M.JEYAPAUL, J. - (1.) THE petitioner Joit Kumar Jain who is a resident of Panchkula, Haryana and who was detained at Central Jail, Ambala pursuant to the impugned order of detention bearing No. PSA -1212/CR -13/SPL -3(A) dated 8.4.2013 passed against him under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) is seeking quashing of the said detention order for being violative of his fundamental rights guaranteed under Part III of the Constitution of India. The main ground of challenge is non placement by Sponsoring Authority of some very vital documents before the Detaining Authority for her consideration which resulted in non application of mind on the vital documents and vitiation of subjective satisfaction and consequently rendered the detention order illegal, null and void. Neither the fact of non placement has been specifically denied by the respondents, nor any any records produced to show to the contrary.
(2.) THE brief facts of the case are as follows: - a) The investigation was commenced on 17.4.2012 by Director of Revenue intelligence (DRI) with seizure of huge quantity of memory card concealed in the consignments imported by the petitioner in the name of four different entities, namely, i) M/s Cenzer Industries; ii) M/s Rishab Industries; iii) M/s J&J Watch Electro Mfg. Private Ltd. and iv) M/s Sunray Exports Trading. The petitioner was arrested and released on bail on 18.4.2012. During the course of investigation, the seized goods were provisionally released by securing revenue. b) The investigation revealed that the petitioner was a habitual offender, as there were some smuggling cases booked against him in the past. A proposal for the preventive detention of the petitioner was thus moved by the Sponsoring Authority, DRI. The investigation culminated in issuance of a show cause notice dated 24.9.2012 proposing demand of differential duty of Rs.1,39,66,178/ - and penal action against the petitioner under the provisions of Customs Act, 1962. c) The application for settlement of case alleged in the said show cause notice was filed on 27.9.2012 before the Settlement Commission. Once the said application was admitted for settlement, the petitioner filed W.P. (Crl.) No. 146/2012 and urged that any further consideration of the proposal of preventive detention shall be subject to obtaining recommendation from the Settlement Commission. d) The above Writ Petition was disposed of by an order dated 12.10.2012 and the Hon'ble Supreme Court directed that before passing any order of preventive detention against the petitioner under the COFEPOSA Act, the comments of the Settlement Commission be obtained. The Hon'ble Supreme Court, thus, found some merit in the limited prayer of the petitioner. e) Thereafter on 15.1.2013 the petitioner for seeking a favorable recommendation to the Detaining Authoritiy in terms of the said order dated 12.10.2012 and also for seeking immunities from fine, penalty and prosecution under the Act, tendered detailed written submissions during the course of hearing granted by Settlement Commission. Various precedents and statutory provisions were also relied upon to justify that no cause for preventive detention was made out, despite such allegations and it was sought to be justified as to why no detention order was warranted against him despite allegations of being repeated offender. f) Moreover, the officer of Sponsoring Authority categorically submitted before the Settlement Commission that the department was not pressing for prosecution of the petitioner. The Settlement Commission recorded in para 2 of the Record of Proceedings of the hearing held on 15.1.2013, the specific request of the petitioner for consideration of these written submissions. The said Record of Proceedings also shows categorical submissions of the Sponsoring Authority in para 3.2 thereof that it was not pressing for prosecution, despite the allegation that repeated offences were committed by the petitioner. g) The instant petition alleges non placement, non consideration and non advertance to these two documents namely Written Submissions and the Record of Proceedings of hearing dated 15.1.2013, although the impugned detention order was issued subsequently on 8.4.2013. h) After issuance of the detention order on 8.4.2013, vide order dated 17.5.2013, the case was finally settled by the Settlement Commission and conditional immunities from fine, penalty and prosecution were granted to the petitioner. It is not in dispute that the said order of final settlement has been accepted by the department and is not under challenge. i) The petitioner had earlier unsuccessfully challenged the same detention order before the Bombay High Court and the Hon'ble Supreme Court without surrendering to the same on various grounds. The concluding paragraphs of the judgment of Bombay High Court merits reproduction: - "19. Therefore we see no merit in the challenge to the order of preventive detention at pre execution stage. 20. Accordingly we pass the following order: - i) Petition is rejected. Rule is discharged. ii) However, we may observe that the findings which we have recorded in the judgment are in the context of examining the challenge to the order of detention at pre execution stage. After the execution of the order, it is obvious that the respective detenu will be entitled to challenge the said order on all permissible grounds and all contentions in that behalf are expressly kept open." With dismissal of SLP there against the judgment of Bombay High Court had become final so far as the challenge at pre execution stage was concerned. However, all grounds available for the detenu were expressly kept open for consideration after the execution of the order. j) The petitioner had thereafter taken a rental residential premises in Panchkula, Haryana which according to him has proximity with his factory at Baddi in Himachal Pardesh (para 5 of the Grounds of Detention specifically refers to this factory situated at Baddi, Himachal Pradesh). k) With an apprehension that the impugned detention order would be served upon him at this residential premises in Panchkula, falling within the territorial jurisdiction of this court, he preferred the instant petition, although with the aforesaid main grounds of challenge which were not urged in the earlier round of litigation, but without surrendering to the detention order. Vide order dated 17.2.2014 I had outrightly rejected the prayer of the petitioner seeking interference with the impugned detention order without surrendering to it.
(3.) HOWEVER , considering the judgment of Constitution Bench of the Hon'ble Supreme Court in A.K. Roy versus Union of India and another (1982)1 SCC 271, it was found that there was no impediment in directing detention of the petitioner near a place where he claimed to be residing. In A.K. Roy, the Constitution Bench held as follows: - "74. ... ... Laws of preventive detention cannot, by the backdoor, introduce procedural measures of a punitive kind. Detention without trial is an evil to be suffered, but to no greater extent and in no greater measure that is minimally necessary in the interest of the country and the community. It is neither fair nor just that a detenu should have to suffer detention in "such place" as the Government may specify. ..........Besides keeping a person in detention in a place other than the one where he habitually resides makes it impossible for his friends and relatives to meet him or for the detenu to claim the advantage of facilities like having his own food. Whatever smacks of punishment must be scrupulously avoided in matters of preventive detention." ;