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2012 DIGILAW 824 (BOM)

Anju Madan Lalwani v. Detaining Authority

2012-04-19

P.D.KODE, V.M.KANADE

body2012
JUDGMENT V.M. Kanade, J. 1. By this Petition filed under Article 226 of the Constitution of India, Petitioner, who is a wife of Madan Vishindas Lalwani, is challenging the order of detention bearing No.PSA – 1211/CR – 21(5)/ SPL – 3(A) dated 23rd January, 2012 passed by the Detaining Authority. 2. Rule was granted on 07/03/2012 and it was made returnable after six weeks. Respondents were directed to file affidavit-in-reply before the next date. A direction was also given that copy of the reply should be served atleast one week in advance. Petitioner was also directed to serve copy of the Petition upon the Union of India. No application for interim relief was made by the learned Counsel for the Petitioner and, as such, consideration of grant of interim relief did not arise. Petitioner preferred an SLP in the Apex Court. The Apex Court dismissed the SLP. However, the Apex Court requested this Court to decide the Petition on the returnable date ie on 18/4/2012. In view of the directions given by the Apex Court, the matter was fixed for hearing on 18/04/2012. 3. We have heard the learned Counsel appearing on behalf of the Petitioner, the learned Counsel appearing on behalf of the Detaining Authority and the learned Counsel appearing on behalf of Sponsoring Authority. 4. Petitioner's husband – Madan Vishindas Lalwani (hereinafter referred to as “detenu”) was employed by Custom House Agent viz. M/s M. Dharamdas & Co. which was carrying the business of clearing and forwarding goods. It was submitted that non-placement of and consequent nonconsideration of vital documents had affected the subjective satisfaction of the Detaining Authority, which had vitiated the said detention order. It was submitted that following documents were not supplied viz :- (A) Two show cause notices bearing Nos. (i) F.No. DRI/MZU/B/Inv-02/2010-2011/11511 dated 13th December, 2011 & (ii) F.No.DRI/MZU/D/Inv.06/Express/2010-2011 dated 9th January, 2012. (B) Reply of the detenu dated 11/01/2012 denying the allegations levelled in the show-cause notice dated 13/12/2011 (C) detenu's reply to the show-cause notice dated 9/12/2011 containing defence of the detenu. (D) Communication dated 4/5/2011 addressed to the Customs Authorities by the Customs House Agent – employer of the Petitioner for cancellation of CHA pass of the detenu. It was submitted that each of the above vital documents was not placed before the Detaining Authority which had resulted in vitiating the order of detention. (D) Communication dated 4/5/2011 addressed to the Customs Authorities by the Customs House Agent – employer of the Petitioner for cancellation of CHA pass of the detenu. It was submitted that each of the above vital documents was not placed before the Detaining Authority which had resulted in vitiating the order of detention. It was submitted that whether Detaining Authority might have arrived at the same conclusion or not is in the realm of subjective satisfaction which was not to be speculated by the Court as per the settled law. Reliance was placed on the judgment of the Apex Court in Union of India vs. Ranu Bhandari (2008) 17 SCC 348 ). 5. Affidavit-in-reply has been filed by the Detaining Authority dated 18/4/2011 and on behalf of Sponsoring Authority dated 16/4/2012, copies of which have been served on the Petitioner. Our attention was invited to the show ‘cause notice dated’ 13/12/2011 issued to M/s Avi Trexim Pvt. Ltd., which is at serial No.61 of the compilation of documents which were placed before the Detaining Authority. It was submitted that the show-cause notice was dated 13/12/2011 and, in the said show-cause notice, it was mentioned that the reply had to be given within a period of 30 days. Accordingly, a detailed reply dated 11/1/2012 was given by the detenu and, in the said reply, interalia, it was stated that all the statements which were made by the detenu were retracted. It was stated that these statements were pre-typed and not given to detenu to read and understand what is stated therein and he was forcibly made to sign these statements. It was further stated that Officers of DRI issued another show-cause notice dated 9/12/2011. However, along with the first show cause notice only relevant extracts of the detenu's statements which were recorded were given & not the complete statements. It was submitted that this document was issued by the Sponsoring Authority & direction was given to the detenu to give reply to the adjudicating authority viz. Commissioner of Customs (Imports). However, along with the first show cause notice only relevant extracts of the detenu's statements which were recorded were given & not the complete statements. It was submitted that this document was issued by the Sponsoring Authority & direction was given to the detenu to give reply to the adjudicating authority viz. Commissioner of Customs (Imports). It was submitted that the Sponsoring Authority was aware that the reply was to be given to the adjudicating authority and, after having relied on the show cause notice which was a part of the compilation which was supplied to the Detaining Authority, the Sponsoring Authority ought to have given a copy of the reply given by the detenu to the show-cause notice dated 11/1/2012 and, therefore, there was failure on the part of the Sponsoring Authority to provide the said relevant vital document to the Detaining Authority. It was submitted that in the reply given by the Sponsoring Authority, what has been stated is that the reply to the show-cause notice was to be given to the adjudicating authority and the said proceedings were separate & distinct and the Sponsoring Authority, therefore, had no knowledge about the reply which was given, which cannot be accepted. It was further submitted that in the reply it was further stated that the document was addressed to the adjudicating authority and, therefore, the said document was not relevant. Detaining Authority in its affidavit has stated that the said document was not relied upon and was not material and, therefore, the order was not vitiated on that ground. 6. The learned Counsel for Respondents had taken us through the affidavit-in-reply of the Detaining Authority & the Sponsoring Authority and submitted that the said document was not a vital document. Secondly, it was not relied upon and, thirdly, that the said reply was given by the detenu in adjudication proceedings and, therefore, non supply of the same to the Detaining Authority could not have affected the subjective satisfaction of the Detaining Authority. It was further submitted that the documents & the retracted statements of the detenu were not relevant. In support of the said submissions, reliance was placed on the following judgments:- (1) Madan Lal Anand vs. Union of India( 1990(45) ELT 204 SC) (Para 18 to 26) (2) D. Anuradha vs. Joint Secretary & Anr. It was further submitted that the documents & the retracted statements of the detenu were not relevant. In support of the said submissions, reliance was placed on the following judgments:- (1) Madan Lal Anand vs. Union of India( 1990(45) ELT 204 SC) (Para 18 to 26) (2) D. Anuradha vs. Joint Secretary & Anr. (2006) 5 SCC 142 ) (Paras 22 to 24) (3) Issac Babu vs. Union of India & Ors (1990) 4 SCC 135 ) (Para 2) (4) LMS Ummu Saleema vs. B.B. Gujaral & Anr. ( AIR 1981 SC 1191 ) (Para 5) (5) Smt. Sharifa Abubaker Zariwala vs. The Union of India & Ors(1997 AllMR(Cri) 528) (Paras 13 to 16) (6) Shri Rashid Kapadia vs. Medha Gadgil & Ors6 Criminal Writ Petition No.3253/2011 decided by judgment dated 4/1/2012 (7) Union of India vs. Ranu Bhandari (2008) 17 SCC 348 (8) Kurjibhai Dhanjibhai Patel vs. State of Gujarat(1985(1) Scale 136) (Para 7) (9) Sunil Longiya vs. Union of India and Ors(1992 Crimes (3) 825) (10) Smt. Zarina Nafees Hyder Rizvi vs. State of Maharashtra (1999 Cri.L.J. 434) (11) Smt. Pallavi Vinod Patni vs. State of Maharashtra and Ors (2001 Cri.L.J. 3197) 7. We have heard the learned Counsel for the Petitioner, the learned Counsel for Detaining Authority and Sponsoring Authority at length. 8. It is an admitted position that the Sponsoring Authority had issued the show-cause notice dated 13/12/2011 to the detenu and had directed the detenu to give reply to the Commissioner of Customs (Imports). It is an admitted position that the adjudicating authority itself is a sponsoring authority and, as such, was aware of the show-cause notice which was issued. It is also a matter of record that the reply was given by the detenu within 30 days from the date of the show-cause notice and it was served on the adjudicating authority on 11/01/2012. The documents, however, which were supplied to the Detaining Authority on 23/01/2012 contained the document viz show-cause notice dated 13/12/2011 which is at serial No.61 of the compilation of documents supplied to the Detaining Authority. However, admittedly, the reply which was given to the adjudicating authority to this show-cause notice did not form part of the documents which were placed before the Detaining Authority. However, admittedly, the reply which was given to the adjudicating authority to this show-cause notice did not form part of the documents which were placed before the Detaining Authority. In our view, reply to the show-cause notice was a vital document since it contained the explanation given by the detenu to the show cause notice and in the said reply it was also stated that the earlier statements of the Petitioner which were taken under section 108 had been retracted by him. In our view, by not placing this vital document before the Detaining Authority, subjective satisfaction which was arrived at by the Detaining Authority stands vitiated on account of non-supply of material and vital document by the Sponsoring Authority. Reply given by the Detaining Authority that this document was not considered or not material, therefore, cannot be accepted. Similarly, the explanation given by the Sponsoring Authority that the show-cause notice issued by the Sponsoring Authority merely mentions that the reply was to be given to Commissioner of Customs (Imports) and, therefore, it was not aware of the reply cannot be accepted since the Sponsoring Authority itself had issued the show-cause notice and, therefore, it was the duty of the Sponsoring Authority to have procured the said reply and this document ought to have been supplied to the Detaining Authority. This not having been done, the order of detention stands vitiated. 9. In two cases, this Court in respect of identical situation has held that such a document is a vital document and non-furnishing reply given to the show-cause notice had vitiated the order of detention. In Smt. Zarina Nafees Hyder Rizvi vs. State of Maharashtra(1999 Cri.L.J. 434) the facts were identical. In the said case also, the show-cause notice dated 5/9/1997 was issued by the Sponsoring Authority to the detenu and he had given reply on 27/10/1997 but only the show-cause notice was placed by the Sponsoring Authority before the Detaining Authority and the reply of the detenu to the said notice was not placed by it before the Detaining Authority. The facts, therefore, in the said case are identical to the facts of the present case. The facts, therefore, in the said case are identical to the facts of the present case. In the said case also, in the reply which was filed, it was stated that since the detenu had forwarded the reply to the show cause notice dated 5/9/1997 to the Commissioner of Customs (Airport) who is an independent adjudicating authority and had not forwarded a copy of the same to the Sponsoring Authority, the Sponsoring Authority was not aware of the detenu's reply and consequently could not forward the same to the Detaining Authority. In this context the Division Bench of this Court in paras 6, 6A and 7 of its judgment has observed as under:- “6. We have examined the averments contained in ground 4(x) of the petition and the reply furnished to it in the two returns mentioned above. We are constrained to observe that we do not find any merit in the averments contained in the two returns filed on behalf of the respondents. We have no compunction in observing that the averment in para 2 of the return of Shri V.V. Sarma to the effect that since the detenu's reply to the show cause notice dated 5-9-1997 was forwarded to the Commissioner of Customs (Airport) and he had not forwarded a copy of the same to the sponsoring authority, the sponsoring authority was not aware of it & did not forward the same to the detaining authority is unworthy of acceptance. In this respect, it would be necessary to advert to the notice dated 5-9-1997 which is at pages 318 to 328 of the compilation. Its perusal shows that not only was it issued by the Commissioner of Customs (Airport), but the reply was to be submitted to the said authority. That being the position and the sponsoring authority having forwarded a copy of the said notice to the detaining authority, it is only fair to presume that the sponsoring authority knew that the detenu would be furnishing his reply to the said authority and consequently it was duty bound to enquire about the detenu's reply to the said notice from the Office of the Commissioner of Customs (Airport), Sahar, Mumbai. And for its failure to do so it must suffer the consequences.” “6(A) It should always be borne in mind that eternal vigilance is the price which the law expects from the sponsoring and detaining authorities, if they want a preventive detention order to be sustained by Courts of law. Their laxity is detenus paradise.” “7. We are not impressed by the averment in para 11 of the return of the detaining authority that the detenu's reply to the show cause notice dated 5-9-1997 was not a vital document. When the averments contained in the said notice are conjunctively examined with the detenu's reply dated 27-10-1997 it becomes crystal clear that his reply was a vital document. …...........” Ratio of the said judgment in Smt. Zarina Nafees Hyder Rizvi(1999 Cri.L.J. 434) (supra), therefore, squarely applies to the facts of the present case. Similarly in SmtPallavi Vinod Patni vs. State of Maharashtra and Others(2001 Cri.L.J. 3197) the Sponsoring Authority placed the show-cause notice dated 30/12/1999 before the Detaining Authority. However, it did not place the reply dated 30/03/2000 submitted by the detenu and it was therefore held that, that vitiated the subjective satisfaction of the Detaining Authority in issuing the detention order. In this context the Division Bench of this Court speaking through R.M. Lodha, J. (as he then was) observed in para 6 and 7 of its judgment as under:- “6. It is very difficult to believe the statement made in the affidavit that the reply to the show cause notice if placed before the authority, there would not have any change in the subjective satisfaction. Since the detaining authority is required to arrive at the subjective satisfaction on the basis of the complete material to find out whether detention of the detenu was necessary to prevent him from further indulging in smuggling, obviously the reply of the detenu to the show cause notice which is of firm denial could have made the difference. In any case what would have been the ultimate outcome is not material, but what is material is the consideration of the complete material by the detaining authority including reply to the show cause notice submitted by the detenu when the show cause notice was placed by the sponsoring authority before the detaining authority. In any case what would have been the ultimate outcome is not material, but what is material is the consideration of the complete material by the detaining authority including reply to the show cause notice submitted by the detenu when the show cause notice was placed by the sponsoring authority before the detaining authority. Post facto consideration of reply to the show cause notice submitted by detenu at the time of filing of affidavit in reply and the assertion that the consideration of reply would not have made difference cannot rectify the grave error occurred due to non-consideration of reply at the time of issuance of detention order. We find support from law laid down by the Apex Court in Kurjibhai Dhanjibhai Patel (supra). In paragraph 6 of the report, the Apex Court held thus : “6. It cannot be disputed that the show cause notice and the detenu's reply thereto, particularly the latter, though these documents formed part of adjudication proceedings constituted the most relevant material which was essential to be placed before the detaining authority before his issuance of the impugned order and admittedly this has not been done. All that has been stated on behalf of the respondent in the counter-affidavit of Shri Agnihotri, Under Secretary to the Government of India, Ministry of Finance dated 11th April, 1985 is that this reply dated 5th March, 1984 was considered by the detaining authority along with the detenu's representation made by him against the detention order. It has further been averred that the said representation of the detenu along with the reply was considered by the Advisory Board and after considering all the facts the Advisory Board had opined that there was sufficient cause for detention. But in our view such post facto consideration of the detenu's reply dated 5th March, 1984 after the impugned detention order had been served upon the detenu cannot fill up the lacuna of non-consideration thereof by the detaining authority before the issuance of the detention order. But in our view such post facto consideration of the detenu's reply dated 5th March, 1984 after the impugned detention order had been served upon the detenu cannot fill up the lacuna of non-consideration thereof by the detaining authority before the issuance of the detention order. The relevant material namely the detenu's reply dated 5th March, 1984 certainly had a bearing and would have influenced the subjective satisfaction of the detaining authority one way or the other before issuing the detention order and such relevant material was not placed by the sponsoring authority before the detaining authority at the appropriate time and this in our view would go to vitiate the subjective satisfaction of the detaining authority.” “ “7. We, therefore, have no hesitation in holding that the subjective satisfaction of the detaining authority is vitiated since the sponsoring authority failed to place before him the reply to the show cause notice submitted by the detenu.” Ratio of the said judgment in SmtPallavi Vinod Patni(2001 Cri.L.J. 3197) (supra) would also apply to the facts of the present case. 10. Perusal of the show-cause notice indicates that the circumstances under which the evasion of duty was made has been mentioned including the statement made by the detenu on 21/10/2010 and further statement which was made on 27/10/2010 and, in the reply, which was given to the show-cause notice, it was specifically stated that the said statements had been retracted. Further, explanation was given. The detenu had replied to the show-cause notice dated 13/12/2011 which was issued in the matter of M/s Avi Trexim Pvt. Ltd and also in the matter of M/s Bajranglal Vijaykumar. In the reply, it was clearly stated that three statements dated 21/10/2010, 27/10/2010 and 2/11/2010 were recorded under duress and they were retracted and it was further stated that only certain extracts of the statements of the detenu and not the complete statements were given along with the 1st show-cause notice and at that time the detenu came to know about gravity of misstatements and distorted facts recorded by the Officers of DRI to suit their investigation and to show undue favours to the owners of M/s M. Dharamdas & Co. It was specifically mentioned in the reply that the detenu had stated that job of importing old and used cranes for M/s Bajranglal Vijay Kumar and for M/s Avi Trexim Pvt. Ltd was assigned to M/s M. Dharamdas & Co. only and not to the detenu and that the detenu was merely acting as an employee of the said firm and was handling only administrative functions as were instructed to him by the managing partner of M/s M. Dharamdas & Co. In our view, therefore, non-supply of this vital document to the Detaining Authority has clearly vitiated the order of detention. Reply given by the Sponsoring Authority is not acceptable at all. Same is the case with the reply given by the Detaining Authority when it had not taken into consideration the said show-cause notice and the contention that even if the reply had been placed before Detaining Authority, it would not have affected its subjective satisfaction also is clearly untenable. The observations made by Division Bench of this Court in SmtPallavi Vinod Patni(2001 Cri.L.J. 31970) (supra) are clearly applicable to the facts of this case. There are several judgments of the Supreme Court also which have been relied upon by the learned Counsel for the Petitioner and the ratio of the said judgments also squarely applies to the facts of the present case. 11. The learned Counsel appearing on behalf of the Detaining Authority has given us a list of judgments on which reliance has been placed. Unfortunately, ratio of the said judgment is clearly not applicable to the facts of the present case. It was submitted that in MadanLal Anand( 1990(45) ELT 204 SC) (supra) also two show cause notices and two orders were not placed before the Detaining Authority and still the order of the Detaining Authority was held to be valid. Unfortunately, ratio of the said judgment is clearly not applicable to the facts of the present case. It was submitted that in MadanLal Anand( 1990(45) ELT 204 SC) (supra) also two show cause notices and two orders were not placed before the Detaining Authority and still the order of the Detaining Authority was held to be valid. This judgment of the Apex Court can be distinguished on facts since in paras 19 and 20 it is observed by the Apex Court that the C.R. No.306 of 1986 and C.R. No.3694 of 1985 were referred to in paras 41, 42 and 43 of the ground of detention and copies of the revision petitions along with annexures were placed before the Detaining Authority and, therefore, the Apex Court in para 20 has clearly observed that the grievance of the detenu that the said abeyance order and the show cause notices were not placed before the Detaining Authority has no factual foundation whatsoever since the copies of the same were annexed to the Petition in C.R. No.3694 of 1985. Similarly, reliance was placed on paras 22 and 24 from the judgment in D. Anuradha (2006) 5 SCC 142 ) (supra). In the said case, contention on behalf of the detenu was that the reply of N.C. Rangesh and several other documents were not placed before the Detaining Authority and, therefore, the subjective satisfaction arrived at by Detaining Authority was incorrect and consequently the detention was illegal. In this context, it has been noted by the Apex Court that in the reply of N.C. Rangesh, he has stated that he is a lawyer in Singapore & that the detenu had taken legal assistance and that he was not obliged to reveal the materials as they were confidential communications. The Apex Court, therefore, held that the statement of R.C. Rangesh was of no consequence and the Sponsoring Authority rightly withheld the same as it was irrelevant. Ratio of the said judgment will not apply to the facts of the present case. In fact, the Apex Court in para 22 of the said judgment has observed as under:- “22. The contention of the appellant is that the reply of N.C. Rangesh and several other documents were not placed before the detaining authority and the satisfaction arrived at by the detaining authority was incorrect & the detention was illegal. In fact, the Apex Court in para 22 of the said judgment has observed as under:- “22. The contention of the appellant is that the reply of N.C. Rangesh and several other documents were not placed before the detaining authority and the satisfaction arrived at by the detaining authority was incorrect & the detention was illegal. It was contended that the sponsoring authority did not place the statements of N.C. Rangesh and another Rajoo which were relevant and vital documents, in passing of the detention order. It may be noted that in the reply of N.C. Rangesh, he has stated that he is a lawyer in Singapore and that the detenu had taken legal assistance and that he was not obliged to reveal the materials as they were confidential communications. Therefore, it is clear that the statement of N.C. Rangesh was of no consequence and the sponsoring authority rightly withheld the same as it was irrelevant. Moreover, the detention order itself is passed on various grounds and even if some materials are not placed before (sic before) the detaining authority, it would only affect one of the grounds stated in the detention order & the detention order by itself is sufficient to stand on its own on the basis of other grounds. The detention as a whole cannot be held to be illegal. If there are severable grounds, the vague nature of one of the grounds would not vitiate the entire detention order.” The Apex Court in para 24 of the said judgment after noting the settled position in law, observed that in the said case statement of Rangesh did not divulge any details which would have in any way affected the decision of the Detaining Authority. In fact, the ratio laid down in the three judgments which have been quoted by the Apex Court in para 22 of its said judgment would squarely apply to the facts of the present case. Similarly, in Issac Babu (1990) 4 SCC 135 ) (supra), the Apex Court has observed that it was not incumbent upon the authorities to wait till the issuance of show-cause notice and the need to issue show-cause notice within six months had nothing to do with the processing of the detention papers. The said judgment has no relevance to the facts of the present case. The said judgment has no relevance to the facts of the present case. Similarly, ratio of the judgment in LMS Ummu Saleema( AIR 1981 SC 1191 ) (supra) also does not apply to the facts of the present case since, in the said case, the question was whether failure to furnish copy of document to which reference is made in the grounds of detention is an infringement under Article 22(5) and is fatal to the order of detention. The said point does not arise in this case. In Smt. Sharifa Abubaker Zariwala (1997 AllMR(Cri) 5280) (supra), so far as ground No.6 is concerned, it was submitted that in the grounds of detention, the Detaining Authority had relied on the statement made by the co-detenu Sajid and it was further urged that the said Sajid had, on 23/6/1995, retracted his statement and that this retraction was neither placed before the Detaining Authority nor was it considered by it. In this context, Division Bench observed that it did not vitiate the order of detention. The facts in the said case are clearly distinguishable and, therefore, no reliance can be placed on the said judgment. Lastly, reliance has been placed by the learned Counsel appearing on behalf of the Respondents on the judgment of the Division Bench of this Court in ShriRashid Kapadia(Criminal Writ Petition No.3253/2011 decided by judgment dated 4/1/2012) (supra) and it was urged that, in the said case also, though copy of the bail application was neither placed before the Detaining Authority nor supplied to the detenu, Division Bench came to the conclusion that this did not vitiate the order of detention. It is not possible to accept the said submission since the said judgment can be distinguished on the facts of the said case. In the said case, though the document was not placed before the Detaining Authority nor copy of the same was supplied to the detenu, the order of bail passed in favour of the detenu was made part of the proposal and was placed before the Detaining Authority which contained the reasons for which the bail was granted to the detenu. Hence, the ratio of the said judgment in ShriRashid Kapadia(Criminal Writ Petition No.3253/2011 decided by judgment dated 4/1/2012) (supra) would not apply to the facts of the present case. Hence, the ratio of the said judgment in ShriRashid Kapadia(Criminal Writ Petition No.3253/2011 decided by judgment dated 4/1/2012) (supra) would not apply to the facts of the present case. In fact, the same Division Bench in its judgment in ShriAmin Mehboob Shaikh(Criminal Writ Petition No.3840/2011 decided by Judgment dated 20/1/2012) (supra) has referred to the said judgment in ShriRashid Kapadia(Criminal Writ Petition No.3253/2011 decided by judgment dated 4/1/2012) (supra) in para 9 and has distinguished the same on facts and, in the said case also, on the very same ground of the bail application or order not being placed before the Detaining Authority nor it being supplied to the detenu, set aside the order of detention. In view of this, Writ Petition will have to be allowed and it is not necessary to refer to the other grounds which are raised by the Petitioner. 12. In the result, Writ Petition is allowed. Rule is made absolute in terms of prayer clause (b).