M.R.SHAH, J. - (1.) Leave granted in Special Leave Petition (Criminal) No. 7010.
(2.) Feeling aggrieved and dissatisfied with the impugned judgment and order dated 02.08.2019 passed by the High Court of Delhi at New Delhi in Writ Petition (Criminal) No. 1840 of 2019, by which the High Court has allowed the said writ petition preferred by the respondent herein and has quashed and set aside the detention orders bearing Nos. PD12001/34/2019 COFEPOSA and PD12001/35/2019COFEPOSA dated 1.7.2019, the Union of India through the Detaining Authority has preferred the present appeal. Feeling aggrieved and dissatisfied with the aforesaid impugned judgment and order passed by the High Court, even the detenu has preferred the special leave petition challenging the aforesaid impugned judgment and order, inasmuch as on grounds 'C', 'D', 'E', 'F' and 'G' raised in the main writ petition before the High Court, having not been decided one way or the other, while allowing the writ petition of the original writ petitioner on the first two grounds, i.e., grounds 'A' & 'B'. 2.1 Writ Petition (Criminal) Nos. 204/2019, 206/2019 and 209/2019 have been preferred by the respective writ petitioners under Article 32 of the Constitution of India for an appropriate writ, direction or order declaring that the disjunctive 'or' in Section 13 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'COFEPOSA Act') shall be read as 'and' so that only those actions which are actually done in good faith would be protected under the said Section, to enable the respective petitioners to take such further action against the Detaining Authority, as may be permissible in law. 2.2 At the outset, it is required to be noted that so far as the respective writ petitioners of writ petitions are concerned, though detention orders qua them have been set aside by the High Court, still the respective petitioners have prayed for the aforesaid reliefs.
(3.) The facts of the case in nutshell are as follows: That in the light of specific intelligence, the Directorate of Revenue Intelligence, Kolkata Zonal Unit (for short 'DRI') intercepted one Anand on 09.06.2019 near Dankuni Toll Plaza, West Bengal, while he was travelling on a bus from Siliguri to Kolkata, carrying 8 Kgs. of gold of foreign origin valued at Rs.2.71 crores approximately. That the said Anand, vide his statements recorded on 09.06.2019 and 10.06.2019 indicated that, he had been engaged by the detenus to receive the 8 bars of smuggled gold from IndoBhutan border at Jaigaon from an unknown person, to be transported and delivered to Kolkata and Delhi. That as per the detenus, they were apprehended by officers of DRI on 10.06.2019 at about 2:00 p.m. at the Food Court of Quest Mall, 33, Syed Amir Ali Avenue, Park Circus, Beck Bagan Row, Kolkata, West Bengal ­ 700017 and taken to the latter's office. That the detenus' selfincriminating confessions were purportedly obtained under Section 108 of the Customs Act, 1962 (hereinafter referred to as the 'Act') and they were formally shown as arrested on 11.06.2019 under the provisions of Section 104 of the Act. That thereafter the detenus were produced before the Court of Judicial Magistrate on 12.06.2019. 3.1 That vide order dated 12.06.2019 in Misc. 67/2019, the learned Chief Metropolitan Magistrate, Kolkata rejected the prayer of bail made on behalf of the detenus and remanded them to judicial custody till 18.06.2019. 3.2 That while the detenus were in custody, the detention orders were rendered by the Detaining Authority on 01.07.2019. The detention orders were served on both the detenus on 02.07.2019. The detenus have been served with the relied upon documents with the list of documents on 04.07.2019. 3.3 That the detenus filed their representations dated 07.07.2019, under Article 22(5) of the Constitution of India read with Section 3(3) of the COFEPOSA Act, addressed to the Detaining Authority against the impugned detention orders, through the jail authorities. 3.4 That the respondent Ankit Ashok Jalan filed writ petition before the High Court challenging the aforesaid detention orders against his father ­ Ashok Kumar Jalan and his brother ­ Amit Jalan (detenus) dated 01.07.2019. It was mainly contended on behalf of the original writ petitioner that despite the detenus already being in judicial custody, the Detaining Authority rendered the detention orders and there being no imminent possibility of their being released on bail nor any material relied upon therein to raise an apprehension that they may be so released in the near future since no bail application was pending, the same are ex facie illegal and without any basis. It was further contended that the relied upon documents have not been perused by the Detaining Authority, inasmuch as, the retraction petition of the said Anand, which is a vital document, has neither been placed before the Detaining Authority nor considered by it in accordance with law, the document purported to be a copy of the 'retraction petition' in respect of the said Anand, placed at Sr. No.30 of the list of relied upon documents, is actually the latter's bail application, and thus the subjective satisfaction is sham, erroneous and incomplete, and therefore, violative of the detenus' right to effective representation as mandated and guaranteed by the Constitution, and by law. ;