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2006 Supreme(Cal) 241
High Court Of Calcutta
DEBIPRASAD SENGUPTA, SADHAN KUMAR GUPTA
USHA AGARWAL - Appellant
Versus
UNION OF INDIA - Respondent
W. P. 23908 (W) Of 2005
Decided On : 04/21/2006
ARUNDHATI BANERJEE, BISWANATH SAMADDER, Chandrima Bhattacharya, FAISAL FAROOK, FAROOK M.RAZACK, MINTU GOSWAMI, S.K.KAPOOR, SHIBDAS BANERJI, Sucharita Roy, SUTANU CHAKRABORTY
Headnote:
Sandip Exports Ltd. (the company) was accused of importing various types of polyester and silk yarn/fabric duty-free under the DEEC Scheme and instead of utilizing the said goods in the manufacture of resultant export products, disposed of the said duty-free imported goods in the market without fulfilling the export obligation in terms of the condition of Advance Licenses. The Joint Secretary to the Government of India passed an order of detention against the petitioner under Section 3(1) of the COFEPOSA Act, 1974. The petitioner challenged the detention order on various grounds, including withholding of relevant materials by the sponsoring authority, consideration of non-existent materials by the detaining authority, supply of illegible documents, inordinate delay between the date of registration of the case and the date of the detention order, no material to show that there was a possibility for the detenu to indulge in smuggling activities in the future, consideration of irrelevant materials by the detaining authority, failure to supply English translated documents of Hindi within the statutory period of 5 days in violation of the provision of Article 22(5) of the Constitution of India, the order of detention was passed on the basis of a solitary incident, there was a long and inordinate delay in considering the representation made by the detenu to the Central Government, and there was no element of smuggling justifying the order of detention.
Fact of the Case:
The petitioner, Sandip Agarwal, was the Director of the company M/s. Sandip Exports Limited. The company was accused of importing various types of polyester and silk yarn/fabric duty-free under the DEEC Scheme and instead of utilizing the said goods in the manufacture of resultant export products, disposed of the said duty-free imported goods in the market without fulfilling the export obligation in terms of the condition of Advance Licenses. The petitioner was detained under Section 3(1) of the COFEPOSA Act, 1974, on the ground that he was likely to indulge in prejudicial activities if not detained.
Finding of the Court:
The Court held that the petitioner's detention was justified as there was sufficient evidence to show that he was likely to indulge in prejudicial activities if not detained. The Court rejected the petitioner's various grounds of challenge, including the contention that the sponsoring authority had withheld relevant materials, that the detaining authority had considered non-existent materials, that the documents supplied to the petitioner were illegible, that there was an inordinate delay between the date of registration of the case and the date of the detention order, that there was no material to show that there was a possibility for the petitioner to indulge in smuggling activities in the future, that the detaining authority had considered irrelevant materials, that the English translated documents of Hindi were not supplied within the statutory period of 5 days in violation of the provision of Article 22(5) of the Constitution of India, that the order of detention was passed on the basis of a solitary incident, that there was a long and inordinate delay in considering the representation made by the petitioner to the Central Government, and that there was no element of smuggling justifying the order of detention.
Issues: 1. Whether the sponsoring authority withheld relevant materials? 2. Whether the detaining authority considered non-existent materials? 3. Whether the documents supplied to the petitioner were illegible? 4. Whether there was an inordinate delay between the date of registration of the case and the date of the detention order? 5. Whether there was material to show that there was a possibility for the petitioner to indulge in smuggling activities in the future? 6. Whether the detaining authority considered irrelevant materials? 7. Whether the English translated documents of Hindi were not supplied within the statutory period of 5 days in violation of the provision of Article 22(5) of the Constitution of India? 8. Whether the order of detention was passed on the basis of a solitary incident? 9. Whether there was a long and inordinate delay in considering the representation made by the petitioner to the Central Government? 10. Whether there was an element of smuggling justifying the order of detention?
Ratio Decidendi: 1. The sponsoring authority is not bound to place all the documents before the detaining authority, and only relevant documents are to be placed before the detaining authority. 2. The detaining authority can consider non-existent materials if they are not prejudicial to the detenu. 3. The supply of illegible documents to the detenu does not vitiate the order of detention if the detenu is not prejudiced by such illegibility. 4. An inordinate delay between the date of registration of the case and the date of the detention order does not vitiate the order of detention if the delay is satisfactorily explained. 5. The detaining authority must have material to show that there is a possibility for the detenu to indulge in prejudicial activities in the future in order to justify the detention order. 6. The detaining authority should not consider irrelevant materials while passing the order of detention. 7. The English translated documents of Hindi must be supplied to the detenu within the statutory period of 5 days in compliance with Article 22(5) of the Constitution of India. 8. An order of detention can be passed on the basis of a solitary incident if the incident is of such a nature that it gives rise to an inference that the person would continue to indulge in similar prejudicial activity. 9. A long and inordinate delay in considering the representation made by the detenu to the Central Government may vitiate the order of detention if the delay is not satisfactorily explained. 10. The order of detention must be based on an element of smuggling in order to be justified under the COFEPOSA Act, 1974.
Final Decision: The writ petition filed by the petitioner challenging the detention order was dismissed.
( 1 ) THE present application under Article 226 of the constitution of India has been filed for issuance of a writ in the nature of Habeas corpus for setting aside the order of detention passed by the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue in terms of the provision of Section 3 (1) of the Conservation of Foreign Exchange and prevention of Smuggling Activities Act, 1974 (in short COFEPOSA ).
( 2 ) BEFORE considering the matter on merit, we may refer to the facts of the case and the chronological events, which will appear from the order of detention itself.
( 3 ) THERE was a source information that one Sandip Agarwal, Director of the Company M/s. Sandip Exports Limited under two Licences issued in his favour imported different types of polyester and silk yarn/fabric duty free under deec Scheme and instead of utilizing the said goods in the manufacture of resultant export products disposed of the said duty free imported goods in the market without fulfilling the export obligation in terms of the condition of Advance licences. On the basis of such information, the office premises of M/s. Sandip exports Limited at 220, A. J. C. Bose Road, Calcutta was searched on 7. 11. 2003 and some documents were seized.
( 4 ) VOLUNTARY statement of Sri Sandip Agarwal was recorded under Section 108 of the Customs Act on 7. 11. 2003, wherein he stated that he was one of three Directors and he used to look after the business of the company. They used to take help of the job-workers for manufacturing the export product although there was no such permission given in the Advance Licences. It was stated that in respect of the imports through Chennai Port, instruction was given to M/s. Sinu Kargo Ways to deliver the imported goods to job-workers in proddatur namely M/s. Mohan Silk Fabrics, M/s. Balaji Handlooms and M/s, maruti Silk Fabrics. The imported materials were not sent to the manufacturing unit as mentioned in the Advance Licences, but those were directly sent to the job workers of Proddatur who used to send the export product to the Calcutta office of M/s. Sandip Exports Limited. It was further stated that importec goods were sent to the job-workers at Bhagalpur through transporters namely-M/s. Bhagalpur Transport, M/s. Maa Kali Transport and M/s. Prime Transpor and goods were sent to Proddatur through M/s. Patel Transport.
( 5 ) TO verify the genuineness of the statement of the detenu an enquin was conducted by the Directorate of Revenue Intelligence, Patna in the office of M/s. Sandip Exports Limited at 23. M. N. Das Road, Bhagalpur and tht statement of the owner of the house was recorded, which revealed that M/s sandip Exports Limited took one room on rental basis in the month of May 1999 and vacated the same in July, 2000 and no person ever stayed in tht tenanted room permanently nor any article was kept in the said room. It was further revealed from the statement of the owner of the house that the said room was used as a transit office of one person named Dilip Kundu, manager of M/s. Sandip Exports Limited. Dilip Kundu used to collect woven fabrics from the local weavers and after dying the same used to send it to his Kolkata office.
( 6 ) STATEMENT of Dlip Kundu was recorded under Section 108 of the customs Act on 11. 11. 2003. He also provided a list of job-workers, namely lakhan Ram, Bahram raw silk, Z. R. Fashion World-all of Bhagalpur and Balaji silk Fabrics, Mohan Silk Fabrics and Maruthi Silk Fabrics at Proddatur, Andhra pradesh. Enquiry was conducted in respect of the job workers at Bhagalpur and their statements were also recorded under Section 108 of the Customs act. They stated that they were not engaged by M/s. Sandip Exports Limited as their job-workers. All of them stated that they sold silk and cotton fabrics to m/s. Sandip Exports Limited, but they did not receive any raw material from the said company.
( 7 ) SIMILARLY enquiry was conducted in r
