SHASHANK SINGH MOURYA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner is the son of the detenue who has been detained under Sec. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974, [the Act], by order of detention dtd. 15/1/2021.The said order states that the appropriate authority is satisfied that with a view to prevent the detenue from smuggling of goods, abetting the smuggling of goods and dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods in future, it is necessary to make an order of detention under Sec. 3(1) of the Act. The impugned order has been challenged on the ground that infringes his fundamental rights enshrined under Article19, 20 and 21 of the Constitution of India, that the order suffers from illegalities and procedural irregularities and thus is liable to be set aside. Further the subjective satisfaction of the detaining authority in issuing the order of detention is totally vitiated due to non-consideration of the relevant materials, total non application of mind to the relevant material and absence of live link between the instance of alleged smuggling activities and the date when the order of detention was issued. It is further contended that the detaining authority failed to apply the mind into the materials made available before him as there was no material which could be the basis of arriving at a subjective satisfaction, that those materials did not constitute the ingredients of exercise of powers under Sec. 3(1) of the Act. It is submitted that relevant materials such as retraction statements of the detenue as well as of other persons, bail petitions, relevant statements of primary witnesses, reply to the show cause notice have not been placed before the detaining authority or if it had been placed the same had not been considered which would render the order of detention as illegal. Further the representations dtd. 18/2/2021 and 27/2/2021 made by the detenue and on behalf of him by the petitioner for supply of legible copies of documents which were relied on were not taken into consideration which has denied adequate opportunity to the detenue to put forth his objections to the order of detention. Further the Lower Court records have been manipulated by the Sponsoring Authority which is evident from the orders dtd. 25/10/2019 and 2/11/2019, which were supplied in the compilation of relied upon documents at Pages 380 and 381 and a cropped version of cross border register was supplied which would vitiate the order of detention. It is further submitted that there were two cases which were mentioned in the ground of detention dtd. 15/1/2021. So far as the first case is alleged to have taken place between October 2018 to December 2018 and in support of second case seizures were made on 13/6/2019 and 17/6/2019 and the detenue was granted bail on 2/11/2019 and citing these instances and detaining the detenue in January 2021 by invoking the power under Sec. 3(1) of the Act is draconian. It is further submitted that there were materials available before the detaining authority which suggests that there are other persons who are actually the beneficiaries and the actual persons involved in the transactions of alleged fraudulent export and irregular import which are referred to in the grounds of detention but no other persons other than proprietor of Ms. Bullar Traders has been placed under preventive detention. Further with regard to the first case it is apparent that some of the customs officers were involved in the alleged fraudulent exports but none of them have been detained. Thus, it is contended that the order of detention is in gross violation of the fundamental rights of the detenue as guaranteed under the Constitution of India. With these grounds and referring to certain specific instances and factual details, the order of detention has been challenged.

(2.) Mr. Sagar Bandopadhyay, Learned Counsel appearing for the appellant assisted by Mr. Arijit Chakraborty, Learned Counsel in their oral submissions challenged the order of detention on the following grounds-

(3.) The Learned Counsel elaborated on the above grounds by raising the following contensions-