Rajinder Arora Vs.Union of India & amp; Oors  INSC 128
(10 March 2006)
& P.K. Balasubramanyan
Leave Petition (Criminal) No.4708 of 2005] S.B. SINHA, J :
Appellant is an industrialist. He manufactures acrylic yarn, blankets and
shawls. The said goods are exportable items. The units of the Appellant are
recognized export houses. They were awarded the highest export performance
Awards by Wool and Woolen Export Promotion Council for manufacture of the
aforementioned goods. The Appellant imported some raw materials on the premise
that the imported items would be utilized for manufacture of the goods which
were meant for export. A raid was conducted in his residence on 26.05.2004 by
the Directorate of Revenue Intelligence (DRI) and he was taken in custody. He
allegedly was continuously tortured for two days. During his detention
statements under Section 108 of the Customs Act were recorded allegedly under
coercion, duress and threat. He was shown arrested on 28.05.2004 and produced
before a Magistrate. He was medically examined whereupon marks of multiple
injuries on his person were found. After he was remanded to judicial custody by
the Magistrate by an order dated 28.5.2004, he retracted his alleged confession
stating that the same had been obtained under coercion, duress and torture. He
remained under treatment for 45 days out of the total period of 60 days of his
judicial remand (the requisite statutory period for filing a complaint). Upon
failure on the part of the DRI Department to file a complaint against the
Appellant within the statutory period of 60 days, he was enlarged on bail on
28.7.2004. In the meanwhile, his family members were forced to deposit a sum of
Rs.60 lakhs as customs duty. Such deposit, however,
was made without prejudice to the rights and contentions of the Appellant.
Several representations were made by the Appellant stating the aforesaid facts.
filed a criminal complaint on 18.02.2005. The Medical Officer concerned was
examined in the said proceeding wherein he stated:
28.05.2004 at I examined physically Sh. Rajinder Arora vide
my emergency OPD No. 6607/04. Patient was brought to me by Mr. R.K. Saini, Intelligence Officer, DRI, Ludhiana Regional Unit. I found following injuries on
the person of Rajinder Arora
who is present today:
Multiple abrasions, superficial, in
an area of 4 inch x 2 inch over mid of left upper arm, antero
laterally. Patient also complaint of heaviness in chest. His B.P. was 150/106
opinion, duration of injury was about 24 hours. I have seen the certified copy
of injury report which is correct according to original report and is Ex.
CW2/1, which is signed by me. When Rajinder Arora was brought to me he was under the custody of DRA
authorities." In the meanwhile, a proposal was forwarded to the DRI, Delhi
Zonal Unit, Delhi for his detention under COFEPOSA. A
proposal was also sent to COFEPOSA Unit by the said authority. Allegedly, on
15.2.2005, the DRI Ludhiana opined that no case has
been made out for his detention under COFEPOSA. A proposal, however, was made
by the said authorities for determination of detention of Shital
Vij, who was said to be the brain behind utilization
of the unlawful import.
on 31.3.2005, the order of detention was issued. A writ petition was filed by
the Appellant herein before the High Court of Punjab and Haryana
praying for quashing of the said order of detention. By reason of the impugned
order, the writ petition has been dismissed. The Appellant is, thus, in appeal
High Court in his impugned judgment opined:
the grounds of detention, the detaining authority had adverted to all the
evidences collected against the Appellant including his statement under Section
108 of the Customs Act as also the subsequent retraction.
activities of the Appellant come within the purview of the expression
"smuggling" as defined in Section 2(39) of the Customs Act read with
Section 2(e) of the COFEPOSA Act.
in issuing the order of detention is not fatal. Delay, per se, cannot be a
circumstance to set aside an order of detention.
subjective satisfaction of the authority is based upon sufficient material and
is sufficient to warrant an order of preventive detention.
discrimination has been committed as against the Appellant in not recommending Shital Vij's detention as its
recommendation was rejected by the Screening Committee.
because a redemption certificate was issued by the concerned authority, it
cannot be presumed that the Appellant had discharged his export obligations,
without violation of the terms and conditions of his licences.
complaint petition filed by the Appellant herein, contending illegal detention
and torture, by itself is not a ground for detracting from the orders passed by
the detaining authority as mere filing of a criminal complaint would not lead
to a conclusion that the order of detention was mala
Mr. Uday U. Lalit, learned senior
counsel appearing on behalf of the Appellant, would raise the following
Licences granted to the Appellant were allowed to be surrendered by
the competent authorities only after an objective assessment was made in that
status report called for by the Customs Authorities from DGFT having not been
considered, the detaining authority must be held to have failed to take into
consideration a relevant fact, as therein it was opined that no case had been
made out for detention.
the Appellant filed a complaint against the officer alleging illegal detention
and torture meted out by him, the impugned order of detention has been passed malafide.
Appellant having deposited Rs.60 lakhs without
prejudice to his rights and contentions, and, thus, the impugned order of
detention having been made for unauthorized purpose, was mala
fide. Had there been any material before the appropriate authority, they would
have lodged a complaint against the Appellant.
was absolutely no reason as to why such a long time was taken for passing the
order of detention.
Radhakrishnan, learned senior counsel appearing on behalf of the
Respondent, on the other hand, relying on or on the basis of the findings of
the High Court, as noticed supra, would support the order of detention.
not in dispute that the authorities in terms of Sections 9(4), 10 and 11 of the
Foreign Trade Development and Regulation Act, 1994 exercise a wide
jurisdiction. Although the raid was made on 26.05.2004, admittedly, till date,
no prosecution has been lodged as against the Appellant by DGFT.
It is also
not in dispute that the statutory authorities has not yet issued any show cause
notice on the Appellant on the ground that the export commitments were not
fulfilled. It is furthermore not in dispute that the authorities had granted
pre-detention order can be quashed only on a limited ground. This Court in
Additional Secretary to the Government of India and Others v. Smt.
Alka Subhash Gadia and Another [1992 Supp (1) SCC 496] laid down the criterias therefor upon a
detailed consideration of the provisions of the Preventive Detention Laws and
the right of individual to assail an order of detention without surrendering in
the following terms:
and this is more important, it is not correct to say that the courts have no
power to entertain grievances against any detention order prior to its
execution. The courts have the necessary power and they have used it in proper
cases as has been pointed out above, although such cases have been few and the
grounds on which the courts have interfered with them at the pre- execution
stage are necessarily very limited in scope and number, viz., where the courts
are prima facie satisfied
the impugned order is not passed under the Act under which it is purported to
have been passed,
it is sought to be executed against a wrong person,
it is passed for a wrong purpose,
it is passed on vague, extraneous and irrelevant grounds or
that the authority which passed it had no authority to do so. The refusal by
the courts to use their extraordinary powers of judicial review to interfere
with the detention orders prior to their execution on any other ground does not
amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the
law in question." Recently a 3-Judge Bench of this Court in Naresh Kumar Goyal v. Union of
India and Others [(2005) 8 SCC 276] (in which one of us P.K. Balasubramanyan, J. was a member), opined:
is trite law that an order of detention is not a curative or reformative or
punitive action, but a preventive action, avowed object of which being to
prevent the anti-social and subversive elements from imperiling the welfare of
the country or the security of the nation or from disturbing the public
tranquility or from indulging in smuggling activities or from engaging in
illicit traffic in narcotic drugs and psychotropic substances etc.
detention is devised to afford protection to society. The authorities on the
subject have consistently taken the view that preventive detention is devised
to afford protection to society.
object is not to punish a man for having done something but to intercept before
he does it, and to prevent him from doing so. It, therefore, becomes imperative
on the part of the detaining authority as well as the executing authority to be
very vigilant and keep their eyes skinned but not to turn a blind eye in
securing the detenue and executing the detention
order because any indifferent attitude on the part of the detaining authority
or executing authority will defeat the very purpose of preventive action and
turn the detention order as a dead letter and frustrate the entire proceedings.
delay, for which no adequate explanation is furnished, led to the assumption
that the live and proximate link between the grounds of detention and the
purpose of detention is snapped.
P.U. Iqbal v. Union of India and Ors.,; Ashok
Kumar v. Delhi Administration, and Bhawarlal Ganeshmalji v. State of Tamilnadu)"
In that case, however, the order of detention had not been implemented for a
long time and having considered Alka Subhash Gadia (supra) and several
other decisions, it was held:
to the facts of this case, at the highest the case of the appellant is that the
order of detention was belatedly passed and the State of Bihar thereafter took no steps whatsoever
to implement the order of detention. Counsel for the appellant sought to bring
this case under the third exception enumerated in Alka
Subhash Gadia (supra),
namely, that the order was passed for a wrong purpose. In the facts and
circumstances of this case, it is not possible to accept the submission that
the order was passed for a wrong purpose.
the order has been passed with a view to prevent the appellant from smuggling
goods or abetting the smuggling thereof etc. The facts of the present case are
no different from the facts in Muneesh Suneja (supra). We do not find that the case falls within
any of the exceptions enumerated in Alka Subhash Gadia (supra). The High
Court was, therefore, justified in refusing to exercise jurisdiction under
Article 226 of the Constitution of India to quash the order of detention at the
pre- arrest stage. This appeal is, therefore, devoid of merit and is
dismissed." Mr. Lalit, however, is not correct
in his submissions that only because a redemption certificate had been granted
by DGFT, the same would itself be sufficient for quashing an order of detention
as the activities of smuggling on the part of the importer may come to their
notice at a later part of time.
may, however, notice that the Appellant has categorically stated that a status
report was submitted by the Respondent No. 3 to the DRI, Delhi on their request but the same had
not been placed before the detaining authority.
Ground 'U' of the SLP filed by the Appellant, herein, it is stated:
the High Court has failed to appreciate that, as per the knowledge of the
petitioner, the respondent No. 3 submitted the status report of the present
case vide its letter dated 15.02.2005 to the DRI Delhi on their request which
was not placed before the detaining authority the respondent No. 2 herein. As
per the knowledge of the petitioner, the status report had negated the passing
of the order of detention. This status report/ letter has
been deliberately withheld with a malafide intention.
It is a settled law that the non-production of relevant and vital documents
before the detaining authority renders the detention order invalid." The
said pleas raised by the Appellant has been traversed
by the Respondent in the following terms:
reply to the contents of Para U, it is submitted that the status report dated
15.2.2005 is an internal correspondence of the department and has not been relied
upon in the detention orders dated 31.03.2005 and hence are not required to be
served upon the petitioner." It is, however, not in dispute that although
the raid was conducted on 26.05.2004, no material had been brought on record
for even launching a prosecution as against the Appellant as yet. When the
aforementioned question was raised by the Appellant, herein before the High
Court, the Respondent contended that the prosecution would be launched soon.
But, when the same point was raised before us, the Respondents in their counter
affidavit merely stated:
In reply to the contents of para OO, it is submitted
that the Show Cause Notice in the matter has been drafted and is being issued
in the matter will be filed only after adjudication. However, detention under
the COFEPOSA Act 1974 is not a punitive action and is preventive in nature.
Prevention detention under COFEPOSA Act is independent of adjudication and
prosecution proceedings." The said counter affidavit has been affirmed in
November, 2005. It is beyond anybody's comprehension as to why despite a long
passage of time, the Respondents have not been able to gather any material to
lodge a complaint against the Appellant. It has furthermore not in dispute that
even the DGFT authorities have not issued any show cause notice in exercise of
their power under Foreign Trade Development and Regulation Act, 1994.
no explanation whatsoever has been offered by the Respondent as to why the
order of detention has been issued after such a long time. The said question
has also not been examined by the authorities before issuing the order of
question as regard delay in issuing the order of detention has been held to be
a valid ground for quashing an order of detention by this Court in T.D. Abdul Rahman v. State of Kerala and
others [AIR 1990 SC 225] stating:
conspectus of the above decisions can be summarised
thus: The question 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. No
hard and fast rule can be precisely formulated that would be applicable under
all circumstances and no exhaustive guidelines can be laid down in that behalf.
It follows that the test of proximity is not a rigid or mechanical test by
merely counting number of months between the offending acts and the order of
detention. However, when there is undue and long delay between the prejudicial
activities and the passing of detention order, the court has to scrutinise whether the detaining authority has
satisfactorily examined such a delay and afforded a tenable and reasonable
explanation as to why such a delay has occasioned, when called upon to answer
and further the court has to investigate whether the causal connection has been
broken in the circumstances of each case.
when there is unsatisfactory and unexplained delay between the date of order of
detention and the date of securing the arrest of the detenu,
such a delay would throw considerable doubt on the genuineness of the
subjective satisfaction of the detaining authority leading to a legitimate
inference that the detaining authority was not really and genuinely satisfied
as regards the necessity for detaining the detenu
with a view to preventing him from acting in a prejudicial manner." The
delay caused in this case in issuing the order of detention has not been
explained. In fact, no reason in that behalf whatsoever has been assigned at
furthermore, the status report called for from the Customs Department has not
been taken into consideration by the competent authorities.
A Division Bench of this Court in K.S. Nagamuthu
v. State of Tamil Nadu & Ors. [2005 (9) SCALE 534] struck down an order of detention on
the ground that the relevant material had been withheld from the detaining
authority; which in that case was a letter of the detenu
retracting from confession made by him.
regard to the findings aforementioned, we are of the opinion that grounds (iii)
and (iv) of the decision of this Court in Alka Subhash Gadia
(supra) are attracted in the instant case.
the reasons aforementioned, the impugned order of detention cannot be
sustained, which is set aside accordingly. The appeal is allowed.