2006 (8) TMI 521 - SC - FEMA

Detention order passed on 12.2.1997 under Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 challenged - Held that - Appeal dismissed. Where a person himself evades service of detention order, it is not open to him to contend that in view of the long period which has elapsed between the offending activities and the actual arrest and detention, the vital link had snapped and there was no ground for actually detaining him. An otherwise valid detention order cannot be rendered invalid on account of the own act of the detenu of evading arrest and making himself scarce. The contention thus raised has absolutely no merit and has to be rejected.

Issues Involved:
1. Legality of the detention order under COFEPOSA.
2. Non-placement of the retraction statement before the detaining authority.
3. Delay in the disposal of the appellant's representation.
4. Delay in the execution of the detention order and its effect on the detention's validity.

Issue-wise Detailed Analysis:

1. Legality of the Detention Order Under COFEPOSA:
The appellant challenged the detention order dated 12.2.1997 under Section 3(1) of COFEPOSA, which was dismissed by the Delhi High Court. The detention order was based on information received by the Director of Revenue Intelligence (DRI) regarding large-scale evasion of customs duty by the appellant through under-invoicing and illegal remittance of payments. Searches conducted at various premises led to the recovery of incriminating documents and goods of foreign origin. The appellant's statements recorded on multiple dates corroborated the findings. The detaining authority concluded that the appellant was involved in customs duty evasion, illegal remittance, and violation of MODVAT rules.

2. Non-placement of the Retraction Statement Before the Detaining Authority:
The appellant's counsel argued that the retraction statement made by the appellant's son, Asheesh Chawla, before the ACMM, New Delhi, was not placed before the detaining authority, thus vitiating the detention order. The court referred to previous judgments, emphasizing that non-placement of a material document that could influence the detaining authority's decision renders the detention order illegal. However, the court found that the detention order was primarily based on the appellant's own statements and documents recovered from his premises, with only a passing reference to Asheesh Chawla's statement. The retraction by Asheesh Chawla did not affect the detaining authority's subjective satisfaction, as the order was not based on his statement. Therefore, the non-placement of the retraction did not vitiate the detention order.

3. Delay in the Disposal of the Appellant's Representation:
The appellant contended that the delay in disposing of his representation rendered his continued detention illegal. The representation made on 24.3.1998 was rejected by the detaining authority on 21.4.1998 and by the Central Government on 29.4.1998. The court examined the delay in the context of the volume of documents and the nature of the inquiry required. It referred to previous judgments, stating that the time taken in considering a representation must be explained and should not indicate inaction or callousness. In this case, the court found that the delay was adequately explained, considering holidays and the time required for obtaining comments from the sponsoring authority. Therefore, the delay did not render the detention illegal.

4. Delay in the Execution of the Detention Order and its Effect on the Detention's Validity:
The appellant argued that the delay in executing the detention order, from 12.2.1997 to 12.3.1998, severed the live and proximate link between his alleged activities and the detention. The court noted that the appellant had been absconding, evading arrest, and continuous efforts were made to apprehend him. Notices and proclamations were issued, and proceedings under Section 7 of COFEPOSA and Sections 82 and 83 of Cr.P.C. were initiated. The court held that an otherwise valid detention order cannot be invalidated due to the detenu's own actions of evading arrest. Therefore, the delay in execution did not affect the validity of the detention.

Conclusion:
The court dismissed the appeal, upholding the detention order under COFEPOSA. It found no merit in the appellant's contentions regarding the non-placement of the retraction statement, delay in the disposal of the representation, and delay in the execution of the detention order. The court agreed with the High Court's view and concluded that the detention was legally justified.

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