9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2014 (12) TMI 942 - HC - CustomsDetention order passed under Section 3(1) (i) & 3(1) (iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Attempt to smuggle red sanders - Commission of an offence under Section 132, 135(a), 135(b) and 135(c) of the Customs Act, 1962 - Held that - There was unexplained delay in passing of the detention order. After the alleged seizure of red sanders from the possession and custody of the detenue on 28/29.09.2013 and conduct of investigation, the complaint was filed under Section 132 and 135 of the Customs Act on 28.11.2013. Thus, the investigation was complete by the said date. - detention order was passed after a delay of about 8 months, which has defeated the purpose of the detention as it was to prevent the detenue from acting in a prejudicial manner by indulging in the prohibited trade. Thus, the live link had already broken by the time the detention order was passed belatedly on 25.07.2014 After the detenue was granted bail on 25.02.2014. Although the Central Screening Committee had considered the proposal for preventive detention, and approved it on 12.02.2014, the Detaining Authority filed for cancellation of bail rather than passing the detention order to prevent the detenue from carrying out such prejudicial activities. Further, there are no valid reasons disclosed by the respondents as to why the detention order was passed only on 25.07.2014, i.e. after about 5 months of grant of bail when the proposal was approved by the Central Screening Committee on 12.02.2014. The Detaining Authority even delayed the execution of the detention order passed on 25.07.2014. The detenue was served with the same only on 13.08.2014 i.e. after about 19 days. It is evident from the facts of the case that the detenue had been available all along; rather he even attended the hearing in the prosecution case on 04.08.2014, when he could have been served with the detention order. The respondents have not disclosed that any attempt was made to serve the detention order soon after it had been made. It is not the respondents case that the detenue was avoiding service of the detention order. In fact, the same was served upon him at his residence. - The purpose of a detention order is preventive in nature and not punitive. Therefore, there must be strict compliance of the procedural safeguards in every case of preventive detention. Detenue appeared in the Court of CMM, Jaipur on 04.08.2014. There is absolutely no explanation offered as to why the detention order was not served upon him on the next date. The respondents have themselves tendered in Court a time chart showing the chronological sequence of events in respect of the detenue. In this chronological chart at sl. No.108, it is disclosed that on 01.08.2014, a letter was written by SA to DGP Rajasthan with a copy to the Ministry, informing that if the detention order has not been executed till then, the same could be executed against the detenue on 04.08.2014 when he had to appear before the CMM, Jaipur. In this background, the failure of the respondents to serve the detenue with the detention order on 04.08.2014 is, in our view, fatal. The service of GoD and the RuD is a constitutional right and communication of the same has to be made within the prescribed period to enable the detenue to make a representation. Only in cases where there are exceptional circumstances does the law permit extension from the prescribed period of 5 days upto 15 days. In the present case, the so called exceptional circumstances furnished by the respondent have been set out herein above. In our view, the same cannot, under any circumstance, be classified as exceptional circumstances . Admittedly, the detaining authority was informed of the execution of the detention order on 14.08.2014. Merely because the ADJ (COFEPOSA) was then on Kolkata for attending a hearing before the Advisory Board in another matter cannot be an excuse for the detaining authority in not taking steps for service of the GoD and the RuD upon the detenue at the earliest and positively within the period of 5 days. It is not the respondents case that apart from the ADJ (COFEPOSA), there are no other officers working in the office of the detaining authority. The failure of the executing authority to intimate the sponsoring authority of the detention of the detenue on 13.08.2014 cannot be cited as an excuse to defeat the fundamental rights of the detenue. With regard to delay in furnishing of the Hindi translation of the RuD is concerned, we may observe that the respondents have pointed out that on earlier occasions, the detenue had addressed letters in English and even stated that he can read, write and understand English language. Thus, it appears that there is a real controversy as to, whether or not the detenue bonafidely required translations of the GoD and the RuD to be able to make an effective representation. We do not propose to get into this aspect in the light of the aforesaid discussion, since the detention cannot be sustained on account of serious infirmities - firstly, on account of passing of the detention order; secondly, on account of delay in execution of the detention order, and; thirdly, on account of delay in service of the GoD and the RuD upon the detenue post the detention. - Decided in favour of assesse.
Issues Involved:
1. Delay in passing the detention order 2. Delay in service of the detention order 3. Delay in furnishing the Grounds of Detention (GoD) and Relied upon Documents (RuD) 4. Violation of Article 22(5) of the Constitution of India 5. Procedural compliance under COFEPOSA Act Detailed Analysis: 1. Delay in Passing the Detention Order: The petitioner challenged the detention order dated 25.07.2014 on the ground of unexplained delay of about 8 months from the alleged recovery of red sanders on 28.09.2013. The Court noted that the investigation was complete by 28.11.2013, and the show cause notice under the Customs Act was issued on 24.03.2014. Despite having sufficient material evidence, the detention order was passed only on 25.07.2014. The Court held that such delay defeated the purpose of preventive detention, as the "live link" between the alleged prejudicial activities and the detention order had snapped. 2. Delay in Service of the Detention Order: The Court found that there was a delay of 19 days in executing the detention order, which was served on the detenue only on 13.08.2014. The respondents failed to provide a satisfactory explanation for this delay. The Court emphasized that the detenue was available and even attended a court hearing on 04.08.2014, yet no attempt was made to serve the detention order on that date. The Court concluded that the lack of urgency in executing the detention order indicated a failure to comply with procedural safeguards. 3. Delay in Furnishing the Grounds of Detention (GoD) and Relied upon Documents (RuD): The petitioner argued that the GoD and RuD were served on the detenue only on the intervening night of 19.08.2014 and 20.08.2014, which was beyond the 5-day period mandated by Section 3(3) of the COFEPOSA Act. The respondents cited exceptional circumstances, including holidays and the absence of the ADJ (COFEPOSA). However, the Court rejected these reasons, stating that internal management issues and holidays do not constitute exceptional circumstances. The delay in serving the GoD and RuD violated the detenue's constitutional right to make an effective representation. 4. Violation of Article 22(5) of the Constitution of India: The Court held that the delay in serving the GoD and RuD beyond the prescribed period of 5 days, without valid exceptional circumstances, violated Article 22(5) of the Constitution. This provision mandates that grounds of detention must be communicated to the detenue at the earliest to enable them to make a representation against the detention. 5. Procedural Compliance under COFEPOSA Act: The Court emphasized that preventive detention orders must strictly comply with procedural safeguards. The respondents' failure to execute the detention order promptly and to serve the GoD and RuD within the prescribed period demonstrated a lack of adherence to procedural requirements. The Court referred to various precedents, including Hem Lall Bhandari vs. State of Sikkim and Parmod Kumar vs. Lt. Governor, to underscore the importance of timely communication and execution of detention orders. Conclusion: The Court found multiple procedural lapses in the passing, execution, and communication of the detention order. The unexplained delays and failure to adhere to statutory and constitutional requirements rendered the detention order invalid. Consequently, the Court quashed the detention order dated 25.07.2014 and directed the immediate release of the detenue.
|
