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2017 (11) TMI 302 - HC - Indian LawsChallenges a detention order issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 ( COFEPOSA ) - Held that - The petitioner is a COFEPOSA detenu. He was throughout advised by the competent legal brains. He had the advantage of best legal assistance. He was briefing counsel and the senior counsel throughout. He could have pressed at least in the second Writ Petition all these grounds which are now pleaded. We have referred to the earlier pleadings and heavily relied upon by Mr. Yagnik. They are to be found in the memo of the second Criminal Writ Petition. In the representations and Applications seeking revocation of the detention order. Those were rejected and by orders dated 8th January 2017 and 4th February 2017. The Petitioner challenged these orders in the Second Criminal Writ Petition. The Petitioner specifically urged in that petition that more than eight months have elapsed after the Hon ble Supreme Court dismissed his SLP by order dated 22nd April 2016. However the detention order is not acted upon. Thus the delay is not of 6 and 1/2 years but 8 10 months after the order of the Hon ble Supreme Court. In grounds (b) and (e) at pages 18 19 of the memo in the second Criminal Writ Petition the point or ground of delay is squarely taken. If that was withdrawn with the liberty to raise the contentions based on Subhash Popatlal Dave we do not see how the above grounds were not available for being raised on 20th April 2017. By then the entire law had been settled. We have only referred to the settled legal principles and not departed or deviated from the same. Once this very plea which was available was indeed raised so also the ground was elaborated then not pressing it does not mean that there is any fresh event or subsequent development which adversely affects the life and liberty of the petitioner. Even otherwise throughout what has been pointed out and from the record as to how the petitioner was not available in these 10 to 12 months. The petitioner s wife and son had made statements which were recorded and which we do not find in any way explained far from retracted that last one or one and half years and at least from 22nd April 2016 onwards the petitioner was not available at his residential address. Thus there is no enormous and unexplained delay in execution and service of the order of detention dated 11th February 2011. Its operation execution and enforcement was stayed by this Court from 3rd May 2011 to 28th October 2013 and for a further period of three weeks thereafter. Then the Petitioner approached the Hon ble Supreme Court which stayed the detention order further till 22nd April 2016. It is only after that date the order became executable. However even the delay in execution after 22nd April 2016 till April 2017 was challenged in the Second Criminal Writ Petition by the Petitioner Detenue but he withdrew it with liberty to raise the very same grounds again. Thus this liberty is of no avail. In that garb the same ground which was expressly taken but not pressed cannot be raised again.The Petition is therefore dismissed.
Issues Involved:
1. Validity of the detention order dated 11th February 2011 under Section 3(1) of COFEPOSA. 2. Refusal to revoke the detention order by the Principal Secretary (Appeals and Security). 3. Maintainability of the third writ petition challenging the detention order on the ground of delay in execution. Issue-wise Detailed Analysis: 1. Validity of the Detention Order Dated 11th February 2011 Under Section 3(1) of COFEPOSA: The petitioner challenged the detention order issued by the first respondent on 11th February 2011, under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The order was based on the Detaining Authority's satisfaction that the petitioner was involved in smuggling activities, evidenced by the seizure of 34,500 pieces of foreign origin mobile memory cards misdeclared as mobile accessories. The goods were seized under a panchanama dated 11th June 2010, and statements were recorded from various individuals, including the Courier Officer and Assistant of M/s. TNT (I) Limited, and the premises owner, Ritesh Manohar Lanjewar. The petitioner was repeatedly summoned but failed to appear, leading to the issuance of the detention order to prevent him from smuggling goods in the future. 2. Refusal to Revoke the Detention Order by the Principal Secretary (Appeals and Security): The petitioner sought relief to issue a writ of certiorari or any other writ or direction calling for the records relating to the order dated 13th June 2017, passed by the Principal Secretary (Appeals and Security), refusing to revoke the detention order. The representation dated 14th January 2011 was considered before passing the detention order. The show cause notice dated 9th December 2010 issued by the Customs was also referred to in the grounds of detention. The Detaining Authority recorded satisfaction that it was imperative to detain the petitioner under COFEPOSA to prevent future smuggling activities. The petitioner filed multiple representations and applications seeking revocation of the detention order, which were rejected without assigning reasons. 3. Maintainability of the Third Writ Petition Challenging the Detention Order on the Ground of Delay in Execution: The petitioner had previously filed two writ petitions challenging the detention order. The first writ petition (Criminal Writ Petition No. 918 of 2011) was dismissed by the Division Bench, which held that there was subjective satisfaction properly recorded by the competent authority. The petitioner then approached the Supreme Court, which dismissed the Special Leave Petition on 22nd April 2016. The second writ petition (Criminal Writ Petition No. 889 of 2017) was filed on the ground of inordinate delay in executing the detention order. The petitioner argued that the delay had severed the live link between the detention order and the prejudicial activities. However, the second writ petition was withdrawn with liberty to raise all grounds of challenge as per the decision in Subhash Popatlal Dave vs. Union of India. The third writ petition raised the same ground of delay in execution, arguing that the delay vitiated the detention order. The court noted that the petitioner had the opportunity to raise this ground in the previous petitions and during the proceedings before the Supreme Court but chose not to press it. The court emphasized that the principle of finality of judgments applies, and the petitioner cannot repeatedly challenge the detention order on the same grounds. The court also highlighted that the delay in execution was due to the petitioner's conduct of evading service and absconding, as evidenced by the repeated attempts by the authorities to serve the order. Conclusion: The court dismissed the third writ petition, holding that the ground of delay in execution was available and raised in the previous petitions but not pressed. The court emphasized the importance of finality in judgments and the need to prevent abuse of the judicial process by repeatedly challenging the same detention order on similar grounds. The court upheld the validity of the detention order and the refusal to revoke it by the Principal Secretary (Appeals and Security).
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