Research › Search › Judgment

Calcutta High Court · body

2013 DIGILAW 720 (CAL)

Nilu Shroff v. Joint Secretary, Govt. of India

2013-09-24

JAYANTA KUMAR BISWAS, SUBAL BAIDYA

body2013
JUDGMENT : Jayanta Kumar Biswas, J. The petitioner in this WP under Article 226 of the Constitution of India dated August 31, 2013 is questioning a preventive detention order dated July 31, 2013 (WP p.54) issued by the Joint Secretary to the Government of India, Ministry of Finance/ Department of Revenue, Central Economic Intelligence Bureau (CEIB), COFEPOSA Unit. 2. The Joint Secretary passed the order in exercise of powers conferred on him by Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the Act). The Joint Secretary directed that the petitioner's husband (Sri Kapil Shroff) should be detained and kept in custody in the Presidency Correctional Home in Kolkata. 3. Mr. Ghosh appearing for the petitioner has submitted that the detention is illegal, because (i) the preventive detention referring to a seventeen-month old stale incident was ordered in colourable exercise of power; (ii) the detaining authority did not consider all the relevant materials; (iii) the detaining authority did not give with the grounds of detention copies of all the documents he relied on; and (iv) the detaining authority and the secretary concerned of the Government rejected the detenu's representations, after a considerable unexplained delay. 4. Mr. Ghosh has relied on the following authorities. For (i) Pradeep Nilkanth Paturkar v. S. Ramamurthi & Ors., 1993 Supp (2) SCC 61. For (ii) Ahamed Nassar v. State of T. N. & Ors., (1999) 8 SCC 473 For (iii) Shalini Soni & Ors. v. Union of India & Ors., (1980) 4 SCC 544 For (iv) In re : Durga Show & Ors., (1970) 3 SCC 696 Harish Pahwa v. State of U.P. & Ors., (1981) 2 SCC 710 Kundanbhai Dulabhai Shaikh v. Distt. Magistrate, Ahmedabad & Ors., (1996) 3 SCC 194 and Rajammai v. State of T.N. & Anr., (1999) 1 SCC 417 5. Mr. Roy appearing for the first and second respondents has submitted as follows. The WP should be dismissed for non-joinder of the Directorate of Revenue Intelligence ( in short DRI) and false statement in its para.43. The detention order will reveal the live link between the prejudicial activities and the order. The detaining authority has considered all the documents he thought relevant. The detenu was given with the grounds copies of all the relied on documents. The detention order will reveal the live link between the prejudicial activities and the order. The detaining authority has considered all the documents he thought relevant. The detenu was given with the grounds copies of all the relied on documents. The detaining authority and the secretary concerned of the Government disposed of the detenu's representations without any delay. 6. Mr. Roy has relied on the following. Section 3 of the Act. A passage quoted in Subhash Popatlal Dave v. Union of India & Anr., (2012) 7 SCC 533 : Attorney General for India v. Amratlal Prajivandas, (1994) 5 SCC 54 : Union of India & Anr. v. Chaya Ghoshal & Anr., (2006) 1 SCC (Cri) 257: Hemlata Kantilal Shah v. State of Maharashtra & Ors., AIR 1982 SC 8 :Abdu Salam @ Thiyyan v. Union of India & Ors., AIR 1990 SC 1446 : L.M.S. Ummu Saleema v. B.B. Gujarat & Anr., AIR 1981 SC 1191 and Khudiram Das v. State of West Bengal & Ors., AIR 1975 SC 550 7. According to Mr. Roy, the DRI being the sponsoring authority is a necessary party, especially when in several paragraphs of the WP serious allegations have been made against the DRI and its officials. Mr. Ghosh has not invited this Court to decide any issue arising out of the allegations made against the DRI and its officials. 8. We are minded to accept Mr. Ghosh's submission that when the challenge in the WP is the preventive detention order and the detaining authority is a respondent, there is no need to make the DRI a party to the WP. It is also important to note that the expression sponsoring authority coined for convenience is not a statutory authority in connection with the detention order. In our opinion, the WP does not suffer from non-joinder of any necessary party. 9. We do not find any merit in Mr. Roy's submission that in para.43 of the WP the petitioner has made a false statement. Para.43 is quoted below: "43. The detaining authority has referred to the representation made by him but expressed no opinion in the matter which would mean a total non-application of mind. The representation remains unconsidered. There is no whisper in the ground of detention as to whether the said representation dated 20th September, 2012 was considered by the detaining authority." 10. The case in para. The detaining authority has referred to the representation made by him but expressed no opinion in the matter which would mean a total non-application of mind. The representation remains unconsidered. There is no whisper in the ground of detention as to whether the said representation dated 20th September, 2012 was considered by the detaining authority." 10. The case in para. 43 is that the detaining authority, though referred to the representation, did not express any opinion; and according to the petitioner this amounted to non-application of mind. This is merely the perception of the petitioner who understood the order of the detaining authority according to her wisdom. This by no stretch of imagination can be said to be a false statement by the petitioner. Needless to say that a false statement, if actually made, is sufficient to dismiss a WP. 11. The DRI received intelligence that one Space Matrix Ltd., a special economic zone unit, grossly mis-declared quantity and value of its exports. The DRI officials opened five containers at Netaji Subhash Dock in Kolkata in presence of the detenu, a director of the company, and others on February 3, 2012. Things in the containers were not the things declared in the shipping bills. Declaring USB 16 GB Flash Drives, the company was actually shipping CDs, carton boxes stuffed with foam, etc. 12. The detenu was granted bail on February 10, 2012. On February 20, 2012 two more containers were opened and the DRI officials once again detected goods other than those declared in the bills of lading. Steps were taken under several provisions of the Customs Act, 1962. The DRI officials were taking up follow up actions. 13. On April 12, 2012 the detenu and the company filed WPs questioning arrest by the DRI officials, their power to investigate the case and steps taken by customs for freezing bank accounts and seizing goods. In June 2012 the detenu moved for relaxation of bail conditions. His prayer for return of passport for travelling abroad was rejected. The detenu made a representation dated September 20, 2012 to the detaining authority that the DRI was threatening him with preventive detention. 14. On January 17, 2013 the locked gates of the company's premises were opened. In spite of notice the detenu remained absent. CD manufacturing machines were found in big wooden crates and packing boxes. The detenu made a representation dated September 20, 2012 to the detaining authority that the DRI was threatening him with preventive detention. 14. On January 17, 2013 the locked gates of the company's premises were opened. In spite of notice the detenu remained absent. CD manufacturing machines were found in big wooden crates and packing boxes. On February 13, 2013 the company filed a WP questioning a show-cause notice dated February 1, 2013. On March 12, 2013 the detenu again moved for relaxation of bail conditions. On May 16, 2013 the bail conditions were relaxed and he was permitted to go abroad for a month. 15. In para.66 of his order the detaining authority has said as follows: "66. Therefore, considering the magnitude of the operation, the chronological sequence of events, the well organised manner in which such prejudicial activities have been carried on, the nature and gravity of the offence, the consequential extent of investigation involved including scanning/examination of papers, formulation of grounds, collection and verification of the material relied upon from various sources including those outside this department, for a judicious application of mind and arriving at subjective satisfaction, I am further satisfied that the nexus between the dates of incident and passing of this Detention Order as well as object of your detention has been well maintained." 16. The principles stated in Abdu Salam @ Thiyyan v. Union of India & Ors., AIR 1990 SC 1446 are these. In appreciating a contention that because of delay the necessary nexus got severed and the grounds have become stale and illusory, the Court should bear in mind the nature of the prejudicial activities indulged in by the detenu and the likelihood of his repeating the same. It is the potentiality in him that has to be taken into consideration, and if the detaining authority is satisfied on available material, then on mere delay as long as it is not highly unreasonable and undue, the Court should not normally strike down the detention. Delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person. 17. On the facts of this case, we are unable to accept the contention that at the date the detention order was passed, the February 2012 prejudicial activities referred to in the order were no longer live enough to justify the detenu's preventive detention. 17. On the facts of this case, we are unable to accept the contention that at the date the detention order was passed, the February 2012 prejudicial activities referred to in the order were no longer live enough to justify the detenu's preventive detention. Facts noted hereinbefore will reveal that from February 2012, when acting on intelligence the DRI officials unearthed the prejudicial activities, till the date of the detention order, the issues pertaining to the activities and their likely repetition by the detenu were quite alive. 18. The detention order has been challenged on the grounds that the detaining authority did not consider all the relevant materials. Over the course of argument, Mr. Ghosh has specifically pointed out that the detaining authority did not consider the petitioner's reply at WP p. 192 to the DRI show-cause notice dated July 18, 2012 and the detenu's two letters at WP pp.164 and 167. According to Mr. Roy, the detaining authority was to consider only those documents that he thought relevant, not the ones the detenu thought and thinks relevant. 19. In support of his contention Mr. Ghosh has relied on Ahamed Nassar v. State of Tamil Nadu & Ors., (1999) 8 SCC 473 In that case their Lordships considered three previous decisions dealing with the question whether non-consideration of relevant materials vitiates the detaining authority's subjective satisfaction and makes the detention order illegal. The settled principle is that non-consideration of material or vital facts which might influence the mind of the detaining authority one way or the other vitiates the detaining authority's subjective satisfaction and makes the detention order illegal. 20. In Ahamed Nassarthe detenu contended that his two letters that the seized goods were not prohibited goods were not considered by the detaining authority. While saying that there was no scope for going into the merits of the claim, their Lordships said that the letters containing the detenu's stand of whatever worth were definitely relevant. Referring to the fact that the letters, though could be placed by the sponsoring authority, were not placed before the detaining authority, their Lordships held that it was a case of real non-application of mind. 21. We are unable to see how Hemlata Kantilal Shah v. State of Maharashtra & Ors., AIR 1982 SC 8 is relevant for this case. Mr. 21. We are unable to see how Hemlata Kantilal Shah v. State of Maharashtra & Ors., AIR 1982 SC 8 is relevant for this case. Mr. Roy's submission on the basis of the authority is that the detenu is not entitled to know which part or parts of the materials were considered by the detaining authority. That is not the issue in this WP. The issue rather is whether the detaining authority ought to have considered the detenu's reply to the show-cause notice, when he considered the notice, and the two letters the detenu wrote. 22. A copy of the detenu's reply to the show-cause notice is at p. 192; it is dated July 23, 2012. He gave it in reply to the DRI show-cause notice dated July 18, 2012. In the reply the detenu raised a large number of questions concerning the investigation, search and seizure. He contended, inter alia, that he was made to sign self incriminating statement; that he was not allowed to see the cartons; that he was not allowed to read the inventory; and that the company was not allowed to inspect, examine and investigate whether empty cartons were sought to be exported. 23. The two letters that according to the detenu the detaining authority did not consider are the ones at pp.164 and 167 of the WP. While the one is dated October 8, 2012, the other is dated October 11, 2012; and they both were written by the company to the Additional Director General of the DRI. The letters were regarding the allegations made by the DRI of smuggling and sale of smuggled goods. The letter dated October 11, 2012 was written specifically referring to the investigation that was going on from February 3, 2012. 24. In our considered opinion, all these documents were relevant documents and at the date the detention order was passed, the DRI, the sponsoring authority, was in a position to place the documents before the detaining authority. For undisclosed reasons the detenu's reply to the show-cause notice and the company's two letters of October 2012 were not placed before the detaining authority. The petitioner is, therefore, justified in saying that the detaining authority passed the order without considering all the relevant materials. 25. The principal ground on which Mr. For undisclosed reasons the detenu's reply to the show-cause notice and the company's two letters of October 2012 were not placed before the detaining authority. The petitioner is, therefore, justified in saying that the detaining authority passed the order without considering all the relevant materials. 25. The principal ground on which Mr. Ghosh has questioned the detention order is that the detaining authority did not give with the grounds copies of all the documents he (the detaining authority) relied on. In paras.47, 48, 49, 51, 54 and 55 of the WP the documents which were not given have been specified. 26. The WP case is this. The opposite pages of all the documents at pp. 1-9 of Vol. II of the WP were not given. None of the documents at pp. 10-15 of Vol. II of the WP is a shipping bill, a bunch of which the detaining authority, according to his list of documents, was giving with the grounds. None of the bills of entry mentioned in para.49 was given, only the list of the bills was given. None of the enclosures A-F of the notice mentioned in para.51 was given. None of the authorisations referred to in paras. 10, 11 and 12 of the detention order was given. 27. In his affidavit-in-opposition the detaining authority has not disputed that he did not give the detenu with the grounds of detention the documents specified in paras.47, 48, 49, 51, 54 and 55 of the WP. 28. As to the opposite pages of the documents at pp. 1 -9 of Vol. II of the WP, Mr. Roy has submitted that though the opposite pages of the documents (shipping bills) were not given with the grounds of detention, it will appear from Annexure-I at p.48 of the affidavit-in-opposition that the examination reports on the opposite pages of the shipping bills were actually incorporated in the Panchnama. 29. Mr. Ghosh has correctly pointed out that the document at p.48 of the affidavit-in-opposition does not contain the opposite pages of the shipping bills at pp. 1-9 of Vol.II of the WP. He has said that a copy of the opposite page of a similar shipping bill has been produced by the petitioner with the affidavit-in-reply, and that the document itself will reveal its worth and importance. 30. 1-9 of Vol.II of the WP. He has said that a copy of the opposite page of a similar shipping bill has been produced by the petitioner with the affidavit-in-reply, and that the document itself will reveal its worth and importance. 30. It is not the case of the detaining authority that the opposite pages of the shipping bills, not given by him, were blank and did not contain anything. It is immaterial whether he considered the contents of the opposite pages; law on the issue has been clearly stated by the Supreme Court in Shalini Soni & Ors. v. Union of India & Ors., (1980) 4 SCC 544 31. In view of the principle stated by the Supreme Court in Shalini Soni. We are unable to accept a case that the detention is not illegal, simply because the detaining authority did not give the detenu with the grounds of detention copies of the opposite pages of the shipping bills at pp. 1 -9 of Vol. II of the WR The principle stated by the Supreme Court is that a detention is illegal, if the detaining authority does not give the detenu with the grounds of detention copies of all the documents he (the detaining authority) relied on. 32. Here it is not only the opposite pages of the shipping bills at pp. 1-9 of Vol. II of the WP; it is much more. The documents at pp. 10-15 of Vol. II of the WP are some exchange control declarations (required under provisions of certain statute), and, admittedly, not the shipping bills mentioned in the list of documents under which the detaining authority was giving the detenu copies of the documents he (the detaining authority) relied on. 33. In an attempt to retrieve the case, Mr. Roy admitting that the documents at pp. 10-15 of Vol. II of the WP are not any shipping bills has said that the situation leads to an inference that it was a typographical error. Mr. Ghosh's reaction to the submission that if it was a typographical error, then it indicates nothing but gross non-application of mind, seems to us to be the appropriate reaction to a case made out not in the affidavit-in-opposition, but only at the Bar. 34. As to the bills of entry mentioned in para.49, the detaining authority has no answer to the WP case that they were not given. 34. As to the bills of entry mentioned in para.49, the detaining authority has no answer to the WP case that they were not given. As to the enclosures A-F to the show-cause notice mentioned in para.51, we are unable to accept the opposition case that the enclosures were supplied at different places. Mr. Ghosh has rightly said that no attempt has been made to justify the claim pointing out at which place or places the enclosures were supplied. He has rightly said that the enclosures are not to be found anywhere. 35. And as to the authorisations referred to in paras. 10, 11 and of 12 the detention order and referred to in paras.54 and 55 of the WP, the affidavit-in-opposition and Mr. Roy both have remained silent. 36. It is, therefore, evident that the detaining authority did not give the detenu copies of all the documents relying on which he passed the detention order. This, in our considered opinion, has made the detention illegal. 37. The case concerning delay in deciding the detenu's representations is in paras.64 and 65 of the WP. It is the case that the detenu's representations dated August 20, 2013 to the detaining authority and August 21, 2013 to the secretary of the department concerned of the Government of India, received by the authority of the correctional home concerned on August 19, 2013 and August 21, 2013 respectively were rejected by the detaining authority and the secretary only on September 10, 2013. 38. Mr. Ghosh has submitted that the delay has remained totally unexplained. That there is delay is evident. The point was specifically taken in the WP. Hence it was for the detaining authority and the secretary to explain the delay. In the opposition no explanation has been given. The law on delay in deciding detenu's representations has been stated in the decisions cited to us, especially in Rajammal v. State of T.N. & Anr., (1999) 1 SCC 417 . 39. In Rajammal (para.8 of the report) the Supreme Court has said and held as follows: "8. The position, therefore, now is that if delay was caused on account of any indifference or lapse in considering the representation, such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the delay, if any, in disposing of the representation. The position, therefore, now is that if delay was caused on account of any indifference or lapse in considering the representation, such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the delay, if any, in disposing of the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned." 40. The position of law, therefore, is that if there is delay in deciding the detenu's representations, then the authorities concerned must explain the delay. 41. In this case, as noted hereinbefore, the detenu's representations were received by the authority of the correctional home concerned on August 19, 2013 and August 21, 2013 and the detaining authority and the secretary concerned rejected the representations only on September 10, 2013. The delay has remained absolutely unexplained. Following the principle stated by their Lordships of the Supreme Court, we conclude that the unexplained delay in deciding the detenu's representations has made his further detention illegal. 42. For these reasons, we allow the WP, set aside the preventive detention order and issue a habeas corpus commanding that the detenu shall be set at liberty at once. The Registrar General is directed to see that this order is sent to the respondents through special messenger, at the petitioner's expense, without any delay. Special messenger requisites shall be put in forthwith. No costs. Certified xerox. Baidya, J. - I agree Writ petition is allowed.