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TMI Blog2014 (2) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... ndeep Jayantilal Jain (for short "Sandeep"). The said Writ Petition has been filed, on behalf of Sandeep, by his wife. Both the impugned orders of detention have been passed with a view to prevent the detenu from abetting the smuggling of goods in future. The grounds of detention have been served upon the detenu which are based on the same set of facts. 2. It is alleged in the grounds of detention that a specific intelligence was received that one Sagar Chheda, arriving from Dubai by flight at Chhatrapati Shivaji International Airport at Mumbai, would be carrying gold in his black coloured backpack bag and would exchange his bag containing the contraband in the toilet situated in corridor on the mezzanine floor of the said Airport with one Shri Uday Singh Meena, Sub-Inspector of CISF. It is alleged that the said Uday Singh Meena was apprehended along with the black coloured backpack bag which contained 5.804 kgs of gold jewellery and gold bars having estimated value of Rs.1.60 crores. The said goods were seized under the provisions of the Customs Act, 1962 (for short "the said Act of 1962"). The said Sagar Chheda was also apprehended at the Airport on the same day i.e. 10th August ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ading member of syndicate headed by Sandeep indulging in smuggling of gold bars and gold jewellery. It is alleged that he engaged in the smuggling activities since April 2011. It is alleged that initially he used to accompany Sandeep to Dubai for purchase of gold bars and while returning back, he used to deliver the bag containing gold bars and gold jewellery at various places. It is alleged that after July 2011 when he was once apprehended, though he did not carry contraband, he used to accompany the carriers to Dubai for purchasing and collecting goods. It is alleged that he was earning a sum of Rs.25,000/to Rs.30,000/per trip from the said Sandeep. 3. Learned counsel appearing for the Petitioners has made detailed submissions which are common in both the Petitions. She pointed that in both the cases, the Detaining Authority has relied upon the inculpatory statements of the detenu Sandeep recorded under Section 108 of the said Act of 1962. She pointed out that the statements were retracted at the first opportunity. However, retraction was not placed before the Detaining Authority. Her submission is that the retraction statement is a vital document. Her submission is that it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that Sandeep was released on bail, no material to that effect was placed before the Detaining Authority. She urged that no material on this aspect has been supplied to the detenu which amounts to non communication of the grounds to the detenu depriving him of his right to make effective representation against the order of detention. She pointed out that the Detaining Authority has considered the show cause notice dated 8th February 2013 while issuing the impugned orders of detention. Her submission is that it was incumbent upon the sponsoring authority to place before the Detaining Authority the reply to the show cause notice submitted by Sandeep as the said reply is a vital document. Her contention is that non-consideration of the said document amounts to non-application of mind and the failure to supply a copy of the said reply to the detenu amounts to denial the right conferred upon the detenu under Clause (5) of Article 22 of the Constitution of India. 6. In support of the arguments on the ground of delay, the learned counsel appearing for the Petitioners relied upon the decisions of the Apex Court in the case of Issac Babu v. Union of India and Another (1990)4 SCC 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied upon a decision of the Apex Court in the case of Rushikesh Tanaji Bhoite v. State of Maharashtra and Others 2012 Cri.LJ 1334 and the judgment and order passed by the Division Bench of this Court in the case of Rajesh Ashok Chaudhary v. The State of Maharashtra and Others In Criminal Writ Petition No.2562 of 2013 decided on 5th September 2013. 10. The learned APP appearing for the Detaining Authority and the learned counsel appearing for the Sponsoring Authority have supported the impugned orders. Their contention is that the prejudicial conduct of Sandeep and Jayant on the basis of which the order of preventive detention has been passed consists of several grounds which are distinct and separate. This contention is based on Section 5A of the COFEPOSA Act. Their contention is that even assuming that some of the contentions raised by the learned counsel appearing for the Petitioners deserve to be upheld, the impugned orders are not vitiated in view of Section 5A of the COFEPOSA Act. Reliance was placed by the learned counsel on various decisions of the Apex Court and especially the judgment of the Constitution Bench of the Apex Court in the case of State of Gujarat v. Chamanlal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be detained. (2) When any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order. (3) For the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days, from the date of detention". 13. Perusal of the impugned orders of detention show that the same have been passed on the ground (ii) above in Sub-Section (1). 14. As far as Criminal Writ Petition No.3499 of 2013 is concerned, the allegations against the detenu Sandeep have been summarized in Ground No.35 of the order of detention which reads thus: "35. You are the kingpin of the syndicate indulging in smuggling of gold bars/gold jewelry from Dubai. You had entered into a conspiracy with Jayant Mehta, Sagar Mahendra Chheda, Mandip Futermal Mehta, Pravin Popatlal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irport, however nothing could be recovered from you as you had already exchanged the bag containing contraband with the CISF officer, who in turn had carried out the bag containing contraband from the airport building misusing his official position. After the said incident, though you refused to carry the contraband to India, however you used to accompany any of the carrier to Dubai for purchasing/collecting the gold. While returning back to India you used to declare the same at the Dubai airport and thereafter before boarding the aircraft, you used to hand over the bag containing contraband to the carrier traveling to Mumbai. You used to earn about Rs.25,000/to Rs.30,000/per trip to Dubai from Sandeep Jain." 16. In the grounds of detention, reliance has been placed on large number of statements of the detenu and their coaccused recorded under Section 108 of the Customs Act, 1962. 17. One of the grounds of challenge urged in one of the Petitions is of non-consideration of an important fact regarding the seizure of passport of the detenu. The learned counsel appearing for the Petitioners has relied upon the decision of the Apex Court in the case of Gimik Piotr (supra) and the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Detaining Authority directed to include further generated documents in relied upon documents. Further generated documents running into page Nos.331 to 784 were again forwarded by the Sponsoring Authority on 12th February 2013 which were placed before the Detaining Authority on 15th February 2013. We must note that in the meanwhile, on 24th December 2012, 2nd January 2013 and on 11th January 2012 statements under section 108 of the said Act of 1962 of some other persons were recorded. On 18th February 2013, the Detaining Authority passed an order seeking clarification. A letter in this behalf was issued on 27th February 2013. The required information along with further generated documents from pages 785 to 795 were forwarded by the Sponsoring Authority on 4th March 2013 which were received by the Detaining Authority on 6th march 2013. Thereafter, the Detaining Authority after perusing the further generated documents directed that the newly forwarded documents should be included in the relied upon documents. An order was passed by the Detaining Authority on 14th June 2013 for including further generated documents running into page Nos.796 to 807. All further generated documents a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Authority has satisfactorily examined such a delay and has afforded reasonable and acceptable explanation as to why such delay has occasioned. We find from the list of relied upon documents supplied to the detenu along with grounds of detention that the last relied upon statement under Section 108 of the Customs Act, 1962 was recorded on 11th January 2013. From time to time, additional generated documents were placed before the Detaining Authority. The total generated documents were running into 807 pages. Considering the nature of prejudicial activities alleged and the propensity of the detenu in both the cases in hand, it is not possible to conclude that the livelink was snapped due to time gap between the date of the alleged prejudicial activities and the orders of detention. In Criminal Writ Petition No.3499 of 2013, it is alleged that the detenu Sandeep Jayantilal Jain is the kingpin of the syndicate indulging in smuggling of gold bars and gold jewellery from Dubai. It is alleged that during the period of six months since February 2012, the detenu Sandeep Jain had smuggled about 120 to 140 kgs of gold bars and gold jewellery. Even before 11th July 2012 on three to four occa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1990 made by his wife (against whom also a detention order has been passed) has not been placed before the detaining authority. According to the learned counsel, had this document been placed before the detaining authority, probably it might have influenced the mind of the detaining authority one way or other in reaching the subjective satisfaction. This submission is answered by the respondent stating that the reply to thereafter showcause notice is one and the same as that of the retraction statement dated May 31, 1990 of the detenu's wife and that inasmuch as that retraction statement has been considered by the detaining authority before passing the detention order, the reply to the showcause notice even if placed might not have in any way influenced the mind of the detaining authority. Be that as it may, we after scrupolously going through the entire records are satisfied that the detaining authority has neither relied upon nor even referred to the reply to the showcause notice. So the second submission of the learned counsel has no force. Learned counsel in support of this submission relied upon a decision in Kurjibhai Dhanjibhai Patel v. State of Gujarat. In our view, the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o relied upon a decision of this Court in the case of Mr. R. Swaminathan v. Shri G.S. Sandhu & Others 2001 ALL MR (Cri) 553 which holds that nonplacement of retraction of the statements recorded under Section 108 of the Customs Act, 1962 vitiates the order of detention. On this aspect, it will be necessary to make a reference to the decision of the Apex Court in the case of Madan Lal Anand v. Union of India & Others (1990) 1 SCC 81. In Paragraph 29, the Apex Court held thus: "29. In the instant case, even assuming that the ground relating to the confessional statement made by the detenu under Section 108 of the Customs Act was an inadmissible ground as the subsequent retraction of the confessional statement was not considered by the detaining authority, still then that would not make the detention order bad, for in the view of this Court, such order of detention shall be deemed to have been made separately on each of such grounds. Therefore, even excluding the inadmissible ground, the order of detention can be justified. The High Court has also overruled the contention of the detenu in this regard and, in our opinion, rightly." 23. Prior to that, a Larger Bench of the Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erials on which a reasonable belief or conviction could have been entertained by the detaining authority on the grounds mentioned in Section 3(1) of the said Act. Whether other grounds should have been taken into consideration or not is not relevant at the stage of the passing of the detention order. This contention, therefore, cannot be accepted. If that is the position then in view of Section 5A of the Act there was sufficient material to sustain this ground of detention. 76. In the case of State of Gujarat v. Chamanlal Manjibhai Soni (2010)1 SCC 609 this Court maintained the order of the High Court quashing the detention. This Court observed that detention under Section 3 of the Act was only for the purpose of preventing smuggling and all the grounds, whether there are one or more, would be relatable only to various activities of smuggling and no other separate ground which could deal with matters other than smuggling could be conceived of because the act of smuggling covered several activities each forming a separate ground of detention and the Act dealt with no other act except smuggling. Whenever allegations of smuggling were made against a person who was sought to be detain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to judicial custody permitting further interrogation. While in judicial custody, the detenu refused to sign the further statements and squarely resiled. While the detenu's application for bail was pending before the Magistrate, the respondent passed the impugned order. In petition under Article 226 of the Constitution for the issue of a writ of habeas corpus, the appellant contended that the order of the detaining authority was liable to be set aside because full facts of the case were not intimated before the detention order was passed, and, therefore, there was complete non-application of mind of the detaining authority to the attendant vital circumstances. It was held that the impugned order was invalid and illegal because there was complete non-application of the mind of the detaining authority to the most material and vital facts. In the instant case before us, there was no request for consultation with the advocate. There is no case of nonproduction in spite of intimation by the advocate to the Customs Officers before a Magistrate. The confessional statements, of course, were retracted. But in this case the confessional statement was not the only fact upon which the detaining ..... X X X X Extracts X X X X X X X X Extracts X X X X
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