SIDDHARTH MRIDUL, J (via Video Conferencing)

1. The present petition under Article 226 of the Constitution of India, essentially in the nature of writ of habeas corpus, has been instituted on behalf of Mohammed Nashruddin Khan (hereinafter referred to as the 'detenu'), praying for quashing of detention order bearing No. PD-12001/03/2020- Signature Not Verified W.P.(CRL.) 1924/2020 Page 1 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 COFEPOSA dated 21.01.2020 under Section 3(1) of The Conservation of Foreign Exchange And Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'COFEPOSA'), and for a further direction that he be set at liberty forthwith.

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:

carry (personal carriage) to UAE; for the purpose of taking part in an exhibition organized by M/s. M.N. Khan Jewellers (FZE), as per the permission by the Gem Signature Not Verified W.P.(CRL.) 1924/2020 Page 2 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 & Jewellery Export Promotion Council (hereinafter referred to as 'GJEPC').

iii) IMNPL is a government recognized three-star export house, engaged in the business of manufacturing, import and export of gold jewellery and other allied bullion items.

iv) IMNPL has been duly issued an Import Export Code (IEC) bearing No.0514037342 from the office of the Joint Director, Directorate General of Foreign Trade (hereinafter referred to as 'DGFT') and is stated to have earned foreign exchange valuing around US Dollars 150 million for the country.

v) IMNPL had also obtained Advance Authorization License from the office of DGFT, New Delhi, inter alia permitting import of 1000 kgs of gold bars.

vi) IMNPL has against the said Advance Authorization License imported 50 kgs of gold bars and completed export obligation of approximately 19 kgs of gold bars Signature Not Verified W.P.(CRL.) 1924/2020 Page 3 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 vídé Export Invoice No.ITS/EXP/04 dated 20.04.2019; with balance export obligation of approximately 31 kgs.

vii) At this juncture, it is relevant to observe that the stock related to the aforementioned balance export obligation, was resumed by the Directorate of Revenue Intelligence (hereinafter referred to as the 'DRI') on 24-25.04.2019, from the factory premises of IMNPL at Pitampura, Delhi.

viii) IMNPL also purchased gold from the domestic market, duty and GST in relation to which has been duly paid; besides directly importing gold under the Advance Authorization Scheme, as afore-stated.

ix) IMNPL is stated to have exported domestic gold jewellery under the Exhibition Export Scheme of the Foreign Trade Policy (FTP 2015-20)

x) At this stage, it is relevant to observe that as per Para 4.46 of FTP, read with Para 4.80 of the Hand Book of Procedure, domestic jewellery can be exported for exhibitions abroad with the approval of Gems & Signature Not Verified W.P.(CRL.) 1924/2020 Page 4 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 Jewellery Export Promotion Council (hereinafter referred to as 'GJEPC'), which approval was granted to IMNPL subject to the condition that unsold gold jewellery has to be re-imported back within 60 days from the close of such exhibition, failing which they would become liable to pay import duty on the quantity of the said re-import. Further, as per Customs Notification No.45/17 dated 30.06.2017, the condition for exemption is that, the goods that are re-imported from such exhibition abroad are required to be the same which were exported.

xi) IMNPL had, with the approval of GJEPC, exported gold jewellery manufactured from the domestic stock of gold for overseas exhibition. It is, therefore, the detenu's case that, evidently there was no duty payment required at the stage of re-import of the subject gold into the country, within the stipulated time period of 60 days.

xii) In pursuance to the said invitation, received from M/s.

M.N. Khan Jewellers (FZE), as above mentioned, Amit Pal Singh, co-detenu, was entrusted with hand-carrying Signature Not Verified W.P.(CRL.) 1924/2020 Page 5 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 (personal carriage) of the gold jewellery to UAE for the purpose of the said exhibition, in accordance with the permission granted and in compliance with the provisions applicable.

xiii) Export of the gold jewellery was done by IMNPL after filing the requisite shipping bills along with necessary documents.

xiv) The subject gold was duly assessed by the Customs at the time of clearance for export; the photographs of the goods being exported through hand-carry, were also checked and seen by the Customs Jewellery Appraiser posted at the Export Shed Air Cargo; and after verification of the same, the said photographs were signed and appraised by the Appraiser and then given back in sealed cover to the person hand-carrying the gold jewellery.

xv) The gold jewellery, which remained unsold at the time of exhibition was brought back by the co-detenu Amit Pal Singh, from UAE. The co-detenu Amit Pal Singh, Signature Not Verified W.P.(CRL.) 1924/2020 Page 6 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 landed at the Indira Gandhi International Airport, New Delhi on 24.04.2019 at around 06.30 p.m. and approached the Red Channel for the purpose of declaration of the goods brought back by him. xvi) Amit Pal Singh, the co-detenu is stated to have filed reimport documents such as packing lists cum invoice; and provided the sealed packet of photographs to the Customs Appraiser along with the shipping bills, Export Declaration Form and endorsed copies of packing list- cum-invoice, given to him at the time of export, respectively for the quantities of unsold gold jewellery being brought back out of earlier exported goods concerning shipping bills dated 20.02.2019 and 13.03.2019; as well as making requisite declaration, as per the Standard Operating Procedures.

xvii) The Customs Jewellery Appraiser deputed at the Red Channel, duly checked and verified the said documents and appraised the subject gold jewellery and after properly satisfying himself that the gold jewellery was the same, which was exported, allowed Amit Pal Singh, Signature Not Verified W.P.(CRL.) 1924/2020 Page 7 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 the co-detenu to take the same by issuing necessary Customs Gate Pass in this behalf.

xviii) However, when Amit Pal Singh the co-detenu, was about to leave the IGI Airport, after clearance from the Red Channel, the officers of DRI intercepted him, statedly on specific information and carried-out search of his baggage as well as his person allegedly on the suspicion that he was illegally importing gold jewellery for evasion of customs duty.

xix) The detenu also arrived in India by the same flight as the co-detenu, albeit separately. The detenu was thoroughly searched, but nothing objectionable was found in his possession. The detenu was however, also detained by the officers of DRI at IGI Airport, New Delhi, on the allegation of involvement in illicit import and export of gold jewellery along with two co-detenus Amit Pal Singh and Gopal Gupta. The latter is statedly working as Chartered Accountant with IMNPL. During his detention by the DRI on 24/25.04.2019, he was kept at DRI Headquarters, New Delhi.

W.P.(CRL.) 1924/2020 Page 8 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 xx) According to the detenu, the statements of the detenu and co-detenus were extracted over the night of 24.04.2019, 25.04.2019 and 26.04.2019, until he was produced before the learned Duty Magistrate at 11:00 PM at the latter's residence, by the DRI by coercing, forcing, giving false promises and threatening the detenu with arrest and false implication.

xxi) All the three persons were shown to have been arrested on 26.4.2019, on which date they were produced before the learned Duty Magistrate New Delhi, in the late hours at around 23.00 hrs. xxii) It is submitted that the allegations by the DRI are completely false and incorrect and without any basis whatsoever and in fact the DRI has tried to give a wrong colour to otherwise genuine transactions. xxiii) The said statements under Section 108 of the Customs Act, 1962 (hereinafter referred to as the ' Customs Act ') procured from all the aforementioned three persons were immediately retracted verbally before the learned Signature Not Verified W.P.(CRL.) 1924/2020 Page 9 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 Duty Magistrate and thereafter before the Court of learned Chief Metropolitan Magistrate, Patiala House Courts, New Delhi on 27.04.2019 in writing. Detenu also filed a detailed retraction on 26.05.2019 from Tihar Jail through Superintendent of Jail No. 7, prior to his release on bail. Retractions were filed by the detenu and also Amit Pal Singh and Gopal Gupta (co-detenus) before the learned Chief Metropolitan Magistrate, Patiala House Courts, New Delhi on 27.04.2019 while they were lodged in Tihar Jail.

xxiv) At this juncture it is averred by the detenu that vídé additional submissions filed by DRI, opposing the bail application of the detenu, it was reiterated that 'it is not a case of evasion of customs duty'. Consequently, the detenu and co-detenus were granted bail by the learned Chief Metropolitan Magistrate, Patiala House Court, New Delhi vídé common bail order dated 3.6.2019 wherein it was pertinently observed that "it is not explained that as to how the duty could be saved by replacing the larger quantity of bills of entries of Signature Not Verified W.P.(CRL.) 1924/2020 Page 10 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 jewellery in India by bill of entry of smaller quantity"

xxv) Our attention is invited by the detenu to the circumstance that the DRI arrested Jewellery Appraiser Vikram Bhasin and on several dates his statements were recorded which were relied on as well. Since the statements recorded were not voluntary in nature and were statedly recorded under duress, threat and coercion; the Jewellery Appraiser, Vikram Bhasin duly retracted his statement through an application directly addressed to Learned Chief Metropolitan Magistrate on 03.06.2019. The DRI has, however, sent a letter dated 17.01.2020, thereby rebutting the retraction application Signature Not Verified W.P.(CRL.) 1924/2020 Page 11 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 of the Vikam Bhasin. Further a reply to said rebuttal has been sent by Vikram Bhasin to DRI on 02.03.2020 xxvi) It was further submitted that DRI has been approaching different statutory authorities from time to time in order to somehow harass the IMNPL/detenu etc., DRI also sent a UO Note dated 18/21.06.2019 to DG, DGFT and acting merely upon the said Note, a Show Cause Notice dated 27.06.2019 has admittedly issued to the company IMNPL by DGFT, recording as under:-

xvii) Even prior to the issuance of the Show Cause Notice., vídé Order dated 26.06.2019, the DGFT placed the IEC (Import Export Code) of the Company IMNPL in Denied Entity List (DEL) - Blacklist.

Signature Not Verified W.P.(CRL.) 1924/2020 Page 12 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 xviii) In relation to the dispute regarding the local address of the present detenu, a verification report was filed in compliance to order dated 20.06.2019 passed by learned Chief Metropolitan Magistrate by the DRI Headquarters, New Delhi. The report expressly states that "..the department has no objection in serving the summons/other correspondence pertaining to Mohd. Nashruddin till pendency of investigation through Mr. Himanhu Lohiya as requested in application and affidavit dated 20.06.2019 filed by Mohd. Nashruddin." xix) In relation to the seizure of the gold jewellery from the co-detenu Amit Pal Singh at the IGI Airport, New Delhi on 24.04.2019 and further seizure of gold jewellery from the IMNPL business premises on 24-25.04.2019, purportedly after completion of the investigation, a Show Cause Notice dated 26.09.2019 was issued by the DRI, New Delhi, wherein the detenu was also made a noticee and penalty was proposed upon the detenu under the provisions of Customs Act .

Signature Not Verified W.P.(CRL.) 1924/2020 Page 13 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 xxx) The detenu's passport was released vídé order dated 07.01.2020 by the learned Chief Metropolitan Magistrate, Patiala House Courts, New Delhi and he was permitted to travel abroad. The DRI carried the said order passed by the learned Chief Metropolitan Magistrate in appeal to the Sessions Court, as well as this Court, but to no avail.

xxxi) It is also averred on behalf of the detenu that despite the release of his passport and the permission granted to the detenu to travel abroad; the detenu has not exercised his liberty to travel abroad, exhibiting his bona fides and negating the stand taken by the DRI qua his propensity to indulge in the alleged act in any manner.

xxxii) It is curious to observe that after almost 09 months of the detenu's arrest and the filing of retraction statement before the learned Chief Metropolitan Magistrate, DRI belatedly sent a letter to him dated 16.01.2020 and dispatched only on 22.01.2020 by them, stating therein that his retraction had been dismissed by the "Competent Authority". It is relevant to note that the Signature Not Verified W.P.(CRL.) 1924/2020 Page 14 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 said communication dated 16.01.2020 was received by the detenu only on 23.01.2020 i.e. after issuance of the impugned order of detention.

xxxiii) Insofar as, the detenu is concerned, when he came to know about the passing of the impugned detention order dated 21.01.2020, he assailed the same before the Hon'ble Supreme Court of India vídé W.P. (CRL.) No.63/2020, which however, was disposed of by the Hon'ble Supreme Court granting him liberty to institute the same before this Court. In terms of the aforesaid liberty, the detenu filed W.P.(CRL.) No.786/2020, challenging the impugned detention order at the pre- detention stage. However, the same came to be dismissed by this Court vídé order dated 11.09.2020. The detenu carried the said order dated 11.09.2020 in appeal before the Hon'ble Supreme Court vídé SLP (CRL.) No.4618/2020, which was however dismissed by the Hon'ble Supreme Court vídé order dated 30.092020.

Signature Not Verified W.P.(CRL.) 1924/2020 Page 15 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 xxxiv) The detenu after exhausting his legal remedies in the form of the above mentioned writ petitions, then surrendered before the learned Additional Sessions Judge, Patiala House Court, New Delhi, by filing a surrender application dated 11.10.2020, whereupon he was served with a one-page detention order dated 21.01.2020 in the court premises on 12.10.2020 by officers of the executing authority, and then taken to Tihar Jail, New Delhi, in pursuance to the detention order.

xxxv) The detenu filed a representation dated 27.10.2020 before the Detaining Authority as well as Central Government on the grounds stated therein and praying for revocation of the detention order. Simultaneously, the detenu vídé separate letter dated 27.10.2020 sought for supply of the relevant documents from the Detaining Authority. The Joint Secretary, COFEPOSA however rejected the representation made vídé letter dated 27.10.2020 filed by the detenu praying for supply of the relevant documents vídé Memorandum dated Signature Not Verified W.P.(CRL.) 1924/2020 Page 16 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 09.11.2020. It is the detenu's case that his representation was rejected without any valid or proper explanation and without supplying the documents asked for by him, thereby preventing him from making an effective representation against the impugned detention order. xxxvi) A perusal of the grounds of detention impugned in these proceedings reveals that the role assigned to the detenu therein, pursuant to the investigation carried-out, is that IMNPL, in connivance with the detenu, opened a dummy company in the name and style of M/s. M.N. Khan Jewellers (FZE) in UAE in the year 2015 to manage the business interest of IMNPL and other related firms of the company at Dubai. The detenu is a key member of the syndicate and its conduit in UAE and abetted the company in the execution of conspiracy relating to misuse of the Advance Authorization Scheme. In order to fulfil the export obligation under the said scheme, IMNPL hatched a conspiracy, whereby gold jewellery was exported to the detenu's company M/s. M.N. Khan Jewellers (FZE), U.A.E. for exhibition Signature Not Verified W.P.(CRL.) 1924/2020 Page 17 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 purpose through hand-carry, either by co-detenu Amit Pal Singh or by the detenu himself. The said gold jewellery was subsequently re-imported into India fraudulently. On 24.04.2019 M/s. M.N. Khan Jewellers (FZE) filed declaration before the Federal Customs Authority, U.A.E. that 51.172 kgs of gold jewellery were exported to Kathmandu, Nepal through hand-carry by Mustafa Kamal and 0.745 kgs of gold jewellery was exported to Delhi through Amit Pal Singh, the co- detenu.

ARGUMENTS ON BEHALF OF THE PETITIONER:-

placement of such relevant and vital documents, has resulted in non-consideration of the same; thus affecting the decision making process of the Detaining Authority in recording his Signature Not Verified W.P.(CRL.) 1924/2020 Page 19 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 subjective satisfaction, and consequently vitiating the Detention Order. It is pertinent to note that the COFEPOSA does not recognize any authority like the 'Sponsoring Authority'. It appears that in the present case the officers of the DRI have been conducting the investigation which they are not authorized under law to do, as they are not 'proper officers' for the said purpose under the provisions of Customs Act .

4. Further, it is submitted that the material documents i.e. (i) Advance Authorisation License, whose Condition 6 was alleged by the DRI to have been violated, stipulating that "The exempt goods imported against the authorization shall only be utilized in accordance with the provisions of Paragraph 4.16 of the Foreign Trade Policy 2015-20 and other provisions and the relevant Customs Notification - [Custom Notification 18/2015 dated 01.04.2015 (for physical exports), 21/2015 dated 01.04.2015 (for deemed exports) 22/2015 dated 01.04.2015 (for Advance Authorization for prohibited goods) and 20/2015 (for Annual Advance Authorization) as the case may be]"; and (ii) Statements of Signature Not Verified W.P.(CRL.) 1924/2020 Page 20 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 Mr. Amit Pal Singh and Mr. Gopal Gupta, the co-detenus and the detenu recorded while in judicial custody during the investigation in the case of M/s Bharti Gems Private Limited, were neither supplied to the detenu nor were made part of Relied Upon Documents but have been heavily relied in establishing Grounds of Detention, thus disabling the detenu from making an effective purposeful and meaningful representation.

5. It was further submitted that by learned Senior Counsel appearing on behalf of petitioner that there has been delay in deciding Representation by the Central Government as the petitioner was detained on 12.10.2020; the petitioner filed representation dated 27.10.2020 with the Detaining Authority and with the Central Government (DG, CEIB); the Detaining Authority rejected the representation made by the petitioner vídé Memorandum dated 09.11.2020; however, the DG CEIB, did not deal with the representation of the detenu expeditiously and instead made a Reference dated 10.11.2020 in terms of Section 8(b) of COFEPOSA to the Central Advisory Board. The Central Advisory Board gave Signature Not Verified W.P.(CRL.) 1924/2020 Page 21 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 its opinion that there existed sufficient grounds for the detention of the petitioner. Basis the opinion of the Central Advisory Board, the Central Government on 21.12.2020, in exercise of powers under Section 8(f) of COFEPOSA, confirmed the Detention Order dated 21.01.2020. Representation of the petitioner was rejected vídé Memorandum dated 24.12.2020. Peculiarly, the order confirming the detention was passed on 21.12.2020 i.e., 03 days prior to rejection of the Representation. This shows complete non-application of mind by the Central Government while dealing with the petitioner's representation.

6. It is further argued, that there has been a complete and utter non-application of mind by the Detaining Authority, while passing the impugned detention order, as is further evident from the fact that the grounds of detention in the case of the petitioner are identical to the grounds of detention of another detenu in an entirely different case. A person named Happy Arvind Kumar Dhakad came to be detained vídé Detention Order dated 17.05.2019, also passed by the same officer Mr. Signature Not Verified W.P.(CRL.) 1924/2020 Page 22 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 R.P. Singh. On a comparison between the impugned detention orders and the detention order dated 17.05.2019 in respect of Happy Arvind Kumar Dhakad, it is clear that the same are identical, barring a few differences in names and references etc. The petitioner have filed the Detention Order dated 17.05.2019 passed in the case of Happy Arvind Kumar Dhakad along with a comparison of the grounds of detention in the impugned detention orders dated 21.01.2020. A comparison makes it clear that the entire exercise of passing the impugned detention orders is mechanical, as grounds have been lifted from the grounds of an altogether distinct case. Such a blatant copy-paste job by the Detaining Authority shows non-application of mind.

7. It was further submitted that by learned Senior Counsel appearing on behalf of petitioner that the proposal for preventive detention was sent to the Detaining Authority on 02.01.2020 and the meeting of the Central Screening Committee was held on 13.01.2020 and the recommendations of the Central Screening Committee were submitted to the Detaining Authority on 14.01.2020. The Signature Not Verified W.P.(CRL.) 1924/2020 Page 23 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 Grounds of Detention relies on a rebuttal of retraction application by DRI dated 16.01.2020, which implies that the said document was placed by the Sponsoring Authority before the Detaining Authority only after 16.01.2020 (the said day being a Thursday). It is further a matter of record that the Detention Order and Grounds of Detention for the detenu and the co-detenus i.e. Amit Pal Singh and Gopal Gupta, were passed on 21.01.2020 (the said day being a Tuesday). Accordingly, three detention orders running into some 50 pages each i.e., 150 pages plus the Relied Upon Documents, running into some 6000 pages came to be passed on the same day, which it is difficult to believe was possible for an ordinary human to process. It is thus apparent that the Detaining Authority did not apply its mind on the available material at one time and instead scrutinised the documents in a piece meal manner while passing the detention order.

8. It has also been argued on behalf of petitioner that there was delay in passing of Detention Order dated 21.01.2020, viewed within the four corners of the settled position of law that a detention order will be vitiated if on account of delay Signature Not Verified W.P.(CRL.) 1924/2020 Page 24 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 in passing the Detention Order, the live-link between the prejudicial activities of the detenu and the rationale of clamping a detention order on the detenu is snapped, since the impugned detention order was passed on 21.01.2020, after:

9. Learned Senior Counsel would further urge that the ground of delay was first urged by the petitioner in the aforesaid writ Signature Not Verified W.P.(CRL.) 1924/2020 Page 25 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 petitions filed at the pre-detention/pre-execution stage. At that time, the respondents sought to explain the delay in the counter affidavit as follows : -

execution stage, is that Mr. R.P. Singh was all long aware of the case against the petitioner, at least as early as 02.08.2019. Signature Not Verified W.P.(CRL.) 1924/2020 Page 27 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 The aspect of delay, therefore, assumes a different complexion. There is nothing in Section 3 of COFEPOSA or in the scheme of the Act which suggests that the specially empowered officer under Section 3 of COFEPOSA must act only on receipt of a proposal of some other agency or "Sponsoring Authority". In fact, the expressions "Sponsoring Authority" and "Detaining Authority" find no mention in the statute.

12. It is also submitted that the dual role played by Mr. R.P. Singh

- first, in the Economic Intelligence vertical of the CEIB (as claimed by the respondents) in the active investigation; and second, as J.S. (COFEPOSA) in passing the impugned Detention Order, goes to the root of the matter and defeats the very purpose of appointing a "specially empowered" officer under Section 3(1) of COFEPOSA, whose satisfaction must be independent and free from any bias or predisposition. As such, the subjective satisfaction of the Detaining Authority in the present case stands vitiated and the impugned detention order ought to be quashed.

Signature Not Verified W.P.(CRL.) 1924/2020 Page 28 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43

13. In order to support his exhaustive oral submissions, Mr. Sourabh Kirpal, learned Senior Counsel appearing on behalf of the petitioner, has pressed into reliance the following decisions :-

14. Per Contra, Mr. Amit Mahajan, learned Central Government Standing counsel appearing on behalf respondents would submit that impugned detention order dated 21.01.2020 passed by the Competent Authority under Section 3(1) of the COFEPOSA is legal and constitutional and the same has been passed by the Competent Authority with due application of mind and after arrival of subjective satisfaction, based on the sufficient material facts and circumstances of the case.

15. It is further argued that the Detaining Authority is a different and an independent authority from the Sponsoring Authority and that before issuing the impugned detention order, the Detaining Authority has applied its mind fully independent of the Sponsoring Authority. Further, before the proposal is placed before the Detaining Authority, the Central Screening Committee (CSC) consisting of senior officers from different Miniseries/Departments screen the entire proposal and make its recommendations; it is only after the recommendation is made by the CSC, that the proposal goes to the Detaining Authority. It is, thus, evident that there are three different and independent authorities entrust with the task of examining the Signature Not Verified W.P.(CRL.) 1924/2020 Page 31 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 incriminating material and facts available against the proposed detenu. The Detaining Authority has to arrive at his subjective satisfaction, fully independent of the prosecution proceedings initiated by the Sponsoring Authority. The Detaining Authority passes the Detention Order upon satisfying itself about the propensity of the proposed detenu to indulge in prejudicial activities in future and it has nothing to do with the prosecution proceedings. Hence, the allegation of malice in issuing the impugned order is fundamentally unfounded, wrong, misconceived and untenable.

16. It was further submitted by counsel for the respondent that the detenu acted as a dummy owner of M/s. M.N. Khan Jewellers FZE which got registered in the year 2015, working as a covert employee of IMNPL at the behest of Mr. Rahul Gupta and was paid monetary consideration by latter/owner of IMNPL for aiding and assisting circular trading of gold jewellery. As an employee of IMNPL, Mr. Rahul Gupta used to pay AED 6000 as monthly salary to detenu, out of which AED 3000 were credited in detenu's wife's account Signature Not Verified W.P.(CRL.) 1924/2020 Page 32 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 maintained with Bank of India in Mau District (U.P.) and the remaining amount was paid to the detenu in cash in Dubai.

17. Further, it is submitted that the primary allegation of the petitioner, that Mr. R.P Singh was not only aware but also took an active part in the investigation and issued detailed communications with respect to ongoing investigation vídé letter dated 02.09.2019, is misleading and frivolous since CEIB is the nodal agency and as such the information was shared with the DGFT for necessary action in the routine course. Also, the detention order passed against the petitioner and other co-detenus under Section 3 of the COFEPOSA was based on Mr. R.P Singh's independent evaluation and subjective satisfaction as an officer of the Detaining Authority.

18. It has been argued on behalf of respondents that the respondents have followed the law in letter and spirit while issuing the impugned Detention Order. It was submitted that an order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even Signature Not Verified W.P.(CRL.) 1924/2020 Page 33 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 acquittal. The pendency of prosecution is no bar to an order of preventive detention.

19. Further, it is submitted that preventive detention is a "suspicious jurisdiction" i.e. jurisdiction based on suspicion and an action is taken "with a view to preventing" a person from acting in any manner prejudicial to certain activities enumerated in the relevant detention law and the Detaining Authority has issued the Detention Order after it had arrived at the subjective satisfaction that the detenu had to be preventively detained, which has been elaborated in the grounds of detention. Similarly the allegation of ill treatment, custodial violence, etc, ought not to affect the Detention Order.

20. It is further argued that without prejudice, all the relevant documents and vital documents were placed before the Detaining Authority and only after arriving at its subjective satisfaction was the Impugned Detention Order passed.

21. It was further submitted by the learned counsel for the respondent that that only copies of documents on which the impugned detention order is primarily based are required to Signature Not Verified W.P.(CRL.) 1924/2020 Page 34 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 be supplied to the detenu and not any and every document. Mere reference of certain instances for the purposes of completion of narration would not entitle the detenu to be supplied copies of such documents. It is submitted that all the relevant and vital documents/material was placed by the Sponsoring Authority before the Detaining Authority, the perusal of which led to subjective satisfaction of the Detaining Authority in passing the detention order.

22. It is also submitted that contention of the petitioner that there was delay of 9 months in passing of the detention order has previously been agitated by the petitioner and has been dealt by this Court in W.P (CRL.) No. 786/2020 titled " Mohd. Nashruddin Khan v. Union of India & Ors. " decided on 11.09.2020 wherein this Court categorically observed that there was no delay.

23. It has been argued on behalf of respondents that in so far as the allegation qua the overseas evidence is concerned, the authorities during investigation are at liberty to gather all evidence pertaining to the offence, and by no stretch of imagination can gathering and collating of information by the Signature Not Verified W.P.(CRL.) 1924/2020 Page 35 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 Sponsoring Authority be held to be the cause of delay in passing of the detention order.

24. It is also submitted that as far as the averment regarding retractions filed by the detenu is concerned, the detenu did not file any retraction at the time of first production before the Judicial Magistrate. The retraction was filed subsequently and was general and vague in nature and was filed as an after- thought. The subsequent retractions have already been duly rebutted and are on record of the learned Chief Metropolitan Magistrate. Further, the detenu has time and again relied upon the observations made in the bail order dated 03.06.2019 of the learned Chief Metropolitan Magistrate, including in his challenge to the Detention Order at the pre-execution stage vídé W.P.(CRL.) No. 1009/2020; however, it is submitted that the granting of bail by no stretch of imagination can be inferred as absolving the proposed detenu of the alleged offence. It is also trite that a Court does not go deep into the merits of the matter while considering an application for bail and only forms a prima facie opinion; however the merits of the matter are to be tested at the stage of trial. It is further Signature Not Verified W.P.(CRL.) 1924/2020 Page 36 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 submitted that by virtue of COFEPOSA, the respondents have vested powers in them to issue detention order against the petitioner. It is further submitted that grant of bail or its denial is not a ground for quashing of the detention order, as long as the said fact is taken note of by the Detaining Authority and subjective satisfaction is arrived at the propensity of the person to indulge into prejudicial activities.

25. It is further argued that the contention of non-consideration of other documents/material cannot be a ground for vitiating the detention order. As sufficient documents and materials were placed before the Detaining Authority and upon considering the individual role of the petitioner, the Detaining Authority satisfied itself as to his continued propensity and his inclination to indulge in the act of smuggling in a planned manner to the detriment of the economic security of the country, which necessitated the need to prevent the petitioner from smuggling goods, and detain him.

26. It is also contented that delay either in passing the detention order or execution thereof is not fatal, except where the same remains unexplained. Even in a case of undue or long delay Signature Not Verified W.P.(CRL.) 1924/2020 Page 37 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 between the prejudicial activity and the passing of the detention order, if the same is satisfactorily explained and a tenable and reasonable explanation is offered, the order of detention is not vitiated.

27. It was further submitted by the learned counsel for respondent that the contention of the petitioner that the communication from FCA, Dubai, in November, 2019 was not made a Relied Upon Document, is wrong, baseless and misleading. As regards that contention, relating to guidelines issued by the department itself, it is respectfully submitted that the relevant guidelines are internal, executive instructions for use by the department officer; and the same have been complied with in the instant case in addition to all the statutory and constitutional provisions.

28. It has been argued on behalf of respondents that persons engaged in smuggling activities pose a serious threat to the economy and thereby security of the nation; and as a precaution, no hard and fast rule can be precisely formulated that would be applicable under all circumstances; rather it follows that the test of proximity is not a rigid or mechanical Signature Not Verified W.P.(CRL.) 1924/2020 Page 38 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 test by merely counting number of months between the offending acts and order of detention.

29. Lastly, it is also submitted that there was no inordinate delay in deciding representation of the petitioner by the Central Government as the representation dated 27.10.2020 was received from the petitioner through his counsel in the office of the Director General, CEIB on 27.10.2020 itself and the requisite information/comments of the Sponsoring Authority were sought on 28.10.2010 on the said representation. The requisite information/comments of the Sponsoring Authority were received on 06.11.2020 and thereafter the matter was referred to the Advisory Board on 10.11.2020. The answering respondents on 02.12.2020 sent copies of the representation of the detenu to the Advisory Board along with the comments on the representation of the detenu, prepared by the Sponsoring Authority. The Advisory Board on 14.12.2020 opined that there exists sufficient cause for detaining the detenu in pursuance to the Detention Order dated 21.01.2020. Thereafter the opinion of the Advisory Board was submitted for necessary approval of the Hon'ble Finance Minister on Signature Not Verified W.P.(CRL.) 1924/2020 Page 39 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 behalf of the Central Government on 15.12.2020. The approval was received on 21.12.2020 and thereafter the representation was disposed on 23.12.2020 and communicated to the Petitioner on 24.12.2020. Thus, there was no inordinate delay in deciding representation of the petitioner by the Central Government.

30. In support of his arguments, Mr. Amit Mahajan, learned CGSC appearing on behalf of the respondents' has relied upon the following decisions:-

DISCUSSION AND CONCLUSIONS. :-

31. Having heard learned counsel appearing on behalf of the parties and after due consideration of the rival submissions in Signature Not Verified W.P.(CRL.) 1924/2020 Page 41 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 the context of the facts and circumstances on record, as well as, the relevant provisions of law and the decisions relied upon by the parties and having perused the material on record, including the pleadings, the detailed written submissions filed on behalf of the parties and the original file, the following issues arise for consideration in these proceedings:-

32. Insofar as the first issue, viz. whether the Detaining Authority acted independently and without any bias whilst passing the impugned order of detention is concerned; we have considered the rival submissions made before us in the backdrop of the original records and material placed before us in the present proceedings. We have also considered the Signature Not Verified W.P.(CRL.) 1924/2020 Page 43 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 judgment dated 11.09.2020 passed by this Court at the pre- detention stage in W.P.(CRL.) No. 786/2020 titled " Mohd. Nashruddin Khan vs Union of India & Ors ".

33. Whilst declining to entertain the aforesaid petition at the pre-

execution stage, this Court observed as follows:-

34. The petitioner has in the course of the present proceeding placed on record by way of his rejoinder affidavit, a letter dated 02.09.2019 addressed by Mr. R.P. Singh, Joint Secretary (COFEPOSA) to the DGFT; the opening paragraph of which reads as under:-

The aforesaid letter concludes with the following directions:-

35. It is pertinent to observe here that the aforesaid letter predates the detention order dated 21.01.2020 by approximately four and half months.

36. From a plain reading of the said communication dated 02.09.2019, it is clear beyond doubt that, Mr. R.P. Singh, who passed the detention order, was actively involved in the investigation, which was being conducted into the case against the petitioner much prior to the passing by him of the detention order. Mr. R.P. Singh, in his letter dated 02.09.2019 elaborately summarized the specifics of the investigation, which was initiated by the DRI in the matter pertaining to the petitioner's involvement in the case of misuse of hand-carry and exhibition provisions of the FTP in Signature Not Verified W.P.(CRL.) 1924/2020 Page 45 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 collusion with IMNPL, in respect of the precious Metals and Jewellery and Advance Authorization Scheme.

37. In this behalf, it is observed that the respondents have not disputed the contents of the aforesaid letter or the circumstance that Mr. R.P. Singh was the author of the said communication. However, the respondents have in their affidavits dated 10.02.2021, taken the stand, that the said letter dated 02.09.2019 was authored by Mr. R.P. Singh ".......while working in the additional capacity of other vertical i.e. Economic Intelligence of the CEIB....."

38. The petitioner has refuted the said stand by urging that no such distinction is discernible from the said letter itself. It is further submitted by him that in the said affidavit dated 10.02.2021, the respondent has also admitted that the CEIB is headed by a Director General, who is assisted by one Joint Secretary, designated as JS (COFEPOSA). Thus, there is no manner of doubt that the letter dated 02.09.2019 is signed by Mr. R.P. Singh, in his capacity as Joint Secretary and not in any other capacity. In this regard, it is also the submission of the petitioner that Mr. R.P. Singh himself filed an affidavit Signature Not Verified W.P.(CRL.) 1924/2020 Page 46 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 dated 26.02.2021, in CONT. CAS (C) No. 84/2021, wherein he rebutted the facts stated in the affidavit dated 10.02.2021.

39. In view of the above, upon a perusal of the documents placed before us, we have no hesitation in holding that Mr. R.P. Singh was actively involved in the subject investigation and was closely monitoring the same with different agencies, as early as on 02.09.2019.

40. It is, therefore, irrefutable that the Detaining Authority had prior interaction with the petitioner's case. At this juncture, we must observe that this Court while rendering the judgment dated 11.09.2020 admittedly did not have the benefit of considering the said letter dated 02.09.2019.

41. We are thus of the considered view, as submitted on behalf of the petitioner, that Mr. R.P. Singh was actively involved in the case pertaining to the detenu for a long period, prior to the passing by him of the impugned detention order; and was admittedly coordinating the investigation undertaken by the Competent Agencies, in that regard.

42. The dual role played by Mr. R.P. Singh-first, in the Economic Intelligence vertical of CEIB (as claimed by the respondents) Signature Not Verified W.P.(CRL.) 1924/2020 Page 47 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 during the active investigation; and second, as J.S. (COFEPOSA), in passing the impugned Detention Order, goes to the root of the matter and defeats the very purpose of appointing a "specially empowered" officer under Section 3(1) of the COFEPOSA, whose satisfaction, jurisprudentially, must be independent and free from any bias or predisposition. As held by us in the recent decision in W.P.(Crl.) 1829/2020 titled as " Gopal Gupta vs. Union of India & Ors. ' and in W.P.(Crl.) 1830/2020 titled as 'Amit Pal Singh vs. Joint Secretary COFEPOSA & Ors. ', both dated 06.08.2021, in our opinion, the test to be applied for bias or predisposition is that of 'identity of intellectual apparatus', namely, whether the person who passed the detention order, purporting to act as the 'specially empowered' human agency, has dealt with the same matter prior to that in any other capacity. It is of no consequence to say that the same person, with the same intellectual apparatus, acted under a different official designation or in a different official capacity. Therefore, the issue of a pre-determined approach and bias, while passing the impugned order of detention, is Signature Not Verified W.P.(CRL.) 1924/2020 Page 48 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 writ large in the instant case; and as such, the subjective satisfaction of the Detaining Authority in the present case stands vitiated.

43. In our view, the powers conferred under Section 3(1) of the COFEPOSA have not been complied with independently in the present case. We are also in agreement with the submissions made by learned Senior Counsel in this behalf that, there is nothing in Section 3 of the COFEPOSA or in the scheme of the Act, which suggests that the especially empowered officer must act only on receipt of the proposal of some other agency or "Sponsoring Authority". In fact the expression "Sponsoring Authority" and "Detaining Authority" find no mention in the statute.

44. In this behalf, it is therefore observed that there was nothing that prevented Mr. R.P. Singh, whilst acting as J.S. (COFEPOSA), from passing the impugned order of detention at the first opportunity. Resultantly, in our view, the argument of pre-determined approach and bias stands established in the present case.

Signature Not Verified W.P.(CRL.) 1924/2020 Page 49 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43

45. Our view is elucidated appositely by the decision of the Hon'ble Madras High Court in Madasamy vs. Secretary to Govt. & Ors. , reported as 2016 SCC OnLine Mad 20650 and in particular paragraphs 41 to 43 of the said report, wherein it was observed as under:-

46. Insofar as the second issue, whether the detenu's constitutionally secured right of making an effective representation has been jeopardized, by the non-supply of legible and complete documents, inspite of the detenu's request in this regard, thereby rendering the order of detention illegal and bad; is concerned, it is observed that the request for supply of legible copies of documents inter alia the passport, identity cards of co-detenu's, WhatsApp chats, bill of entry, invoice, statement of Mr. Rohit Sharma--who is alleged to have defaced the gold bars imported illegally-- etc.; was made by the petitioner vídé request letter dated 27.10.2020 to the Detaining Authority, which request was erroneously and wrongly refused vídé memorandum dated 09.11.2020.

47. It is trite to say that a person detained in pursuance of an order for preventive detention, has a constitutional right to make an effective representation against the same. The authorities are constitutionally charged with the responsibility to ensure that the grounds of detention, including all relevant documents that are considered whilst forming the subjective satisfaction, Signature Not Verified W.P.(CRL.) 1924/2020 Page 51 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 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 non-supply of legible copies of all relevant documents inspite of a request and representation made by the detenu for the supply of the same, renders the order of detention illegal and bad; and vitiates the subjective satisfaction arrived at by the Detaining Authority.

48. In our considered view, therefore, the supply of the following documents namely, a) Passport, b) Identity Cards of co- detenu's, c) WhatsApp chats, d) bill of entry, e) invoice, f) the statement of Mr. Rohit Sharma who is alleged to have defaced the gold bars imported illegally etc. was critical, in order to enable the detenu to make a comprehensive, holistic and effective representation against the impugned detention order, both before the Advisory Board, as well as before the Detaining Authority.

49. In the present case, the denial by the official respondent to supply legible copies of the relevant documents to the detenu, despite his express request to do so, tantamount to denial of Signature Not Verified W.P.(CRL.) 1924/2020 Page 52 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 his constitutional right, thereby vitiating the detention order, founded on the said relevant material.

50. In this regard the Hon'ble Supreme Court has, in Dharmistha Bhagat V State of Karnataka & Ors reported as 1989 Supp (2) SCC 155 and in particular paragraph 5 thereof, observed that non-supply of legible copies of vital documents would render the order of detention illegal and bad. The relevant portion has been extracted hereinbelow:

The panchnama dated 12-2-1988 which had been referred to in the list of documents referred to in the grounds of detention and a copy of which had been given to the detenu along with the grounds of detention, is not at all legible as is evident from the copy served on the detenu. It is also not in dispute that on receiving the documents along with the grounds of detention the detenu had made a representation to Respondent 1 stating that some of the documents including the panchnama which had been supplied to him are illegible and as such a request was made for giving typed copies of those Signature Not Verified W.P.(CRL.) 1924/2020 Page 53 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 documents to enable the detenu to make an effective representation against the same. The detaining authority on receipt of the said representation sent a reply denying that the copies of those documents were illegible and refusing to supply typed copies of the same. It is clearly provided in sub-article (5) of Article 22 of the Constitution of India that:

Therefore, it is imperative that the detaining authority has to serve the grounds of detention which include also all the relevant documents which had been considered in forming the subjective satisfaction by the detaining authority before making the order of detention and referred to in the list of documents accompanying the grounds of detention in order to enable the detenu to make an effective representation to the Advisory Board as well as to the detaining authority. Therefore, the non-supply of legible copy of this vital document i.e. panchnama dated 12-2-1988 in spite of the request made by the detenu to supply the same renders the order of detention illegal and bad. This Court in Mehrunissa v. State of Maharashtra [(1981) 2 SCC 709 : 1981 SCC (Cri) 592 : AIR 1981 SC 1861] has observed that: (SCC p. 710) "The detenu was entitled to be supplied with copies of all material documents instead of having to rely upon his memory in regard to the contents of the documents. The failure of the detaining authority to supply copies of such Signature Not Verified W.P.(CRL.) 1924/2020 Page 54 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 documents vitiated the detention, as has been held by this Court in the two cases cited by counsel. The detenu is, therefore, entitled to be released. He is accordingly directed to be released forthwith."

51. To the similar effect are the observations recorded in the judgment of the Apex Court in Manjeet Singh Grewal vs. UOI & Ors. reported as 1990 Supp SCC 59.

52. Insofar as the third issue, as to whether the order of detention is bad in law and vitiated on the ground of inordinate delay is concerned, our attention was invited on behalf of the petitioner to the Chart of Events placed on record, in conjunction with the dates thereof, which preceded the passing of the detention order.

53. It is the petitioner's submission that there was inordinate and unexplained delay of 272 days in passing the impugned detention order from the date of the alleged initial incident.

54. In this regard, it is submitted on behalf of the petitioner that the respondent had sought to justify the delay before this Court at the pre-execution stage by contending that overseas evidence had been received from Dubai in the first week of Signature Not Verified W.P.(CRL.) 1924/2020 Page 55 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 November, 2019 and that the proposal for detention was resultantly analysed on 02.01.2020, which was then put up before the Central Screening Committee on 13.01.2020; and after receiving the recommendations of the Central Screening Committee on 14.01.2020, the impugned orders of detention were passed on 21.01.2020; and that, therefore, there was no delay in passing the same.

55. The respondents at the post-execution stage have taken the stand that since the aspect of delay was already considered by this Court and rejected at the pre-execution stage, it is no longer open to the detenu to re-agitate the same before this court. The respondents have alternatively submitted that the plea of delay cannot be taken when the same is satisfactorily explained, as in the present case.

56. The petitioner has sought to counter the said argument on behalf of the respondents that the overseas evidence from Dubai was received in the first week of November, 2019, by submitting that there is nothing on record to indicate or substantiate the said assertion. It is further stated by the petitioner that, it is only upon the receipt of the detention Signature Not Verified W.P.(CRL.) 1924/2020 Page 56 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 order that the petitioner became aware that reference to overseas evidence from Dubai which was allegedly received by the DRI in November, 2019, was conspicuous by its absence in the detention order; and no material or documents in this regard were placed before the Detaining Authority. As a matter of fact, what emerges from the detention order, is the position that all the material evidence, including the purported overseas evidence, sought to be relied upon against the petitioner, had already been collected, as early as in July, 2019, as is clear from the record, and had already culminated into the issuance of Show Cause Notice dated 26.09.2019. Therefore, it is apparent that the stand taken by the respondents qua the receipt of overseas evidence from Dubai in November, 2019 was merely window-dressing, used to cover-up the massive delay that transpired from the time of issuance of the said Show Cause Notice dated 26.09.2019 and the proposal of detention being issued in January, 2020 and that the same is specious and untenable. In these circumstances, the question of delay assumes relevance and is germane and requires de novo consideration by this Court. Signature Not Verified W.P.(CRL.) 1924/2020 Page 57 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43

57. Having perused the impugned order of detention, as well as, the grounds of detention, it is observed that although it was urged before this Court by the respondents at the pre- execution stage about the overseas evidence received from Dubai in November, 2019; however, no reference to such evidence is to be found in the impugned detention order.

58. We are, therefore, of the view that in the absence of any mention of such overseas evidence in the subject detention order, the same cannot be considered as germane in order to satisfactorily explain the delay occasioned in passing of the impugned order of detention.

59. This Court while passing the said judgment dated 11.09.2020 had proceeded on the basis of the stand taken by the respondents that gathering of overseas evidence had delayed the issuance of the subject detention order. However, since in the post-execution proceedings, the respondents have failed to even cite or rely upon the purported overseas evidence collected; nor did they place any such evidence before the Detaining Authority, the respondents have failed to explain away the delay on that count. This Court is Signature Not Verified W.P.(CRL.) 1924/2020 Page 58 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 therefore obliged to re-consider the issue of delay at the post- execution stage in the present proceedings.

60. In view of the facts and circumstances elaborated hereinabove and the judicial pronouncements on the issue, to the effect that the Court can interfere with the order of detention on the ground of inordinate and unexplained delay, a fortiori we are of the view that there has been substantial, unexplained delay in passing the impugned order of detention. As a result, in the absence of any satisfactory explanation for it, the inordinate delay leads to snapping of the required live and proximate link and direct nexus with the immediate need to detain the petitioner.

61. In this behalf, it is incumbent upon us to emphasise the dictum of the decisions of the Hon'ble Supreme Court in the following cases:-

b) In T.A. Abdul Rahman vs. State of Kerala and Others , reported as (1989) 4 SCC 741, the Hon'ble Supreme Court has elaborated on the issue of when unexplained delay vitiates the detention order by observing as follows:-

62. In view of the ratio decidendi of the above extracted decisions, we are of the view that in the facts and circumstances of the present case, the causal connection between the alleged prejudicial activities of the detenu and the necessity of the passing of order of detention qua the petitioner stands broken.

63. We hasten to add that, whilst arriving on this conclusion, we have given our careful consideration to the judgments relied upon by the respondents on the question of delay in issuing the order of detention. In this behalf, we observe that the reliance placed by the respondents on the decision in the case of Union of India vs. Muneesh Suneja , reported as (2001) 3 SCC 92, does not come to the aid of the respondents, inasmuch as, that was a case where the detention order was quashed by the High Court at the pre-detention stage and consequently, the Supreme Court observed that the same was not a fit case for the issuance of any writ of habeas corpus but for certain other types of reliefs and, therefore, the matter was examined as any other ordinary writ petition. In this Signature Not Verified W.P.(CRL.) 1924/2020 Page 62 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 behalf, the Hon'ble Supreme Court held as under in the concluding paragraph:-

64. A plain reading of the paragraph extracted above leaves no manner of doubt that the detention order may be quashed at the post execution stage, even though it has not been quashed at the pre-detention stage. It leads to but one inescapable conclusion that considerations while examining the validity of detention order at post-detention stage can be different from the considerations that obtain at the time of examining such an order at the pre-detention stage.

65. The respondents have also invited our attention to the judgment of Licil Antony vs. State of Kerala and Another , reported as (2014) 11 SCC 326, in addressing the issue of delay in issuing the order of detention.

66. In Licil Antony (supra ) the said decision , while dealing with the question of delay, the Hon'ble Supreme Court in Signature Not Verified W.P.(CRL.) 1924/2020 Page 63 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 paragraph 18 thereof has observed that 'the question whether the prejudicial activity of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activity and the purpose of detention is snapped depends upon the facts and circumstances of each case'.

67. The facts and circumstances, which demonstrates the snapping of the live-link between the alleged prejudicial activity and the purpose of detention have been copiously detailed in the petition and the written submissions filed on behalf of the petitioner.

68. The present case is, therefore, entirely distinguishable on the facts, from the case of Licil Antony (supra), since in that case there was a delay of one month between the arrest of the detenu and the issuance of proposal of detention by the Sponsoring Authority. The detenu in Licil Antony (supra) was arrested on 17.11.2012 and the proposal for detention dated 17.12.2012 was received by the Detaining Authority on 21.12.2012.

Signature Not Verified W.P.(CRL.) 1924/2020 Page 64 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43

69. In the present case, however, the petitioner was admittedly arrested on 26.04.2019, whereas the proposal for detention by the Sponsoring Authority was made belatedly only in January, 2020. Thus, evidently in the present case, there is a delay of over 08 months between the arrest of the petitioner and the proposal for detention by the Sponsoring Authority to the Detaining Authority; which is in complete contrast, when compared to delay of just one month in the relied upon decision in Licil Antony (supra).

70. Further, in Licil Antony (supra), the Detaining Authority after scrutinizing and evaluating the proposal dated 25.01.2013, placed the same before the Screening Committee and forwarded the same on 01.02.2013. The Detaining Authority took the decision to detain the detenu on 15.04.2013. The detention order was expeditiously passed on 06.05.2013, after the draft grounds in English were approved on 19.04.2013 post-translation to Tamil, which took time till 03.05.2013. It is in these circumstances that the delay in passing the detention order was considered satisfactory in the facts and circumstances of Licil Antony Signature Not Verified W.P.(CRL.) 1924/2020 Page 65 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 (supra). However, in the present case, as elaborated hereinabove, there has been no satisfactory explanation forthcoming as to why there was delay of more than 08 months on the part of the Sponsoring Authority in issuing a proposal for the detention of the petitioner.

71. Even in Licil Antony (supra), the Hon'ble Supreme Court in paragraph 09 thereof observed that the delay in issuing order of detention, if not satisfactorily explained, itself is a ground to quash the order of detention. It is in these circumstances that we are of the view that the decision relied upon by the respondents do not support their contentions in the present case.

72. Mr. Amit Mahajan, learned Central Government Standing Counsel appearing on behalf of the respondent, has vehemently argued that the question of delay in relation to the passing of the detention order cannot be re-agitated in these proceedings, since that aspect had already been dealt with by this Court in Mohd. Nashruddin vs. Union of India & Ors., W.P.(CRL.) No.786/2020 decided on 11.09.2020, Signature Not Verified W.P.(CRL.) 1924/2020 Page 66 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 wherein it was held that there was no delay in passing of the impugned detention order.

73. In this behalf, it is observed that, this Court was clearly dis-

inclined to accept the argument of delay urged on behalf of the detenu herein, at the pre-execution stage, which finding is reflected in paragraphs 68 and 69 of the said judgment dated 11.09.2020. However, as is evident from the dictum of the Hon'ble Supreme Court in Muneesh Suneja (supra), there can be no quarrel with the legal position that, even though the detention order has not been quashed at the pre- detention stage, it may be quashed at the post-detention stage. In this behalf, it would be pertinent to observe that, at the time of mounting a challenge to the impugned detention order at the pre-detention stage, the petitioner admittedly did not have access to the detention order, the grounds thereto, as well as the Relied Upon Documents, since the same were served upon him only on 12.10.2020, pursuant upon his arrest and detention.

74. It is at that stage, the petitioner became aware for the first time about the absence of the details and particulars of overseas Signature Not Verified W.P.(CRL.) 1924/2020 Page 67 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 evidence from Dubai in November, 2019, since the same was neither mentioned in the impugned detention order nor formed part of the Relied Upon Documents. It is in this view of the matter, as well as in light of the dictum of the Hon'ble Supreme Court in Muneesh Suneja (supra), that we find ourselves unable to agree with the respondent's submission that since the aspect of delay was dealt with by this Court in Mohd. Nashruddin (supra) in the earlier round at the pre- detention stage, we ought not to examine that issue at the post-detention stage. The parameters, in our considered view, in relation to the consideration of the subject detention order at the post-detention stage are entirely different.

75. The fourth issue that requires adjudication is whether the impugned detention order is vitiated on account of non- application of mind. In this behalf, we are constrained to observe that in the grounds of detention, strong reliance has been placed upon the statements of the detenu and co- detenus, recorded under the provisions of Customs Act, 1962 . A plain reading of the said grounds of detention clearly reflects the extensive reliance placed upon the said statements Signature Not Verified W.P.(CRL.) 1924/2020 Page 68 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 by the Detaining Authority, for arriving at its subjective satisfaction.

76. It is immediately evident, however, that the Detaining Authority did not consider the circumstance that the detenu, and the co-detenus and others, whose statements formed the basis of the grounds of detention, had long since retracted their statements. In this behalf, the impugned order of detention makes only a passing reference to the circumstance that the DRI had issued rebuttals to the said retractions on 16.01.2020, barely five days before passing the subject order. This circumstance highlights the considerable gap of time between the retraction of the statements by the detenu and co- detenus, and rebuttal thereof by the DRI. This belated rebuttal on the part of the official respondents was relevant and merited consideration by the Detaining Authority, particularly when extensive reliance was evidently placed upon those statements. The Detaining Authority would also have been well-advised to consider the aspect of admissibility of the statements, which stood retracted; and were only rebutted by the Sponsoring Authority, a few days before the Signature Not Verified W.P.(CRL.) 1924/2020 Page 69 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 passing of the impugned order of detention. Further, we find from the record of the Detaining Authority that strong reliance has been placed upon the statement of not just the detenu but also the statements allegedly recorded of Vikram Bhasin and Mahesh Jain, statedly the co-accused in the prosecution. In this behalf, the record reflects that Vikram Bhasin and Mahesh Jain retracted their statements, as far back as on 03.06.2019, which retractions had evidently not been placed before the Detaining Authority by the Sponsoring Authority. In our view, once the Detaining Authority has relied upon the inculpatory statements of the co-accused, their retractions also assumed great relevance in the factual backdrop of the present case. Consequently, the admissibility of the said statements becomes questionable once there is a retraction, which issue merited consideration, not accorded to it by the Detaining Authority.

77. In this behalf, it is also trite to say that the Sponsoring Authority was under legal obligation to have placed the said retractions before the Detaining Authority for the latter's subjective satisfaction.

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78. In this behalf, it would be profitable first to consider the observations of the Hon'ble Supreme Court in A Sowkath Ali vs. Union of India & Others , reported as (2000) 7 SCC 148 and particularly in paragraph 20 thereof. The said paragraph is extracted hereinbelow for the sake of facility:-

79. In a similar vein are the observations of the Hon'ble Supreme Court in P. Sarvanan vs. State of T.N. and Others , reported as (2001) 10 SCC 212 and in particular paragraphs 7, 8 and 9 thereof. The said paragraphs as extracted hereinbelow:-

80. Further, in Ashadevi vs. K. Shivraj , reported (1979) 1 SCC 222 the Hon'ble Supreme Court has held as under:-

It is true that the detention order in that case was ultimately set aside on other grounds but the observations are quite significant. These observations were approved by this Court in Suresh Mahato v. District Magistrate, Burdwan [(1975) 3 SCC 554 : 1975 SCC (Cri) 120 : AIR 1975 SC 728] . The principle that could be clearly deduced from the above observations is that if material or vital facts which would Signature Not Verified W.P.(CRL.) 1924/2020 Page 75 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed before or are not considered by the detaining authority it would vitiate its subjective satisfaction rendering the detention order illegal. After all the detaining authority must exercise due care and caution and act fairly and justly in exercising the power of detention and if taking into account matters extraneous to the scope and purpose of the statute vitiates the subjective satisfaction and renders the detention order invalid then failure to take into consideration the most material or vital facts likely to influence the mind of the authority one way or the other would equally vitiate the subjective satisfaction and invalidate the detention order."

81. In Union of India vs. Ranu Bhandari , reported as (2008) 17 SCC 348, the Hon'ble Supreme Court has also observed so in paragraphs 33, 34 and 35, which are reproduced hereunder:-

82. The reliance placed by the respondent on the decision of the Hon'ble Supreme Court in Madan Lal Anand vs. UOI , reported as (1990) 1 SCC 81, to the effect that it has been held therein that only copies of documents on which the impugned detention order is primarily based, should be supplied to the detenu and not any and every document; we observe that it was also clearly held therein in paragraph 24 thereof as under:-

83. In view of the above extracted 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 were required to have been placed before the Detaining Authority for its 'subjective satisfaction'.

84. The reliance placed by the respondent upon the decision of Kamarunnisa vs. Union of India, reported as (1991) 1 SCC 128, does not come to their aid, since in the present case we agree with the submissions made on behalf of the petitioner, that the present is a case of non-placement of vital facts and documents before the Detaining Authority and that the 'subjective satisfaction' is vitiated since the latter was not in possession of vital material. The ratio in Kamarunnisa (supra) is, therefore, distinguishable on the facts thereof. We, therefore, answer the fourth issue by observing that the Detaining Authority fell into error in not considering the vital material, thereby vitiating its subjective satisfaction, being hit by the vice of non-application of mind.

85. As far as the fifth issue is concerned, we observe that the Detaining Authority whilst arriving at its 'subjective Signature Not Verified W.P.(CRL.) 1924/2020 Page 78 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 satisfaction' failed to properly examine whether the detenu exhibited propensity to continue indulging in any prejudicial activities, for the reason that there was no consideration of the circumstance that despite the fact that the passport of the detenu was released by DRI on 07.01.2020, he did not attempt to travel abroad; as well as the fact that IMNPL had been placed under the Denied Entity List, thereby clearly indicating that it could no longer import gold under the Advance Authorization Scheme, and completely eliminating the possibility of it misusing the said scheme. The consideration of the said aspect is conspicuous by its absence in the impugned detention order.

86. The decision to place IMNPL under the Denied Entity List was taken by the DGFT pursuant to an UO Note dated 21.06.2019, issued by the DRI; which note was never placed before the Detaining Authority.

87. Also the factum of suspension of Vikram Bhasin, the co-

accused, who was the Jewellery Appraiser, was neither placed before nor considered by the Detaining Authority. It this behalf, it would be pertinent to observe that it was the Signature Not Verified W.P.(CRL.) 1924/2020 Page 79 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 case of the Sponsoring Authority itself that ''The role of Vikram Bhasin was so crucial since without his collusion, the smuggling of Gold could not have been possible". It was, therefore, incumbent upon the DRI to place the suspension order qua Vikram Bhasin for its due consideration of the Detaining Authority.

88. Lastly, the Detaining Authority did not consider the conduct of the detenu, post his enlargement on bail whilst rendering the impugned order of detention, since despite the release of his passport and the granting of the requisite permission to travel abroad, the detenu voluntarily chose not to travel overseas, clearly and unequivocally establishing his bona fides and debunking the arguments of his propensity to continue to indulge in prejudicial activities in the immediate future. This was never brought to the notice of the Detaining Authority, thereby precluding the latter from considering this relevant and germane circumstance, whilst arriving at its subjective satisfaction in this behalf.

89. Additionally, the order of CESTAT dated 13.11.2019 directing the provisional release of the goods, was also a Signature Not Verified W.P.(CRL.) 1924/2020 Page 80 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 relevant factor, that was not accorded any consideration by the Detaining Authority, in the present case.

90. We are, therefore, of the view that the Detaining Authority has erred in arriving at the finding qua the propensity of the detenu to involve himself in further prejudicial activities, by failing to consider the facts and circumstances, elaborated hereinabove.

91. On the sixth issue regarding the delay on the part of the Central Government in deciding the representation filed by the detenu, it would be relevant to consider the circumstance that the detenu was detained on 12.10.2020 and filed representation dated 27.10.2020 with the Detaining Authority, as well as before the Central Government. Although the Detaining Authority rejected his representation on 09.11.2020, no decision was taken by the Central Government on the detenu's representation. Instead the Central Government made a reference dated 10.11.2020 to the Central Advisory Board, which gave its opinion qua the sufficiency of the grounds with regard to the detenu's detention. The subject representation was finally rejected by Signature Not Verified W.P.(CRL.) 1924/2020 Page 81 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 the Central Government only on 23.12.2020, three days after confirmation by it of the order of detention by the Central Advisory Board.

92. A bare perusal of the above clearly reflects that there was massive delay of 57 days by the Central Government in dealing with the petitioner's representation.

93. In Ankit Ashok Jalan vs. Union of India and Others , reported as (2020) 16 SCC 127, the Hon'ble Supreme Court has observed, particularly in paragraph 17 thereof, as under:-

94. It is, therefore, well settled that the right of the detenu to make a representation and have it considered by the appropriate Government with expedition, is a constitutional right under Signature Not Verified W.P.(CRL.) 1924/2020 Page 83 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 Article 22(5) of the Constitution of India and any unreasonable and unexplained delay in considering the representation is fatal to the continued detention of the detenu.

95. In this view of the matter and the circumstance that this proposition is too well settled by a long line of decisions, it is not considered necessary for us to examine the authorities relied upon by the respondents on this aspect.

96. We, therefore, hold that there has been inordinate and unexplained delay on the part of the Central Government in deciding the statutory representation filed by the detenu.

97. The last issue that arises for determination before us is whether the subject detention order stands vitiated for the reason that the grounds stated therein have been lifted from the grounds taken in an entirely different case.

98. The petitioner herein have produced certified copies of the detention order dated 17.05.2019 passed in the case of Union of India & Anr. vs. Dimple Happy Dhakad , reported as (2019) 20 SCC 609 (filed by the detenu's wife) from the records available in the Supreme Court of India. A Signature Not Verified W.P.(CRL.) 1924/2020 Page 84 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43 purposive, comparative consideration of the grounds of detention dated 17.05.2019 in Dimple Happy Dhakad (supra), also passed by Mr. R.P. Singh, the Detaining Authority in these proceedings and the impugned detention order, the inference clearly is that barring a few differences in the names and references etc---mutatis mutandis---the grounds are unerringly identical. The said comparison ground-for-ground leads but to one inescapable conclusion, that the entire exercise of passing the detention order was mechanical, as the grounds have been lifted from the grounds of an altogether distinct case. Such a blatant copy-paste job by the Detaining Authority demonstrates clear non- application of mind.

99. We, therefore, hold that the impugned order of detention is vitiated on this ground as well.

100. In view of the foregoing discussion, and having accorded our thoughtful consideration to the material on record, the issues struck hereinabove are decided in favour of the detenu and against the respondents.

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101. The writ petition accordingly succeeds. In the result, the detention order bearing No. PD-12001/03/2020-COFEPOSA dated 21.01.2020 passed against the detenu is set-aside and quashed. The detenu is directed to be set at liberty forthwith unless his custody is required in connection with any other case.

102. The writ petition is disposed of in the above terms.

103. A copy of this judgment be provided to learned counsel appearing on behalf of the parties electronically and be also uploaded on the website of this Court forthwith.

SIDDHARTH MRIDUL (JUDGE) ANUP JAIRAM BHAMBHANI (JUDGE) AUGUST 13, 2021 dn/di Click here to check corrigendum, if any Signature Not Verified W.P.(CRL.) 1924/2020 Page 86 of 86 Digitally signed by:DURGESH NANDAN Signing Date:13.08.2021 19:34:43