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TMI Blog2018 (8) TMI 1611X X X X Extracts X X X X X X X X Extracts X X X X ..... e present. The absence of any live link with any present instance is nowhere discernible on a reading of the grounds of detention. Further, by not referring to the conditions attached to the grant of anticipatory bail, to simply state that Mr. Ajay Aggarwal would continue to indulge in activities related to smuggling demonstrates a non-application of mind by the Detaining Authority to the facts governing his case. The detention orders dated 1st June 2018 passed in respect of each of the Petitioners, i.e. Mr. Sanjay Agarwal and Mr. Ajay Agarwal, to be unsustainable in law and they are accordingly hereby quashed - petition allowed. - W.P. (CRL) 1971/2018 & Crl.M.A.12159/2018, W.P. (CRL) 1977/2018 & Crl.M.A.12179/2018 - - - Dated:- 27-8-2018 - S. MURALIDHAR AND VINOD GOEL JJ. Petitioner Through: Mr. Vikram Chaudhri, Sr. Advocate, with Mr. Raktim Gogoi, Mr. Harshit Sethi, Mr. Kartikeya Singh, Mr. R.P. Saini and Mr. Rishi Sehgal, Advocates. Respondents Through: Mr. Amit Mahajan, CGSC. Mr. Satish Agarwala, Sr. Standing Counsel for DRI. JUDGMENT Dr. S. Muralidhar, J.: Introduction 1. These are two writ petitions under Article 226 of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 6th April 2018, the statement of Mr. Sanjay Agarwal was recorded under Section 108 Customs Act 1962 ( Customs Act ). In that statement, he is purported to have admitted to diverting goods meant for export to the domestic market after all export formalities were completed and that his son Mr. Preet Kumar Agarwal had helped him in this task. The statements of Mr. Preet Kumar Agarwal and Mr. Ajay Agarwal were also separately recorded under Section 108 Customs Act. Mr. Preet Kumar Agarwal purportedly admitted to diverting two sealed boxes containing gold bangles meant for export from Kolkata Airport to his father. The statement of Mr. Ajay Agarwal was also recorded in which he allegedly stated that his brother Mr. Sanjay Agarwal had invested money in his firm M/s. Kalpataru Jewellers and that he had exported 19 consignments through M/s. Kalpataru Jewellers. 7. On 5th and 6th April 2018, the premises of M/s. Ghanshyamdas Gems Jewels (the proprietor of which is Mr. Sanjay Agarwal), Shree Ganesh Jewels (owned by Mr. Sanjay Agarwal s employee Mr. Avinsah Soni) , and PH Jewels (owned by Mr. Sanjay Agarwal s sister-in-law) were searched. The residential premises of Mr. Sanjay Agarw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18, the Kolkata High Court rejected another bail application of Mr. Ajay Agarwal. 12. On 24th May 2018, the proposal for detention was sent by the DRI to the Detaining Authority for detention of the present Petitioners and Mr. Preet Kumar Agarwal. Meanwhile, Mr. Ajay Agarwal was granted conditional bail by an order dated 25th May 2018 of the Calcutta High Court subject to conditions, one of which was that he should regularly appear before the DRI. 13. The Central Screening Committee recommended the proposal for detention of the present Petitioners and Mr. Preet Kumar Agarwal by a written communication dated 28th May 2018. According to the Petitioners, many of the relied upon documents ( RUDs ), referred to in the grounds of detention, were dispatched only on 30th May 2018, barely two days before the issuance of the order of detention from Delhi on 1st June 2018. 14. On 1st June 2018, separate detention orders were passed in respect of both the Petitioners in exercise of the powers conferred under Section 3(1) COFEPOSA for the reasons mentioned hereinbefore. 15. On the next day, i.e. 2nd June 2018, when he appeared before the DRI, copies of the detention orders were serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the detention order. Further, the detention order mentions that it has been passed to prevent Mr. Ajay Agarwal from keeping smuggled goods or dealing in smuggled goods in future , whereas no such mention is made in the grounds of detention at all. Such variance, according to Mr. Chaudhri, has caused confusion in the minds of the detenues and they are unclear as to under which head they are to make a representation. The phrase dealing in smuggled goods is also stated to be unclear. Reliance is placed on the decision of the Supreme Court in Vijay Kumar Dharna @ Koka v. Union of India (1990) 1 SCC 606. 20. Thirdly, it is submitted that while passing the detention orders in respect of both Petitioners, the Detaining Authority has substituted the name of the detenue with you and the detention orders are in fact verbatim copies of each other. It is accordingly submitted that in terms of the law explained in Rajesh Vashdev Adnani v. State of Maharashtra (2005) 8 SCC 390 , the detention orders having been passed in a most casual manner, deserve to be set aside. 21. Fourthly, it is submitted that the real ground of detention is the apprehension of the Detaining Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passport has been detained by the DRI whereas it was in fact deposited in the CBI Court, Hyderabad. It is accordingly submitted that the Detaining Authority has simply signed the detention orders without verifying the facts. 24. Sixthly, it is submitted that several documents submitted as part of the RUDs were illegible and this vitiated the detention. Reliance is placed upon the decision of the Supreme Court in Manjit Singh Grewal @ Gogi v. Union of India 1990 SCC (Supp) 59 and it is submitted that there was a failure to supply the material / RUDs to the detenue. The relevant documents were not even placed before the Detaining Authority. This included the documents that would have proved the travel of the detenues to Dubai, Hyderabad, etc. However, no flight ticket or boarding pass was collected. 25. Para 11 of the grounds of detention in both cases mentions that the SDO (Departure), after receiving the sealed boxes containing the gold jewellery in question, entered the details in the register maintained at SDO Office . However, the said register was neither placed before the Detaining Authority nor supplied to Mr. Sanjay Agarwal. The authorization for conducting the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to any relief as prayed for by him. In particular, he referred to an instance where despite being on bail and having surrendered his passport, Mr. Sanjay Agarwal travelled abroad under a fake passport using another name. Mr. Mahajan also referred to other instances where there has been diversion of goods meant for export to the domestic market. Mr. Mahajan submitted that even if the word or had been used, the detention order had to be seen in the context of several acts committed by the detenues which constituted one or more of the grounds specified in Section 3(1) COFEPOSA. Therefore, according to Mr. Mahajan, the detention orders were not bad in law. Case of Mr. Sanjay Agarwal 30. The Court would first like to consider the grounds of detention in respect of Mr. Sanjay Agarwal, the Petitioner in W.P. (CRL) 1971/2018. The grounds of detention in that case specifically advert to the fact that at NSCBI Airport, Kolkata on 4th April 2018, DRI officials spotted Mr. Preet Kumar Agarwal as he approached Gate No.11. They asked him about the consignment of gold bangles which was supposed to be in his possession for export to Dubai on a hand-carry basis. According to the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA, 1974) with a view to preventing you from smuggling goods, or abetting the smuggling of goods, engaging in transporting or keeping smuggled goods, or dealing in smuggled goods in terms of Section 3(1) of the COFEPOSA Act, 1974. (emphasis supplied) 35. As already noticed, the word immense occurring in para 33 of the grounds should be read as imminent . The fact remains that Mr. Sanjay Agarwal was in fact not granted bail. In fact, all his bail applications were rejected. With there being no bail application pending as such, the only reason for the apprehension of his release was the fact that the statutory period of 60 days after his arrest was coming to an end which meant that under Section 167 Cr PC, he would be entitled to a statutory bail. 36. The question, therefore, is whether that is a sufficient ground for invoking the extraordinary measure of preventive detention. In light of the decision in Rekha (supra), this question is no longer res integra. It was observed therein that preventive detention is not meant to be punitive and should only be used in exceptional cases and not as a substi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of the detenu being entitled to statutory bail was not a compelling reason to invoke the extraordinary power of preventive detention. 41. Now turning to the next pint about non-application of mind by the detaining authority, it may be observed that the observations in Gautam Jain (supra) were in a converse context of the grounds of detention not being segregated. There the Court referred to Section 5A COFEPOSA and to the decision in Vashisht Narain Karwaria v. State of Uttar Pradesh (1990) 2 SCC 629 and held that even if one of the grounds was vague, nonexistent, or not relevant and was not connected to other reasons or grounds, it would not vitiate the order of detention. 42. However, that is not the case here. It is apparent to the Court that the Detaining Authority was unclear about the grounds on which it should authorise the detention of Mr. Sanjay Agarwal. This is evident from the reading of para 34 where repeatedly the word or is used to separate out the different grounds. This is suggestive of two things: first, the Detaining Authority was unsure if the facts brought on record constituted one or more of these grounds; and second, there was in fact non-a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fake passport, Mr. Mahajan states that there was no case against him under the Passport Act 1967. Therefore, it is not even clear whether Mr. Sanjay Agarwal was in fact involved in that incident. 47. The Respondents also do not have any satisfactory answer as to the error on facts pointed out with regard to detention order mentioning that the passport of Mr. Sanjay Agarwal had been detained by the DRI when in fact it was detained by the CBI Court in an unrelated case registered against him under Section 420 IPC. This Court is, therefore, not satisfied that the past conduct of Mr. Sanjay Agarwal was such that would warrant his preventive detention in terms of Section 3(1) COFEPOSA. 48. For all of the aforementioned reasons, this Court is not satisfied that the impugned detention order dated 1st June 2018 issued qua Mr. Sanjay Agarwal is sustainable in law. Case of Mr. Ajay Agarwal 49. Now turning to the detention order qua Mr. Ajay Agarwal. One stark fact is that even prior to the passing of the detention order, Mr. Ajay Agarwal obtained anticipatory bail. The apprehension that as a result of that anticipatory bail, he would continue indulging in smuggling is belied ..... 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