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The parties shall file their respective documents within one week thereafter Ratio |
Such documents should be supported by affidavits Ratio |
Both the parties shall be entitled to inspect such documents and filed their responses thereto within one week thereafter Ratio |
The parties shall file the written submissions filed before this Court together with all charts before the learned Special Judge, Special Court within eight weeks from date Ratio |
viii Ratio |
The learned Judge, Special Court shall allow the parties to make brief oral submissions with pointed reference to their written submissions Ratio |
Such hearing in the peculiar facts and circumstances of this case should continue from day to day Ratio |
ix Ratio |
The learned Judge, Special Court while hearing the matter in terms of this order shall also consider as to whether the auction sale should be confirmed or not Ratio |
It will also be open to the learned Judge, Special Court to pass an interim order or orders, as it may think fit and proper, in the event any occasion arises therefor Ratio |
x) We would, however, request the learned Special Judge, Special Court to complete the hearings of the matter, keeping in view of the fact that auction sale in respect of the residential premises is being consideration, as expeditiously as possible and not later than twelve weeks from the date of the receipt of the cop... |
Save and except for sufficient or cogent reasons, the learned Judge shall not grant any adjournment to either of the parties Ratio |
xi Ratio |
The learned Judge, Special Court shall take up the matter relating to confirmation of the auction sale in respect of the commercial properties immediately and pass an appropriate order thereupon within four weeks from the date of receipt of copy of this order Ratio |
If in the meanwhile orders of assessment are passed by the Income Tax Authorities, the Custodian shall be at liberty to bring the same to the notice of the learned Special Court which shall also be taken into consideration by the learned Judge, Special Court Ratio |
With the aforementioned observations and directions, these appeals are allowed RPC |
The impugned judgments are set aside and the matter is remitted to the learned Judge, Special Court for consideration of the matter afresh RPC |
However, the parties shall bear their own costs RPC |
Appeals allowed RPC |
Appellant before us was detained u/s.3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities FAC |
Act,1974 FAC |
for short "COFEPOSA FAC |
He is the Managing Director of a company,registered and incorporated under the provisions of the Companies Act,known as M/s FAC |
Sundesh Springs Private Limited FAC |
It was an exporter and held a valid licence therefor FAC |
The company was to export products of alloy steel FAC |
Upon exporting of alloy steel,it was entitled to credits under the Duty Entitlement Pass Book (DEPB FAC |
Scheme introduced by the Government of India with an object of encouraging exports FAC |
He allegedly misdeclared both the value and description of goods upon procuring fake and false bills through one Prabhjot Singh FAC |
The said Prabhjot Singh was said to have been operating three firms,viz FAC |
M/s FAC |
S.P.Industrial Corporation,M/s FAC |
Aaysons (India) and M/s FAC |
P.J.Sales Corporation,Ludhiana FAC |
It was allegedly found that non-alloy steel,bars,rods,etc.of value ranging from Rs.15/-to Rs.17/-per kg.were exported in the guise of alloy steel forgings,bars,rods,etc.by declaring their value thereof from Rs.110/-to Rs.150/-per kg.and the export proceeds over and above the actual price were being routed through Hawal... |
The officers of the Directorate of Revenue Intelligence (DRI) searched the factory as well as the residential premises of Appellant and that of Prabhjot Singh FAC |
Various incriminating documents were recovered FAC |
Appellant and the said Prabhjot Singh made statements u/s.108 of the Customs Act FAC |
Prabhjot Singh allegedly admitted to have supplied fake bills to units owned and controlled by Appellant on commission basis without actual supply of the goods FAC |
It was also found that Appellant had declared goods exported as "alloy steel" whereas after the tests conducted by Central Revenue Control Laboratory,they were found to be "other than alloy steel",i.e.,non-alloy FAC |
The Consul (Economic),Consulate General of India at Dubai allegedly confirmed the existence of a parallel set of export invoices FAC |
Invoices with a higher value were presented before the Indian Customs Authorities with a view to avail DEPB incentives but in fact invoices with a lower value were presented for clearance FAC |
On the aforementioned allegations,an order of detention was issued on 5.4.2005.Appellant moved for issuance of a writ of Habeas Corpus before the High Court of Judicature of Punjab and Haryana FAC |
The said writ petition was dismissed by an order dated 23.11.2005 by a learned Single Judge FAC |
A letters patent appeal,concededly which was not maintainable,was filed thereagainst which was dismissed by reason of the impugned judgment FAC |
Although before the High Court,the principal ground urged on behalf of Appellant in questioning the legality or validity of the order of detention was unexplained delay in passing the order of detention which did not find favour with the High Court ARG |
Before us,several other grounds,viz.,non placement of vital/ material documents before the detaining authority,non-supply of documents relied on or referred to in the order of detention as also non-application of mind on the part of the detaining authority had been raised Ratio |
In the meantime admittedly the period of detention being over,Appellant had been set at large Ratio |
He was released from custody on 17.5.2006 Ratio |
This appeal,however,has been pressed as a proceeding under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act,1976 (for short "SAFEMA"),has been initiated against Appellant STA |
We may first deal with the question of unexplained delay Ratio |
In this regard we may notice the following dates Ratio |
On 13.10.2003,Appellant was arrested FAC |
He was discharged on bail on 6.1.2004.Several inquiries were conducted both inside and outside India FAC |
A report in relation to overseas inquiry was received on 12.5.2004.On 25.6.2004 proposal of detention was sent which was approved on 2.12.2004.On FAC |
20.12.2004,the authorities of the DRI stated that transactions after 11.10.2003 were not under scrutiny FAC |
Furthermore,the authorities of the DRI by a letter dated 28.02.2005 requested the Bank to defreeze the bank accounts of Appellants FAC |
The order of detention was passed on 5.4.2005 FAC |
The learned Additional Solicitor General,who appeared on behalf of Respondent has drawn our attention to a long list of dates showing that searches were conducted and statements of a large number of persons had to be recorded ARG |
The final order of detention was preceded not only on the basis of raids conducted in various premises,recording of statements of a large number of witnesses,carrying on intensive inquiries both within India and outside India,obtaining test reports from three different laboratories but also the fact that despite notice... |
They initiated various civil proceedings from time to time,obtained various interim orders and,thus,delay in passing the order of detention cannot be said to have not been explained ARG |
Learned counsel would contend that keeping in view the nature and magnitude of an offence under COFEPOSA,a distinction must be made between an order of detention passed under COFEPOSA vis-a-vis other Acts as per the law laid down by this Court in Rajendrakumar Natvarlal Shah v ARG |
State of Gujarat and Others [(1988) 3 SCC 153 1988 Indlaw SC 71] and in that view of the matter the High Court must be held to have arrived at a correct decision ARG |
Indisputably,delay to some extent stands explained Ratio |
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 Ratio |
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 the scrutiny stating: "In our letter mentioned above,your office was requested not to issue the DEPB scripts to M/s Ratio |
Girnar Impex Limited and M/s Ratio |
Siri Amar Exports,only in respect of the pending application,if any,filed by these parties up to 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 Ratio |
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 Ratio |
No.B.L.-2/Misc Ratio |
Am-2003/Ldh dated 17.05.2004 is being referred,which is not received in this office Ratio |
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 Ratio |
Furthermore,as noticed hereinbefore,the authorities of the DRI by a letter dated 28.02.2005 requested the Bank to defreeze the bank accounts of Appellant Ratio |
The said documents,in our opinion,were material Ratio |
It was,therefore,difficult to appreciate why order of detention could not be passed on the basis of the materials gathered by them Ratio |
It is no doubt true that if the delay is sufficiently explained,the same would not be a ground for quashing an order of detention under COFEPOSA,but as in this case a major part of delay remains unexplained Ratio |
We may also place on record that Sen.,J.in Rajendrakumar Natvarlal Shah 1988 Indlaw SC 71 (supra),while laying down various stages of the procedures leading to an order of detention,opined that rule as to unexplained delay in taking action is not inflexible and a detention under COFEPOSA may be considered from a differ... |
The question came up for consideration recently in Rajinder Arora v PRE |
Union of India and Others [(2006) 4 SCC 796 2006 Indlaw SC 87] wherein it has been held: "Furthermore no explanation whatsoever has been offered by the Respondent as to why the order of detention has been issued after such a long time PRE |
The said question has also not been examined by the authorities before issuing the order of detention PRE |
The question as regard delay in issuing the order of detention has been held to be a valid ground for quashing an order of detention by this Court in T.D.Abdul Rahman v PRE |
State of Kerala and others [AIR 1990 SC 225 1989 Indlaw SC 205] stating: "The conspectus of the above decisions can be summarised thus: The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the pre... |
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 PRE |
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 PRE |
However,when there is undue and long delay between the prejudicial activities and the passing of detention order,the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned,when called upon t... |
Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu,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 detain... |
The delay caused in this case in issuing the order of detention has not been explained PRE |
In fact,no reason in that behalf whatsoever has been assigned at all PRE |
Delay,as is well known,at both stages has to be explained Ratio |
The court is required to consider the question having regard to the overall picture Ratio |
We may notice that in Sk PRE |
Serajul v PRE |
State of West Bengal [(1975) 2 SCC 78 1974 Indlaw SC 475],this Court opined: "There was thus delay at both stages and this delay,unless satisfactorily explained,would throw considerable doubt on the genuineness of the subjective satisfaction of the District Magistrate,Burdwan recited in the order of detention PRE |
It would be reasonable to assume that if the District Magistrate of Burdwan was really and genuinely satisfied after proper application of mind to the materials before him that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner,he would have acted with greater pr... |
In Abdul Salam Alias Thiyyan S/o Thiyyan Mohammad,Detenu No.962,General Prison,Trivandrum v PRE |
Union of India and Others [(1990) 3 SCC 15 1990 Indlaw SC 994] whereupon the learned Additional Solicitor General has placed strong reliance,this Court found that there had been potentiality or likelihood of prejudicial activities and,thus,or mere delay,as long as,it is explained,the court may not strike down the deten... |
In the instant case,we have noticed hereinbefore that the authorities of DRI themselves categorically stated that the activities of Appellant after 11.10.2003 were not in question and in fact all the bank accounts were defreezed Ratio |
Although learned Additional Solicitor General may be correct in his submissions that ordinarily we should not exercise our discretionary jurisdiction u/art.136 of the Constitution of India by allowing Appellant to raise new grounds but,in our opinion,we may have to do so as an order of detention may have to be consider... |
It may be true that the period of detention is over Ratio |
It may further be true that Appellant had remained in detention for the entire period but it is one thing to say that the writ of Habeas Corpus in this circumstances cannot issue but it is another thing to say that an order of detention is required to be quashed so as to enable the detainee to avoid his civil liabiliti... |
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