IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9659 of 2012 For Approval and Signature:
HONOURABLE MR.JUSTICE A.J. DESAI =========================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the judgment? NO Whether this case involves a substantial
4 question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder?NO
5 Whether it is to be circulated to the civil judge?
NO ========================================= MADHU DEVI ASHOK PANCHARIYA Versus UNION OF INDIA JOINT SECRETARY TO THE GOI & ORS ========================================= Appearance :
MR P.M. THAKKER, SR. COUNSEL WITH MR. DAKSHESH MEHTA WITH MR RUSHANG D METHA for Petitioner MR HRIDAY BUCH. SR. CENTRAL GOVT. COUNSEL for Respondents No. 1 - 2.
MS. TRUSHA MEHTA AGP for Respondents No. 3 & 4 ========================================= CORAM : HONOURABLE MR.JUSTICE A.J. DESAI Date : 27/09/2012 CAV JUDGMENT
1 Wife of detenue Madhu Devi Ashok Panchariya has challenged the detention order dated 14.6.2012, passed against her husband Ashok Panchariya by respondent No.1 i.e. Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, Central Economic Intelligence Bureau, COFEPOSA unit who has been detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) on 22.6.2012.
2 The petition came to be circulated before this Court on 16.7.2012. By Order dated 16.7.2012 `Rule nisi' was issued and the Registry was directed to list the matter for final hearing in seriatim considering the actual date of detention.
3 Being aggrieved with the direction of this Court about fixing the final hearing of the matter as per the seriatim considering the actual date of detention, the petitioner filed a Special Leave Petitions, being Spl. Leave Appeal (Cri) No. 5880 and 5881 of 2012. The Apex Court, by Order dated 13.8.2012 before the Supreme Court of India, disposed of the said Special Leave Petitions, by asking this Court to hear and dispose of the pending Special Civil Application within six weeks from the date. It appears from the record that the matter was heard by coordinate Bench of this Court on several occasions, but, because of change of Roster, the same could not be finally decided by the coordinate Bench and thereafter the matter has been transferred to this Court and accordingly the matter has been taken up by this Court for final hearing on day-today- basis. The parties have completed the pleadings by filing their additional affidavits and two affidavit-in- replies.
4 The facts which emerge from the record of the case are briefly stated as under:
4.1 The allegations against the detenue, which surfaces from the Order in question, is that the Directorate of Revenue Intelligence, Ahmedabad Zonal Unit, gathered information that one M/s S.V. Enterprise, situated near Nagdev Temple, Geljipura Road, Sarkhej, Ahmedabad, was importing `Betel Nuts of Indonesian Origin' but declaring the same as of Sri Lankan origin so as to wrongly avail the benefits of Free Trade Agreement between Sri Lanka and India which provides for partial exemption of customs duty to specified goods imported in accordance with the Customs Tariff Rules, 2000.
4.2 The Directorate of Revenue Intelligence gathered information that the betel nuts, which were exported from Indonesia/Singapore, were first imported to Sri Lanka and after repacking and changing of the containers, then exported to Nhava Sheva with a false certificate of origin of Sri Lanka so as to avail undue benefits of exemption of customs duty by showing the country of origin as Sri Lanka. Not only that, the goods imported from Indonesia were grossly undervalued so as to evade payment of appropriate customs duty.
4.3 On the basis of information so gathered, on 12.11.2011, the Directorate of Revenue Intelligence, Ahmedabad, had carried out searches at the premises of said M/s S.V. Enterprises, situated at the address mentioned above as well as at the residential premises of the detenue i.e. Situated at No. 4, Vrindavan Bungalow, Part-I, Opp: Shridhar Farm, Thaltej-Shilaj Road, Ahmedabad. Incriminating documents were recovered; panchnama was drawn and statements of Sarfarazkhan Sarvarkhan Pathan, Partner of M/s S.V. Enterprises and Mohammed Ali Ganthi of M/s International, a Sri Lankan national, who had purportedly supplied the betel nuts imported from Indonesia as betel nuts of Sri Lankan origin, were recorded.
4.4 At the time of drawing panchnama at the Office of the detenue on 12.11.2011, e-mail account of one Shri Dharamveer Shekhawat, partner of M/s S.V. Enterprise, was opened and certain evidences, showing financial transactions and other correspondences with regard to import of betel nuts were accessed and the print outs of the same were taken under panchnama. The Intelligence also retrieved the accounts of the detenue as well as the account of Dharamveer Singh which indicates that some payments were made from Dubai to Indonesian betel nuts suppliers besides others.
4.5 In the meantime, the detenue had imported three container loads of betel nuts from M/s 4S International, Sri Lanka, for a total quantity of 72 M.Tonnes through Nhava Sheva Port. The Customs Authorities were asked to keep on watch on the said three containers, namely, APHU 6374241, APHU 6588074 and GESU 3057072. The aforesaid containers then examined in the presence of DRI Officers of Mumbai and Ahmedabad and the said 72 M.Tonnes of betel nuts, which were wrongly claimed to be the original of Sri Lankan, were seized by the Authority, vide Seizure Memo dated 24.11.2011 and the value of the said seized goods was Rs. 57,65,760/-.
4.6 Sarfarazkhan Sarvarkhan Pathan and Dharamveer Singh Shekhawat both are partners of M/s S.V,. Enterprises which was engaged in importing and trading of HMS, Polyester thread, wet dates, etc and was also importing and trading betel nuts which were imported from Indonesia routed through Sri Lanka. In the present case, the detenue first imported betel nuts from Indonesia/Singapore to Sri Lanka and after repacking the same in gunny bags/HDPE bags and stuffed in another containers, exported to India with the invoice of M/s 4S International, which was grossly undervalued and Bill of Lading showing the port of origin from Colombo-Sri Lanka to port of destination JNCH, Nhava Sheva along with country of origin as Sri Lanka has been mentioned. This was done for claiming exemption of customs duty as per Notification No.26/2000-Cus. dated 1.3.2000 at NIL rate of basic customs duty and paying only 4% SAD on the imported goods, though, the said benefit was not available for betel nuts imported from Indonesia.
4.7 The investigation revealed that the detenue was the mastermind in controlling the entire activities of said S.V. Enterprise, though, he was not in the record of the firm. The detenue in collusion with said Sarfarazkhan Pathan, had negotiated with the Indonesian suppliers of betel nuts with regard to the quantity, quality and value of betel nuts to be supplied from Indonesia/Singapore and betel nuts were exported from
detenue had paid an amount at the rate of US $ 300 per M.Tonne for import of betel nuts to M/s 4S International at Sri Lanka for making onward payment to suppliers of betel nuts at Indonesia plus commission charges at the rate of US $2500 to 3000 per container to Ali Ganthi towards handling charges, repacking charges, freight from Indonesia/Singapore to Sri Lanka and from Sri Lanka to JNCH, Nhava Sheva based on the proforma invoices raised by M/s 4S. International, Sri Lanka. The said amount at the rate of US $300 per M.Tonne either was paid directly to the Indonesia/Singapore exporters of betel nuts or to M/s SIEL FZE or M/s Vintage FZE, both at Dubai, UAE, as the case may be. The detenue had arranged for the difference in the value of betel nuts exported by Indonesia/Singapore suppliers i.e. the actual rate less US $ 300 per M. Tonne as the actual rate of betel nuts of Indonesia/Singapore origin was much higher.
4.8 In the statement Dharamveer Singh Shekhawat, partner of M/s S.V. Enterprise, recorded by the authority, he had confirmed the financial transactions of the detenue from one M/s Vintage FZE/SIEL FZE, Dubai. Similarly statement of one Vinod Joshi, CHA of M/s S.V. Enterprise was also recorded by the authority, who had produced copies of 15 Bills of Entry, pertaining to betel nuts imported by S.V. Enterprise, in the past. Statements of Ali Ganthi was also recorded on 12 to 16th of November, 2011 wherein he has specifically stated that, as per the instructions of the detenue and Sarfarazkhan Pathan, he unloaded the betel nuts imported from Indonesia and after repacking, exported the same to detenue in different containers to Nhava Sheva. He had also confirmed the payments received by him and the documents submitted by him for the import of betel nuts from Indonesia to Sri Lanka and export of the same betel nuts from Sri Lanka to Nhava Sheva with set of documents, such as, Bill of Lading, Invoice, Certificate of Origin, etc. He also confirmed the payments received by him and also produced copies of documents with regards to making onward payment.
4.9 Similarly, the authorities have also recorded the statement of Sarfarazkhan Pathan from 12, 13, 15, 17, 25 and 28th of November, 2011 and 3rd January, 2012 whereby he has confirmed the statements of Ali Ganthi and also confirmed the modus-operandi of importing betel nuts from Indonesia to Sri Lanka and also confirmed that with the help of said Ali Ganthi they imported betel nuts to India and availed exemption of customs duty as provided under Notification No. 26/2000-Cus. dated 1.3.2000. Sarfarazkhan Pathan also confirmed the various documents shown to him and explained the same, which shows the undervaluation of betel nuts imported by him and the payments made through Dubai to Indonesia and wrongful availment of country of origin. He also explained the role played by the detenue in the import of betel nuts.
4.10 Similarly, the statement of Ashok Panchariya–detenue has also been recorded by the authorities on 24.11.2011, 25.11.2011, 8.12.2011 and 27.12.2011. He confirmed that he had negotiated with the overseas suppliers of betel nuts at Indonesia regarding quality, quantity and rate of betel nuts imported in the name of M/s S.V. Enterprise through Sri Lanka. He also confirmed the payments made from M/s Vintage FZE and M/s SIEL FZE at Dubai and corroborated the e-mail messages showing the financial transactions made on behalf of him from Dubai.
4.11 Pursuant to the information and evidence gathered by the Authority at Ahmedabad, the detenue came to be arrested on 27.12.2011under the provisions of the Customs Act, 1962. An application for remand of the detenue was made by the Authority, which was granted by the Metropolitan Court for one day. On 28.12.2011, the detenue i.e. Ashok Panchariya-accused, who was produced before the learned Magistrate, was enlarged on conditional bail. It also appears from the detention order that the detenue had filed an application on 17.1.2012 before the learned Chief Metropolitan Magistrate, Ahmedabad, and had prayed for returning of his Passport with permission to leave the country for his business purpose. Though, the objections were raised by the Authorities against the release of passport, the learned Metropolitan Magistrate, vide its order dated 27.1.2012 released his passports for three months and permitted him to travel abroad with a condition of depositing a sum of Rs. 25,000/- as surety along with an affidavit giving the address of stay and contact number at abroad. It also appears that other persons connected with the activities of S.V. Enterprise were also being summoned and their statements were recorded on several days.
5. The detenue was summoned time and again and his statements were recorded by the authority. After having found sufficient material against the detenue, the sponsoring authority, sent a proposal for detention of the detenue to the Authority i.e. respondent No.1 who has power to make orders of detention of a person under Section-3 of the COFEPOSA Act, 1974. The proposal was scrutinized by the Screening Committee of the detaining authority and accepted the proposal and, accordingly, minutes were prepared by the Screening Committee and finally the respondent No.1 i.e. detaining authority had passed the detention order on 14.6.2012 under the provisions of Section-3 of the COFEPOSA Act, 1974.
6 The petitioner has raised several grounds challenging the detention order, which has been passed by the detaining authority i.e. respondent No.1. The respondent No.1 has filed an affidavit-in-reply. The said affidavit-in-reply has been sworn in on 17.8.2012 by the Joint Secretary (COFEPOSA) of the Department of Revenue, Ministry of Finance, Government of India, New Delhi. During the hearing of the petition, an Additional Affidavit-in-reply has been filed by the Detaining Authority dated 12.9.2012 and Additional Affidavit is filed by the petitioner.
7. I have heard Mr. P.M. Thakker, learned Senior Counsel, assisted by Mr. Dakshesh Mehta for the petitioner and Mr. Hriday Buch, Central Govt. Senior Counsel for respondents at length.
8 Learned Senior Counsel Mr. Thakker raised the following contentions for the challenge of the detention order:
i) there is gross delay in passing the detention order;
ii) delay in considering the representation made by the detenue by the detaining authority as well as Union of India;
iii) delay in execution of the detention order;
iv) non-supply of the complete set of documents referred to and relied upon in the detention order as well as supplying of ill-legible copies of documents, which would vitiate the detenue’s right to make effective representation under Article 22(5) of the Constitution of India;
v) the sponsoring authority i.e. Director of Revenue Intelligence has not placed all the relevant and material documents before the detaining authority for considering the case of the detenue;
vi) there is variance in the grounds of detention and order of detention since the detaining authority has relied upon irrelevant material while considering the proposal of Director of Revenue Intelligence, which would vitiate the subjective satisfaction arrived by the detaining authority;
vii) the sponsoring authority was proceeding under the provisions of the Customs Act against the detenue and, therefore, there was no need to take extreme steps to detain the detenue under the provisions of the COFEPOSA Act;
viii) the authorities have discriminated the detenue by not detaining other persons along with the detenue, who were found involved in the alleged activities carried out by the detenue and, therefore, the order is maliciously passed against the detenue; and
ix) there is non-application of mind on the part of the detaining authority since the proposal sent by the sponsoring authority has been converted into grounds of detention by cosmetic changes;
9 Mr. Thakker has elaborated the first contention i.e. with regard to the gross delay in passing the detention order by submitting that, though, the raid was conducted by the Authority at the Office of M/s S.V. Enterprise on 12.11.2011, in which, it is alleged by the Authority that, the detenue was carrying out his activities contrary to the provisions of the Customs Act, 1962, and had found sufficient material, the Authority has passed the order of detention only on 14.6.2012 i.e. almost after seven months. He has submitted that as per the Sponsoring Authority itself, the last prejudicial activities, which are contrary to the provisions of the Customs Act, have been carried out in November, 2011 and thereafter there is no such activities carried out by the detenue. He has submitted that there is gross delay on each stage in passing the detention order. When the Authority had sufficient material and when the detenue had fully cooperated with them during the investigation, the delay in passing the detention order under the COFEPOSA Act would throw considerable doubt on the genuineness of the subjective satisfaction arrived by the Detaining Authority, which would lead to a legitimate inference that the Detaining Authority was not really and genuinely satisfied as regards the necessity for the Detaining Authority with a view to preventing him from acting in a prejudicial manner. He has submitted that in the affidavit-in-reply dated 17.8.2012 filed by the Detaining Authority, she has not explained the delay in passing the detention order. He has relied upon paragraph 5.1 of the said Affidavit-in-reply and submitted that the Detaining Authority has failed to explain the time consumed by her in passing the order after the detenue is released on bail in connection with his arrest under the provisions of the Customs Act. He has submitted that since there was no proper explanation by the Detaining Authority, an Additional Affidavit came to be filed during the hearing of the petition on 12.9.2012, by which, the Detaining Authority has tried to explain the delay in passing the impugned order, but has miserably failed in explaining the same. The efforts made by the Detaining Authority to explain the delay in this Affidavit are not satisfactory which would lead to believe that the Detaining Authority had acted promptly in case of preventive detention.
9.1 Mr. Thakker has submitted that, though, the proposal of the Sponsoring Authority was received by the Detaining Authority on 10.1.2012 and approved by the Central Screening Committee of COFEPOSA Unit on 23.1.2012, the detention order has been passed only on 14.6.2012. He has submitted that even, if, the date of approval by the Central Screening Committee is considered to be the starting period of proceeding with the action as provided under the COFEPOSA Act, the Detaining Authority has not taken any decision for almost five months, which would create doubts about the subjective satisfaction arrived at by the Detaining Authority in passing the order. He has submitted that looking to the details narrated in the Additional Affidavit dated 12.9.2012, the Detaining Authority, at each stage, has taken number of days for calling information from Sponsoring Authority, that too, no details are supplied or narrated in the said Affidavit that what documents or information were necessary in addition to the material which were already supplied with the proposal. He has submitted that when the Central Screening Committee had approved the proposal of the Sponsoring Authority, of which, the Minutes were prepared on 13.2.2012, the Additional Director General by letter dated 2.3.2012 called upon the Sponsoring Authority to furnish certain documents. Mr. Thakker further submitted that when the Central Screening Committee had have sufficient material for perusal before approving the proposal made by the Sponsoring Authority, the Additional Director General (COFEPOSA) had called for certain documents after more than one month and seven days. There is no explanation by the Detaining Authority as to why the documents were required by the Additional Director General (COFEPOSA) even though the proposal was approved by the Central Screening Committee. Similar is the situation on 14.3.2012 by which more documents were called for. The same is the situation on 19.3.2012 by which additional documents were called for by Additional Director General (COFEPOSA). He submitted that on 10.4.2012, for the fist time, Additional Director General (COFEPOSA) discussed the matter with the Joint Secretary (COFEPOSA) – the Detaining Authority and talked on telephone with the Sponsoring Authority and asked to furnish certain information. He submitted that looking to the Additional Affidavit of Detaining Authority itself that there was a talk on telephone by the Joint Secretary i.e. Detaining Authority with the Sponsoring Authority, the documents and information, which were called for, were received by the Detaining Authority on 11.5.2012 which would show that none of the authorities was vigilant enough in processing the `approved' proposal, qua, detenue. Correspondence between the Detaining Authority and Sponsoring Authority for getting some information and documents was started on 2.3.2012, but it continued for more than two months, which creates serious doubts about the conduct of the Detaining Authority that when he records his subjective satisfaction that there is a need of a person to detain under the COFEPOSA Act, so that in future he cannot indulge into such serious activities.
9.2 Learned Counsel Mr. Thakker further submitted that the details of chronology of events prepared and submitted by the Counsel for the respondents are not mentioned in any of the affidavits but the same has been relied upon by the learned Advocate for the respondents by furnishing a copy of the same to the Court as well as to the Counsel appearing for the petitioner. He has submitted that even if the same are perused, it appears that the the events which took place after the approval of proposal by the Screening Committee, the Detaining Authority has tried to bring those events into picture to establish that the process of making decision was on but the same are irrelevant so far as the so called prejudicial activities of detenue is concerned. He submitted that some of the incidents, which are referred to in the said chronology of events, are reflected in the Annexure-`C’ to the detention order but most of them are with regards to those events which took place after sending of the proposals and approving by Screening Committee. He has submitted that, whatever, events have taken place after the approval of the Screening Committee on 23.1.2012, have been undertaken not by the Detaining Authority but by the Sponsoring Authority and further submitted that most of the events are with regard to furnishing copies of the documents which were in existence prior to sending the proposal by the Sponsoring Authority. Like list of chronological events, notes, a copy of letter dated 2.3.2012 and other events, which have been taken place till 21.5.2012, have been referred in the Affidavit filed on 12.9.2012, however, the same has been placed before the Court for perusal of which a copy is supplied to the Advocate for the petitioner. Learned Counsel for the petitioner submitted that on perusal of the said letter dated 2.3.2012, etc, it appears that, the documents, which were called for by the A.D.G., COFEPOSA, are with regard to the incidents which took place prior to the proposal sent by the Sponsoring Authority and approval of the same by the Screening Committee. He has, therefore, submitted that after perusing the letter dated 2.3.2012, the Detaining Authority again called for some documents by handwritten note dated 14.3.2012. As per the said handwritten note, the Detaining Authority had talked with the Sponsoring Authority at Ahmedabad on telephone. Similar is the case on 19.3.2012. He has submitted that after 19.3.2012, for the first time, the matter was discussed with the Joint Secretary, COFEPOSA - the Detaining Authority, by the A.D.G.,COFEPOSA, on 10.4.2012 i.e. almost after more than 21 days. After 10.4.2012, on 11.5.2012, it has been observed by the A.D.G. that the documents were received from DRI and were placed before the Detaining Authority for passing the detention order. At this stage also, the Authority i.e. A.D.G., COFEPOSA, has taken about one month’s time to place the material supplied by the Sponsoring Authority before the Detaining Authority. Again on 16.5.2012, the Detaining Authority, after some discussion, called for further details. On 21.5.2012 the matter was discussed and further details were called for from the Sponsoring Authority. On 4.6.2012, A.D.G, COFEPOSA, again placed the matter before the Detaining Authority. On 7.6.2012, the Joint Secretary, COFEPOSA – the Detaining Authority has observed that the Authority has perused the papers and has gone through the case and has further observed that some vital documents/information are still not there and the Investigating Officer, who was investigating the case, was called for to meet the Detaining Authority. The matter was discussed on 13.6.2012 and thereafter on 14.6.2012, the detention order came to be passed. Looking to these facts, Mr. Thakker, learned Senior Counsel for the petitioner, has submitted that the Detaining Authority has pursued the matter with the Sponsoring Authority by calling the relevant documents and waited for irrelevant documents. He has submitted that once the Screening Committee had approved the proposal, by not explaining the reasons for calling further material, the Detaining Authority has failed to satisfy that there were sufficient reasons for passing the order of detention at the belated stage. He has submitted that from 23.1.2012 onwards i.e. the date of approval by the Screening Committee, all the events are with regard to calling some witnesses by the DRI.
9.3 In support of the submission, learned Senior Counsel Mr. Thakker for the petitioner has relied upon the following decisions:
i) T.A. Abdul Rahman vs. State of Kerala, as reported in AIR 1990 SC 225;
ii) Rajinder Arora vs. Union of India, as reported in (2006) 4 SCC 796;
iii) Adishwar Jain vs. Union of India, as reported in (2006) 4 RCR 931; and
iv) a decision of the Apex Court in the case of Saeed Zakir Hussain Malik vs. State of Maharashtra & Ors, passed in Criminal Appeal No. 1187 of 2012 (arising out of SLP [Criminal Appeal] No. 6985 of 2008 dated 9.8.2012).
9.4 Mr. Thakker, learned Senior Counsel for the petitioner, has submitted that after releasing the detenue on bail by the learned Metropolitan Magistrate, the detenue had filed an application before the learned Metropolitan Magistrate and prayed to return his passport for three months as he wanted to visit foreign countries for his business purpose. The said application was opposed by the Detaining Authority, however, the learned Metropolitan Magistrate permitted the detenue to visit foreign countries by returning the passport on certain terms and conditions. Pursuant thereto, the detenue visited several foreign countries including Dubai from 14.2.2012 to 27.2.2012 and again visited foreign countries from 17.4.2012 to 21.4.2012. He has submitted that the said Order of the learned Metropolitan Magistrate was not challenged by the respondents before any higher forums. He has submitted that if both the authorities i.e. Sponsoring Authority as well as the Detaining Authority had apprehension that, if, the detenue is permitted to visit foreign countries including Dubai as it is alleged by the Authorities that from where the detenue was doing his illegal activities from his office at Dubai, and when there was already an approval from the Screening Committee in January, 2012, the Authority ought to have passed orders under the COFEPASA Act immediately.
9.5 By relying upon the aforesaid judgments, Mr. Thakker, learned Senior Counsel for the petitioner, has submitted that the Hon’ble Apex Court has held that the court has to decide whether the prejudicial activities of a person necessitates 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. He has further submitted that if the court finds that there is undue and long delay between the prejudicial activities and passing the detention order, the court has to scrutinize whether the Detaining Authority has satisfactorily explained such delay after considering the explanation given by the Authority for the same. He has submitted that the Authority has to explain why the order of detention could not be passed on the basis of the material gathered by them especially when relying upon the same material the Screening Committee had approved the proposal forwarded by the Sponsoring Authority. In this case, relying upon the said decisions, learned Senior Advocate Mr.Thakker has submitted that the ratios laid down by the Hon’ble Apex Court in the above referred cases would squarely apply to the facts of the present case and, therefore, submitted that the detention order is required to be quashed and set aside solely on this ground.
10 On the other hand, learned Central Government Senior Counsel Mr. Hriday Buch appearing for the respondents has submitted that there is no delay on the part of the Authority in passing the order of detention. He has submitted that the Authority has explained the reasons for not passing the impugned detention order even though the same was approved by the Central Screening Committee on 23.1.2012. He has submitted that, though, the Screening Committee had approved the proposal on 23.1.2012, the Detaining Authority has power to call for further material from the Sponsoring Authority to satisfy himself about the sufficiency of the reasons made by the Sponsoring Authority to arrive at the subjective satisfaction before passing the detention order. It was argued that the Annexure-`C’ to the detention order is the list of documents, which reflects that the Detaining Authority has taken into consideration the events which have been taken place after 23.1.2012 i.e. after the approval of the Screening Committee. He has submitted that by filing an Additional Affidavit dated 12.9.2012, the Detaining Authority has explained the time consumed in passing the detention order. He has submitted that the Screening Committee had approved the proposal made by the Sponsoring Authority about the detention of the detenue, Minutes were signed and were communicated to the Sponsoring Authority only on 13.2.2012. Relying upon the chronology of events (not part of the affidavit), he has submitted that, some proceedings were going on with regard to the case on hand at Ahmedabad. Co- detenue Mr. Sarfarazkhan Sarvarkhan Pathan had filed an application before the Additional Chief Metropolitan Magistrate on 4.2.2012 seeking return of his passport for visa purpose. On 7.2.2012, summons was issued to one Dharamveer Singh Shekhawat, partner of M/s S.V. Enterprises at Ahmedabad, for his appearance on 14.2.2012. On 13.2.2012, Additional Chief Metropolitan Magistrate, Ahmedabad, by Order dated 1.3.2012, released the passport of co-detenue Sarfarazkhan Sarvarkhan Pathan. On 13.2.2012, Minutes of Screening Committee were signed and communicated to DRI i.e. the Sponsoring Authority at Ahmedabad. On 14.2.2012, summons was issued to one Narendra Lodaya, commission agent at Indonesia, for his appearance on 15.2.2012. On 15.2.2012, statement of said Narendra Lodaya was recorded by DRI. On 17.2.2012, a complaint was lodged under Sections 174 and 175 of the Indian Penal Code in the Court of learned Additional Chief Metropolitan Magistrate at Ahmedabad, against Mr.Dharamveer Singh Shekhawat. It was further argued that the report dated 23.2.2012 from Directorate of Forensic Science (DFS), qua, electronics articles seized vide panchnama dated 12.11.2011, was received by DRI, Ahmedabad. By letter dated 2.3.2012, A.D.G., COFEPOSA, requested the Sponsoring Authority to furnish certain documents. Similarly, summons were issued to Sarfarazkhan Sarvarkhan Pathan and Ashok Panchariya i.e. detenue on 5.3.2012. Some other persons were summoned on 16.3.2012 at DRI, Ahmedabad. DRI again recorded the statement of the detenue on 16.3.2012. In view of the above facts, it is clear that, the case was being investigated by DRI and, therefore, there is no delay in passing the detention order. He submitted that only on counting the days or months in passing the detention order, would not lead to the conclusion that the delay is satisfactorily explained by the Authority.
10.1 In support of his submission, he has relied upon the following decisions:
i) in the case of Ashok Narain vs. Union of India & Ors., as reported in (1982) 2 SCC 437;
ii) in the case of Bharatkumar Manilal Parekh vs. Union of India & Ors., as reported in 1992 (1) GLH, 541;
iii) in the case of Smt. Hemlata Kantilal Shah vs. State of Maharashtra & Anr., as reported in AIR 1982 SC 8; and
iv) in the case of Harish Anand v. Union of India, as reported - in 1996 (1) GLR 197.
10.2 Relying upon these judgments, Mr. Buch, learned Counsel for the respondents has submitted that the effect of delay in passing the order would depend on the fact of a case which is required to be examined in the light of whether the grounds have become stale or the link of the detenue with prejudicial activities is snapped or not. He has further submitted that the affidavits filed by the Detaining Authority on behalf of all the respondents along with the chronology of events, which were supplied to the detenue at the time of hearing of the case before the Advisory Board as well as before this Court, there is sufficient material to show that the Detaining Authority has taken time in passing the order of preventive detention only after considering all the necessary relevant documentary evidence against the detenue. The Authority had applied its mind and after having found sufficient material which would indicate that there are possibilities of detenue indulging in such activities prejudicial to the augmentation of foreign exchange, the detention order came to be passed.
10.3 In respect to the argument advanced by learned Counsel Mr. Thakker for the petitioner with regard to the visit of the detenue during the period in February and April, 2012, Mr. Buch has submitted that the detenue visited several countries like Brazil, China, Bangkok, Mauritius, Thailand, United Kingdom and Dubai and not providing the details as promised by the detenue gives rises to strong suspicion that the detenue visited Dubai with an intention to destroy the evidences against him at Dubai, so that he can be relieved from any other action and the same has been dealt with by the Detaining Authority in paragraph 4.6 in the affidavit-in-reply filed on 17th August, 2012.
11. In respect of the second ground i.e. with regard to delay in considering the representation made by the detenue dated 7.7.2012 to the Detaining Authority as well as Union of India, learned Senior Advocate Mr. Thakker for the petitioner has brought to the notice of the Court on several dates. With regard to the same, he has submitted that, the detenue has made representation to the Detaining Authority as well as Union of India provided under the COFEPOSA Act and prayed to revoke the said detention order. He has submitted that, as per the Affidavit dated 17.8.2012 filed by the Detaining Authority, it appears that, the Detaining Authority rejected the representation of the detenue on 31.7.2012 and the Central Government rejected the representation on 1.8.2012. Since the details were not disclosed in the said Affidavit-in-reply, the respondents have tried to explain the same by filing an Additional Affidavit dated 12.9.2012 vide paragraph 3.1.18. It was argued that the explanation made by the Detaining Authority for the time consumed for disposal of the representation indicates that the Union of India had opportunity to deal with the representation of the detenue for the first time only on 31.7.2012, that too, with the comments of the Sponsoring Authority and the comments of the COFEPOSA Section. The Central Government after receiving the files and comments of the COFEPOSA Section, rejected the same on the next day i.e. on 1.8.2012, which would indicate two things, namely, of not deciding the representation as expeditiously as possible as well as of non-application of mind by the authorities. He has submitted that the COFEPOSA unit received two separate representations addressed to the Detaining Authority and Central Government, but the Officer In-charge of the case, did not submit the representation before the Central Government, who has to deal with the representation independently, but, put up the representation only after the decision dated 31.7.2012 of the Detaining Authority rejecting the same on 31.7.2012 before the Central Government, which indicates that the Central Government has mechanically rejected the representation made by the detenue after having read the comments of the COFEPOSA Section as well as the decision of the Detaining Authority rejecting the representation and, therefore, the valuable right of the detenue to get independent decision of two different authorities is vitiated.
11.1 In support of his arguments Mr. Thakker, learned Senior Counsel, has relied upon the decisions of the Apex Court in the case of Ummu Sabeena vs. State of Kerala, as reported in 2012 (1) RCR (Criminal) 182; in the case of T.A. Abdul Rahman vs. State of Kerala, as reported in AIR 1990 SC 225; in the case of Rajammal vs. State of Tamil Nadu, as reported in 1999 (1) SCC 417; in the case of B. Allamelu vs. State of Tamil Nadu, as reported in (1995) 1 SCC 306; and in the case of Harshalal Santosh Patil vs. State of Maharashtra & Ors., as reported in (2006) 12 SCC 211 as well as an unreported judgment dated 25.7.2012 of the Apex Court in the case of Rashid Kapadia vs. Medha Gadgil & Ors. in Criminal Appeal No. 1101 of 2012 (arising out of SLP [Cri] No. 620 of 2012).
11.2 Relying upon these decisions, Mr. Thakker, learned Senior Counsel for the petitioner, submitted that Clause-5 of Article 22 of the Constitution requires that the representation should be considered and disposed of as expeditiously as possible, which has not been done in the present case. He has submitted that the facts in the case of Harshalal Santosh Patil (supra)are similar to the facts of the present case, and in the that case, the Hon’ble Apex Court has held that, the Detaining Authority as well as the Central Government are two independent authorities, and they have to decide the representation made by the detenue of their own and should not wait for the files from the other Departments. In the present case, the Central Government has mechanically rejected the representation made by the detenue after having read the comments of the COFEPOSA Section as well as the decision of the Detaining Authority and, therefore, the valuable right of the detenue to get independent decision of two different authorities, is vitiated and therefore the detention order is required to be quashed and set aside .
12 Opposing this contention of the learned Senior Counsel for the petitioner, Mr. Buch, learned Senior Central Government Counsel appearing for the respondents has submitted that the time consumed in disposal of the representation is properly explained in the Additional Affidavit dated 12.9.2012 and submitted that the representation of the detenue has been disposed of in expeditious manner. He has submitted that the representation dated 7.7.2012, which was received by the COFEPOSA Unit on 12.7.2012. The COFEPOSA Unit sent a letter to the Sponsoring Authority on 16.7.2012 and called for its comments with regard to the representation. Pursuant to the said letter, comments of the Sponsoring Authority were received by the COFEPOSA Unit on 27.7.2012. On 28.7.2012 and 29.7.2012, being Saturday and Sunday, the offices were closed and, therefore, A.D.G., COFEPOSA, submitted the file to the Joint Secretary, COFEPOSA (Detaining Authority), along with the comments on the representation on 30.7.2012 i.e. the first available date after receiving the comments from the Sponsoring Authority. On the next day itself, the Detaining Authority has considered the representation and rejected the same. Therefore, there is no delay on the part of the Detaining Authority in deciding the representation made by the detenue.
12.1 So far as considering the representation addressed to the Central Government is concerned, Mr. Buch, learned Counsel has submitted that, it is the practice that, the Officer of the COFEPOSA Unit shall call for the comments from the Sponsoring Authority and on receiving the same, the same shall be placed to the Detaining Authority as well as the concerned Secretary of the Central Government, for its decision. Accordingly, after getting the representation on 27.7.2012, the files were put up before the Secretary of the Central Government on 31.7.2012 and on 1.8.2012 the decision was taken by the Secretary of the Central Government, rejecting the representation and in view of this, there is no delay in deciding the representation made by the detenue.
12.2 In support of his submission, learned Counsel Mr. Buch for the respondents has relied upon the decisions of the Apex Court (i) in the case of Sentamilselvi vs. State of T.N. & Anr., as reported in (2006) 5 SCC 676; (ii) in the case of Union of India & Ors. vs. Laishram Lincola Singh @ Nicolai, as reported in (2008) 5 SCC
490 and in the case of D.M. Nagaraja vs. Government of Karnataka & Ors., as reported in (2011) 10 SCC 215 and submitted that there is no constitutional duty to consider the representation made by the detenue before the order of confirmation of the detention order. In the present case, though, the order came to be confirmed recently, the Authority has, without waiting for the confirmation, disposed of the representation. He has submitted that proper explanation has been made by the authorities for the time taken for disposal of the representation. Therefore, the continued detention of the detenue would not be rendered illegal in any manner and in view of this he has submitted that this ground is not available in the facts and circumstances of the case to the detenue which would result into quashing of the detention order.
13 I have heard learned Advocates appearing for the respective parties and have gone through the memo of petition, detention order, documents supplied to the detenue along with the detention order as well as the affidavit-in-reply dated 17.8.2012 as well as the additional affidavit-in-reply sworn on 12.9.2012 by the detaining authority which has been filed on behalf of the respondents. I have also gone through the further affidavit filed by the detenue on 14.9.2012. The undisputed facts in the present case which I found are as under:
i) on 12.11.2012 the raid was carried out at the office of S.V. Enterprises, in which it is alleged that the detenue, though he is not a partner of the said firm, is the mastermind behind the illegal activities carried out by the said firm;
ii) the alleged illegal activities found to be carried out lastly by the detenue is of November, 2011;
iii) on 27.12.2011 the detenue was arrested and was produced before the Additional Chief Metropolitan Magistrate, Ahmedabad, and the Magistrate grants remand of the detenue for a day;
iv) on 28.2.2011, the detenue was released on bail;
v) on 10.1.2012, the Detaining Authority received the proposal which was sent by the DRI, Ahmedabad (Sponsoring Authority)
vi) on 23.1.2012 meeting of by the Screening Committee held which approved the proposal sent by the Sponsoring Authority;
vii) on 13.2.2012, Minutes (of meeting dated 23.1.2012), qua, approving the proposal by Screening Committee were typed and the Members of the Committee put their signatures;
viii) the detenue files application in the court of learned Additional Chief Metropolitan Magistrate, Ahmedabad, to permit him to visit foreign countries and pursuant to permission granted by the court, he visits several countries including Dubai from 14.2.2012 to 27.2.2012 and 17.4.2012 to 21.4.2012; and
ix) on 14.6.2012, the detention order is passed and on 22.6.2012 the detenue came to be detained;
x) representation received by COFEPOSA Unit on 12.7.2012 decided by Detaining Authority on 31.7.212 and on 1.8.2012 by Central Government.
14 The most important aspect in the matter is with regard to delay in passing the order. It appears that on the date of raid carried out at the premises of M/s S.V. Enterprises i.e. on 12.11.2011, the Authority found number of electronic devises, such as, laptops pen drives, mobile phones, etc. and the same were recovered by preparing a detailed panchnama dated 12.11.2011 and 13.11.2011. From 12.11.2011 onwards, it appears from the chronology of events that, statement of detenue was recorded for the first time on 17.11.2011. From 12.11.2011 to 17.11.2011, statements of several persons were recorded including the partners of S.V. Enterprise. By issuing summons again and again to Sarfarazkhan Pathan, who happens to be one of the partners of said S.V. Enterprise, his statements were recorded by the authority. By issuing summons to the detenue on 18.11.2011 and 22.11.2011, statement of detenue was recorded by DRI, Ahmedabad, on 24.11.2011. Meanwhile, the electronic gadgets which were seized from the office of S.V. Enterprises, were sent for analysis to Directorate of Forensic Science. Again statement of detenue was recorded on 25.11.2011. This exercise of recording statements of several persons went on till 27.12.2011 when the detenue was arrested. As stated here-in-above, after a day’s remand, the detenue was released by the learned Metropolitan Magistrate on 28.12.2011. Investigation was going on and, ultimately, the Sponsoring Authority thought it fit that preventive measures are required to be taken against the detenue, so that in future he shall not indulge in such activities contrary to the provisions of the Customs Act. A proposal was sent to the Detaining Authority having its Office at Delhi, which was received by the Detaining Authority on 10.11.2011.
14.1 Meanwhile, the detenue filed application before the Metropolitan Magistrate on 17.1.2012 and requested for release of his passport and to permit him to visit various countries. By filing reply to the said application, the said prayer was opposed by the respondents. However, on 27.1.2012, the learned Metropolitan Magistrate released the passport and permitted the detenue to visit several countries.
15 As stated here-in-above, the files were put up before the Screening Committee which consists of senior most Secretaries of the Central Government, who approved the proposal of the Sponsoring Authority which was taken down in writing on 13.2.2012.
16 Mr. Buch, learned Advocate for the respondents is right in submitting that the Detaining Authority can call for further material from the Sponsoring Authority, but, in my opinion when the court grants permission to a person, against whom the allegations are made under the provisions of the Customs Act, the Sponsoring Authority must act promptly as they had strong apprehensions about the future activity of the detenue. If the Sponsoring Authority responded to the letter dated 2.3.2011 by which the Detaining Authority had called for certain papers as well as informed the Detaining Authority about the orders passed by the Magistrate permitting the detenue to visit several countries including Dubai, the intention and the effect of the promptness would have been different. Mr. Buch, learned Advocate for the respondents is right in his submission that the DFS report was received by the DRI only on 2.3.2012 and by the said report the case against the detenue became stronger, but, in my opinion, the Sponsoring Authority ought to have acted promptly by sending the same to the Detaining Authority. The Affidavit, which has been sworn on 17.8.2012 is perused, paragraph 5.1 deals with the same. The same is reproduced as under:
“5.1 In respect of Ground-1 (a), (b) & (c) the contents thereof are denied and not admitted. It is submitted that the detenue, after repeated summons, appeared before the DRI Officer only on 24.11.2011 to give his voluntary statement and his further statements were recorded on 25.11.2011, 8.12.2011 and 27.12.2011 before his arrest on 27.12.2011. Also vide summons dated 05.03.2012 for recording of his statement on 9.3.2012 was not honoured by detenue and he appeared only on 16.3.2012 for giving his statement. The continuous non-cooperation on the part of the detenue is very much apparent. Further, financial investigation to establish the links to the subject smuggling found to have been committed by the detenue, also took considerable time and all the developments till the time of issuance of detention order were considered by the Detaining Authority to arrive at her subjective satisfaction to pass the detention order. Thus, the nexus between the time taken and the issuance of detention order is not snapped. It is further submitted that the arrest under Section-135 of the Customs Act, 1952, and detention under the COFEPOSA Act are two independent proceedings. Preventive detention order imposed on the detenue is to prevent him from further smuggling activities and not a continuation of proceedings, resulting to the bail granted to the detenue. Further, the time taken in issuance of detention order is properly explained and, therefore, no inordinate delay occurred in issuance of order.”
17 A vehemence has been made by the Detaining Authority by stating in the said paragraph that the detenue appeared before the Authority for giving statement after serving repeated summons, but, thereafter, the statements, as stated here-in-above, were recorded by DRI till 16.3.2012 and the detenue has remained present before the Authority for recording of his statement. This paragraph does not explain the delay in passing the detention order, though, the last statement of the detenue was recorded on 16.3.2012.
17.1 By Additional Affidavit dated 12.9.2012, the Authority has tried to explain the time consumed in passing the order which are mentioned in paragraphs 2 of the said Affidavit, are reproduced hereunder:
10.1.2012 Proposal for detention of detenue under COFEPOSA Act was received in the COFEPOSA Unit of the Ministry from Sponsoring Authority viz. DRI.
.
23.1.2012 Meeting of the Central Screening Committee held at Delhi.
13.2.2012 Minutes of the Screening Committee meeting signed and communicated to the Sponsoring Authority.
02.3.2012 Sponsoring Authority was requested to furnish copies of documents and other relevant information for processing the COFEPOSA detention proposal.
13.3.2012 Copies of documents furnished by the Sponsoring Authority received by the COFEPOSA Unit.
19.3.2012 Copies of some more documents and information furnished by Sponsoring Authority – DRI received in the COFEPOSA Unit.
23.3.2012 Some more documents furnished by Sponsoring Authority - DRI to the COFEPOSA Unit.
[ADG, COFEPOSA compelled to proceed on leave for the period 22.3.2012 to 8.4.2012 on account of his mother's illness resulting into surgery.] 10.4.2012 ADG, COFEPOSA, discussed the matter with the Joint Secretary,(COFEPOSA) and as discussed asked the Sponsoring Authority over telephone to furnish information regarding SCN and adjudication proceedings.
11.5.2012 The documents and information called for from the Sponsoring Authority received in the COFEPOSA Unit. ADG, COFEPOSA submitted the file to Joint Secretary, COFEPOSA.
16.5.2012 Joint Secretary, COFEPOSA, perused the case and directed ADG, COFEPOSA to call for some more information.
21.5.2012 Present ADG, COFEPOSA, took charge from the former ADG COFEPOSA and discussed the matter with the Joint Secretary, COFEPOSA and called for requisite information from Sponsoring Authority – DRI.
23.5.2012 Letter sent from ADG, COFEPOSA to Sponsoring Authority – DRI calling for information.
25.5.2012 Sponsoring Authority - DRI was telephonically remained by ADG - COFEPOSA.
30.5.2012 Sponsoring Authority – DRI's reply received in the COFEPOSA Unit.
31.5.2012 & 1.6.2012 Concerned IO of Sponsoring Authority - DRI visited Ministry's office and discussed the matter with ADG, COFEPOSA.
4.6.2012 ADG, COFEPOSA submitted the file to Joint Secretary, COFEPOSA.
7.6.2012 Joint Secretary, COFEPOSA, went through the case and directed to call the concerned d IO to discuss the matter with her, ADG, COFEPOSA instructed the IO to visit Delhi Office and meet the Joint Secretary.
13.6.2012 The concerned IO of Sponsoring Authority - DRI visited Delhi office and discussed the matter with ADG, COFEPOSA and joint Secretary, COFEPOSA.
14.6.2012 After recording her subjective satisfaction, Joint Secretary, COFEPOSA, passed the detention order against the detenue and also against the co- detenue under Section 3 of COFEPOSA Act, 1974 and also signed the grounds of detention and directed to issue the same.
18 It appears from the aforesaid details that there is no explanation offered by the authorities for the period from 13.2.2012 to 2.3.2012 i.e. from the date the Minutes of the Screening Committee was signed and communicated to the Sponsoring Authority till the Detaining Authority requests to the Sponsoring Authority to furnish copies of documents. On perusal of the said letter dated 2.3.2012, it appears that, the Detaining Authority called for the following documents from the Sponsoring Authority:
(1) Present status of the prosecution proceeding (copies of complaints lodged may be furnished);
(2) Present status of the Adjudication Proceedings (copies of the SCNs and the replies thereto, if any, may be furnished);
(3) Copies of the summons issued;
(4) Copies of statements recorded under the Customs Act;
(5) Copies of the arrest memos;
(6) Copies of the remand petitions filed by the Directorate of Revenue Intelligence before the Hon’ble Magistrate in respect of the proposed detenues;
(7) Copies of remand orders of the Hon’ble Magistrate in respect of the proposed detenues;
(8) Copies of the bail applications filed by the accused;
(9) Copies of the replies of the Directorate of Revenue Intelligence to the bail applications filed in the Court;
(10) Copies of the bail order;
(11) Whether the accused have filed any other retraction? If so, the copies thereof and the replies of the Directorate of Revenue Intelligence to the said retractions may also be furnished; and
(12) Any other detail; relevant to the proposal.
18.1 If on perusal of the details called by the Detaining Authority, it appears that, almost all the documents were available when the proposal was made.
19. As stated here-in-above, the respondents have separately placed the exercise undertaken by the Detaining Authority from 14.3.2012 to 13.6.2012. Some of which are handwritten notes. The same are reproduced here-in-below:
(1) Received response from DRI, Ahmedabad, furnishing certain documents as requested by us. However, some documents required to be relied upon, are still not there. DRI have been requested over telephone to furnish the same at the earliest. Sd/- 14.3.2012
(2) Received the requisite information, however, some of the documents are in Gujarati, which required to be translated into English for our perusal. The concerned IO was informed about the same. Sd/- 19.3.2012
(3) Discussed the matter with JS (COFEPOSA). Some information like SCN/adjudication proceedings status is still not clear. Information were sought from DRI over phone. Sd/- 10.4.2012
(4) The documents were received from DRI. The relevant documents are placed below for passing the detention order by he detaining authority. Sd/-1.5.2012 JS. (COFEPOSA) Gone through the details. Pl. get details and inputs based on our discussion.Sd/- 16.5.2012 ADG (C) File received today. Discussed the matter, details had been called for from DRI. Sd/- 21.5.2012
(5) Reference Note on pre-page.
2. As desired, the Sponsoring Authority i.e. the Directorate of Revenue Intelligence, Ahmedabad, was asked to furnish the requisite documents/information for further examination of the matter. It was reminded by the undersigned on 25.5.2012 on telephone. Now, they have furnished the same on 30.5.2012 through e-
mail. The undersigned has scrutinized the documents and for explaining the case the concerned Intelligence Officer (Shri Ramesh) was asked to come to Delhi and to discuss with the undersigned. Accordingly, Shri Ramesh met the undersigned in office on 31.5.2012 (Thursday) and 01.06.2012 (Friday) with some additional documents/ information. The documents and records of the case are placed on the file. Submitted for perusal and further orders of Joint Secretary (COFEPOSA). Sd/- (Nilesh Gupta) ADG (COFEPOSA) dt. 4.6.2012.
Joint Secretary (COFEPOSA) Checked the papers and gone through the case. I find that some vital documents/information are still not there. I would be better if the concerned IO be placed to meet me in next week. Sd/- Harmeet S. Singh, Joint Secretary (COFEPOSA) Dt. 7.6.2012 ADG (COFEPOSA) Instructed him to visit next meeting. Sd/- 7.06.2012 Reference above.
2 As directed, Shri Ramesh, I.O., Directorate of Revenue Intelligence, Ahmedabad, has come today (13.6.2012) to camp in Delhi. Joint Secretary may like to discuss the matter with him also. The documents and records of the case are placed on the file, which may from the basis of the `grounds of detention' and `relied upon documents'. Both the detention files are put up. Joint Secretary (COFEPOSA), in the capacity of the Detaining Authority and specially empowered officer of the Central Government, may kindly peruse the same and pass appropriate orders in the case of Shri Ashok Ramswaroop Panchariya and Shri Sarfarazkhan S. Pathan. Sd/- Nilesh Gupta, ADG (COFEPOSA), Date: 13.6.2012 Joint Secretary (COFEPOSA): As discussed. Pl. process. Sd/-”
20 In the background of the aforesaid action of the Detaining Authority, it appears that, the Detaining Authority has time and again called for the documents, which were asked by the Letter dated 2.3.2012. After recording the discussion which took place on 19.3.2012, after about 22 days i.e. on 10.4.2012, the matter is discussed with the Detaining Authority by the COFEPASA Unit. Thereafter, the relevant documents were placed before the Detaining Authority. After about 31 days, discussion again took place on 16.5.2012, 21.5.2012 and again on 4.6.2012 the papers are placed before the Detaining Authority. On 7.6.2012, the Joint Secretary herself opines that vital documents/information are still not there and, therefore, I.O. was called for a meeting. Ultimately, on 13.6.2012, decision to take action under COFEPASA Act has been taken which resulted into passing the impugned detention order on 14.6.2012.
21 Now, the chronology of events mentioned in the Additional Affidavit dated 12.9.2012 is compared with the chronology of events which is separately placed, it appears that, during the period from 2nd March, 2012 to 10th April, 2012, the Sponsoring Authority recorded last statement of the detenue on 16.3.2012, Summons were issued to other persons, namely, one Shri Ashok Kumar Thakkar, Director of M/s Jalaram Finvest Limited, Ahmedabad, and accordingly his statement was recorded. Similarly, on 9.3.2012, statement of Sarfarazkhan Pathan was recorded and on 19.3.2012 the Detaining Authority received the documents supplied by the DRI, Ahmedabad. Now, from 10.4.2012 to 11.5.2012, as stated here-in-above, the ADG (COFEPOSA) was talking with DRI on phone and demanding some documents, but even if the chronology of events, which is separately provided, is perused, it appears that, nothing happened between 10.4.2012 and 11.5.2012 with regard to the case of the detenue. Only one application was submitted by Sarfarazkhan Pathan, in the court of learned Additional Chief Metropolitan Magistrate, Ahmedabad, for release of his passport and on 17.4.2012 and a bailable warrant came to be issued by learned Additional Chief Metropolitan Magistrate, Ahmedabad, against one Dharamveer Singh Shekhawat. It appears from the Additional Affidavit dated 12.9.2012 that another ADG (COFEPOSA) took charge from her predecessor and again discussed the matter with the Joint Secretary (COFEPOSA) i.e. the Detaining Authority and, ultimately, as stated here-in-above, the order came to be passed on 14.6.2012.
22 Now, the Detaining Authority in its affidavit-in-reply dated 17.8.2012, has raised a contention that pursuant to the permission granted by learned Additional Chief Metropolitan Magistrate, Ahmedabad, the detenue travelled abroad and visited several places from 14.2.2012 to 27.2.2012 and against visited from 17.4.2012 to 21.4.2012. Paragraph 4.6 of the Affidavit-in-reply is reproduced here-in-below:
“ Para 4.6 – It is submitted that the detenue was permitted by the learned Additional Chief Metropolitan Magistrate Court, vide order dated 27.1.2012 and 13.2.2012 to travel abroad to various places, namely, Brazil, China, Bangkok, Thailand, Mauritius, United Kingdom and Dubai, as undertaken in his Affidavit dated 4.2.2012 before the learned Additional Chief Judicial Metropolitan Magistrate. The detenue visited Dubai where he is the Managing Director of M/s Vintage FZE, Dubai, where from illegal financial transactions to cover up the illegal imports in the subject case to Indonesia/Singapore had taken place. The detenue, though, had undertaken to produce various documents relating to import of betel nuts and payment details from Dubai, but had never produced the same till date. It gives rise to strong suspicion that detenue visited Dubai with an intention to destroy all the evidences against him at Dubai and relieve himself from any other action that might arise against him in the near future.”
23 Now, considering the above factual aspects, if the judgments relied upon by the Mr. Thakker, learned Senior Counsel for the petitioner is perused, the principle laid down by the Apex Court is that the delay in passing the detention order itself would not vitiate the detention order if the delay is sufficiently and satisfactorily explained by the authority concerned, and in absence to the same, such delay would throw doubts about necessity for detaining the person from indulging in such illegal activities. In the case of T.A. Abdul Rahman vs. State of Kerala, (supra), the Hon'ble Apex Court observed in paras 11 and 12 as under:
“11. The conspectus of the above decisions can be summarized 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 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 scrutinize 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.
12. Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenue, 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 detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detune with a view to preventing him from acting in a prejudicial manner.”
23.1 In the case of Rajinder Arora vs. Union of India & Ors. (supra) after considering the time gap between the raid conducted at the residence of the detenue and order of preventive detention, the Apex Court has held that since the delay caused in issuing the order of detention has not been explained, the detention order requires to be quashed and has relied upon the judgment in the case of T.A. Abdul Rahman vs. State of Kerala, (supra).
23.2 In the case of Adishwar Jain vs. Union of India
(supra), the Supreme Court has held in para-9 as under:
“9. Indisputably, delay to some extent stands explained. But, we fail to understand as to why despite the fact that the proposal for detention was made on 2.12.2004, the order of detention was passed after four months. We must also notice that in the meantime on 20.12.2004, the authorities of the DRI had clearly stated that transactions after 11.10.2003 were not under scrutiny stating:
“ In our letter mentioned above, your office was requested not to issue the DEPB scripts to M/s Girnar Impex Limited and M/s Siri Amar Exports, only in respect of the pending application, if any, filed by these parties upto the date of action i.e. 11.10.2003 as the past exports were under scrutiny being doubtful as per the intelligence received in this office. This office never intended to stop the export incentives occurring to the parties, after the date of action i.e. 11.10.2003. In the civil, your office letter No. B.L.2/Misc. Am-2003/Ldh dated 17.5.2004 is being referred, which is not received in this office. You are, therefore, requested to supply photocopy of the said letter to the bearer of this letter as this letter is required for filing reply to the Hon'ble Court.”
24. Mr. Buch, learned Advocate appearing for the respondents has relied upon a decision of the Apex Court in the case Ashok Narain vs. Union of India & Ors. (supra), wherein the Supreme Court held that the matter was examined thoroughly at various levels and the detaining authority applied his mind fully and satisfactorily to the question whether the petitioner should be detained under the COFEPOSA or not and after having been satisfied with the time taken by the authority in passing the detention order, the same was upheld by the Apex Court.
Another judgment in the case of Smt. Hemlata Kantilal Shah vs. State of Maharashtra (supra), the Apex Court held that delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person, for, in certain cases, delay may be unavoidable and reasonable. What is required by law is that the delay must be satisfactorily explained by the detaining authority.
Another decision cited by Mr. Buch, learned Advocate for the respondent is in the case of Bharat kumar Manilal Parekh vs. Union of India & Ors. (supra). The Division Bench of this Court has reiterated the principle laid down in the case of Hemalata vs. State of Maharashtra (supra) and held that the delay itself would not vitiate the detention order or would not mean that subjective satisfaction arrived at by the detaining authority was not genuine. However, it has been further held that it would depend upon the facts of each case and whether the grounds alleged against the detenue are stale or illusory or whether because of delay, the link of the petitioner in indulging in illegal activities is snapped.
25. Relying upon the decision on Hemalata vs. State of Maharashtra (supra), learned Advocate Mr. Buch for the respondents has stated that in the said case, the detention order came to be passed after six months from the date of arrest of the detenue and the Apex Court was satisfied with the explanation made by the Authority that 11 statements of the detenue were recorded during that period and, therefore, the delay in passing the detention order after six months was treated as justifiable delay.
26. In view of the aforesaid submissions made by learned Advocate for the respondents, if the time taken by the Authorities in the present case is looked into, it appears that, the Sponsoring Authority as well as the Screening Committee of COFEPASA Unit at Delhi found sufficient material against the detenue when the decision was taken to approve the proposal of detaining the detenue on 23.1.2012. Even if this Court accepts the arguments advanced by Mr. Buch that the report from the Directorate of Forensic Science was received by the Sponsoring Authority on 2nd March, 2012 and, therefore, the Detaining Authority has rightly waited for the said report, is not justifiable as far as delay in passing the order is concerned thereafter. Though, the report was received in March and sent to the Detaining Authority by DRI, the Detaining Authority did not take appropriate decision in passing the order under the COFEPASA Act, which was, in my opinion, a need of the day. The Detaining Authority has not explained what type of documents were called for time and again from 10th March, 2012 onwards till 21st May, 2012. Though, the Authority i.e. Detaining Authority as well as Sponsoring Authority are exchanging their need of documents/information on telephone, promptness was necessary to stop the illegal activities under the provisions of the Customs Act, which was alleged to have been carried out by the detenue, by passing appropriate orders instead of discussing the mater on telephone. At that time, the Authorities waited and waited for a long period of time for getting information. If, the chronology of events are looked into, they mentioned several dates, which are with regard to the issuance of summons to different witnesses as well as detenue, but, the matter has been prolonged for a considerable long time. I am of the opinion that when the Sponsoring Authority as well as the Detaining Authority had found sufficient material against the detenue way back in January 2012 and thereafter when the detenue visited several foreign countries, the intention of the Legislature to prevent the detenue from acting in prejudicial manner against the provisions of the Customs Act, for which he has been detained, is frustrated. The detenue visits foreign countries on two occasions, that too, Dubai, and it is alleged by the Authorities that where from his office he was operating the illegal activities, the Authority ought to have taken immediate steps by passing appropriate orders. At this juncture, I would like to observe that, though, the Detaining Authority has tried to raise a strong suspicion by stating in Paragraph 4.6 of the Affidavit that the detenue has continued such illegal activities. If the Authorities had apprehension that it is imminent danger that the detenue continues his illegal activities, then, action ought to have been taken by the Detaining Authority, upon the proposal which was approved by the Screening Committee, in January, 2012. At least, after getting the report from the Directorate of Forensic Science, the Detaining Authority had sufficient material to proceed with the action provided under the COFEPASA Act.
27 Mr. Buch, learned Senior Central Government Counsel, appearing for the respondents, has brought to the notice of the Court to the fact, which is part of chronology of events, that the detenue filed another application on 1.5.2012 and prayed for release of his passport and he may be permitted to travel abroad. During the pendency of this second application before the learned Additional Metropolitan Magistrate, Ahmedabad, detenue also filed an application, being Criminal Misc. Application No.1623 of 2012 on 3.5.2012 in the court of learned City Civil & Sessions Court at Ahmedabad, and prayed to delete the Conditions No.1 and 2 of the bail order dated 28.12.2011 which was granted by the learned Additional Metropolitan Magistrate, Ahmedabad. The said application was opposed by the Department and by Order dated 19.5.2012, the same was rejected by the learned City Civil and Sessions Court, Ahmedabad and, therefore, the Department had taken appropriate steps to prevent the detenue from visiting foreign countries. Even considering the above referred dates, neither the Sponsoring Authority nor the Detaining Authority expedites the action under the provisions of the COFEPOSA Act, but taken long time in discussing the matter again and again and only after about one month, the detention order has been passed. In my opinion, therefore also, even after 19.5.2012, though, it was the belief of the Authorities that if a person is permitted to visit foreign countries, he will indulge in illegal activities, no satisfactory reasons has been shown which took about 27 days in passing the said impugned order.
28 Therefore, in my opinion, the affidavits filed by the Detaining Authority as well as the chronology of events, which are supplied separately, do not disclose satisfactory explanation or reasons for passing the detention order after a period of long gap between the approval of proposal and passing the detention order.
29 Though, I have considered that there is delay in passing the order, I would like to accept the arguments advanced by learned Senior Counsel Mr. Thakker for the petitioner that the Central Government has decided the representation at belated stage. Mr. Thakker has brought to the notice of the Court that pursuant to the said contention raised in the memo of petition, the Detaining Authority has tried to explain the delay in deciding the representation, which cannot be said that sufficient reasons are narrated and the representation has been expeditiously decided by the Authorities. In the Affidavit of the Detaining Authority dated 17.8.2012, the details are provided which reads as under:
“ The detenue submitted representations dated 7.7.2012 through Jail Authority to the Detaining Authority and to the Central Government, which were received on 12.7.2012. Both the representations had been disposed of by way of rejection by Joint secretary (COFEPOSA) i.e. Detaining Authority on 31.7.2012 and by Special Secretary-cum-Director General, CEIB, on behalf of Central Government on 01.08.2012 and decision of both the representations had been communicated vide Office Memorandum dated 31.7.2012 and 01.8.2012 respectively.”
30 However, by filing the Additional Affidavit on 12.9.2012, the Authority has tried to explain the time consumed in disposal of the representation, which reads as under:
12.7.2012 Representation dated 7.7.2012 received from the detenue in the COFEPOSA Unit. Comments of the Sponsoring Authority called for.
16.7.2012 Letter from COFEPOSA Unit calling for comments on the representation dated 7.7.2012 of the detenue received by Sponsoring Authority, viz. DRI, Ahmedabad.
27.7.2012 Comments of the Sponsoring Authority on the representation of the detenue received in the Ministry and file put up to ADG (COFEPOSA) with the comments received.
30.7.2012 ADG (COFEPOSA) submitted the file to Joint Secretary (COFEPOSA) - Detaining Authority along with comments on the representation.
31.7.2012 The Joint Secretary rejects the representation of the detenue and a Memorandum thereof is issued by the ADG (COFEPOSA) communicating the same to the detenue and it was dispatched on 31.7.2012 itself.
31.7.2012 For the representation meant to Central Government, the file was submitted to the Special Secretary-cum-Director General with the comments of the Sponsoring Authority and comments of the COFEPOSA Section.
1.8.2012 The Special Secretary-cum-Director General rejects the representation of the detenue on behalf of the Central Government and a Memorandum thereof is issued by the ADG (COFEPOSA) communicating the same to the detenue and it was dispatched on 01.08.2012.
6.8.2012 Letter O.W.No./DTN/COFEPOSA/532A/2012 dated 6.8.2012 received from the O/o the Superintendent of Ahmedabad Central Prison, Ahmedabad, forwarding the acknowledged copy of the Memorandums dated 31.7.2012, informing about rejection of the representation, issued by the ADG (COFEPOSA), received on 5.8.2012 by the detenue.
31 If the facts of the case are perused, the representation dated 7.7.2012, which was addressed to the Detaining Authority as well as Central Government, was received by COFEPASA Unit on 12.7.2012. The COFEPASA Unit calls for comments from the Sponsoring Authority by its letter dated 16.7.2012 and the comments were received by the COFEPASA Unit on 27.7.2012. The ADG (COFEPASA) submitted the file to the Detaining Authority on 30.7.2012. Since 28th and 29th July, 2012 were holidays being Saturday and Sunday, the Detaining Authority takes decision on 31st July, 2012 and rejects the same and communicated to the detenue by dispatching the same on 31st July, 2012. As per the Affidavit itself, on 31st July, 2012, the COFEPASA Section puts the representation dated 7.7.2012, for the first time, before the Central Government, that too, with the comments of Sponsoring Authority as well as the comments of the COFEPASA Section. Thus, the Central Government came to know about the representation which was received on 12.7.2012 by the COFEPASA Unit, for the first time, on 31st July, 2012. Now, if these facts are considered in light of the decision of the Apex Court in the case of Harshala Santosh Patil vs. State of Maharashtra & Ors (supra) by which the Apex Court has held that the Detaining Authority and the Government are independent to each other and they are required to consider the representation on their own merits. The observation made in para-12 of the aforesaid decision reads as under:
“12 Having heard the learned counsel for the parties and having considered the statements made in the aforementioned affidavits, we are of the opinion that the respondents have not been able to satisfactorily explain the delay caused in disposal of the representation made by the detenue. We say so for two reasons; firstly, because the representations made by the detenue were required to be considered both by the detaining authority as also the State Government. They were, thus, required to be considered on their own merit upon application of independent mind on the part of the authorities concerned. If the Additional Chief Secretary of the State of Maharashtra was not in possession of the original records, in our opinion, it was obligatory on his part to call for the records or requisition at least the xerox copies thereof from the office of the detaining authority. He should not have waited for the receipt of the records from the office of the detaining authorities for the period from 13.4.2006 to 2.5.2006. We will also deal with the effect of this aspect of the matter a littler later.”
32 In the present case, as stated here-in-above, the decision has already been taken by the Detaining Authority and the files were put up before the Government on 31st July,2012. If the office of the Detaining Authority and the Central Government are situated in the same building, the Officer, who had received the representations addressed to the different entities, it was his duty to place such representation before both the authorities forthwith. The Detaining Authority has to decide whether any comments are required from the Sponsoring Authority or not and similarly the Central Government has to take independent decision whether to call for any remarks from the Sponsoring Authority or not. In the present case, the Officer of the COFEPOSA Unit is taking its own decision and placing the files before both the Authorities on different dates and after having decision of the Detaining Authority which would indicate that there is non-application of mind on the part of the Officer of the Central Government who has rejected the representation. Paras 13 and 14 of the judgment in the case of Harshala Santosh Patil vs. State of Maharashtra & Ors. (supra) would reflect that the Apex Court had to believe that there was non-application of mind on the part of the Officer of the State who had decided the representation. Paras 13 and 14 for the aforesaid decision of the Apex Court are reproduced hereunder:
“13. So far as the consideration of the representation of the detenu by the detaining authority is concerned, it is evident that although the comments of the sponsoring authority which had been called as back as 15.4.2006, were received on 24.4.2006, the detaining authority failed to apply its mind thereupon till 29.4.2006. We are not satisfied that having regard to the nature of the representation made by the detenu and/or reliance having been placed upon several judgments as also the remarks of the sponsoring authority, the detaining authority was required to take five days therefor. He, evidently, sent the record to the Home Department only on 2.5.2006.
14 Keeping in view the conduct of the detaining authority vis-a-vis the Additional Chief Secretary of the State in handling the matter, we have no doubt in our mind that the order of rejection of the representation made by the detenue at the hands of the detaining authority was also available to the Additional Chief Secretary which only enabled him to dispose of the representation of the detenue on 2.5.2006 itself on which date he received the entire file.”
33 In the case of Ummu Sabeena vs. State of Kerala (supra), the Apex Court relying on the decision in the case of K.M. Abdulla Kunhi & B.L. Abdul Khader vs. Union of India & Ors., State of Karnataka & Ors., as reported in (1991)1 SCC 476, held that the representation made by the detenue shall be dealt with as expeditiously as possible as per the Clause(5) of Article 22 of the Constitution of India. The Apex Court in the said judgment, after following the subsequent judgment of the Apex Court in the case of Kundanbhai Dulabhai Shaikh vs. District Magistrate, Ahmedabad & Ors., as reported in (1996) 3 SCC 194, held that the procedural safeguards given for protection of personal liberty must be strictly followed. In case of Kundanbhai Dulabhai Shaikh vs. District Magistrate, Ahmedabad & Ors., (supra) unexplained delay of six days in deciding the representation was found to be the ground to quash the detention order since the files were moved in the department itself.
34 In the present case, there is no further explanation by COFEPOSA Unit, the Detaining Authority or Central Government why the representation was placed before the Central Government, for the first time, on 31st July, 2012 i.e. after about 19 days from the receipt of representation submitted by the detenue to the Central Government. In the aforesaid background of the facts, I am satisfied that the Central Government has not decided the representation at the earliest, though, it might have taken a decision within 24 hours after placing of the representation for the first time along with the comments of the Sponsoring Authority as well as the COFEPOSA Section itself.
35. It is true that it is not obligatory for the Authority that the representation must be decided prior to decision of Advisory Board but it is not the case of petitioner that the Authority ought not to have waited for decision of the Advisory Board. On the contrary, the Advisory Board has confirmed the Order recently.
36 Though, several contentions are raised and argued on behalf of the petitioner for the challenge of the detention order, the same are not dealt with since the present petition is accepted on two grounds, namely, delay in passing the order and delay in deciding the representation by the Central Government.
37 For the reasons aforementioned, this Special Civil Application is allowed. The impugned order of detention bearing F.No.673/04/2012-Cus.VIII dated 14.6.2012 passed by the respondent No.2. Joint Secretary to the Government of India is quashed and set aside. The detenue–Ashok Ramswaroop Panchariya is ordered to be set at liberty forthwith if he is not required to be detained in connection with any other case. Rule is made absolute accordingly. Direct Service is permitted.
(A.J. DESAI, J.) pnnair