CASE TITLE:
ZAKIR KHAN Versus UNION OF INDIA AND ORS.
&
SANJEEV KUMAR ALIAS SANJEEV KUMAR YADAV Versus UNION OF INDIA THROUGH ITS SECRETARY & ORS
DATE OF ORDER:
2nd May, 2022
JUDGE(S):
Hon’ble Justice Siddharth Mridul and Justice Rajnish Bhatnagar
PARTIES:
PETITIONER: ZAKIR KHAN
RESPONDENT: UNION OF INDIA AND ORS
&
PETITIONER: SANJEEV KUMAR ALIAS SANJEEV KUMAR YADAV
RESPONDENT: UNION OF INDIA THROUGH ITS SECRETARY & ORS
SUBJECT
A mere suspicion of a violation of the law and order is insufficient to meet the standard of negatively affecting the maintenance of public order. In this case, the fear of a disruption to public order stemming from a crime reported over seven months prior to the detention order was unfounded.
IMPORTANT PROVISIONS
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
BRIEF FACTS
- The Delhi High Court has ruled that a detention order issued by the Detaining Authority based on "illegible" copies of documents is invalid and should be reversed.
- It went on to say that a subsequent failure to provide legible copies of all documents to the Detenu, despite request and representation, renders the order of detention illegal and unconstitutional.
- A division bench of Justice Siddharth Mridul and Justice Rajnish Bhatnagar granted petitions filed by two detainees, Zakir Khan and Sanjeev Kumar, seeking to vacate detention orders issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
- It was alleged that between 2017 and 2021, the Detenu No.1 imported goods worth Rs.2730 crores, for which the differential duty liability was estimated to be Rs 500 crores, whereas the actual declared value of the subject imported goods before customs was stated to be Rs.136 crores, and the duty paid thereon was approximately Rs.42 crores.
- Regarding Detenu No. 2, it was alleged that he used to charge Rs.10,000 from Detenu No. 1 as agency charges through the banking channel and, because the goods imported by Detenu No.1 were highly undervalued, Detenu No.2 used to charge Rs. One lakh per consignment in cash, in addition to the agency charges, for the smooth clearance of the under-invoiced and under-valued imported goods.
- It was also claimed that Detenu No.2 orchestrated a plan to facilitate customs clearance of mis-declared and undervalued imported goods by using the licences of other Customs Brokers, despite the fact that Detenu No.2 himself had a Customs Broker License in his name.
ISSUE RAISED
- Whether the non-supply of certain relied-upon documents (RUDs) and the supply of illegible RUDs vitiates the subjective satisfaction reached by the Detaining Authority; and whether the detention orders issued are vitiated as a result of non-application of mind, rendering them invalid and bad in law or not?
- Whether the argument based on Section 5A of the COFEPOSA Act will have the effect of saving the detention order from invalidation in the facts and circumstances of the current case or not?
ANALYSIS BY THE COURT
The Court thus held that the Detaining Authority committed grave error in relying on illegible documents, which is equivalent to non-placement of RUDs by omitting them from due consideration, thereby vitiating the subjective satisfaction reached by the Detaining Authority.
CONCLUSION
The Court held that in cases where orders of detention fail on the ground that the subjective satisfaction of the Detaining Authority is tainted due to lack of application of mind, the protection afforded by severability of grounds stipulated in Section 5A of the COFEPOSA Act is neither attracted nor available in law. As a result, the Court granted the pleas.
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