2007 (7) TMI 714 - HC - Customs

Summary

Issues Involved:
1. Maintainability of pre-detention writ petition.
2. Non-application of mind by the Detaining Authority.
3. Suppression of vital and relevant documents.
4. Malafide intent behind the detention order.
5. Delay in launching prosecution against the petitioner.

Issue-wise Detailed Analysis:

1. Maintainability of Pre-detention Writ Petition:
The petitioner challenged the maintainability of the pre-detention writ petition under Article 226 of the Constitution of India. The court referred to the Supreme Court's judgment in *Alka Subhash Gadia* which allows for judicial review of detention orders at the pre-execution stage under limited grounds. The court held that the present writ petition is maintainable as it challenges the detention order on grounds of it being passed for a wrong purpose and on vague, extraneous, and irrelevant grounds.

2. Non-application of Mind by the Detaining Authority:
The petitioner argued that the detention order was issued under Section 3(1)(i) of the COFEPOSA Act to prevent future smuggling, whereas the material on record suggested a case of abetting smuggling or dealing in smuggled goods. The court noted that the arrest memo and show cause notice indicated allegations of diversion of duty-free goods into the local market, not smuggling. This discrepancy suggested non-application of mind by the Detaining Authority.

3. Suppression of Vital and Relevant Documents:
The petitioner contended that vital documents, including statements recorded by CBI, the search and seizure report, and the show cause notice by the Development Commissioner, were not placed before the Detaining Authority. The court agreed, stating that the failure to present these documents, which were crucial for the Detaining Authority's decision, rendered the detention order invalid. The absence of a detailed counter affidavit from the respondents further supported this conclusion.

4. Malafide Intent Behind the Detention Order:
The petitioner alleged that the detention order was motivated by revenge due to a complaint filed against DRI officers for demanding bribes. The court found merit in this argument, noting that the detention orders against the petitioner's father and brother had already been quashed on similar grounds. The court observed that the delay in launching prosecution against the petitioner and the suppression of relevant documents indicated that the detention order was issued for extraneous reasons and with malafide intent.

5. Delay in Launching Prosecution Against the Petitioner:
The court noted the significant delay in prosecuting the petitioner despite the passage of time since the alleged offenses. The respondents failed to provide a satisfactory explanation for this delay, which further suggested that the detention order was not based on genuine grounds but was instead punitive and retaliatory in nature.

Conclusion:
The court concluded that the detention order dated 28.12.2005 was invalid due to non-application of mind, suppression of vital documents, and malafide intent. The writ petition was allowed, and the detention order was quashed.