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TMI Blog2021 (8) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... COFEPOSA), from passing the impugned orders of detention at the first opportunity. Resultantly, the argument of pre-determined approach and bias stands established in the present case. Whether the impugned orders of detention passed are bad in law and vitiated on the ground of inordinate delay - HELD THAT:- Although it was urged before this Court by the respondents at the pre-execution stage about the overseas evidence received from Dubai in November, 2019; however, no reference to such evidence is to be found in the impugned detention orders - in the absence of any mention of such overseas evidence in the subject detention orders, the same cannot be considered as germane in order to satisfactorily explain the delay occasioned in passing the impugned orders of detention. The Court can interfere with the orders of detention on the ground of inordinate and unexplained delay, a fortiori, there has been a delay in passing the impugned orders of detention. As a result, in the absence of a satisfactory explanation, the inordinate delay leads to snapping of the live and proximate link and direct nexus between the alleged prejudicial activity and any immediate need to detain the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its opinion qua the sufficiency of the grounds with regard to the detenus detention. The subject representations were finally rejected by the Central Government only on 23.12.2020, three days after confirmation by it of the orders of detention by the Central Advisory Board. Thus, insofar as the case of detenus Amit Pal Singh and Gopal Gupta are concerned, there was massive delay of 69 days and 65 days respectively by the Central Government in dealing with their representations - there has been inordinate and unexplained delay on the part of the Central Government in deciding the statutory representations filed by the detenus. Whether the detention orders stand vitiated owing to the reason that the grounds stated therein have been lifted from the grounds taken in an entirely different case? - HELD THAT:- A purposive comparative consideration of the grounds of detention in UNION OF INDIA, JOINT SECRETARY (COFEPOSA) , GOVT. OF INDIA, MINISTRY OF FINANCE VERSUS DIMPLE HAPPY DHAKAD [ 2019 (8) TMI 139 - SUPREME COURT] , also passed by Sh. R.P. Singh, the Detaining Authority in these proceedings; and the impugned detention orders, gives substance to the inference is that barring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iii) IMNPL has been duly issued an Import Export Code (IEC) bearing No.0514037342 from the office of the Joint Director, Directorate General of Foreign Trade (hereinafter referred to as DGFT ) and is stated to have earned foreign exchange valuing around 150 million USD for the country. iv) IMNPL has also obtained Advance Authorization Licence from the office of DGFT, New Delhi, inter alia permitting import of 1000 kgs of gold bars. v) IMNPL has against the said Advance Authorization Licence imported 50 kgs of gold bars and completed export obligation of approximately 19 kgs of gold bars vide Export Invoice No.ITS/EXP/04 dated 20.04.2019; with balance export obligation of approximately 31 kgs. vi) At this juncture, it is relevant to observe that the stock related to the aforementioned balance export obligation, was resumed by the Directorate of Revenue Intelligence (hereinafter referred to as the DRI ) on 24-25.04.2019, from the factory premises of IMNPL at Pitampura, Delhi. vii) It is the detenus case that similar licences have been duly issued in the past as well and that export obligations thereunder have been duly fulfilled by IMNPL. viii) IMNPL a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through hand-carry, were also checked and seen by the Customs Jewellery Appraiser posted at the Export Shed Air Cargo; and after verification of the same, the said photographs were signed and appraised by the Appraiser and then given back in sealed cover to the person hand-carrying the gold jewellery. xvi) The gold jewellery, which remained unsold at the time of exhibition was brought back by the codetenu Amit Pal Singh from UAE. The detenu Amit Pal Singh landed at the Indira Gandhi International Airport, New Delhi on 24.04.2019 at around 06.30 p.m. and approached the Red Channel for the purpose of declaration of the goods brought back by him. xvii) Amit Pal Singh, the detenu is stated to have filed reimport documents such as packing lists cum invoice; and provided the sealed packet of photographs to the Customs Appraiser along with the shipping bills, Export Declaration Form and endorsed copies of packing list-cum-invoice, given to detenu at the time of export, respectively for the quantities of unsold gold jewellery being brought back out of earlier exported goods concerning shipping bills dated 20.02.2019 and 13.03.2019; as well as making requisite declaration, as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide order dated 23.07.2019. xxviii) IMNPL requested the DRI for provisional release of the seized goods, which request was rejected by the ADJ, Adjudication, Delhi vide order dated 04.10.2019. xxix) Before rejecting the request for provisional release, a Show Cause Notice dated 26.09.2019 was issued to IMNPL by the DRI, New Delhi proposing confiscation of the seized gold jewellery. xxx) IMNPL being aggrieved by the DRI s said order dated 04.10.2019, preferred a Customs Appeal before the Customs Excise and Service Tax Appellate Tribunal (CESTAT), which vide order dated 13.11.2019 allowed conditional release of the seized goods. The said order passed by the CESTAT was modified by this Court vide judgment dated 01.06.2020, permitting the provisional release of all the goods seized by the DRI, save and except the gold jewellery that was seized at the airport. xxxi) A review petition preferred by the IMNPL before this Court in the said proceeding is still pending adjudication; although DRI s Special Leave Petition (SLP) against this Court s judgment dated 01.06.2020 was disposed of by the Hon ble Supreme Court vide order dated 01.10.2020, modifying the judgment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y presenting either registered or unregistered manual Bill of Entry qua the reimport of unsold gold jewellery out of gold exported for exhibition; (c) The foreign origin duty free gold imported by IMNPL under the Advance Authorization scheme, was diverted into the domestic market through persons working for IMNPL, on the directions of detenu and the Proprietor Mr. Rahul Gupta; (d) Further, for execution of the conspiracy, a remote server was maintained by the detenu Gopal Gupta in his office (by using URL TRAMU.DDNS.NET from the computer installed in their office) to store sensitive documents related to actual export, import, reexport transactions and other related papers. But the said detenu disabled remote server during search proceedings by DRI on 24/25.04.2019 so as to conceal the sensitive documents related to actual export, import, re-export transactions and other related papers; (e) In the course of investigation in one case detected by Customs (Prev.), relating to misuse of SEZ scheme by M/s. Bharti Gems, it had transpired that the said detenu used to upload import-export documents through Team Viewer application and send it to M/s. Bharti Gems, where Amit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to Kathmandu, Nepal through hand-carry by Mr.Musthafa Kamal Ramalap and 0.745 kgs gold jewellery was exported to Delhi through hand-carry by the detenu, but he received all the three consignments of gold jewellery cumulatively weighing 51.362 kgs (gross weight declared to Dubai Customs), which were declared before Dubai Customs, to be exported to Kathmandu, Nepal (by M/s. M.N. Khan Jewellers FZE, Dubai) through Musthafa Kamal Ramalap along with the consignment of gold jewellery cumulatively weighing 0.745 kgs (gross weight), with an intention to smuggle the same into India. As a result detenu allegedly smuggled the whole consignments of gold jewellery into India (declared before Dubai Customs for export to Kathmandu and India. ARGUMENTS ON BEHALF OF THE PETITIONERS:- 5. Mr. Akhil Sibal, learned Senior Counsel appearing on behalf of the petitioners vehemently assails the impugned orders of detention by first submitting that, the detaining Authority was predisposed and lacked independence ; as the petitioners discovered a letter dated 02.09.2019 written by the Detaining Authority-Mr. R.P. Singh, Joint Secretary (COFEPOSA) to the Director General, DGFT which predates t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s actively engaged in the matter for months prior to passing the impugned detention orders and was abreast of the investigation for onward dissemination, coordination and action to other investigating agencies. Even the Show Cause Notice under Section 124 of the Customs Act dated 26.09.2019 issued by the DRI on culmination of their investigation was revealingly copied to the CEIB. 7. It is also submitted that the dual role played by Mr. R.P. Singh - first, in the Economic Intelligence vertical of the CEIB (as claimed by the respondents) in the active investigation; and second, as J.S. (COFEPOSA) in passing the impugned Detention Orders, goes to the root of the matter and defeats the very purpose of appointing a specially empowered officer under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA ), whose satisfaction must in law, be independent and free from any bias or predisposition. As such, the subjective satisfaction of the Detaining Authority in the present case stands vitiated and the impugned detention orders ought to be quashed, on this ground alone. 8. It has then been argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Order was passed. 10. It is also submitted that the gap between October, 2019 and January, 2020 was sought to be explained away by receipt of overseas evidence from Dubai, purportedly in the month of November 2019, as evident from the counter affidavit filed by the respondents in the pre-execution writ petitions and the dates extracted above. Even otherwise, vide order dated 11.09.2020 passed by this Court, dismissing the pre-execution writ petitions, the aspect of delay was dealt with in paragraphs 67-69 wherein this Court analysed the explanation of delay given by the respondents. However, at that stage the petitioners did not have the benefit of the impugned detention orders as the same had not been served on the petitioners. Upon being served with the impugned detention orders, the petitioners learnt that any reference to overseas evidence from Dubai in November, 2019 was conspicuously absent and no such documents were placed before the Detaining Authority. Instead, what emerges from the detention orders is that all the material evidence, including overseas evidence, sought to be used against the petitioners was already collected as early as July, 2019. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would reveal that only a Proper Officer under the Customs Act can exercise the power of confiscation of smuggled goods. Since Notification No.40/2012 has been held to be invalid, DRI Officers were never authorized by law to confiscate the allegedly smuggled goods. If the confiscation in the present case is bad in law and without legal authority, no case of smuggling can be foisted upon the petitioners. Even the Show Cause Notice dated 26.09.2019 is bad in law as it is based on a seizure and confiscation without authority. Since the confiscation under Sections 110(1) and 110(3) of the Customs Act is bad in law, the goods so confiscated can no longer be deemed to be smuggled goods in terms of Sections 111 and 2(39) of the Customs Act, and as a result the detention of the petitioners under COFEPOSA, which essentially emanates from seizure and confiscation without authority, is also illegal and must be set aside. 14. It is furthermore submitted that retractions by co-detenus were not considered and even rebuttals by DRI were issued belatedly. On a perspicacious analysis of the impugned detention orders it is revealed that the respondents rely heavily on inculpatory statements ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory statements have been otherwise relied upon, goes to the root of the matter and tends to vitiate the subjective satisfaction of the Detaining Authority. Vikram Bhasin's retraction dated 03.06.2019 was addressed to Mr. Manish Khurana, learned CMM, Patiala House Courts, New Delhi and had the effect of retracting all his previous statements. The DRI cannot claim it had no knowledge of the same as they filed a reply dated 17.01.2020 - just 4 days prior to the passing of the impugned detention orders dated 21.01.2020. Similarly, Mahesh Jain s retraction dated 31.10.2019 was addressed to the Additional Director General (Adjudication), DRI and has the effect of retracting all prior statements. The DRI, which is the Sponsoring Authority in the present case, was always aware of the retractions issued by the co-accused persons and ought to have placed the said retractions before the Detaining Authority, especially if it placed on record the inculpatory statements of such co-accused persons. 16. It was further submitted by the counsel for petitioners that the Detaining Authority while arriving at subjective satisfaction has to satisfy itself with respect to propensity of the detenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08.2019 passed by the learned CMM, Patiala House Courts, New Delhi would reveal that the passport of petitioner Amit Pal Singh was withheld on the request made by the DRI. This fact was never placed before the Detaining Authority, nor was the said order dated 28.08.2019. 21. Further, it is submitted that petitioners were granted bail vid order dated 03.06.2019 passed by the learned CMM, Patiala House Courts, New Delhi. The impugned detention orders were passed on 21.01.2020 i.e. after 232 days thereafter. When the petitioners were on bail for such a long period, and there was no material to indicate any prejudicial activity during such period, the Detaining Authority ought to have considered the post-bail conduct of the Petitioners while passing the detention orders. 22. It has been argued on behalf of petitioners that findings returned by the CESTAT in its order 13.11.2019 were ignored by the respondents, as when IMNPL approached the CESTAT against the order dated 04.10.2019 passed by the Additional D.G. rejecting the prayer for provisional release of seized goods; CESTAT passed an Order dated 13.11.2019 in favour of IMNPL directing release of all seized goods. Before retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25,299.680 gms was restrained. However, the order of the High Court in CUSAA No.229/2019 was passed on 01.06.2020 i.e., after the passing of the detention order dated 21.01.2020. As such, on the date of the passing of the impugned detention orders, the CESTAT order was not disturbed and ought to have been considered. A review bearing Revision Petition No. 117/2020 against the order dated 01.06.2020 is pending before a Division Bench of this court. 24. It was further submitted by the counsel for petitioners that the Detaining Authority failed to appreciate that the petitioners are merely employees of IMNPL. Once the license of the company was put in Denied Entity List, there was no likelihood of the petitioners continuing any prejudicial activity. This, despite the Detaining Authority noting that the mastermind of the conspiracy is some other person and the petitioners are merely employees and have not acquired any unjust enrichment. 25. It is also submitted that it is a matter of record that neither the bail applications, nor the remand applications, nor the replies to the bail applications and documents filed therein by the petitioners/detenus have been placed by the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Detaining Authority. Further, the Show Cause Notice dated 30.08.2020 issued in the case pertaining to Bharti Gems has been stayed by a Division Bench of Hon ble Rajasthan High Court vide order dated 11.01.2021 in Writ Petition (Civil) No.14008/2020. 29. Further, it is submitted that IMNPL issued a detailed representation dated 08.05.2019 vid email to the DRI seeking release of its employees and seized goods. The representation is a vital document as it explains the stand of the company with respect to the transactions undertaken by it and offers a defence on behalf of its detained employees. The said representation has also not been placed before the Detaining Authority. The stand of the Petitioners is that the same is a vital document and ought to have been placed and considered. 30. It was further submitted that by ld senior counsel appearing on behalf of petitioners there has been delay in deciding their representation by Central Government. The Petitioners were detained on 01.10.2020. Petitioner Amit Pal Singh filed representations dated 16.10.2020 with the Detaining Authority and with the Central Government (D.G., CEIB). Similarly, petitioner Gopal Gup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta were filed on 16.10.2020 and 20.10.2020, respectively. It is pertinent to note that as per Section 8(b) of COFEPOSA, the reference to the Advisory Board has to be made within 5 weeks from the date of detention. Therefore, the Central Government had to make the reference to the Advisory Board on or before 05.11.2019. Admittedly, the reference was made on 03.11.2019. However, the representations dated 16.10.2019 and 20.10.2019 were filed well before the reference had to be made and the Central Government had 20 days to decide Petitioner Amit Pal Singh s representation (16th October to 05th November) and 16 days to decide petitioner Gopal Gupta's representation (20th October to 05th November), which was sufficient time to deal with the same before making the reference. 33. It is further argued that there has been complete and utter nonapplication of mind by the Detaining Authority while passing the impugned detention orders which is further evident from the fact that the grounds of detention in the case of the petitioners are identical to the grounds of detention of another detenu in an entirely different case. A person named Happy Arvind Kumar Dhakad came to be detained vid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (xix) Gimik Piotr v. State of Tamil Nadu reported as (2010) 1 SCC 609. (xx) Moulana Shamshunissa Ors. V. Additional Chief Secretary Ors. reported as (2010) 15 SCC 72. (xxi) Rajesh Gulati v. State of NCT of Delhi reported as (2007) 7 SCC 233. (xxii) Naresh Kumar Jain v. UOI reported as 2011 SCC OnLine Del 442. (xxiii) T.A. Abdul Rahman v. State of Kerela reported as (1984) 4 SCC 741. (xxiv) Ahmad Nassar v. State of Tamil Nadu reported as (1999) 8 SCC 473. (xxv) Order dated 12.04.2021 passed by the Hon ble High Court of Delhi in W.P.(Crl.) No.821/2021. ARGUMENTS ON BEHALF OF THE RESPONDENTS: - 35. Per Contra, Mr. Amit Mahajan, learned Central Government Standing counsel appearing on behalf respondent No.1 and respondent No.2 would submit that impugned detention orders dated 21.01.2020 passed by the Competent Authority under Section 3 (1) of the COFEPOSA are legal and constitutional and the same have been passed by the Competent Authority with due application of mind and after arriving at the requisite subjective satisfaction; based on the sufficient material facts and circumstances of the case. 36. It is further ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as an officer of the Detaining Authority. 39. It has been argued on behalf of respondents that the respondents have followed the law, in letter and spirit, while issuing the impugned detention order. It was submitted that an order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. 40. Further, it is submitted that preventive detention is a suspicious jurisdiction i.e. jurisdiction based on suspicion and an action is taken with a view to preventing a person from acting in any manner prejudicial to certain activities enumerated in the relevant detention law and the Detaining Authority has issued the detention order after it had arrived at the subjective satisfaction that the detenu had to be preventively detained, which has been elaborated in the grounds of detention. Similarly, the allegation of ill-treatment, custodial violence, etc., ought not to affect the detention order. 41. It is further argued that without prejudice, all the relevant documents and vital documents were placed before the Detaining Authority and only afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also trite that a Court does not go deep into the merits of the matter while considering an application for bail and only forms a prima facie opinion; however, the merits of the matter are to be tested at the stage of trial. It is further submitted that by virtue of the COFEPOSA the respondents are vested with powers to issue detention order against the petitioner. It is further submitted that grant of bail or its denial is not a ground for quashing of the detention order as long as the said fact is taken note of by the Detaining Authority and subjective satisfaction is arrived at as to the propensity of the person to indulge in prejudicial activities. 46. It is further argued that the contention of non-consideration of other documents/material cannot be a ground for vitiating the detention order. As sufficient documents and materials were placed before the Detaining Authority and upon considering the individual role of the petitioner, the Detaining Authority satisfied itself as to his continued propensity and his inclination to indulge in the act of smuggling in a planned manner to the detriment of the economic security of the country, which made it necessary to prevent the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der all circumstances; rather it follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and order of detention. 52. Lastly, it is also submitted that there was no inordinate delay in deciding the representation of the petitioners by the Central Government as the representation dated 16.10.2020 was received from the petitioner through his counsel in the office of the D.G., CEIB on 16.10.2020 itself and the requisite information/comments of the Sponsoring Authority were sought on 19.10.2010 on the said representation. The requisite information/comments of the Sponsoring Authority were received on 02.11.2020 and thereafter the matter was referred to the Advisory Board on 03.11.2020. The answering respondents on 02.12.2020 sent copies of the representation of the detenu to the Advisory Board alongwith the comments on the representation of the detenu, prepared by the Sponsoring Authority. The Advisory Board on 14.12.2020 opined that there exists sufficient cause for detaining the detenu in pursuance to the Detention Order dated 21.01.2020. Thereafter the opinion of the Advisory Board was submitted for necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iting our considered decision, because of which, it has not been possible to write a brief judgment. DISCUSSION AND CONCLUSION:- 55. Having heard learned counsel appearing on behalf of the parties and after due consideration of the rival submissions in the context of the facts and circumstances on record, as well as the relevant provisions of law and the decisions relied upon by the parties; and having perused the material on record, including the pleadings, the detailed written submissions filed on behalf of the parties and the original file, the following issues arise for consideration in these proceedings:- a. Whether the Detaining Authority acted independently and without any bias, whilst rendering the impugned orders of detention; b. Whether the impugned orders of detention passed are bad in law and vitiated on the ground of inordinate delay; c. Whether the impugned detention orders are vitiated on the ground of non-application of mind; d. Whether the detaining authority has arrived at its subjective satisfaction without properly appreciating and satisfying itself qua the propensity of the detenu to continue indulging in prejudicial activities; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... updates in the matter so that effective coordination in the investigation may be achieved. 59. It is pertinent to observe here that the aforesaid letter predates the detention order dated 21.01.2020 by approximately four and half months. 60. From a plain reading of the said communication dated 02.09.2019, it is clear beyond doubt that Mr. R.P. Singh, who passed the detention order, was actively involved in the investigation, which was being conducted into the cases against the petitioners, much prior to the passing of the detention order by him. Mr. R.P. Singh, in his letter dated 02.09.2019, elaborately summarized the specifics of the investigation, which was initiated by the DRI in the matter pertaining to the petitioners regarding the case of misuse of hand-carry and exhibition provisions of the FTP, in respect of the precious Metals and Jewellery and Advance Authorization Scheme. 61. In this regard, it is observed that the respondents have not disputed the contents of the aforesaid letter or the circumstance that Mr. R.P. Singh was the author of the said communication. However, the respondents have in their affidavits dated 10.02.2021, taken the stand that the said l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intellectual apparatus , namely, whether the person who passed the detention order, purporting to act as the specially empowered human agency, has dealt with the same matter prior to that in any other capacity. It is of no consequence to say that the same person, with the same intellectual apparatus, acted under a different official designation or in a different official capacity. Therefore, the issue of a pre-determined approach and bias, while passing the impugned orders of detention, is writ large in the instant case; and as such, the subjective satisfaction of the Detaining Authority in the present case stands vitiated. 67. In our view, the powers conferred under Section 3(1) of the COFEPOSA have not been complied with independently in the present case. We are also in agreement with the submissions made by learned Senior Counsel in this behalf that, there is nothing in Section 3 of the COFEPOSA or in the scheme of the Act, which suggests that the especially empowered officer must act only on receipt of the proposal of some other agency or Sponsoring Authority . In fact the expression Sponsoring Authority and Detaining Authority find no mention in the statute. 68. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is the petitioners submission that there was inordinate and unexplained delay of 272 days in passing the impugned detention orders from the date of the alleged initial incident. 73. In this regard, it is submitted on behalf of the petitioners that the respondent had sought to justify the delay before this Court at the pre-execution stage by contending that overseas evidence had been received from Dubai in the first week of November, 2019 and that the proposal for detention was resultantly analysed on 02.01.2020, which was then put-up before the Central Screening Committee on 13.01.2020 and after recommendation of the Central Screening Committee on 14.01.2020, the impugned orders of detention were passed on 21.01.2020; and that therefore, there was no delay in passing the same. 74. The respondents at the post-execution stage have taken the stand that since the aspect of delay was already considered by this Court and rejected at the pre-execution stage, it is no longer open to the detenus to re-agitate the same. 75. The respondents have alternatively submitted that the plea of delay cannot be taken when the same is satisfactorily explained, as in the present case. 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince in the post-execution proceedings, the respondents have failed to even cite or rely upon the purported overseas evidence collected; nor did they place any such evidence before the Detaining Authority, the respondents have failed to explain away the delay on that count. This Court is therefore obliged to re-consider the issue of delay at the post-execution stage in the present proceedings. 80. In view of the facts and circumstances elaborated hereinabove and the judicial pronouncements on the issue, to the effect that the Court can interfere with the orders of detention on the ground of inordinate and unexplained delay, a fortiori we are of the view that there has been a delay in passing the impugned orders of detention. As a result, in the absence of a satisfactory explanation, the inordinate delay leads to snapping of the live and proximate link and direct nexus between the alleged prejudicial activity and any immediate need to detain the petitioners. 81. In this behalf, it is incumbent upon us to emphasise the dictum of the decisions of the Hon ble Supreme Court in the following cases:- a) In Saeed Zakir Hussain Malik vs. State of Maharashtra Ors., reported as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the causal connection has been broken in the circumstances of each case. 82. In view of the ratio decidendi of the above extracted decisions, we are of the view that in the facts and circumstances of the present case, the causal connection between the alleged prejudicial activit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of each case . 87. The facts and circumstances which demonstrate the snapping of the live-link between the alleged prejudicial activity and the purpose of detention have been copiously detailed in the present writ petition and the written submissions filed on behalf of the petitioners. 88. The present case is, therefore, entirely distinguishable on facts from the case of Licil Antony (supra), since in that case there was a delay of one month between the arrest of the detenu and the issuance of proposal of detention by the Sponsoring Authority. The detenu in Licil Antony (supra) was arrested on 17.11.2012 and the proposal for detention dated 17.12.2012 was received by the Detaining Authority on 21.12.2012. 89. In the present case, however, the petitioners were admittedly arrested on 24.04.2019, whereas the proposal for detention by the Sponsoring Authority was made, belatedly, only in January, 2020. Thus, evidently in the present case, there is a delay of over 08 months between the arrest of the petitioners and the proposal for detention by the Sponsoring Authority to the Detaining Authority; which is in complete contrast to the delay of just one month in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pertinent to observe that, at the time of mounting a challenge to the impugned detention orders at the pre-detention stage, the petitioners admittedly did not have access to the detention orders, the grounds thereof, as well as the Relied Upon Documents, since the same were served upon them only on 01.10.2020, consequent upon their arrest and detention. 94. It is at that stage that the petitioners became aware for the first time about the absence of the details and particulars of overseas evidence from Dubai in November 2019, since the same was neither mentioned in the impugned detention orders nor formed part of the Relied Upon Documents. It is in this view of the matter, as well as the dictum of the Hon ble Supreme Court in Muneesh Suneja (supra), that we find ourselves unable to agree with the respondent s submission that as the aspect of delay was dealt with by this Court in Mohd. Nashruddin (supra) in the earlier round at the pre-detention stage, we ought not to examine that issue at the post-detention stage. The parameters, in our considered view, in relation to the consideration of the subject detention orders at the post-detention stage are entirely different. 95. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... becomes questionable once there is a retraction, which issue merited consideration, not accorded to it by the Detaining Authority. 97. In this behalf, it is also trite to state that the Sponsoring Authority was under a legal obligation to have placed the said retractions before the Detaining Authority for the latter s subjective satisfaction. 98. In this behalf, it would be beneficial first to consider the observations of the Hon ble Supreme Court in A Sowkath Ali vs. Union of India Others, reported as (2000) 7 SCC 148 and particularly in paragraph 20 thereof. The said paragraph is extracted hereinbelow for the sake of facility:- 20. There can be no doubt, it was not necessary, while considering the case of the petitioner detenu, to place all or any of the documents which are relevant and are relied on in the proceedings of a co-accused, but where the sponsoring authority opts out of its own volition to place any document of the other co-detenu, not merely as a narration of fact but reiterating in details the confession made by him, then it cannot be said it would not prejudice the case of the detenu. If this has been done it was incumbent for the sponsoring author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion that the confession made by the petitioner on 7-11-1999 can safely be relied on. What would have been the position if the detaining authority was apprised of the fact that Sowkath Ali had retracted his confession, is not for us to make a retrospective judgment at this distance of time. 8. The second contention that non-placement of the retraction made by Sowkath Ali would not have affected the conclusion as the petitioner's confession stood unsullied, cannot be accepted by us. The detaining authority had relied on different materials and it was a cumulative effect from those materials which led him to his subjective satisfaction. What is enumerated in Section 5-A of the COFEPOSA Act cannot, therefore, be applied on the fact situation in this case. 9. In this context, it is to be mentioned that the detention order passed against Sowkath Ali was quashed by this Court when he challenged that detention order under Article 32 of the Constitution (vide A. Sowkath Ali v. Union of India [(2000) 7 SCC 148 : 2000 SCC (Cri) 1304 : (2000) 5 Scale 372] ). 100. Further, in Ashadevi vs. K. Shivraj, reported (1979) 1 SCC 222 the Hon ble Supreme Court held as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no order of detention should be made for the present, but the criminal case should be allowed to run its full course and only if it fails to result in conviction, then preventive detention should be resorted to. It would be most unfair to the person sought to be detained not to disclose the pendency of a criminal case against him to the District Magistrate. It is true that the detention order in that case was ultimately set aside on other grounds but the observations are quite significant. These observations were approved by this Court in Suresh Mahato v. District Magistrate, Burdwan [(1975) 3 SCC 554 : 1975 SCC (Cri) 120 : AIR 1975 SC 728]. The principle that could be clearly deduced from the above observations is that if material or vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed before or are not considered by the detaining authority it would vitiate its subjective satisfaction rendering the detention order illegal. After all the detaining authority must exercise due care and caution and act fairly and justly in exercising the power of detention and if t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsonal liberty and individual freedom of a citizen is curtailed by an order of preventive detention, the detaining authorities must apply their minds carefully and exercise great caution in passing such an order upon being fully satisfied from materials which are both for and against the detenu that such an order is required to be passed in the interest of the State and for the public good. 102. The reliance placed by the respondent on the decision of the Hon ble Supreme Court in Madan Lal Anand vs. UOI, reported as (1990) 1 SCC 81 , to the effect that it has been held therein that only copies of documents, on which the impugned detention orders are primarily based should be supplied to the detenus and not any and every documents, we observe that it was also clearly held therein in paragraph 24 thereof as under:- We must not, however, be understood to say that the detaining authority will not consider any other document. 103. In view of the above extracted decisions, the legal position that emerges on this aspect is that, if the documents are relevant and have a direct bearing on the case, they must be placed before the Detaining Authority for its subjective sati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the alleged prejudicial activities. 108. Lastly, the Detaining Authority did not consider the conduct of the detenus post their enlargement on bail, whilst rendering the impugned orders of detention. 109. Additionally, the order of CESTAT dated 13.11.2019 directing the provisional release of the goods, was also a relevant factor, that was not accorded any consideration by the Detaining Authority in the present case. 110. In Husainbi Abdullah Ghalamsalam vs. State of Maharashtra, reported as 2013 SCC OnLine Bom 160 , it was held by a Division Bench of Bombay High Court in paragraphs 6 and 7 thereof, as follows:- 6. Learned Counsel for the Petitioner relied upon the ruling in Smt. Nafisa Syed Ali v. The state of Maharashtra reported in 2013 ALL MR (Cri) 78. A Division bench of this Court after reference to observations and ratio in GIMK PIOTR 2010 ALLMR (Cri) 308 (SC) had allowed the Writ Petition on the ground that when a passport of the detenu was retained with the Customs department, the likelihood of the detenu indulging in the smuggling activities was foreclosed. Impounding the passport of the detenu was enough to curb the potentiality of the smuggling, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant. 9. This opinion has been further fortified by this Court in Gimik Piotr case[(2010) 1 SCC 609 : (2010) 1 SCC (Cri) 864] . In SCC para 32, it has been held as under: (SCC p. 619) 32. In the present case, the detention order was passed under Section 3(1)(i) of Cofeposa. The Customs Department has retained the passport of detenu. The likelihood of the appellant indulging in smuggling activities was effectively foreclosed. As observed by this Court in Rajesh Gulati case [(2002) 7 SCC 129 : 2002 SCC (Cri) 1627], that the contention that despite the absence of a passport, the appellant could or would be able to continue his activities is based on no material but was a piece of pure speculation. And again in SCC para 35: ( Gimik Piotr case [(2010) 1 SCC 609 : (2010) 1 SCC (Cri) 864] , SCC p. 619) 35. 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived well before the reference is made to the Advisory Board and can be considered by the appropriate Government, the representation must be considered with expedition. Thereafter the representation along with the decision taken on the representation shall be forwarded to and must form part of the documents to be placed before the Advisory Board. 17.2. If the representation is received just before the reference is made to the Advisory Board and there is not sufficient time to decide the representation, in terms of law laid down in Jayanarayan Sukul [Jayanarayan Sukul v. State of W.B., (1970) 1 SCC 219 : 1970 SCC (Cri) 92] and Haradhan Saha [Haradhan Saha v. State of W.B., (1975) 3 SCC 198 : 1974 SCC (Cri) 816] the representation must be decided first and thereafter the representation and the decision must be sent to the Advisory Board. This is premised on the principle that the consideration by the appropriate Government is completely independent and also that there ought not to be any delay in consideration of the representation. 17.3. If the representation is received after the reference is made but before the matter is decided by the Advisory Board, according to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds have been lifted from the grounds of an altogether distinct case. Such a blatant copy-paste by the Detaining Authority demonstrates a clear non-application of mind. 121. We, therefore, hold that the impugned orders of detention are liable to be vitiated on this ground as well. 122. In view of the foregoing discussion, and having accorded our thoughtful consideration to the material on record, the issues cited hereinabove are decided in favour of the detenus and against the respondents. 123. Accordingly, the writ petitions succeed. In the result, the detention orders bearing No. PD-12001/01/2020-COFEPOSA and PD-12001/02/2020-COFEPOSA respectively, both dated 21.01.2020 passed against the detenus (Gopal Gupta, the petitioner in W.P.(CRL.) No.1829/2020) and (Amit Pal Singh, the petitioner in W.P.(CRL.) No.1830/2020) are set-aside and quashed. The detenus are directed to be set at liberty forthwith unless their custody is required in connection with any other case. 124. The writ petitions are disposed of in the above terms. 125. A copy of this judgment be provided to learned counsel appearing on behalf of the parties electronically and be also uploaded on the website ..... X X X X Extracts X X X X X X X X Extracts X X X X
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