1 233211 vgm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2332 OF 2011 Sangita Bala Jadhav ] Age 36 years, an Indian inhabitant, ] Residing at A/202, Shiv Shristhi Building, ] Plot No. 3, Section 7, New Panvel, ] Navi Mumbai ] ...Petitioner (Wife of Detenu) V/s. 1. The State of Maharashtra ] through the Secretary to the Government ] of Maharashtra, Home Department (Special), ] Mantralaya, Mumbai 400 032 ] 2. Medha Gadgil, ] the Principal Secretary (Appeals and Security) to ] the Government of Maharashtra, ] Home Department and Detaining Authority, ] Mantralaya, Mumbai 400 032 ] 3. Senior Police Inspector, ] P.C.B., C.I.D., Shivaji Market, Mumbai. ] 4. The Superintendent of Prison, ] Nashik Road Central Prison, Nashik Road, ] Nashik ] 5. The Customs Officers of JNPT, ] Nhava Sheva, Uran, Dist. Raigad. ] ...Respondents 2 233211 WITH CRIMINAL WRIT PETITION NO. 2333 OF 2011 Vikram Vithal Borhade ] Age 30 years, an Indian Inhabitant, Residing at ] 402, A Wing, Shridha Co-op. Hsg. Society, ] Kala Chowki, Lal Baug, Mumbai-33. ] ...Petitioner V/s. 1. The State of Maharashtra ] through the Secretary to the Government of ] Maharashtra, Home Department (Special), ] Mantralaya, Mumbai 400 032 ] 2. Medha Gadgil, ] the Principal Secretary (Appeals and Security) ] to the Government of Maharashtra, ] Home Department and Detaining Authority, ] Mantralaya, Mumbai 400 032 ] 3. Senior Police Inspector, ] P.C.B., C.I.D., Shivaji Market, Mumbai ] 4. The Superintendent of Prison, ] Nashik Road Central Prison, Nashik Road, ] Nashik ] 5. The Customs Officers of JNPT, ] Nhava Sheva, Uran, Dist. Raigad. ] ...Respondents AND CRIMINAL WRIT PETITION NO. 2683 OF 2011 Vimal Ashok Dhakne ] Age 45 years, an Indian inhabitant, residing ] at 401, Runwal Residency, 4th Floor, ] Avenue Road, Post Office Park, Chembur (East), ] Mumbai 400 071 ] ...Petitioner 3 233211 V/s. The State of Maharashtra ] through the Secretary to the Government of ] Maharashtra, Home Department (Special), ] Mantralaya, Mumbai 400 032 ] 2. Medha Gadgil, ] the Principal Secretary (Appeals and Security) to ] the Government of Maharashtra, ] Home Department and Detaining Authority, ] Mantralaya, Mumbai 400 032 ] 3. The Superintendent of Prison, ] Nashik Road Central Prison, Nashik Road, ] Nashik ] 4. The Customs Officers of JNPT, ] Nhava Sheva, Uran, Dist. Raigad. ] ...Respondents Mrs. Aisha Zubair Ansari with Ms. Nasreen Ayubi for the Petitioners Mr. J.P. Yagnik, A.P.P., for the State CORAM: A.M. KHANWILKAR AND P.D. KODE, JJ DATE: NOVEMBER 08, 2011. JUDGMENT (PER A.M. KHANWILKAR, J.) :- By this common judgment, we intend to finally dispose of all three petitions challenging the Orders of Detention together, as the background in which the respective Detention Orders were issued against the concerned detenues is common and arising out of the same 4 233211 transaction and more so, the issues raised are overlapping. In other words, the facts and events as disclosed in the respective petitions as also the reply-affidavits and the original record of the respondents, i.e., the Sponsoring Authority and the Detaining Authority are broadly identical. 2. The first petition is filed by the wife of Bala Baburao Jadhav (hereinafter referred to as Detenu Jadhav), challenging the Order of Detention dated 20th July, 2011 bearing No. PSA-1211/CR-17(4)/SPL-3(A) issued by the Detaining Authority in exercise of powers under Section 3(1) of the Conservation of of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as “the said Act”), upon recording satisfaction that it was essential to detain the detenu with a view to prevent him in future from smuggling of goods and abetting smuggling of goods and engaging in transporting and concealing and keeping smuggled goods and harbouring persons engaged in smugging of goods and abetting smuggling of goods. From the Grounds of Detention served on the said detenu, it is noticed that the said action was initiated against the said detenu, as he was involved along with four others in the case of gross misdeclaration with respect to quantity, quality and valuation of 5 233211 the declared export goods, besides claim of disproportionately higher amount of drawback. The Grounds of Detention refer to the statements of the accused recorded under Section 108 of the Customs Act, 1962, including the admission of the detenu that he had filed the wrong declaration on the shipping bills and had not obtained the permission of proper officer for making amendments. Further, the co-accused, Sanjay Waghmare, in his statement, admitted that he had removed the export goods from the warehouse through his associate for export. It also refers to the sealed samples (28 in number) of the goods covered under the eight shipping bills drawn under panchanama, which were forwarded to the Textile Laboratory and Research Centre, Mumbai, for testing the composition and criteria of the said items; as also to Government-approved valuer for valuation. The goods totally valued at Rs.3,67,98,880 (F.O.B.) with drawback claim of Rs.34,20,030/-. As per the valuation report, the value was determined at Rs.10/- per piece of Dupatta and Rs.20/- per piece of Sarong as compared to the declared value of Rs. 351.34 and Rs. 280.78 of the respective items, which were considerably very low. Detenu Jadhav was involved in the said offence as an employee of Clearing House Agency firm of M/s. Dhakne & Co. The Grounds of Detention state that Detenu Jadhav abetted in smuggling activities by improper export and claiming drawback 6 233211 fraudulently by offering Clearing House Agency services to the exporters. He prepared and signed the shipping bills and related documents for exports of M/s. Noble Impex and completed custom dock formalities without scrutinising the export documents. He submitted blank annexure / declaration to generate the checklist. There was difference in signature on the invoices and alterations, i.e., gross weight, net weight, description of the goods, quantity of the goods, market value and different dates on the declaration. He submitted overwritten / correct customs cleared documents at EDI Centre, Kalamboli, without proper permission of the Customs. In his statement under Section 108 of the Customs Act, he admitted misdeclaration in description, quantity, quality, valuation of the export goods and claiming drawback fraudulently by the exporter. In the Grounds of Detention, it is stated that Detenu Jadhav has the propensity to commit similar offences in future and knowingly was not disclosing the identities of the persons involved in smuggling. Further, considering the nature and gravity of the offence and the well-organised manner in which the prejudicial activities were being carried out, the Detaining Authority recorded her satisfaction that it was imperative to detain Detenu Jadhav with a view to prevent him from indulging in smuggling 7 233211 activities in future as his smuggling activities were covered by Section 113(d) and (h) (ii) of the Customs Act, 1962. 3. The second petition is filed by the cousin brother of one Sanjay Nivrutti Waghmare (hereinafter referred to as “Detenu Waghmare”) to challenge the Detention Order dated 20th July, 2011 bearing No. PSA-1211/CR-17(5)/SPL-3(A) issued by the Detaining Authority in exercise of powers under Section 3(1) of the said Act, upon being satisfied that detention of Detenu Waghmare was essential to prevent him in future from smuggling of goods and abetting smuggling and engaging in transporting and concealing and keeping smuggled goods and harbouring persons engaged in smugging of goods and abetting smuggling of goods. As aforesaid, the Detention Order against Detenu Waghmare has been passed in connection with the same transaction referred to in the Grounds of Detention of Detenu Jadhav regarding smuggling of goods of gross misdeclaration with respect to quality, quantity and valuation of the declared export goods and claim of disproportionately higher amount of drawback regarding the export consignment of M/s. Noble Impex under eight shipping bills. 8 233211 4. In the Grounds of Detention served on Detenu Waghmare, it is stated that he was part of a larger conspiracy and entered into conspiracy to earn money by improper export and claiming drawback fraudulently. He went to Surat to solicit probable exporter and discussed the export strategy with exporter. He fixed Rs.10,000/- per container as his charges and helped the exporter to get I.E.C. Code. He also arranged transport for the export of goods from Surat to Mumbai, kept the goods at warehouse at Mumbai, removed and transported export goods to shed. He introduced the exporter to Clearing House Agent M/s. Dhakne & Co. and booked the container for the export goods from M/s. Freight Services, Mumbai. It is further stated that Detenu Waghmare removed export goods from warehouse through his associate, arranged transport and transported the export goods to shed, thereby aided and abetted improper export for claiming higher drawback fraudulently in violation of the provisions of Section 113(d) and (h) (ii) of the Customs Act. It is stated that Detenu Waghmare, along with four other co-accused, were actively involved in the attempted improper export and claimed higher disproportionate amount of drawbacks fraudulently, thereby indulging and abetting in smuggling activities. He has the propensity to commit such offences in future and knowingly was not disclosing the identities of the persons involved in 9 233211 the smuggling, as they are actively involved in the aforesaid illegal activities. It is stated that, considering the nature and gravity of the offence and the well-organised manner in which Detenu Waghmare had engaged in prejudicial activities, it was imperative to detain him with a view to prevent him from indulging in smuggling activities in future. 5. The third petition is filed by the wife of one Ashok Pandurang Dhakne (hereinafter referred to as “Detenu Dhakne”), challenging the Detention Order dated 20th July, 2011 bearing No. PSA-1211/CR-17(3)/SPL-3(A) issued by the Detaining Authority in exercise of powers under Section 3(1) of the said Act, directing detention of Detenu Dhakne to prevent him in future from smuggling of goods, abetting smuggling of goods and engaging in transporting, concealing, keeping smuggled goods and harbouring persons engaged in smugging of goods and abetting smuggling of goods. 6. Even in the third petition, the impugned Detention Order is founded on the same transaction pertaining to export consignment of M/s. Noble Impex under eight shipping bills which came under scanner because of gross misdeclaration with respect to quantity, quality and valuation of the declared export goods and claim of disproportionately 10 233211 higher amount of drawback. After referring to the relevant admission given by the co-accused, it is noticed that Detenu Dhakne was partner of the concerned Clearing House Agency, i.e., M/s. Dhakne & Co. The Grounds of Detention stated that Detenu Dhakne abetted the improper exports and claiming drawback fraudulently by offering his C.H.A. services to the exporters. He was shown the sample of export goods. He instructed his staff to prepare the shipping bills and related documents for exports. He had given instructions to Detenu Jadhav to prepare, file the shipping bills and complete Customs dock formalities. He confirmed the name of Bala Jadhav on shipping bills of M/s. Noble Impex on behalf of C.H.A. Firm, M/s. Dhakne & Co. He admitted to have offered his C.H.A. service without verifying quality and quantity of the samples of the items to be exported. He has also admitted having given the blank annexure/declaration to his employee, Detenu Jadhav. Detenu Dhakne also confirmed the different signatures on the invoices and admitted misdeclaration in description, quantity, quality, valuation of the export goods and claiming drawback fraudulently by the exporter. The Detaining Authority, in the Grounds of Detention, has noted that the four accused were actively involved in the attempted improper export and claiming higher disproportionate amount of drawback, thereby indulging and abetting in smuggling activities. 11 233211 They all have the propensity to commit prejudicial activities in future and knowingly not disclosing the identities of the persons involved in smuggling, as they were actively involved in the stated illegal activities. It is noted that the acts of commission and omission of the detenu contravened the provision of Section 113(d) and (h)(ii) of the Customs Act. Further, considering the nature and gravity of the offence and the well-organised manner in which Detenu Dhakne had engaged in prejudicial activities, it was imperative to detain him under the said Act with a view to prevent him from indulging in smuggling activities in future. 7. In the respective petitions, although diverse grounds have been taken, at the time of hearing of the petitions the counsel for the petitioners, in all fairness stated that most of the contentions were common to all the three petitions. We shall at the appropriate stage indicate the additional contention taken in respect of the two connected petitions of Detenues Waghmare and Dhakne, specific to those cases. 8. The first set of common grounds urged in all the three petitions can be summarised as follows:- Firstly, that there has been delay in initiating the proposal for detention of the respective detenues; secondly, that the Detention Orders could not have been issued in the fact situation of the case as 12 233211 the detenues had not indulged in similar prejudicial activities after being released on bail in connection with the transaction in question; and, thirdly, that the Detaining Authority has failed to consider whether any other measure was possible, instead of issuing Orders of Detention. However, at the time of hearing, the learned counsel fairly submitted that she may not pursue the above noted grounds in view of the recent decision rendered by us in the case of Shamsher Singh S/o. Balwinder Singh v. the State of Maharashtra & Ors., Criminal Writ Petition No. 2188 of 2011 decided on 11th October, 2011. Incidentally, in that case also, the counsel for the petitioners herein had appeared for the detenu and unsuccessfully pursued these very grounds. She fairly accepts that the principle enunciated in the said decision in relation to the abovesaid grounds would squarely apply and it may not be possible for her to distinguish the same. 9. That leaves us with the other three broad common points urged by the learned counsel for the petitioners. According to the petitioners, the impugned Detention Orders suffer from the vice of non-application of mind. In that, the Detaining Authority, after receipt of the proposal, proceeded to pass order within one day. The argument proceeds that it was impossible for the Detaining Authority to wade through all the four proposals examined together in one day and also formulate grounds 13 233211 therefor. The second shade of challenge to the impugned Detention Order, as suffering from the vice of non-application of mind, is that, there is variance in the alleged activities stated by the Detaining Authority in the Order of Detention and the ones mentioned in the Grounds of Detention. The Grounds of Detention, even if read as a whole, would, at best, indicate that the satisfaction recorded is only in respect of the detenu having abetted in the commission of the offence; and yet, the Order of Detention proceeds against the detenu also for having engaged in smuggling goods; engaged in transporting, concealing, keeping smuggled goods and harbouring persons engaged in smuggling goods. For this singular reason, the Detention Order is vitiated. The last common ground urged by the learned counsel for the petitioners is that there is unexplained and inordinate delay in deciding the representation made by the detenues, both by the Detaining Authority as well as the State Government. 10. Accordingly, we shall now turn to the challenge on the ground that the impugned Detention Orders suffer from the vice of non-application of mind. The facts relevant for deciding this contention are common in all the three cases. For the sake of convenience, we shall refer to the relevant dates mentioned in the petition filed in respect of Detenu Jadhav. 14 233211 11. According to the petitioners, the proposal was received by the Detaining Authority on 19th July, 2011 and the Detaining Authority proceeded to examine all the proposals together within one day and passed the order on 20th July, 2011, as also recorded Grounds for Detention. As regards this contention of the petitioners, the Detaining Authority, in reply-affidavit dated 13th September, 2011 in paragraph 5, has averred as follows:- “... a proposal for preventive detention under COFEPOSA Act in case of Shri Bala Baburao Jadhav and four others was submitted by the Joint Commissioner of Customs (Preventive) Mumbai vide its letter dtd. 06.05.2011 which was received in this office on 6.5.2011. The proposal was scrutinized by the concerned Assistant and was submitted on 1.6.2011 to the Under Secretary who endorsed it on 1.6.2011 and forwarded it to Deputy Secretary. The Deputy Secretary endorsed it on 1.6.2011 and the proposal was submitted to me. I have directed to get information on certain points from Sponsoring Authority. The information was called from Sponsoring Authority vide letter dated 9.6.2011. The said information was received from the Sponsoring Authority vide letter dtd. 27.6.2011. The concerned Assistant prepared a note on 29.6.2011 and submitted it to the Under Secretary who endorsed it on 30.6.2011 and forwarded it to Deputy Secretary. The Deputy Secretary endorsed it on 2.7.2011 and the proposal was submitted to me. I endorsed it on 11.7.2011 and directed to get the documents stamped. By its letter dtd. 11.7.2011 the Sponsoring Authority forwarded the copy of Show Cause Notice, dtd. 4.7.2011 which was submitted to me and on 12.7.2011 I as the Detaining Authority directed to include it in relied upon documents. Thereafter on 19.7.2011 the stamped relied upon documents were submitted to me. I as the Detaining Authority directed to issue the detention Order by drafting the Detention Order along with the grounds of detention and also directed to submit the fair copy of the same. Accordingly the fair copy of the Detention Order and the grounds of detention was submitted to me on 20.7.2011 15 233211 and on the same day the detention order was issued against the detenu. I as the Detaining Authority, on the material facts available on record and after my subjective satisfaction with the documentary presentation as clearly stated in the grounds of detention, communicated to the detenu. I arrived at the decision that the detenu should be detained under the provisions of the COFEPOSA Act and accordingly Detention Order was passed.” (emphasis supplied) 12. On analysing the stand taken by the Detaining Authority in its proper perspective, it appears to us that the process of scrutiny of the proposals by the Detaining Authority commenced on 1st June, 2011, when the same were endorsed to her by the Deputy Secretary. She directed to get necessary information on certain points from the Sponsoring Authority. After the said information was received from the Sponsoring Authority, the proposal was scrutinised further, in the first place, by the concerned Assistant and submitted to the Under Secretary, who, in turn, made his endorsement and forwarded the same to the Deputy Secretary. The Deputy Secretary, thereafter, made his endorsement and submitted the proposal before the Detaining Authority. The proposal was, once again, scrutinised by the Detaining Authority after it was received from the Deputy Secretary on 2nd July, 2011. The fact that the Detaining Authority had made endorsement on the proposal on 11th July, 2011 and directed to get the documents 16 233211 stamped pre-supposes that the Detaining Authority had once again examined the proposal after its receipt. The Detaining Authority received further documents from the Sponsoring Authority on his Show Cause Notice dated 4th July, 2011 on 12th July, 2011. The Detaining Authority directed inclusion of the said Show Cause Notice in the compilation of relied-upon documents. No doubt, the final proposal consisting of stamped relied-upon documents were received by the Detaining Authority on 19th July, 2011 and the Detention Orders and the Grounds of Detention were issued on 20th July, 2011. That, however, does not mean that only on and after 19th July, all the four proposals were examined by the Detaining Authority for the first time, that too, in one day, as is suggested by the petitioners. Moreover, it cannot be overlooked that since all the four proposals pertained to the self-same transaction, most of the relied-upon documents therein - 19 documents running into 294 pages in case of Detenu Jadhav, 20 documents running into 302 pages in the case of Detenu Waghmare and 23 documents running into 346 pages in the case of Detenu Dhakne - were bound to be overlapping, as is evident from the list of documents in the three cases before us:- 17 233211 Sr.No. Cri.W.P. 2332 OF 2011 Cri.W.P. 2333 OF 2011 Cri.W.P. 2683 OF 2011 1. Checklist for Export 8984595 dtd 26-10-10 (with Declaration, Annex-A, Invoice Details, Item Details etc.) Checklist for Export 8984588 dtd 26-10-10 (with Declaration, Annex-A, Invoice Details, Item Details etc.) Checklist for Export 8984570 dtd 26-10-10 (with Declaration, Annex-A, Invoice Details, Item Details etc.) Checklist for Export 8984619 dtd 26-10-10 (with Declaration, Annex-A, Invoice Details, Item Details etc.) Checklist for Export 984577 dtd 26-10-10 (with Declaration, Annex-A, Invoice Details, Item Details etc.) Checklist for Export 8984546 dtd 26-10-10 (with Declaration, Annex-A, Invoice Details, Item Details etc.) Checklist for Export 8984811 dtd 26-10-10 (with Declaration, Annex-A, Invoice Details, Item Details etc.) Checklist for Export 8984796 dtd 26-10-10 (with Declaration, Annex-A, Invoice Details, Item Details etc.) Shipping Bill No. 8984595 dtd 26-10-10 (with Checklist, Invoice, Packing List) Shipping Bill No. 8984588 dtd 26-10-10 (with Checklist, Invoice, Packing List) Shipping Bill No. 8984570 dtd 26-10-10(with Checklist, Invoice, Packing List) Shipping Bill No. 8984619 dtd 26-10-10 (with Checklist, Invoice, Packing List) Shipping Bill No. 8984577 dtd 26-10-10 (with Checklist, Invoice, Packing List) Shipping Bill No. 8984796 dtd 26-10-10 (with Checklist, Invoice, Packing List) Shipping Bill No. 8984546 dtd 26-10-10 (with Checklist, Invoice, Packing List) Shipping Bill No. 8984546 dtd 26-10-10 (with Checklist, Invoice, Packing List Shipping Bill No. 8984811 dtd 26-10-10 (with Checklist, Invoice, Packing List) Shipping Bill No. 8984595 dtd 26-10-10 (with Checklist, Invoice, Packing List) Checklist for Export 8984588 dtd 26-10-10 (with Checklist, Invoice, Packing List) Checklist for Export 8984570 dtd 26-10-10 (with Checklist, Invoice, Packing List) Checklist for Export 8984619 dtd 26-10-10 (with Checklist, Invoice, Packing List) Checklist for Export 984577 dtd 26-10-10 (with Checklist, Invoice, Packing List) Checklist for Export 8984796 dtd 26-10-10 (with Checklist, Invoice, Packing List) Checklist for Export 8984546 dtd 26-10-10 (with Checklist, Invoice, Packing List) Checklist for Export 8984811 dtd 26-10-10 (with Checklist, Invoice, Packing List) 18 233211 2 Statement of Shri Khalil A.R.A. Kapadia PD No. 2 dated 24.11.10 Letter of Freight Systems dated 18-02-11 Blank Declarations signed by PD (7 Nos.) 3 Statement of Shri Khalil A.R.A. Kapadia PD No. 2 dated 2.11.10 Statement of Shri Khalil A.R.A. Kapadia PD No. 2 dated 24.11.10 Statement dated 24.11.10 of Shri Khalil A.R.A. Kapadia PD No. 2 4 Statement of S.J. Naeemuddin PD No. 1 dated 18.11.10 Statement of Shri Khalil A.R.A. Kapadia PD No. 2 dated 2.11.2010 Statement dated 2.11.10 of Shri Khalil A.R.A. Kapadia PD No. 2 5 Statement of S.J. Naeemuddin PD No. 1 dated 02.11.10 Statement of Sh.S.J.Naeemuddin PD No. 1 dated 18.11.2010 Statement dated 18.11.10 of Shri Saiyed J. Naeemuddin PD No. 1 6 Statement of Shri Ashok P. Dhakane PD No. 3 dated 14.03.11 Statement of Sh.S.J.Naeemuddin PD No. 1 dated 02-11.2010 Statement dated 02.11.10 of Shri Saiyed J. Naeemuddin PD No. 1 7 Statement of Shri Ashok P. Dhakane PD No. 3 dated 19.11.10 Statement of PD dated 03-03-2011 Statement dated 14.03.11 of Shri Saiyed J. Naeemuddin PD No. 1 8 Statement of Shri Ashok P. Dhakane PD No. 3 dated 02.11.10 Statement of Shri Ashutosh Rai dated 08-02-2011 Statement dated 15.12.10 of Shri Bala Baburao Jadhav PD No. 4 9 Statement of PD dated 14.03.2011 Statement of Shri Ashutosh Rai dated 11-02-2011 Statement dated 16.11.10 of Shri Bala Baburao Jadhav PD No. 4 10 Statement of PD dated 21.02.2011 Statement of Shri Khalil A.R.A. Kapadia PD No. 2 dated 06-12-2010 Statement of PD dated 14.03.2011 19 233211 11 Statement of PD dated 15.12.2010 Statement of Shri S.J. Naeemudidn PD