W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 1 of 49

#J-1 & J-2

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Reserved On: 11.04.2022

Judgment Pronounced On: 02.05.2022

1

+ W.P.(CRL) 72/2022 and CRL.M.A.788/2022

ZAKIR KHAN ..... Petitioner

Versus

UNION OF INDIA AND ORS. .....Respondents

2

+ W.P. (CRL) 73/2022 and CRL.M.A.791/2022

SANJEEV KUMAR ALIAS SANJEEV KUMAR YADAV

..... Petitioner

Versus

UNION OF INDIA THROUGH ITS SECRETARY & ORS

.....Respondents

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 2 of 49

Advocates who appeared in this case:

For the Petitioners: Mr. Vikram Chaudhri, Senior Advocate alongwith Mr. Rishi

Sehgal, Mr. Ashish Batra, Ms. Ria Khanna and Mr. Keshavam

Chaudhri Advocates.

For the Respondent: Mr. Chetan Sharma, Additional Solicitor General alongwith Mr.

Anurag Ahluwalia, CGSC with Mr. Danish Faraz Khan, for R-1

and R2 Union of India;

Mr. Harpreet Singh, Senior Standing Counsel with Investigating

Officer Mr. Sumit Kumar for R-3/DRI

CORAM:

HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

HON'BLE MR. JUSTICE RAJNISH BHATNAGAR

J U D G M E N T

SIDDHARTH MRIDUL , J

1. These two writ petitions under Article 226 of the Constitution

of India read with Section 482 of the Code of Criminal Procedure

1973, have been instituted on behalf of Zakir Khan (hereinafter

“Detenu No. 1”), the Petitioner in W.P.(CRL.) 72/2022 and Sanjeev

Kumar @ Sanjeev Kumar Yadav (“Detenu No. 2”), the Petitioner in

W.P.(CRL.) 73/2022 (hereinafter collectively referred to as the

„Detenus‟), praying for quashing of detention orders, both dated

26.11.2021, bearing No. PD-PD-12001/17/2021-COFEPOSA and PD-

12001/18/2021- COFEPOSA, issued under Section 3(1) of the

Conservation of Foreign Exchange and Prevention of Smuggling

Activities Act, 1974 (hereinafter “COFEPOSA”) against the

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 3 of 49

Petitioners/Detenus No. 1 and 2 respectively; and for further directions

that the detenus be set at liberty forthwith. As these Petitions raise

common questions of law and are premised on similar facts, they are

being disposed off by this common order.

FACTS OF THE CASE: -

2. The relevant facts qua the detenus, as are necessary for the

adjudication of the subject writ petitions are briefly encapsulated as

follows: -

i) 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 (Annexure P-4) of the Detenu

No.1 was recorded u/s 132(4) of the Income Tax Act, 1961,

on the 11.10.2021, wherein the Detenu No. 1 admittedly

stated that he had studied only till the VIII standard and

therefore, expressed his volition to record his statement in

Hindi.

ii) That, further on 13.10.2021, a Container No. PCIU8689880

(40 Feet) imported by one M/s Indo Fab, at Kolkata Port,

with a declaration stated to contain HDMI cables, was

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 4 of 49

subjected to examination by the Income Tax Authorities in

the presence of port custom officers wherein it was found

that it contained several prohibited items namely, old and

used/refurbished laptops, mobile phones etc. Accordingly,

the same was detained by the Customs officers at Kolkata. It

was alleged that the said firm M/s Indo Fab was

owned/controlled by the Detenu No.1.

iii) That on the basis of information received from the Income

Tax Department, New Delhi; the Directorate of Revenue

Intelligence, Delhi Zonal Unit (hereinafter DRI/Respondent

No.3) initiated search proceedings at the purported

residential premises of the Detenu No. 1 i.e., at S-80 Greater

Kailash-I, New Delhi, on the 18.10.2021. During the search,

certain documents allegedly found stored in the said

premises in the form of files, loose documents, writing pads,

diaries, Certificate of Incorporation/Articles of Association

pertaining to three Hong Kong based supplier firms on

which the name of the Detenu No.1 was mentioned as

nominated person were recovered. All documents relevant to

the investigation were resumed for further investigations in

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 5 of 49

relation to the suspected undervaluation of imported goods

by the firms allegedly controlled/owned by the Detenu No.1

and the Panchnama was drawn.

iv) On 18.10.2021, upon further search conducted at the office

premises of Mr. Anurag Tiwari, Custom Broker-proprietor

of M/s Anurag Tiwari situated at L-509, Gali No. 15,

Mahipalpur Extension, New Delhi, when it was allegedly

noticed that the clearance work of imports made in relation

to the firms purportedly controlled/owned by the Detenu No.

1 was handled by one Sanjeev Kumar Yadav (Detenu No.2),

having Custom Broker firm namely, M/s Sanjeev Kumar

situated at Khasra No. 808, Gali No. 6B, K Block,

Mahipalpur, New Delhi. Accordingly, search proceedings

under the Customs Act, 1962 were carried out at the said

office of Sanjeev Kumar whereupon certain documents were

allegedly found stored in the said premises, in the form of

files, loose documents etc. in respect of the said firms

purportedly controlled/owned by the Detenu No.1. The

officers of the DRI resumed the said documents for further

investigations.

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 6 of 49

v) On or about the 18/19.10.2021, the Detenus were arrested by

officers of the DRI and produced before the Court of CMM

(Duty Magistrate), Patiala House Courts through Virtual

Conference at around 08:30 PM (as it was a holiday) and

were remanded to 3 days Judicial Custody.

vi) On 22.10.2021, Detenus were produced before the Learned

Court of CMM, Patiala House Courts, New Delhi and

remanded to 14 days judicial custody till the 04.11.2021.

vii) The Detenus admittedly filed retraction applications on the

28.10.2021, before the learned CMM Court thereby,

retracting their statements recorded on 18/19.10.2021 before

the DRI.

viii) The DRI then caused to be filed an application before the

learned CMM, Patiala House Courts, New Delhi seeking

permission to record statements of the Detenus u/s 108 of the

Customs Act, 1962, which was allowed vide order dated

01.11.2021.

ix) On 02.11.2021, another container No. PCIU8010617 (40‟)

imported by M/s Viha International at Kolkata Port, with a

declaration to contain HDMI cables, was subjected to

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 7 of 49

examination by the officers of DRI, Kolkata wherein it was

allegedly found that it contained several prohibited items

namely, old and used laptops, CPUs. Accordingly, the same

was detained by the officers of DRI, Kolkata. It is alleged

that the said firm M/s Viha International was also

owned/controlled by the Detenu No. 1.

x) On 05.11.2021, the DRI caused to be filed an application

before the learned CMM Court seeking extension of the

Detenus remand for a further period of 14 days. Vide Order

dated 05.11.2021, the judicial remand was extended till

18.11.2021

xi) On 08.11.2021, Bail applications were filed by the Detenus

before the learned CMM, Patiala House Courts, New Delhi,

both of which were summarily declined vide an order dated

15.11.2021.

xii) Judicial remand of the Detenus was further extended for a

period of 14 days till 02.12.2021 by the Ld, CMM, vide

order dated 18.11.2021.

xiii) On the 26.11.2021, the subject impugned detention orders

(Annexure P-1) were passed by the Detaining Authority

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 8 of 49

(Ministry of Finance, Department of Revenue, Central

Economic Intelligence Bureau, COFEPOSA Wing ,

hereinafter the Detaining Authority/Respondent No.2),

which were served upon the Detenus on 27.11.2022 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 u/s

132/135(1)(a)(b) of the Customs Act, 1962.

i) Since no criminal prosecution was filed against the Detenus

in the customs case, the Detenus were granted statutory bail

in terms of the mandate of the provision of Section 167(2) of

the Code of Criminal Procedure vide Order dated 20.12.2021

passed by the Learned CMM.

ii) On 21.12.2021 the Detenus made a representation to the

Detaining Authority, submitting that a large number of

documents furnished to them were illegible and many other

documents that had been relied upon and referred to were

not furnished, communicated and/or supplied at all; and

therefore, demanding legible copies of all of the above, so as

to enable them to make an effective representation. This

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 9 of 49

detailed representation was rejected by the Detaining

Authority vide order dated 28.12.2021 (received by the

Detenus in the jail on 29.12.2021).

iii) On the 04.01.2022, a constitutionally provided

representation was filed by the Detenus before the

COFEPOSA Advisory Board (hereinafter “Advisory

Board”).

3. A further perusal of the grounds of detention, impugned in these

proceedings reveal that the role assigned therein to the Detenu No.1

pursuant to the investigation carried out is that: -

(a) Detenu was the founding member/owner of three Hong Kong

based supplier firms viz. M/s Trackon Logistics Limited,

Yottabyte International Co. Limited and M/s SFS Import &

Export Co. Limited, and from these supplier firms, goods were

imported in the name of shell entities/dummy firms owned by

the Detenu No.1 and that he used to decide the prices at which

such goods are to be invoiced and declared before the Indian

Customs. The value of the imported goods declared by these

shell entities before Customs was allegedly roughly 5% (1/20

th

)

of the actual purchase value of these goods;

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 10 of 49

(b) That the Detenu No.1 was the mastermind behind perpetrating

the entire modus operandi of mis-declaration /undervaluation of

imports through several dummy firms owned/controlled by him

and differential remittances for the imported goods were

remitted through hawala channels in order to evade custom

duties, thereby causing huge loss to public exchequer. It is

alleged that, during the period of 2017-2021, the Detenu No.1

had imported goods amounting to an estimated value of Rs.2730

crores, on which differential duty liability was estimated to be

the sum of Rs 500 crores, whereas the actual declared value of

the subject imported goods before the customs was statedly

Rs.136 crores and the duty paid thereon was approximately

Rs.42 crores.

4. Also, a perusal of the grounds of detention, impugned in these

proceedings, reveal that the role assigned therein to Detenu No.2,

pursuant to the investigation carried out is that:-

(a) Detenu No.2 was the proprietor of the Customs Broker firm

namely M/s Sanjeev Kumar, and rendered Customs Clearing

Services for past 6 years to Detenu No. 1 in importing the

consignment of electronic goods and computer peripherals,

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 11 of 49

through his Custom Broker License as well as the borrowed

Custom broker licenses of M/s Expert Cargo Movers of Shri

Manoj Nagar and M/s Anurag Tiwari of Shri Anurag Tiwari,

respectively; and paid monthly amount to the above-stated

firms ranging from Rs.20,000/- to Rs.40,000/-, depending upon

the volume of import in a given month.

(b) Detenu No. 2 also used the Custom broker licenses of M/s

Phenomenal Logistics, M/s Anubhav Cargo, M/s Shyam Singh

and M/s Satish Panjwani for the custom clearance of the goods

allegedly imported by the various entities controlled by Detenu

No.1.

(c) Detenu No. 2 used to charge Rs.10,000/- from Detenu No. 1 as

agency charges through banking channel and, since the goods

imported by Detenu No.1 were highly undervalued, Detenu

No.2 used to charge Rs. One lakh per consignment in cash over

and above the agency charges, for smooth clearance of the

under-invoiced and under-valued imported goods.

(d) Detenu No.2 is stated to have orchestrated a plan to facilitate

customs clearance of imported goods that were mis-declared

and undervalued using licenses of other Customs Brokers

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 12 of 49

despite the fact that the Detenu No.2 himself has a Customs

Broker License in his name.

ARGUMENTS ON BEHALF OF THE PETITIONERS: -

5. Mr. Vikram Chaudari, learned Senior Counsel appearing on

behalf of the Detenus vehemently assails the impugned orders of

detention; Firstly, by submitting that, the now admitted position

regarding the supply of illegible copies of Relied Upon Documents

(“RUDs”) including but not limited to those supplied to the Detenus,

but also those on the record with the Detaining Authority; and the

axiomatic consequential non-consideration thereof by the Detaining

Authority has rendered of the impugned detention order invalid.

Counsel also submitted that the supply of illegible copies of RUDs to

the Detenus, has further severely prejudiced the detenus from filing an

effective representation before the Detaining Authority as well as the

Advisory Board.

6. It is submitted in this behalf by the Ld. Senior Counsel that, the

proposal for preventive detention was received by the Detaining

Authority from the Advisory Board only on 24.11.2021 and with

surprising alacrity less than 2 days thereafter on the 26.11.2021, the

impugned detention order was passed after considering and relying

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 13 of 49

upon 977 pages of RUDs including the admittedly illegible

documents. It is further submitted that it would be humanly impossible

for the Detaining Authority to sift through such voluminous

documents diligently in the said short span of a day and half; and for

the Detaining Authority to arrive at the subjective satisfaction; and as

a result the impugned Detention Order is evidently passed in a rushed,

casual and cavalier manner, which is in gross violation of the

Constitutional right guaranteed under Article 22(5) of the Constitution

of India and the same is consequently liable to be quashed, on this

ground alone.

7. It is further submitted that, a plethora of referred to and/or

RUDs have not been supplied to the Detenus at all, despite the specific

demand made by them vide Representation dated 21.12.2021

(Annexure P-26) which inter alia include:-

“i. Search authorisation issued by Deputy Director, DRI, DZU,

vide DIN No. 202110DDZ4000000C568 dated 18.10.2021;

ii. Order for extension of Judicial Remand of Zakir Khan and

Sanjeev Kumar for further 14 days till 02.12.2021;

iii. Documents/loose papers found at the Petitioner‟s residence

and mentioned in Panchnama dated 18.10.2021;

iv. Documents/loose papers found at Sanjeev Kumar‟s residence

and mentioned in Panchnama dated 18.10.2021;

v. Grounds of arrest mentioned in Arrest Memo dated

19.10.2021;

vi. E-mails downloaded at the office of Custom Broker M/s Sai

Dutta Clearing Agency Pvt. Limited, situated at Mumbai, and

mentioned in the Panchnama dated 18.10.2021;

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 14 of 49

vii. Documents pertaining to M/s Vijay Overseas, M/s Meena

Prints and M/s Z.K. Overseas which have been seized and

mentioned in panchnama dated 18.10.2021 drawn at the office

of Custom Broker M/s Sai Dutta Clearing Agency Pvt.

Limited;

viii. Pages seized and mentioned in Panchnama dated 22.10.2021

drawn at the office of M/s Jyoti Enterprises Custom Broker

situated at Kolkata;

ix. Application for extension of Judicial Remand and the

subsequent order extending Judicial Remand till 04.11.2021;

x. Application for extension of Judicial Remand and the

subsequent order extending Judicial Remand till 18.11.2021;

xi. Application for extension of Judicial Remand and the

subsequent order extending Judicial Remand till 02.12.2021;

xii. RUDs to the 3 Show Cause Notices (at serial number 37, 38 &

40 of the list of RUDs respectively);

xiii. Final proceedings in the aforementioned SCNs Notices (at

serial number 37, 38 & 40 of the list of RUDs respectively) or

the final orders passed thereof in adjudication or appeal;

xiv. Application has been moved by the Petitioner and Sanjeev

Kumar informing the Court that they do not want to move any

bail application;

xv. Preliminary investigation report enclosed in letter dated

18.10.2021 received from DRI HQ;

xvi. Statement of Sh. Ravichandra Mishra registered by Income

Tax department referred to in the Detention Order;

xvii. Signed pages of Sh. Javed Khan‟s statement dated

22.10.2021;

xviii. Summons issued to persons who have allegedly not joined

investigation (mentioned in Ground [xxvi] of the impugned

detention order)”

At this stage it is observed that in the RUDs, that were supplied, the

following documents were found to be completely illegible: -

Sr. No.

of list of

RUDs

Description Page No.

3. Statement of Zakir before I/Tax Deptt 61 to 68, 75 to 89, 93 to

100 & 105 to 110

3. Statement of Priyanka Razdan before

I/Tax Deptt

135, 137 to 139, 141 to

150, 155, 156, 166,

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 15 of 49

167, 170 to 172

9. Statement of Sanjeev Kumar u/s 108

Customs Act

217, 220 & 223

15. Panchnama dated 18.10.2021 drawn at

the office of Custom Broker M/s Sai

Dutta Clearing Agency Pvt. Ltd

244 & 245

18. Letter dated 19.10.2021 from I/Tax

pertaining to forensic image of PR

iphone and Zakir Khan iphone.

248

19. Panchnama dated 21.10.2021 in

respect of goods stuffed in Container

consigned in the name of M/s R.K.

Overseas imported at Kolkata.

251 & 252

24. Panchnama dated 22.10.2021 at the

office premises of Custom Broker M/s

Jyoti Enterprises

270

25. Statement under 108 of the Customs

Act dated 22.10.2021 – Ravichandra

Mishra, Custom Broker.

275

26. Statement under 108 of the Customs

Act dated 22.10.2021 – Javed Khan

280

30. Panchnama dated 02.11.2021 in

respect of goods contained in

Container

293 to 295

66. Excerpt of extraction report wrt to

mobile phone of Zakir Khan …….

574, 575, 590, 593,

596, 599, 605 & 608

67. Excerpt of extraction report retrieved

forensically wrt. to mobile phone of

Zakir Khan ……..

612, 635, 649, 653,

747, 748, 757 to 759,

766 to 768, 936 & 937

It is further averred that, even if for the sake of argument, it is

assumed that the said documents were placed before the Detaining

Authority, the non-consideration thereof in its entirety and not making

them a part of RUDs, has vitiated the detention order. It is urged that,

either the Sponsoring Authority has withheld the material and vital

documents from the gaze of scrutiny of the Detaining Authority or in

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 16 of 49

any event, these vital materials have been ignored by the Detaining

Authority, which is a clear non-application of mind. It is trite to state

that, if a vital piece of evidence which is likely to influence the

subjective satisfaction of the Detaining Authority is not placed before

it, then the detention order would be vitiated in law and fact on the

ground of suffering from the vice of non-application of mind. In

support of this argument, the learned Senior Counsel placed reliance

on the following decisions of the Hon‟ble Supreme Court: -

“(i) Taramati Chandulal Sejpal v. State of

Maharashtra; (1981) 2 SCC 17;

(ii) Icchudevi Choraria v. Union of India, (1980) 4

SCC 531;

(iii) Kamla Kanyalal Khushalani v. State of

Maharashtra, (1981) 1 SCC 748;

(iv) Shalini Soni v. Union of India, (1980) 4 SCC 544;

(v) Ibrahim Ahamad Batti v. State of Gujarat, (1982)

3 SCC 440;

(vi) Ahmed Nasar v. State of Tamil Nadu, (1999) 8

SCC 473;

(vii) Kamlesh Kumar Ishwardas Patel v. Union of

India, (1995) 4 SCC 51;

(viii) State of Rajasthan v. Talib Khan, (1996) 11 SCC

393; and

(ix) Chandra Prakash v. State of U.P., (2002) 4 SCC

234.”

8. It is furthermore submitted that, the Detenus representation

dated 21.12.2021 seeking legible copies of RUDs was summarily

rejected by Detaining Authority vide communication dated 28.12.2021

in the most casual, cavalier and mechanical manner. It is reiterated

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 17 of 49

that, not furnishing, or supplying the relevant material(s) or

document(s) despite demand, is grossly violative of the fundamental

rights of the detenus as enshrined and guaranteed under Article(s) 14,

21 & 22 of the Constitution.

9. The learned Senior Counsel appearing on behalf of the Detenus

submits that, the Detaining Authority has merely acted as a rubber

stamp by issuing the Detention Order, based solely upon the specious

allegations made by the Sponsoring Authority. There was no

subjective satisfaction and considered formulation of grounds on the

part of the Detaining Authority, which could warrant the passing of

the detention order under Section 3(1) of the COFEPOSA. The

Detaining Authority has relied upon certain documents, copies

whereof were not made a part of the RUDS, as for example, in Para

xiv of Grounds of Detention, wherein the statement of one

Ravichandra Mishra before the Income Tax Department has been

extensively relied upon by the Detaining Authority, however the same

statement has not been made a part of the RUDs. It is therefore

submitted that, owing to glaring instances of non-application of mind

by the Detaining Authority, the same have entirely and unequivocally

vitiated the said order; since they have rendered nugatory and illusory

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 18 of 49

the fundamental right of the Detenu to make an effective

representation.

10. It is also contended that, the impugned Detention Orders have

been passed in the most hurried and casual manner. In other words, in

the Detention Order against Detenu No.1, it is averred that it is

necessary to make the Order of Preventive Detention against the

Detenu;

“with a view to preventing him from smuggling of goods,

abetting the smuggling of goods, and engaging in transporting

or concealing or keeping smuggled goods in future.”

Even in the grounds of detention, the Detaining Authority has

recorded its subjective satisfaction by stating that,

“….you i.e., Zakir Khan has shown a general habit and

propensity to indulge in fraudulent activities by way of

smuggling goods, abetting the smuggling of goods, and

engaging in transporting or concealing or keeping smuggled

goods at the cost of government revenue and national

security……”

In this behalf it is stated that it is no more res integra that where

various grounds could be joined by the conjunctive “and” the use of

the disjunctive “or” in such a case is impermissible. It is further

submitted that, the Grounds of Detention served to Detenu No.1 are

exactly the same as those served on the co-accused Detenu No.2; and

all that the Detaining Authority has done is substitute the name of

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 19 of 49

Detenu with the expression “you”. That apart, both the Detentions

Orders are exfacie verbatim copies of each other. The Impugned

Detention Order is thus, passed in the most cavalier manner, thereby

resultantly invalidating the same.

11. In order to buttress his exhaustive oral submissions, Mr. Vikram

Chaudari, learned Senior Counsel appearing on behalf of the Detenus,

has pressed into reliance the following decisions: -

i. Rajesh Vashdev Adnani v. State of Maharashtra

reported as (2005) 8 SCC 390.

ii. Rakesh Sherpal Singh Rana v. State of Maharashtra,

reported as 2000 SCC OnLine Bom 684.

iii. Narendra Bahadur Lama v. Union of India, reported as

2001 SCC OnLine Del 521.

iv. Dimple Prakash Shah vs. UOI- reported as 2010 SCC

Online Del 1605.

v. Anwar Abdulla v. UOI, reported as 1991 SCC Online Kar

470.

vi. Mohinder Singh Gill v. Chief Election Commr., reported

as (1978) 1 SCC 405.

vii. Gautam Jain v. Union of India, reported as (2017) 3 SCC

133.

viii. Mohd. Nashruddin v. Union of India, reported as 2021

SCC OnLine Del 4017.

ix. Manjit Singh Grewal v. UOI, reported as 1990 (Supp)

SCC 59.

x. Dharmista Bhagat v. State, reported as 1989 Supp (2)

SCC 155.

xi. Bhupinder Singh v. UOI, reported as (1987) 2 SCC 234.

xii. A. Geetha vs. State of T.N., reported as (2006) 7 SCC

603.

ARGUMENTS ON BEHALF OF THE RESPONDENT

12. Per Contra, Mr. Chetan Sharma, the learned Additional Solicitor

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 20 of 49

General of India appearing on behalf of the Respondents would submit

that the impugned detention orders dated 26.11.2021 passed by the

Competent Authority under Section 3 (1) of the COFEPOSA are legal,

valid and constitutional and the same have been passed by the

Competent Authority with due application of mind and after arriving

at the requisite subjective satisfaction; based on the sufficient material

facts and circumstances of the case. It is further submitted that the

subjective satisfaction of the Detaining Authority is elaborated in the

grounds of detention communicated to the Detenus vide letter dated

26.11.2021 (Annexure P-3). Therefore, sensing the magnitude of

offences being committed by the detenus with utter disregard to the

law of land, the Detaining Authority was convinced and issued the

Detention Order after carefully and exhaustively examining all the

documents / information submitted before it. It is further urged that all

requirements of the COFEPOSA Act, 1974 as well as the relevant

Constitutional provisions have been scrupulously complied with.

13. It is submitted that, all the documents relied upon by the

Detaining Authority had already been supplied to the Detenus. It is

further submitted that it is a well-settled law that each and every

document is not required to be furnished to the Detenu. It is further

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 21 of 49

submitted that only copies of documents on which the Impugned

Detention Order is primarily based are required to be supplied to the

Detenus. It is furthermore submitted that mere reference of certain

instances in the order of Detention for the purposes of completion of

narration, would not entitle the detenu for copies of such documents.

In the present case, all the relied upon documents have been duly

supplied to the Detenu under his dated acknowledgement within the

stipulated statutory time period of 5 days, from the date of detention.

14. It is also submitted that that the language used in the Detention

Order as well as in the Ground of Detention is in consonance with the

Section 3 (1) of the COFEPOSA Act, 1974 and the same are not based

on any inference drawn by the Detaining Authority. The Detention

Order has been passed and issued following the due process of law

and after due application of mind and deliberations after taking into

consideration the facts of the case. It is consequently denied that the

order of detention has been passed a in casual manner.

15. It is urged that the Detaining Authority has not relied on

illegible documents. It is asserted that the Hon‟ble Court must sift and

weigh, between vital and essential documents, and not be swayed by

the purported illegible documents which have not influenced the

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 22 of 49

decision making of the Detaining Authority in any manner.

16. It is submitted that all evidences relied upon in this case and

served on the Detenus were invariably produced before the Detaining

Authority for the latter‟s subjective satisfaction. It is further submitted

that any proposal for preventive detention under COFEPOSA must

pass through an elaborated procedure of screening and approval

from officers of the Department as well as from a Screening

Committee comprising of senior officers of Customs, CBI and the

Law Department. Only thereafter does the detaining authority

consider the proposal along with all the relevant materials and

arrive at the subjective satisfaction that preventive detention of the

detenu(s) is necessary. The Detention Order is then issued along

with the detailed grounds of detention. It is further submitted that,

every document / material which was relied upon for the purpose of

arriving at the subjective satisfaction in the issuance of the detention

order, has been supplied to the Detenus under proper

acknowledgement. It is further submitted that therefore, the subjective

satisfaction of the detaining authority cannot be argued to stand

vitiated.

17. It is submitted that; the present Detenus are involved in duty

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 23 of 49

evasion to the tune of more than Rs. 500 crores. It is emphasized that

the present case is not a „run of the mill‟ case but an instance of an

organized syndicate of smuggling and evasion of duties and

prohibitions wherein the mastermind, along with his associates have a

remarkable proclivity towards indulging in gross misdeclaration with

impunity and absolute disregard for law. It is further submitted that the

booking of previous offences against the Detenus, the plethora of

evidence available in relation to past misdeclarations, the period for

which the contraventions have happened in the past, and the sheer

value of Government revenue involved are clear indications towards

the need to curtail the liberty of the Detenus with the intent to prevent

them from indulging in such contraventions again.

18. Upon a specific query from the bench, it has been fairly

admitted on behalf of the Detaining Authority – though not on

affidavit – that various documents sent for consideration to the

detaining authority, were admittedly wholly illegible and therefore the

said RUDs supplied to the Detenus were also consequently illegible;

which factual position was accepted on behalf of the DRI, as is clearly

recorded in the order dated 03.03.2022 passed by this Court, in the

present petitions.

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 24 of 49

19. In this behalf, it is submitted that, it is incumbent upon the

Detenus to show that prejudice was caused owing to the illegible

RUDs.

It is further submitted that the Detenu must show that the failure to

supply the RUDs or the supply of illegible RUDs had impaired or

prejudiced his right, however, slight or insignificant it may be.

Reliance is place on Kamarunnissa Ec. versus Union of India and

Ors. reported as (1991) 1 Supreme Court Cases 128.

20. The learned ASG asserted vehemently on behalf of the

detaining authority in his oral arguments that, the illegible documents

are irrelevant and ought to be eschewed from consideration; in view of

the provision of Section 5A of the COFEPOSA, which stipulates that

the grounds of detention may be severable, particularly in cases where

the order of detention has been passed on the basis of two or more

grounds. It is submitted that, the grounds which indicate reliance upon

the illegible RUDS may therefore, in law, be severed from the

remaining grounds that have led to the subjective satisfaction of the

Detaining Authority. It is further submitted that, the Detenu instead of

seeking legible copies, should have ignored the illegible document and

should have filed his representation by excluding the illegible

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 25 of 49

documents. The summary of the argument was that in view of section

5A issues relating to illegible documents having been placed before

the Detaining Authority, and consequent supply of illegible documents

as relied upon document must be ignored. Reliance in this regard has

been placed on the judgement of the Hon'ble Supreme Court in

Gautam Jain v. Union of India reported as (2017) 3 SCC 133.

21. It is lastly submitted that, the case laws on which the Detenus

have placed reliance in support of their case are distinguishable from

the present case as in those cases, the alleged illegible documents were

vital documents and had a bearing on the mind of the detaining

authority. However, in the present case the alleged illegible documents

are not vital and material or have a bearing on the formulation of the

grounds of detention. The alleged illegible documents are the

additional and supporting documents in the form of annexures of the

statements/panchnamas wherein all such documents were duly

explained. Further, such documents are fully comprehensible and

understandable when seen with the statements/panchnamas to which

they are made part of as acknowledged by the Detenus in their own

handwriting. This amounts to due communication of the grounds of

detention, in terms of the requirements of Article 22(5) of the

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 26 of 49

Constitution of India.

22. In support of his arguments, Mr. Chetan Sharma, learned ASG

appearing on behalf of the respondents relied upon the following

decisions: -

i. Naresh Kumar Goyal v. Union of India and

Others, reported as (2005) 8 SCC 276

ii. State of Maharashtra and others v. Bhaurao

Punjabrao Gawande, reported as (2008) 3 SCC 613

iii. Haradhan Saha versus State of West Bengal and

Others, reported as (1975) 3 SCC 198

iv. Romesh Chandra Mehta vs State of West Bengal,

before the Hon‟ble Supreme Court in Criminal

Appeal No. 27 of 1967

v. Kamarunnissa Etc. vs Union of India and Ors,

reported as 1991 AIR SC 1640

vi. Gautam Jain v. Union of India, reported as (2017) 3

SCC 133.

DISCUSSSION

23. Having heard learned counsel appearing on behalf of the parties

and after due consideration of the rival submissions in the context of

the facts and circumstances on record, as well as the relevant

provisions of law and the decisions relied upon by the parties and

having perused the material on record, including the pleadings and the

original file, the following issues arise for the consideration of this

Court in these proceedings: -

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 27 of 49

A) Whether the non-supply of certain RUDs and the supply of

illegible RUDs, vitiates the subjective satisfaction arrived at

by the Detaining Authority; and whether the detention

orders passed are resultantly vitiated on the ground of non-

application of mind; thereby rendering them invalid and bad

in law.

B) Whether in the event that issue A (Supra) is answered in the

affirmative, the argument premised on S.5A of the

COFEPOSA Act, in the facts and circumstances of the

present case will have the effect of saving the detention

order from invalidation.

24. At the outset we consider it relevant to observe that on a

specific query from the Court as to why no criminal prosecution has

been filed as yet against the Detenus resulting in their release on

statutory bail under the mandate of Section 167(2) of the CrPC, no

cogent or satisfactory explanation was offered or forthcoming.

25. We find it apposite at this stage to extract the observations

made by the Hon‟ble Supreme Court in a recent decision in Mallada

K. Sri Ram vs. The State of Telangana & Ors. in Criminal Appeal

No. 561 of 2022 (Arising out of SLP (Crl) No. 1788

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 28 of 49

of 2022, reported as LQ/SC/2022/476, specifically paragraph 15 as is

reproduced hereunder: -

"15. A mere apprehension of a breach of law and order is not

sufficient to meet the standard of adversely affecting the

maintenance of public order. In this case, the apprehension of a

disturbance to public order owing to a crime that was reported over

seven months prior to the detention order has no basis in fact. The

apprehension of an adverse impact to public order is a mere surmise

of the detaining authority, especially when there have been no

reports of unrest since the detenu was released on bail on 8 January

2021 and detained with effect from 26 June 2021. The nature of the

allegations against the detenu are grave. However, the personal

liberty of an accused cannot be sacrificed on the altar of

preventive detention merely because a person is implicated in a

criminal proceeding. The powers of preventive detention are

exceptional and even draconian. Tracing their origin to the

colonial era, they have been continued with strict constitutional

safeguards against abuse. Article 22 of the Constitution was

specifically inserted and extensively debated in the Constituent

Assembly to ensure that the exceptional powers of preventive

detention do not devolve into a draconian and arbitrary exercise

of state authority. The case at hand is a clear example of non-

application of mind to material circumstances having a bearing

on the subjective satisfaction of the detaining authority. The two

FIRs which were registered against the detenu are capable of being

dealt by the ordinary course of criminal law."

26. Insofar as the first issue, as to whether the non-supply of certain

RUDs and the supply of illegible RUDs, vitiates the subjective

satisfaction arrived at by the Detaining Authority; and whether the

detention orders passed are resultantly vitiated on the ground of non-

application of mind is concerned; we have considered the rival

submissions made before us in the backdrop of the perusal of the

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 29 of 49

original record as well as the material placed before us in the present

proceedings.

27. It is imperative at this juncture to observe, that vide order dated

03.03.2022 passed by this Court in the present petitions, it was noted

as follows: -

“Mr. Vikram Chaudhri, learned senior counsel appearing on behalf

of the petitioners in these writ petitions has handed over in Court

today the original set of relied upon documents RUDs furnished to

the detenues at the time of their detention.

The Court has perused the said documents. The Court has further

asked Mr. Sumit Kumar, Senior Intelligence Officer, Directorate of

Revenue Intelligence to examine the said original documents and

inform this court as to whether they are the set of documents that

were served upon the detenues.

The said official appearing on behalf of DRI confirms that the set of

documents produced in court on behalf of the detenues are the

originals, which were served upon them at the time of their

detention.”

28. It is observed that it was fairly admitted before this Court that

several RUDs including not only those supplied to the Detenus, but

also those on the record with the Detaining Authority are illegible i.e.,

not readable. In this regard, this Court‟s decision in Mohd.

Nashruddin v. Union of India & Ors., reported as 2021 SCC OnLine

Del 4017 and the relevant paragraphs thereof are reproduced

hereunder:-

“47. It is trite to say that a person detained in pursuance of an order

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 30 of 49

for preventive detention, has a constitutional right to make an

effective representation against the same. The authorities are

constitutionally charged with the responsibility to ensure that the

grounds of detention, including all relevant documents that are

considered whilst forming the subjective satisfaction, W.P.(CRL.)

1924/2020 Page 52 of 86 are provided to the detenu by the Detaining

Authority, so as to enable the detenu to make an effective

representation to the Advisory Board, as well as to the Detaining

Authority. Therefore, the non-supply of legible copies of all

relevant documents inspite of a request and representation made

by the detenu for the supply of the same, renders the order of

detention illegal and bad; and vitiates the subjective satisfaction

arrived at by the Detaining Authority.

48. In our considered view, therefore, the supply of the following

documents namely, a) Passport, b) Identity Cards of codetenu‟s, c)

WhatsApp chats, d) bill of entry, e) invoice, f) the statement of Mr.

Rohit Sharma who is alleged to have defaced the gold bars imported

illegally etc. was critical, in order to enable the detenu to make a

comprehensive, holistic and effective representation against the

impugned detention order, both before the Advisory Board, as

well as before the Detaining Authority.

49. In the present case, the denial by the official respondent to

supply legible copies of the relevant documents to the detenu,

despite his express request to do so, tantamount to denial of his

constitutional right, thereby vitiating the detention order,

founded on the said relevant material.

50. In this regard the Hon‟ble Supreme Court has, in Dharmistha

Bhagat V State of Karnataka & Ors reported as 1989 Supp (2) SCC

155 and in particular paragraph 5 thereof, observed that non-supply

of legible copies of vital documents would render the order of

detention illegal and bad. The relevant portion has been extracted

hereinbelow:

5. The learned counsel appearing on behalf of Respondent 1,

Union of India has contended that even though legible copy of

panchnama referred to in the list of documents mentioned in

the grounds of detention has not been supplied to the detenu

yet the fact that five gold biscuits of foreign marking were

recovered from the possession of the detenu was sufficient for

subjective satisfaction of the detaining authority in making the

said order of detention. So the detention order cannot be

termed as illegal and bad for non-supply of legible/typed copy

of the said document i.e. panchnama dated 12-2-1988. The

panchnama dated 12-2-1988 which had been referred to in the

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 31 of 49

list of documents referred to in the grounds of detention and a

copy of which had been given to the detenu along with the

grounds of detention, is not at all legible as is evident from

the copy served on the detenu. It is also not in dispute that

on receiving the documents along with the grounds of

detention the detenu had made a representation to

Respondent 1 stating that some of the documents

including the panchnama which had been supplied to him

are illegible and as such a request was made for giving

typed copies of those documents to enable the detenu to

make an effective representation against the same. The

detaining authority on receipt of the said representation

sent a reply denying that the copies of those documents

were illegible and refusing to supply typed copies of the

same. It is clearly provided in sub-article (5) of Article 22

of the Constitution of India that:

“(5) When any person is detained in pursuance of

an order made under any law providing for

preventive detention, the authority making the

order shall, as soon as may be, communicate to such

person the grounds on which the order has been

made and shall afford him the earliest opportunity

of making a representation against the order.”

Therefore, it is imperative that the detaining authority has

to serve the grounds of detention which include also all the

relevant documents which had been considered in forming

the subjective satisfaction by the detaining authority

before making the order of detention and referred to in

the list of documents accompanying the grounds of

detention in order to enable the detenu to make an

effective representation to the Advisory Board as well as

to the detaining authority. Therefore, the non-supply of

legible copy of this vital document i.e. panchnama dated

12-2-1988 in spite of the request made by the detenu to

supply the same renders the order of detention illegal and

bad. This Court in Mehrunissa v. State of Maharashtra

[(1981) 2 SCC 709 : 1981 SCC (Cri) 592 : AIR 1981 SC

1861] has observed that: (SCC p. 710)

“The detenu was entitled to be supplied with copies of

all material documents instead of having to rely upon

his memory in regard to the contents of the documents.

The failure of the detaining authority to supply copies

of such documents vitiated the detention, as has been

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 32 of 49

held by this Court in the two cases cited by counsel.

The detenu is, therefore, entitled to be released. He is

accordingly directed to be released forthwith.”

51. To the similar effect are the observations recorded in the

judgment of the Apex Court in Manjeet Singh Grewal vs. UOI &

Ors. reported as 1990 Supp SCC 59.”

29. Upon a plain reading of the said order dated 03.03.2022 and the

above extracted decision of this court, we are of the view that, as the

RUDs; supplied to the Detenus as well as relied upon by the Detaining

Authority, in arriving at its subjective satisfaction were admittedly

illegible; it has the unnerving consequence of violating the

constitutional rights guaranteed to the Detenus.

30. In this behalf, the contention made on behalf of the official

respondents is to the effect that, it is incumbent upon the Detenus to

show that prejudice was caused to them owing to the supply of

illegible RUDs; the specific contention being that, the Detenu must

establish that the failure to supply the RUDs or the supply of illegible

RUDs had impaired or prejudiced his right.

31. In our opinion, the aforementioned contention raised on behalf

on the official respondents is untenable in light of the Hon‟ble

Supreme Court‟s decision in Mrs. Tsering Dolkar vs. Administrator,

Union Territory Of Delhi & Others reported as (1987) 2 SCC 69 and

in particular paragraph 12, wherein it was observed as under: -

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 33 of 49

“12. The learned Additional Solicitor General relied upon the feature

that the petitioner-wife knew both English and Tibetan languages

and an effective representation as a fact had been made. There can be

no two opinions that the requirement of law within the provisions of

Article 22(5) of the Constitution is that the detenu has to be informed

about the grounds of detention in a language which he understands.

The fact that the detenus wife knew the language in which the

grounds were flamed does not satisfy the legal requirement. Reliance

was placed by the learned Additional Solicitor General on a decision

of this Court in Prakash Chandra Mehta v. Commissioner and

Secretary, Government of Kerala &Ors., [1985] 3 SCR 679 in

support of his contention that unless the detenu was able to establish

prejudice on account of the fact that the grounds of detention and the

documents accompanying the grounds were not in a language known

to the detenu the order would not be vitiated. There is no clear

indication of the test of prejudice being applied in that case. On the

facts relevant before the Court, a conclusion was reached that the

detenu was merely reigning ignorance of English and on the footing

that he knew English, the matter was disposed of. We must make it

clear that the law as laid down by this Court clearly indicates

that in the matter of preventive detention, the test is not one of

prejudice but one of strict compliance with the provisions of the

Act and when there is a failure to comply with those

requirements it becomes difficult to sustain the order. (See AIR

1975 SC 1513, [1975] 2 SCR 832 , AIR 1975 SC 245 )."

32. Further, we are constrained to observe that in the grounds of

detention, strong reliance has been placed upon the statements of the

detenus and co-detenus, recorded under the provisions of Customs

Act, 1962. A plain reading of the said grounds of detention clearly

reflects the extensive reliance placed upon the said statements by the

Detaining Authority, for arriving at its subjective satisfaction. In this

behalf, it is observed that the impugned orders of detention only a

passing reference has been made to the circumstance that the

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 34 of 49

Department of Revenue had issued rebuttals to the subject retractions

of the Detenus and that too only on 24.11.2021, merely two days

before the passing of the impugned orders. For abundant clarity the

relevant portions of the impugned order of detention passed against

Detenu No.2 are reproduced below: -

“xxxvi. Zakir Khan filed an application dated 28.10.2021

before the Ld. CMM, Patiala House, New Delhi stating

that the statements dated 18/19.10.2021 before the DRI

officers have been obtained under coercion and torture

and he was forced to write a statement which is totally

false. He accordingly prayed the Ld. CMM, Patiala

House, New Delhi that he may be permitted to retract

his statement dated 18/19.10.2021 and same may be

treated as false and inadmissible. The DRI filed a

rebuttal dated 24.11.2021 before the Ld. CMM, Patiala

House, New Delhi stating inter alia that retraction

application contained untrue averments and are without

any substance, afterthought, and farce. In reply, DRI

stated that the applicant tendered his voluntary

statement under his signature and the said statement

has also been confirmed in his handwriting towards the

end. Further, the retraction has been made 10 days of

the statement; the long gap between the recording of

the statement and the retraction application makes it

clear that the retraction application filed by him is an

afterthought and based on legal tutoring. It was further

stated by DRI that the applicant was medically

examined at Ram Manohar Lohia Hospital Delhi and

thereafter produced before the Ld. Duty Magistrate. As

per the reply of the DRI filed before the Ld. CMM

Patiala House, New Delhi no injury marks (fresh or

otherwise) or bruises was reported by the duty doctors

during the medical examination.

xxxvii. You i.e. Sanjeev Kumar Yadav filed an application

dated 28.10.2021 before the Ld. CMM, Patiala House,

New Delhi stating that the statements dated

18/19.10.2021 before the DRI officers have been

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 35 of 49

obtained under coercion and torture. You accordingly

prayed the Hon‟ble Court that your statement dated

18/19.10.2021 may be ignored and you mat be allowed

to retract the same. The DRI filed a rebuttal dated

24.11.2021 before the Hon‟ble Court stating inter alia

that retraction application contained untrue averments

and are without any substance, afterthought, and farce.

In reply, DRI stated that the applicant i.e. you tendered

your voluntary statement under his signature and the

said statement has also been confirmed in your

handwriting towards the end. Further, the retraction has

been made 10 days of the statement; the long gap

between the recording of the statement and the

retraction application makes it clear that the retraction

application filed by you is an afterthought and based on

legal tutoring. It was further stated by DRI that the

applicant i.e. you was medically examined at Ram

Manohar Lohia Hospital Delhi and thereafter produced

before the Ld. Duty Magistrate. As per the reply of the

DRI filed before the Ld. CMM Patiala House, New

Delhi no injury marks (fresh or otherwise) or bruises

was reported by the duty doctors during the medical

examination.”

This above extracted grounds highlight the considerable gap of time

between the retraction of their statements by the detenus and co-

detenus, and the rebuttal thereof by the DRI. This belated rebuttal on

the part of the official respondents was relevant and germane and

therefore, merited consideration by the Detaining Authority,

particularly when extensive reliance was evidently placed upon those

statements. The Detaining Authority would also have been well-

advised to consider the aspect of admissibility of the statements,

which stood retracted; and were only belatedly rebutted by the

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 36 of 49

Sponsoring Authority, two days before the passing of the impugned

orders of detention. Further, we find from the record of the Detaining

Authority that strong reliance has been placed upon the statement of

not just the detenus but also the statements allegedly recorded of

Sanjeev Kumar Yadav (Detenu No. 2), statedly the co-accused. In this

behalf, the record reflects that Detenu No. 2 retracted his statement on

the very same day as Detenu No. 1 on 28.10.2021, which retraction

has evidently not been placed before the Detaining Authority by the

Sponsoring Authority. In our view, once the Detaining Authority

has relied upon the inculpative statements of the co-accused their

retractions assumed great relevance in the factual backdrop of the

present case. Consequently, the admissibility of the said

statements becomes dubious once there is a retraction, which issue

merited consideration, was evidently not afforded to it by the

Detaining Authority. In this behalf, reliance is placed on this Courts

decision in Gopal Gupta vs. Union of India & Ors. reported as 2021

SCC OnLine Del 3926.

33. In this behalf, it is also trite to state that the Sponsoring

Authority was under a legal obligation to have placed the said

retractions before the Detaining Authority for the latter‟s subjective

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 37 of 49

satisfaction. In this regard, it would be beneficial first to consider the

observations of the Hon‟ble Supreme Court in A Sowkath Ali vs.

Union of India & Others, reported as (2000) 7 SCC 148 and

particularly in paragraph 20 thereof. The said paragraph is extracted

hereinbelow for the sake of facility: -

“20. There can be no doubt, it was not necessary, while considering

the case of the petitioner detenu, to place all or any of the documents

which are relevant and are relied on in the proceedings of a co-

accused, but where the sponsoring authority opts out of its own

volition to place any document of the other co-detenu, not merely

as a narration of fact but reiterating in details the confession

made by him, then it cannot be said it would not prejudice the

case of the detenu. If this has been done it was incumbent for the

sponsoring authority to have placed their retraction also. As held

in Rajappa Neelakantan case [(2000) 7 SCC 144 : (2000) 2 Scale

642] the placement of document of other co-accused may

prejudice the case of the petitioner. In the first place the same

should not have been placed, but if placed, the confessional

statement and the retraction, both constituting a composite

relevant fact both should have been placed. If any one of the two

documents alone is placed, without the other, it would affect the

subjective satisfaction of the detaining authority. What was the

necessity of reproducing the details of the confessional statement

of another co-accused in the present case? If the sponsoring

authority would not have placed this then possibly no legal

grievance could have been made by the detenu. But once the

sponsoring authority having chosen to place the confessional

statement, then it was incumbent on it to place the retraction

also made by them. In our considered opinion, its non-placement

affects the subjective satisfaction of the detaining authority. This

Court has time and again laid down that the sponsoring

authority should place all the relevant documents before the

detaining authority. It should not withhold any such document

based on its own opinion. All documents, which are relevant,

which have bearing on the issue, which are likely to affect the

mind of the detaining authority should be placed before him. Of

course a document which has no link with the issue cannot be

construed as relevant.”

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 38 of 49

34. In a similar vein are the observations of the Hon‟ble Supreme

Court in P. Sarvanan vs. State of T.N. and Others, reported as (2001)

10 SCC 212 and in particular paragraphs 7, 8 and 9 thereof. The said

paragraphs as extracted hereinbelow: -

“7. When we went through the grounds of detention enumerated by

the detaining authority we noticed that there is no escape from the

conclusion that the subjective satisfaction arrived at by the detaining

authority was the cumulative result of all the grounds mentioned

therein. It is difficult for us to say that the detaining authority would

have come to the subjective satisfaction solely on the strength of the

confession attributed to the petitioner dated 7- 11-1999, particularly

because it was retracted by him. It is possible to presume that the

confession made by the co-accused Sowkath Ali would also have

contributed to the final opinion that the confession made by the

petitioner on 7-11-1999 can safely be relied on. What would have

been the position if the detaining authority was apprised of the fact

that Sowkath Ali had retracted his confession, is not for us to make a

retrospective judgment at this distance of time.

8. The second contention that non-placement of the retraction made

by Sowkath Ali would not have affected the conclusion as the

petitioner's confession stood unsullied, cannot be accepted by us.

The detaining authority had relied on different materials and it was a

cumulative effect from those materials which led him to his

subjective satisfaction. What is enumerated in Section 5-A of the

COFEPOSA Act cannot, therefore, be applied on the fact situation in

this case.

9. In this context, it is to be mentioned that the detention order

passed against Sowkath Ali was quashed by this Court when he

challenged that detention order under Article 32 of the Constitution

(vide A. Sowkath Ali v. Union of India [(2000) 7 SCC 148 : 2000

SCC (Cri) 1304 : (2000) 5 Scale 372].”

35. Further, in Union of India vs. Ranu Bhandari, reported as

(2008) 17 SCC 348, the Hon‟ble Supreme Court has observed so in

Paragraphs 33, 34 and 35, which are reproduced hereunder: -

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 39 of 49

“33. In the instant case, as some of the vital documents which have a

direct bearing on the detention order, had not been placed before the

detaining authority, there was sufficient ground for the detenu to

question such omission. We are also of the view that on account of

the non-supply of the documents mentioned hereinbefore, the detenu

was prevented from making an effective representation against his

detention.

34. In the said circumstances, we do not see any reason to interfere

with the judgment and order of the High Court and the appeal is

accordingly dismissed.

35. In parting, we may reiterate what we have indicated hereinbefore,

that since the personal liberty and individual freedom of a citizen is

curtailed by an order of preventive detention, the detaining

authorities must apply their minds carefully and exercise great

caution in passing such an order upon being fully satisfied from

materials which are both for and against the detenu that such an

order is required to be passed in the interest of the State and for the

public good.”

36. As regards, the emphasis placed by the respondents on the

decision of the Hon‟ble Supreme Court in Madan Lal Anand vs. UOI,

reported as (1990) 1 SCC 81, to the effect that it has been held therein

that only copies of documents, on which the impugned detention

orders are primarily based should be supplied to the detenus and not

any and every document; we only observe that it was also clearly held

therein in paragraph 24 thereof as under: -

“We must not, however, be understood to say that the detaining

authority will not consider any other document.”

37. In view of the aforementioned decisions, the legal position that

emerges on this aspect is that, if the documents are relevant and have a

direct bearing on the case, they must be placed before the Detaining

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 40 of 49

Authority for its „subjective satisfaction‟.

38. The reliance placed by the respondent upon the decision of

Kamarunnisa vs. Union of India, reported as (1991) 1 SCC 128, does

not come to their aid, since in the present case we agree with the

submissions made on behalf of the Detenus, that the present is a case

of non-placement of vital facts and documents before the Detaining

Authority owing to their illegibility and that the „subjective

satisfaction‟ is vitiated since the latter was not in possession of vital

RUDs. The ratio in Kamarunnisa (supra) is, therefore, distinguishable

on the facts thereof. Therefore, we have no hesitation in holding that,

the Detaining Authority fell into error in relying upon illegible

documents which is the equivalent of non-placement of RUDs, by the

act of omitting them from consideration, thereby vitiating its

subjective satisfaction, for suffering from the vice of non-application

of mind.

39. It is trite to say 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

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 41 of 49

satisfaction, are provided to the detenu by the Detaining Authority; so

as to enable the detenu 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, renders the order of detention illegal and bad in law; and vitiates

the subjective satisfaction arrived at by the Detaining Authority.

40. We, therefore, answer the first issue by observing that, the

Detaining Authority gravely erred in relying upon illegible documents

which is equivalent to non-placement of RUDs by the act of omitting

them from due consideration which consequently vitiates the

subjective satisfaction arrived at by the detaining authority.

Resultantly, in our considered view, the impugned detention order

stands invalidated.

41. It therefore becomes incumbent upon us to determine the

alternative issue framed hereinabove. Insofar as the second issue, as to

whether the argument premised on S.5A of the COFEPOSA Act by

the official Respondents has the effect of saving the detention order; in

the facts and circumstances of the present case is concerned; we have

accorded our careful consideration to the rival submissions made

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 42 of 49

before us in this regard, in the backdrop of the original records and

material placed before us in the present proceedings.

42. The issues as canvassed before this Court on behalf of the

Detenus is not of mere non supply of legible copies of illegible

documents despite demand. It is the contention of the Ld. Senior

Advocate on behalf of the Detenus that had the Detaining Authority

himself considered the documents for arriving at subjective

satisfaction, rather than adopting any draft grounds of detention, the

Detaining Authority would have been alive to the fact that several

RUDs placed before it were wholly illegible. The specific contention

canvassed is that the subjective satisfaction of the Detaining

Authority, which is condition precedent for issuance of the Detention

Order, is in the circumstance vitiated for non-application of mind. If

the condition precedent for issuance of a detention order is not

satisfied, then such an order cannot be saved even by Section 5A of

the COFEPOSA.

43. The contention made on behalf of the Detenus needs to be

examined in light of the aforesaid specific claim on affidavit filed on

behalf of the Detaining Authority that, “all the documents supplied to

the detenues were relied upon by it for arriving at subjective

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 43 of 49

satisfaction.”

44. It is settled law and not in dispute that under section 3 of

COFEPOSA it is only the detaining authority, which can ultimately

decide to pass or not, a detention order against any person, and that

too, after himself perusing each and every document and material

placed before it. It is also not in dispute that the subjective satisfaction

of the detaining authority itself is to be arrived at after perusing all the

relevant documents and material. This is a constitutionally provided

condition precedent for passing a valid order of Detention. We find

considerable force in the contention that had the Detaining Authority

himself perused the RUDs for arriving at its subjective satisfaction and

formulation of grounds, it would have been alive to the fact that

various RUDs placed before it were illegible.

45. It is pertinent to observe the Detenus submission that the order

of detention was passed in a tearing hurry without due application of

mind. A timeline of the passing of the detention order is as follows;

the last document furnished to Detenu is dated 24.11.2017 (RUD-60 to

64). Since one of the last document is prepared only on 24.11.2017 by

the counsel for the detenu and filed in the lower Court on the same

day, copy of which was supplied to the sponsoring authority on

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 44 of 49

24.11.2017 itself, which was presumably forwarded by the sponsoring

authority to the Detaining Authority only on or about 25.11.2021, it is

axiomatic that it would be humanly impossible for the Detaining

Authority to scrutinize 977 pages of documents and formulate the

grounds of detention and thereafter pass the detention order on

26.11.2017 within a day and a half that too against two detenus. The

Detaining Authority while arriving at its conclusions, inter alia, in

Para 11 of the Grounds of Detention has clearly and categorically

averred as under:

"11. While passing the Detention Order under the provisions of the

Conservation of Foreign Exchange and Prevention of

Smuggling Activities Act; 1974, I have referred to and relief

upon the documents mentioned in the enclosed list, which are

also being served to you along with the grounds of detention”

The paucity of time for the Detaining Authority to himself consider

the voluminous documents to form its subjective satisfaction, and

thereafter to formulate lengthy grounds of detention, rather than

merely approving draft grounds of detention, also tilts the scale in

favour of the Detenus.

46. It is pertinent at this juncture to observe that, the official

Respondents have pleaded the ground of severability under Section

5A of the COFEPOSA only by way of oral submissions before this

Court, the same is not reflected in the counter affidavit, barring a

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 45 of 49

passing reference to Gautam Jain (Supra) in the written submissions

filed on behalf of the official Respondents. The omission is found to

be conspicuous by its absence in the affidavits filed on behalf of the

official Respondents.

47. The reliance placed by the respondent upon the decision of

Gautam Jain vs. Union of India, reported as (2017) 3 SCC 133, does

not come to their assistance, since in the present case we agree with

the submissions made on behalf of the Detenus. The Hon'ble Supreme

Court enunciated therein, the undisputed legal position that, if the

detention order is based on more than one grounds, independent of

each other, then the detention order will still survive even if one of the

grounds is found to be is non-existing or legally unsustainable.

However, it must be observed that, on the other hand, if the detention

order is founded substantially on one composite ground, though

containing various species or sub-heads, the detention order would be

vitiated if such ground is found fault with.

48. The instant case, does not attract the dictum enunciated in

Gautam Jain (Supra), since the grounds of detention in the present

petition are not severable, in view of the patent and palpable vice of

non-application of mind by the Detaining Authority antecedent and

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 46 of 49

attendant in the passing of the detention order. Premised on averments

made of behalf of the Respondents, it is found that illegible documents

supplied to the detenu were clearly and categorically admitted to have

been relied upon by the Detaining Authority. Therefore, the instant

case is distinguishable from the aforementioned case; as the very

grounds of detention in these impugned orders are not severable in the

peculiar facts and circumstances of the present petition.

49. In the case of Praduman Singh v. Union of India & Ors.,

2004 SCC Online Del 446, this Court had held that-

"15. There seems to be force in this argument because according to

this reply, the file was submitted to the detaining authority on

6th May, 2003 along with the document at Sl. No. 37 of the

relied upon documents together with the draft Grounds of

detention by the Deputy Secretary (COFEPOSA) so that in

case the detaining authority ultimately decided to pass the

detention order against the accused person, it may also like to

go through the Grounds of detention placed on the file and vet

the same with whatever changes or additions it may deem fit.

Whether such a procedure/practice as has been adopted in the

case can be said to be in accordance with law or established

procedure and practice which is followed in such like matters?

We must remember that Section 3 of the Act provides for

power to make detention order. Sub-Section (1) of Section 3

of the Act speaks of the authorities who are competent to

make detention orders. In the case of Central Government, an

officer not below the rank of a Joint Secretary and in the case

of State Government, not below the rank of a Secretary to that

Government, who have been specially empowered for the

purposes of Section 3, can only make detention orders. This

clearly depicts the legislative intent that the task of passing a

detention order can only be entrusted to high/senior

functionaries of the State. Only such functionaries who are

specially empowered in this behalf are entitled to pass the

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 47 of 49

detention order if they are satisfied that the detention of any

person is required with a view to preventing him from acting

in any manner prejudicial to the conservation or augmentation

of foreign exchange or with a view to preventing him from

smuggling of goods, etc. Therefore, the satisfaction envisaged

in Section 3 has necessarily to be of the officer specially

empowered in that behalf and of nobody else. We do not

mean to stretch this proposition to the extent that only the

specially empowered officer himself has to do each and every

thing in connection with the passing of the detention order. He

is certainly entitled to take the assistance, from his lower

functionaries for accomplishing this task but their input will

be limited only to place the entire material before the

detaining authority and they should not involve themselves in

decision making process about the recording of satisfaction.

That is entirely within the domain of the detaining authority.

What has been done in the case in hand is somewhat

disturbing because even before the detaining authority

considered the matter and applied its mind to the material

placed before him and recorded his satisfaction about making

the detention order, the lower functionaries had actually put

up a draft of detention order for the approval/vetting by the

detaining authority which implies that the lower functionaries

presumed that the detaining authority is going to pass the

detention order in all eventualities/probabilities. Such a

procedure or practice of putting up draft orders for

approval/vetting by the competent authorities/senior

functionaries can perhaps be justified in the routine

discharge of administrative functions and duties in various

Ministries and Departments of the Governments while

dealing with purely administrative matters. The Rules of

business allocation of the Government permits such a

procedure but when it comes to the passing of quasi-

judicial orders or a detention order under various

preventive detention laws, it has to be different. Adoption

of such a practice or procedure would vitiate the order as

the detaining authority is likely to be influenced by such

an assistance rendered by the lower functionaries, with

whatever bona fide or sincerity it may be. It would have

been a different thing if the entire material had been placed

before the detaining authority and he had applied his mind

and reached a satisfaction about the need to detain the

petitioner on certain grounds and then the lower functionaries

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 48 of 49

had assisted him in formalising the task of preparation and

issuance of the detention order. We have, therefore, no

hesitation in holding that the impugned detention order

can again be termed as without application of mind by the

detaining authority himself and the satisfaction recorded

in the case in hand was not solely of the detaining

authority. The impugned order is vitiated on this count as

well."

50. Significantly, the aforementioned judgement also held,

".......Therefore, it is not possible to hold that the impugned

order which is vitiated on account of non-application of mind by

the detaining authority, can be saved on the strength of Section

5A of the Act. We, therefore, hold that the impugned order is

vitiated and is liable to be quashed on this ground alone."

51. We are therefore of the considered view that, in cases 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.

52. In view of the foregoing discussion and having accorded our

thoughtful consideration to the facts and material on record, the issues

struck hereinabove for consideration; are decided in favour of the

detenus and against the respondents.

53. The writ petitions are accordingly allowed. As a result, the

detention orders bearing No. PD-PD-12001/17/2021-COFEPOSA and

W.P. (CRL.) 72/2022 & W.P. (CRL.) 73/2022 Page 49 of 49

PD-12001/18/2021- COFEPOSA, both dated 26.11.2021 passed

against the Detenu No. 1 and No.2 respectively are hereby set-aside

and quashed. The detenus are directed to be set at liberty forthwith

unless their custody is required in connection with any other case.

Pending applications stand disposed of.

54. The Court Master is directed to return the original file, retained

for the perusal of this Court, to Mr. Anurag Ahluwalia, learned CGSC

forthwith.

55. Copies of this Judgment be provided to the learned counsel

appearing on behalf of the parties electronically and be also uploaded

on the website of this Court forthwith.

SIDDHARTH MRIDUL

JUDGE

RAJNISH BHATNAGAR

JUDGE

MAY 02, 2022

dn/ak