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CASE NO.: Appeal (crl.)  311 of 2006

PETITIONER: Rajinder Arora

RESPONDENT: Union of India and Ors

DATE OF JUDGMENT: 10/03/2006

BENCH: S.B. Sinha & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T [Special Leave Petition (Criminal) No.4708 of 2005]

S.B. SINHA, J :

       Leave granted.

       The Appellant is an industrialist.  He manufactures acrylic yarn,  blankets and shawls.  The said goods are exportable items.  The units of the  Appellant are recognized export houses.  They were awarded the highest  export performance Awards by Wool and Woolen Export Promotion  Council for manufacture of the aforementioned goods.  The Appellant  imported some raw materials on the premise that the imported items would  be utilized for manufacture of the goods which were meant for export.  A  raid was conducted in his residence on 26.05.2004 by the Directorate of  Revenue Intelligence (DRI) and he was taken in custody.  He allegedly was  continuously tortured for two days.  During his detention statements under  Section 108 of the Customs Act were recorded allegedly under coercion,  duress and threat.  He was shown arrested on 28.05.2004 and produced  before a Magistrate.  He was medically examined whereupon marks of  multiple injuries on his person were found.  After he was remanded to  judicial custody by the Magistrate by an order dated 28.5.2004, he retracted  his alleged confession stating that the same had been obtained under  coercion, duress and torture.  He remained under treatment for 45 days out  of the total period of 60 days of his judicial remand (the requisite statutory  period for filing a complaint).  Upon failure on the part of the DRI  Department to file a complaint against the Appellant within the statutory  period of 60 days, he was enlarged on bail on 28.7.2004.  In the meanwhile,  his family members were forced to deposit a sum of Rs.60 lakhs as customs  duty.  Such deposit, however, was made without prejudice to the rights and  contentions of the Appellant.  Several representations were made by the  Appellant stating the aforesaid facts.   

He filed a criminal complaint on 18.02.2005.  The Medical Officer  concerned was examined in the said proceeding wherein he stated:

"On 28.05.2004 at 8.40 PM I examined physically  Sh. Rajinder Arora vide my emergency OPD No.  6607/04.  Patient was brought to me by Mr. R.K.  Saini, Intelligence Officer, DRI, Ludhiana  Regional Unit.  I found following injuries on the  person of Rajinder Arora who is present today:

1. Multiple abrasions, superficial, in an area of 4

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inch x 2 inch over mid of left upper arm, antero  laterally.  Patient also complaint of heaviness in  chest.  His B.P. was 150/106 mm Hg.

In my opinion, duration of injury was about 24  hours.  I have seen the certified copy of injury  report which is correct according to original report  and is Ex. CW2/1, which is signed by me.  When  Rajinder Arora was brought to me he was under  the custody of DRA authorities."

       In the meanwhile, a proposal was forwarded to the DRI, Delhi Zonal  Unit, Delhi for his detention under COFEPOSA.  A proposal was also sent  to COFEPOSA Unit by the said authority.  Allegedly, on 15.2.2005, the DRI  Ludhiana opined that no case has been made out for his detention under  COFEPOSA.  A proposal, however, was made by the said authorities for  determination of detention of Shital Vij, who was said to be the brain behind  utilization of the unlawful import.

       Only on 31.3.2005, the order of detention was issued.   

A writ petition was filed by the Appellant herein before the High  Court of Punjab and Haryana praying for quashing of the said order of  detention.  By reason of the impugned order, the writ petition has been  dismissed.  The Appellant is, thus, in appeal before us.

       The High Court in his impugned judgment opined:

(i)     In the grounds of detention, the detaining authority had adverted to all  the evidences collected against the Appellant including his statement  under Section 108 of the Customs Act as also the subsequent  retraction.   (ii)    The activities of the Appellant come within the purview of the  expression "smuggling" as defined in Section 2(39) of the Customs  Act read with Section 2(e) of the COFEPOSA Act.   (iii)   Delay in issuing the order of detention is not fatal.  Delay, per se,  cannot be a circumstance to set aside an order of detention. (iv)    The subjective satisfaction of the authority is based upon sufficient  material and is sufficient to warrant an order of preventive detention. (v)     No discrimination has been committed as against the Appellant in not  recommending Shital Vij’s detention as its recommendation was  rejected by the Screening Committee.   (vi)    Only because a redemption certificate was issued by the concerned  authority, it cannot be presumed that the Appellant had discharged his  export obligations, without violation of the terms and conditions of his  licences.   (vii)   The complaint petition filed by the Appellant herein, contending  illegal detention and torture, by itself is not a ground for detracting  from the orders passed by the detaining authority as mere filing of a  criminal complaint would not lead to a conclusion that the order of  detention was mala fide.

       Mr. Uday U. Lalit, learned senior counsel appearing on behalf of the  Appellant, would raise the following contentions:

(i)     Licences granted to the Appellant were allowed to be surrendered by  the competent authorities only after an objective assessment was made  in that behalf.

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(ii)    The status report called for by the Customs Authorities from DGFT  having not been considered, the detaining authority must be held to  have failed to take into consideration a relevant fact, as therein it was  opined that no case had been made out for detention. (iii)   As the Appellant filed a complaint against the officer alleging illegal  detention and torture meted out by him, the impugned order of  detention has been passed malafide. (iv)    The Appellant having deposited Rs.60 lakhs without prejudice to his  rights and contentions, and, thus, the impugned order of detention  having been made for unauthorized purpose, was mala fide.  Had  there been any material before the appropriate authority, they would  have lodged a complaint against the Appellant. (v)     There was absolutely no reason as to why such a long time was  taken for passing the order of detention.

       Mr. K. Radhakrishnan, learned senior counsel appearing on behalf of  the Respondent, on the other hand, relying on or on the basis of the findings  of the High Court, as noticed supra, would support the order of detention.

       It is not in dispute that the authorities in terms of Sections 9(4), 10 and  11 of the Foreign Trade Development and Regulation Act, 1994 exercise a  wide jurisdiction.  Although the raid was made on 26.05.2004, admittedly,  till date, no prosecution has been lodged as against the Appellant by DGFT.   It is also not in dispute that the statutory authorities has not yet issued any  show cause notice on the Appellant on the ground that the export  commitments were not fulfilled.  It is furthermore not in dispute that the  authorities had granted redemption certificates.

       A pre-detention order can be quashed only on a limited ground.  This  Court in Additional Secretary to the Government of India and Others v. Smt.  Alka Subhash Gadia and Another [1992 Supp (1) SCC 496] laid down the  criterias therefor upon a detailed consideration of the provisions of the   Preventive Detention Laws and the right of individual to assail an order of  detention without surrendering in the following terms:

"\005Thirdly, and this is more important, it is not  correct to say that the courts have no power to  entertain grievances against any detention order  prior to its execution. The courts have the  necessary power and they have used it in proper  cases as has been pointed out above, although such  cases have been few and the grounds on which the  courts have interfered with them at the pre- execution stage are necessarily very limited in  scope and number, viz., where the courts are prima  facie satisfied (i) that the impugned order is not  passed under the Act under which it is purported to  have been passed, (ii) that it is sought to be  executed against a wrong person, (iii) that it is  passed for a wrong purpose, (iv) that it is passed  on vague, extraneous and irrelevant grounds or (v)  that the authority which passed it had no authority  to do so. The refusal by the courts to use their  extraordinary powers of judicial review to interfere  with the detention orders prior to their execution  on any other ground does not amount to the  abandonment of the said power or to their denial to  the proposed detenu, but prevents their abuse and  the perversion of the law in question."

       Recently a 3-Judge Bench of this Court in Naresh Kumar Goyal v.  Union of India and Others [(2005) 8 SCC 276] (in which one of us P.K.

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Balasubramanyan, J. was a member), opined:

"It is trite law that an order of detention is not a  curative or reformative or punitive action, but a  preventive action, avowed object of which being to  prevent the anti-social and subversive elements  from imperiling the welfare of the country or the  security of the nation or from disturbing the public  tranquility or from indulging in smuggling  activities or from engaging in illicit traffic in  narcotic drugs and psychotropic substances etc.  Preventive detention is devised to afford protection  to society. The authorities on the subject have  consistently taken the view that preventive  detention is devised to afford protection to society.  The object is not to punish a man for having done  something but to intercept before he does it, and to  prevent him from doing so. It, therefore, becomes  imperative on the part of the detaining authority as  well as the executing authority to be very vigilant  and keep their eyes skinned but not to turn a blind  eye in securing the detenue and executing the  detention order because any indifferent attitude on  the part of the detaining authority or executing  authority will defeat the very purpose of  preventive action and turn the detention order as a  dead letter and frustrate the entire proceedings.  Inordinate delay, for which no adequate  explanation is furnished, led to the assumption that  the live and proximate link between the grounds of  detention and the purpose of detention is snapped.  (See : P.U. Iqbal v. Union of India and Ors.,;  Ashok Kumar v. Delhi Administration, and  Bhawarlal Ganeshmalji v. State of Tamilnadu)"

       In that case, however, the order of detention had not been  implemented for a long time and having considered Alka Subhash Gadia  (supra) and several other decisions, it was held:

"Coming to the facts of this case, at the highest the  case of the appellant is that the order of detention  was belatedly passed and the State of Bihar  thereafter took no steps whatsoever to implement  the order of detention. Counsel for the appellant  sought to bring this case under the third exception  enumerated in Alka Subhash Gadia (supra),  namely, that the order was passed for a wrong  purpose. In the facts and circumstances of this  case, it is not possible to accept the submission that  the order was passed for a wrong purpose.  Apparently the order has been passed with a view  to prevent the appellant from smuggling goods or  abetting the smuggling thereof etc. The facts of the  present case are no different from the facts in  Muneesh Suneja (supra). We do not find that the  case falls within any of the exceptions enumerated  in Alka Subhash Gadia (supra). The High Court  was, therefore, justified in refusing to exercise  jurisdiction under Article 226 of the Constitution  of India to quash the order of detention at the pre- arrest stage. This appeal is, therefore, devoid of  merit and is dismissed."                 

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       Mr. Lalit, however, is not correct in his submissions that only because  a redemption certificate had been granted by DGFT, the same would itself  be sufficient for quashing an order of detention as the activities of smuggling  on the part of the importer may come to their notice at a later part of time.

       We may, however, notice that the Appellant has categorically stated  that a status report was submitted by the Respondent No. 3 to the DRI, Delhi  on their request but the same had not been placed before the detaining  authority.   

       In Ground ’U’ of the SLP filed by the Appellant, herein, it is stated:

"Because the High Court has failed to appreciate  that, as per the knowledge of the petitioner, the  respondent No. 3 submitted the status report of the  present case vide its letter dated 15.02.2005 to the  DRI Delhi on their request which was not placed  before the detaining authority the respondent No. 2  herein.  As per the knowledge of the petitioner, the  status report had negated the passing of the order  of detention.  This status report/ letter has been  deliberately withheld with a malafide intention.  It  is a settled law that the non-production of relevant  and vital documents before the detaining authority  renders the detention order invalid."

The said pleas raised by the Appellant has been traversed by the  Respondent in the following terms:

"In reply to the contents of Para U, it is submitted  that the status report dated 15.2.2005 is an internal  correspondence of the department and has not been  relied upon in the detention orders dated  31.03.2005 and hence are not required to be served  upon the petitioner."

       It is, however, not in dispute that although the raid was conducted on  26.05.2004, no material had been brought on record for even launching a  prosecution as against the Appellant as yet.  When the aforementioned  question was raised by the Appellant, herein before the High Court, the  Respondent contended that the prosecution would be launched soon.  But,  when the same point was raised before us, the Respondents in their counter  affidavit merely stated:

"OO) In reply to the contents of para OO, it is  submitted that the Show Cause Notice in the  matter has been drafted and is being issued shortly.   Complaint in the matter will be filed only after  adjudication.  However, detention under the  COFEPOSA Act 1974 is not a punitive action and  is preventive in nature.  Prevention detention under  COFEPOSA Act is independent of adjudication  and prosecution proceedings."

       The said counter affidavit has been affirmed in November, 2005.  It is  beyond anybody’s comprehension as to why despite a long passage of time,  the Respondents have not been able to gather any material to lodge a

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complaint against the Appellant.  It has furthermore not in dispute that even  the DGFT authorities have not issued any show cause notice in exercise of  their power under Foreign Trade Development and Regulation Act, 1994.

       Furthermore no explanation whatsoever has been offered by the  Respondent as to why the order of detention has been issued after such a  long time.  The said question has also not been examined by the authorities  before issuing the order of detention.

       The question as regard delay in issuing the order of detention has been  held to be a valid ground for quashing an order of detention by this Court in  T.D. Abdul Rahman v. State of Kerala and others [AIR 1990 SC 225]  stating:

"The conspectus of the above decisions can be  summarised thus: The question whether the  prejudicial activities of a person necessitating to  pass an order of detention is proximate to the time  when the order is made or the live-link between  the prejudicial activities and the purpose of  detention is snapped depends on the facts and  circumstances of each case. No hard and fast rule  can be precisely formulated that would be  applicable under all circumstances and no  exhaustive guidelines can be laid down in that  behalf. It follows that the test of proximity is not a  rigid or mechanical test by merely counting  number of months between the offending acts and  the order of detention. However, when there is  undue and long delay between the prejudicial  activities and the passing of detention order, the  court has to scrutinise whether the detaining  authority has satisfactorily examined such a delay  and afforded a tenable and reasonable explanation  as to why such a delay has occasioned, when  called upon to answer and further the court has to  investigate whether the causal connection has been  broken in the circumstances of each case. Similarly when there is unsatisfactory and  unexplained delay between the date of order of  detention and the date of securing the arrest of the  detenu, such a delay would throw considerable  doubt on the genuineness of the subjective  satisfaction of the detaining authority leading to a  legitimate inference that the detaining authority  was not really and genuinely satisfied as regards  the necessity for detaining the detenu with a view  to preventing him from acting in a prejudicial  manner."

       The delay caused in this case in issuing the order of detention has not  been explained.  In fact, no reason in that behalf whatsoever has been  assigned at all.

       Admittedly, furthermore, the status report called for from the Customs  Department has not been taken into consideration by the competent  authorities.

       A Division Bench of this Court in K.S. Nagamuthu v. State of Tamil

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Nadu & Ors. [2005 (9) SCALE 534] struck down an order of detention on  the ground that the relevant material had been withheld from the detaining  authority; which in that case was a letter of the detenu retracting from  confession made by him.

       Having regard to the findings aforementioned, we are of the opinion  that grounds (iii) and (iv) of the decision of this Court in Alka Subhash  Gadia (supra) are attracted in the instant case.

       For the reasons aforementioned, the impugned order of detention  cannot be sustained, which is set aside accordingly.  The appeal is allowed.