2013 (10) TMI 272 - HC - Customs

Order u/s 3(1) of COFEPOSA - The main challenge is to the order of detention passed u/s 3(1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 Held that - The rejoinder of the petitioner thereto and the documents relied on, that it was the petitioner, to whom the consignment was to be delivered - This is borne out not only from the show-cause notice issued to the petitioner and documents but also from the order of the Commissioner of Customs passed annexed by the petitioner to his rejoinder, which shows that penalty of Rs.15 lakhs has been levied on the petitioner - the ground raised that it was issued against a wrong person is devoid of any merit in the light of the material on record to show, that it was the petitioner, who was to receive the courier containing the memory chips - we are satisfied that the consignment was meant to be delivered to the petitioner; that he was unable to offer an explanation as to why there was a discrepancy in the invoice; that the alleged fax sent was doubtful; and that the petitioner had absconded and had tried to evade summons. Detention order at Pre-execution stage - Relying upon Additional Secretary to the Government of India & Ors. vs. Alka Subhash Gadia & Anr. 1990 (12) TMI 216 - SUPREME COURT OF INDIA - Despite strenuous efforts to search the detenue, he was not found, nor did the petitioner s wife and brother disclose the whereabouts of the petitioner - It was thus evident, that the petitioner was trying to evade the execution of the detention order - From the show cause notice, it is evident that the petitioner was an habitual offender, indulging in smuggling activities and it was with a view to preventing him in future from smuggling goods, that the detention order was passed - The ground raised by the petitioner, therefore, in our opinion, cannot be said to be for a wrong purpose , inasmuch as, it is passed with a view to preventing the petitioner in future from smuggling goods - Therefore, we are of the opinion, that it cannot be said that the detention order was passed for a wrong purpose . While initiating action against the petitioner under the COFEPOSA, his past antecedents, that he was involved in smuggling activities in April, 2010 and in a similar smuggling activity in the year 2004, were considered and it was felt, that the detention of the petitioner was necessary with a view to preventing him in future from smuggling goods - the contention of the petitioner that the order was passed on vague, extraneous and on irrelevant grounds , is devoid of merit. Considering the grounds on which the detention order is sought to be quashed at the pre-execution stage and the law relating thereto, none of the grounds are attracted in the present case We cannot make an exception to the general rule in this case by quashing the order of detention at the pre-execution stage there was no merit in the petition Decided against Assessee.

Issues Involved:
1. Maintainability of the writ petition before the execution of the detention order.
2. Whether the detention order is being executed against the wrong person.
3. Whether the detention order is passed for a wrong purpose.
4. Whether the detention order is based on vague, extraneous, and irrelevant grounds.

Detailed Analysis:

1. Maintainability of the Writ Petition Before Execution of the Detention Order:
The court stated that the writ petition is maintainable at the pre-execution stage, and this issue is no longer res integra. The petitioner contended that his case falls within three of the five grounds established in the case of *Additional Secretary to the Government of India & Ors. vs. Alka Subhash Gadia & Anr.*, which allows for pre-execution challenges to detention orders. The five grounds from *Alka Gadia's case* are:
1. The impugned order is not passed under the Act under which it is purported to have been passed.
2. It is sought to be executed against a wrong person.
3. It is passed for a wrong purpose.
4. It is based on vague, extraneous, and irrelevant grounds.
5. The authority which passed it had no authority to do so.

2. Detention Order Executed Against the Wrong Person:
The petitioner argued that the detention order is sought to be executed against a wrong person, as he did not import the seized goods. However, the court found that the petitioner was indeed the recipient of the consignment, as evidenced by the show-cause notice, documents, and the order of the Commissioner of Customs. The petitioner had absconded after the consignment was seized and did not appear before the Customs Authorities until he was granted anticipatory bail. The veracity of the documents raised disputed questions of fact, but the court was satisfied that the consignment was meant for the petitioner.

3. Detention Order Passed for a Wrong Purpose:
The petitioner contended that the detention order was passed for a wrong purpose, as the Customs Department chose not to arrest him despite having the opportunity. The court found that the petitioner was absconding and only appeared after being granted anticipatory bail. The detention order was issued under COFEPOSA to prevent the petitioner from smuggling goods in the future, and the fact that the petitioner was a habitual offender justified the detention order. The court concluded that the detention order was not passed for a wrong purpose.

4. Detention Order Based on Vague, Extraneous, and Irrelevant Grounds:
The petitioner argued that the detention order was based on vague, extraneous, and irrelevant grounds, and that he had no connection with the seized goods. The court found that there was sufficient material to show that the goods belonged to the petitioner and that he had attempted to smuggle high-value memory cards. The petitioner's past involvement in smuggling activities was also considered. The court concluded that the detention order was not based on vague, extraneous, or irrelevant grounds.

Conclusion:
The court rejected the petition, finding no merit in the grounds raised by the petitioner. The petition was dismissed, and the rule was discharged with no order as to costs. The court clarified that the observations made in the judgment were only for deciding the petition at the pre-execution stage and should not influence any future challenges to the detention order after its execution.

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