2006 Supreme(SC) 741

2006(6) Supreme 351
SUPREME COURT OF INDIA
(From Delhi High Court)
K.G. Balakrishnan and G.P. Mathur, JJ.
Vinod K. Chawla — Appellant
versus
Union of India & Ors. — Respondents
Criminal Appeal No. 793 of 1999
Decided on 18-8-2006
Counsel for the Parties :
For the Appellant : Harjinder Singh, T.L.V. Iyer, Sr. Advocates, Ms. Vandana Sharma and S.V. Deshpande, Advocates.
For the Respondents : A. Sharan, A.S.G., Ms. Binu Tamta, Amit Anand Tiwari and P. Parmeswaran, Advocates.

IMPORTANT POINT
In a preventive detention matter law does not require that every document or material in possession of sponsoring authority must necessarily be placed before detaining authority.

Headnote:Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 — Section 3(1) — Preventive detention order — Appellant-detenu was found indulging in large scale evasion of custom duty by importing consumer electronic goods at grossly under-invoiced prices — Detention order challenged on ground that grounds of detention made reference to statement made by appellant’s son before DRI which he retracted when produced before ACMM but said retraction was not placed before detaining authority — Detention order showed that detaining authority had placed reliance entirely upon statement of appellant himself and documents and material recovered from his business premises — Detention order was not at all based upon statement of son of appellant and merely a passing reference was made to that statement — Formation of opinion and subjective satisfaction of detaining authority could not be held vitiated.

       Held : A reading of the whole of the detention order clearly shows that the detaining authority had placed reliance entirely upon the statement of the appellant Vinod K. Chawla himself and the documents and material recovered from the business premises and godowns of the firms which were admittedly owned by the appellant. There was only a passing reference to the statement of Asheesh Chawla, wherein he had stated that for the last one year he had been placing orders with M/s MIRTEX though previously the orders had been placed by the appellant. The detention order is not at all based upon the statement of Asheesh Chawla nor any real support is taken by the detaining authority from his statement in order to come to the conclusion that the appellant was the owner of the firms which placed orders for import of various items and invoices whereof were deliberately grossly undervalued in order to evade customs duty and huge sum of money was remitted through illegal channels. Another fact which deserves notice is that Asheesh Chawla had merely stated that orders with M/s MIRTEX used to be placed by the appellant till one year earlier to the recording of his statement. It is important to note that the alleged retraction of statement has not been made by the appellant but by his son Asheesh Chawla. As mentioned earlier, the detention order is not based upon the statement of Asheesh Chawla but merely makes a passing reference to the same. Had the appellant retracted from his statement and the said retraction had not been placed before the detaining authority, the position may have been different as in such a case it could be urged that the formation of opinion by the detaining authority and his subjective satisfaction in that regard had been affected. But such is not the case here. The retraction of the statement by Asheesh Chawla has no bearing at all as it in no way could affect the formation of opinion and the subjective satisfaction of the detaining authority. Therefore, the contention raised by the learned counsel for the appellant has no substance and is liable to be rejected. We would like to clarify here that the law does not require that every document or material in possession of sponsoring authority must necessarily be placed by him before the detaining authority and in every case where any such document or material is not placed by the sponsoring authority before the detaining authority, the formation of opinion and the subjective satisfaction of the detaining authority would get vitiated.(Paras 7 and 8)

       We are, therefore, clearly of the opinion that the mere fact that the sponsoring authority did not place the statement made by Asheesh Chawla on 8.1.1997 in the Court of ACMM, New Delhi, before the detaining authority, cannot lead to an inference that the formation of opinion and the subjective satisfaction of the detaining authority was vitiated in any manner.(Para 8)

       (ii) COFEPOSA Act, 1974 — Section 3 — Preventive detention order — Delay in disposal of representation made by detenu — Representation made on 24.3.1998 was rejected by detaining authority on 21.4.1998 and by Central Government on 29.4.1998 — Explanation that considerable time was taken by sponsoring authority in forwarding its comments — Contention has to be examined with reference to facts of each case having regard to volume and contents of grounds of detention, documents supplied with grounds, inquiry to be made by officers of different departments, nature of inquiry — Grounds of detention in present case were long one running into 35 paragraphs with 82 documents running into 447 pages and representation was also fairly long one — In facts and circumstances time taken in consideration and disposal of representation was fully explained and could not be termed to be inordinate delay or unexplained delay.

       Held : The contention raised cannot be judged by any straight jacket formula divorced from facts. This has to be examined with reference to the facts of each case having regard to the volume and contents of the grounds of detention, the documents supplied along with the grounds, the inquiry to be made by the officers of different departments, the nature of the inquiry, the time required for examining the various pleas raised, the time required in recording the comments by the authorities of the department concerned, and so on.(Para 10)

       The grounds of detention in the present case are a long one running into 35 paragraphs which were accompanied by 82 documents running into 447 pages. The representation made by the appellant was also a fairly long one. The representation made by the appellant on 24.3.1998 was received in the Ministry on 27.3.1998. The comments of the sponsoring authority were called on 30.3.1998 which were received on 17.4.1998. The comments were placed before the Secretary (R) through the A.D.G. on 22.4.1998 (18th and 19th being holidays). The decision of the Central Government was taken and communicated on 29.4.1998 (25th and 26th being holidays). The representation was also considered by the detaining authority in the meantime and was rejected on 21.4.1998.(Para 12)

       Having regard to the facts and circumstances of the case, we are clearly of the opinion that the entire time taken in consideration and disposal of the representation made by the appellant has been fully explained and it cannot be said by any stretch of imagination that there was any inordinate delay or unexplained delay in considering the representation made by the appellant. The challenge to the detention order made on the ground of delay in consideration of the representation made by the appellant has no substance and deserves to be rejected. (Para 12)

       (iii) COFEPOSA Act, 1974 — Section 3 — Preventive detention order — Delay in execution of order — Detention order was passed on 12.2.1997 and was served on 12.3.1998 — Appellant detenu evaded his arrest and absconded — When a person himself evaded services of detention order, it was not open to him to contend that due to long delay live link between offending activities and actual arrest was snapped.

       Held : The argument raised is wholly misconceived. The detention order was passed on 12.2.1997 soon after searches were conducted and his statement had been recorded but as the appellant was evading arrest and was absconding, it could only be served on 12.3.1998 when he was taken into custody. In the counter affidavit filed in the High Court on behalf of the respondents it was averred that continuous efforts were made both by the police authorities as well as the officers of DRI to arrest the appellant. A notice under Section 7(1)(b) of COFEPOSA was published in Official Gazette on 23.3.1997 and also in leading English and Hindi newspapers on 4.10.1997. An application under Section 7(1)(a) of the Act was also moved before the Court of ACMM for initiating proceedings under Section 82 and 83 Cr.P.C. where proclamation was made on 3.12.1997 to appear on 9.1.1998. An order of attachment under Section 83 Cr.P.C. was also issued which was brought to the notice of his family members and only then the appellant could be apprehended and detained on 12.3.1998. Reference has also been made to three letters dated 28.2.1997, 17.7.1997 and 5.9.1997 from the Police Headquarters regarding the efforts made to serve the detenu and copies of those letters were placed on record. Every time the family members of the appellant reported before the police that the appellant had left the house on 12.3.1997 to an unknown place and that his whereabouts were not known. An additional affidavit of Assistant Director of Revenue Intelligence was also filed before the High Court wherein it was averred that 11 summons were issued to the appellant during 20.2.1997 and 26.11.1997 and a red alert was also issued by the DRI on 5.3.1997. These facts conclusively establish that the detention order which was passed on 12.2.1997 soon after the searches had been made and the statement of the appellant had been recorded, could not be served in spite of every possible attempt had been made to serve him as the appellant was absconding. Where a person himself evades service of detention order, it is not open to him to contend that in view of the long period which has elapsed between the offending activities and the actual arrest and detention, the vital link had snapped and there was no ground for actually detaining him.(Para 13)