Failure To Supply Of "Legible Copies" Of Documents Relied Upon Despite Request By Detenu Renders Detention Order Illegal: Delhi High Court

The Delhi High Court has observed that a detention order passed by the Detaining Authority based on "illegible" copies of documents suffers from non-application of mind and is liable to be quashed.

It added that a further failure and non-supply of legible copies of all documents to the Detenu, despite request and representation, renders the order of detention illegal and bad in law.

A division bench comprising of Justice Siddharth Mridul and Justice Rajnish Bhatnagar allowed the petitions filed by two detenus namely Zakir Khan and Sanjeev Kumar praying for quashing of detention orders dated November 26, 2021 issued under sec. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

Senior Advocate Vikram Chaudhri alongwith Advocates Rishi Sehgal, Ashish Batra, Ria Khanna and Keshavam Chaudhri appeared for the petitioners.

It was 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.

Regarding Detenu No. 2, it was alleged that he 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.

It was also alleged that Detenu No.2 was stated to have orchestrated a plan to facilitate customs clearance of imported goods that were mis-declared and undervalued using licenses of other Customs Broker despite the fact that the Detenu No.2 himself had a Customs Broker License in his name.

The question before the Court were thus:

- Whether the non-supply of certain relied upon documents (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.?

- Whether in the event that issue A 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.

The Court was of the view that once the Detaining Authority had relied upon the inculpatory statements of the co-accused, their retractions assumed great relevance in the factual backdrop of the matter.

"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," the Court said.

It also added that the Sponsoring Authority was under a legal obligation to have placed the said retractions before the Detaining Authority for the latter's subjective satisfaction.

"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 Authority for its „subjective satisfaction‟," the Court said.

It added

"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 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."

The Court thus held 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.

It rejected the contention of the Respondents that it is incumbent upon the Detenus to show that prejudice was caused to them owing to the supply of illegible RUDs. It reiterated 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 (Mrs. Tsering Dolkar vs. Administrator, Union Territory Of Delhi & Others).

The Court was of the 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.

Accordingly, the Court allowed the pleas.

Case Title: ZAKIR KHAN v. UNION OF INDIA AND ORS. and other connected matter

Citation: 2022 LiveLaw (Del) 396

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