2017 (3) TMI 1070 - HC - Customs

Smuggling of gold - detention of petitioner - time limitation - delay in communication of detention order - Held that - the detention order cannot be found fault with on the ground that the act perpetrated by the detenue were on foreign land. In respect of the acts which may be considered to establish propensity, it is necessary to look into the scope of Section 3 itself. The authorities were all along aware of the residential address of the detenue, where the detenue alleges to have resided whilst in India. It has been specifically averred in the writ petition that the detenue was staying at his native place at Bhatkal, Karnataka and came to know of the detention order only after its publication in a national newspaper on 05.08.2016. There is no reply to this averment. There is a clear delay in the execution of the order which is not satisfactorily explained by the State snapping the live link between the order and the subjective satisfaction arrived at - Thus, we accept the contention of Mr.Pradeep Jain and quash the detention order on this ground. Petition allowed on ground of limitation - decided in favor of petitioner.

Summary

Issues Involved:
1. Detention Order Based on a Solitary Incident
2. Subjective Satisfaction of the Detaining Authority
3. Non-Placement of Vital Documents
4. Violation of Article 22(5) of the Constitution of India read with Section 3(3) of the COFEPOSA Act
5. Sufficiency of Ordinary Law to Deal with the Situation
6. Delay in Execution of the Detention Order

Detailed Analysis:

Detention Order Based on a Solitary Incident:
The petitioner argued that the detention order was based on a solitary incident of handing over a packet containing gold jewelry to Smt. Shehnaz Laiq Ahmed Ansari at Doha Airport. The petitioner contended that the detenue was not involved in any smuggling activities and had no past history of such activities. The court noted that a single act could justify a detention order if it indicated organized activity or potential for future similar activities. The court found that the incident involved extensive planning and coordination, demonstrating the detenue's propensity and potentiality to indulge in future smuggling activities. Therefore, the court rejected the petitioner's argument on this ground.

Subjective Satisfaction of the Detaining Authority:
The petitioner contended that the detaining authority's subjective satisfaction was wrongly arrived at, given that the detenue had voluntarily surrendered his passport and could not travel abroad. The court distinguished this case from others where the detention order was under Section 3(1)(i) of the COFEPOSA Act, noting that the present case was under Section 3(1)(ii) for abetting smuggling. The court found that the detenue's role involved planning and coordination, which could continue even without a passport. Thus, the court upheld the subjective satisfaction of the detaining authority.

Non-Placement of Vital Documents:
The petitioner argued that the application for cancellation of bail was not placed before the detaining authority, which was a vital document. The court found that the detaining authority was aware of the pendency of the application through a letter dated 17.05.2016. Therefore, the court found no merit in the petitioner's argument on this ground.

Violation of Article 22(5) of the Constitution of India read with Section 3(3) of the COFEPOSA Act:
The petitioner argued that the grounds of detention and relied upon documents were incomplete or illegible, impeding the detenue's right to make an effective representation. However, this ground was not pressed at the time of hearing, and the court did not address it further.

Sufficiency of Ordinary Law to Deal with the Situation:
The petitioner contended that the ordinary law of the land was sufficient to deal with the situation, and there was no need to invoke preventive detention. The court noted that preventive detention is a necessary evil to prevent greater harm to the nation's economy and security. The court found that the detenue's activities were of a serious nature and required preventive detention to prevent future smuggling activities. Therefore, the court rejected the petitioner's argument on this ground.

Delay in Execution of the Detention Order:
The petitioner argued that there was an unexplained delay of about 80 days in executing the detention order, which vitiated the subjective satisfaction of the detaining authority. The court found that the authorities were aware of the detenue's address but failed to take effective measures to execute the order promptly. The court concluded that the delay snapped the live link between the order and the subjective satisfaction, thereby vitiating the detention order. Consequently, the court quashed the detention order on this ground.

Conclusion:
The court quashed the detention order on the ground of unexplained delay in its execution, while rejecting the petitioner's arguments on all other grounds. The detenue was ordered to be released forthwith unless wanted in any other case.