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TMI Blog2006 (3) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the imported items would be utilized for manufacture of the goods which were meant for export. A raid was conducted in his residence on 26-5-2004 by the Directorate of Revenue Intelligence (DRI) and he was taken in custody. He allegedly was continuously tortured for two days. During his detention statements under Section 108 of the Customs Act were recorded allegedly under coercion, duress and threat. He was shown arrested on 28-5-2004 and produced before a Magistrate. He was medically examined whereupon marks of multiple injuries on his person were found. After he was remanded to judicial custody by the Magistrate by an order dated 28-5-2004, he retracted his alleged confession stating that the same had been obtained under coercion, duress and torture. He remained under treatment for 45 days out of the total period of 60 days of his judicial remand (the requisite statutory period for filing a complaint). Upon failure on the part of the DRI Department to file a complaint against the Appellant within the statutory period of 60 days, he was enlarged on bail on 28-7-2004. In the meanwhile, his family members were forced to deposit a sum of Rs. 60 lakhs as customs duty. Such dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be a circumstance to set aside an order of detention. (iv) The subjective satisfaction of the authority is based upon sufficient material and is sufficient to warrant an order of preventive detention. (v) No discrimination has been committed as against the Appellant in not recommending Shital Vij's detention as its recommendation was rejected by the Screening Committee. (vi) Only because a redemption certificate was issued by the concerned authority, it cannot be presumed that the Appellant had discharged his export obligations, without violation of the terms and conditions of his licences. (vii) The complaint petition filed by the Appellant herein, contending illegal detention and torture, by itself is not a ground for detracting from the orders passed by the detaining authority as mere filing of a criminal complaint would not lead to a conclusion that the order of detention was mala fide. 8.Mr. Uday U. Lalit, learned senior counsel appearing on behalf of the Appellant, would raise the following contentions: (i) Licences granted to the Appellant were allowed to be surrendered by the competent authorities only after an objective asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds, or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question." 12.Recently a 3-Judge Bench of this Court in Naresh Kumar Goyal v. Union of India and Others [(2005) 8 SCC 276] (in which one of us P.K. Balasubramanyan, J. was a member), opined : "It is trite law that an order of detention is not a curative or reformative or pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts in Muneesh Suneja (supra). We do not find that the case falls within any of the exceptions enumerated in Alka Subhash Gadia (supra). The High Court was, therefore, justified in refusing to exercise jurisdiction under Article 226 of the Constitution of India to quash the order of detention at the pre-arrest stage. This appeal is, therefore, devoid of merit and is dismissed." 14.Mr. Lalit however, is not correct in his submissions that only because a redemption certificate had been granted by DGFT, the same would itself be sufficient for quashing an order of detention as the activities of smuggling on the part of the importer may come to their notice at a later part of time. 15.We may, however, notice that the Appellant has categorically stated that a status report was submitted by the Respondent No. 3 to the DRI, Delhi on their request but the same had not been placed before the detaining authority. 16.In Ground 'U' of the SLP filed by the Appellant, herein, it is stated : "Because the High Court has failed to appreciate that, as per the knowledge of the petitioner, the respondent No. 3 submitted the status report of the present case vide its letter dated 15-2-2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21.The question as regard delay in issuing the order of detention has been held to be a valid ground for quashing an order of detention by this Court in T.D. Abdul Rahman v. State of Kerala and Others [AIR 1990 SC 225] stating : "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 case. No hard and fast rule can be precisely formulated that would be applicable under all circircmstances 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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