is a serious matter and it is not to be trifled with in this casual, indifferent and routine manner. We also notice that in the petition fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the part of the second respondent herein, and, thus, we are of the opinion that the impugned order of detention dated 3-11-2004 cannot be sustained." 17. A priori, we have no option but to follow the dictum of the Apex Court and while doing so, express our deep sense of anguish that notwithstanding the verdict of the Apex Court in Rajesh V. Adnani's case (supra), 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. 18. In view of the above, we need not deal with the other points raised in this petition. This petition, therefore, succeeds and the same is made absolute in term ..... X X X X Extracts X X X X X X X X Extracts X X X X
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