URMILA NARESH MITTAL Vs. UNION OF INDIA

JUDGEMENT

(1.) These three Special Civil Applications have been filed on behalf of the detenu concerned in each of these three cases, i.e., Shri Naresh Ramkumar Mittal, Surendra Ramkumar Mittal and Rajesh Ramkumar Mittal, through their wives, namely, Ms. Urmila N. Mittal, Ms. Manju S. Mittal and Ms. Priti R. Mittal respectively. These three petitioners have challenged the detention orders passed against their husbands separately in each of these three petitions on 15th January, 1996, 15th January 1996 and 12th January 1996 respectively by the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, as specially empowered under Sec. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, which will be hereinafter referred to as "the COFEPOSA Act". All these three orders have been signed by Shri K. L. Verma, Joint Secretary to the Government of India. The detention orders against the three detenus residing at Mittal House, Behind Goyal Tower, ATIRA Road, Ahmedabad, were executed on 17th January, 1996. Initially, while under detention the three detenus were detained and kept in custody in the Central Prison, Nasik, Maharashtra, as ordered by the concerned authority in the detention orders itself. Thereafter, under order dated 2nd July, 1996 they were shifted to Central Prison, Sabarmati, Ahmedabad. While the three detenus were under detention in Sabarmati Central Jail, Ahmedabad, these three petitions were filed on their behalf through their respective wives named above on 19th July, 1996, 19th July, 1996 and 25th July, 1996 and on 23rd July, 1996, 23rd July, 1996 and 26th July, 1996 respectively rule returnable was issued for 8th August, 1996 in all these three matters. It may also be mentioned that prior to the filing of these petitions, petitions were also filed on behalf of these three detenus challenging the detention orders before the Bombay High Court being Cri. Writ Petition Nos. 238, 239 and 240 of 1996 and all these three petitions were withdrawn with a liberty to file fresh petitions on 10-7-1996. All these three petitions are based on identical facts and involve common questions of law and therefore, these three petitions are decided by this common judgment and order.

(2.) Articles 21 and 22 of the Constitution of India and the provisions of the COFEPOSA Act, 1974 are pivotal provisions of these three cases. For the purpose of challenge to the detention orders and to support the detention orders, the authorities have relied upon the pleadings available in each and any of the three cases. While the detention orders dated 15th January, 1996, 15th January, 1996 and 12th January, 1996 were served upon the petitioners in these three cases on 17th January, 1996, the grounds in support of the detention orders dated 15th January, 1996, 15th January 1996 and 12th January, 1996 were supplied to the detenus on 17th January, 1996 itself, the documents enumerated in the Annexure-K at serial Nos. 1 to 53 and those contained in the addendum to the Annexure-L item Nos. 54 to 73 were supplied on 20th January, 1996 in all these three cases. The grounds of detention show that certain intelligence reports had been received with regard to the large-scale fraud committed by certain exporters of polyester fabrics under DEEC Scheme, i.e., Duty Exemption Entertainment Certificate Scheme. Pursuant to these reports, the premises of M/s. Roopmohan Enterprises were searched by the Customs Officers of Bombay and it was found that the name of the agency which masterminded the fraud was M/s. Amol Shipping Agency of Bombay. During the course of further investigation, the premises of M/s. Amit Warehousing Corporation, Bombay and the residential premises of Shri Ashok Pokharkar were searched on 28th July 1995 and 29th July, 1995 and large number of documents were recovered and taken over under the provisions of the Customs Act. Amongst the documents seized/ taken over from the above premises, there were large number of blank forms of SASMIRA Test Reports, several rubber stamps of exporters, Customs Officers, Customs endorsements etc., and thereafter, statements of Shri Ashok Pokharkar of M/s. Amol Shipping Agency were recorded on various dates in August 1995, September 1995 and October, 1995 under Sec. 108 of the Customs Act, 1962. Investigations were conducted against the parties whose exports were handled by M/s. Amol Shipping Agency and therefore, investigations were also made against the firms, namely, M/s. R. K. Exports, M/s. Unique Processors Ltd., M/s. Rajat International, M/s. N. V. Exports, M/s. R. S. Exports which were owned by the detenus and their brothers. Searches were then conducted at the office premises of the concerned firms located at Bombay and Ahmedabad and various documents were taken over and statements were also recorded under Sec. 108 of the Customs Act, 1962. The grounds of detention further show that the licences which were obtained permanently were used for duty free import of goods causing loss to the Government revenue and it has been mentioned that in the case of M/s. R. K. Exports the loss was to the tune of Rs. 18.92 crores, in the case of M/s. Unique Processors Pvt. Ltd., it was around Rs. 3.12 crores. On behalf of the detenus five cheques of Rs. 50,000.00 each, i.e., Rs. 2.5 crores (sic.) were voluntarily deposited but these cheques were not honoured and the firms with which the detenus are concerned had sent demand drafts for a total amount of Rs. 50 lakhs only. It is also mentioned in para 14 of the grounds of detention that the actions on the part of the detenus had led to evasion of large amount of import duty and the evasion of the duty to the extent of Rs. 5 crores had been admitted and initially the firms had voluntarily paid upto Rs. 3 crores towards the duty/penal liability and against the cheques of Rs. 2.5 crores which were dishonoured a sum of Rs. 50 lakhs had been given through bank drafts. The detaining authority felt satisfied that the detenus carried out smuggling activities by way of bringing into India goods without any import duty and caused substantial revenue loss to the Government. It has been further mentioned that the detenus were likely to continue such activities unless detained and therefore, notwithstanding the prosecution proceedings under the Customs Act, 1962 likely to be initiated against them, the detaining authority felt satisfied that they must be detained under the provisions of the COFEPOSA Act with a view to prevent them from smuggling goods in future. It has also been mentioned in para 17 of the grounds of detention that he considers it against the public interest to disclose the source of information placed before him and referred to in the grounds and he also considers it against the public interest to disclose further facts contained therein. Accordingly, the detenus were communicated that they were required under Sec. 3(3) of the COFEPOSA Act, 1974 read with Art. 22(5) of the Constitution of India, the grounds on which the detention orders had been passed with the further mention that the copies of the statements and documents placed before him as mentioned in the accompanying list were enclosed. It was mentioned in para 19 of the grounds of detention that the detenus had a right to make a representation before the Advisory Board against the detention order. Although, it is clearly mentioned in the end of para 18 of the detention order that copies of the statements and documents as mentioned in the accompanying list were enclosed, there is no dispute on the factual aspect that while the grounds of detention were served upon the detenus on 17-1- 1996, the documents as mentioned in the accompanying list including the addendum, i.e., item Nos. 1 to 53 and 54 to 74 were supplied to each of the detenus on 20th January, 1996, i.e., within the period of five days from the date on which the detention order was served.

(3.) The detention orders have been challenged on various grounds and before I deal with the grounds, it will be appropriate to first consider the approach and orientation to be followed by the Court in such cases while dealing with the validity of the detention orders passed in this type of case. Approach and Orientation :