COFEPOSA - Detaining Authority has not made any amends to ensure that grounds of detention, basis on which subjective satisfaction has been reached must be formulated on his own and not by bodily lifting contents of proposal sent by Sponsoring Authority - Writ Petition succeeds: Bombay HC
By TIOL News Service
MUMBAI, DEC 15, 2012: THE Petitioner is the wife of the detenu Shri Deepak Sharad Jare, who filed the Writ Petition of Habeas Corpus, praying for quashing and setting aside of the preventive detention order passed against Shri Deepak Sharad Jare on 14.3.2012 by the Principal Secretary, Government of Maharashtra, in exercise of powers u/s 3(1) of the COFEPOSA Act.
Brief facts of the case leading to issuance of Detention Order are as follows -
On the basis of specific intelligence, that a syndicate headed by the detenu along with Ajit Bapu Satam was engaged in smuggling of red sanders to Dubai, the offices of DRI intercepted three containers at Punjab Conware CFS, Nhava Sheva on 2nd September, 2011. The Containers were declared to contain 1883 Nos. of "Plastic Moulded Crates", "White Guava Pulp" respectively, but, were found to contain huge quantity of red sanders. The red sander recovered from the three containers totally valued Rs.5.03 Crores, was seized under the provisions of the Customs Act, 1962. Simultaneous search operations carried out by the DRI officers at the residence and also office premises of the detenu and his companions including the permanent room booked at Hotel Taj Lands end, Bandstand, Bandra (W), Mumbai, led to seizure of unaccounted cash amount of aggregate Rs.2,65,70,000/-, Skoda Fabia Car, two Bentley and three Mercedez Cars, laptops, computer CPU and other incriminating items such as plain bottle seals without any markings, broken bottle seals, metal dies containing insignia of various Customs and Central Excise Officers, packets of metal fonts, stamping foils, numeric dies, etc. During the course of investigation, the officers recorded statements from the detenu and his companions under Section 108 of the Customs Act, 1962. On the basis of the material placed before the Detaining Authority, subjective satisfaction was formed by the Detaining Authority and issued Detention Order against the detenu to prevent him from engaging in prejudicial activities in future.
++ The Petitioner mainly urged on the ground that the subjective satisfaction of the Detaining Authority is vitiated also because it is evident that the Detaining Authority has not formulated the grounds of detention herself but has verbatim reproduced it from the proposal received by the detaining authority.
The High Court observed as -
A priori, we have no option but to follow the dictum of the Apex Court and while doing so, express our deep sense of anguish that notwithstanding the verdict of the Apex Court in Rajesh V. Adnani's case (supra), the Detaining Authority has not made any amends to ensure that the grounds of detention, and more particularly, the basis on which the subjective satisfaction has been reached must be formulated by the Detaining Authority on his own and not by bodily lifting the contents of the proposal sent by the Sponsoring Authority by making cosmetic changes thereto. Such approach of the Detaining Authority has been repeatedly frowned upon by the Courts considering the fact that the exercise of power to detain a person without a trial on the basis of circumstances of suspicion is a very drastic order to be passed, which cannot be and ought not to be resorted to lightly.
Finally, the High Court allowed the Petition and directed the State Authorities to forthwith release the detenu Deepak Sharad Jare, if not otherwise required in any other criminal case.
(See 2012-TIOL-1006-HC-MUM-COFEPOSA)
