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TMI Blog2017 (7) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr.Juned Alam, Mr.Mohd. Tabreq and Mr.Umesh Kumar, Advs For the Respondent : Mr.Sanjay Jain, ASG with Mr.Ajay Digpaul, Ms.Mohita and Ms.Adrija, Advs ORDER G. S. Sistani, J. 1. Present petition has been instituted under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 ( Cr.P.C. ) for issuance of a writ of habeas corpus to and for any other writ, order or direction for quashing the order of detention bearing F.No.673/06/2016-Cus.VIII dated 10.10.2016 passed under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short COFEPOSA Act ) against the husband of the petitioner, namely Mr.Raju Arora ( detenue ) and directing the release of the detenue. 2. In a nutshell, the facts set out in the grounds of detention on the basis of which the detention order dated 10.10.2016 has been passed are as under: 2.1. Based upon specific intelligence, the Delhi Zonal Unit ( DZU ) of the Directorate of Revenue Intelligence ( DRI ) seized 60 gold bars weighing 9,955.2 grams at CELEBI Warehouse, Domestic Terminal, Air Cargo Complex, New Delhi on 01-02.09.2016. The contrab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He also has a 15% share in a property located at South Extension and two of his friends, including the detenue are partners in the said property. Sh.Narender Kumar Jain stated that from the year 2014, he started procuring foreign origin gold, which was smuggled from Burma by various carriers. The carriers used to bring 1-2 kg of gold to his shop in Guwahati; though the gold did not have any marking, but was 24 carat pure gold. The gold was then packed and parcelled to Delhi by air after being declared as bullion. The consignor was M/s Rara Brothers Pvt. Ltd., Guwahati and the consignee was M/s Rara Brothers Pvt. Ltd., Delhi. The parcels were received in Delhi by Sartaj and delivered by him to the detenue at his home or his office at Kucha Mahajani, Delhi. Thereafter, the detenue with the assistance of his staff used to sell the smuggled gold to customers in Delhi and transfer the sale proceeds to Guwahati by transfer or through person. The detenue was paid ₹ 75,000/- per month for the work and Sartaj was paid ₹ 500/- per consignment by the detenue. The process was discontinued in February, 2015, when Sh.Narender Kumar Jain was implicated in a case pertaining to 12 gold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Article 22 (5) of the Constitution; (ii) The subjective satisfaction of the detaining authority has been wrongly arrived at and without independent application of mind; (iii) The detention order cannot be based upon the statement of Sh.Narender Kumar Jain as he had later retracted his statements before the Chief Metropolitan Magistrate, New Delhi on 05.09.2016; (iv) No information was given to the family members of the detenue after his detention in violation of Article 21 of the Constitution; (v) The ordinary law of the land was sufficient in the case and the resort to preventive detention was not necessary; and (vi) Failure of the respondents to decide the representation dated 09.12.2016 of the detenue. 4. Mr.Jain, learned ASG for the respondents, has submitted that all the constitutional and statutory safeguards have been adhered to and thus, the detention order cannot be faulted with. 5. Prior to dealing with the contentions urged at the bar, we may also mention that, after the present judgment was reserved, the detention order of a co-detenue, namely Mr.Narender Kumar Jain, has been quashed by a coordinate bench of this Court in Sandhya Jain v. Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds of Detention and the Relied upon Documents were to be served in Hindi. As the same were voluminous, it was not possible to get them translated without professional help and an extension of time of ten days was sought. Thereafter, the Grounds of Detention and the Relied upon Documents were served upon the detenue in Hindi on 01.12.2016. 9. After giving our thoughtful consideration to the contention, we are of the opinion that the grievance of the petitioner is without any basis as being factually incorrect. It is settled that the expression communicate couched in Article 22(5) of the Constitution mandates effective communication and the same is done in a language known by the detenue; only then the grounds can be said to have been imparted effectively and fully to the detenue [See Lallubhai Jogibhai Patel v. Union of India, (1981) 2 SCC 427 (paragraph 20)]. Time frame in which the grounds are to be communicated is provided in Section 3(3) of the COFEPOSA Act. The sub-section provides that the grounds of the detention order are to be given as soon as possible and ordinarily not later than five days. Only in exceptional circumstances and for reasons to be recorded in writing, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Sunday were not working days and relied upon documents are voluminous as running into 1281 pages requiring consideration and application of mind of the detaining authority; but it appears that without application of mind the detaining authority acted under the dictation and influence of another body. He submits that the detaining authority practically did not even have one day for perusal of all the relied upon documents and thus, it appears that the detaining authority only put his signature on the already prepared detention order without independent application of mind. 13. Mr.Nasir submitted that there is no link of the detenue with the carriers and there is no evidence to support the rationale behind the detention order. It clearly shows that the detaining authority without going through any evidence, without considering the fact that the detenue never used to purchase gold from any carrier, has passed the detention order without application of mind in mechanical manner and on the basis of presumptions and assumptions. That even there is no evidence regarding transportation of consignment/receipt of consignment from the Air Cargo or abetment of smuggling. Hence, learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw of the detenue and also the person from whom the recovery and seizure of 60 gold bars had been made on 01-02.09.2016. Sh.Narendra Kumar Jain in his statement has stated that Sartaj used to deliver the consignments of smuggled gold to the detenue. Further, the Order of Detention and the Grounds of Detention have been issued strictly as prescribed under Section 3 of the COFEPOSA Act after due application of mind based on the material facts available on record and after careful consideration of the facts and circumstances of the case, nature of activities, material collected, and the propensity and potentiality of the detenue to indulge in such activities. Learned counsel submitted that the subjective satisfaction of the Detaining authority is elaborated in the grounds of detention and his active role in the syndicate involved in smuggling was revealed by his co-accused in their statements. 17. We have analysed the submissions of the counsel for the parties. The submissions of Mr.Nasir in this regard are twofold: first, the detaining authority has passed the detention order in a mechanical manner which is evident from the fact that the same was passed within less than one day of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the gold to Raju Arora, i.e. you. This was inturn handed over to Shri Ravi Prakash and Shri Kamal Prakash having their shops at Amar Market, DaribanKalan, Delhi, for conversion into 1 kg bullion with a purity of 995 by mixing proportionate silver wherever required. These activities started around January / February, 2014 and continued till June, 2016 during which 5 kg to 15 kg of gold was being brought in the interval of 2-3 days for melting and conversion into 1 kg bars. Before bringing the smuggled gold to Shri Ravi Prakash and Shri Kamal Prakashat Amar Market, DaribaKalan, Delhi, for being converted into 1 kg gold, Shri Narendra Kumar Jain and Raju Arora, i.e. you, also used to test its purity as evident from the statement recorded by Shri PravinPatel, Prop. of M/s Bombay Gold Lab on 22.09.2016 and 23.09.2016 as well the entries of test of bullion done for M/s Rara Brothers made in a day book maintained by him. The smuggled gold was thus brought in from Guwahati and converted into 1 kg bars was sold by you, to the customers in Delhi for which he was being paid a sum of ₹ 75,000/- per month.. The sale proceeds of the sold gold were transferred to Guwahati by transfer or thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old was transferred to Guwahati by transfer or in person. Thus you have been dealing with smuggled gold with the sole intention of making huge profits. This is evident from the statements of Shri Narendra Kumar Jain, Shri Pravin Patil, Shri Omkant Sonu, Shri Ravi Prakash and Shri Kamal Prakash recorded under Section 108 of the Customs Act, 1962 and Airways Bills and Delivery Orders detailed above and documents resumed from the search operations. (Emphasis Supplied) 19. From the aforegoing, it is clear that the detaining authority had come to the subjective satisfaction that the detenue was working as a close associate of Sh.Narendra Kumar Jain and was involved in the syndicate since 2014. 20. The contention of the Mr.Nasir that the detenue was neither involved in smuggling of the goods nor the transportation thereof is also misplaced. As evidenced from the Grounds of Detention, the detune was playing a vital role in the whole smuggling operations. No doubt the actual smuggling from Myanmar (Burma) was undertaken by Sh.Narendra Kumar Jain and not the detenue and so was the transportation; however, the detenue was a vital cog in the smuggling operation handling the bus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sh.Narendra Kumar Jain. It is also submitted that the statement is self-contradictory on vital points such as the booking of consignment, salary of the detenue, purchase of gold items, etc. 24. Mr.Jain has submitted that the submission is misplaced and it is wrong to state that the detenue has been falsely dragged in the case. He clarified that the details were available in the mobile phone of Sh.Narendra Kumar Jain, which were referred to while tendering his evidence. In response to the contradictions alleged, he submitted that the same only strengthens the independent nature of the investigation as if the statements were forged, there would not be any contradictions. 25. We are unable to accept this contention of the learned counsel for the petitioner. It cannot be said that the detaining authority could not have relied upon the statement of Sh.Narendra Kumar Jain recorded under Section 108 on 02-03.09.2016. Again, it is a well settled proposition of law that the confessional statement can be relied upon by the detaining authority provided the retraction of the same is also placed before it. Both the confessional statement and retracted statement constitute a composite rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Supreme Court in A.K. Roy v. Union of India, (1982) 1 SCC 271, Mr.Nasir submits that the authorities failed to intimate the family members of the detenue about the passing of the order of detention and of the fact that the detenue has been taken in custody. 32. Mr.Jain informed that the petitioner herein, being the wife of the detenue, was informed about the detention of the detenue on 18.11.2016 itself and hence, all the procedural safeguards had been strictly adhered to. He had also drawn the attention of this Court to a report submitted by the Delhi Police bearing No.3136-37/Summons Desk/Legal Cell/PHQ dated 30.11.2016. 33. We may note that a copy of a the certificate signed by the concerned officer of the Delhi Police and also signed by the detenue himself has been placed on record. The same is extracted in extenso below: It is certified that detenue Raju Arora s/o Tilak Raj Arora family has been initmated [sic: intimated] about the detention of Raju Arora. Today at about 5:30 pm Smt Sabnam w/o Raju Arora informed Telephonic about his detention. 34. Accordingly, in view of the stand taken by the respondents, the contention of the petitioner must be reject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution. 33. Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu. (Emphasis Supplied) 84. At the same time, the law of preventive detention cannot be abused to fail the paramount right recognised by the Constitution of India in Article 21. Being an aberration to the principles governing civilized societies, preventive detention orders cannot be passed in a cavalier or causal manner in order to avoid the hassles of trial and punish the detenue. 85. A Full Bench of the Supreme Court in Rekha v. State of Tamil Nadu, (2011) 5 SCC 244, was dealing with a case wherein a detention order was passed against a detenue, who was already in custody, under the alleged imminent possibility of the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous and historic struggles. It follows, therefore, that if the ordinary law of the land (the Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal. 30. Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is: was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal. 33. No doubt it has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a person without trial in order to prevent him/her from committing certain types of offences. But such detention cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating crimes which the detenu may have committed. After all, preventive detention in most cases is for a year only and cannot be used as an instrument to keep a person in perpetual custody without trial. Accordingly, while following the three-Judge Bench decision in Rekha case we allow the appeal and set aside the order passed by the High Court dated 20-7-2011 and also quash the detention order dated 15-2-2011, issued by the Collector and District Magistrate, Ranga Reddy District, Andhra Pradesh. (Emphasis Supplied) 37. Accordingly, the present case is also to be decided on the basis of the aforegoing settled principles of law. We have already discussed the role and position of the detenue in the smuggling ring in paragraphs 18 to 20 aforegoing. The detenue was not a mere carrier and was in-charge of the Delhi operations of the racket as the kingpin Sh.Narendra Kumar Jain was based in Guwahati. It is clear that the activities of the det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inion after taking into consideration all the material facts pleadings made by the detenue. 41. The aforegoing extract fails to clarify anything as to the stand of the respondents. During the course of arguments on 03.05.2017, learned counsel for the respondents informed this Court that a second representation stands decided and rejected, while the representation dated 09.12.2016 has not been decided till date. The matter was then adjourned to enable the respondents to file an additional affidavit in this regard. 42. In the additional affidavit dated 06.05.2017, the respondents stated that representation dated 09.12.2016 was received by the respondents on 14.12.2016 and the same was examined in consultation with the sponsoring authority. However, since the reference to the Advisory Board had already been made on 09.12.2016, in view of the judgement of the Supreme Court in Golam Biswas v. Union of India Anr., (2015) 16 SCC 177 the representation of the detenue was forwarded to Advisory Board on 04.01.2017. Thereafter, another representation dated 19.12.2016 was received from the detenue and was also duly forwarded to the Advisory Board on 04.01.2017. The Advisory Board hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eard the detenue on 10.01.2017 and opined in its report dated 27.01.2017 that there existed sufficient cause for the continued detention of this detenue. Thereafter, the second representation dated 19.12.2016 was processed and rejected, while the representation dated 09.12.2016 was not processed. 46. In this factual background, we proceed to analyse the effect of the non-consideration of the representation dated 09.12.2016 on the detention order. 47. We deem it appropriate to revisit the law pertaining to deciding representations preferred by the detenue. It is well settled that the right to make representation against the detention order is the most cherished and valuable right conferred on a detenue under Article 22(5) of the Constitution and even the slightest infraction would entitle the detenue to be released. Every person has a right under the provisions of the COFEPOSA Act to make a representation to put a case against his detention. The failure to consider a representation of a person detained renders the further detention of the detenue illegal [See Kamleshkumar Ishwardas Patel v. Union of India, (1995) 4 SCC 51 (paragraph 46) and Union of India v. Harish Kumar, (200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hange in the language of the representation. The Delhi Administration was, therefore, found justified in rejecting the representation since there were no fresh grounds nor any fresh material or subsequent events brought out in the last representation. There was, therefore, no obligation on the part of the State to get that representation considered by a fresh Advisory Board and, therefore, the exercise of this discretion by the State in rejecting the representation and not constituting a fresh Advisory Board could not be faulted. The writ petition was accordingly dismissed. 11. We have, therefore, carefully perused the first representation dated 12-4-2002 as well as the second representation dated 19-4-2002. We requested counsel for the appellant to point out any new ground based on fresh material or any subsequent event which justifies a reconsideration of the matter on the basis of the second representation. Having carefully scrutinized the two representations we do not find any new ground or fresh material in the second representation made by the detenu. The same grounds and the same materials as stated in the first representation have been stated in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Kumar (Supra), it has been held that there is no right in favour of the detenu to get his successive representation based on the same ground rejected earlier to be formally disposed of again. (Emphasis Supplied) 50. Accordingly, the present controversy is also to be decided on the aforegoing settled propositions of law. The impugned order of detention was passed on 10.10.2016 and the detenue was detained on 18.11.2016. The matter was remitted to the Advisory Board on 09.12.2016. Thereafter, the first representation dated 09.12.2016 was received by the respondents on 14.12.2016. A second representation dated 19.12.2016 was also received. As the reference was already made to the Advisory Board, both the representations were forwarded on 04.01.2017. The Board opined for the continued detention in its report dated 27.01.2017. Thereafter, the second representation dated 19.12.2016 was processed and rejected, while the first representation dated 09.12.2016 was not processed. 51. Ordinarily, it is the successive representation which need not be decided, if premised on the same grounds and same material, and not the anterior representation which can be disregarded. However, in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntation dated 09.12.2016. Their contents may be represented in tabular form below: Representation dated 09.12.2016 (Sum and substance of submissions) Representation dated 19.12.2016 (Relevant portion quoted) Paragraph 1 Introductory Paragraph NA Representation dated 09.12.2016 (Sum and substance of submissions) Representation dated 19.12.2016 (Relevant portion quoted) Paragraphs 2, 3 and 4 The grounds of detention were not served in the language known to the detenue, i.e. Hindi. Some relied upon documents are illegible. On scrutiny it is revealed that most of the relied documents were in English and some documents and grounds are illegible and some information and documents considered by the detaining authority were missing and Hindi translation of grounds and documents are written in Hindi but words of English not translated and explained in Hindi to the detenu. That on 1.12.2016, the grounds of detention and documents relied upon, supplied to the detenu. It is reveals that on going thro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Signature of the detenue was forcefully taken on various written and blank papers. In the instant case, there is a breach of article 22(5) r/w section 3(3) of COFEPOSA. As the documents and grounds of detention whatsoever be served to the detenu on 01.12.2016 while order of detention was passed on 10.12.2016. But executed the order of detention by the police of PS Bara Hindu Rao, Delhi on 18.11.2016. While the detenu was lifted from PS Vijay Nagar, Ghaziabad on 17.11.2016 at about 4:00-4:30 PM by the DRI officials as per officials of DRI notice under section 108 Customs Act,1962 was served on 17.11.2016 on detenu. Then the officials of DRI called the police of PS Bara Hindu Rao and till then, the detenu was remained in the illegal custody of the DRI and his alleged statement under section 108 of Customs Act 1962 was recorded on 17.11.2016 and 18.112016. Actually his signature obtained on the so called typed Hindi paper, which neither explained nor allowed the detenu to read over but compelled by force under duress, torture, physically and mentally and keeping the detenu nude obtained the signature but the detenu did not put his signature on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he authority making the order of detention shall communicate the ground of detention to the detenu as soon as may be the normal rule therefore is that grounds of detention must be communicated to the detenu without avoidable delay. It is only in order to meet the practical exigencies of administrative affair that the detaining authority is permitted to communicate the grounds of detention not later then five days ordinarily and not later then ten days if there are exceptional circumstances . It is submitted that the Hindi translation of most of relied documents, on which ground the detaining authority extended the time under section 3 (3) COFEPOSA Act, not supplied to the detenu. It is submitted that no information orally or in writing of passing of the said detention order has been given to the spouse or other family members of detenu. Even no information of execution of the said order on 18.11.2016 is given to spouse or other family members of the detenu and without disclosing the grounds of arrest the detenu sent to Tihar Jail, Delhi on 18.11.2016 in evening. Representation dated 09.12.2016 (Sum and substance of submissions) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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