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TMI Blog2008 (8) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... d Order is predicated. 2. Briefly stated, the Detenu had reported at the Red Channel of Customs, Delhi at 2330 hours on 17 th October, 2007 and had declared the total value of goods sought to be imported by him as his baggage at Rupees Sixty Thousand. Since the conduct of the Detenu was found to be suspicious by the officers of the Customs Department, an inspection was carried out of the three checked-in- baggages and two hand-baggages carried by the Petitioner/Detenu. It is not in dispute that the items and quantities declared by the Petitioner/Detenu in the Embarkation Form were found drastically less than what was actually contained in the baggage. The Customs Department assessed the duty at Rupees Nine Lac Eighty Thousand and Fifty Only instead of Rupees Sixty Thousand mentioned by the Detenu. The Department took note of the fact that between the period August, 2004 and October, 2007 (that is a period of three years and two months) the Detenu had made as many as fifty-one journeys, of very short duration, to Thailand and two journeys to Hong Kong. Mr. Jain, learned counsel for the Detenu, has conceded that the Detenu made his livelihood by purchasing goods abroad and thereaf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Jain that the Grounds of Detention are verbatim the same as the Complaint filed before the ACMM, New Delhi which is indicative of the fact that the conduct of the Department is malicious and calculated to harass the Detenu. We find no merit in this submission. An analogy cannot be drawn between this factor and instances where the Order of the Detaining Authority is verbatim that of the Sponsoring Authority. 7. Mr. Jain has also contended that there is no likelihood of the Detenu being enlarged on bail and that successive applications have been rejected since he was taken into custody on 18.10.2007, under Section 132/135(1)(a) of the Customs Act. Reliance has been placed on the following observations that are to be found in Rajesh Gulati "vs- Govt. of NCT of Delhi, (2002) 7 SCC 129: It cannot be overemphasized that the object of detention under the Act is not to punish but to prevent the commission of certain offences. Section 3(1) of the Act allows the detention of a person only if the appropriate detaining authority is satisfied that with a view to preventing such person from carrying on any of the offensive activities enumerated therein, it is necessary to detain such pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the inevitability of not being enlarged on bail, he should welcome that the period of detention runs its course while he is in incarceration in the pending prosecution under Sections 132/135 of the Customs Act. 8. It is next contended that legally unexcusable and uncondonable delay in passing the impugned Order has occurred. It has already been noted that the Detenu was taken into custody by the Customs Department on 18.10.2007. Judicial Remand was applied for and ordered by the ACMM, New Delhi on the application of the Customs Department on 19.10.2007. It is trite that the importer or passenger, as the case may be, whose valuation of the imported goods has not been accepted by the Customs Department, would not automatically or invariably be prosecuted under Section 132/135 of the Customs Act. Requisite mens rea would have to be evident to justify prosecution. We do not intend to make any observations so far as the pending prosecution is concerned. We have mentioned it only for the reason that the entire conspectus of facts would have had to be taken note of in order to arrive at the decision to prosecute him. Everyday scores of passengers pay duty as per the valuation and ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been the consistent view of this Court all along from its decision in Sk. Abdul Karim v. State of West Bengal, (1969) 1 SCC 433 : (AIR 1969 SC 1028); In re: Durga Show, (1970) 3 SCC 696 : Jaynarayan Sukul v. State of West Bengal (1970) 1 SCC 219 : (AIR 1970 SC 675); Shaik Hanif v. State of West Bengal, (1974) 1 SCC 637 : (AIR 1974 SC 679); Raisuddin @ Babu Tamchi v. State of U.P., (1983) 4 SCC 537 : (AIR 1984 SC 46); Frances Coralie Mullin v. W.C. Khambra, (1980) 2 SCC 275 : (AIR 1980 SC 849); Mohinuddin alias Moin Master v. District Magistrate, Beed, (1987) 4 SCC 58 : (AIR 1987 SC 1977); Rama Dhondu Borade v. V.K. Saraf, Commr. of Police, (1989) 3 SCC 173 : (AIR 1989 SC 1861); Aslam Ahmed Zahire Ahmed Shaik v. Union of India, (1989) 3 SCC 277 : (AIR 1989 SC 1403); Mahesh Kumar Chauhan alias Banti v. Union of India, (1990) 3 SCC 148 : (AIR 1990 SC 1455), right upto its reiteration in Gazi Khan alias Chotia v. State of Rajasthan, (1990) 3 SCC 459 : (AIR 1990 SC 1361). 12. Regretfully the views of the Apex Court remain unheeded in the Administration. Keeping the plethora of precedents of the Hon"ble Supreme Court in perspective, we are constrained to record our displeasu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order. Failure to prescribe the precise schedule of time is conspicuous by its absence but it has to be "as soon as may be." There is, however, plenitude of precedents on the time within which the grounds on which the order has been made must be communicated to the Detenu. The following Table would illustrate that the urgency has been seen in terms of a couple of days only: SR. NO. PETITIONER/DETENU DATE OF SERVICE OF BARE GROUNDS DATE OF SERVICE OF RELIED UPON DOCUMENTS TIME GAP (NO. OF DAYS) QUASHED OR REVOKED BY COURT OR CENTRAL GOVERNMENT 1. VIRENDRA SINGH VS-UOI 1.11.80 5.11.80 4 DAYS SUPREME COURT 2. LAXMAN HARWANI 28.11.80 3.12.80 5 DAYS BOMBAY HC 3. SUMAN B. SOMANI 31.8.88 1.9.88 1 DAY BOMBAY HC 4. HAJI HOHD.USMAN BHATI 24.11.95 29.11.95 5 DAYS BOMBAY HC 5. THAKURDAS U. KAMRA 27.6.95 30.6.95 3 DAYS BOMBAY HC 6. SANJAY U. MAHATRE 27.12.95 30.12.95 3 DAYS BOMBAY HC 7. SHASHI GOYAL 21.2.06 24.2.06 3 DAYS DELHI HC 8. UOI Vs. SHASHI GOYAL 21.2.06 24.2.06 3 DAYS SUPREME COURT 9. GURBAX @ SAM BIRYANI 28.5.88 30.5.88 2 DAYS CENTRAL GOVERNMENT 15. In T.A. Abdul Rahman -vs- State of Kerala, (1989) 4 SCC 741 = AIR 1990 SC 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 11. Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the Detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s envisaged in Article 22 of the Constitution should similarly hold with full force for all other attendant actions. In the present case the Detenu was served with the impugned Order on 19.2.2008 from which date his detention on a preventive platform had commenced. It is not extraordinary or unreasonable to expect the Respondents to anticipate the filing of a Representation by the Detenu, which, in the present case, was served on the Respondents on 11.3.2008. Its disposal cannot be left to the whims and convenience of the Respondents, especially since it is a preventive and not a punitive detention that is being dealt with. We find no reason why the requisite decision was not taken on the representation "as soon as may be .... but ordinarily not later than five days". The unsatisfactory and legally unacceptable reason which has been proffered is forthcoming, however that the Respondents were concentrating on making the Reference to the Advisory Board within the statutory period of five weeks. The Respondents are clearly mistaken and misdirected in doing so. They should have instead concentrated first on disposing of the Representation of the Detenu. 18. It is manifestly evident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de on many previous occasions, in the hope that the Respondents will wake up to the need to comply with the Constitution. "In case of preventive detention no offence is proved, nor any charge is formulated and the justification of such detention is suspicion or reasonability and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. (See R. v. Halliday and Kubic Darusz v. Union of India.) But at the same time, a persons greatest of human freedoms i.e. personal liberty is deprived, and, therefore, the laws of preventive detention are strictly construed, and a meticulous compliance with the procedural safeguard, however technical, is mandatory. The compulsions of the primordial need to maintain order in society, without which enjoyment of all rights, including the right of personal liberty would lose all their meanings, are the true justifications for the laws of preventive detention. This jurisdiction has been described as a "jurisdiction of suspicion", and the compulsions to preserve the values of freedom of a democratic society and social order sometimes m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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