2008 (9) TMI 1006 - HC - Customs

Summary

Issues Involved:
1. Validity of detention order based on pending enquiries.
2. Alleged non-application of mind in passing the detention order.
3. Non-placement of retraction before the detaining authority.
4. Delay in passing the detention order and disposal of representation.
5. Representation addressed to one officer decided by another.

Issue-wise Detailed Analysis:

1. Validity of Detention Order Based on Pending Enquiries:
The detenu argued that the detention order was based on documents still under enquiry, specifically regarding eight prior consignments. The court held that the detenu had represented himself as the proprietor of M/s Om Prakash Deepak Kumar and had mis-declared the goods in the ninth consignment. The court found that the ownership of the earlier eight consignments was established by preponderance of probabilities, supported by statements from the clearing agent and his nominee. The court concluded that the detention order was valid and not based on inchoate material.

2. Alleged Non-application of Mind in Passing the Detention Order:
The detenu contended that the detention order was passed without proper application of mind, citing contradictions in the detention order regarding his proprietorship. The court refuted this, stating that the detenu had misused the name and details of M/s Om Prakash Deepak Kumar, and the detention order detailed the facts and reasons for detention comprehensively. The court held that the detention order showed clear application of mind and dismissed this contention as meritless.

3. Non-placement of Retraction Before the Detaining Authority:
The detenu claimed that his retraction was not placed before the detaining authority. The court examined the alleged retraction and found it to be a potentially fabricated document, as it lacked essential details and was not appended with any bail applications. The court noted that the detaining authority had considered the detenu's claims of coercion in his statements and dismissed the retraction as untruthful. The court held that the non-placement of the retraction did not affect the validity of the detention order.

4. Delay in Passing the Detention Order and Disposal of Representation:
The detenu argued that delays in passing the detention order and disposing of his representation invalidated the order. The court found that the investigation and procedural steps taken by the respondents justified the time taken to pass the detention order. Regarding the representation, the court noted that it was received by the COFEPOSA department on 20th June 2008, comments were obtained by 27th June 2008, and the representation was rejected on 30th June 2008. The court concluded that there was no undue delay in either passing the detention order or disposing of the representation.

5. Representation Addressed to One Officer Decided by Another:
The detenu contended that his representation addressed to the Secretary, Government of India, was decided by the Special Secretary, rendering the decision invalid. The court referred to a notification dated 2nd September 1998 that empowered the Special Secretary to consider such representations. The court held that the representation was considered by a competent authority and dismissed this contention.

Conclusion:
The court upheld the validity of the detention order dated 5th December 2007, finding no merit in the detenu's submissions. The court also directed the Commissioner of Customs, ICD, Tughlakabad, to lodge a police report regarding the detenu's criminal activities and imposed a cost of Rs. 50,000 on the sponsoring authority.