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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION No. 587 OF 2009
Smt Nilofar Siraj Darbar,
age 41 years, Flat No.401,
4th Floor, Amina Mansion,
95, Memonwada Road,
Opposite Noor Hospital,
Mandvi, Mumbai - 400 003.
ig ..Petitioner
vs.
1. State of Maharashtra
Through the Additional Chief
Secretary to the Government of
Maharashtra, Home Department
(Special), Mantralaya, Mumbai 400 032.
2. Smt. Anna Dani, Principal
Secretary (Appeals & Security),
Government of Maharashtra
Home Department and
Detaining Authority, Home
Department (Special),
Mantralaya, Mumbai - 400 032.
3. The Superintendent, Nashik
Central Road Prison, Nashik.
..Respondents.
WITH
CRIMINAL WRIT PETITION No. 588 OF 2009
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Shri Faizan Khalil Abrahani,
age 24 years, an Indian
inhabitant, residing at 3rd floor,
17, Memon Wada Road, Jhaveri
Building, Mandvi, Mumbai 400 003.
..Petitioner.
vs.
1. State of Maharashtra
Through the Additional Chief
Secretary to the Government of
Maharashtra, Home Department
(Special), Mantralaya, Mumbai 400 032.
2. Smt. Anna Dani, Principal
Secretary (Appeals & Security),
Government of Maharashtra
Home Department and
Detaining Authority, Home
Department (Special),
Mantralaya, Mumbai - 400 032.
3. The Superintendent, Nashik
Central Road Prison, Nashik.
..Respondents.
Shri Shibandas Banarjee, Senior Advocate with Faisal Farooq i/b Shubail Farooq
with Shri U.N. Tripathi for the petitioners.
Mrs A.S. A.P.P. for the State.
CORAM: BILAL NAZKI
AND A.R.JOSHI,JJ
DATED : 17TH AUGUST,2009
JUDGMENT (Per Bilal Nazki,J)
1. Heard learned Counsel for the Petitioners as well as the learned
Additional Public Prosecutor.
2. These two writ petitions under Article 226 of the Constitution of
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India filed by the petitioner Smt Nilofar Darbar, the wife of Siraj Yusuf Darbar,
who is detenue in W.P. No.587/2009 and the the petitioner Faizan Khalil son of
Khalil Mohammed Hussain Abrahani who is detenue in W.P. No.588/2009, are
being disposed of by a common judgment, as both of them involve common
questions of law and facts. The impugned orders of detention were passed by the
Principal Secretary (Appeals & Security), Government of Maharashtra, Home
Department and Detaining Authority, Home Department (Special), Mantralaya,
Mumbai (hereinafter referred as “detaining authority”) on 12.1.2009 in respect of
both the detenues on the same day vide Section 3 (1) of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter
referred to as “the COFEPOSA Act”) and the detenues were ordered to surrender
with a view to prevent them in future from smuggling goods. The detenues
surrendered in view of the orders of detention on 16.2.2009 and according to the
petitioners the grounds of detention were served on the detenues after fifth day of
the orders of detention.
3. The necessary facts which may be mentioned, as furnished for the
grounds of detention, are that Officers of Mumbai Zonal Unit of Directorate of
Revenue Intelligence (D.R.I.) had collected an intelligence to the effect that
certain importers were indulging in imports of assorted electronic goods by grossly
undervaluing them. This under valuation of import consignments had resulted in
evasion of customs duty to the tune of crores of rupees thereby causing huge loss
to the State Exchequer. These two detenues were in connection with this
intelligence inputs they were arrested on 4.5.2008 and subsequently released on
bail. Thereafter, the orders of detention came to be passed. These orders of
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detention have been challenged mainly on the following grounds;
4. The grounds of detention when served did not have documents
along with them and they were served after fifth day.
5. It has been submitted by the learned Senior Advocate appearing for
the detenues that the detenues were in detention till 21.2.2009 and thereafter the
grounds of detention were served on them. The second ground of attack on the
orders of detention is that the documents served on the detenues are in languages
which were not known to them. Many documents were in Gujrati, Marathi and
English and detenues knew no other language than Urdu. They did not have
enough knowledge of English and knew only Urdu. The third ground of attack is
most of the documents supplied and relied upon by the detaining authority were
not legible documents. It is further contended that documents relied upon by the
detaining authority were not supplied and on the other hand irrelevant documents
were supplied.
6. We will deal with the arguments relating to supply of the documents
which were not legible. In the first instance, the learned Senior Counsel appearing
for the petitioners submits that the documents were served on the detenues after
the orders of detention was passed. Some of these documents bear the certificate
to the following effect:-
” The document is not legible”.
7. It is signed by the Senior Intelligence Officer, D.R.I. Mumbai.It
may be pointed out that this objection has been taken in the writ petitions, as well;
and in reply the learned detaining authority has taken a plea that these documents,
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which were illegible were not, in fact, material documents and were not taken into
consideration at the time when the orders of detention were passed. This cannot be
accepted for two reasons. The detaining authority in writ petition No.588/2009 in
counter affidavit, while referring to the documents which were not legible, said
that the documents at page Nos. 2161, 2164 are the copies of packing list of goods
imported in the name of M/s Shruti Impex and Milan Traders recovered under the
panchnama dated 3-5-2008. The document at page No.2162 is the fax copy of the
items imported. The said documents have passing reference and are not vital for
issuing the orders of detention against the detenues. The documents at page Nos.
2169, 2177, 2178, 2182, 2183, 2184, 2215 2155 and 2217 are the copies of fax
containing details of goods imported which was recovered under the panchnama
dated 3.5.2008. The whole case for detaining detenues under the COFEPOSA Act
was on allegation against them that they were importing goods and these
documents pertain to such imports and if the detaining authority did not take such
documents into consideration one fails to understand as to what material was
before her to reach the conclusion that persons needed to be detained. In fact these
are the documents which are relevant.
8. The second reason for not accepting the contention of the detaining
authority is her assertion in paragraph No.44 of grounds of detention as under:-
“while passing the detention order under the COFEPOSA Act, 1974 I
have referred to and relied upon the documents mentioned in the
enclosed list which are also being served on you”.
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9. Therefore, we have no doubt that the documents which are not
legible were taken into consideration by the detaining authority while arriving at
subjective satisfaction to detain the detenues. When the learned Senior Counsel for
the petitioners pointed out that most of the documents were not legible, on the last
occasion, the learned A.P.P., who wanted to be fair to the detaining authority
sought time to get the instructions and today she has reported that these documents
were not legible even when they were seen by the detaining authority. She
clarified that this statement was being made by her on instructions by the
Sponsoring Authority. This statement of the learned A.P.P., means that neither
Sponsoring Authority nor the detaining authgority had any occasion to read the
documents on which finally detaining authority relied. This makes the case worst.
The orders of detention cannot be passed at mere asking of a police officer or by a
sponsoring authority. The orders of detention have to be passed by the detaining
authority after examining the material and after coming to subjective satisfaction
that the person needs to be detained. Time and again, this Court has impressed
upon the detaining authorities to discharge their duties in accordance with
Constitutional mandate. But we have seen that neither Constitutional mandate is
taken care of nor even care is taken to read the judgments of this Court. On this
ground alone, the orders of detention can be quashed, though there are other
grounds taken by the petitioners but we feel that they are not necessary to be gone
into.
10. For the aforesaid reasons, both writ petitions are allowed. The
orders of detention passed by the detaining authority are set aside and quashed.
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Rule made absolute in both the petitions accordingly in terms of prayer clause (a).
The detenues be released forhwith, if not required in any other case. Writ petitions
are disposed of accordingly.
(BILAL NAZKI,J)
(A.R.JOSHI,J)
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