SANDHYA JAIN Vs. UNION OF INDIA & ANR.

JUDGEMENT

(1.) In this writ petition under Art. 226 of the Constitution of India, the challenge is to the order of detention dated 10th Oct., 2016 passed by the Joint Secretary to Government of India against husband of the petitioner i.e. Narender Kumar Jain directing his detention under Sec. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short 'the COFEPOSA Act'). The detention order dated 10th Oct., 2016 was served on the petitioner's husband on the same day followed by the grounds of detention and relied upon documents served on 11th Oct., 2016.

(2.) Briefly the facts set out in the grounds of detention on the basis of which the detention order dated 10th Oct., 2016 has been passed are:

(3.) Assailing the detention order, learned counsel for the petitioner contends that vital and material documents which were necessary for arriving at subjective satisfaction were not placed before the detaining authority and also not supplied to Narender Kumar Jain thus seriously prejudicing him as he could not make a proper and effective representation in the absence of the documents. It is contended that in para-27 (a) of the grounds of detention, the Detaining Authority has relied upon the voluntary statements of the carriers of the smuggled gold seized by the DRI, Guwahati however, no such statements were either placed before the Detaining Authority nor supplied to Narender Kumar Jain pari passu the grounds of detention. He further states that though the grounds of detention noted that the bail application of Narender Kumar Jain had been rejected by the learned CMM vide order dated 7th Oct., 2016, however, the copy of the order dated 7th Oct., 2016 was not placed before the Detaining Authority. The order dated 7th Oct., 2016 itself shows that there was no possibility of bail being granted to Narender Kumar Jain, thus obviating the need for a detention order. Non-placement of the material document i.e. the order dated 7th Oct., 2016 has materially affected the subjective satisfaction of the Detaining Authority hence the detention order is vitiated.