Non-consideration of vital documents affecting the subjective satisfaction of the Detaining Authority vitiates the order of preventive detention.

A.S. OKA, J.

1. By this Petition under Article 226 of the Constitution of India, an exception is taken to the order of preventive detention passed under sub-section (1) of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short "COFEPOSA") against one Ramesh B. Doshi. The present Petitioner is the son of the detenu. The order of preventive detention has been passed with a view to prevent the Petitioner in future from abetting the smuggling of goods.

2. Considering the grounds of challenge raised by learned counsel appearing for the Petitioner, it will be necessary to make a brief reference to the grounds of detention. The allegation incorporated in the grounds of detention is that one Vishal Madan was importing PVC/PU coated cloth commonly known as artificial leather cloth through Nhava Sheva port and CFS Mulund. The import was in the name of four different firms as stated in paragraph 2 of the grounds. In paragraph 3 of the grounds, it is stated that after negotiations, the suppliers of the Petitioner, who were Chinese, were transmitting finally negotiated price of goods to be imported to said Vishal through e-mail. However, the Chinese suppliers were sending undervalued invoices for Customs clearance to Vishal by courier and that such undervalued invoices were being used by Vishal for declaring the value in bills of entry filed in the name of four firms through one Surendra Kumar Pandey (Custom House Agent). It is alleged that by adopting this method, Vishal evaded Customs duty to the tune of Rs. 40 Crores. It is alleged that the declared value was remitted by Vishal through the bank account of the said four firms. But the difference in the actual value and the declared value was remitted through hawala channel by paying cash in Indian currency to the detenu in the present case.

3. Learned senior counsel appearing for the Petitioner has mainly pressed in service ground set out in clause (ii) of ground A of paragraph 9 of the Petition. The said ground is about the failure of the sponsoring authority to place vital documents before the Detaining Authority and non-consideration of the vital documents by the Detaining Authority. For understanding the purport of ground A (ii), it will be necessary to make a reference to the grounds A (i) and A (ii). The grounds A (i) and A (ii) read thus:-

"A (i) That, the Sponsoring Authority while proposing issuance of the impugned detention order has selectively placed material before the detaining authority. As evident from the records, copies of the following documents were placed before the Detaining Authority as relevant and incriminating material - (i) Statements of Shri Vishal Madan (in para 12, 15, 16, 17, 18, 19, 26, 27, 28, 29, 30, 33 and 34), Shri Surendra Pandey (para 22, 23, 24 and 25), and Shri Pal Singh Lohiya (at Sr. No. 20 at page 8561 to 8564), (ii) An order dated 7-12-2012 (at Sr. No. 70 at page 8927-8944) passed by Customs Authority purportedly as a preventive measure on the basis of the report of Sponsoring Authority for suspending licence of Unison Clearing Services Pvt. Ltd. i.e. the CHA of Shri Vishal Madan and (iii) Letter dated 3-1-2013 (at Sr. No. 86, Page 9001), wherein Additional Commissioner, Customs specifically requested the Sponsoring Authority, to forward material along with the list of departmental witnesses for initiating proceedings under Regulation 22 of Customs House Agents Licensing Regulations. A (ii) However the Sponsoring authority suppressed from the Detaining Authority - (i) The record dated 3-4-2014 of examination/cross-examination of said Shri Vishal Madan in respect of the very same statements, in the said CHA enquiry proceedings, wherein he not only retracted his statements with his explanations on each query, but also specifically denied any role of the detenu in remitting any money abroad on his behalf (copy of the said record dated 3-4-2014 of examination/cross-examination of Shr