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TMI Blog2021 (8) TMI 727X X X X Extracts X X X X X X X X Extracts X X X X ..... hat, 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. Whether the detenu s constitutionally secured right of making an effective representation has been jeopardized, by the non-supply of legible and complete documents, inspite of the detenu s request in this regard, thereby rendering the order of detention illegal and bad? - HELD THAT:- In the present case, the denial by the official respondent to supply legible copies of the relevant documents to the detenu, despite his express request to do so, tantamount to denial of his constitutional right, thereby vitiating the detention order, founded on the said relevant material. Whether the order of detention is bad in law and vitiated on the ground of inordinate delay? - HELD THAT:- In the absence of any mention of such overseas evidence in the subject detention order, the same cannot be considered as germane in order to satisfactorily explain the delay occasioned in passing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al activities, by failing to consider the facts and circumstances. Delay on the part of the Central Government in deciding the representation filed by the detenu - HELD THAT:- There was massive delay of 57 days by the Central Government in dealing with the petitioner s representation - it is well settled that the right of the detenu to make a representation and have it considered by the appropriate Government with expedition, is a constitutional right under Article 22(5) of the Constitution of India and any unreasonable and unexplained delay in considering the representation is fatal to the continued detention of the detenu - there has been inordinate and unexplained delay on the part of the Central Government in deciding the statutory representation filed by the detenu. Whether the subject detention order stands vitiated for the reason that the grounds stated therein have been lifted from the grounds taken in an entirely different case? - HELD THAT:- The petitioner herein have produced certified copies of the detention order in the case of UNION OF INDIA, JOINT SECRETARY (COFEPOSA) , GOVT. OF INDIA, MINISTRY OF FINANCE VERSUS DIMPLE HAPPY DHAKAD [ 2019 (8) TMI 139 - SUPREME COURT] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred to as 'IMNPL') was entrusted with the work of importing and exporting gold jewellery through handcarry (personal carriage) to UAE; for the purpose of taking part in an exhibition organized by M/s. M.N. Khan Jewellers (FZE), as per the permission by the Gem & Jewellery Export Promotion Council (hereinafter referred to as 'GJEPC'). iii) IMNPL is a government recognized three-star export house, engaged in the business of manufacturing, import and export of gold jewellery and other allied bullion items. iv) 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 US Dollars 150 million for the country. v) IMNPL had also obtained Advance Authorization License from the office of DGFT, New Delhi, inter alia permitting import of 1000 kgs of gold bars. vi) IMNPL has against the said Advance Authorization License 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 obligat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso 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. xv) The gold jewellery, which remained unsold at the time of exhibition was brought back by the co-detenu Amit Pal Singh, from UAE. The co-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. xvi) Amit Pal Singh, the co-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 him 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 the Standard Operating Proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts, New Delhi on 27.04.2019 in writing. Detenu also filed a detailed retraction on 26.05.2019 from Tihar Jail through Superintendent of Jail No. 7, prior to his release on bail. Retractions were filed by the detenu and also Amit Pal Singh and Gopal Gupta (co-detenus) before the learned Chief Metropolitan Magistrate, Patiala House Courts, New Delhi on 27.04.2019 while they were lodged in Tihar Jail. xxiv) At this juncture it is averred by the detenu that vide additional submissions filed by DRI, opposing the bail application of the detenu, it was reiterated that 'it is not a case of evasion of customs duty'. Consequently, the detenu and co-detenus were granted bail by the learned Chief Metropolitan Magistrate, Patiala House Court, New Delhi vide common bail order dated 3.6.2019 wherein it was pertinently observed that "it is not explained that as to how the duty could be saved by replacing the larger quantity of bills of entries of jewellery in India by bill of entry of smaller quantity" and that "the statement of the accused persons recorded by DRI officials u/s 108 Customs Act have already been retracted and it is alleged by the accused persons therein that their statements wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther seizure of gold jewellery from the IMNPL business premises on 24-25.04.2019, purportedly after completion of the investigation, a Show Cause Notice dated 26.09.2019 was issued by the DRI, New Delhi, wherein the detenu was also made a noticee and penalty was proposed upon the detenu under the provisions of Customs Act. xxx) The detenu's passport was released vide order dated 07.01.2020 by the learned Chief Metropolitan Magistrate, Patiala House Courts, New Delhi and he was permitted to travel abroad. The DRI carried the said order passed by the learned Chief Metropolitan Magistrate in appeal to the Sessions Court, as well as this Court, but to no avail. xxxi) It is also averred on behalf of the detenu that despite the release of his passport and the permission granted to the detenu to travel abroad; the detenu has not exercised his liberty to travel abroad, exhibiting his bona fides and negating the stand taken by the DRI qua his propensity to indulge in the alleged act in any manner. xxxii) It is curious to observe that after almost 09 months of the detenu's arrest and the filing of retraction statement before the learned Chief Metropolitan Magistrate, DRI belatedly sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xvi) A perusal of the grounds of detention impugned in these proceedings reveals that the role assigned to the detenu therein, pursuant to the investigation carried-out, is that IMNPL, in connivance with the detenu, opened a dummy company in the name and style of M/s. M.N. Khan Jewellers (FZE) in UAE in the year 2015 to manage the business interest of IMNPL and other related firms of the company at Dubai. The detenu is a key member of the syndicate and its conduit in UAE and abetted the company in the execution of conspiracy relating to misuse of the Advance Authorization Scheme. In order to fulfil the export obligation under the said scheme, IMNPL hatched a conspiracy, whereby gold jewellery was exported to the detenu's company M/s. M.N. Khan Jewellers (FZE), U.A.E. for exhibition purpose through hand-carry, either by co-detenu Amit Pal Singh or by the detenu himself. The said gold jewellery was subsequently re-imported into India fraudulently. On 24.04.2019 M/s. M.N. Khan Jewellers (FZE) filed declaration before the Federal Customs Authority, U.A.E. that 51.172 kgs of gold jewellery were exported to Kathmandu, Nepal through hand-carry by Mustafa Kamal and 0.745 kgs of gold jewell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpt goods imported against the authorization shall only be utilized in accordance with the provisions of Paragraph 4.16 of the Foreign Trade Policy 2015-20 and other provisions and the relevant Customs Notification - [Custom Notification 18/2015 dated 01.04.2015 (for physical exports), 21/2015 dated 01.04.2015 (for deemed exports) 22/2015 dated 01.04.2015 (for Advance Authorization for prohibited goods) and 20/2015 (for Annual Advance Authorization) as the case may be]"; and (ii) Statements of Mr. Amit Pal Singh and Mr. Gopal Gupta, the co-detenus and the detenu recorded while in judicial custody during the investigation in the case of M/s Bharti Gems Private Limited, were neither supplied to the detenu nor were made part of Relied Upon Documents but have been heavily relied in establishing Grounds of Detention, thus disabling the detenu from making an effective purposeful and meaningful representation. 5. It was further submitted that by learned Senior Counsel appearing on behalf of petitioner that there has been delay in deciding Representation by the Central Government as the petitioner was detained on 12.10.2020; the petitioner filed representation dated 27.10.2020 with the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 02.01.2020 and the meeting of the Central Screening Committee was held on 13.01.2020 and the recommendations of the Central Screening Committee were submitted to the Detaining Authority on 14.01.2020. The Grounds of Detention relies on a rebuttal of retraction application by DRI dated 16.01.2020, which implies that the said document was placed by the Sponsoring Authority before the Detaining Authority only after 16.01.2020 (the said day being a Thursday). It is further a matter of record that the Detention Order and Grounds of Detention for the detenu and the co-detenus i.e. Amit Pal Singh and Gopal Gupta, were passed on 21.01.2020 (the said day being a Tuesday). Accordingly, three detention orders running into some 50 pages each i.e., 150 pages plus the Relied Upon Documents, running into some 6000 pages came to be passed on the same day, which it is difficult to believe was possible for an ordinary human to process. It is thus apparent that the Detaining Authority did not apply its mind on the available material at one time and instead scrutinised the documents in a piece meal manner while passing the detention order. 8. It has also been argued on behalf of petitioner that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 petitioner did not have the benefit of the impugned detention orders as the same had not been served upon the petitioner. Upon being served with the impugned detention orders the petitioner 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 order is that all the material evidence, including overseas evidence, sought to be used against the petitioner was already collected by as early as July, 2019. 11. It was further submitted by Senior Counsel for the petitioner that another aspect which became strikingly noticeable to the petitioner, which was not known to the petitioner at the pre-execution stage, is that Mr. R.P. Singh was all long aware of the case against the petitioner, at least as early as 02.08.2019. The aspect of delay, therefore, assumes a different complexion. There is nothing in Section 3 of COFEPOSA or in the scheme of the Act which suggests that the spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J 319. (xviii) Gimik Piotr v. State of Tamil Nadu reported as (2010) 1 SCC 609. (xix) Rajesh Gulati v. State of NCT of Delhi reported as (2007) 7 SCC 233. (xx) Naresh Kumar Jain v. UOI reported as 2011 SCC OnLine Del 442. (xxi) T.A. Abdul Rahman v. State of Kerela reported as (1984) 4 SCC 741. (xxii) Ahmad Nassar v. State of Tamil Nadu reported as (1999) 8 SCC 473. (xxiii) Order dated 12.04.2021 passed by the Hon'ble High Court of Delhi in W.P.(Crl.) No.821/2021. 14. Per Contra, Mr. Amit Mahajan, learned Central Government Standing counsel appearing on behalf respondents would submit that impugned detention order dated 21.01.2020 passed by the Competent Authority under Section 3(1) of the COFEPOSA is legal and constitutional and the same has been passed by the Competent Authority with due application of mind and after arrival of subjective satisfaction, based on the sufficient material facts and circumstances of the case. 15. It is further argued that the Detaining Authority is a different and an independent authority from the Sponsoring Authority and that before issuing the impugned detention order, the Detaining Authority has applied its mind fully independent of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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. 19. 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. 20. It is further argued that without prejudice, all the relevant documents and vital documents were placed before the Detaining Authority and only after arriving at its subjective satisfaction was the Impugned Detention Order pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 COFEPOSA, the respondents have vested powers in them 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 the propensity of the person to indulge into prejudicial activities. 25. 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 necessitated the need to prevent the petitioner from smuggling goods, and detain him. 26. It is also contented that delay either in passing the detention order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance Minister on behalf of the Central Government on 15.12.2020. The approval was received on 21.12.2020 and thereafter the representation was disposed on 23.12.2020 and communicated to the Petitioner on 24.12.2020. Thus, there was no inordinate delay in deciding representation of the petitioner by the Central Government. 30. In support of his arguments, Mr. Amit Mahajan, learned CGSC appearing on behalf of the respondents' has relied upon the following decisions:- (i) Union of India & Ors. v. Muneesh Suneja reported as [(2001) 3 SCC 92). (ii) Licil Antony v. State of Kerala & Anr. reported as [(2014) 11 SCC 326]. (iii) T.A.Abdul Rahman vs State of Kerala, reported as (1989) 4 SCC 741. (iv) Mohd. Nashruddin Khan v. Union of India & Ors in W.P. (Crl) 786/2020, decided on 11.09.2020 (v) Mohd. Nashruddin Khan v. Union of India & Ors in W.P.(Crl) 786/2020, decided on 11.09.2020. (vi) Radhakrishnan Prabhakaran v. State of Tamil Nadu & Ors reported as (2000) 9 SCC 170. (vii) Union of India & Anr. v. Dimple Happy Dhakad reported as (2019 SCC Online SC 875). (viii) Haradhan Saha v. The State of West Bengal & Ors. reported as (1975) 3 SCC 198. (ix) State of Maharashtra & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first issue, viz. whether the Detaining Authority acted independently and without any bias whilst passing the impugned order of detention is concerned; we have considered the rival submissions made before us in the backdrop of the original records and material placed before us in the present proceedings. We have also considered the judgment dated 11.09.2020 passed by this Court at the pre-detention stage in W.P.(CRL.) No. 786/2020 titled "Mohd. Nashruddin Khan vs Union of India & Ors". 33. Whilst declining to entertain the aforesaid petition at the pre-execution stage, this Court observed as follows:- "There is nothing produced before us by the petitioners to show that the Detaining Authority had any interaction with either of these petitioners, or in relation to their respective cases, before he passed the Detention Orders against each of them. There is absolutely no material placed on record by the petitioners to justify the claim of either malice in fact, or in law, against the members of the Central Screening Committee, or the Detaining Authority." 34. The petitioner has in the course of the present proceeding placed on record by way of his rejoinder affidavit, a lette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter itself. It is further submitted by him that in the said affidavit dated 10.02.2021, the respondent has also admitted that the CEIB is headed by a Director General, who is assisted by one Joint Secretary, designated as JS (COFEPOSA). Thus, there is no manner of doubt that the letter dated 02.09.2019 is signed by Mr. R.P. Singh, in his capacity as Joint Secretary and not in any other capacity. In this regard, it is also the submission of the petitioner that Mr. R.P. Singh himself filed an affidavit dated 26.02.2021, in CONT. CAS (C) No. 84/2021, wherein he rebutted the facts stated in the affidavit dated 10.02.2021. 39. In view of the above, upon a perusal of the documents placed before us, we have no hesitation in holding that Mr. R.P. Singh was actively involved in the subject investigation and was closely monitoring the same with different agencies, as early as on 02.09.2019. 40. It is, therefore, irrefutable that the Detaining Authority had prior interaction with the petitioner's case. At this juncture, we must observe that this Court while rendering the judgment dated 11.09.2020 admittedly did not have the benefit of considering the said letter dated 02.09.2019. 41. We a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat prevented Mr. R.P. Singh, whilst acting as J.S. (COFEPOSA), from passing the impugned order of detention at the first opportunity. Resultantly, in our view, the argument of pre-determined approach and bias stands established in the present case. 45. Our view is elucidated appositely by the decision of the Hon'ble Madras High Court in Madasamy vs. Secretary to Govt. & Ors., reported as 2016 SCC OnLine Mad 20650 and in particular paragraphs 41 to 43 of the said report, wherein it was observed as under:- "41. The Detaining Authority should act independently and with an open mind. He should not prejudge the issue even before considering the materials produced before him by the sponsoring authority. 42. In the subject cases, it is clear that the Commissioner of Police actively took part in the process of sponsoring the case of the detenus for detention. The affidavits of the sponsoring officers were attested by the Commissioner of Police by sitting in the arm-chair of the Detaining Authority. He was, therefore, in the know of things, even before the commencement of statutory proceedings for detention. In short, the Commissioner of Police himself was part of the team of complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, f) the statement of Mr. Rohit Sharma who is alleged to have defaced the gold bars imported illegally etc. was critical, in order to enable the detenu to make a comprehensive, holistic and effective representation against the impugned detention order, both before the Advisory Board, as well as before the Detaining Authority. 49. In the present case, the denial by the official respondent to supply legible copies of the relevant documents to the detenu, despite his express request to do so, tantamount to denial of his constitutional right, thereby vitiating the detention order, founded on the said relevant material. 50. In this regard the Hon'ble Supreme Court has, in Dharmistha Bhagat V State of Karnataka & Ors reported as 1989 Supp (2) SCC 155 and in particular paragraph 5 thereof, observed that non-supply of legible copies of vital documents would render the order of detention illegal and bad. The relevant portion has been extracted hereinbelow: 5. The learned counsel appearing on behalf of Respondent 1, Union of India has contended that even though legible copy of panchnama referred to in the list of documents mentioned in the grounds of detention has not been supplied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [(1981) 2 SCC 709 : 1981 SCC (Cri) 592 : AIR 1981 SC 1861] has observed that: (SCC p. 710) "The detenu was entitled to be supplied with copies of all material documents instead of having to rely upon his memory in regard to the contents of the documents. The failure of the detaining authority to supply copies of such documents vitiated the detention, as has been held by this Court in the two cases cited by counsel. The detenu is, therefore, entitled to be released. He is accordingly directed to be released forthwith." 51. To the similar effect are the observations recorded in the judgment of the Apex Court in Manjeet Singh Grewal vs. UOI & Ors. reported as 1990 Supp SCC 59. 52. Insofar as the third issue, as to whether the order of detention is bad in law and vitiated on the ground of inordinate delay is concerned, our attention was invited on behalf of the petitioner to the Chart of Events placed on record, in conjunction with the dates thereof, which preceded the passing of the detention order. 53. It is the petitioner's submission that there was inordinate and unexplained delay of 272 days in passing the impugned detention order from the date of the alleged initial incident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the same is specious and untenable. In these circumstances, the question of delay assumes relevance and is germane and requires de novo consideration by this Court. 57. Having perused the impugned order of detention, as well as, the grounds of detention, it is observed 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 order. 58. We are, therefore, of the view that in the absence of any mention of such overseas evidence in the subject detention order, the same cannot be considered as germane in order to satisfactorily explain the delay occasioned in passing of the impugned order of detention. 59. This Court while passing the said judgment dated 11.09.2020 had proceeded on the basis of the stand taken by the respondents that gathering of overseas evidence had delayed the issuance of the subject detention order. However, since 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 evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e detaining authority has satisfactorily examined such a delay and afforded a reasonable and acceptable explanation as to why such a delay has occasioned. 28. It is also the duty of the court to investigate whether causal connection has been broken in the circumstance of each case. We are satisfied that in the absence of proper explanation for a period of 15 months in issuing the order of detention, the same has to be set aside. Since, we are in agreement with the contentions relating to delay in passing the detention order and serving the same on the detenu, there is no need to go into the factual details." b) In T.A. Abdul Rahman vs. State of Kerala and Others, reported as (1989) 4 SCC 741, the Hon'ble Supreme Court has elaborated on the issue of when unexplained delay vitiates the detention order by observing as follows:- "10. The conspectus of the above decisions can be summarised thus: The question whether the prejudicial activities of a person necessitating to pass an order 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ashed at the post execution stage, even though it has not been quashed at the pre-detention stage. It leads to but one inescapable conclusion that considerations while examining the validity of detention order at post-detention stage can be different from the considerations that obtain at the time of examining such an order at the pre-detention stage. 65. The respondents have also invited our attention to the judgment of Licil Antony vs. State of Kerala and Another, reported as (2014) 11 SCC 326, in addressing the issue of delay in issuing the order of detention. 66. In Licil Antony (supra) the said decision, while dealing with the question of delay, the Hon'ble Supreme Court in paragraph 18 thereof has observed that 'the question whether the prejudicial activity of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activity and the purpose of detention is snapped depends upon the facts and circumstances of each case'. 67. The facts and circumstances, which demonstrates the snapping of the live-link between the alleged prejudicial activity and the purpose of detention have been copiously d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent, has vehemently argued that the question of delay in relation to the passing of the detention order cannot be re-agitated in these proceedings, since that aspect had already been dealt with by this Court in Mohd. Nashruddin vs. Union of India & Ors., W.P.(CRL.) No.786/2020 decided on 11.09.2020, wherein it was held that there was no delay in passing of the impugned detention order. 73. In this behalf, it is observed that, this Court was clearly disinclined to accept the argument of delay urged on behalf of the detenu herein, at the pre-execution stage, which finding is reflected in paragraphs 68 and 69 of the said judgment dated 11.09.2020. However, as is evident from the dictum of the Hon'ble Supreme Court in Muneesh Suneja (supra), there can be no quarrel with the legal position that, even though the detention order has not been quashed at the predetention stage, it may be quashed at the post-detention stage. In this behalf, it would be pertinent to observe that, at the time of mounting a challenge to the impugned detention order at the pre-detention stage, the petitioner admittedly did not have access to the detention order, the grounds thereto, as well as the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well-advised to consider the aspect of admissibility of the statements, which stood retracted; and were only rebutted by the Sponsoring Authority, a few days before the passing of the impugned order of detention. Further, we find from the record of the Detaining Authority that strong reliance has been placed upon the statement of not just the detenu but also the statements allegedly recorded of Vikram Bhasin and Mahesh Jain, statedly the co-accused in the prosecution. In this behalf, the record reflects that Vikram Bhasin and Mahesh Jain retracted their statements, as far back as on 03.06.2019, which retractions had evidently not been placed before the Detaining Authority by the Sponsoring Authority. In our view, once the Detaining Authority has relied upon the inculpatory statements of the co-accused, their retractions also assumed great relevance in the factual backdrop of the present case. Consequently, the admissibility of the said statements becomes questionable once there is a retraction, which issue merited consideration, not accorded to it by the Detaining Authority. 77. In this behalf, it is also trite to say that the Sponsoring Authority was under legal obligation to hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... link with the issue cannot be construed as relevant." 79. In a similar vein are the observations of the Hon'ble Supreme Court in P. Sarvanan vs. State of T.N. and Others, reported as (2001) 10 SCC 212 and in particular paragraphs 7, 8 and 9 thereof. The said paragraphs as extracted hereinbelow:- "7. When we went through the grounds of detention enumerated by the detaining authority we noticed that there is no escape from the conclusion that the subjective satisfaction arrived at by the detaining authority was the cumulative result of all the grounds mentioned therein. It is difficult for us to say that the detaining authority would have come to the subjective satisfaction solely on the strength of the confession attributed to the petitioner dated 7-11-1999, particularly because it was retracted by him. It is possible to presume that the confession made by the co-accused Sowkath Ali would also have contributed to the final opinion that the confession made by the petitioner on 7-111999 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 ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the history-sheet of the petitioner which was before the District Magistrate when he made the order of detention did not make any reference to the criminal case launched against the petitioner, much less to the fact that the prosecution had been dropped or the date when the petitioner was discharged from that case. In connection with this aspect this Court observed as follows: "We should have thought that the fact that a criminal case is pending against the person who is sought to be proceeded against by way of preventive detention is a very material circumstance which ought to be placed before the District Magistrate. That circumstance might quite possibly have an impact on his decision whether or not to make an order of detention. It is not altogether unlikely that the District Magistrate may in a given case take the view that since a criminal case is pending against the person sought to be detained, 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich 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." 82. 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 order is primarily based, should be supplied to the detenu and not any and every document; 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." 83. 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 were required to have been placed before the Detaining Authority for its 'subjective satisfaction'. 84. The reliance placed by the respondent upon the decision of Kamarunnisa vs. Union of India, reported as (1991) 1 SCC 128, does not come to their aid, since in the present case we agree with the submissions made on behalf of the petitioner, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to travel overseas, clearly and unequivocally establishing his bona fides and debunking the arguments of his propensity to continue to indulge in prejudicial activities in the immediate future. This was never brought to the notice of the Detaining Authority, thereby precluding the latter from considering this relevant and germane circumstance, whilst arriving at its subjective satisfaction in this behalf. 89. 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. 90. We are, therefore, of the view that the Detaining Authority has erred in arriving at the finding qua the propensity of the detenu to involve himself in further prejudicial activities, by failing to consider the facts and circumstances, elaborated hereinabove. 91. On the sixth issue regarding the delay on the part of the Central Government in deciding the representation filed by the detenu, it would be relevant to consider the circumstance that the detenu was detained on 12.10.2020 and filed representation dated 27.10.2020 with the Detaining Authority, as wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 SCC 198 : 1974 SCC (Cri) 816], the representation must be decided. The decision as well as the representation must thereafter be immediately sent to the Advisory Board. 17.4. If the representation is received after the decision of the Advisory Board, the decisions are clear that in such cases there is no requirement to send the representation to the Advisory Board. The representation in such cases must be considered with expedition." 94. It is, therefore, well settled that the right of the detenu to make a representation and have it considered by the appropriate Government with expedition, is a constitutional right under Article 22(5) of the Constitution of India and any unreasonable and unexplained delay in considering the representation is fatal to the continued detention of the detenu. 95. In this view of the matter and the circumstance that this proposition is too well settled by a long line of decisions, it is not considered necessary for us to examine the authorities relied upon by the respondents on this aspect. 96. We, therefore, hold that there has been inordinate and unexplained delay on the part of the Central Government in deciding the statutory representation fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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