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TMI Blog2011 (3) TMI 1776X X X X Extracts X X X X X X X X Extracts X X X X ..... prevent him from engaging in smuggling, abetting the smuggling, engaging in transporting, concealing, keeping, dealing in smuggled goods and harbouring persons engaged in smuggling goods in future under Section 3(1) of the COFEPOSA Act. 3. The relevant facts leading up to the filing of the present writ petition are as follows : (i) On 15/16.10.2009 the investigation commenced with alleged information that the detenu, along with Shri Vikash Bajoria, Shri Shakil Ahmed, Chhaliya Srivastava and other associates were involved in smuggling activities. A 40 Feet Nepal bound container stuffed with smuggled goods as well as other goods available in Hooghly were seized under Panchnama. A laptop and a computer was taken over from the premises of Chhaliya Srivastava as well as of Shri Deepak Sharma, Assitant of Shri Vikash Bajoria and Chhaliya Srivastava from which 68 nos. of hard copy printouts were retrieved. (ii) Three godowns at Delhi were also searched/sealed. The goods found there were seized. Office of the detenu was also searched and incriminating documents, CPUs and Pen Drive were taken from there. Statements of Shri Rahul Goyal, Shri Vivek Agarwal and Shri Bijendre Prasad M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s referred to and the relied upon documents were served on 23.09.2010. (ix) Writ Petition (Crl) No.1398/2010 was heard for some time and the detenu was granted liberty to file a separate writ petition, if the need arises, raising other grounds in accordance with law. (x) On 29.09.2010 the detenu sent the preliminary representation to the Jail Authorities for forwarding it to the Detaining Authority in which he sought for the documents, if any, relied upon for arriving at satisfaction regarding harbouring persons engaged in smuggling of goods, and also informed about other contradictions which had created confusion in the mind of the detenu. But, vide its communication dated 08.10.2010 the Detaining Authority rejected the said preliminary representation of the detenu. (xi) On 03.11.2010, the detenu was granted bail by the High Court of Kolkata. (xii) Thereafter, the detenu made a representation before the Advisory Board and placed the following documents: (1) Judgment dated 07.08.2006 of this Court in the case of Shashi Goyal v. UOI Ors: 132 (2006) DLT 530 (DB), whereby the earlier detention order dated 19.11.2004 was quashed and set aside. (2) Order dated 08.03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the detenu and order in original dated 31.07.2009 whereby penalty of ₹ 50 lakh was imposed upon the detenu whereas against the order dated 19.01.2007 a conditional stay had been granted vide order dated 04.03.2008 and other order in original dated 31.07.2009 has already been set-aside by CESTAT vide order dated 04.02.2010 and the matter was remanded for de-novo adjudication. The challenge of the detenu is that the sponsoring authority has failed to place on record these vital information/documents for consideration of the Detaining Authority. Thus, it shows non-application of mind by the Detaining Authority on these vital documents and non-supply of the same to the detenu would infringe the rights guaranteed under Article 22(5) of the Constitution of India for making an effective representation against the impugned order. (c) In Para 45(B), the Detaining Authority relies on seizure of inter alia 2 incriminating CPUs and other incriminating documents vide Annexure - A to the Panchnama dt. 15.10.2009. The use of words incriminating pre-supposes that the documents and contents of CPU were considered by the Detaining Authority, and thus respondent No.2 was bound to su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd in order to show that the detenu was in any way harbouring anyone by providing boarding or lodging with a view to smuggle the goods. Thus, in the absence of any material, it cannot be said that the detenu had been harbouring the persons engaged in smuggling goods or in abetting the smuggling of goods. 9. In the matter of Davubder Singh Dawar @ Goldie vs. UOI: 1997 Crl L.J. 3168, this Court quashed the detention order as no person engaged in smuggling of goods harboured by the detenu could be shown by the Detaining Authority despite issuing detention order allegedly for preventing the detenu therein from harbouring persons engaged in smuggling of goods. 10. A similar situation has arisen in the present case. It appears that there was no material on record which may show the satisfaction to the effect that the detenu was engaged in harbouring persons involved in the smuggling of goods. In the absence of any material on record, the said findings are not correct. The order of detention passed on that basis has to be quashed. 11. In support of ground (b), the learned counsel for the petitioenr has referred to paras 46 and 47, and 57.3 of the grounds of detention. The same re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ees fifty lakh) each upon you, Shri B.K. Goyal Shri Subhash Bansal. 57.3 You, Shri Bhimendra Kumar Goyal were issued several Summons under Section 108 of the Customs Act, 1962 asking you to appear before DRI for the purpose of investigation, but you did not appear before DRI for the purpose of investigation, but you did not appear before the DRI to join the investigation. Such non appearance against repeated Summons suggests that you, Shri Bhimendra Kumar Goyal are willfully avoiding the investigation. However, from the statements of Shri Chhaliya Shrivastava and Shri Vikash Bajoria it is quite evident that the entire illegal operation of bringing the subject Nepal bound containers to the godown premises namely Kanika International Ltd. and Amit Oil Products Pvt. Ltd. both situated at Dankuni hired by Shri Vikash Bajoria, unloading the expensive misdeclared goods from there by breaking their seals, loading the said emptied containers with low value goods, then sealing them with spurious seals having same numbers as of the original seals and finally sending them for their Nepal destination was masterminded by you, Shri Bhimendra Kumar Goyal, Shri Vikash Bajoria and Shri Chhaliy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon by the Detaining Authority, was also quashed vide order dated 26.02.2008 on the same grounds while granting liberty to issue fresh detention order and undisputedly the Supreme Court by order dated 11.03.2008 stayed the direction issued by this Court to the effect that the liberty is granted to the respondent to pass a fresh detention order and the said SLP is still pending. However, in the grounds of detention, no such details are mentioned or discussed while coming to the final satisfaction by the Detaining Authority. 14. It is stated in paras 46, 47 and 57.3 of the grounds of detention, that the Detaining Authority referred to the case of earlier detention order dated 19.11.2004 which was adjudicated vide order in original dated 19.01.2007 wherein penalty of ₹ 15 lakhs was imposed on the detenu and order in original dated 31.07.2009 wherein penalty of ₹ 50 lakh was imposed upon the detenu. But the Detaining Authority has failed to mention or discuss about the factual position of the matter that against the order dated 19.01.2007 a conditional stay had been granted vide order dated 04.03.2008 and the order in original dated 31.07.2009 has already been set-asid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The non-consideration of this fact is clearly fatal to the case of the respondents. 18. In support of ground (c) pressed by the detenu, learned counsel has referred to para 45(B) of grounds of detention wherein the Detaining Authority relied on seizure of, inter alia, two incriminating CPUs and other incriminating documents vide Annexure A to the Panchnama dated 15.10.2009. The contention of the learned counsel for the detenu is that the use of the word incriminating pre-supposes that the documents and contents of CPUs were considered by the Daitaining Authority, thus, the respondents were bound to supply the copies of these documents and the incriminating contents of the CPUs to the detenu pari passu along with the grounds of detention. 19. The reply of the respondents is that it is not disputed that the Detaining Authority mentioned about the seizure of CPU and incriminating documents in the grounds of detention. However, the respondents tried to satisfy the Court that since there was a pre-detention development, there was only a reference in the grounds. The said two CPUs were seized and were kept sealed under the signature of Sh. Rahul Goyal and Sh. Vivek Aggarwal. Bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PU Pen drive resumed- 1. Pen drive 2. CPU (Index cabinet) Sl. No. A 62715-001 3. CPU (Unbranded) Sl. No. 737620-003 4. Diary 2009 (Black) having written pages 01 to 20. Admittedly, the documents seized and referred to in file Sl. Nos. 1 to 19 and copies of relevant pages of Diary 2009 of Annexure A to the Panchnama have not been supplied pari passu by the respondents which were relied upon as incriminating documents at the time of arriving at satisfaction of passing the grounds of detention 21. On the same ground earlier detention order dated 19.11.2004 under COFEPOSA against the same detenu was quashed and set aside vide judgment dated 07.08.2006 in Shashi Goyal (supra) rendered by this Court which referred to several judgments of Hon ble Supreme Court on this issue, including two judgments in Virendra Singh v. State Maharashtra: (1981) 4 SCC 562 and Kamla Kanyalal Khushalani v. State of Maharashtra: (1981) 1 SCC 748, ratio of which was followed consistently thereafter by Hon ble Supreme Court and High Courts. In M. Ahamedkutty v. Union of India and Another: (1990) 2 SCC 1, after considering the judgments cited by the Respondents including Icchu Devi Chorari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in future is only a reference by the Detaining Authority and all the documents pertaining to the remand of the detenu before the concerned Magistrate under the Customs Act had been placed before the Detaining Authority at the time of placing reliance and subjective satisfaction in passing the detention order and as such the detention order on this ground cannot be vitiated. It is submitted that the documents concerning prosecution proceedings which forms the documents of remand and other related issues before the concerned Magistrate have been supplied to the detenu and the Detaining Authority mentioning pending prosecution proceedings in para 64 of the grounds for arriving at the subjective satisfaction is only a matter of reference and all documents relating to that issue have been considered and supplied. 25. It is pertinent to mention here that in the additional counter affidavit dated 27.01.2011 filed by the very same respondents which was allowed to be taken on record by order dated 28.01.2011, the respondents have changed their stand in para B(I) of the grounds which reads as under: B.(I) The Grounds as raised in para B(I) are wrong and misconceived and hence denie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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