2021 Supreme(Del) 1193

IN THE HIGH COURT OF DELHI AT NEW DELHI
Siddharth Mridul, Anup Jairam Bhambhani, JJ.
Amit Pal Singh - Appellant
Versus
Joint Secretary Cofeposa & Ors. - Respondents
W.P.(Crl) 1829/2020
Decided On : 06-08-2021

The Detaining Authority must act independently and with an open mind, and should not prejudge the issue even before considering the materials produced before him by the sponsoring authority. There should be no inordinate delay in passing the detention orders. The Detaining Authority must apply its mind while passing the detention orders and consider all the relevant documents and materials. The grounds of detention should not be lifted from the grounds of detention in another case.

Headnote:

The Court quashed the detention orders passed against the petitioners under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) on the grounds of bias, inordinate delay, non-application of mind, and mechanical lifting of grounds from another case.

Fact of the Case:

The petitioners, Gopal Gupta and Amit Pal Singh, were detained by the Detaining Authority under COFEPOSA on the grounds that they were involved in the misuse of the Advance Authorization Scheme through circular movement of gold jewellery exported under the guise of exhibition from India through hand-carry and subsequently smuggled gold jewellery back into India under the garb of reimporting the said jewellery without the required documents and permissions.

Finding of the Court:

The Court found that the Detaining Authority was biased against the petitioners as he was actively involved in the investigation against them and had even written a letter to the Director General of Foreign Trade (DGFT) seeking cooperation in the investigation. The Court also found that there was inordinate delay in passing the detention orders, as the petitioners were detained after 272 days from the date of the alleged incident and 232 days after they were released on bail. The Court further found that the Detaining Authority did not apply its mind while passing the detention orders, as it failed to consider vital documents and materials, such as the retraction of statements by co-detenus, the suspension of a Customs Jewellery Appraiser, and the seizure of the petitioner Amit Pal Singh's passport. The Court also found that the grounds of detention were lifted from the grounds of detention in another case, which showed a lack of application of mind by the Detaining Authority.

Issues: 1. Whether the Detaining Authority was biased against the petitioners? 2. Whether there was inordinate delay in passing the detention orders? 3. Whether the Detaining Authority applied its mind while passing the detention orders? 4. Whether the grounds of detention were lifted from the grounds of detention in another case?

Ratio Decidendi: 1. The Court held that the Detaining Authority was biased against the petitioners as he was actively involved in the investigation against them and had even written a letter to the DGFT seeking cooperation in the investigation. The Court relied on the decision of the Supreme Court in Madasamv vs. Secretary to Govt. & Ors., reported as 2016 SCC OnLine Mad 20650, where it was held that the Detaining Authority should act independently and with an open mind and should not prejudge the issue even before considering the materials produced before him by the sponsoring authority. 2. The Court held that there was inordinate delay in passing the detention orders, as the petitioners were detained after 272 days from the date of the alleged incident and 232 days after they were released on bail. The Court relied on the decision of the Supreme Court in T.A. Abdul Rahman vs. State of Kerala and Others, reported as (1989) 4 SCC 741, where it was held that the question of whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. 3. The Court held that the Detaining Authority did not apply its mind while passing the detention orders, as it failed to consider vital documents and materials, such as the retraction of statements by co-detenus, the suspension of a Customs Jewellery Appraiser, and the seizure of the petitioner Amit Pal Singh's passport. The Court relied on the decision of the Supreme Court in A Sowkath Ali vs. Union of India & Others, reported as (2000) 7 SCC 148, where it was held that the sponsoring authority should place all the relevant documents before the Detaining Authority and that non-placement of such documents would affect the subjective satisfaction of the Detaining Authority. 4. The Court held that the grounds of detention were lifted from the grounds of detention in another case, which showed a lack of application of mind by the Detaining Authority. The Court relied on the decision of the Supreme Court in Ankit Ashok Jalan vs. Union of India and Others, reported as (2020) 16 SCC 127, where it was held that the Detaining Authority must apply its mind independently and that mechanical lifting of grounds from another case is not permissible.

Final Decision: The Court quashed the detention orders passed against the petitioners under COFEPOSA on the grounds of bias, inordinate delay, non-application of mind, and mechanical lifting of grounds from another case. The petitioners were ordered to be set at liberty forthwith unless their custody was required in connection with any other case.