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TMI Blog2022 (11) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) The Directorate of Revenue Intelligence, Delhi Zonal Unit (Respondent No. 4, hereinafter referred to as 'DRI') received intelligence, that a syndicate comprising certain Chinese, Taiwanese and South Korean nationals, in association with some Indian individuals are indulging in smuggling of gold, into India through air cargo by concealing the gold in transformers of electroplating/re-working machines etc., and one such consignment has been imported by the said syndicate in the name of M/s Healthy Future Leaders Private Limited and is likely to arrive at Delhi Cargo Services Centre, Air Cargo Complex, IGI Airport, New Delhi on 18.11.2021, vide House Airway Bill No. SZGF21113657. (ii) Acting on the said intelligence, the said purported consignment was examined by the officers of DRI on 18/19.11.2021 at Import Shed, Delhi Cargo Service Centre, Air Cargo Complex, IGI Airport, New Delhi and 80.126 kg of 995 purity (24 Carat) foreign origin gold, in the form of 'E' & 'I' shaped plates, having a market value of Rs. 39,31,38,219/- was recovered. Panchnama dated 18/19.11.2021 showing the recovery of the said 80.126 kg of gold was drawn. The said gold was seized under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail to the detenu. (xiii) The detenu, immediately on his release from the jail, filed his retraction application dated 14.12.2021 before the learned CMM Patiala House Court, New Delhi. (xiv) Vide four separate orders dated 21.12.2021, the learned CMM, Patiala House Court, New Delhi granted bail to all the four foreign nationals. (xv) Vide order dated 21.12.2021, the learned CMM, Patiala House Court, New Delhi granted bail to the accused Neeraj Varshney. (xvi) On 21.12.2021, DRI filed a Crl. M.C. No. 3536/2021, under section 482 Cr.P.C. before the Hon'ble Delhi High Court, challenging the order dated 13.12.2021 passed by the learned CMM, PHC, New Delhi granting bail to the detenu. (xvii) DRI filed separate petitions before the Hon'ble Delhi High Court under section 482 Cr.P.C. challenging the orders dated 21.12.2021 passed by the learned CMM, PHC, New Delhi granting bail to the co-accused Neeraj Varshney and all the four foreign nationals which are pending adjudication. (xviii) DRI filed an application dated 24.12.2021 before the learned CMM, Patiala House Court, New Delhi praying for incorporating an additional condition in the bail order directing the detenu to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en carefully examined and considered by the Joint Secretary (COFEPOSA), the Detaining Authority, but it is regretted that the same has been rejected." (xxv) After the rejection of the detenu's representation dated 02.03.2022 vide communication dated 15.03.2022 and having received no communication with respect to his representation dated 10.03.2022 addressed to the Director General, CEIB, New Delhi, the detenu made another representation dated 04.04.2022 to the Hon'ble Chairman and his companion members of the Central Advisory Board, High Court of Delhi, New Delhi, through his counsel pointing out several vital documents that had not been supplied and submitting that failure to supply the same violated Article 22(5) of the Constitution of India; thus vitiating the detention. The detenu further prayed for the revocation and quashing of the impugned detention order and his forthwith release from custody. (xxvi) The hearing before the Hon'ble Advisory Board was fixed for 04.04.2022 and then for 12.04.2022. However, the matter could not be heard on the said dates. Finally, the matter was fixed for 18.04.2022 and the hearing concluded. During the hearing, representative o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-placement of vital documents by the sponsoring authority and/or non-consideration thereof by the detaining authority and non-supply thereof to detenu. E. Use of the word "or in the detention order under grounds of detention. F. Detention was vitiated in view of the violation of settled mandate of law and procedure. G. Non-application of mind by detaining authority while passing the detention order renders the same to non-est in the eyes of law. H. Inchoate and incomplete investigation. I. Non-compliance of procedural safeguards/requirements. 4. In response to the aforesaid petition, a counter affidavit on behalf of respondent nos. 1 to 3 has been filed contesting the aforesaid grounds raised on behalf of the petitioner. Supporting the order of detention, it has been asserted that the same is legally and constitutionally valid in as much as it has been passed by the competent authority with due application of mind and after arrival of subjective satisfaction based on the material facts and circumstances of the case. 5. We have heard learned counsel appearing on behalf of the parties and perused the record, i.e., petition, counter affidavit, rejoinder and the writte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 27.10.2020 with the Detaining Authority, as well as before the Central Government. Although the Detaining Authority rejected his representation on 09.11.2020, no decision was taken by the Central Government on the detenu's representation. Instead the Central Government made a reference dated 10.11.2020 to the Central Advisory Board, which gave its opinion qua the sufficiency of the grounds with regard to the detenu's detention. The subject representation was finally rejected by the Central Government only on 23.12.2020, three days after confirmation by it of the order of detention by the Central Advisory Board. 94. A bare perusal of the above clearly reflects that there was massive delay of 57 days by the Central Government in dealing with the petitioner's representation. 95. In Ankit Ashok Jalan v. Union of India, reported as (2020) 16 SCC 127, the Hon'ble Supreme Court has observed, particularly in paragraph 17 thereof, as under:- "17. In terms of these principles, the matter of consideration of representation in the context of reference to the Advisory Board, can be put in the following four categories: 17.1. If the representation is received well b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Government in deciding the statutory representation filed by the detenu." 10. Per contra, Mr. Ajay Digpaul, learned Central Government Standing Counsel (hereinafter referred to as 'CGSC'), appearing on behalf of the respondents, submitted that the impugned detention order, dated 01.02.2022, 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 suffers from no illegality. With respect to the aforesaid ground urged by the petitioner, learned CGSC invites the attention of this Court to Para 4(iv) of the para-wise reply in the counter affidavit filed by Mr. Naresh Kumar, Deputy Secretary to the Government of India, CEIB, Department of Revenue, Ministry of Finance, Government of India. The aforesaid para 4(iv) is being reproduced hereunder; "The allegation regarding delay in deciding the representation by the Central Government is wrong and misleading. The Petitioner made a representation dated 10.03.2022 through the Jail Authorities to the DG, CEIB on behalf of the Central Government requesting therewith to revoke the impugned detention order. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a), wherein the Hon'ble Supreme Court had categorized four stages for receipt and disposal of a representation made by the detenu. In particular, learned Senior Counsel relied upon the third category, as laid down in Para 17.3 of the said judgment. "17.3. If the representation is received after the reference is made but before the matter is decided by the Advisory Board, according to the principles laid down in Haradhan Saha, the representation must be decided. The decision as well as the representation must thereafter be sent to the Advisory Board." However to determine the present issue at hand, the discussion and the conclusion in the subsequent paras of Ankit Ashok Jalan (supra) will be relevant and are being reproduced as under: "18. There can be no difficulty with regard to the applicability of the principles in the 1st and the 4th stage of the aforesaid categories. The difficulty may arise as regards the application of principles at the 2nd and the 3rd stage. But that difficulty was dealt with sufficient clarity in Jayanarayan Sukul and Haradhan Saha as stated hereinabove. If it is well accepted that the representation must be considered with utmost expedition; and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oper for the appropriate Government to wait till the report is received from the Advisory Board in cases dealt with in para 16 of the decision. But such may not be the case with the detaining authority who is a specially empowered officer. xxx 25. In terms of Section 8, the report of the Advisory Board is meant only for the consumption of the appropriate Government and apart from the operative part of the report which is to be specified in a separate paragraph as per sub-section (c), the mandate in terms of sub-section (e) is to keep the report of the Advisory Board completely confidential. Thus, a specially empowered officer who may have passed the order of detention, by statutory intent is not to be privy to the report nor does the statute contemplate any role for such specially empowered officer at the stage of consideration of the opinion of the Advisory Board. The report of the Advisory Board may provide some qualitative inputs for the appropriate Government but none to the specially empowered officer who acted as the detaining authority. If that be so, would a specially empowered officer who had passed the order of detention be bound by what has been laid down by this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Hon'ble Supreme Court reflects that a clear distinction has been carved out with respect to consideration of representation made by the detenu, at the third stage, to the detaining authority, who could be the specially empowered officer who has passed the order of detention, as in the present case; and to the appropriate government. While noting the principle in Para 16 of the judgment in K.M. Abdulla Kunhi Vs. Union of India, (1991) 1 SCC 476, it was held that when the representation from the detenu is received after the matter has been referred to the Advisory Board, it would be proper for the appropriate government to wait till the receipt of the report but the specially empowered officer who acted as detaining authority would be obliged to decide the representation without waiting for such report. 14. During the course of the arguments, when the aforesaid distinction made by the Hon'ble Supreme Court in Ankit Ashok Jalan (supra) was pointed out, Mr. Vikram Chaudhari, learned Senior Counsel appearing on behalf of the petitioner submitted that Para 17 of the aforesaid judgment is the 'ratio decidendi' and the aforesaid observations are in nature of 'obiter dictum'. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the instant case before us, admittedly, the representation of the detenu was received by the State Government after the matter was referred to the Advisory Board. The representation was kept pending and it was considered only after the receipt of the report of the Advisory Board. In the light of the discussion in the Judgments referred to hereinabove this course was impermissible and it violated the mandate of section 22(5) of the Constitution of India and thereby infringed the detenu's right to make his representation at the earliest for its expeditious consideration." 15. We have considered the submissions made by learned Senior Counsel and the judgments cited hereinabove. In our considered view, the Hon'ble Supreme Court in Ankit Ashok Jalan (supra), has, in no uncertain terms carved out a distinction with respect to the determination of a representation, received after reference to the Advisory Board, sent to the detaining authority and to the appropriate government. While noting the judgment of the Constitution Bench in K.M.Abdulla Kunhi (supra), it has held as under:- "20. Since the decision of this Court in K.M. Abdulla Kunhi was rendered by the Constitution Bench o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 7 SCC 1 held that; "54. It is clear that there can be more than one ratio decidendi to a judgment. Thus, in Jacobs v. London County Council, the House of Lords, after referring to some earlier decisions, held, as follows : (AC pp. 36970 : All ER p. 741) ... however, this may be, there is, in my opinion, no justification for regarding as obiter dictum a reason given by a Judge for his decision, because he has given another reason also. If it were a proper test to ask whether the decision would have been the same apart from the proposition alleged to be obiter, then a case which ex facie decided two things would decide nothing. A good illustration will be found in London Jewellers Ltd. v. Attenborough. In that case the determination of one of the issues depended on how far the Court of Appeal was bound by its previous decision in Folkes v. R., [in which] the court had given two grounds for its decision, the second of which [as stated by Greer, L.J., in Attenborough case was that : (KB p. 222) "... where a man obtains possession with authority to sell, or to become the owner himself, and then sells, he cannot be treated as having obtained the goods by larceny by a trick." In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supra) assumes significance. The observation made in Para 19 is reproduced hereunder: "19. However, it was for the first time that the decision in K.M. Abdulla Kunhi laid down in para 16 that it would be proper for the Government in the two situations dealt with in the said paragraph to await the report of the Board; those two situations being: 19.1. Where the representation is received before the matter is referred to the Advisory Board and where there may not be sufficient time to dispose of the representation before referring the case to the Advisory Board, and 19.2. Where the representation is received after the case is referred to the Advisory Board. It was also laid down: "In both the situations there is no question of consideration of the representation before the receipt of report of the Advisory Board." 18. In the present case, the representation made to the detaining authority, i.e., respondent no. 2 on 02.03.2022, who was specially empowered officer passing the order of detention, was decided on 15.03.2022, without waiting for the opinion of the Advisory Board or confirmation of the detention order by the Central Government. The second representation dated 10.03 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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