Allowed

Mushiruddin Khatalsab Bepari v. the State of Maharashtra and Ors.

Bombay HC7 Aug 2008WP/539/2008

Case brief

AI extract

What is this about?

The High Court quashed an Order of Detention under COFEPOSA, holding that the Detaining Authority acted without applying its mind or examining the evidence despite the statutory requirement to record subjective satisfaction under Article 22 and Section 3 of the COFEPOSA Act.

What did the court decide?

The Order of Detention dated 6th February, 2008 is set aside and the detenu Mustaq Ahmed Choudhary is to be released forthwith if not detained elsewhere.

Mushiruddin Khatalsab Bepari Vs the State of… — Pension and Retirement Benefits | Bombay HC (2008)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO. 539 OF 2008

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	DIST.: MUMBAI
Mushiruddin Khatalsab Bepari, Age 27, residing at 3^rdFlor, B Block, Basant Mahal, Wadala (East), Petitioner	] ] ] ...
Mumbai 400 037	] (Nephew of detenu)
Versus 1. The State of Maharashtra through the Additional Chief Secretary to the Government of Maharashtra, Home Department (Special), Mantralaya, Mumbai 400 032	] ] ] ] ]
2. Ms. Anna Dani, the Principal Secretary to the Government of Maharashtra, Mantralaya, Mumbai 400 032	] ] ]
3. The Superintendent of Prison, the Mumbai Central Prison, Arthur Road, Mumbai	] ]
4. The Superintendent of Prison, Nasik Road Central Prison, Nasik Road, Maharashtra.	] ] ] ...Respondents.
Mr. Niteen Pradhan, Senior Advocate, with Ms. S. Mr. Advani and Hira Sachwani for the Petitioner	D. Khot and

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Mrs. A.S. Pai, Additional Public Prosecutor, for the State.

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CORAM : B ILAL NAZKI and A.A. KUMBHAKONI, JJ.

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DATE : AUGUST 7, 2008

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ORAL JUDGMENT (Per Bilal Nazki, J.):-

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This Writ Petition has been filed by the petitioner, who claims to be a nephew of the detenu.

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The detenu has been detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 by an order of the Detaining Authority dated 6^th February, 2008. He was arrested on 19^th February, 2008. Prior to this, the detenu had been arrested in connection with a case on 5^th April, 2007 and bailed out on 25^th April, 2007. The Detention Order was passed on the basis of the material collected by the concerned agency with regard to the alleged smuggling activities of the detenu and placed before the Detaining Authority.

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Briefly stated, according to the respondents, the intelligence agency had gathered information that goods imported at Nhava Sheva

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Port of certain Delhi-based firms, which were covered by a Bill of Entry for warehousing were being diverted and sold in the market, instead of being taken to the Bonded Warehouses, which were stated to be located in Haryana. As a consequence of this practice, Government was losing huge amount of Customs Duty on such illegal diversion and sale. Intelligence also informed that goods such as copper scrap, brass scrap, zinc ingots, tin sheets, chemicals, dry fruits, betel nuts, gambier, tiles, etc., were imported and cleared in the name of Delhi-based firms like M/s. Ankush Trading, M/s. Kajal Creations, M/s. Span International, M/s. Perfect Trading, M/s. X-cellent Exim Overseas, etc., and were being diverted in a clandestine manner. The detenu was an officer of the Customs Department, and according to the intelligence report, he had a hand in making the diversions possible.

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The grounds of detention are spread over more than 50 pages, and the learned counsel for the petitioner has made many submissions for quashing the Order of Detention. The counter affidavits have been filed by the Detaining Authority and the Assistant Director, DRI, Mumbai. We have heard the learned counsel for the parties, and we have also perused the record.

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In the first instance, we would mention one of the foremost grounds of challenge of the Order of Detention by Mr. Pradhan, learned counsel for the petitioner. Admittedly, the documents, which were taken into consideration by the Detaining Authority comprised of 32,521 pages. The annexure to the grounds of detention gives the description of these documents. These documents were supplied to the detenu along with the Grounds of Detention, and the counsel for the petitioner has brought these documents in a huge tin trunk before the Court. The argument put forth on behalf of the petitioner was that these documents could not have been considered by the Detaining Authority within a period of 11 days, as it was not physically possible to do so for any person.

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In this connection, the Detaining Authority, in a counter, submits as under:-

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“I state that after receipt of the proposal from the Sponsoring Authority on 16.10.2007, the concerned Assistant prepared the detailed note on 2910.2007. The concerned Assistant forwarded the papers to the Under Secretary. The Under Secretary gave his endorsement on it on 30.10.2007 and forwarded the papers to the Deputy Secretary, who after carefully going through the same, gave his endorsement on the same day and forwarded the papers to me on the same day.

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I state that after going through the said proposal, I decided to call the officers from the Sponsoring Authority, and accordingly gave my endorsement on 5.11.2007.”

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Unfortunately, this assertion made in the affidavit by a responsible officer is untrue, and is not supported by the record. The record reveals that a proposal was received by the Detaining Authority on 16^th October, 2007, as stated by the Detaining Authority in her affidavit. After scrutiny by an Assistant, he made certain observations, and it was sent to the Under Secretary and Deputy Secretary on 30^th October, 2007. It went to the Detaining Authority on 5^th November, 2007. She did not merely endorse it, as she has stated in her affidavit, but she said, “Issue Detention Order”. Therefore, the Detaining Authority made up her mind to detain the detenu on 5^th November, 2007 itself – obviously without examining any record pertaining to the case. Only on the basis of the note prepared by a clerk, she passed an Order of Detention within 5 days of the proposal having been received by her office.

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8. Thereafter, her affidavit further reveals that -

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“ I state that in the meantime, the detenu has forwarded Pre Detention Representation dated 20.1.2007, which was

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received in the Department on 21.11.2007. Thereafter, concerned Assistant forwarded the file to the Under Secretary, who gave his endorsement on 26.11.2007 and forwarded the papers to the Deputy Secretary, the Deputy Secretary gave his endorsement on 26.11.2007. Thereafter, the para-wise comments were called for from the Sponsoring Authority vide letter dated 26.11.2007. Para-wise comments were received on 6.12.2007 from the Sponsoring Authority in the Department vide letter dated 5.12.2007. Thereafter, the concerned Assistant prepared the detailed note on 8.1.2008 and forwarded the said file to the Under secretary. It is submitted that during the said period detention order in respect of PDs S/Shri Shrikant Jhanwar (Pages 5106), Shyamsunder Jhanwar (Pages 4979), Anil Kailash Jain (Pages 6608) (and) Siddarth S. Oberoi (pages 4493) were issued. The work of stamping the relied upon documents in the present case to the tune of 32,456 pages was being done and also the other proposals pending for consideration were being also examined. The Under Secretary after going through the same made his endorsement and forwarded the same to the Deputy Secretary on the same day i.e. on 8.1.2008. The Deputy Secretary endorsed it on 08.01.08 and forwarded the said file to me.

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“I state that after carefully going through the said papers, I rejected the representation of the detenu and formulated the draft grounds of detention and accordingly I gave my endorsement on 10.1.2008.”

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This statement also is not borne out by the record. Everything

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is borne out by the record, except that any fresh consideration was given by the Detaining Authority whether the detenu needs to be detained or not. She only recorded on 10^th January, 2008, “Representation rejected”. Therefore, the record reveals that the decision to detain the detenu was

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taken on 5^th November, 2007 without any application of mind; and what was rejected on 10^th January, 2008 was the pre-detention representation received from the detenu. Therefore, the time spent from 5^th November, 2007 to 10^th January, 2008 was spent only to examine whether the representation should be accepted or rejected.

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Then, she states that -

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“ thereafter the draft detention order, grounds of detention and annexures as dictated by me were got typed and thereafter the concerned Assistant prepared the detailed note and gave his endorsement on 23.1.2008 and forwarded the same to the Under Secretary, the Under Secretary gave his endorsement on 24.1.2008 and forwarded the papers to the Deputy Secretary on the same day. The Deputy Secretary endorsed it on 24.01.08. Thereafter, the papers were forwarded to me and I after carefully going through the draft detention order, grounds of detention and annexure approved the same on 28.1.2008. Thereafter, the final draft of the order of detention, grounds of detention and annexures thereto was retyped and the concerned Assistant gave his endorsement on 5.2.2008 and forwarded the same to the Under Secretary, who gave his endorsement on the same day and forwarded the same to the Deputy Secretary. The Deputy Secretary gave his endorsement on same day i.e. on 05.02.08. Thereafter, papers were forwarded to me and I after carefully going through the same issued the order of detention against the detenu on 6.2.2008 .”

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This statement, again, needs to be tested in the light of the record. The record reveals that after the representation was rejected on

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10^th January, 2008, the file was put to the Detaining Authority on 24^th January, 2008. The note was prepared by the Under Secretary, which reads as under:-

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“ Submitted with reference to the order of the Detaining Authority on P.4/Ns. The draft detention order, and grounds of detention in respect of PD Shri Mustaq Ahmed Choudhary as dictated by the Detaining Authority is submitted for approval of the Detaining Authority .”

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When it reaches the Detaining Authority, she has signed it and marked 'Approved'. The date is '28/5/07'. It appears the date is wrong, the month is also wrong, and the year is also wrong, and we are not sure when did she actually approve the Grounds of Detention.

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Then, again, the file is submitted to her on 5^th February, 2008. Again, it says the same thing. The note prepared by the Under

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Secretary is,

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“The draft detention order, grounds of detention and annexure as approved by the Detaining Authority in respect of PD Shri Mustaq Choudhary are submitted for signature of the Detaining Authority.”

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The note is submitted by the Under Secretary on 5^th February,

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2008 to the Deputy Secretary, who signs on 5^th February, 2008, and the Detaining Authority signs on 6^th February, 2008.

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The whole file reveals that application of mind was not made at all at any stage of the case by the Detaining Authority. The Order of Detention, as a matter of fact, was passed on 5^th November, 2007, and only the Order of Detention was issued later in February, 2008. From 5^th November, 2007 till 6^th February, 2008, there is nothing on record to show that the Detaining Authority reviewed her own earlier order, applied her mind to more than 30,000 pages of documents, and came to the subjective satisfaction that the detenu needs to be detained.

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The order which is passed on 5^th November, 2007 says, “Issue Detention Order”. Of course, this Court can presume that there was no application of mind for two reasons: (1) No satisfaction was recorded by the Detaining Authority, which is contemplated under Section 3 of the COFEPOSA Act, and (2) it was not physically possible for anybody to read more than 30,000 pages within a period of 5 days, and come to the conclusion that the detenu was needed to be arrested. Either the affidavit by the Detaining Authority has been filed without

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seeing the record or a deliberate attempt has been made to mislead the Court, as the facts revealed in the affidavit do not conform to the facts revealed by the file. In both the cases, this is a serious lapse.

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Right to liberty is one of the most precious rights guaranteed to every citizen of this country, and this right cannot be compromised at any cost. The Courts have always been very strict when it comes to the liberties of people. Article 22 is by way of an exception to Article 21 of the Constitution of India, and it is the settled law of this country for 6 centuries that whenever a person is detained under any preventive detention laws, all the safeguards prescribed by Article 22 have to be strictly complied with. Right from A.K. Gopalan v. State of Madras reported in AIR 1950 S.C. 27 till date, the principles have been laid down by the Apex Court, which have to be adhered to by the Detaining Authority while ordering detention of a person. It is true that the Detaining Authority can detain a person if they are subjectively satisfied that the liberty of a person would be prejudicial to law prescribed under a particular preventive law; but at the same time, the persons, who are empowered to detain the person without trial, without a charge are expected to apply their mind to the material before them. Orders of detention cannot be passed mechanically. Orders of detention cannot

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be passed also by the officers, who take such a duty merely as a bureaucratic exercise of power. This is a very serious power to be exercised by anybody. Even the Hon'ble Supreme Court of India, even the Parliament of India cannot detain a person without a charge, but the Detaining Authority is empowered to detain a person even without a charge in view of Article 22 of the Constitution of India.

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Therefore, the officers, who are concerned with exercise of such power, have to be very, very cautious while passing an order of detention, which amounts to denying liberty to a person. We have seen that this power is being exercised very casually, and we have an impression that the officers, who have been given the power to detain a person under various preventive laws, are not well-suited to exercise such a power. However, we make it clear that it should not be presumed that this Court is passing any remarks about the competence, capability or integrity of the Detaining Authority. The Detaining Authority may be very competent, and may be having all virtues of a good officer and a good citizen. But it is not always necessary that every capable man would understand the nuances of civil liberties, and everybody would understand as to how a person can be deprived of his liberty under a preventive law.

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Therefore, it is high time that the Government makes arrangement for training the officers in the field of application of preventive laws, because if the orders are passed by officers, who do not understand the nuances of law, it can doubly damage the society. Such persons, who need to be detained, will have to be released; and, therefore, again, there will be a loss to the society and if a person is detained, who does not need to be detained, he will be unnecessarily detained.

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On this ground alone, holding that the Order of Detention dated 6^th February, 2008 cannot sustain, therefore, the Order of Detention is set aside. The detenu, Mustaq Ahmed Choudhary, shall be

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released forthwith, if not required in any other case. The Writ Petition is accordingly allowed.

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BILAL NAZKI, J.

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A.A. KUMBHAKONI, J.

Mushiruddin Khatalsab Bepari v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

Mushiruddin Khatalsab Bepari v. the State of Maharashtra and Ors.

Case brief

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What did the court decide?

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