R. S. SODHI, J. ( 1 ) THE W. P. (Crl.) No. 2183/2005 seeks to challenge the order of detention dated 9th March, 2004 of the Joint Secretary, Government of India in exercise of his powers under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended) detaining the petitioner's husband (detenu) in Central Jail, Tihar on account of preventing him from smuggling goods in future. ( 2 ) THE facts of the case as stated in the counter affidavit are as follows:"the main case based on which issuance of Detention Order against Shri sushant Agrawal was proposed is in respect of diversion of goods imported under an Advance Licence issued under DEEC scheme to m/s. Lakshay Exports (Intl.), New Delhi. The case investigated by the dri is based on specific information that fabrics imported duty free under an Advance Licence (No. 0510078414 dated 17. 1. 2003) issued to M/s. Lakshay Exports (Intl.), New Delhi, under DEEC Scheme has been diverted to be local market by Shri Sushant Agrawal. Searches were conducted at various premises and incriminating documents were resumed. Goods imported duty free under the impugned licence and sold in the local market by Sushant Agrawal, was detained at karampura and at Gandhinagar. Goods imported by Sushant Agrawal in the name of M/s. Vishesh Enterprises was detained at godown premises of the transporter as the same were appeared to be misdeclared at the time of import to evade customs duty. A large stock of goods was also detained from his godown at Okhla Industrial Area on reasonable belief that the same was imported by him illegally. Investigation conducted into the diversion of goods imported duty free under the DEEC Scheme resulting into non-fulfilment of export obligation thereof indicated that the impugned licence bearing No. 0510078414 dated 17. 1. 2003 for GIF value Rs. 9. 87 crore was issued in the name of m/s. Lakshay Exports (Intl.), New Delhi and that the licence was actually operated by Shri Sushant Agrawal who placed orders for the fabric, cleared the goods from Customs by making payment to the CHA and, thereafter, stored them in his own godown and sold them in the local market. Investigations also indicated that Shri Rakesh Divedi had only lent his out of greed and Shri Sushant Agrawal masterminded the whole fraud in which customs duty of Rs. Investigations also indicated that Shri Rakesh Divedi had only lent his out of greed and Shri Sushant Agrawal masterminded the whole fraud in which customs duty of Rs. 4,96,23,955/- was evaded. Involvement of Shri Sushant Agrawal is evident as the investigation indicted that he initiated Rakesh Divedi to obtain the subject Advance Licence from the DGFT; that he used to place order on the supplier on behalf of M/s. Lakshay Exports (Intl. ). Remittances for the imports were financed by him; that original DEEC licence of M/s. Lakshay Exports (Intl.), New delhi was handed over by him to the CHA; that customs clearances of consignments imported in the name of M/s. Lakshay Exports (Intl.) was arranged by him; that transportation from Kolkata was arranged by him; that delivery and further disposal of the imported goods in Delhi was managed by him and payments to CHA was also by him. Shri Sushant Agrawal in his statement admitted that he had misused the advance Licence in effecting duty free clearances and then selling the said goods in the open market. His own admission was supported by statements of various transporters, traders, CHA and partner of M/s. Lakshay Exports (Intl. ). Shri Sushant Agrawal has thus managed to evade customs duty to the tune of Rs. 4. 96 crore by diverting the fabric imported against DEEC licence in the local market and the voluntarily submitted a bank draft of Rs. 13 lakh on 6. 10. 2003 towards duty evaded by him. Investigation into the import of goods in M/s. Vishesh Enterprises, revealed that proprietor of the said firm Shri Sanjay Sethi @ Jodar Gulati has acted as per the direction of Shri Sushant Agrawal for financial gain; that import of goods in the said firm was financed and managed by Shri sushant Agrawal; that goods was declared as 'non-textured' at the time of import with the intention of evasion of Customs duty; that 2572 rolls of fabric valued at Rs. 53. 81 lakh were seized after drawing representative samples. The imported goods were cleared by the said firm classifying the results showed that the goods were fabrics, composed haul of texturised multifilament yarn of polyester, classifiable under CTH 507 5220. The Show-cause Notice dated 2. 4. 2004 was issued demanding differential Customs duty amounting to Rs. 27,70,818/ -. During the investigation 14 lots of imported fabrics was detained. The imported goods were cleared by the said firm classifying the results showed that the goods were fabrics, composed haul of texturised multifilament yarn of polyester, classifiable under CTH 507 5220. The Show-cause Notice dated 2. 4. 2004 was issued demanding differential Customs duty amounting to Rs. 27,70,818/ -. During the investigation 14 lots of imported fabrics was detained. Out of these 14 lots, 6 lots of fabrics were released to Shri Sushant Agrawal based on test reports as well as import documents furnished by him. No import documents or details of imports were submitted by Shri Sushant agrawal for identification of remaining 8 lots of fabrics in spite of repeated summons issued to him for his appearance before the DRI officer. It became evident that Shri Sushant Agrawal had smuggled the goods measuring 86253 mts. having market value of Rs. 44,35,030. 00 without filling any Bill of Entry. " ( 3 ) THE detaining authority on the basis of the aforesaid facts came to the conclusion that in order to prevent the detenu from indulging in further smuggling activities passed the aforesaid detention order dated 9th March, 2004. The detenu before us has challenged the aforesaid detention order primarily on the ground that the same has been made without application of mind. The Counsel for the detenu submits that in the counter affidavit of the department, the department admits that the nature of activities undertaken by the detenu were those of abetment to smuggle as defined under Section 3 (1) (ii) of the COFEPOSA. He submits that the department's own stand is that the detenu is abetting smuggling activities. His detention could not be justified under Section 3 (1) (i) of COFEPOSA. The Counsel submits that even the adjudicatory authority under the Customs Act have clearly held that the activities of the detenu are abetment to smuggle and not smugglingper se. Consequently, the order is bad for non-application of mind. He has drawn our attention to various judgments where this aspect has been thrashed out. We may refer to the judgment of the Delhi High Court in Criminal Writ Petition No. 1797 2002 titled 'shri Rajesh Kumar Jain v. Union of India and Ors. ' where this Court has held that there is a distinction between the activities mentioned in Sections 3 (1) (i) of the COFEPOSA and 3 (1) (ii) thereof. We may refer to the judgment of the Delhi High Court in Criminal Writ Petition No. 1797 2002 titled 'shri Rajesh Kumar Jain v. Union of India and Ors. ' where this Court has held that there is a distinction between the activities mentioned in Sections 3 (1) (i) of the COFEPOSA and 3 (1) (ii) thereof. Distinction being clear and unambiguous, any order made under wrong provision would suffer from non application of mind. Reference has also been made by the learned Counsel to the judgment reported as 'daya Shankar Kapoorv. Union of India and Others', 1975 cri. L. J. 1376 where this aspect has been highlighted in paragraphs 25 and 26 which we may quote for the benefit of this judgment:"25. That the Legislature has construed the act of smuggling goods, the act of abetting other persons to smuggle goods or the act of dealing in smuggled goods as three distinct activities can be inferred also from the language of Clause (c) of the Sub-section (1) of Section 3 of the Act. If the Legislature had intended to include the act of abetment or the act of dealing in smuggled goods in the word 'smuggling', then there was no need for it to have put these three activities under distinct heads. It would have been sufficient if the Legislature had stopped short with stating ground (i) 'smuggling goods' as a sufficient ground for passing an order of detention. It was not necessary for the Legislature to have added Sub-clauses (ii) and (iii) to Clause (c ). It cannot be presumed that Sub-clauses (ii) and (iii) were redundant. 26. Section 16-A of the Act also clarifies the position. Section 16-A (1) reads:. It was not necessary for the Legislature to have added Sub-clauses (ii) and (iii) to Clause (c ). It cannot be presumed that Sub-clauses (ii) and (iii) were redundant. 26. Section 16-A of the Act also clarifies the position. Section 16-A (1) reads:. ' (1) Notwithstanding anything contained in this Act, any person (including a foreigner)in respect of whom an order of detention has been made under this Act may be detained without obtaining the opinion of the Advisory Board for a period longer than three months but not exceeding one year from the date of his detention, where the order of detention has been made against such person with a view to preventing him from smuggling goods or abetting other persons to smuggle goods, and the Central Government has reason to believe that such person (i) smuggles or is likely to smuggle goods, or (ii) abets or is likely to abet other persons to smuggle goods, into out of or through any specified area as defined in Clause (c) of Section 11-H of the Customs Act, 1962 (52 of 1962)'. ' in this section, one significant fact to be noticed is that smuggling goods and abetment of other persons to smuggle goods are mentioned separately as being distinct activities. The other significant fact is that in this section there is no reference to the act of dealing in smuggled goods. In other words, dealing in smuggled goods is taken outside the purview of section 16-A of the Act. The only reasonable conclusion that can be drawn is that the Legislature has not treated the act of dealing in smuggled goods as being included in the act of smuggling goods and that the legislature has treated the three kinds of activities mentioned in sub clause (i), (ii) and (Hi) of Clause (c) of Sub-section (1) of Section 3 of the act as being distinct activities," ( 4 ) THE learned Counsel has laid considerable emphasis on judgment reported as'devi Das v. Union of India and others',28 (1985)DLT 197=ilr (1985)II Delhi 607 where this Court again in paragraph 2 (f) has upheld the contention of the learned Counsel. The learned Counsel also refers to the judgment in civil writ petition No. 54/1982 titled 'chain Lal Jain v. The Administrator, Delhi Administration' where the Court held that 'on a conspectus of all the facts given in the grounds reading the affidavit filed, it is apparent that the petitioners were allegedly indulging in smuggling activities distinct from smuggling goods'. That being so the impugned detention order is at variance with the grounds taken in affidavit filed on behalf of the respondent. The detention order has to be struck down as having been passed without application of mind. The Counsel also took grounds namely: (i) That the respondent has passed the impugned order with 'a view to preventing him from smuggling goods in future', whereas the entire narrative in the grounds of detention, though vehemently denied even assuming to be true do not constitute the act of smuggling as defined under Section 2 (39) of the Customs Act, 1962 and at best indicate a possible abetting in alleged duty evasion by Lakshya Exports International, an offence falling within the ambit of Section 112 of the Customs Act. 1962 and Clause (ii) of the Section 3 (1) of the COFEPOSA Act, 1974. The failure on the part of the Detaining Authority in comprehending the facts and in appreciating the provisions of the Act amounts to gross non application of mind rendering the order bad in law. (ii) That the learned respondent has passed the impugned order on the basis of irrelevant material while omitting to consider relevant material. This omission on the part of the learned respondent amounts to complete non-application of mined rendering the order bad. The petitioner respectfully submits that the learned respondent has recorded subjective satisfaction that the detenu has mis-declared the fabric relying on SASMIRA Reports and has failed to consider the CRCL Reports, which were available before the learned detailing authority on the date of passing of the order. Had the respondent considered those reports he would not have recorded subjective satisfaction in Para 42 that the detenu had evaded duty to the tune of Rs. 2,80,49,482. 00 by mis-declaring the fabric as non-texturised. All the CRCL reports were available before the learned respondent and do form part of the RUD also. Had the respondent considered those reports he would not have recorded subjective satisfaction in Para 42 that the detenu had evaded duty to the tune of Rs. 2,80,49,482. 00 by mis-declaring the fabric as non-texturised. All the CRCL reports were available before the learned respondent and do form part of the RUD also. It is respectfully submitted that the Sponsoring Authority on the basis of those very CRCL reports have ordered for release of the 6 out of 14 lots seized from detenu's Okhla godown and refrained from making charge of mis-declaration in respect of the remaining 8 lots. (iii) That the grounds of detention and the relied upon documents have not been supplied part passu the detention order in violation of article 22 (5) of the Constitution of India and the Section 3 (3) of the cofeposa Act which mandates that the grounds on which the order has been made shall be served along with the order of detention, ordinarily not later than 5 days and in exceptional circumstances not later than 15 days of the detention. Whereas in the instant case a bunch of 496 pages was supplied to the detenu on 22. 10. 2005 and another bunch of 410 pages was supplied on 24. 10. 2005, however, a Page numbered 907 was supplied on 28. 11. 2005. Thus, the failure on the part of the respondents to supply the documents which were supplied in piecemeal is contrary to the mandate of the Article 22 (5) of the Constitution and the provisions of Section 3 (3) of the Act. The petitioner states that the Page No. 907 which is a chart of purported duty evasion, supplied after 37 days of detention, was an afterthought to cover the glaring fallacy in the impugned order. (iv) That the detenu vide representation dated 10. 11. 2005 had requested for supply of certain documents referred in the ground of detention viz. documents seized under Panchnama dated 29. 9. 2004, which have been termed as incriminating in the impugned order, the Bs/e pertaining to the imports made by LEI, the show-cause notices, replies thereof and the orders passed in the cases referred in the grounds and copies of various other documents, however, the same have not been supplied to the detenu and the demand was perfunctorily rejected. 9. 2004, which have been termed as incriminating in the impugned order, the Bs/e pertaining to the imports made by LEI, the show-cause notices, replies thereof and the orders passed in the cases referred in the grounds and copies of various other documents, however, the same have not been supplied to the detenu and the demand was perfunctorily rejected. Non-supply of the aforesaid documents which are relevant and material has caused prejudice to the detenu in making effective representation rendering the order and the detention violative of Article 22 (5) of the Constitution of India. (v) That there is an inordinate delay in passing the impugned order. The investigation in the instant case commenced in May/june 2003, the impugned goods were imported by the LEI in August 2003 and the impugned order was passed on 9. 3. 2004. This delay has snapped the live link and proximity between the purported prejudicial Act and the detention rendering the impugned order bad in law. (vi) That the representations preferred by the detenu have not been considered expeditiously and independently which is violative of article 22 (5) of the Constitution of India. (vii) That the non-application of mind on the part of the detaining authority is writ large throughout the order as he has failed to discern the obvious fallacies in the investigation carried out by the sponsoring Authority and the inadmissibility of the statement pressed into service by the Sponsoring Authority this complete non application of mind has rendered the order void ab initio. (viii) That the Sponsoring Authority has deliberately concealed certain pertinent documents having an important bearing on the satisfaction of the detaining authority. A number of pertinent documents such as viz. Bank Statement of LEI, the Bs/e and documents pertaining to the imports made by LEI, the lorry receipts for transportation of the goods imported by the LEI, the show-cause notices, replies thereof and the orders passed in the cases referred in the grounds and several other documents were not placed before the detaining authority. Had these documents been placed before the detaining authority then his satisfaction would have been otherwise. ( 5 ) THE Counsel for the respondent Mr. Harish Gulati has sought to justify the detention order on the ground that the goods which violate the provisions of Section 111 (O) are liable to be confiscated, therefore, amounting to smuggling activities. Had these documents been placed before the detaining authority then his satisfaction would have been otherwise. ( 5 ) THE Counsel for the respondent Mr. Harish Gulati has sought to justify the detention order on the ground that the goods which violate the provisions of Section 111 (O) are liable to be confiscated, therefore, amounting to smuggling activities. He concedes that the adjudicating authority has held that activities of the detenu are not that of smuggling but abetment to smuggle which order according to the learned counsel was taken up in revision and has also been disallowed. He contends that although the adjudicating authorities have held that the activities of the detenu are abetment to smuggling but at the time when the detention order was passed the activity which was thought to be relevant is smuggling for the reason that the goods were liable to be confiscated under Section 111 (O) of the Customs Act. ( 6 ) THE learned Counsel Mr. Harish Gulati has drawn out attention to the judgment of the Hon'ble Supreme Court reported as 'madan Lal Anand v. Union of India and Others', 40 (1999) DLT 20 (SN) (SC)=1990 SCC (Crl) 51 while dealing with the case where the goods were liable for confiscation under Section 111 (O) of the Customs Act held the order passed on account of abetment to smuggling as valid. ( 7 ) IN order to appreciate the arguments of the learned Counsel for the petitioner, it would be appropriate to refer to the counter affidavit filed by the detaining authority. In answer to paragraphs 31,32,37,38 and 39, the stand taken is as follows:"para (XXXI) : Facts as on the date of issue of the detention order have been considered by the detaining authority. The process of adjudication and that of issuing of detention order under COFEPOSA Act are two independent processes. Secondly, in the current case, at the time of issuing of D. D. , the Show-cause Notice was also not issued leave aside the issuing of Adjudication Order by the Commissioner of Customs. Date-wise details are as under: Detention Order 09. 03. 2004 S. C. N. 25. 06. 2004 Adjudication order 30. 06. 2005 Thirdly, apart from imposing penalty of Rs. Date-wise details are as under: Detention Order 09. 03. 2004 S. C. N. 25. 06. 2004 Adjudication order 30. 06. 2005 Thirdly, apart from imposing penalty of Rs. 2,00,000/- on the detenu, it has been observed by the adjudicating authority that the role of the appellant as an abettor in the entire episode of duty evasion of Rs. 4. 96 crore is proved beyond doubt. Further, the detenu's own confessional statement, his submission of two drafts for Rs. 13 lakh ands a cheque for rs. one crore during investigation corroborated his role as an abettor. Fourthly, even the order of Commissioner has been appealed against by the DRI before the Hon'ble CESTAT. As such the order has not attained finality. Para (XXXII) : It may be observed at the very outset that most important ground on which the Detention Order relies itself, as also summed up in para 42 of the Grounds of Detention, is the fact that M/s. Lakshay Exports (Intl.) imported duty free consignments of fabrics under DEEC scheme and sold them in open market in blatant violation of the provisions of exim Policy and Customs Act, instead of using them for manufacturing and exporting them subsequently, thereby, the company evaded about rs. 4. 96 crores of duty. Further, Sh. Sushant Agrawal masterminded the entire operation of placing orders on foreign suppliers, customs clearance, transportation, storage and ultimately diversion of the duty free imported goods. This is the main pillar on which the Detention Order is based. However, in addition, another point involving evasion of duty to the tune of Rs. 2,80,49,482. 00 was made. This figure of Rs. 2,80,49,482. 00 is differential duty calculated in respect of goods of lot no. 10 of the goods detained under Panchanama drawn on 30. 9. 2003 at d-60 Okhla Industrial Area, Phase I, New Delhi, wherein number and date of Bills of Entry in respect of goods of lot No. 10, were furnished by the detenu at the time of search. The said goods were detained along with other goods and were placed under seizure vide seizure memo dated 7. 11. 2003 as the material evidence suggested that the said goods were mis-declared. The applicant was summoned repeatedly to join investigation and to produce relevant documents, but he did not join the investigation. However, subsequently based on the test reports, the goods of lot no. 11. 2003 as the material evidence suggested that the said goods were mis-declared. The applicant was summoned repeatedly to join investigation and to produce relevant documents, but he did not join the investigation. However, subsequently based on the test reports, the goods of lot no. 10 and some other goods (Lot Nos. 1,3, 5,6 and 8) were found to be declared correctly at the time of import and were released to the detenu/ applicant vide letter dated 25. 6. 2004 and 1. 7. 2004 i. e. , after issue of detention order. Thus, the investigations on this account were closed and it is on record that no Show-cause Notice was issued on this point. However, since at the time of preparation of the COFEPOSA proposal, investigation on this score was live, therefore it was included in addition to the main charge already highlighted above. Therefore, though it is a fact that the duty calculation and quantification chart insofar as the alleged duty evasion of Rs. 2,80,49,482. 00 is concerned, was not initially handed over to the detenu ( Page 907 of RUD) by mistake, it was given to him later as already referred above. Paras (XXXVII), (XXXVIII) and (XXXIX): All the aforesaid glaring discrepancies though not discerned by the detaining Authority, were aptly noticed and recorded by the Commissioner of Customs, Kolkata in his Order-in-Original No. Kol/cus/port/181/05 dated 30. 6. 2005 whereby the detenu was totally exonerated and absolved of the duty liability fastened upon the detenu by the DRI in respect of imports made by the LEI. A copy of the order dated 30. 6. 2005 is annexed herewith and is marked as Annexure B-5. The order under which the Adjudicating Authority has imposed penalty of Rs. two lakh itself is proving that the detenu has managed the impugned import and evaded the customs duty. The order also confirms the duty of Rs. 4. 96 cr. and even imposes penalty of same amount on the company. In any case the order is being challenged by DRI and, therefore, is not the final word on the subject. The documents placed before the detaining Authority were sufficient to come to subjective satisfaction of the act of smuggling. Subsequent development have not in any way disproved the subjective satisfaction. and even imposes penalty of same amount on the company. In any case the order is being challenged by DRI and, therefore, is not the final word on the subject. The documents placed before the detaining Authority were sufficient to come to subjective satisfaction of the act of smuggling. Subsequent development have not in any way disproved the subjective satisfaction. " ( 8 ) FROM the affidavit of the detaining authority, it is clear that the activities indulged into by the detenu are abetment to smuggling which is distinctly covered under Section 3 (1) (ii) of COFEPOSA instead of Section 3 (1) (i) thereof. The judgments cited above squarely, cover the case in hand and lay down that in such an eventuality the order of detention has to be strucked down on grounds of non application of mind. ( 9 ) HAVING carefully gone through the material on record as also the law on the subject brought to our notice by learned Counsel for the parties, we are of the view that the detenu authority itself in its affidavit having stated that the activities indulged by the detenu are abetment to smuggle the basis of detention order dated 9th March, 2004 declaring the necessity of detention in order to prevent the detenu from indulging in smuggling activities amounts to non-application of mind. That being so the detention order is bad and we have no hesitation in quashing the same. No other grounds were pressed into service in the facts of this case by the learned counsel. ( 10 ) IN view of the what we have decided above, the detention order having been struck down, the detenu be set at liberty forthwith unless wanted in any other case. Rule is made absolute. Ordered accordingly.