2011 (12) TMI 609 - HC - Customs

Summary

Issues Involved:
1. Legality of the detention order under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
2. Delay in executing the detention order.
3. Maintainability of a pre-execution writ petition.
4. Authority of the person issuing the detention order.
5. Grounds for detention being vague, extraneous, and irrelevant.
6. Petitioner's alleged absconding and use of false identity.
7. Subsequent activities of the petitioner post-detention order.

Detailed Analysis:

1. Legality of the Detention Order:
The detention order dated 13.04.2000 was challenged on grounds of being issued for a wrong purpose, based on vague, extraneous, and irrelevant grounds, making it illegal, arbitrary, and mala fide. The petitioner argued that the import of four used cars by non-resident Indians was the basis of the order, and customs duty was paid by the importers. The petitioner contended that there was a gross delay of more than ten years in executing the order.

2. Delay in Executing the Detention Order:
The petitioner's counsel highlighted a delay of more than ten years in executing the order, arguing that the delay resulted in snapping the link between the alleged activities and the detention order. The respondents countered by stating that the petitioner was absconding and using a false passport. The court noted that the petitioner had shifted his base and evaded authorities, justifying the delay.

3. Maintainability of a Pre-Execution Writ Petition:
The petitioner's counsel cited various Supreme Court judgments to argue that a pre-execution writ petition is maintainable, especially when the detention order is issued by an unauthorized person. However, the respondents contended that the writ petition became infructuous after the detention order was executed. The court held that the writ petition could still be considered despite the execution of the order, as the petitioner was arrested during the pendency of the writ petition.

4. Authority of the Person Issuing the Detention Order:
The petitioner argued that the detention order was issued by a person not authorized to do so. However, the court found that the order was passed by the Joint Secretary to the Government of India, who is authorized under Section 3 of the Act. Therefore, the contention based on the fifth ground in Gadia's case was rejected.

5. Grounds for Detention Being Vague, Extraneous, and Irrelevant:
The petitioner argued that the detention order was based on vague, extraneous, and irrelevant grounds. The court noted that the grounds of detention were not produced by the petitioner, and there were orders of penalty passed against the petitioner in two cases before the detention order was issued. Therefore, the court did not find merit in this argument.

6. Petitioner's Alleged Absconding and Use of False Identity:
The respondents argued that the petitioner was absconding and using a false passport. The court noted that the petitioner had obtained passports under different names and evaded authorities. The petitioner's claim that he had not traveled overseas since 1993 was found to be incorrect, as evidence showed he had used different passports.

7. Subsequent Activities of the Petitioner Post-Detention Order:
The respondents presented evidence indicating that the petitioner continued his smuggling activities post-detention order. The court found that the petitioner was absconding and continued his activities, justifying the delay in executing the order.

Conclusion:
The court dismissed the writ petition, finding no merit in the arguments presented by the petitioner. The detention order was deemed legal, the delay in execution was justified due to the petitioner's absconding, and the grounds for detention were not found to be vague or irrelevant. The petitioner's pre-execution challenge was not upheld, and the court emphasized the discretionary nature of judicial review in such cases.