1 Petitioner - son of detenue Sarfarazkhan Pathan has challenged the detention order dated 14.6.2012, passed against his father Sarfarazkhan Sarvarkhan Pathan, 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 14.6.2012.
2 Pursuant to the issuance of `Rule nisi' issued on 14.9.2012, affidavit-in-reply is filed on behalf of respondents No. 1 and 2, which has been taken on record.
3 The facts which emerge from the record of the case are briefly stated as under:
3.1 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.
3.2 The Directorate of Revenue Intelligence also 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 customs duty.
3.3 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 704, Sahajanand Shopping Centre, Shahibaug, Ahmedabad, the premises of M/s S.V. Enterprises, situated near Nagdev Temple, Opp: Kanjal Talav, Navjivan Hotel, Gejipura Road, Sarkhej, Ahmedabad, as well as at the residential premises of the co- detenue i.e. Ashok R. Panchariya, 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 detenue Sarfarazkhan Sarvarkhan Pathan, Partner of M/s S.V. Enterprises and Mohammed Ali Ganthi of M/s 4S International, a Sri Lankan national, who had purportedly supplied the betel nuts imported from Indonesia as betel nuts of Sri Lankan origin, were recorded.
3.4 At the time of drawing panchnama at the Office of the detenue on 12.11.2011, e-mail account of one Shri Dharamveer Shekhawat, who is another 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 co- detenue Ashok Panchariya as well as the account of Dharamveer Singh which indicate that some payments were made from Dubai to Indonesian betel nuts suppliers, besides others.
3.5 In the meantime, M/s S.V. Enterprise 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 origin of Sri Lanka, 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/-.
3.6 Detenue 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 betel nuts from Indonesia/Singapore were imported by M/s 4S International into 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 duty and paying only 4% SAD on the imported goods, though, the said benefit was not available for betel nuts imported from Indonesia.
3.7 The investigation revealed that the co-detenue Ashok Panchariya was the mastermind in controlling the entire activities of said S.V. Enterprise, though, he was not in the record of the firm. The said Ashok Panchariya in collusion with detenue 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 Indonesia/Singapore at a grossly undervalued rates i.e. US $300per M.Tonne to M/s 4S International at Sri Lanka. The detenue had paid 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 co-detenue Ashokh Panchariya had arranged for the difference in 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.
3.8 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 co-detenue Ashok Panchariya 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 co-detenue Ashok Panchariya and detenue Sarfarazkhan Pathan, he unloaded the betel nuts imported from Indonesia and after repacking, exported the same in different containers to Nhava Sheva to S.V. Enterprise. 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.
3.9 Similarly, the authorities have also recorded the statement of detenue-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. Detenue Sarfarazkhan Pathan also confirmed the various documents shown to him and explained the same, which shows the undervaluation of betel nuts imported by them and the payments made through Dubai to Indonesia and wrongful availment of country of origin. The detenue also explained the role played by the co-detenue Ashok Panchariya in the import of betel nuts.
3.10 Similarly, the statement of Ashok Panchariya, co- 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.
3.11 Pursuant to the information and evidence gathered by the Authority at Ahmedabad, the detenue came to be arrested on 3.1.2012 and co-detenue Ashok Panchariya was arrested on 27.12.2011 under the provisions of the Customs Act, 1962.
3.12 Shri Narendra Lodaya, President and Director of M/s P.T. Gajamukha, commission agent at Indonesia, who had arranged supply of betel nuts from Indonesian suppliers, was intercepted during his visit to India and his statement was recorded on 15.2.2012 and he had confirmed the negotiated quantity, quality and rates of betel nut with co-detenue Ashok Panchariya and identified the consignments of betel nuts exported from Indonesia through him
3.13 Sarfarazkhan Pathan-detenue vide his letter dated 11.12.2011 retracted his various statements given before DRI Officer and co-detenue Ashok Panchariya vide his letter dated 10.12.2011retracted his various statements given before DRI Officers. DRI, vide its letters dated 21.12.2011 rejected the retractions of the detenue Sarfarazkhan Pathan and co-detenue Ashok Panchariya. Also, M/s S.V. Enterprise had voluntarily paid a sum of Rs.1 crore towards differential duty on the betel nuts imported by them in the past.
3.14 It is the case of the Authority that Sarfarazkhan Pathan – detenue, partner of M/s S.V. Enterprise along with co-detenue Ashok Ramswaroop Panchariya, who is not on paper in the records of M/s S.V. Enterprise, masterminded the entire activity. It is the case of the Authority that both had knowingly concerned themselves in smuggling of betel nuts involving the mis-declaration of value as also the country of origin of the imported betel nuts and thereby knowingly and actively concerned themselves in evasion of customs duty in a well planned, deliberate and repetitive manner. It is also alleged that co-detenue Ashok Ramswaroop Panchariya had masterminded the racket and detenue Sarfarazkhan Pathan went along with him and allowed him to utilize the IEC of M/s S.V. Enterprise. It is also alleged that they had that so far imported 583.528 M. Tonnes of betel nuts of Indonesian agent in the past, but mis-declared the origin of such betel nuts as that of Sri Lanka with a view to wrongly avail the benefits provided under exemption Notification No.26/2000-Cus.
dated 1.3.2000 under the Customs Tariff (Department of Origin under the Free Trade Agreement between the Democratic Socialist Republic of Sri Lanka and the Republic of India) Rules, 2000. The detenue and co-detenue Ashok Panchariya were also instrumental in grossly mis-declaring the value of the betel nuts imported through the firm M/s S.V. Enterprise by declaring a value of Rs. 2,24,72,214/- suppressing value of Rs.2,07,40,867/-. It is also alleged that based on the evidences available on record, the re- determined value of betel nuts of 583.528 M.Tonnes imported by M/s S.V. Enterprise, Ahmedabad, works out to Rs. 4,32,13,081/-. Therefore, an amount of Rs.4,40,42,714/- of customs duty has been allegedly evaded by M/s S.V. Enterprise, by wrongly availing the exemption Notification and gross undervaluation of the betel nuts imported by them. It is also alleged that, apart from the above, 3 containers of betel nuts of a quantity of 72 M.Tonnes of betel nuts of Indonesian origin valued at Rs.57,65,760/- (re-determined assessable value Rs.58,88,931/-) involving a customs duty of Rs.61,24,488/- has been placed under seizure as the same has been wrongly declared of being of Sri Lanka origin, while the origin is Indonesia and also grossly undervalued and co-detenue had arranged for the transfer of differential value between the actual value and the value paid through Sri Lanka to the suppliers of betel nuts at Indonesia/ Singapore by way of TT from Dubai or directly paid the amount to the suppliers and arranged to obtain certificate of origin of imported betel nuts as Sri Lanka instead of Indonesia and, thus, both of them have indulged themselves in evasion of custody duty and wrongful availment of benefit of country of origin.
3.15 Taking into consideration the foregoing facts and the material on record, the Detaining Authority was subjectively satisfied that the activity of detenue–Sarfarazkhan Pathan amounts to smuggling goods as defined in Section 2(39) of the Customs Act, 1962 and Section 2(e) of the COFEPOSA Act, 1974 and his acts and omissions have rendered the said goods involved liable to confiscation under Section-111 of the Customs Act, 1962 and considering the nature and gravity of offence and the manner in which the the detenue engaged himself in such prejudicial activities and his role therein and it also reflects his high potentiality and propensity to indulge in such prejudicial activities in future, it was found that there is a need to prevent the detenue from indulging in such prejudicial activities in future he is required to be detained under Section 3(1) of the COFEPOSA Act, 1974 and accordingly the impugned detention order was passed by the Respondent No.1- Detaining Authority on 14.6.2012.
4 The petitioner has raised several grounds challenging the detention order, which has been passed by the detaining authority i.e. respondent No.1. As stated here-in-above, an affidavit-in-reply has been sworn on behalf of respondents No. 1 and 2 on 4.10.2012 by the Joint Secretary (COFEPOSA) of the Department of Revenue, Ministry of Finance, Government of India, New Delhi.
5 I have heard Mr. Rizwan Merchant, learned Senior Counsel, assisted by Mr. Harmish K.Shah for the petitioner and Mr. Hriday Buch, Central Govt. Senior Counsel for respondents No. 1 and 2 at length.
5.1 Learned Senior Counsel Mr. Merchant 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;
6 Learned Senior Counsel Mr. Merchant, for the petitioner would submit that though the petitioner has challenged the detention order on several grounds, he would advance his arguments with regard to delay in passing the order, relying upon the CAV Judgment dated 27.9.2012 passed by this Court in Special Civil Application No.9659 of 2012, by which the detention order passed by the respondent No.1–Detaining Authority, qua, co- detenue Ashok Ramswaroop Panchariya has been quashed and set aside. Mr. Merchant, learned Advocate for the petitioner 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 had 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 a 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 at 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 to prevent the detenue from acting in a prejudicial manner. He has submitted that in the affidavit-in-reply dated 4.10.2012 filed by the Detaining Authority he has not explained the delay in passing the detention order. He has submitted that the Detaining Authority has failed in explaining the time consumed by him in passing the order after the detenue was released on bail in connection with his arrest under the provisions of the Customs Act. He would submit that in absence of proper explanation by the Detaining Authority, which would satisfy that there were sufficient reasons for Detaining Authority to pass an order at the belated stage to restrain the detenue from indulging in such illegal activities, the subjective satisfaction arrived at by the Authority would vitiate the order. He would further submit that there is no satisfactory explanation in the affidavit-in-reply filed by the Detaining Authority which would lead to believe that the Detaining Authority had acted promptly in case of preventive detention.
6.1 Mr. Merchant, learned Advocate for the petitioner 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 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-in-reply 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. Merchant 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 13.3.2012, by which more documents were called for. The same is the situation on 23.3.2012 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 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.
6.2 Learned Senior Counsel Mr. Merchant further submitted that the details of chronology of events mentioned in the affidavit-in-reply 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 Annexure-`C’ to the detention order, but most of them are with regards to those events, which took place after sending of the proposal and approved 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 4.10.2012, 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. Merchant, 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.
6.3 In support of the submission, learned Senior Counsel Mr. Merchant 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).
6.4 By relying upon the aforesaid judgments, Mr. Merchant, 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. Merchant 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.
7 On the other hand, learned Central Government Senior Counsel Mr. Hriday Buch appearing for the respondents No. 1 and 2 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 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 Ashok Panchariya had filed an application before the Additional Chief Metropolitan Magistrate on 17.1.2012 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 27.1.2012, released the passport of co-detenue. 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, President & Director of M/s P.T. Gajamukha, Indonesia, 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 - detenue and Ashok Panchariya i.e. co-detenue on 5.3.2012. Some other persons were summoned on 16.3.2012 at DRI, Ahmedabad. DRI again recorded the statement of co-detenue Ashok Panchariya 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.
7.1 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.
7.2 Relying upon these judgments, Mr. Buch, learned Counsel for the respondents No. 1 and 2 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 affidavit filed by the Detaining Authority on behalf of all the respondents No. 1 and 2 was 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.
8 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 4.10.2012 filed by the detaining authority on behalf of the respondents No. 1 and 2. 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, is a partner of the said firm and co-detenue – Ashokkumar Panchariya, 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) on 16.4.2012 the detenue filed application in the court of learned Additional Chief Metropolitan Magistrate, Ahmedabad, seeking release of his passport and to permit him to visit foreign countries and pursuant to permission granted by the court, he visits several countries including Dubai;
ix) on 14.6.2012, the detention order is passed and on 16.7.2012 the detenue came to be detained;
x) representation dated 2.8.2012 of the detenue received by COFEPOSA Unit on 8.8.2012, which was decided by Detaining Authority on 24.8.2012 and by Central Government on 27.8.2012 .
9 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 co- detenue Ashokkumar Panchariya, who alleged to be the mastermind behind the illegal transactions, his statements were recorded by the authority. By issuing summons to the detenue on 13.11.2011 and 14.11.2011, statement of detenue was recorded by DRI, Ahmedabad, on 15.11.2011. 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 17.11.2011. This exercise of recording statements of several persons went on till 3.1.2012 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 3.1.2012. 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 10.01.2012.
10 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.
11 Mr. Buch, learned Central Government Counsel for respondents No. 1 and 2 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 promptness would have been different. Mr. Buch, learned Advocate for the respondents is right in his submission that the Directorate of Forensic Science 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.
12 It appears from the Affidavit-in-reply sworn on 4.10.2012 as well as the List of Chronology of Events, the Authority has tried to explain the time consumed in passing the impugned order. The details of which are reproduced hereunder:
10.1.2012 Proposal for detention of detenue under COFEPOSA Act was received in the COFEPOSA Unit of the Ministry from the 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 & 01.6.2012 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.
13 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.
13.1 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.
14. 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 the 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/-”
15 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.
16 Now, the chronology of events which is separately placed on record, is perused, the Sponsoring Authority recorded last statement of the detenue on 4.5.2012, 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 16.4.2012 and a bailable warrant came to be issued by learned Additional Chief Metropolitan Magistrate, Ahmedabad, against one Dharamveer Singh Shekhawat. It appears from the record that in the meantime 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.
17 Now, considering the above factual aspects, if the judgments relied upon by the Mr. Merchant, 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.”
17.1 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).
17.2 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.”
18. 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.
19. 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.
20. 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 13.2.2012. 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. I am of the opinion that there was no reason for the Detaining Authority not to prevent the detenue from acting in prejudicial manner against the provisions of the Customs Act. In the instant case, the delay has certainly frustrated the intention of the Legislature to prevent him forthwith from acting in prejudicial manner. If the Authority 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 February, 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.
21 Therefore, in my opinion, the affidavit-in-reply as well as the chronology of events submitted by the Detaining Authority 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.
22 I have also gone through CAV Judgment dated 27.9.2012 passed by this Court in Special Civil Application No. 9659 of 2012 by which the detention order of co-detenue Ashok Ramswaroop Panchariya has been quashed and set aside on two grounds, viz. delay in passing the order and delay in deciding the representation by the Central Government. In the present case, learned Senior Advocate Mr. Merchant for the petitioner has advanced his submission only on the ground of delay in passing the impugned order of detention and, therefore, the same has been dealt with in the foregoing paragraphs.
23 In the result, this Special Civil Application is allowed.
The impugned order of detention bearing F.No.673/05/2012- 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 – Sarfarazkhan Sarvarkhan 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