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2011 DIGILAW 1347 (BOM)

Sangita Bala Jadhav v. State of Maharashtra

2011-11-08

A.M.KHANWILKAR

body2011
Judgment :- A.M. KHANWILKAR, J. 1. By this common judgment, we intend to finally dispose of all three petitions challenging the as the background in which the respective Detention Orders were issued against the concern arising out of the same transaction and more so, the issues raised are overlapping. In other w disclosed in the respective petitions as also the reply-affidavits and the original record Sponsoring Authority and the Detaining Authority are broadly identical. 2. The first petition is filed by the wife of Bala Baburao Jadhav (hereinafter referred to as De Order of Detention dated 20th July, 2011 bearing No. PSA-1211/CR-17(4)/SPL-3(A) issued exercise of powers under Section 3(1) of the Conservation of Foreign Exchange and Preventio 1974 (hereinafter referred to as “the said Act”), upon recording satisfaction that it was essent view to prevent him in future from smuggling of goods and abetting smuggling of goods and concealing and keeping smuggled goods and harbouring persons engaged in smugging of goo goods. From the Grounds of Detention served on the said detenu, it is noticed that the said a said detenu, as he was involved along with four others in the case of gross misdeclaration w and valuation of the declared export goods, besides claim of disproportionately higher amount Detention refer to the statements of the accused recorded under Section 108 of the Cust admission of the detenu that he had filed the wrong declaration on the shipping bills and had n proper officer for making amendments. Further, the co-accused, Sanjay Waghmare, in his sta removed the export goods from the warehouse through his associate for export. It also refers number) of the goods covered under the eight shipping bills drawn under panchanama, which Laboratory and Research Centre, Mumbai, for testing the composition and criteria of the said i approved valuer for valuation. The goods totally valued at Rs.3,67,98,880 (F.O.B.) with draw As per the valuation report, the value was determined at Rs.10/- per piece of Dupatta and R compared to the declared value of Rs. 351.34 and Rs. 280.78 of the respective items, which Detenu Jadhav was involved in the said offence as an employee of Clearing House Agency fi Grounds of Detention state that Detenu Jadhav abetted in smuggling activities by improper e fraudulently by offering Clearing House Agency services to the exporters. 351.34 and Rs. 280.78 of the respective items, which Detenu Jadhav was involved in the said offence as an employee of Clearing House Agency fi Grounds of Detention state that Detenu Jadhav abetted in smuggling activities by improper e fraudulently by offering Clearing House Agency services to the exporters. He prepared and related documents for exports of M/s. Noble Impex and completed custom dock formalities w documents. He submitted blank annexure / declaration to generate the checklist. There was invoices and alterations, i.e., gross weight, net weight, description of the goods, quantity of different dates on the declaration. He submitted overwritten / correct customs cleared docume without proper permission of the Customs. In his statement under Section 108 of the misdeclaration in description, quantity, quality, valuation of the export goods and claiming exporter. In the Grounds of Detention, it is stated that Detenu Jadhav has the propensity to co and knowingly was not disclosing the identities of the persons involved in smuggling. Furthe gravity of the offence and the well-organised manner in which the prejudicial activities were be Authority recorded her satisfaction that it was imperative to detain Detenu Jadhav with a view in smuggling activities in future as his smuggling activities were covered by Section 113(d) an 1962. 3. The second petition is filed by the cousin brother of one Sanjay Nivrutti Waghmare (here Waghmare”) to challenge the Detention Order dated 20th July, 2011 bearing No. PSA-1211/ the Detaining Authority in exercise of powers under Section 3(1) of the said Act, upon bei Detenu Waghmare was essential to prevent him in future from smuggling of goods and abettin transporting and concealing and keeping smuggled goods and harbouring persons engage abetting smuggling of goods. As aforesaid, the Detention Order against Detenu Waghmare ha with the same transaction referred to in the Grounds of Detention of Detenu Jadhav regarding misdeclaration with respect to quality, quantity and valuation of the declared export goods a higher amount of drawback regarding the export consignment of M/s. Noble Impex under eight 4. In the Grounds of Detention served on Detenu Waghmare, it is stated that he was part of a into conspiracy to earn money by improper export and claiming drawback fraudulently. He we exporter and discussed the export strategy with exporter. He fixed Rs.10,000/- per container a exporter to get I.E.C. Code. In the Grounds of Detention served on Detenu Waghmare, it is stated that he was part of a into conspiracy to earn money by improper export and claiming drawback fraudulently. He we exporter and discussed the export strategy with exporter. He fixed Rs.10,000/- per container a exporter to get I.E.C. Code. He also arranged transport for the export of goods from Surat t warehouse at Mumbai, removed and transported export goods to shed. He introduced the Agent M/s. Dhakne & Co. and booked the container for the export goods from M/s. Freight S stated that Detenu Waghmare removed export goods from warehouse through his assoc transported the export goods to shed, thereby aided and abetted improper export for claiming in violation of the provisions of Section 113(d) and (h) (ii) of the Customs Act. It is stated that D four other co-accused, were actively involved in the attempted improper export and claimed hi of drawbacks fraudulently, thereby indulging and abetting in smuggling activities. He has th offences in future and knowingly was not disclosing the identities of the persons involved i actively involved in the aforesaid illegal activities. It is stated that, considering the nature and well-organised manner in which Detenu Waghmare had engaged in prejudicial activities, it with a view to prevent him from indulging in smuggling activities in future. 5. The third petition is filed by the wife of one Ashok Pandurang Dhakne (hereinafter refer challenging the Detention Order dated 20th July, 2011 bearing No. PSA-1211/CR-17(3)/SPL Authority in exercise of powers under Section 3(1) of the said Act, directing detention of Dete future from smuggling of goods, abetting smuggling of goods and engaging in transporting, c goods and harbouring persons engaged in smugging of goods and abetting smuggling of good 6. Even in the third petition, the impugned Detention Order is founded on the same tra consignment of M/s. Noble Impex under eight shipping bills which came under scanner bec with respect to quantity, quality and valuation of the declared export goods and claim of dispro drawback. After referring to the relevant admission given by the co-accused, it is noticed tha of the concerned Clearing House Agency, i.e., M/s. Dhakne & Co. The Grounds of Detentio abetted the improper exports and claiming drawback fraudulently by offering his C.H.A. serv shown the sample of export goods. After referring to the relevant admission given by the co-accused, it is noticed tha of the concerned Clearing House Agency, i.e., M/s. Dhakne & Co. The Grounds of Detentio abetted the improper exports and claiming drawback fraudulently by offering his C.H.A. serv shown the sample of export goods. He instructed his staff to prepare the shipping bills and re He had given instructions to Detenu Jadhav to prepare, file the shipping bills and complete confirmed the name of Bala Jadhav on shipping bills of M/s. Noble Impex on behalf of C.H.A admitted to have offered his C.H.A. service without verifying quality and quantity of the sample He has also admitted having given the blank annexure/declaration to his employee, Detenu confirmed the different signatures on the invoices and admitted misdeclaration in description, the export goods and claiming drawback fraudulently by the exporter. The Detaining Authority has noted that the four accused were actively involved in the attempted improper disproportionate amount of drawback, thereby indulging and abetting in smuggling activities. T commit prejudicial activities in future and knowingly not disclosing the identities of the perso they were actively involved in the stated illegal activities. It is noted that the acts of commissio contravened the provision of Section 113(d) and (h)(ii) of the Customs Act. Further, conside the offence and the well-organised manner in which Detenu Dhakne had engaged in prejudic to detain him under the said Act with a view to prevent him from indulging in smuggling activitie 7. In the respective petitions, although diverse grounds have been taken, at the time of hearin for the petitioners, in all fairness stated that most of the contentions were common to all the th appropriate stage indicate the additional contention taken in respect of the two connected pet and Dhakne, specific to those cases. 8. In the respective petitions, although diverse grounds have been taken, at the time of hearin for the petitioners, in all fairness stated that most of the contentions were common to all the th appropriate stage indicate the additional contention taken in respect of the two connected pet and Dhakne, specific to those cases. 8. The first set of common grounds urged in all the three petitions can be summarised as follow Firstly, that there has been delay in initiating the proposal for detention of the respective Detention Orders could not have been issued in the fact situation of the case as the detenue prejudicial activities after being released on bail in connection with the transaction in qu Detaining Authority has failed to consider whether any other measure was possible, instead o However, at the time of hearing, the learned counsel fairly submitted that she may not pursu view of the recent decision rendered by us in the case of Shamsher Singh S/o. Balwinder Sing & Ors.,Criminal Writ Petition No. 2188 of 2011 decided on 11th October, 2011. Incidentally, for the petitioners herein had appeared for the detenu and unsuccessfully pursued these ver that the principle enunciated in the said decision in relation to the abovesaid grounds would s be possible for her to distinguish the same. 9. That leaves us with the other three broad common points urged by the learned counsel fo the petitioners, the impugned Detention Orders suffer from the vice of non-application of Authority, after receipt of the proposal, proceeded to pass order within one day. The arg impossible for the Detaining Authority to wade through all the four proposals examined to formulate grounds therefor. The second shade of challenge to the impugned Detention Order non-application of mind, is that, there is variance in the alleged activities stated by the Detai Detention and the ones mentioned in the Grounds of Detention. The Grounds of Detention, ev at best, indicate that the satisfaction recorded is only in respect of the detenu having abet offence; and yet, the Order of Detention proceeds against the detenu also for having e engaged in transporting, concealing, keeping smuggled goods and harbouring persons enga this singular reason, the Detention Order is vitiated. The last common ground urged by petitioners is that there is unexplained and inordinate delay in deciding the representation m the Detaining Authority as well as the State Government. 10. The last common ground urged by petitioners is that there is unexplained and inordinate delay in deciding the representation m the Detaining Authority as well as the State Government. 10. Accordingly, we shall now turn to the challenge on the ground that the impugned Detentio of non-application of mind. The facts relevant for deciding this contention are common in all th convenience, we shall refer to the relevant dates mentioned in the petition filed in respect of D 11. According to the petitioners, the proposal was received by the Detaining Authority on 19th Authority proceeded to examine all the proposals together within one day and passed the ord recorded Grounds for Detention. As regards this contention of the petitioners, the Detainin dated 13th September, 2011 in paragraph 5, has averred as follows:- “... a proposal for preventive detention under COFEPOSA Act in case of Shri Bala Baburao submitted by the Joint Commissioner of Customs (Preventive) Mumbai vide its letter dtd. 06.0 this office on 6.5.2011. The proposal was scrutinized by the concerned Assistant and was Under Secretary who endorsed it on 1.6.2011 and forwarded it to Deputy Secretary. The De 1.6.2011 and the proposal was submitted to me. I have directed to get information on ce Authority. The information was called from Sponsoring Authority vide letter dated 9.6.201 received from the Sponsoring Authority vide letter dtd. 27.6.2011. The concerned Assistant p and submitted it to the Under Secretary who endorsed it on 30.6.2011 and forwarded it to D Secretary endorsed it on 2.7.2011 and the proposal was submitted to me. I endorsed it on 11.7 documents stamped. By its letter dtd. 11.7.2011 the Sponsoring Authority forwarded the cop 4.7.2011 which was submitted to me and on 12.7.2011 I as the Detaining Authority directe documents. Thereafter on 19.7.2011 the stamped relied upon documents were submitte Authority directed to issue the detention Order by drafting the Detention Order along with the directed to submit the fair copy of the same. 11.7.2011 the Sponsoring Authority forwarded the cop 4.7.2011 which was submitted to me and on 12.7.2011 I as the Detaining Authority directe documents. Thereafter on 19.7.2011 the stamped relied upon documents were submitte Authority directed to issue the detention Order by drafting the Detention Order along with the directed to submit the fair copy of the same. Accordingly the fair copy of the Detention Order was submitted to me on 20.7.2011 and on the same day the detention order was issued again I as the Detaining Authority, on the material facts available on record and after my su documentary presentation as clearly stated in the grounds of detention, communicated to decision that the detenu should be detained under the provisions of the COFEPOSA Act and was passed.” (emphasis supplied) 12. On analysing the stand taken by the Detaining Authority in its proper perspective, it appe scrutiny of the proposals by the Detaining Authority commenced on 1st June, 2011, when the by the Deputy Secretary. She directed to get necessary information on certain points from th the said information was received from the Sponsoring Authority, the proposal was scrutinise the concerned Assistant and submitted to the Under Secretary, who, in turn, made his end same to the Deputy Secretary. The Deputy Secretary, thereafter, made his endorsement and the Detaining Authority. The proposal was, once again, scrutinised by the Detaining Authority Deputy Secretary on 2nd July, 2011. The fact that the Detaining Authority had made endorse July, 2011 and directed to get the documents stamped pre-supposes that the Detaining Autho the proposal after its receipt. The Detaining Authority received further documents from the Show Cause Notice dated 4th July, 2011 on 12th July, 2011. The Detaining Authority directe Cause Notice in the compilation of relied-upon documents. No doubt, the final proposal cons documents were received by the Detaining Authority on 19th July, 2011 and the Detention Detention were issued on 20th July, 2011. That, however, does not mean that only on an proposals were examined by the Detaining Authority for the first time, that too, in one d petitioners. No doubt, the final proposal cons documents were received by the Detaining Authority on 19th July, 2011 and the Detention Detention were issued on 20th July, 2011. That, however, does not mean that only on an proposals were examined by the Detaining Authority for the first time, that too, in one d petitioners. Moreover, it cannot be overlooked that since all the four proposals pertained to th of the relied-upon documents therein – 19 documents running into 294 pages in case of D running into 302 pages in the case of Detenu Waghmare and 23 documents running into 346 Dhakne - were bound to be overlapping, as is evident from the list of documents in the three ca 13. Suffice it to observe that, going by the assertions made in the reply-affidavit of the De reason to assume that the Detaining Authority examined the proposals only in one day, as is The contents of the reply-affidavit would suggest that the scrutiny of the proposals began wi Authority after its receipt on 1st June, 2011, directing furnishing of certain information from the scrutiny culminated in the order dated 20th July, 2011 and formulation of Grounds of Det person was involved in hatching conspiracy and its execution pertaining to the same transact for the Detaining Authority to consider all the proposals together. It is, therefore, in the fa possible to countenance the assumption of the petitioners that the Detaining Authority scrutin also formulated separate Grounds of Detention in four cases on the same day. In ou consideration is devoid of merits. 14. That takes us to the argument that the impugned Detention Orders suffer from non-applic because the activities stated in the Orders of Detention are non-existent (not mentioned) Inasmuch the Order of Detention in each of these cases refer to the activities covered by claus of Section 3 of the said Act. However, the Grounds of Detention, at best, can be said to b covered only under clause (ii) i.e. , abetting the smuggling of goods qua Detenu Jadhav and D Detenu Jadhav, he was the employee of C.H.A. Firm in which Detenu Dhakne was the Partn shipping bills under instructions of Detenu Dhakne. As regards Detenu Waghmare, material w Surat to solicit probable exporter and discuss the export strategy with customer, for which, he of Rs.10,000/- per container. As regards Detenu Waghmare, material w Surat to solicit probable exporter and discuss the export strategy with customer, for which, he of Rs.10,000/- per container. The acts of commission and omission of Detenu Waghmare smuggling of goods, as he was not the exporter or manufacturer of goods himself. 15. We have already adverted to the activities referred to in the Grounds of Detention by the D each of the detenues. In the case of Detenu Jadhav, the allegation is that he prepared and s and related documents for exports of M/s. Noble Impex and completed custom dock forma export documents. He submitted blank annexure / declaration to generate the checklist. He s customs cleared documents at EDI Centre, Kalamboli, without proper permission of misdeclaration in description, quantity, quality, valuation of the export goods and claiming exporter, thereby indulging and abetting in smuggling activities. Even in the case of Detenu W was part of a larger conspiracy and entered into conspiracy to earn money by improper e fraudulently. For that, he went to Surat to solicit probable exporter and discussed the export st his emoluments at Rs.10,000/- per container as his charges. He helped the exporter to get I. transport for the export of goods from Surat to Mumbai, kept the goods at warehouse at Mum export goods to shed. He introduced the exporter to Clearing House Agent M/s. Dhakne & Co the export goods from M/s. Freight Services, Mumbai. In substance, the allegation against export goods from warehouse through his associate, arranged transport and transported the e aided and abetted improper export for claiming higher drawback fraudulently, thereby indulgi activities. 16. Notably, all the detenues were working in a well-organised manner and by their acts of co engaging themselves in prejudicial activities. Similarly, in the case of Detenu Dhakne, the a that he abetted improper exports and claiming drawback fraudulently by offering his C.H.A. s alleged prejudicial activities. The exporter and his associate showed the sample of export g instructed his staff to prepare the shipping bills and related documents for export. He instructe shipping bills and complete the Customs dock formalities. He offered his C.H.A. service quantity of the samples of the items to be exported. He gave the blank annexure / declara Jadhav. He admitted misdeclaration in description, quantity, quality, valuation of the export g fraudulently by the exporter. He instructe shipping bills and complete the Customs dock formalities. He offered his C.H.A. service quantity of the samples of the items to be exported. He gave the blank annexure / declara Jadhav. He admitted misdeclaration in description, quantity, quality, valuation of the export g fraudulently by the exporter. In substance, he was indulging and abetting in smuggling activitie 17. Expression “smuggling” has been defined in Section 2(39) of the Customs Act, 1962. It me any act or omission which will render such goods liable to confiscation under Section 111 o case, the act of commission and omission was in respect of the goods attempted to be export of Customs area for the purpose of being exported, and more particularly, goods entered fo drawback, which did not correspond, in any material particular, with the information fu manufacturer under the Customs Act in relation to the fixation of rate of drawback under Sec the detenues are themselves exporters or manufacturers of goods entered for exportation. A facilitators or agents. However, as they were associated with the prejudicial activities in that ca made liable for abetting the activity of smuggling of goods within the meaning of Section 3(1 allegation against them is also of not disclosing the identities of the persons involved in the sm involved in the prejudicial activities. Thus the detenues can be said to have indulged in ha smuggling goods or in abetting the smuggling of goods, within the meaning of Section 3(1) ( not require them to be the exporters or manufacturers of goods, who may be directly enga others, such as facilitators, nonetheless, can be proceeded for abetting the smuggling of goo engaged in smuggling of goods and abetting the smuggling goods. The petitioners, however, the decision of our High Court in Maheshchandra Saxena v. State of Maharashtra – 2007 A paragraphs 24 and 25 thereof, would contend that, even in the present cases, the detenues were not the owners of the goods. This decision is not an authority on the proposition that pr never be taken against the persons, who merely act as agents in commission of prejudicial a purport of clauses (ii) and (v) of sub-section (1) of Section 3 of COFEPOSA is sufficient to i against the agents in crime or prejudicial activities. 18. This decision is not an authority on the proposition that pr never be taken against the persons, who merely act as agents in commission of prejudicial a purport of clauses (ii) and (v) of sub-section (1) of Section 3 of COFEPOSA is sufficient to i against the agents in crime or prejudicial activities. 18. Indeed, the petitioners are justified in pointing out that the Order of Detention refers to all in Section 3(1) of the said Act, under Clauses (i) to (v) thereof, empowering the Detaining A with a view to preventing him from, in any manner, prejudicial to the conservation or augmen with a view to preventing him from indulging in specified prejudicial activities; whereas, the g may spell out only activity ascribable to clauses (ii) and (v). In other words, the other act detention cannot be supported on the basis of the activities mentioned in the Grounds of Det petitioners, reflects on the subjective satisfaction recorded by the Detaining Authority; a Detention is vitiated on that count. Reliance is placed by the petitioners on the decision of o Bhavesh Kantilal Jain vs. State of Maharashtra reported in 1998 All MR (Cri.) 175to buttress th referred to in the order of detention from amongst the five activities specified in sub-sectio present in the grounds of detention as well. In that case, however, it was noticed from the Detaining Authority was satisfied that the detenu and his associates were found in possession order of detention was issued for preventing the detenu in future from smuggling goods. In Prosecutor had contended that it was not necessary to specify the activity referred to in s detention. That contention has been rejected in paragraph 24 of the reported decision. In the noticed that the order of detention refers to all the five activities specified in sub-section (1) whereas, the grounds of detention refer to only activities ascribable to clauses (ii) and (v) of su of abetting the smuggling of goods or harbouring persons engaged in smuggled goods or goods respectively. 19. In the noticed that the order of detention refers to all the five activities specified in sub-section (1) whereas, the grounds of detention refer to only activities ascribable to clauses (ii) and (v) of su of abetting the smuggling of goods or harbouring persons engaged in smuggled goods or goods respectively. 19. To get over this position, the respondents would contend that non-mention of other Detention – for smuggling goods, engaging in transporting or concealing or keeping smuggle goods otherwise than by engaging in transporting or concealing or keeping smuggled good Even in absence of reference to those activities in the Grounds of Detention, the Order of D least on account of presence of one or the other activity specified in the Grounds of D smuggling of goods or harbouring persons engaged in smuggling goods or in abetting the sm Section 5-A of the said Act. 20. The counsel for the petitioners, however, would rely on the decision of Division Bench of Smt. Shashikala Krishnarao Rane v. Union of India & Ors., 1987 Cr. L.J. 1787.Even in that was based on clause (ii) of sub-section (1) of Section 3 of the said Act, i.e., abetting of sm clause (iii) of sub-section (1) of Section 3 of the said Act for engaging in concealing or ke petitioner in that case did not dispute the fact that, as regards clause (ii), which related to goods, the order as well as the Grounds of Detention referred to the said activity. In the ba counsel appearing for the State in that case had urged that the Order of Detention is saved o keeping in mind the mandate of Section 5-A of the said Act. That argument, however, came words:- “13. ...... Section 5-A provided that where a person had been detained in pursuance of an or (1) of S. 3 which had been made such order of detention could be deemed to have been mad grounds and accordingly such order could not be deemed to be invalid or inoperative merely grounds were (i) vague, (ii) non-existent, (iii) not relevant, (iv) not connected or not proximately or (v) invalid for any other reason whatsoever. Now it is necessary to point out that S. 5-A rel to a detenu in support of the Order of detention. It does not apply to an Order of detention. Now it is necessary to point out that S. 5-A rel to a detenu in support of the Order of detention. It does not apply to an Order of detention. supplied to a detenu under sub-s. (3) of S. 3 of the COFEPOSA Act. Sub-sec. (3) of S. 3 of following terms:- ‘(3) For the purposes of Cl. (5) of Art. 22 of the Constitution, the communication to a perso detention order of the grounds on which the order has been made shall be made as soon as m ordinarily not later than five days, and in exceptional circumstances and for reasons to be reco fifteen days, from the date of detention.’ It is therefore apparent that S. 5-A relates to the grounds furnished to a detenu in support o has no relevance to the Order of detention. We must therefore reject the submission mad supplied) 21. Reliance is also placed on the unreported decision of the Division Bench in the case of Ba State of Maharashtra & Ors., in Criminal Writ Petition No. 1051 of 2002decided on 8th April, found that, in the grounds of detention, the role of the detenu was, at best, one of carrier. H smuggling goods. In paragraph 13 of this decision, the Court has opined:- “13. We are also of the opinion that the detention order cannot be sustained on the ground th the detenu to prevent him from acting in any manner prejudicial to the conservation of fore Section 5-A of the COFEPOSA. In Shashikala Krishnarao Rane vs. Union of India and oth 1797, the Division Bench of this Court has held that Section 5-A of the COFEPOSA relates detenu in support of the order of detention and it has no relevance to the order of detention. T there could be some material to come to the conclusion that the detenu was acting in a conservation of foreign exchange, the order cannot be saved with the aid of Section 5-A circumstances, the order of detention will have to be set aside.” 22. Reliance is also placed on the decision in the case of Gimik Piotr v. State of Tamil Nadu particular, paragraphs 27, 28, 31 and 35. In our opinion, this judgment may be useful for certainly, not for the question under consideration. Reliance is also placed on the decision in the case of Gimik Piotr v. State of Tamil Nadu particular, paragraphs 27, 28, 31 and 35. In our opinion, this judgment may be useful for certainly, not for the question under consideration. Inasmuch as this judgment deals with of paragraph 16 of the reported judgment, and the same has no bearing on the question under c Whether Section 5-A of the said Act applies only to the grounds furnished to a detenu and no has been expounded in the case of ShashikalaRane(supra)? Indeed, the question was spec the same had arisen for consideration therein. The Court opined that Section 5-A of the sa furnished to a detenu in support of the Order of Detention; and it has no relevance to the Orde the only logic that can be deduced from the above quoted extract. The other unreported judg upon in Makwana’s case (supra) merely follows the dictum in Shashikala Rane’scase. In our utmost respect, whittles down the intent behind the enactment of Section 5-A, which is p detention from being declared invalid or inoperative merely because one or some of the gr vague; non-existent; not relevant; not connected or not proximately connected with such pe reason whatsoever. To put it differently, if the Order of Detention, as in this case, were constituting smuggling goods along with other specified activities in Section 3(1) of the said Detention furnished to the detenu, no reference is made to the activity of smuggling goods a would be bad as a whole, but then, it is saved on account of a legal fiction in Section 5A, if t the order of detention is relevant, definite and proximate. That is amply clear from the plain la which reads thus:- “5-A. Grounds of detention severable.--Where a person has been detained in pursuance of an section (1) of Section 3 which has been made on two or more grounds, such order of deten been made separately on each of such grounds and accordingly-- (a) such order shall not be deemed to be invalid or inoperative merely because one or some of (i) vague, (ii) non-existent, (iii) not relevant, (iv) not connected or not proximately connected with such person, or (v) invalid for any other reason whatsoever, and it is not, therefore, possible to hold that the Government or officer making such order w provided in sub-section (1) of section 3 with reference to the remaining ground or grounds and (b) the Government or officer making the order of detention shall be deemed to have made th said sub-section (1) after being satisfied as provided in that sub-section with reference grounds.” (emphasis supplied) 23. We are conscious of the fact that it is not open for the Bench of coordinate jurisdiction to one already taken by another Bench on a question of law. However, we are fortified in ou decision of the Constitution Bench of the Apex Court in Attorney General for India & Ors. v. (1994) 5 SCC 54 .Although the unreported decision of another Division Bench was rendered a the Apex Court, it has not noticed the same. Instead, it makes reference to and follows the le earlier decision of Division Bench of this Court in Shashikala Rane’scase on the point under co 24. In our opinion, in view of the dictum of the Apex Court in Attorney General for India’sca stated in Shashikala Rane’scase, and as followed in the unreported decision in Babulal Mak over-ruled. The Constitution Bench of the Apex Court posed to itself Question No. 6 as follows “Whether Section 5-A of COFEPOSA is violative of Clause (5) of Article 22?” The challenge was inter alia on the basis that the parliament was not competent to make grounds upon which the requisite satisfaction has been formed on partly good and partly bad, be good with reference to and on the basis of good grounds; eschewing the bad grounds. Tha with Article 22(5). While answering the said question, the Apex Court has interpreted Se paragraph 47, the Court observed thus:- “47. The section is in two parts. Tha with Article 22(5). While answering the said question, the Apex Court has interpreted Se paragraph 47, the Court observed thus:- “47. The section is in two parts. The first part says that where an order of detention is made o order of detention shall be deemed to have been made separately on each of such grounds that such order shall not be deemed to be invalid or inoperative merely for the reason that on either vague, non-existent, irrelevant or unconnected. That the second part is merely a continu the first part is evident from the connecting words ‘and accordingly’. The second part goes furt detention must be deemed to have been made on being satisfied with the remaining good gr may be. Both the parts are joined by the word ‘and’.” Again, in paragraph 49, the Court observed thus:- “49. Now, take a case, where three orders of detention are made against the same person un orders is based upon only one ground which is supplied to the detenu. It is found that the gro two of such orders is either vague or irrelevant. But the ground in support of the third o proximate. In such a case, while the first two orders would be quashed, the third order would the first part (the main part) of Section 5-A seeks to do. Where the order of detention is bas the section creates a legal fiction, viz., it must be deemed that there are as many orders of d which means that each of such orders is an independent order. The result is the same as the us hereinabove. The second part of it is merely clarificatory and explanatory, which is evide with the word ‘accordingly’ – apart form the fact that it is joined to the first part by the word ‘an unable to see how can the section be characterised as inconsistent with Article 22(5). Had the the section consisted only of the second part, one can understand the contention that the sect (5) as interpreted by this Court – this was indeed the situation in K. Yadigiri Reddy v. Commis 1025 as we shall presently indicate. Had the the section consisted only of the second part, one can understand the contention that the sect (5) as interpreted by this Court – this was indeed the situation in K. Yadigiri Reddy v. Commis 1025 as we shall presently indicate. It is difficult to conceive any inconsistency or conflict betw – the main – part of Section 5-A. Parliament is competent to create a legal fiction and it did does not in terms or otherwise prohibit making of more than one order simultaneously against grounds. No decision saying so has been brought to our notice. Be that as it may, we do n competent to say, by creating a legal fiction, that where an order of detention is made on mor deemed that there are as many orders of detention as there are grounds. If this creation of a l no question of any inconsistency between the section and Article 22(5) can arise.” (emphasis s 25. It may be useful to also refer to the dictum of the Apex Court in the case of State of Gu Soni, (1981) 2 SCC 24 , which reads thus:- “What Section 5-A (of the COFEPOSA) provides is that where there are a number of grounds activities of the detenu spreading over a period or periods, each activity is a separate grou grounds is irrelevant, vague or unspecific but the other grounds are clear and specific, then the order of detention.” (emphasis supplied) 26. A priori, we have no hesitation in taking the view that in the facts of this case, the impugn saved by virtue of Section 5-A of the COFEPOSA at least in respect of activities referable to c (1) of the act, which are present both in the Order of Detention as well as the Grounds of D support of the order are relevant, definite and proximate. 27. Relying on the decision of the Karnataka High court in the case of Anwar Abdulla etc., 1992 Cri. L.J. 3616,it was then argued that merely approving the remarks noted by the subord Sponsoring Authority, is a case of non-application of mind by the Detaining Authority o representation. 27. Relying on the decision of the Karnataka High court in the case of Anwar Abdulla etc., 1992 Cri. L.J. 3616,it was then argued that merely approving the remarks noted by the subord Sponsoring Authority, is a case of non-application of mind by the Detaining Authority o representation. In the first place, the opinion recorded by the Karnataka High Court is in the c the case before it, wherein even the grounds were made ready by someone else than the Det was also invited to the decision of the Apex Court in the case of Rajesh Vashdev Adnani vs. S in 2006 All MR (Cri.) 1781 (S.C.).In that case, the Detaining Authority directed obtaining o proposal for detention of the detenu was submitted. She also sought for the statement mad Additional Chief Metropolitan Magistrate. The Detaining Authority further took note o representation made by the detenu on 18th April, 2004. It was also noted that the deten discussions made with three Officers. Further, the order of detention as well as grounds were the Detaining Authority for approval. It was noticed that only small changes were made substituting words “he” by “you”. The change in the proposal and the order of detention being application of mind. The Court accepted the said challenge and found that it was a case of n part of the Detaining Authority. That conclusion reached by the Court was in the fact situation case on hand. There is nothing to indicate that the Grounds of Detention have been formulated Detaining Authority herself. The fact that the Detaining Authority considered the noting m succession, by itself, does not mean that it would be a case of non-application of mind, unless Suffice it to hold that in the present case, it is not possible to take the view that the Detai examine the proposal independently or formulated the grounds for detention on her own. 28. The counsel for the petitioners had then relied on the decision of the Apex Court in Vijay Union of India – (1990) 1 SCC 606 . We fail to understand how this decision will be of any a case, the Court noted that there was variance in the Gurumukhi version of the detention o version. 28. The counsel for the petitioners had then relied on the decision of the Apex Court in Vijay Union of India – (1990) 1 SCC 606 . We fail to understand how this decision will be of any a case, the Court noted that there was variance in the Gurumukhi version of the detention o version. In Gurumukhi version, it was mentioned that it had become necessary with a view t smuggling goods and from abetting the smuggling of goods – activities prescribed in clauses COFEPOSA. But in grounds of detention, the satisfaction recorded by the Detaining Authority the detenu from concealing, transporting smuggled goods as well as dealing in smuggled go clauses (iii) and (iv) of Section 3(1). More or less, similar is the factual position found in the ca State of Maharashtra – 2001 All MR (Cri) 1163. In that case, the detenu was sought to be det from abetting the smuggling of goods, whereas the grounds of detention mentioned reason future from smuggling of goods. Reliance was placed on another decision of the Apex Court in Chavla vs. Union of India & Ors. Reported in (1999) 6 SCC 210 .Once again, the Court interfer the finding that the satisfaction arrived at by the Detaining Authority cannot be said to be rea found that there was hardly any reason for the detenu to collude with the firm which was dis kerosene to those not entitled to it and was thus indulging in black marketing of blue-colou above mentioned decisions, the question whether the order of detention was and could be s and proximate ground by virtue of Section 5A of the Act was put in issue. 29. That takes us to the next argument that the continued detention of the respective dete unconstitutional on account of delay in deciding the representation by the State Governm Authority. The relevant dates for considering this submission are common to first two cases Waghmare. In the petition filed by Detenu Jadhav, the representation was submitted by the addressed to the State Government as well as the Detaining Authority. The relevant dates for considering this submission are common to first two cases Waghmare. In the petition filed by Detenu Jadhav, the representation was submitted by the addressed to the State Government as well as the Detaining Authority. The Detainin representation on 7th September, 2011 and the State Government considered it on 5th Septe common ground that the representation dated 8th August, 2011 was received on 9th Aug record, which was produced before us, it is noticed that, on receipt of the said representa remarks of the Sponsoring Authority were invited vide letter dated 11th August, 2011. The sa post, which was received in the Office of the Sponsoring Authority on 16th August, 2011 concerned officer was busy in the High Court in connection with criminal writ petition filed b comments were prepared on 18th and 19th August, 2011. 20th August, 2011, being Saturd Sunday and 22nd August, 2011, being a public holiday, the file was put up for discussio comments before the Joint Commissioner on 23rd August, 2011. The final para-wis Commissioner was despatched on 24th August, 2011. A copy was sent to Mantralaya on 25th received in Mantralaya on 26th August, 2011. 27th and 28th August, 2011 were holidays. O heavy rains, the transport system in the city was totally paralysed, as a result of which, the office. On 30th August, 2011, the representation was submitted along with the para-wise com the Detaining Authority as well as the Appropriate Authority of the State Government. September, 2011, being holidays, the representation could not be processed by the concerned 2011, the Under Secretary processed the file and made his endorsement. 4th September, 201 accordingly put up before the Deputy Secretary, who made his endorsement and signed it on same day, the file was placed before the Additional Chief Secretary, being the Approp Government, who considered the representation and rejected the same. The representation the Detaining Authority on 7th September, 2011 and came to be rejected. Both the Offices o the Appropriate Authority of the State Government informed the detenu about the reject communication dated 7th September, 2011. 30. In the reply-affidavit filed on 13th September, 2011 by the Detaining Authority before this reason, it has been mentioned that the representation was undecided till then. Both the Offices o the Appropriate Authority of the State Government informed the detenu about the reject communication dated 7th September, 2011. 30. In the reply-affidavit filed on 13th September, 2011 by the Detaining Authority before this reason, it has been mentioned that the representation was undecided till then. This anoma respondents by pointing out that the para-wise comments to the writ petition were forwarded the Office of the Public Prosecutor before 7th September, 2011, i.e., on 17th August, 2011. O wise comments, the draftsman of the reply-affidavit mentioned the said fact in the said affidav while affirming the affidavit on 13th September, 2011, simply glossed over this factual error w affidavit. The explanation is plausible one. We cannot attach much importance to this anomal receipt of representation in Mantralaya on 9th August, 2011, the same was processed contin the representation remained unattended in any office at any stage. 31. Indeed, the petitioners may be justified in pointing out that, upon receipt of representa Mantralaya, it should have been placed before the concerned Authority of the State Go Authority, respectively, on the same day or soon thereafter. Instead, the office in Mantralaya the Sponsoring Authority, in the first place, on its own, without insistence by the Appro Government or the Detaining Authority in that behalf. This argument is completely obli Government offices. Even though the final decision to be taken on the representation is that the Appropriate Authority of the State, the file has to be processed through proper channel. T per the Rules of Business. Such process is intended to have checks and balances in the d more particularly, to abreast the final Authority who is expected to take the decision of all the m No fault can be found with such a procedure. Rather, the same is in abidance with the princip scrutinised by the Court is: Whether the file was continuously moving and was attended indifference and callousness at any one or more stages in the decision-making process? Co from the reply-affidavit as well as from the notings in the original file, it is not possible to take inaction, indifference or callousness at any stage in the consideration of the representation at or the Appropriate Authority of the State Government. The learned A.P.P. has placed relianc Court in the case of Kamarunnissa vs. Union of India & Anr. Co from the reply-affidavit as well as from the notings in the original file, it is not possible to take inaction, indifference or callousness at any stage in the consideration of the representation at or the Appropriate Authority of the State Government. The learned A.P.P. has placed relianc Court in the case of Kamarunnissa vs. Union of India & Anr. reported in (1991) 1 SCC 128 .Ev of the detenu was that his continued detention had become illegal due to inordinate d representation by the Authority. In Para 7 of the decision, after adverting to the relevan file/representation, which is more or less similar to that in the present set of cases. The Cou from the explanation that there was no delay on the part of the Detaining Authority in dealing w detenu. The Court restated the legal position that whether or not the delay, if any, is properl the facts of each case. As noticed earlier, we are satisfied that there is no delay in considera authority concerned. 32. We may, however, notice that the office in Mantralaya, after receipt of the representatio communication to the Sponsoring Authority, inviting its para-wise remarks on the representa 11th August, 2011. That letter was received in the office of the Sponsoring Authority only on appalled to note that the said communication was sent by “ordinary post” to the office of the was situated at a distance of only around 2½ km. from Mantralaya. The office practic despatching all communications by ordinary post is being followed even in cases involving q detenu. We can only deprecate that such practice is being followed even in respect of repres Instead, such communications ought to be sent by hand-delivery or special messenger to t more so when his office was situated only around 2½ km. away from Mantralaya. We hope Home Department, will do the needful for issuance of instructions to all concerned that detenues should be treated as immediate file; and, in addition to exchanging inter-departme the same should be sent by hand-delivery or special messenger to avoid delay, which i guaranteed to detenu under the Constitution. We may, however, observe that the time taken o inter-departmental communication by post will be a just and sufficient explanation by the Autho be faulted for that. 33. We may, however, observe that the time taken o inter-departmental communication by post will be a just and sufficient explanation by the Autho be faulted for that. 33. As a matter of fact, a Bench of this Court - to which one of us was a party (A.M. Kh Shashikant A. Alavane v. State of Maharashtra & Ors., 2001 Cri. L.J. 1503,particularly paragr a decade back, had occasion to make observation in this regard, considering the fact that equanimity upon delays when the liberty of a person is concerned. Indubitably, representatio to be decided with utmost expedition as it cannot brook delay. It has to be taken up for c received and dealt with continuously (unless it is absolutely necessary to wait for some ass until a final decision is taken and communicated to the detenu. 34. The counsel for the petitioners, however, has pressed into service the decision of the Ape Pahwa v. State of U.P. & Ors., AIR 1981 S.C. 1126 .In that case, however, it was found consideration of representation by the Chief Minister was not acceptable. Reliance was also the Apex Court in the case of Harshala Santosh Patil v. State of Maharashtra & Ors., (2006 also, there was unjustified and avoidable delay of five days in consideration of the representati 35. The counsel for the respondents has justly relied on the dictum of the Apex Court in th Thiyyan S/o.Thiyyan Mohammed v. Union of India & Ors., (1990) 3 SCC 15 . In tha representation to the Detaining Authority on September 27, 1998, which was rejected by the S 1, 1998 and by the Central Government on November 2, 1998. The Court, after adverting to the facts of that case, and observed that, from the explanation given by the Authority, it can be was considered almost expeditiously, and there is no “negligence, or callous inaction or avoida 36. We have no manner of doubt that the said principle applies on all fours to the fact situa neither a case of negligence or callous inaction or avoidable red-tapism, as is evident fro notings made in the concerned original file of the Sponsoring Authority and that of the Detai the matter, even this challenge of the petitioners ought to fail. 37. 37. It is trite to note that, if the Authority processes the file expeditiously, the petitioners may, action on the ground that it has resulted in non-application of mind. This is precisely the p Detaining Authority after receipt of resubmitted proposal on 19th July, 2011 proceeded to p 20th July, 2011. We, therefore, fail to understand as to how the petitioners can be heard examination of the representation by the Authority through proper channel, which is a proc matter of redtapism. Time taken in following that procedure cannot be said to be avoid avoidable delay in the present case due to sending the communication to the Sponsoring Au be frowned upon, but it would not be a case of negligence or callousness, or inaction of the Au 38. Taking over all view of the mater, therefore, the challenge on the ground that there has b the representation either by the Appropriate Authority of the State Government or the Detainin be, is devoid of merit. Additional points in the case of detenu Waghmare: 39. That takes us to the additional ground urged in the petition filed in the case of Detenu W petitioner that the said detenu has studied only up to 10th standard in Marathi Medium. knowledge of English Language. However, the impugned order, along with the Grounds of De English Language. Besides, that was not explained to the detenu in Marathi. Thus, the Groun not been communicated to the detenu, and it is, in fact, an infraction of Article 22(5) of t Detaining Authority, in reply-affidavit, with reference to this plea has stated that it went by Authority in the proposal that the detenu knew English Language. The Sponsoring Authority, i merely stated that the plea taken by the petitioner that he had no workable knowledge of E incorrect. The Sponsoring Authority also chose to rely on the affidavit of the Executing Authorit turn, in its reply, has stated that the detenu was served with the Detention Order along with t Compilation on 26th July, 2011. The detenu requested to hand over all the documents and com viz., the present petitioner, i.e., Vikram Vithal Borhade. Accordingly, the documents were petitioner. 40. The Sponsoring Authority, pursuant to the liberty given by this Court, in the further affida has explained the stand taken by it in its earlier affidavit that the plea under consideration take incorrect. The detenu requested to hand over all the documents and com viz., the present petitioner, i.e., Vikram Vithal Borhade. Accordingly, the documents were petitioner. 40. The Sponsoring Authority, pursuant to the liberty given by this Court, in the further affida has explained the stand taken by it in its earlier affidavit that the plea under consideration take incorrect. In the further affidavit filed by the Sponsoring Authority, it is stated that the off Authority shows that the detenu has knowledge of English Language. The detenu has st Marathi Medium. The Sponsoring Authority has then, on affidavit, stated that the circumstan would clearly go to show that the detenu has knowledge of English Language. To wit, when summons dated 11th November, 2010 by his letter dated 17th November, 2010, he asked for s The said reply letter is in English and is duly signed by the detenu in English. Similarly, anoth detenu under his own signature to the Commissioner of Customs (Preventive) dated 22nd English. The Sponsoring Authority has also produced another communication sent by the det signature dated 25th November, 2010 addressed to the Commissioner of Customs (Preven are relying on the representation against the Order of Detention filed by him through jail in Eng 41. In the first place, the factual position stated in the further affidavit has remained uncontro petitioner that he has had no workable knowledge of English is a disputed question of fact. It i the respondents have produced contemporaneous documentary evidence which certainly sug had sent those letters in English under his signature in English. The counsel for the petition persuade us to take the view that the detenu has no knowledge of English, but had merely si someone else presumably his Advocate. She submits that, as regards the last document rel viz., representation made by the detenu under his signature sent through jail against the Dete Authority, the same was, in fact, prepared by her and was sent to the Superintendent of Pr dated 6th August, 2011 (as produced before the Court). Even if we accept this explanation, it d to how the detenu had sent other correspondence in English to the Commissioner of Custom the summons on different dates. Even if we accept this explanation, it d to how the detenu had sent other correspondence in English to the Commissioner of Custom the summons on different dates. The learned Advocate for the detenu wants the Court to assu though issued in the name of detenu in English and initialled by him in English, were prepar possible to assume that fact sans any tangible explanation as to who had helped the d Therefore, it is not possible to countenance the said submission made across the Bar, esp officers of the respondents, on affidavit, have stated that the file pertaining to the detenu in Authority shows that the detenu is having workable knowledge of English Language having albeit in Marathi Medium. That is a plausible plea. For, it is common knowledge that even in M State of Maharashtra, English Subject is taught as a compulsory subject from 1st standard si from 5th standard. It is one thing to say that the detenu is not conversant with English Langu has no workable knowledge of that language. Considering the above, the said petitioner has detenu has no workable knowledge of English Language. 42. The counsel for the petitioner, however, relied on the decision in the case of Smt. Raziya & Ors., AIR 1980 S.C. 1751 .The only point argued in that case was that the detenu was serv in English Language, which she did not know or understood and no translated script was su have also relied on the decision of the Apex Court in the case of Nainmal Pertap Mal Sh reported in AIR 1980 SC 2129 .The ground urged by the detenu in that case was that the grou the detenu were in English language. He was not conversant with the said language. That ch respondents on the assertion that the grounds were explained to the detenu by the Prison Au negated that plea as in the affidavit the name of the Authority concerned or his designation affidavit of the person who explained the contents of the grounds to the detenu was filed. Authorities that the detenu had signed number of documents in English and for which, it ma English, came to be rejected being founded on pure speculation. Authorities that the detenu had signed number of documents in English and for which, it ma English, came to be rejected being founded on pure speculation. In the present case, howeve the record in the office of the Sponsoring Authority indicates that the detenu was conversant have also relied on documentary evidence to substantiate that in the past the detenu had ente own name with the concerned Authorities in English under his own signature which was als detenu has studied up to 10th standard. No rejoinder is filed by the detenu to deny the fact as to explain the circumstances in which he had sent the stated communications in English. It is on number of documents in English by the detenu. Further, the fact asserted by the responde order and grounds of detention were sought to be served on the detenu, he asked to hand it herein who was present at the spot. That factual position asserted by the respondents has uncontrovertd. Further, the petitioner does not say that he is not conversant with English l understand the contents of the said documents when the same were handed over to him or th whatsoever to explain it to the detenu at the same time. Suffice it to observe that the pe substantiate the fact that the grounds of detention were not communicated to the detenu so 20th July, 2011 or that he was unable to understand the contents of the order of detention an in English and was, thus, denied opportunity to make representation at the earliest. As a matte and comprehensive representation was made by the detenu as early as on 8th August, 2011 made without any loss of time, which was obviously prepared by the detenu’s advocate on the him or his relatives. Accordingly, the ground of challenge under consideration is devoid of mer 43. The other contention at the instance of Detenu Waghmare is that no material was placed to show that the I.E. Code was arranged by the detenu. On the contrary, the I.E. Code shows by Naeemuddin Saiyed on or about 10th December, 2009 – much before the said Naeemud the detenu by Asif Sidiqui. Similarly, no material was placed before the Detaining Authority, f the detenu had arranged transport of the goods to be exported from Surat to Mumbai and warehouse. On the contrary, the I.E. Code shows by Naeemuddin Saiyed on or about 10th December, 2009 – much before the said Naeemud the detenu by Asif Sidiqui. Similarly, no material was placed before the Detaining Authority, f the detenu had arranged transport of the goods to be exported from Surat to Mumbai and warehouse. On this ground alone, the Detention Order is vitiated and suffers from non-applic though attractive at the first blush, will have to be stated to be rejected. 44. This plea has been countered by the respondents. The reply-affidavit of the Detaining Aut stated in the grounds is noticed from the statement of Saiyed J. Naeemuddin, the exporter, re the Customs Act, 1962 on 3rd December, 2010. He had told Detenu Waghmare to get the I.E his further statement dated 1st December, 2010, has stated that Detenu Waghmare arranged from Surat to Mumbai and further to Shed No. 3 of DNode, JNPT. That fact was corrobora Ahmed Kapadia, another accused in the case, in his statement under Section 108 of the Authority has referred to other material such as statements of Detenu Dhakne dated 1st Dece dated 8th February, 2011 and 11th February, 2011 and 31st March, 2011 to counter the sug placed before the Detaining Authority, from which, it can be said that the detenu had arranged be exported from Surat to Mumbai and kept the said goods at a warehouse. 45. Suffice it to observe that the fact that I.E. Code was not placed before the Detaining Auth documents cannot be the basis to assume that the Detaining Authority could not have arrived as recorded by her on the basis of the material already produced before her, which would go involved in the crime and had propensity to indulge in prejudicial activities in future – consider from the material on record. The Detaining Authority has explained that position in the repl similar argument is made at the instance of Detenu Dhakne. We shall elaborate the leg contention a little later. For the same reasons, the argument under consideration will have to non-existent or not relevant ground. 46. As no other ground is urged in Criminal Writ Petition Nos. 2332 and 2333 of 2011, re referred to above, both these petitions ought to fail. Re : Additional grounds in the case of the detenu Dhakne: 47. For the same reasons, the argument under consideration will have to non-existent or not relevant ground. 46. As no other ground is urged in Criminal Writ Petition Nos. 2332 and 2333 of 2011, re referred to above, both these petitions ought to fail. Re : Additional grounds in the case of the detenu Dhakne: 47. That takes us to the additional ground taken in the third petition. According to Detenu D Customs had suspended the C.H.A. Licence of the detenu’s Company on or about 22nd Marc suspension order was also sent to the Sponsoring Authority. However, the Sponsoring Authori of suspending C.H.A. Licence of the detenu’s Company before the Detaining Authority. Detaining Authority to have considered the said vital document before arriving at her subjec Detaining Authority ought to have furnished copy of the said vital document to the deten Detention, and in absence of the said document, has arrived at the subjective satisfaction w unreal. It is a case of non-application of mind on the part of the Detaining Authority. This grie (iv) of the petition. 48. The Detaining Authority, in the reply-affidavit dated 27th September, 2011, has count following words:- “6. With reference to para 5(iv) (of the petition), I say that the Petitioner’s claim is not tenable CHA licence of the detenu. The suspension order annexed as Annexure ‘D’ to the petition spe for suspension of the detenu’s CHA licence, wherein all his statements and the statements Jadhav recorded under section 108 of the Customs Act, 1962 wherein they had confessed ab were considered by the authorities for the suspension of the CHA licence. All the said statem Hence the argument that copy of the said suspension order was not placed before me doe cancellation of CHA licence of the detenu is not the criteria or parameter for his on indulge future. It is merely one of the remedial measures taken for stopping the future participation of Further the detention of the detenu under COFEPOSA ACT, 1974, is preventive measure on indulging in smuggling activities. It is the irresponsible attitude of the detenu who as a bo obligations as mentioned in the Customs House Agents Regulations, 2004, which the detenu h it cannot be said that the detention order is malafide and null and void.” 49. It is the irresponsible attitude of the detenu who as a bo obligations as mentioned in the Customs House Agents Regulations, 2004, which the detenu h it cannot be said that the detention order is malafide and null and void.” 49. The Sponsoring Authority, while dealing with the said contention, has stated thus:- “The detaining authority on the material facts available on record and after satisfying h presentation as clearly stated in the grounds of detention, communicated to the detenu, a decision that the detenu should be detained under the provisions of the COFEPOSA Act. tenable regarding the suspension of CHA licence of the detenu. The suspension order ann petition, specifically mentions the grounds for suspension of the detenu’s CHA Licence, wher statements of his employee Shri. Bala B. Jadhav recorded under Section 108 of the Custom confessed about fraud committed by them were considered by the authorities for the suspens said statements were placed before the detaining authority. Hence the argument that copy was not placed before the detaining authority does not hold good. Further the cancellation of not the criteria for parameter for non indulgence in smuggling activities in future. It is merely o taken for stopping the future participation of the detenu in similar matters. Further the de COFEPOSA Act, 1974, is preventive measure only to prevent the detenu from indulging in irresponsible attitude of the detenu who as a bonafide CHA is bound by the obligations as men Agents Regulations, 2004, which the detenu has failed to do. Hence it cannot be said tha considered piecemeal the documents placed before her. Therefore, it cannot be said that th Order (is) malafide, ab-initio, null and void.” 50. In the first place, the fact that the C.H.A. Licence of the detenu’s Company has been susp doubt the subjective satisfaction reached by the Detaining Authority, in the fact situation of the may indulge in similar prejudicial activities in future and to prevent him from doing so, it was subjective satisfaction has been recorded in the backdrop that the acts or omission resu outcome of the activity undertaken in an organised manner in which the detenu was associat activity, merely because the CHA licence of the detenu’s Company has been suspended m prevent the detenu from indulging in the same prejudicial activities successively by taking help in smuggling, whose identity was not being disclosed by the detenu. 51. 51. We are in complete agreement with the stand taken by the respondents that the action of measure to prevent the detenu from indulging in prejudicial activities in future. The fact that th was not placed before the Detaining Authority or, for that matter, supplied to the detenu Detention, in our opinion, does not take the matter any further. Indubitably, the justness of the Detaining Authority ought to be tested on the basis of the material placed before her. That sub doubted on account of non inclusion of order suspending C.H.A. Licence of detenu’s Company observation of the Apex Court in the case of Gimik Piotr(supra).In that case, the passpor impounded when order of detention was passed against him under Section 3(1) (i) of Act. In th behalf of the detenu that the Detaining Authority having failed to examine the issue as to whet to continue his prejudicial activities of smuggling goods, and it was not open to the Detaining A detenu would continue to indulge in the prejudicial activities even in absence of a passport. I on the above decision is inapposite to the fact situation of the present case. In this case, as found to be involved in commission of prejudicial activities in an organised manner along with smuggling goods. Obviously, the subjective satisfaction recorded by the Detaining Authority placed before her that the detenu was involved in the commission of prejudicial activities prejudicial activities by taking help of others who were involved in smuggling, whose identity h opinion, the principle stated in Abdul Sathar Ibrahim Manik v. Union of India and others repor usefully pressed into service to the fact situation of the present case. The learned A.P.P. has decision of the Apex Court in the case of Madan Lal Anand vs. Union of India & Ors. Rep particular, paragraphs 27 and 28 thereof. The argument of the detenu was that the Detaining referred to the confessional statement of the detenu as recorded by the Collector under Sectio the grounds of detention, the retraction made by detenu was not placed before the Detaining A If that document was to be considered, the subjective satisfaction of the Detaining Authority the detenu and against making an order of detention. Notably, the Court proceeded to hold t any retraction made should also be placed before the Detaining Authority. Notably, the Court proceeded to hold t any retraction made should also be placed before the Detaining Authority. But, that does retraction is not placed before the Detaining Authority, the order of detention would beco restating the said legal position placed reliance on the decision of the Apex Court in the case o Commissioner and Secretary, Government of Kerala reported in (1985) Suppl.SCC 144.Furth of that case, the Court opined that the order of detention was saved by virtue of Section 5A o discussion in Paragraph 29 thereof. 52. Even the other argument of detenu Dhakne that there was no material on record to ev detenu had indulged in any prejudicial activities even after the suspension of licence and, f Authority could not have reached the subjective satisfaction that preventive detention was im countenance this submission. The Detaining Authority, in the present case, has consider accused recorded under Section 108 of the Customs Act, as also other material which indica was conducted in organised manner and Detenu Dhakne was part of that larger conspiracy, such offences in future. For committing such organised prejudicial activity, existence or non-be no impediment if the person has other means and resources to continue the activities tangible reason to doubt the subjective satisfaction of the Detaining Authority that the detenu the prejudicial activities in future. 53. The other additional ground on behalf of Detenu Dhakne is about the delay in deciding re Authority and the State Government. This argument is canvassed on the basis of the dates m filed by the Detaining Authority and the Deputy Secretary of the State Government. In parag the Detaining Authority, it is stated as follows:- “3. I say that as the Detaining Authority I expeditiously considered the representation of the de 08-2011. The said representation was received in my office on 24-08-2011 late in the evenin 26-08-2011 the para-wise comments were called from the Sponsoring Authority. This letter through ordinary post to the Sponsoring Authority. I say that on 23-09-2011 the para-wise co office. The concerned Assistant submitted the file to the Under Secretary on 26-09-2011. I s there were holidays on 24-09-2011 and 25-09-2011.” 54. In paragraph 5 of the reply-affidavit filed by the Deputy Secretary of the State Government “5. This letter through ordinary post to the Sponsoring Authority. I say that on 23-09-2011 the para-wise co office. The concerned Assistant submitted the file to the Under Secretary on 26-09-2011. I s there were holidays on 24-09-2011 and 25-09-2011.” 54. In paragraph 5 of the reply-affidavit filed by the Deputy Secretary of the State Government “5. I say that the representation dated 23-08-2011 was received in the office on 24-08-2011 la by letter dated 26-08-2011 the para-wise comments were called from the Sponsoring Autho 2011 was sent through ordinary post to the Sponsoring Authority. I say that on 23-09-2011 t received in the office. The concerned Assistant submitted the file to the Under Secretary on the said period there were holidays on 24-09-2011 and 25-09-2011.” 55. According to Detenu Dhakne, it is a clear case of unexplained delay in deciding the repr similar grievance in the case of other two petitioners, we not only placed reliance on th respondents but also various notings made in the original record produced before us. In addit the two reply-affidavits filed on behalf of the respondents, it may be useful to refer to the no Department. The representation was made by Detenu Dhakne dated 23rd August, 2011. The deciding representation is essentially in respect of period between 26th August, 2011 till representation was received in office in Mantralaya on 26th August, 2011. Para-wise comme the Sponsoring Authority. That communication was sent to the Sponsoring Authority on 26th comments were received from the Sponsoring Authority on 23rd September, 2011. The othe during the intervening period, can be culled out from the notings on the file, can be stated as u 56. The representation was received in the Office of the Joint Commissioner on 2nd Septem dealt with the same argument that the officers from Mantralaya should not have sent comm Authority, inviting his para-wise comments by “ordinary post”. For the same reason, th respondents for the time between 26th August, 2011 till 2nd September, 2011 will have to b that 3rd and 4th September, 2011 were holidays. The representation was then received in September, 2011. The para-wise comments-preparation was done between 6th and 7th Se then put up before the Joint Commissioner for approval on 8th September, 2011. The discuss on 9th September, 2011. Once again, 10th and 11th September, 2011 were holidays. The representation was then received in September, 2011. The para-wise comments-preparation was done between 6th and 7th Se then put up before the Joint Commissioner for approval on 8th September, 2011. The discuss on 9th September, 2011. Once again, 10th and 11th September, 2011 were holidays. The d 12th September, 2011 and the final para-wise comments were approved and signed by the September, 2011. The para-wise comments were received on 14th September, 2011 and the the representation on 27th September, 2011. The explanation as to why the representat Detaining Authority soon after its receipt on 14th September, 2011 has been offered. representation dated 23rd August, 2011, the detenu had sent second representation on 8th Se representation was still being processed. That was received on 12th September, 2011. Th called in respect of that representation from the Sponsoring Authority on 13th September, 20 on the second representation were received in the office of the Detaining Authority on 23rd Se September, 2011 were public holidays, being fourth Saturday and Sunday, respectively. T endorsement by the Assistant were submitted before the Under Secretary on 26th Sept Authority eventually considered both the representations on 27th September, 2011 and im decision to the detenu. 57. It is, thus, noticed that the first representation was kept pending in the office of the Detain 23rd September, 2011, as the para-wise comments of the Sponsoring Authority on the sec awaited. The Detaining Authority cannot be blamed for that situation, as it could not have de the same detenu in piecemeal manner. The fact that the detenu chose to make successive Authority does not mean that each representation should have proceeded independently. It Authority - in particular, the Detaining Authority – to consider both the representations togeth thereon. If at all, it is the detenu who should be blamed for making successive representation take advantage of his own wrong, and claim that his continued detention was illegal and unco in deciding his first representation. As regards the processing of second representation, there has been done with utmost expedition and the final decision is taken by the Detaining Autho after processing the file through proper channel. As regards the first representation, there is case of inaction or callousness till 14th September, 2011. As regards the processing of second representation, there has been done with utmost expedition and the final decision is taken by the Detaining Autho after processing the file through proper channel. As regards the first representation, there is case of inaction or callousness till 14th September, 2011. Thereafter, the Detaining Auth representation pending for being decided together with the second representation made by case of the first representation having remained unattended between 14th till 23rd Septembe as such. The first representation was required to be kept aside to be decided along with the the parawise comments thereon were received from the Sponsoring Authority. As soon as th received from the Sponsoring Authority on 23rd September, 2011, the same was processed office of the Detaining Authority and final decision thereon was taken on 27th September, 201 matter, therefore, it is not a case of delay in deciding representation by the Detaining A contended. 58. Since no other ground has been urged in the petition filed on behalf of Detenu Dhakne, being devoid of merits. 59. Accordingly, all the three petitions are dismissed. 60. The original records of the Sponsoring Authority as well as the Detaining Authority in all t the Public Prosecutor forthwith.