Supreme Court: In a batch of two petition for special leave to appeal (‘criminal’) by the State authorities/ detaining authorities against Delhi High Court’s decision, whereby the detenus’ petitions were allowed and the detention orders under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (“COFEPOSA”) were quashed, viewing that the detaining authority gravely erred in relying upon illegible documents which was equivalent to non-placement of relied upon documents (‘RUDs’), the Division Bench of BR Gavai and KV Viswanathan, JJ. disposed of the SLP’s upon noting the State’s submission that by efflux of time, the question for consideration was only of academic nature. The Court said that the petitions became infructuous, however, the question of law was kept open.
Thence, the Court upheld the quashing of the detention order passed against the Detenus including Customs House Agent.
The question of law was that, whether the continued detention of detenus was justified in view of the fact that their only right qua the detention order, i.e. right of making representation was seriously jeopardized as they were supplied with various documents as parts of RUDs which are illegible, incomplete and not readable and which is in violation of Article 22 (5) of the Constitution of India read with Section 3 (3) of COFEPOSA Act?
The High Court in its impugned decisions, reiterated that when a person is detained in pursuance to an order of preventive detention, the statutory authorities are constitutionally charged with the responsibility of ensuring that the grounds of detention, including legible copies of all RUDs and other relevant documents that are considered whilst forming the subjective satisfaction, are provided to the detenu by the detaining authority, to enable them to make an effective representation to the advisory board, as well as to the detaining authority. Therefore, the failure and non-supply of legible copies of all RUDs despite of a request and representation made by the detenus for the supply of the same, rendered the order of detention illegal and bad in law; and vitiates the subjective satisfaction arrived at by the detaining authority.
Factual Matrix
In the impugned decision, the detenus therein/ present respondents sought quashing of detention orders dated 26-11-2021 and 28-12-2021, before the High Court, issued under Section 3(1) of the COFEPOSA and further directions for their liberty.
The Income Tax Department conducted a search and seizure operation on 10-10-2021 at 23 premises allegedly belonging to the Detenu No. 1 and persons allegedly associated with him. Thereupon, a statement of the Detenu No.1 was recorded under Sections 132(4) of the Income Tax Act, 1961, wherein it was stated that on examination of containers imported at Kolkata Port, with a declaration stated to contain HDMI cables, several prohibited items namely, old and used/refurbished laptops, mobile phones etc. Accordingly, the same was detained by the Customs officers at Kolkata. Several documents allegedly found stored in the detenu 1’s premises pertaining to three Hong Kong based supplier firms on which the name of the Detenu No.1 was mentioned as nominated person were recovered. Subsequently, several places were searched and arrests were made. The present matter/ allegations pertained to the import of goods by Detenu No. 1 who has been alleged to be involved in import of goods which were highly undervalued and mis-declared and that he has been indulged in such highly undervalued import through his firm and through various other firms stated to be controlled by him / he has been de-facto owner of the said firms.
Statements of several persons were recorded under Section 108 of the Customs Act, 1962 including that of the present respondent- Detenu in SLP(Criminal) No. 769/2023, who is Customs House Agent (‘CHA’) and has been handling the customs clearing work of various importer/ exporters at customs ports Kolkata and other ports. The allegations against CHA pertained to clearance of the imports consignments of Detenu No. 1’s firm knowingly and being aware that he imported old and used laptops, mobile phones, computer/ mobile accessories from Dubai, Hong Kong and USA. It was also alleged that on Detenu No. 1’s directions, CHA also prepared the invoices and packing list in his office having mis-declaration and that actively abetted Detenu No. 1 in the commission of offence leading to evasion of customs duty.
The Detenus were arrested by Directorate of Revenue Intelligence (‘DRI’) and the Trial Court remanded them to three days judicial custody and on 22-10-2021, they were remanded to a further of fourteen days judicial custody. The impugned detention orders were passed by the detaining authority, which were served upon the detenus while they were still in judicial custody in Tihar Jail, New Delhi, pursuant to their arrest by the DRI for the purported commission of alleged offences, punishable under Sections 132/135(1)(a)(b) of the Customs Act, 1962.
The High Court, vide the impugned decisions in Zakir Khan v. Union of India, (2022) 3 HCC (Del) 251 and Ravi Chandra Mishra v. Union of India, 2022 SCC OnLine Del 3631 allowed the detenus’ petitions and set aside the impugned detention orders, therein. The High Court viewed that where orders of detention fail on the ground that the subjective satisfaction of the detaining authority is vitiated owing to non-application of mind, the protection afforded qua severability of grounds stipulated under the provision of 5A of the COFEPOSA Act, are neither attracted nor available, in law.
The High Court opined that the detaining authority gravely erred in relying upon illegible documents which was equivalent to non-placement of relied upon documents by the act of omitting them from due consideration which consequently vitiates the subjective satisfaction arrived at by the detaining authority. Hence, the impugned detention order, therein were invalidated. Thus, the State challenged the said decisions of the High Court.
[Union of India v. Zakir Khan, 2024 SCC OnLine SC 2108, decided on: 14-08-2024]
Advocates who appeared in this case :
For the petitioners: K.M. Nataraj, A.S.G., Mukesh Kumar Maroria, AOR, Rajesh Kumar Singh, Adv., Rajat Nair Adv., Sharath Nambiar Adv., Sanjay Nuli, Adv., Ashok Panigrahi, Adv., Digvijay Dam Adv., Aaditya Dixit Adv., G.S. Makker, Adv.
For the respondents: Karan Bharihoke, Adv., Ashish Batra, AOR, Malvika Trivedi, Sr. Adv., Swarnendu Chatterjee, AOR, Sujal Gupta, Adv., Shailendra Slaria, Adv., Deepakshi Garg, Adv., Ishaan George, AOR Archit Jain, Adv., Sumit Kumar Jha, Adv., Deepak Gandhi, Adv.
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