Ravi Chandra Mishra Vs Union of India (Delhi High Court)
Delhi High Court granted release from detention to detenu on the ground of supply of illegible/ dim/ blank pages of Relied Upon Documents (RUDs). Detention order set aside.
Facts-
The detenu (Ravi Chandra Mishra) is engaged in his profession as a Customs House Agent. It is alleged that detenu cleared import consignments of Zakir Khan’s firms knowingly and being fully aware of the fact that Zakir Khan used to import old and used laptops, mobile phones, computer/mobile accessories from Dubai, Hong Kong, China and USA by mis-declaration and undervaluation in order to evade customs duty. The detenu has allegedly actively abetted the commission of offences under the Customs Act, 1962 leading to the evasion of customs duty.
The detenu was arrested on the 27.11.2021 and sent to judicial custody. Further, the DRI submitted a proposal for detention of the detenu under the COFEPOSA Act before the Joint Secretary, COFEPOSA on 16.12.2021; in pursuance thereto, the impugned detention order was issued on 28.12.2021. The said detention order was statedly served on the detenu along with the grounds of detention, on the 29.12.2021 at the Tihar Jail, New Delhi, under alleged acknowledgement. Further, the COFEPOSA Advisory Board opined that there existed sufficient grounds for the detention of Sh. Ravi Chandra Mishra/the detenu. Accordingly, vide order dated 21.02.2022, the Central Government has considered the opinion/report of the Advisory Board and confirmed the impugned detention order. Accordingly, the detenu is presently detained and lodged at the Tihar Central Jail, New Delhi.
Conclusion-
It is well settled and not in dispute that under the provisions of 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 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 produced.
This is a constitutionally provided condition precedent for passing a valid order of detention.
It is also an admitted position that many of the RUDs (relied upon documents) placed before the detaining authority were illegible/dim/blank pages. We, therefore, find considerable force in the contention that had the detaining authority itself perused the RUDs for arriving at its ‘subjective satisfaction’ and formulation of grounds, it would have been alive to the fact that many of the RUDs placed before it were wholly illegible.
In view of the foregoing discussion, this issue is resultantly decided in favour of the detenu and against the respondent.
FULL TEXT OF THE JUDGMENT/ORDER OF DELHI HIGH COURT
1. The present writ petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure 1973, has been instituted on behalf of Ravi Chandra Mishra (hereinafter referred to as „the detenu‟), praying for a direction in the nature of certiorari for quashing of the detention order bearing F.NO. PD-12001/19/2021-COFEPOSA, dated 28.12.2021, issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as “COFEPOSA”) against the petitioner/detenu; and for further directions that the detenu be set at liberty forthwith. At the outset, it would be pertinent to note that vide common judgment dated 02.05.2022, in the case titled Zakir Khan vs. Union of India & Ors., reported as 2022 SCC OnLine Del 1284, this Court quashed and set aside detention orders issued against the co-detenus therein.
FACTS OF THE CASE: –
2. The relevant facts qua the detenu, as are necessary for the adjudication of the subject writ petition are briefly encapsulated as follows: –
2.1. The detenu is engaged in his profession as a Customs House Agent (“CHA”) and has been handling the customs clearing work for various importers/exporters at customs ports in Kolkata and other Indian ports. The investigation against the detenu emanates from an investigation initiated by Income Tax Department and thereafter by the Directorate of Revenue Intelligence (“DRI”) against one Zakir Khan whose consignments were cleared as a CHA by the detenu.
The detenu, it is alleged, cleared import consignments of Zakir Khan’s firms knowingly and being fully aware of the fact that Zakir Khan used to import old and used laptops, mobile phones, computer/mobile accessories from Dubai, Hong Kong, China and USA by mis-declaration and undervaluation in order to evade customs duty. The detenu has allegedly actively abetted the commission of offences under the Customs Act, 1962 leading to the evasion of customs duty.
2.2. That, Zakir Khan and one Sanjeev Kumar Yadav (also a Customs house agent) were summoned to the Office of DRI, and their voluntary statements dated 18/19.10.2021 tendered under Section 108 of the Customs Act, 1962 were recorded wherein they allegedly admitted to their involvement in the import of electronic goods by way of mis-declaration and gross under-valuation through dummy import firms. Both Zakir Khan and Sanjeev Kumar Yadav were arrested on 19.10.2021 under the Customs Act, 1962 and remanded to judicial custody. Subsequently on 26.11.2021, detention orders were passed against Zakir Khan and Sanjeev Kumar Yadav; pursuant to their arrest by the DRI for the commission of alleged offences, punishable u/s 132/135(1)(a)(b) of the Customs Act, 1962.
2.3. It is asseverated by the official respondent that, based on information received from the Income Tax Department; the DRI, Kolkata Zonal Unit initiated search proceedings on 22.10.2021 at the office premises of customs broker firm M/s Jyoti Enterprises located at Room No. 908A, Diamond Heritage Building, 16, Strand Road, Kolkata; the proprietor of which firm is allegedly the detenu herein. That during the search proceedings, documents of M/s Indo Fabs, M/s Viha International and M/s R. K. Overseas were resumed for further investigation; the de-facto control/ownership of which three firms allegedly vested with Mr. Zakir Khan, although they operated as dummy firms with different proprietors who served as de-jure owners. In his statement under section 108 of the Customs Act, the detenu admitted to his involvement in import of electronic goods by way of mis-declaration and gross under-valuation through the aforementioned import firms allegedly owned/ controlled by Zakir Khan.
2.4. That upon further examination/ valuation of goods imported under the aegis of the aforementioned firms, purportedly owned/controlled by Zakir Khan, a Show Cause Notice (SCN) No. 01/2022 dated 08.04.2022 was issued by the DRI, wherein it has been proposed to confiscate the following goods being illegally imported by M/s Indo Fabs (IEC- FKSPM5899G) vide Container No. PCIU8689880, valued at Rs. 21,05,85,480/- (Rupees Twenty One Crore Five Lakh and Eighty Five thousand Four Hundred and Eight Only), and goods imported by M/s R K Overseas (IEC- AMHPR9196F) vide Container No. WHLU5698385, valued at Rs. 12,20,37,060/- (Rupees Twelve Crore Twenty Lakhs Thirty Seven thousand and Sixty Only) and goods imported by M/s Viha International (IEC- HMPPS4660J) vide Container No. PCIU8010617, valued Rs. 13,32,92,300/- (Rupees Thirteen Crore Thirty Two Lakhs Ninety Two thousand and Three hundred Only).
2.5. That during the forensic analysis of mobile phones resumed by the Income Tax Department, a WhatsApp group in the name “Yoga with twist” was discovered installed allegedly in the mobile phone of Zakir Khan, wherein Zakir Khan is the group administrator and the other participants of the group include Zakir Khan’s China Mobile number, one Priyanka Razdan’s two Mobile Nos. and also the Mobile No. of the detenu. In the said group, the said Priyanka Razdan shared a Bill of Lading number corresponding to container number WHLU5698385 which is allegedly indicative of the fact that the detenu was well aware of the actual quantity and description of the restricted goods being so imported.
2.6. That the detenu was summoned to the Office of DRI and his voluntary statement dated 26/27.11.2021, tendered under Section 108 of the Customs Act, was recorded. Thereupon the detenu was arrested on the 27.11.2021 and sent to judicial custody. Further, the DRI submitted a proposal for detention of the detenu under the COFEPOSA Act before the Joint Secretary, COFEPOSA on 16.12.2021; in pursuance thereto, the impugned detention order was issued on 28.12.2021. The said detention order was statedly served on the detenu along with the grounds of detention, on the 29.12.2021 at the Tihar Jail, New Delhi, under alleged acknowledgement. Further, the COFEPOSA Advisory Board opined that there existed sufficient grounds for the detention of Sh. Ravi Chandra Mishra/the detenu. Accordingly, vide order dated 21.02.2022, the Central Government has considered the opinion/report of the Advisory Board and confirmed the impugned detention order. Accordingly, the detenu is presently detained and lodged at the Tihar Central Jail, New Delhi.
3. A perusal of the grounds of detention, impugned in these proceedings reveal that the role assigned therein to the detenu, pursuant to the investigation carried out, is substantially to the effect that:-
(a) The detenu played a vital role in evasion of customs duty by repeatedly resorting to gross undervaluation and misdeclaration of imported goods; and that the detenu facilitated customs clearance of imported goods knowing well that the same were mis-declared.
(b) Investigation conducted by the DRI allegedly establishes the detenu’s continued propensity and inclination to indulge in the acts of smuggling in a planned manner, to the detriment of the economic security of the country and that unless prevented the detenu will continue to do so. The detenu, in his statements under section 108 of the Customs Act and section 132(4) of the Income Tax Act, 1961, has assertedly admitted to his involvement in the illegal import of various electronic goods and accessories in the names of various dummy entities controlled by Zakir Khan and that the true value and nature of the goods were evidently not declared the Customs authorities.
(c) Further, considering the nature and gravity of offence, in which the detenu had engaged himself in an organized manner; and upon consideration of such prejudicial activities and the detenu’s role therein; all of which reflect the detenu’s high potentiality and propensity to indulge in such prejudicial activities in the future; therefore, it was concluded by the sponsoring authority that there is a need to prevent the detenu from smuggling of goods.
ARGUMENTS ON BEHALF OF THE PETITIONERS: –
4. Mr. Shubhankar Jha, learned counsel appearing on behalf of the detenu vehemently assails the impugned order of detention whilst submitting that the non-supply of relied upon documents (hereinafter referred to as the „RUDs’) has jeopardized the only right available to the detenu i.e. the right of making an effective representation. Further that, it is now an admitted position with regard to the supply of illegible copies of the subject RUDs, including but not limited to, those supplied to the detenu; and the axiomatic consequential non-consideration thereof by the Detaining Authority rendering the impugned detention order as invalid; specifically in light of the decision of this Court in Zakir Khan v. Union of India & Ors. reported as 2022 SCC OnLine Del 1284; and consequently, the detenu urges release from detention on the ground of parity as being better placed than the detenus in the Zakir (Supra) case. In this regard, counsel appearing on behalf of the detenu limits the challenge in the present petition to the solitary ground of the non-supply of certain RUDs, which clearly infringe on the detenu’s constitutional guaranteed right under Article 22(5) of the Constitution of India; and that the admitted supply of illegible/dim of RUDs, undeniably vitiates the subjective satisfaction arrived at by the detaining authority.
5. It is submitted in this behalf that, non-supply of vital documents, relied/referred in the grounds of detention have evidently not been served upon the detenu, despite his specific request in this behalf, to the detaining authority vide letter dated 19.01.2022 (Annexure 5); and the circumstance that the said request was rejected the very next day i.e., 20.01.2022 (Annexure 6) by the detaining authority. It is submitted that rejection of the said request further curtailed the detenu’s constitutional protection under Article 22(5) of the Constitution of India read with Section 3(3) of the COFEPOSA.
6. It is further submitted that, a large number of illegible/dim/blank RUDs referred to by the detaining authority have also not been supplied to the detenu at all, despite various specific demands made on behalf of the detenu vide representation(s) dated 17.01.2022 (Annexure 7) to the COFEPOSA Advisory Board, Delhi High Court through electronic mail, and request dated 21.01.2022 (Annexure 8) to the Central Govt. through the Central Economic Bureau as well as to the Detaining Authority i.e. Joint Secretary COFEPOSA; thereby vehemently urging that the detenu’s constitutional right to an effective representation was curtailed, owing to the non-supply/supply of illegible RUDs and the same being relied upon by the detaining authority while passing the impugned detention order.
7. At this stage it is observed that in the RUDs, the following documents were found to be completely illegible: –
