2016 (1) TMI 192 - HC - Customs

Smuggling of Gold into India - Proceeding under COFEPOSA Act - detention order - The Writ Petition has been filed challenging the order of detention at its pre-execution stage after having withdrawn the Writ Petition filed by him before the Delhi High Court for the same relief. - Held that - Learned counsel for the petitioner submitted that steps under Section 7 of the COFEPOSA Act were illegally taken and there was no ground at all for initiating such proceedings. It is submitted that on that ground also the petitioner is entitled to challenge the order of detention at its pre-execution stage. Even if the steps taken under Section 7 of the COFEPOSA Act is not legal and proper it is not a ground at all for challenging an order under Section 3(1) of the COFEPOSA Act at its pre-execution stage. Proceedings under Section 7 would be initiated if the person sought to be detained is absconding. That is to secure the presence of the person concerned. A step taken to secure the presence of the person against whom an order of detention is issued cannot be the basis for challenging the order of detention at its pre-execution stage. We reject the contention raised by the petitioner. - Decided against the petitioner.

Summary

Issues:
1. Challenge to the detention order under COFEPOSA Act at pre-execution stage.
2. Lack of live nexus between prejudicial activity and detention order.
3. Permission to file another Writ Petition after withdrawing the initial petition.
4. Legality of steps taken under Section 7 of COFEPOSA Act.

Issue 1: Challenge to the detention order at pre-execution stage

The petitioner, an Assistant Central Immigration Officer, was alleged to have abetted smuggling of gold into India. The petitioner challenged the detention order before the High Court of Kerala, claiming a lack of live nexus between the prejudicial activity and the order of detention. The petitioner argued that due to his transfer to Bhubaneswar, the possibility of his involvement in smuggling was eliminated. However, the court held that the validity of the detention order could only be assessed after its execution, and the passage of time did not render the order irrelevant.

Issue 2: Lack of live nexus between prejudicial activity and detention order

The petitioner contended that the live link between the alleged prejudicial activity and the detention order was severed due to his transfer and subsequent leave. The court, citing legal precedent, emphasized that the absence of a live nexus is fatal to a preventive detention order only after execution. The court declined to entertain this argument at the pre-execution stage, stating that such considerations should be made post-execution.

Issue 3: Permission to file another Writ Petition

The petitioner withdrew a Writ Petition filed before the Delhi High Court with liberty to challenge the detention order at an appropriate stage. The court assumed that permission to challenge the order was granted, but noted that the appropriate stage had not yet arrived as the detention order had not been executed. The court declined to entertain the Writ Petition on the grounds that the appropriate stage had not been reached.

Issue 4: Legality of steps taken under Section 7 of COFEPOSA Act

The petitioner argued that steps under Section 7 of the COFEPOSA Act were illegally taken, providing a basis to challenge the detention order at the pre-execution stage. The court rejected this argument, stating that actions under Section 7, aimed at securing the presence of an absconding individual, do not form a valid ground to challenge a detention order under Section 3(1) pre-execution.

In conclusion, the High Court of Kerala dismissed the Writ Petition, finding it without merit and emphasizing that the validity of the detention order should be assessed post-execution, and challenges based on lack of live nexus or legality of steps taken under Section 7 were premature at the pre-execution stage.