MOHD. NASHRUDDIN Vs. UNION OF INDIA

JUDGEMENT

(1.) The present petition under Article 226 of the Constitution of India, essentially in the nature of writ of habeas corpus, has been instituted on behalf of Mohammed Nashruddin Khan (hereinafter referred to as the 'detenu'), praying for quashing of detention order bearing No. PD-12001/03/2020- COFEPOSA dated 21.01.2020 under Section 3(1) of The Conservation of Foreign Exchange And Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'COFEPOSA'), and for a further direction that he be set at liberty forthwith. FACTS OF THE CASE:-

(2.) The relevant facts qua the detenu as are necessary for the adjudication of the subject writ petition are briefly encapsulated as follows:

(3.) Mr. Sourabh Kirpal, learned Senior Counsel appearing on behalf of the petitioner vehemently assails the impugned order of detention whilst submitting that the Sponsoring Authority has suppressed and failed to supply vital documents i.e. (i) Order dated 26.06.2019 passed by DGFT placing the co-detenu's company "It's My Name Private Limited" in Denied Entity List; (ii) Retraction statement dated 03.06.19 of Mr. Vikram Bhasin; (iii) Suspension order dated 22.05.2020 of Mr. Vikram Bhasin; (iv) Retraction statement dated 31.10.19 of Mr. Mahesh Jain; (v) Reply dated 08.05.19 filed by IMNPL before Sponsoring Authority explaining the transaction; (vi) Order dated 25.09.19 passed by learned Chief Metropolitan Magistrate, Patiala Hose Court, New Delhi, rejecting the application seeking cancellation of Bail filed by DRI; (vii) Panchnamas dated 09.01.2017, 13.01.2017 and 19.01.2017 and other documents heavily relied upon in Grounds of Detention by Sponsoring Authority from the previous case of M/s. Bharti Gems Private Limited, to the Detaining Authority necessary to form subjective satisfaction by the latter. Also, the material documents were not supplied to the detenu disabling him from making an effective, purposeful and meaningful representation. It is submitted that the Detention Order is liable to be set-aside as there is an obligation upon the Sponsoring Authority to place all relevant documents before the Detaining Authority to form subjective satisfaction. Nonplacement of such relevant and vital documents, has resulted in non-consideration of the same; thus affecting the decision making process of the Detaining Authority in recording his subjective satisfaction, and consequently vitiating the Detention Order. It is pertinent to note that the COFEPOSA does not recognize any authority like the 'Sponsoring Authority'. It appears that in the present case the officers of the DRI have been conducting the investigation which they are not authorized under law to do, as they are not 'proper officers' for the said purpose under the provisions of Customs Act.