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TMI Blog2022 (11) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... are provided to the detenu by the detaining authority; so as to enable the detenu to make an effective representation to the advisory board, as well as to the detaining authority. Therefore, the failure and non-supply of legible copies of all RUDs despite of a request and representation made by the detenu for the supply of the same, renders the order of detention illegal and bad in law; and vitiates the subjective satisfaction arrived at by the detaining authority. It is well settled and not in dispute that under the provisions of Section 3 of COFEPOSA, it is only the detaining authority, which can ultimately decide to pass or not, a detention order against any person, and that too, after perusing each and every document and material placed before it. It is also not in dispute that the subjective satisfaction of the detaining authority itself is to be arrived at after perusing all the relevant documents and material produced - It is also an admitted position that many of the RUDs placed before the detaining authority were illegible/dim/blank pages. There are considerable force in the contention that had the detaining authority itself perused the RUDs for arriving at its subj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d thereafter by the Directorate of Revenue Intelligence ( DRI ) against one Zakir Khan whose consignments were cleared as a CHA by the detenu. The detenu, it is alleged, cleared import consignments of Zakir Khan's firms knowingly and being fully aware of the fact that Zakir Khan used to import old and used laptops, mobile phones, computer/mobile accessories from Dubai, Hong Kong, China and USA by mis-declaration and undervaluation in order to evade customs duty. The detenu has allegedly actively abetted the commission of offences under the Customs Act, 1962 leading to the evasion of customs duty. 2.2. That, Zakir Khan and one Sanjeev Kumar Yadav (also a Customs house agent) were summoned to the Office of DRI, and their voluntary statements dated 18/19.10.2021 tendered under Section 108 of the Customs Act, 1962 were recorded wherein they allegedly admitted to their involvement in the import of electronic goods by way of mis-declaration and gross under-valuation through dummy import firms. Both Zakir Khan and Sanjeev Kumar Yadav were arrested on 19.10.2021 under the Customs Act, 1962 and remanded to judicial custody. Subsequently on 26.11.2021, detention orders were passed aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mobile number, one Priyanka Razdan s two Mobile Nos. and also the Mobile No. of the detenu. In the said group, the said Priyanka Razdan shared a Bill of Lading number corresponding to container number WHLU5698385 which is allegedly indicative of the fact that the detenu was well aware of the actual quantity and description of the restricted goods being so imported. 2.6. That the detenu was summoned to the Office of DRI and his voluntary statement dated 26/27.11.2021, tendered under Section 108 of the Customs Act, was recorded. Thereupon the detenu was arrested on the 27.11.2021 and sent to judicial custody. Further, the DRI submitted a proposal for detention of the detenu under the COFEPOSA Act before the Joint Secretary, COFEPOSA on 16.12.2021; in pursuance thereto, the impugned detention order was issued on 28.12.2021. The said detention order was statedly served on the detenu along with the grounds of detention, on the 29.12.2021 at the Tihar Jail, New Delhi, under alleged acknowledgement. Further, the COFEPOSA Advisory Board opined that there existed sufficient grounds for the detention of Sh. Ravi Chandra Mishra/the detenu. Accordingly, vide order dated 21.02.2022, the Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matic consequential non-consideration thereof by the Detaining Authority rendering the impugned detention order as invalid; specifically in light of the decision of this Court in Zakir Khan v. Union of India Ors. reported as 2022 SCC OnLine Del 1284 ; and consequently, the detenu urges release from detention on the ground of parity as being better placed than the detenus in the Zakir (Supra) case. In this regard, counsel appearing on behalf of the detenu limits the challenge in the present petition to the solitary ground of the non-supply of certain RUDs, which clearly infringe on the detenu s constitutional guaranteed right under Article 22(5) of the Constitution of India; and that the admitted supply of illegible/dim of RUDs, undeniably vitiates the subjective satisfaction arrived at by the detaining authority. 5. It is submitted in this behalf that, non-supply of vital documents, relied/referred in the grounds of detention have evidently not been served upon the detenu, despite his specific request in this behalf, to the detaining authority vide letter dated 19.01.2022 (Annexure 5); and the circumstance that the said request was rejected the very next day i.e., 20.01.202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en in tabulated form however, no such documents have been provided to the detenu. 28,32, 44. Order for extension of judicial remand of Zakir Khan and Sanjeev Kumar was not supplied to the detenu. 44. It is mentioned in letter dated 18.11.2021 issued by Sh. Satish Aggarwala Advocate that a certain application has been moved by the accused informing that they do not want to move any bail application and that the court directed that application kept on record. Copy of such application and court order in this regard was not supplied. Other documents and RUDs that are stated to be illegible/dim and had been supplied to the detenu are at the following page numbers of the RUDs, Page No. 62, 63, 64, 76, 77, 79 -81, 84-85, 94, 105, 108, 133, 135-136, 142, 146, 148 - 152, 156, 171, 186-187, 223-224, 251-254, 276, 285 287, 294-296, 355- 356, 446, 503, 517-518, 521, 524, 527, 530, 533, 536, 540, 556, 586, 695, 744, 745, 748, 783, 801, 810, 820, 910-918, 921-924, 926, 928-929, 936-938, 942, 944-947, 953, 975, 976, 995- 1496, 1500-1512, 1530, 1534, 1570, 1642, 1644 (blank page) 1646 (blank page) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondents would submit that the impugned detention order dated 28.12.2021 was passed by the detaining authority under Section 3 (1) of the COFEPOSA only after arriving at his subjective satisfaction based on relevant and sufficient material. It is further submitted that it is settled law as held by the Hon ble Supreme Court in a catena of judgments that if there is some material before the detaining authority to arrive at his subjective satisfaction with regard to the propensity of the proposed detenu being involved in prejudicial activities in the future, the contention of non-consideration of other documents/material cannot be a ground for vitiating the detention order. 12. It is urged that, founded on the documents and the materials placed before the detaining authority and considering the individual role of the detenu, the detaining authority satisfied himself as to the detenu s continued propensity and inclination to indulge in prejudicial acts towards the Customs authorities in a planned manner to the detriment of the economic security of the country and concluded that there was a need to prevent the detenu from smuggling goods. 13. The learned CGSC asserted, vehemently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EPOSA Act, in the facts and circumstances of the present case will have the effect of saving the detention order from invalidation. C) Whether the present detenu is similarly placed as the detenus in the Zakir (supra) case so as to attract the ground of parity. 17. We find it apposite at this stage to consider and reiterate the observations made by the Hon ble Supreme Court in a recent decision in Mallada K. Sri Ram vs. The State of Telangana Ors. in Criminal Appeal No. 561 of 2022 (Arising out of SLP(Crl) No. 1788 of 2022, reported as LQ/SC/2022/476, specifically paragraph 15 as is reproduced hereunder: - 15. A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the maintenance of public order. In this case, the apprehension of a disturbance to public order owing to a crime that was reported over seven months prior to the detention order has no basis in fact. The apprehension of an adverse impact to public order is a mere surmise of the detaining authority, especially when there have been no reports of unrest since the detenu was released on bail on 8 January 2021 and detained with effect from 26 June 202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e originals, which were served upon them at the time of their detention. 20. It is observed that the Ld. CGSC in the present petition has fairly admitted in oral submissions that the RUDs supplied to the detenu were the same as those supplied in the Zakir (Supra) case as the present petition arose from the same investigation. Therefore, several RUDs supplied to the detenu, as well as those on the record with the detaining authority were admittedly illegible/dim/blank pages. In this regard this Court s in Mohd. Nashruddin v. Union of India Ors., reported as 2021 SCC OnLine Del 4017 observed as follows: - 47. It is trite to say that a person detained in pursuance of an order for preventive detention, has a constitutional right to make an effective representation against the same. The authorities are constitutionally charged with the responsibility to ensure that the grounds of detention, including all relevant documents that are considered whilst forming the subjective satisfaction, W.P.(CRL.) 1924/2020 Page 52 of 86 are provided to the detenu by the Detaining Authority, so as to enable the detenu to make an effective representation to the Advisory Board, as well as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receiving the documents along with the grounds of detention the detenu had made a representation to Respondent 1 stating that some of the documents including the panchnama which had been supplied to him are illegible and as such a request was made for giving typed copies of those documents to enable the detenu to make an effective representation against the same. The detaining authority on receipt of the said representation sent a reply denying that the copies of those documents were illegible and refusing to supply typed copies of the same. It is clearly provided in sub-article (5) of Article 22 of the Constitution of India that: (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. Therefore, it is imperative that the detaining authority has to serve the grounds of detention which include also all the relevant documents which had been considered in forming the subjective satisfaction by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State and for the public good. 22. In view of the admitted position by the official respondents and the above extracted decision of this court, we are of the opinion that, the RUDs supplied to the detenu, as well as, relied upon by the Detaining Authority in arriving at its subjective satisfaction were admittedly illegible, therefore, grossly violating the constitutional right of making an effective representation, guaranteed to the detenu under Articles 14,21 and 22(5) of the Constitution of India. 23. In this behalf, the contention made on behalf of the official respondents is to the effect that, it is incumbent upon the detenu to show that prejudice was caused to him owing to the supply of illegible RUDs; the specific contention being that, the detenu must establish that the failure to supply the RUDs or the supply of illegible RUDs had impaired or prejudiced his right. 24. In our opinion, the aforementioned contention raised on behalf on the official respondents is untenable in light of the Hon ble Supreme Court s decision in Mrs. Tsering Dolkar vs. Administrator, Union Territory Of Delhi Others reported as (1987) 2 SCC 69 and in particular paragraph 12, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of detention illegal and bad in law; and vitiates the subjective satisfaction arrived at by the detaining authority. 26. The decision of the Hon ble Supreme Court in Kamarunnisa vs. Union of India, reported as (1991) 1 SCC 128 , does not come to the aid of the official respondents, since in the present case, we agree with the submissions made on behalf of the detenu, that the present is a case of non-placement of vital facts and documents before the Detaining Authority owing to their illegibility and that the subjective satisfaction is vitiated since the latter was not in possession of vital RUDs. The ratio in Kamarunnisa (supra) is, therefore, distinguishable on the facts thereof. Therefore, we have no hesitation in holding that, the Detaining Authority fell into error in relying upon illegible documents which is the equivalent of non-placement of RUDs, by the act of omitting them from consideration, thereby vitiating its subjective satisfaction, for suffering from the vice of non-application of mind. 27. The reliance placed by the respondent upon the decision of Gautam Jain v. Union of India, reported as (2017) 3 SCC 133 , does not come to their assistance, sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrived at after perusing all the relevant documents and material produced. This is a constitutionally provided condition precedent for passing a valid order of detention. It is also an admitted position that many of the RUDs placed before the detaining authority were illegible/dim/blank pages. We, therefore, find considerable force in the contention that had the detaining authority itself perused the RUDs for arriving at its subjective satisfaction and formulation of grounds, it would have been alive to the fact that many of the RUDs placed before it were wholly illegible. 31. In view of the foregoing discussion, this issue is resultantly decided in favour of the detenu and against the respondent. 32. Insofar as the issue, as to whether the detenu in the present case is similarly placed with the detenu in the case of Zakir (Supra) is concerned, our attention has been invited to the fact that the impugned detention order is arising out of the same investigation, and that the detenu was brought under the scanner owing to his abetment in offences committed by the detenus in the Zakir case (Supra). It is an admitted position on behalf of the official respondents that the RUDs s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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