1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 678 OF 2008 DIST.: MUMBAI Anuj Bajaj, ] ...Petitioner Age 28 years, A-112, Derawala Nagar, ] (Brother of the Opposite Model Town, New Delhi 110 009 ] detenu) Versus 1. The State of Maharashtra ] through the Additional Chief Secretary to ] the Government of Maharashtra, ] Home Department (Special), Mantralaya, ] Mumbai 400032 ] 2. Ms. Anna Dani, ] the Principal Secretary (Appeals & Security), ] Government of Maharashtra, Home Department, ] Mantralaya, Mumbai 400032 ] 3. The Superintendent of Prison, ] Nasik Road Central Prison, Nasik Road, ] Maharashtra. ] ...Respondents. Mrs. A.M.Z. Ansari with Ms. Nasreen Ayubi for the Petitioner Mr. S.R. Borulkar, Public Prosecutor, with Mrs. S.D. Shinde, Additional Public Prosecutor, for the Respondents. CORAM: B ILAL NAZKI and A.A. KUMBHAKONI, JJ. DATE : AUGUST 13, 2008 ORAL JUDGMENT (Per Bilal Nazki, J.):- 2 This petition has been filed by the brother of Shri Amit Bajaj, who has been detained by an order dated 11th February, 2008 passed by the Detaining Authority under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The Grounds of Detention were served on the detenu. 2. We have heard the learned counsel for the petitioner as well as the learned Public Prosecutor, and perused the record. 3. The attack on the detention by the learned counsel for the petitioner is on three grounds: that there was delay in passing the Order of Detention; secondly, it was contended that there was a vital document (Nil Panchanama), which was not considered by the Detaining Authority while passing the Order of Detention; and the third ground was that it was a case of total non-application of mind by the Detaining Authority. 4. Before going to these grounds of attack, we would quote from the Grounds of Detention the brief history, as given by the Detaining 3 Authority about this case:- “2. Pursuant to an intelligence gathered by the officers of the Directorate of Revenue Intelligence (DRI), Mumbai that goods imported at Nhava Sheva port by certain Delhi based firms, which are cleared without payment of Customs duty, by filing Bills of Entry for Warehousing, are being diverted and sold in the market, instead of being taken to the bonded warehouses stated to be located in Haryana (Kundli, Rohtak, Faridabad, etc.) for the purpose of storing. As a consequence, Government was losing huge amount of Customs duty on such illegal diversion and sale. It was also gathered that the import consignments comprising of Copper Scrap, Brass Scrap, Zinc Ingots, Tin Sheets, Chemicals, Dry Fruits, Betel Nut, Gambier, Tiles, etc. were being imported and cleared in the name of some Delhi based firms like M/s. Ankush Trading Co., M/s. Kajal Creations Inc., M/s. Span International, M/s. Perfect Impex, M/s. Ranbakura Brothers, M/s. Muskan Enterprises and M/s. X-cellent Exim Overseas etc. and were being diverted in a clandestine manner, as aforesaid. 3. Based on the above intelligence, discrete enquiries were made through the concerned Central Excise Commissionerate for verification of existence of bonded warehouses in the names of the above-mentioned firms. It was reported by the concerned Central Excise authority that no bonded warehouse in the name of above said firms were in existence at the addresses provided. Further, photocopies of 'Re-warehousing Certificates' certifying receipt and storage of the goods imported in the names of the above said firms at the declared bonded warehouse, were sent to the jurisdictional Central Excise authorities, for verifying genuineness of the same. It was reported by the concerned Central Excise authorities that the proper officer has issued no such Certificates. The said 'Re-warehousing Certificates' were being submitted to the authorities in Bond Section of JNCH, Nhava Sheva for getting the Bonds cancelled and release of supporting Bank Guarantees, which were furnished at the time 4 of filing of the Bills of entry for Warehousing. It was also confirmed that no Ex-Bond Bills of Entry were filed for clearance of the imported goods, in the names of the above said firms. 4. Based on the above inputs, simultaneous actions were initiated at Mumbai and Delhi on 29/03/2006. As per the intelligence developed, the import consignments were cleared from Nhava Sheva Port by CHAs M/s. P.H. Mehta & Co., M/s. D.M. Mehta & Bros., M/s. C.P. Mota &Co., and were transported by M/s. Ambalal Bombay Roadways (ABR) from the port to various upcountry destinations. Accordingly on 29/03/06 import documents pertaining to the aforesaid firms were also taken over from the concerned CHAs.” In this background, ultimately, an Order of Detention was passed against several persons, including the detenu. 5. Counter-affidavit has been filed by the Detaining Authority. In the first instance, we will go to the third ground of attack that it was a case of total non-application of mind. Internal page 27 of the counter- affidavit of the Detaining Authority stated that the detenu was involved in prejudicial activities. It further said as under:- “The Sponsoring Authority prepared the proposal of 13 persons and forwarded it to the Screening Committee and after approval of the Screening Committee, the sponsoring authority forwarded the proposal of the detenu alongwith 12 persons to 5 me, which was received in the office on 14.12.2006 and was assigned to the Assistant. The said proposal was running into about 7419 pages. Thereafter, the concerned Assistant after carefully going through the papers, prepared a scrutiny note on 3.1.2007 and forwarded it to the Under Secretary. The Under Secretary who gave his endorsement on the same day and forwarded the same to the then Detaining Authority. The then Detaining Authority endorsed it on 17.1.2007 and thereby directed to call IO for discussion. Accordingly, the sponsoring authority was communicated on 23.1.2007. The Investigating Officer attended the office of the then Detaining Authority on 12.2.2007 and after discussion, the then detaining authority directed him to submit the report. It is submitted that accordingly the then Detaining Authority returned the file to the Desk on 13.2.2007. During the said period there were holidays on 21.1.2007, 26.1.2007, 27.1.2007, 28.1.2007, 30.1.2007, 4.2.2007, 10.2.2007 and on 11.2.2007. The present proposal was accompanied by 12 other proposals. In the meantime the then Detaining Authority was transferred to another department and I assumed the charge of the office of the Detaining Authority. Thereafter, the concerned Assistant again prepared a detailed note on 11.4.2007 and forwarded the same to the Under Secretary who gave his endorsement on 11.4.2007, and forwarded the said proposal to the Deputy Secretary, who gave his endorsement on 20.4.2007. It is submitted that during the said period there were holidays on 14.04.2007 and 15.04.2007 and assembly budget session was going on. Thereafter, the file was forwarded to me and after discussion with the Investigating Officer and carefully going through the said proposal, I approved the same and formulated the draft grounds of detention on 30.4.2007.” 6. Now, these assertions in the affidavit are not borne out by record. Before coming to the record, it will be necessary to reiterate that this officer took over the charge of the Detaining Authority some 6 time after 10th April, 2007, and the file came to her, for the first time, on 30th April, 2007. The record does not show that this file was sent to the Detaining Authority before 30th April, 2007, but the file had been endorsed by the Deputy Secretary on 20th April, 2007. Even if it reached the Detaining Authority on the same day, then it can be presumed that the Detaining Authority had 10 days with her to pass an order on 30th April, 2007. Whereas in the counter-affidavit, she stated that on 30th April, 2007, she approved the proposal and formulated the Grounds of Detention, the record shows that she made the following observation on the file: “Discuss with I.O. Issue Detention Order.” That means the Detaining Authority made her mind to detain the detenu on 30th April, 2007 itself. 7. We fail to understand how the Detaining Authority had taken into consideration documents which were comprising of 7419 pages. Even if it is accepted that she had 10 days before she passed an order of directing issuance of Detention Order, although that is not proved by the record itself, then, in our view, 10 days was not a sufficient time for considering 7419 pages of documents. The process of framing the Grounds of Detention starts after the order has been passed for issuing the Detention Order! - which amounts to placing the cart before the 7 horse. If there are grounds of detention available to a Detaining Authority, then he can apply his mind, and examine whether a detenu has to be detained or not; but once the Detaining Authority first decides to detain a person, and then manufactures the grounds of detention, that cannot be permitted. Even in the affidavit, it has been admitted that the Grounds of Detention were framed after 30th April, 2007, and on 30th April, 2007, the order with respect to issuance of Detention Order had already been passed. 8. Time and again, we have said that this is an extra-ordinary power given to the officers of the State to detain a person without any charges or without any chance of trial; and this power should be exercised with care. Since, on this ground alone, the Order of Detention can be quashed, we do not go to the other grounds. 9. In the result, the Order of Detention dated 11th February, 2008 is quashed, and the detenu, Amit Bajaj, be released forthwith, if not required in any other case. The Writ Petition is accordingly allowed. The Rule is made absolute in the above terms. 8 BILAL NAZKI, J. A.A. KUMBHAKONI, J.