IMPORTANT POINT
On the facts and circumstances of case, the contention raised on behalf of detenu that the order of detention u/s. 3(1) of COFEPOSA Act was vitiated due to non-application of mind of the detaining authority, cannot be accepted.

Headnote:COFEPOSA Act, 1974-Section 3(1)-Detention order under-Compliance of Section 3(3) and Article 22 (5)-Writ petition against it dismissed by High Court-Detenu completing the term of detention but challenging detention order to check certain further actions-Plea that detention order were made without due application of mind-Rejected-Facts showing proper application of mind -Contention that detenu s own documents in order not translated in English-Rejected on facts and in law -Case Law discussed-Rules applied -Held appeal is liable to be dismissed (Law of Preventive Detention -Defence of non-application of mind by detaining authority).
       Held : From the narration of facts in the grounds of detention, it is clear that the detaining authority has not only taken note of the allegations made against the detenu; the materials collected by the investigating agency of the department against him but has also taken note of the reply given by the detenu at different stages denying the allegations and levelling counter allegations against the officers of the department to implicate him. (Para 8)
       Held (after reviewing case) : Testing the case at hand on the touchstone of the principles laid down in the decisions noted above, we find that the subjective satisfaction arrived at by the Detaining Authority in the case is based on consideration of all the relevant materials placed before it by the sponsoring authority. It is not the case of the appellant that the sponsoring authority did not place before the detaining authority any material in its possession which is relevant and material for the purpose and such material, if considered by the detaining authority, might have resulted in taking a different view in the matter. All that is contended on behalf of the detenu is that the detaining authority should have taken further steps before being satisfied that a case for detention under the COFEPOSA Act has been made out against the detenu. Whether the detention order suffers from non-application of mind by the detaining authority is not a matter to be examined according to any straight-jacket formula or set principles. It depends on the facts and circumstances of the case, the nature of the activities alleged against the detenu, the materials collected in support of such allegations, the propensity and potentiality of the detenu in indulging in such activities, etc. The Act does not lay down any set parameters for arriving at the subjective satisfaction by the detaining authority. Keeping in view the purpose for which the enactment is made and the purpose it is intended to achieve, the Parliament in its wisdom, has not laid down any set standards for the detaining authority to decide whether an order of detention should be passed against a person. The matter is left to the subjective satisfaction of the competent authority. Learned senior counsel Sri V.A. Mohta raised another contention that the detenu had annexed to his representation certain document written in Urdu language; the detaining authority did not take any step for translation of the said document into English, and therefore, the said material could not be considered by the authority concerned while disposing of the representation The contention raised by Sri Mohta can not be accepted The judgment of the High Court does not show that such a contention was raised before the Court when the case was argued. Further, our attention has not been drawn to any material to show that the document in question was not translated into English, or whether the authority concerned had not perused the contents of the document. There is also no material to show that the detenu had sought the help of the authorities to get the document in question translated into English since that was a piece of material which was relied upon by him in support of the representation. On the facts and circumstances of the case, it is our considered view that the contention raised on behalf of the detenu that the order of detention was vitiated due to non-application of mind of the detaining authority, cannot be accepted. The High Court committed no error in declining to interfere with the detention order and in dismissing the writ petition. Therefore, the appeal, being devoid of merit, is dismissed. (Paras 20, 21, 22 & 23)

JUDGMENT

D.P. Mohapatra, J.-Leave is granted

2. This appeal, filed by special leave, by Gurdev Singh father of the detenu Swarn Singh Sandhu, is directed against the judgment and order dated 1.12.2000 of the Delhi High Court in Criminal Writ Petition No. 352 of 2000, Gurdev Singh vs. Union of India & Ors., dismissing the writ petition.

3. At the commencement of hearing of the case Shri V.A. Mohta, learned senior counsel appearing for the appellant submitted that though the detenu has already undergone the period of detention this Court may decide the legality and validity of the Detention Order since the appellant apprehends that certain further actions may be taken on the basis of the order of detention which has spent its force by efflux of time.

4. In pursuance of the detention order passed by the Joint Secretary to the Govt. of India in the Ministry of Finance (Department of Revenue) on 2nd March, 2000 in exercise of the power under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 as amended, (hereinafter referred to as the COFEPOSA Act ); Swarn Singh Sandhu was detained and kept in custody in Central Prison, Nasik. In compliance with the provisions of Section 3(3) of the COFEPOSA Act read with Clause (5) of Article 22 of the Constitution of India the grounds of detention dated 2nd March, 2000 along with the documents mentioned and relied upon therein were communicated to the detenu. On receipt of the detention order and the grounds of detention, the detenu addressed representations to the Central Government on 5.4.2000 which were rejected on 11.4 2000. This was followed by the writ petition filed on behalf of the detenu in the Delhi High Court which was dismissed by its judgment and order dated 1.12.2000. The said judgment/order is under challenge in this appeal.

5. In the grounds of detention covering 35 pages the detaining authority has set out in detail the informations received from different quarters regarding misuse of the facilities provided under the Export Incentive Scheme introduced by the Govt. of India, Ministry of Commerce, called Duty Entitlement Pass Book (DEPB) scheme as a part of the Export-Import Policy for the period 1997-2002. The objective of the scheme was to neutralize the incidence of basic customs duty on the import content of the export product. The scheme provided for credit of duty calculated by taking into account the duty payable on the deemed import content used in the manufacture of the export product. Under the scheme, an exporter is eligible to claim credit at a specified percentage of FOB value of exports. The credit is made available against the products exported as per the rates specified in this behalf by the Director General of Foreign Trade (DGFT). Under the scheme all items except those appearing in the negative list of imports are allowed to be imported without payment of customs duty against the credit available under a DEPB. The procedure specified for issue of DEPB scrips entails submission of an application to the DGFT by the exporter along with the original EP (Export Promotion) copy of the shipping bill against which the exports have actually been effected and a certificate of realisation of export proceeds (BRC) from the respective banks.

6. In paragraph 3 of the grounds of detention it is stated by the detaining authority that an intelligence was received by the officers of the Directorate of Vigilance, Mumbai, indicating that certain persons/firms are misusing the DEPB scheme by manipulating/forging the particulars of the shipping bills and obtaining the DEPB benefit from the office of the Joint DGFT, Mumbai. Initially, three such firms namely, (i) M/s. Samarth Enterprises, (ii) M/s. Sharp Medicals, (iii) M/s. Pragati Sales Corporation were identified. Further investigation made after search of the premises of these firms revealed that one more company, namely Knomo Exports Ltd. (later changed to M/s.KEL Exports Ltd.

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2001 Supreme(SC) 1541

IMPORTANT POINTOn the facts and circumstances of case, the contention raised on behalf of detenu that the order of detention u/s. 3(1) of COFEPOSA Act was vitiated due to non-application of mind of the detaining authority, cannot be accepted.

Cases Referred (6)

IMPORTANT POINT
On the facts and circumstances of case, the contention raised on behalf of detenu that the order of detention u/s. 3(1) of COFEPOSA Act was vitiated due to non-application of mind of the detaining authority, cannot be accepted.