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2015 DIGILAW 728 (BOM)

Shobha Dattatray Bodake v. State of Maharashtra

2015-03-12

A.K.MENON, A.S.OKA

body2015
Oral Judgment: (A.S. Oka, J.) 1. By this Petition under Article 226 of the Constitution of India, the Petitioner has challenged the order dated 29th September 2014 of preventive detention passed against her husband Dattatray Chandrakant Bodake under Sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "COFEPOSA"). The order of detention has been passed with a view to prevent the detenu in future from abetting the smuggling of goods. 2. The learned counsel appearing for the Petitioner firstly submitted that there was a delay in disposal of the representation made by the detenu against the order of detention both to the Detaining Authority and to the State Government. Inviting our attention to the affidavit-in-reply filed on behalf of the State Government, she urged that there was a gross delay in effecting service of the communication of rejection of representation. She, therefore, submitted that there is a violation of Clause (5) of Article 22 of the Constitution of India, and hence, continuation of the detention of the detenu stands vitiated. The second submission made by the learned counsel appearing for the Petitioner is that the order of detention was not forwarded by the State Government to the Union of India within a period of 10 days. She urged that continuation of the preventive order of detention is vitiated. Her third submission is that the detenu was arrested in connection with the incident on the basis of which a subjective satisfaction of the Detaining Authority is based. She pointed out that by an order dated 3rd April 2014 passed by the learned Additional Sessions Judge, Mumbai, in Bail Application No.789 of 2014, the detenu was ordered to be released on bail in the offence registered on the basis of the said incident. She submitted that before the Detaining Authority, the Sponsoring Authority had placed a copy of the bail application made by the detenu as also a truncated copy of the order granting bail before the Detaining Authority. However, detailed reasons recorded in the order dated 3rd April 2014 were not placed before the Detaining Authority. She submitted that looking to the findings recorded in the order granting bail and the reasons recorded therein, the bail order was a vital document. However, detailed reasons recorded in the order dated 3rd April 2014 were not placed before the Detaining Authority. She submitted that looking to the findings recorded in the order granting bail and the reasons recorded therein, the bail order was a vital document. She relied upon various decisions of the Apex Court and this Court in support of the said contention. 3. The learned APP appearing for the State as well as the Detaining Authority urged that the Sponsoring Authority has placed before the Detaining Authority copies of the bail application made by the detenu, reply and the operative part of the bail order. He urged that the Detaining Authority was thus aware of the grounds on which the detenu was released on bail. He placed reliance on a decision of the Apex Court in the case of Licil Antony v. State of Kerala and Another in support of his contention. He urged that the reasoned order granting bail is not at all a vital document. He produced for perusal of this Court the original file which shows that on 1st October 2014, the impugned order of detention was sent to the Union of India by post. He placed on record the photocopies of the postal receipts which are on the file. He pointed out that the order of detention was dispatched along with the covering letter of 29th September 2014. As regards the delay in disposal of the representations, he pointed out that in the affidavit, it is explained that there is no delay. He pointed out that the communication of rejection of the representation made by the Detaining Authority was issued on 20th December 2014 and the communication of rejection of the representation made by the State Government was issued on 24th December 2014. He pointed out from the original file (Criminal Appeal No.872 of 2014 decided on 15th April 2014) that the letters were dispatched by post on the respective dates, but there was a postal delay in reaching the communications to the office of the Jail Superintendent. He relied upon a decision of the Apex Court in the case of Kamarunnissa v. Union of India (1991)1 SCC 128 ) which holds that the postal authorities cannot be blamed. 4. He relied upon a decision of the Apex Court in the case of Kamarunnissa v. Union of India (1991)1 SCC 128 ) which holds that the postal authorities cannot be blamed. 4. The learned counsel appearing for the Respondent No.3-Sponsoring Authority pointed out that the reasons recorded in the bail order are nothing but a reproduction of the contentions in the application for bail and the reply filed by the Directorate of Revenue Intelligence (DRI) to the said bail application. She urged that the application and the reply were placed before the Detaining Authority. She also pointed out that the reasoned order was not made available as stated in the affidavit of Shri M.P. Madhavan, the Assistant Director of DRI and, therefore, only the operative part of the order was forwarded to the Detaining Authority. 5. In reply, the learned counsel appearing for the Petitioner submitted that though the communications of rejection of the representations were received by the Nashik Road Central Prison on 29th December 2014 and 31st December 2014, the same were handed over to the detenu on 2nd January 2015 and hence, there was a further delay. 6. We have carefully considered the submissions. As far as the ground of failure to forward the detention order to the Government of India is concerned, the original file shows that the same was forwarded to the Union of India on 1st October 2014. Therefore, the said contention has no merit. As far as the issue of delay in disposal of the representations is concerned, it will be necessary to make a reference to the affidavits filed on record. There is an affidavit filed by Shri Sanjay Dagadu Khedekar, the Deputy Secretary of the Home Department, Mantralaya, Mumbai. He has filed the said affidavit on behalf of the Detaining Authority. He has also filed an affidavit on behalf of the State Government. In the said affidavit, he has stated that the representation dated 16th December 2014 which was a composite representation was received in the office on 18th December 2014. He has stated that the representation addressed to the Detaining Authority was also received on 18th December 2014. Parawise comments were prepared on the same day which were endorsed by the Deputy Secretary on 19th December 2014. The Detaining Authority was at Nagpur to attend the Winter Session of Maharashtra Legislative Assembly commencing from 8th December 2014. He has stated that the representation addressed to the Detaining Authority was also received on 18th December 2014. Parawise comments were prepared on the same day which were endorsed by the Deputy Secretary on 19th December 2014. The Detaining Authority was at Nagpur to attend the Winter Session of Maharashtra Legislative Assembly commencing from 8th December 2014. On 20th December 2014, he came back to Mumbai and rejected the representation on the same day. 21st December 2014 was holiday. The letter dated 24th December 2014 communicating the rejection of the representation was forwarded to the Jail Superintendent of Nashik Road Central Prison on the same day by post. Thus, the representation dated 16th December 2014 which was received on 18th December 2014 was decided on 20th December 2014. 7. As far as the representation made to the State Government is concerned, it was also received on 18th December 2014. The same was submitted for appropriate orders to the Additional Chief Secretary (Home). It was endorsed on 18th December 2014 by the Section Officer, and by the Deputy Secretary on 19th December 2014. From 8th December 2014, the Additional Chief Secretary (Home) was in Nagpur for attending the Winter Session of Maharashtra Legislative Assembly. The file was sent to Nagpur on 19th December 2014. He rejected the representation on 20th December 2014. 21st December 2014 was a Sunday. The file was received in the office of the Detaining Authority at Mumbai on 23rd December 2014. On 24th December 2014, a communication was issued to the detenu through the Jail Superintendent of Nashik Road Central Prison by post. 8. The record shows that the letter dated 20th December 2014 addressed to the detenu was received by the Jail Superintendent of Nashik Road Central Prison on 29th December 2014. The letter dated 24th December 2014 addressed to the detenu informing him about the rejection of his representation by the State Government was issued on the same day which was received by the Jail Superintendent of Nashik Road Central Prison on 31st December 2014. Thus, the delay is a postal delay. Both the communications were dispatched by speed post. As the delay was on account of the Postal Authorities, the same cannot be attributed to the Detaining Authority as well as the State Government. Thus, the delay is a postal delay. Both the communications were dispatched by speed post. As the delay was on account of the Postal Authorities, the same cannot be attributed to the Detaining Authority as well as the State Government. The representations dated 16th December 2014 were received on 18th December 2014 and the same were decided on 20th December 2014. Therefore, there is no delay in deciding the representations. Therefore, the ground of delay in disposal of the representations has no merit. 9. The third ground urged is regarding non-placement of the reasoned bail order before the Detaining Authority. It is an admitted position that the reasons recorded in the bail order were neither placed before the Detaining Authority nor a copy thereof was supplied to the detenu along with the grounds of detention. The affidavit of Shri M.P. Madhavan, the Assistant Director of DRI records that the proposal for detention was forwarded to the Detaining Authority on 16th December 2013. It is, however, stated that the bail order of the Sessions Court was forwarded to the Detaining Authority on 9th April 2014. The impugned order of preventive detention has been passed on 29th September 2014. In Paragraph 4.4 of the said affidavit, a stand has been taken that the detailed order granting bail annexed to the affidavit does not reveal the date on which the bail order was ready. It is contended that the learned Judge has not made any observation on merits of the case which could have influenced the subjective satisfaction of the Detaining Authority in one way or the other. 10. Thus, it is admitted position that the reasons recorded for grant of bail were not placed before the Detaining Authority till the date of passing of the order of detention. We must note here that the operative part of the order granting bail on 3rd April 2014 was forwarded by the Sponsoring Authority to the Detaining Authority on 9th April 2014. The impugned order has been passed after a gap of five months and 20 days. It is not the case of the Sponsoring Authority that during the said period of five months and 20 days, any attempt was made to get a copy of the detailed order, but a copy thereof was not available. The impugned order has been passed after a gap of five months and 20 days. It is not the case of the Sponsoring Authority that during the said period of five months and 20 days, any attempt was made to get a copy of the detailed order, but a copy thereof was not available. It is not the case that till the date of the passing of the order of detention, the reasoned order was not available. 11. Now the question is whether the reasoned order can be said to be a vital document. 12. As far as the concept of vital document is concerned, the law is well settled. A vital document is the one which could have influenced the subjective satisfaction of the Detaining Authority in one way or the other. Therefore, it will be necessary to come back to the facts of the case. The detenu was arrested on 15th January 2014 for the offence punishable under Section 135(1)(i) of the Customs Act, 1962. The arrest was based on the seizure of 151 MTS of red sanders valued at Rs.60 crores which was seized on 15th July 2013 and 18th July 2013. We have perused the grounds of detention. On the basis of the incident for which the offence was registered, the subjective satisfaction was recorded that it was necessary to detain the detenu to prevent him from abetting smuggling activities in future. It is in this context that the order dated 3rd April 2014 granting bail will have to be examined. The first four pages of the order dated 3rd April 2014 are devoted to the recording of submissions of the Advocate for the detenu and the opposition by the DRI. In Paragraphs 12 and 13 of the said order, it is recorded thus: “12. It is tried to submit on behalf of the D.R.I. That the applicant has played a major role in commission of this crime, but on going through the facts, it appears that major role is played by the accused Parvinder Singh Sabarwal, who has transported red sanders in huge quantity under the guise of onion and marbles. So also the co-accused Pramod Keluskar has also played similar role in commission of this crime. 13. It is tried to submit on behalf of the D.R.I. That the applicant had provided truck facility and place for storing red sanders. So also the co-accused Pramod Keluskar has also played similar role in commission of this crime. 13. It is tried to submit on behalf of the D.R.I. That the applicant had provided truck facility and place for storing red sanders. Not only this but he opened real seals and sealed the containers with fake seals. Submissions made on behalf of the D.R.I. Shows that the applicant had assisted the main accused Parvinder Singh Sabarwal and Pramod Keluskar and they are the main accused. They are already enlarged on bail, therefore, on parity ground the applicant is also entitled for bail.” (Underlines supplied) 13. The learned Additional Sessions Judge has recorded a submission made on behalf of the DRI that the detenu has played a major role in the commission of crime. However, the learned Judge found that the major role was played by two other co-accused. In Paragraph 13, a prima facie finding has been recorded that the detenu provided truck facility and the place for storing the red sanders. In Paragraph 14, the learned Sessions Judge rejected the contention of the DRI that the detenu was absconding for long time. Thus, for the purpose of deciding the bail application, a finding has been recorded that the detenu has not played any major role in the offence. In fact, the learned Judge found that major role appears to have been played by the other two co-accused. The bail has been granted on consideration of the material and on the basis of the said tentative findings. 14. Looking to the said findings recorded by the learned Additional Sessions Judge, it follows that the said findings could have affected the subjective satisfaction either way. The learned counsel appearing for the Sponsoring Authority tried to contend that copies of the bail application and of the reply were placed before the Detaining Authority. What is significant and relevant is the prima facie observations made in Paragraphs 12 and 13 of the said order. What is recorded in the said paragraphs are not merely the pleadings but the tentative conclusions of the learned Additional Sessions Judge, Mumbai, rendered for the purpose of deciding the bail application. Therefore, in our view, the reasons recorded in the order granting bail could have certainly affected the subjective satisfaction of the Detaining Authority. The findings recorded in the reasoned order make the reasoned order a vital document. Therefore, in our view, the reasons recorded in the order granting bail could have certainly affected the subjective satisfaction of the Detaining Authority. The findings recorded in the reasoned order make the reasoned order a vital document. Therefore, the impugned order of detention deserves to be quashed and set aside only on this ground. The decision relied upon by the learned APP in the case of Licil Antony is of no help. In the facts of the case before it, the Apex Court concluded that the bail order was not a vital document. 15. Hence, the Petition must succeed and we pass the following order. ORDER: (a) The Rule is made absolute in terms of the prayer clause (a), which reads thus: “(a) That this Hon'ble Court be pleased to issue a Writ of Habeas Corpus or any other appropriate Writ, order or direction quashing and setting aside the said order of detention bearing No.PSA-1213/CR-84(2)/SPL-3(A) dated 29.09.2014 and be pleased to direct that the detenu Dattatray Chandrakant Bodake be set at liberty.” (b) All concerned to act upon an authenticated copy of this order.