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TMI Blog2016 (4) TMI 1247X X X X Extracts X X X X X X X X Extracts X X X X ..... tenus is as follows :- [a] On 22.06.2014, when the detenu Om Prakash Triloki Chandwani (hereinafter referred as detenu I) arrived Chennai Airport from Singapore by Air India, he was found carrying twenty three (23) numbers of one kilogram gold bar (23000 grams) into India without any valid document by way of concealment and non-declaration to customs authorities. [b] The detenu I, Om Prakash gave a voluntary statement on 23.06.2014 stating that the co-detenu Pritpal Singh Kalsi (hereinafter referred as Detenu II) is his friend and that the detenu I Om Prakash agreed for carrying 23000 grams of gold from Singpaore to Chennai and handing over the same to detenu II, Kalsi at transit lounge payment for Rs. 50,000/-. He carried the gold by concealing in the handbag to evade customs duty and without mentioning in the declaration card. [c] The detenu II Kalsi, in his statement admitted that he organised this smuggling of gold from Singapore to transit the same to New Delhi. As per the plan, the detenu Kalsi was waiting at common transit lounge, however, before taking possession of the gold to transit to New Delhi, detenu I Om Prakash was caught by the Customs officials. [d] Based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected by him. [ii] The detenu I submitted declaration form as required under Section 77 of the Customs Act. However, the declaration was neither placed before the detaining authority while passing the detention order nor format was not supplied to the detenu, despite asking for the same. [iii] The detenus were arrested on 22.06.2014, but the detention order came to be passed only on 22.07.2015 and the same was executed on 04.08.2015, however there is no explanation for the inordinate delay of 13 months. There was no nexus between the date of incident and passing of detention order. Since the nexus is snapped, subjective satisfaction arrived at by the detaining authority is not genuine. [iv] The passport of the detenus have been impounded by the authorities, hence there is no possibility of the detenus going out of India to indulge in smuggling activities. The detaining authority, without any material but only on suspicion, passed the order of detention in a causal and mechanical manner. 5. Mr.D.Rajagopal, learned Additional Solicitor General appearing for the 2nd respondent would submit that the bail applications containing retraction statements of the detenus were place ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from- (i) smuggling goods, or (ii) abetting the smuggling of goods, or (iii) engaging in transporting or concealing or keeping smuggled goods, or (iv) dealing in, smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods, It is necessary so to do, make an order directing that such person 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r having taken into consideration the allegations contained in the aforesaid retraction and replies thereto he was satisfied that the allegations were devoid of merit. In paragraph 13 of the grounds of detention the detaining authority has referred to the bail application of the detenu, only in the context of his arrest, production before the concerned Magistrate, remand and his continuance in custody, in view of the rejection of the rejection of the bail plea. Bail application had not been taken note of in the context of the retraction contained in it. If the order of detention is based on the confessional statement of the detenu, it will be too difficult to comprehend, that only when the word 'voluntary' is used, application of mind, to retraction would arise and not otherwise. Once the confession is sought to be used, detaining authority must be aware, if the confession is retracted. In spite of retraction, it may still be possible for the detaining authority to arrive at a subjective satisfaction to preventively detain the detenu, after being alive to the said fact. 12. In 2007 (1) MLJ (Crl.) 663 [G.Balaji v. State of Tamil Nadu], this Court has held as follows - 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04.08.2014. Show cause notices dated 17.11.2014 and 02.12.2014 were issued by the Customs Authorities to the detenus, however, the detention order was passed after a lapse of 13 months, i.e. on 22.07.2015. The learned Senior Counsel would further submit that there is no nexus between the incident and the order of detention and the live link is snapped, the subjective satisfaction arrived at by the authority is not genuine and hence the order of detention is liable to be quashed. 17. In the case of Rajeswari vs. Joint Secretary of Govt., Ministry of Finance, Department of Revenue, New Delhi & another reported in 2000 CTC 92 (III) 97, this Court quashed the order of detention on the ground that there was 5= months delay in passing the detention order and the live link between the incident and the detention order is snapped. 18. In 2006 (4) SCC 796 [Rajinder Arora V. Union of India], the Hon'ble Supreme Court set-aside the order of detention, as in that case delay was not satisfactorily explained, which would run thus- 20. Furthermore no explanation whatsoever has been offered by the respondent as to why the order of detention has been issued after such a long time. The said q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in 1988 (1) SCC 296 [Smt.K.Aruna Kumari v. Govt. of A.P. and Ors.]. Indisputably, the incident had taken place on 22.06.2014, the accused were released on bail on 04.08.2014, however the orders of detention have been passed only on 14.08.2015. The only explanation offered by the respondents in the counter is that there was delay in obtaining call details of mobile number 8898919006 and its subscriber from mobile operator. It is seen that except vague averment that the details were submitted to the department in the month of April 2015, no other particulars are available such as when requisition was made, follow up actions taken subsequently and the date of proposal of sponsoring authority and date of completion of investigation. With respect, we are not able to follow the decision in 1988 (1) SCC 296, in view of the principles laid down in the subsequent decisions relied on by the learned Senior Counsel for the petitioners referred above. 21. The next contention raised by the learned Senior Counsel for the petitioners is that the detention order is being passed as if the detenu I Om Prakash attempted to bring 23 kilograms of gold without proper declaration and it is also menti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. On behalf of the petitioners, it is next contended that the passports of the detenus have been impounded by the authorities after their arrest, so when there was no material placed before the detaining authority that there is likelihood of detenus indulging in smuggling activities in future, the subjective satisfaction arrived at by the detaining authority is based on no material. 25. In AIR 2010 SC 924 [Gimik Piotr v. State of T.N. & Others], the Hon'ble Supreme Court has quashed the order of detention, wherein it is observed as under - In our considered view, the submission of the learned counsel for the appellant requires to be accepted. In the instant case as the facts reveal, that, there was no pressing need to curtail the liberty of a person by passing a preventive detention order. Foreign currency cannot be smuggled as the person cannot move out of the country on account of his passport being impounded. Merely because a person cannot otherwise survive in the country, is no basis to conclude that a person will again resort to smuggling activities, or abetting such activities by staying in the country. There is higher standard of proof required in these circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (5) of the Constitution of India, relying on the decision reported in AIR 2016 SC 641 [Union of India v. Saleena] wherein it is held as follows - 30. From the aforesaid analysis, it is quite limpid that whatever has been stated in Bhut Nath Mete (supra) has been explained in John Martin (supra) and it has reiterated the principle that a speaking order need not be passed by the government or by the Advisory Board. It has also been explained that the observations made in Bhut Nath Mete (supra) were not meant to lay down a legal requirement that the order of the State Government must be a speaking order. Reliance was placed on the Constitution Bench decision in Haradhan Saha (supra) to lay down that Bhut Nath Mete (supra) is not a binding precedent. The said delineation makes it absolutely clear that the Court should be guided by the principles stated in Haradhan Saha (supra) and not by Bhut Nath Mete (supra). Thus the principle behind "real and proper consideration" would only mean as has been stated in John Martin (supra), the representation cannot be rejected in a casual and mechanical manner. Overemphasis cannot be placed on "real and proper consideration". What has to be seen b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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