0 HIGH COURT OF DELHI : NEW DELHI Judgment delivered on: 20.12.2010 + WP (Crl) No. 1628 of 2010 Ribu Kurian Ninan Petitioner Versus Union of India & Ors Respondent And + WP (Crl) No. 1629 of 2010 Sumeet Saluja Petitioner 4 Versus Union of India & Ors. Respondent Advocates who appeared in this case :- For The Petitioners : Mr. B. Kurnar, Sr. Advocate with' Mr. Naveen Malhotra, Adv. For The Respondents : Mr. A. S. Chandhiok, ASG with Mr. Sachin Dutta, Mr. Ravinder Aggarwal, Mr. Ashish Gupta, Mr. Abhimnanyu Singh and Mr. D. S. Sodhi, Advs. for Respondent Nos. 1 & 2. Ms. Meera Bhatia with Mr. Roshan Kurnar. Advs. for Respondent No. 3. Coram: HON'BLE MR. JUSTICE BADAR DURREZ AHMED HON'BLE MR. JUSTiCE MANMOHAN SINGH Whether the Reporters of local papers may be allowed to see the judgment? Yes To be referred to Reporter or not? Yes Whether the judgment should be reported in the Digest? Yes W. P. (Cr,!) Nos. 162812010 & 162912010 Page 1 of26 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified MANMOHAN SINGH, J. By these two writ petitions involving the common facts and law, the petitioners Ribu Kurian Ninan (W.P.(Crl) No.1628/2010) and Sumeet Saluja (W.P.(Crl) No.1629/20 10) have sought the quashing of their respective detention orders dated 20.09.20 10 passed under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'COFEPOSA Act') ordering their detention with a view to preventing them from smuggling goods in future. As per record available, it appears that on 29.09.2010 and - 2.1 Q .2010 detention orders were served upOn the petitioners and they were lodged at Central Jail, Tihar, New Delhi. The grounds of detention and relied upon documents were served upon the petitioners on 01.10.2010 and 04.10.2010 respectively. References were made on 05.10.2010 and 06.10.2010 to the Advisory Board under Section 8(b) of the COFEPOSA Act ibid for opinion under sub-section (c) of Section 8. Thereafter, separate representations dated 18.10.2010 were made by them to the detaining authority as well as to the Central Govt. with a request for revocation of detention orders alternatively for supply. of documents and information in order to make an effective representation The relevant facts giving rise to these petitions are (a) That specific infonnation was received by the Directorate of Revenue Intelligence, Lucknow Zonal Unit that MIs Avon Exports having TEC Code No.0509006302 being Merchant W. P. (Cr1) Nos.1628/2010 & 162912010 Page 2 of26 Exporter have indulged in the export of Non-Basmati Rice a prohibited item notified under DGFT Notification No.5 5 (RE- 2008/2004-2009) dated 05.11.2008 though lCD, Loni in the guise of Basmati Rice (stuffed under self sealing procedure) by way of mis-declaring the goods i.e. Non-Basmati Rice 1 as Basmati Rice in export documents. On 30.10.2009 five containers bearing Nos.TGHU 0325750, GLDU 3631931, TCKU 3558342, CAXU 6182462 & TSLU 6222088 were detained at lCD. Loni, Ghaziabad for 100% examination which were given entry into the custom area at lCD Loni vide shipping bills No.295 1, 3892 and 3191 and were examined at lCD, Loin in the presence of officers of the Directorate of Revenue Intelligence, Central Bureau of Investigation and Customs, representation of CHA and Custodian. Samples were drawn from the said five detained containers and sent to Regional Agmark Laboratory, New Delhi. Test reports of the said five containers confirmed it to be Non-Basmati Rice. Since the goods found in the subject export consignment fell in the category of prohibited items and were prohibited for export as provided in DGFT Notification No.55 (RE-2008/2004- 2009) dated 05.11.2008 issued by Govt. of India, they were liable to be confiscated under Section 113 of the Customs Act, 1962 for violation of the said DGFT Notification and Section W. P. (Cr1) Nos. 162812010 & 162912010 Page 3 of 26 'V 9 50 (2) of the Customs Act, 1962 and as such the same were seized under Section 110 of the Customs Act, 1962. In the grounds of detention, it is mentioned that during the course of investigation it appeared that the firm Ivlls Avon Exports was being looked after by MIs Bishan Swaroop Ram Kishan Agro Pvt. Ltd. a firm from where the affairs of Mi's Aross International were being looked after. Office premises of the Bishan Swaroop Rain Kishan Agro Pvt. Ltd. was searched and hard-disc of the computer installed in the office of the Bishan Swaroop Rain Kishan Agro Pvt. Ltd. were resumed. It is mentioned that from the hard disc some documents were recovered. Statements of Shri Ribu Kurian Ninan 10% partner of Mis Avon Export were recorded on 2 1.12.2009 and on 22.12.2009. Later on, by letter dated 24.12.2009, he had retracted certain portions of his statement recorded on 22.12.2009. Statements of Shñ Rakesh Dhaa1ia' s (CHA of both MIs Avon Export and MIs Aross International statement) was recorded on 11.01.2010 and 12.01.2010 under Section 108 of the Customs Act, 1962, who stated that the export documents of both firms i.e., Avon Exports and MIs Aross International were handedover by Ribu K. Ninan, 10% partner of Mis Avon Exports and he was of the impression that both firms were related firms. W. P. (Cr1) Nos.1628/2010 & 162912010 Page 4 o/'26 (h) In the grounds for detention it was stated that a single bank pay order of Rs.19,000/- was issued to the debit of account in the name of MIs India Crown Food Product, New Delhi (another firm owned by the petitioner) which was submitted towards handling charges for four containers of MIs Aross International and six containers of MIs Avon Exports which showed a nexus between the two firms and Bishan Saroop Ram Kishan Agro Pvt. Ltd. Despite several summons, the petitioner did not appear before the investigating agency. 4 (i), On 11.03.2010 a complaint under Sections 174/175/228 of the IPC was field against Sh. Sumeet Saluja in the Court of Special Judicial Magistrate, Economic Offences, Lucknow. (J) It is further mentioned in the grounds of detention that a writ petition was filed by MIs Avon Exports through Sh. Sumeet Saluja in the High Court of Lucknow and on 25.05.010 the said writ petition was disposed off with the direction for release of the seized goods under the provisions of Section 110A of the Customs Act, 1962 and, in compliance of the orders on 18.06.2010, the goods were ordered to be released provisionally under certain terms and conditions. (k) In para 13 of the grounds for detention, it was stated that the prosecution proceedings have been initiated against Sh. Sumeet Saluja and proceedings are likely to be initiated against R.K. Ninan. W. P. (Cr1) Nos. 1628/2010 & 162912010 Page 5 of26 (I) In view of sequence of events and nexus between the dates of incident and the material on record, the presiding officer. recorded his satisfaction to the effect that activity of the petitioners amounted to smuggling and they be prevented from indulging in the said activities in future by detention under Section 3(1) of the COFEPOSA Act, 1974. . 4. . . On merits, the petitioners have denied the allegations raised by the respondent and have stated that they have no concern, with Aross International or with Bishan Swaroop Ram Kishan Agro Pvt. Ltd. . They have also no concern with those documents and the containers seized by the authority as they were not meant for export. Copies of the shipping bills, test reports and complete investigation report were not supplied to them. They have denied any links or nexus with the firm MIs Aross International. The goods were ordered to be released by the High Court of Lucknow on provisional basis. It is also averred that in para 13 of grounds of detention it was mentioned that the adjudication proceedings are likely to be initiated against Ribu Kurian Ninan and in fact the show cause notice for extension of time under Section 110(2) of the Customs Act, 1962 was issued by the Commissioner of Customs and the same was replied. The order for extension of investigation for the period of six months was passed. No prosecution proceedings under Section 135 of the Customs Act, 1962 have been initiated against him. It is also alleged that there was a long delay in passing the detention order as date of incident was 30.10.2009, proposal for prosecution was sent on 8.6.2010, W. P. (Cl) Nos.1628/2010 & 162912010 Page 6 of26 \V minutes were issued on 23.6.2010 and the order was passed in end of September. We are not required to go into the merits of the dispute in question as we have been informed that a prosecution against Surneet Saluja is pending in the Court of competent jurisdiction and against Ribu Kurian Ninan, the prosecution is likely to be initiated. Learned counsel for the petitioner raised several arguments for challenging the said detention orders during the course of hearing. We are only dealing with one of them which is strongly stressed by learned counsel for the petitioners namely non-supply of documents relied upon in the grounds of detention and supply of illegible documents relied upon by the respondents. Thus, we are only required to consider if any case on behalf of the petitioners for non-supply of vital/material documents i made out or not. We are of the view that in-case the petitioners are able to make out their case about the non-supply of these documents within the - airibit of four corners of law, then it would vitiate their preventive detention orders and it would not be necessary for us to go into the other points raised by the parties. Two main contentions for quashing of their detention orders dated 20.9.2010 on the point of non-supply of documents have been urged by the learned. counsel for the petitioners which are as under: (i) That various vital documents as referred in paras 1 to 8 of the grounds of detention have not been communicated to the petitioners, even despite W. P. (Cr1) Nos. 162812010 & 162912010 Page 7 of26 representations made by the petitioners for revocation of detention order, on this basis or alternatively for supply of the documents. (ii) Some of the documents relied upon by the respondents which were communicated to the petitioners by the respondents were illegible/incomplete documents, the same are available at page Nos.20, 23; 26, 38, 97, 103, 112 & 127 of the relied upon documents. First Contention 8. The case of the petitioners is that the order of detention is based upon the facts referred in paras 1 to 10 in the grounds of detention which also refers to various documents and the factum of the same is evident from paras 11, 13 and 15 of the orders. It is argued by the petitioners that since the relied upon documents in the grounds of detention were not communicated to the petitioner pari passu, therefore the detention is illegal and bad in law on the 51h day of detention and even the same have not been commumcated upto date despite requests made In the representations. The petitioners have given details of relied upon documents referred in the grounds of detention in para 7(a) to (g) of their writ petitions. The details of such documents are discussed as under:- (i) In para 1 of the grounds of detention, the detail of shipping bills • referred in the order have not been supplied to the petitioners. The contention of the respondent is that copies of the shipping bills No. 2951, 3892, and 3191 were admittedly not communicated/supplied but it was submitted by the respondents that the seizure memo dated 22.1.2010 supplied to tl1e petitioners along with relied upon docunients carries the number of shipping bills and the detail of the same which are also W P. (Cr1) Nos. 162812010 & 162912010 Page 8 oJ26 mentioned in the grounds of detention. Since the said seizure memo contained full details about the shipping bills, therefore, the right of the petitioners was not affected for making effective representations. • (ii) It is also mentioned in the grounds of detention that the samples of the rice were drawn from the five detained containers and sent to regional Agmark Laboratory, New Delhi.' Test report of the said containers was called upon as mentioned in the grounds of detention, Panchnamas of drawing of samples were drawn • and through a communiation!letter the same were sent to the Agmark Laboratory, Nev Delhi. Admittedly the said report was relied upon in the ground of detention. However, the report obtained from the Laborary has not been communicated to the petitioners. The reply of the respondent is that the test report • dated 23.12.2009 is not a vital document. Further, its veracity was not challenged by the petitioners, the detail of the same is mentioned in the seizure memo, even otherwise, the said test report has nothing to do with the question of detaining the detenus. Thus, according, to the respondents, no prejudice has been caused to the petitioners by non-supply of the same. Para 4 of grounds of detention mentions that one of the petitioners Sb. Ribu Kurian Ninan made his statement on 21.12.2009 and 22.12.2009 under Section 108 of the Customs Act, 1962 wherein he stated that Sb. Sumeet Saluja, the other petitioner, and Sh. Gian Chand are good friends and often they used to talk about the expOrt of rice. Sb. Ribu Kurian Ninan had retracted portions of his statement recorded on 22.12.2009 and the said retraction was sent by him on 24.12.2009 which was received by the respondents. Neither the retraction has been placed before the detaining authority nor there is any averment mentioned in the grounds of detention or served upon the petitioner. The reply of the respondent is that said retraction is only a part retraction. Further the statement made by him on 2 1.12.2009 has not been retracted. Therefore, non-supply of retraction would not prejudice them for making effective representations. (iv) Para 8 of the grounds of detention refers to the writ-petition filed by Surneet Saluja. The petitioners submit that copies of the writ petition and orders passed by the DRI officials in terms of the orders passed by the Lucknow High Court have not been communicated. The reply of the respondent is that the said proceedings were initiated by one of the detenus Sumeet Saluja • • himself. All . the relevant papers were in . his power and possession, thus, he had the knowledge of factum of filing of writ petition. He referred the decision of TN vs. Abdijilali W. P. (Cr1) Nos. 1628/2010 & 1629/2010 Page 9 of26 Kadlier Balciza, (2009) 1 SCC 333, wherein it has been observed: "7.....it is not understood as to how the order passed in a writ petition which was dismissed can be a document about which the detenu had no knowledge.'. .... (v) In para 5 of the grounds of detention, the statements of Rakesh Dhatalia dated 11.01.2010 and 12.01.2010 recorded under Section 108 of the Customs Act were referred to but the were not communicated to the petitioners by the detaining authority. The reply of the respondents is that the said statements are referred to for the purpose of narration of facts and nexus between the parties in order to show the illegal activities of the petitioners and it could not be required by the petitioners to make effective representation. £ (Vi) In the grounds of detention in para 6 the detaining authority has referred to the copy of the pay order of Rs.19,000/- issued to the debit of account in the name of MIs India Crown FQod Products, New Dethi, towards the handling of containers. Copy of the pay order has not been communicated to the petitioners. Similarly, in para 7 of the grounds of detention, it was mentioned that Sumeet Saluja despite several summons issued to him did not appear before the investigating agency i.e. DRI, Lucknow and a complaint under sections 174/175/228 of JPC read with section 108 of the Customs Act, 1962 had been filed on 11.03.20 10 in the Court of Special Judicial Magistrate (Economic Offences), Lucknow. No copy of the complaint or any documents or any order passed by the Special Judicial Magistrate (Economic Offences) have been communicated to the petitioners though the same had been relied upon in the detention order. The reply of the respondent is the same that non-supply of documents has to be supported by the prejudice caused to them in making an effective representation. Since Sumeet Saluja was aware and had the knowledge about the complaint filed by the department against him, therefore, the reference in this regard is only a passing reference. Hence, there was no prejudice to the petitioners as the petitioners' rights were not affected for making the representations. Second Contention 9. The learned counsel for the petitioners argued that copies of certain relied upon documents supplied to petitioners were illegible and incomplete documents and a request was made before the respondents for W.? ('Cr1) Nos. 162812010 & 162912010 Page 10 of 26 supply of the same in the representations dated 18.10.2010 in order to make effective representations for revocation of detention orders. The learned counsel for the respondents submitted that copies of the documents initially supplied to the petitioner itself were all legible copies and there is no substance in the plea of the petitioners. In fact at the time of hearing, respondents produced the photocopies of the same which were. actually supplied to the petitioner as relied upon documents. A bare look at the documents and also comparison with the Annexure E filed by the petitioners along with petitions, it shows that most of documents are legible copies except two documents i.e., at page 26 and 127 of the list. 10. In a nutshell, the case of the respondents is that the narration of facts in grounds of detention itself is comprehensive, the documents referred in the grounds of detention are merely referred to for the purpose of narration of facts, and therefore the same cannot be tenned to be documents without supply of which the detenus are prejudiced. Mr. A. S. ChandiOk, learned ASG and senior counsel for the respondents has argued that only the relied upon documents need to be supplied which have already been supplied. It is also submitted by him that while deciding the question as to which documents were actually, relied upon by the detaining authority the Court has to see whether the non-supply of said documents shall affect the right of making an effective representation. The order of detention can be said to have been vitiated only in cases where non-supply of documents shall affect the right of a detenu to make an effective representation. It is only the relied upon W. P. (Cr1) Nos. 162812010 & 162912010 Page]] of26 documents that are necessary to be supplied and not the documents which are casual in nature which are mentioned by passing reference in the grounds of detention for narration of facts. It is also argued that the onus is on the detenu to prove that non-supply of documents has prejudiced him and affected his right to make an effective representation. ii. In support of his submission, Mr. A. S. Chandhiok, learned Additional Solicitor General for the respondents, has placed reliance on the following judgments: Radhakrishnan Prabliakaran vs. State of TN., (2000) 9 SCC 170, wherein it was observed: • "8. We may make it clear that there is nO legal requirement that a copy of every document mentioned in the order shall invariably be supplied to the detenu. What is important is that copies of only such of those documents as have been relied on by the detaining authority for reaching the satisfaction that • preventive detention of the detenu is necessary shall be supplied to him. It is admitted by the learned counsel for the • petitioner that the order granting bail has been supplied to him. Application for bail has been submitted by the detenu himself when the order of detention was passed which was subsequent to the order granting bail. We cannot comprehend as to how a • prior order rejecting bail would be of any relevance in the matter when it was later succeeded by the order granting bail." State of Tamil Nadu and Anr. Vs. Abdullal, Kadlier Batcl,a and 4nr., (2009) 1 SCC 333, wherein it was observed: "7. The Court has a duty to see whether the non supply of any document is in any way prejudicial to the case of the detenu. The High Court has not examined as to how the non supply of the documents called for had any effect on the detenu andlor whether non supply was prejudicial to the detenti. Merely because copies of some documents have been supplied they cannot by any stretch of imagination be called as relied upon documents. W. P. (Cr1) Nos. 162812010 & 162912010 Page 12 of26 8. While examining whether non supply of a document would prejudice a detenu the Court has to examine whether the detenu would be deprived of making an effective representation in the absence of a document. Primarily, the copies which form the ground for detention are to be supplied and non supply thereof would prejudice to the detenu. But documents which are merely referred to for the purpose of narration of facts in that sense cannot be termed to be documents without the supply of which the detenu is prejudiced." A similar view has been taken in J.Abdul Hakeem vs. State of TN.; 2005 7 SCC 70 and Sunila Jain vs. Union of India; (2006)3 SCC 321. -1 ill) Powanammal vs. State of TN, (1999) 2 SCC 413, wherein it was observed: "9........this Court has maintained a distinction between a document which has been relied upon by the detaining authority in the grounds of detention and a document which finds a mere reference in the grounds of detention. Whereas the non-supply of a copy of the document relied upon in the grounds of detention has been held to be fatal to continued detention, the detenu need not show that any prejudice is caused to him. This is because the non-supply of such a document would amount to denial of the right of bemg communicated the grounds and of being afforded the opportunity of making an effective representation against• the order. But it would not be so where the document merely finds a reference in the order of detention or among the grounds thereof. In such a case, the detenu' s complaint of non supply of document has to be supported by prejudice caused to him in making an effective representation." (iv) Prakash Chandra Mehta vs. Commissioner and Secretary, Govt. of Kerala, 1985 Supp. SCC 144, wherein in para 75 it was held: "75. In the instant case, the ground of detention is the satisfaction of the detaining authority that with a view to preventing the detenu from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with W. P. (Cr1) Nos.162812010 & 162912010 Page 13 of 26 a view to preventing the detenu from, inter alia, dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping the smuggled goods, or engaging in transporting or concealing or keeping smuggled goods the detention of the detenu is necessary. This satisfaction was arrived at as inferences from several factors. These have been separately mentioned. One of them is the contention but this ground was taken into consideration without taking note of the retraction made thereafter. But the inference of the satisfaction was drawn from several factors which have been enumerated before. We have to examine whether even if the facts stated in the confession are completely ignored, then too the inferences can still be drawn from other independent and objective facts mentioned in this case,