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TMI Blog2006 (8) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... nu s welfare and aggrieved of the order of detention dated 10.12.2005 under the provisions of COFEPOSA. She has, thus, invoked the jurisdiction of this Court under Article 226 of the Constitution by filing this petition for issuance of writ of habeas corpus and the immediate release of her husband, the detenu. 3. In the writ petition, it is submitted that the order of detention dated 15.12.2005 is illegal, arbitrary, mala fide, unjustified and unwarranted, and as such, the continued the detention of the detenu in jail is contrary to law and ought to be quashed. 4. Brief facts of the case as set out in the counter affidavit of the detaining authority is as under: Shri Sanjay Bhandari obtained EPCG licenses as Service Provider, in his four firms/company, namely M/s History Logistics (IEC No. 0502010233 issued on 14.5.2002) under category Hotel Restaurants Tour Transport ; M/s Raj Mahal Bhindar Logistics (IEC No. 0500053782 issued on 4.12.2000) under category Hotels; M/s V.K. Tours Transport Logistics (IEC No. 0595024459 issued on 17.8.1995) under category Hotel Project and Tour Transport ; M/s Northwest Marwar Resorts Hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s/corporate to whom he had transferred the vehicle, saying that they were prominent persons. He also admitted the violation of the provisions of Exim Policy and Customs Notifications in respect of all the EPCG licenses and vehicles imported there under issued to all the aforementioned four firms/company. Investigations conducted so far have indicated that the cars imported under EPCG licenses by Shri Sanjay Bhandari were transferred to various Indian customers. From the costing sheets made by Shri Sanjay Bhandari for transferring these imported cars indicated that they were intended to be sold by claiming varying percentage of the duty saved as service charges from the customers of the imported cars; there was no business activities at all the declared premises; that no car had been installed/put into use at the declared places for declared purposes; that no forex had been earned from the use of the imported cars; that the cars have been transferred to the Indian customers under the guise of hire/leave agreement, that the forex shown to have been earned from overseas has no nexus with the use of the cars imported under EPCG Scheme. All the cars were registered as pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh broker/dealer; that the most of the customers had taken the vehicles with interest to purchase but since the car could not be registered in their name immediately, Therefore, they entered into a hire/leave agreement for interregnum period; that in may cases the security/lien for Bank Guarantee submitted to the Customs and insurance charges, service maintenance charges and in some cases CHA charges, were paid by the customers for whom the cars were imported; that Shri Sanjay Bhandari had obtained loans/finances from the financiers by incorporating the name of customers as co-applicant and getting the installments towards the said vehicle loans paid by them; that the vehicles were taken by most of the customers in brand new condition immediately after import and were in their exclusive control possession for their personal use; that in some cases the registration numbers were not allotted as per choice of the customers; that in some cases the registration numbers were obtained at the address of the customers; that they had not earned any forex from the use of the said cars; that they had not paid any forex for the cars to Shri Sanjay Bhandari; that the vehicles were not in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een issued. he masterminded the game plan to import the cars at concessional rate of duty under EPCG Scheme and transferred the same in contravention of provisions of Exim Policy 1997-2002, 2002-2007 and Foreign Trade Policy 2004-09 and Customs Notification No. 40/2000 Customs, 55/2003 Customs and 97/2004 Customs. Shri Sanjay Bhandari had also filed tender with the Rajasthan Tourism Development Corporation, Jaipur for allotment of non-operational Midways Hotels, Motels Cafeterias of Jodhpur cluster in his firm, M/s History Logistics and he was also entering in an agreement for taking of a Hotel Sand D at Pali Road, Jhalamand, District Jodhpur from Wing Commander R.S. Ranawat on lease. In view of the foregoing, the activities of Shri Sanjay Bhandari amount of smuggling as defined in Section 2(39) of the Customs Act, 1962 and as adopted in the COFEPOSA Act, 1974 via Section 2(e) thereof since his acts of omission and commission including application of fraudulent practices have rendered impugned goods liable to confiscation under Section 111(o) of the Customs Act, 1962. Considering, the nature and gravity of the offence, the well planned manner in which he had engage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was necessary to be considered in order to arrive at the subjective satisfaction 6. In the counter affidavit the detaining authority, in reply to ground 19, has stated as under: The representation dated 12.12.2005 was duly considered by the detaining authority at the time of issuance of detention order as mentioned at para 30 of the grounds of detention. All the grounds and contentions raised by the detenu in the said representation have been considered by the detaining authority and all the relevant documents have been supplied to the detenu. The copy of the said representation was not required to be given to the detenu as the same was not primary documents on the basis of which detention was issued. 7. The relevant ground of detention supplied in support of detention order reads as under: I have also taken into consideration various representations, retractions and allegations made by you. However, having regard to the material placed before me, I am satisfied that such representations, retractions and allegations are baseless and devoid of any merit and hence I reject the same. 8. The representation dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of suspension was a very vital and relevant document. Counsel also submits that copies of the documents comprising of ten thousand pages in 115 files were seized vide panchnama dated 30.8.2005 including Bank Guarantees, Corporate Guarantees and Bonds executed by the detenu and/or his firms securing the entire amount of customs duty saved while importing the vehicles in question, which are still alive. These documents being vital have not been placed before the detaining authority, nor copies thereof been supplied to the detenu, although the detaining authority categorically admits as under: All the documents recovered from the premises situated at K-13A, 2nd Floor, Green Park Extension, New Delhi of the detenu vide Panchnama dated 30.8.2005 were placed before the detaining authority for his consideration and satisfaction. 12. Further, the detaining authority in its affidavit in respect of the aforesaid documents submits: ...were placed before the detaining authority by the sponsoring authority and were duly considered before passing the order of detention. 13. Counsel further submits that although the panchnama dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 165. In the counter affidavit the stand taken by the detaining authority is that the detaining authority had only referred to some of the documents of past activities for which he has only shown his awareness about the same. These documents are not the basis of detention order. Counsel has drawn our attention to the list of relied upon documents which is reproduced as under: CWP No. 5431/2002 CMP No. 9246/2002 filed by M/s V.K. Tours and Transport in the High Court and reply filed by the DRI and other Misc. petitions filed by M/s V.K. Tours and Transport and High Court s order dated 28.8.2002 and 11.9.2002. 18. From the above, counsel draws conclusion that the writ petition was neither placed before the detaining authority nor considered and consequently no copy of the same was supplied to the detenu. 19. Counsel submits that Annexure A to T, which are a part of the application filed by the detenu before the Settlement Commission were not supplied though mentioned in the list of relied upon documents at Serial No. 240. He draws our attention to the counter affidavit of the detaining authority where it is stated as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance on the following judgments: (i) Khudhiram Das v. State of West Bengal and Ors. [1975]2SCR832 (ii) Haradham Saha v. State of West Bengal 1974CriLJ1479 (iii) Ganga Ramachand Bharvani v. State of Maharashtra and Ors. 1980CriLJ1263 (iv) Ramachandra A. Kamat v. Union of India and Ors. [1980]2SCR1072 (v) S. Gurdeep Singh v. Union of India and Ors. 1981CriLJ2 (vi) Kirti Kumar Chaman Lal Kundaliya v. Union of India and Ors. [1981]2SCR718 (vii) Yumnam Mangibabu Singh v. State of Manipur and Ors. 1983CriLJ445 (viii) M. Ahamedkutty v. UOI and Anr. 1990(47)ELT188(SC) (ix) Sophia Gulam Mohd. Bham v. State of Maharashtra and Ors. 1999CriLJ4064 (x) Mst. Icchu Devi Choraria v. Union of India and Ors. [1981]1SCR640 (xi) Wasi Uddin Ahmed v. The District Magistrate, Aligarh, U.P. and Ors. 1981 Crl. L.J. 1825 (xii) Mohd. Hussain v. Secretary, Govt. of Maharashtra, Home Department, Mantralya Bombay and Ors. 1982 I.L.J. 1848. 23. Yet another ground of attack is the delay in consideration of the representation dated 1.2.2006, as also no independent consideration by the Central Government to the said representation. Counsel submits that pursuant to the impugned order da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered irrelevant material. He draws our attention to grounds of detention where the Detaining Authority has referred to imported cars were never used for earning foreign exchange. He submits that the cars are not the foreign exchange earners but the business as a whole had to be taken into consideration which is also the settled position and relies upon judgment of this Court in Interglobe Enterprises Ltd. v. Union of India 126 (2006) DLT 589 (DB) and Madhu Garg v. Union of India (2004) SCC 1999. On the above basis he submits that even if there be one ground of detention found to be based on irrelevant material not germane for passing the order of detention, the entire order of detention shall stand vitiated in law. 27. Counsel for the Detaining Authority submits that the only relevant, cogent and vital documents are required to be supplied. All documents seized from the premises vide panchnama dated 30.08.2005 were placed before the Detaining Authority for consideration and satisfaction. All the documents on which the order of detention was based and the subjective satisfaction of the Detaining Authority was formed, were supplied to the detenu. Further, all the do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hindi. He has admitted in his statement dated 5.12.2005 and 7.12.2005 that he can read, write and understand Hindi. Therefore, there was no need to give translation copy of Hindi documents. He relies upon Supreme Court judgment in Sithi Zureina Begum v. UOI and Ors. 2003 SC 323. 30. In respect of allegation that some relied upon documents were not legible, he submits that, the detenu, at the time of taking the relied upon documents, has categorically mentioned that all the documents were fully legible after going through each and every page and having signed the same. The ground in the writ petition taken is an afterthought. 31. On the allegation that M/s Raj Mahal Bhindar had given an authority to the detenu for taking EPCG licenses, counsel submits that only few lines of the said agreement and authority cannot be read in isolation. The basic premise of the agreement between Shri Randhir Singh Bhindar, partner of the premise of Raj Mahal Bindar and the detenu was to run the hotel on lease. It is an admitted fact by the detenu in his statement dated 30.8.2005 that no such hotel was ever developed and run by him in Bhindar. In any case, only a few line ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s representations, retractions and allegations made. But, nowhere do we find reflection of consideration of the representation in the grounds of detention. We also find that the aforesaid representation is not part of the relied upon documents. 37. To contend that the representation dated 12.12.2005 is not relevant and, Therefore, was not necessary to be reflected in the grounds of detention as the same was not the basis of the grounds of detention, is, to say the least, not tenable. The representation dated 12.12.2005 where the detenu, as already stated, has set down specifically his case against the order of detention, is, by no stretch of imagination, not a vital document. It was necessary that this vital document which, according to the detaining authority s affidavit, was placed and considered by the detaining authority, should have found mention in the relied upon document and the same supplied to the detenu to make an effective representation. The representation dated 12.12.2005 and its consideration should have been reflected in the grounds of detention. In the present case, we find that this vital document/material has not been relied upon nor does it find r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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