2018 (9) TMI 586 - HC - Indian Laws

Detention of person - Section 3(1) of COFEPOSA Act - Bail Application - prayer is for direction to the respondents to place on record the said detention order - Smuggling in arms and ammunition/pistol - Held that - In the present case the facts not in dispute are that far from avoiding the processes of law, the petitioner responded to the notices issued to him by the DRI. In the first instance after being detained for more than two months he applied for and obtained statutory bail under Section 167(2) Cr. PC. That order, as already noted, was subject to stringent conditions including an LOC having to be opened by the authorities to ensure that the petitioner is not able to leave the country notwithstanding that his passport is in the custody of the DRI. It is not the case of the respondents that any of those conditions have been violated by the petitioner - If indeed the petitioner was refusing to co-operate in the investigations concerning him, an application ought to have been filed before the Learned CMM for cancellation of his bail. There is no such application till date - Thirdly, the petitioner did respond to the SCN issued by the DRI on 13th October, 2017. He appeared before the Adjudicating Authority i.e. the Principal Commissioner of Customs (Preventive) along with his Advocate on 24th October 2017. The Court would like to add that in the instant case, even when the DRI challenged the order dated 9th October, 2017 of the CMM before this Court, the petitioner in response to the notice issued by this Court filed an affidavit. It is not as if, therefore, the petitioner has tried to avoid the process of law. Mr. Diwakar was unable to point out how the case of the petitioner on merits was any different from that of the co-detenues. The only explanation offered is that while the co-detenues underwent some period of detention, the petitioner did not. If on merits, the case of the petitioner is no different from that of the co-detenues and the detention orders in respect of the co-accused have not been confirmed by the Advisory Board, the Court sees no purpose being served in the petitioner being detained on the basis of the impugned detention order, the grounds for which are no different from the detention orders issued in respect of the co-detenues, which have not been confirmed by the Advisory Board. The Court is also not satisfied that any serious attempt was made during the time when the detention order in respect of the co-detenues was still alive, to execute the impugned detention order to take the petitioner into custody despite the DRI knowing of his participation in the adjudication proceedings pursuant to the SCN issued by it. That stage having been crossed, the Court has no hesitation in holding that the detention order issued in respect of the petitioner has ceased to serve any purpose whatsoever. The Detention Order quashed - petition allowed.

Summary

Issues Involved:
1. Validity of the detention order issued under Section 3(1) of the COFEPOSA Act.
2. Non-service of the detention order to the petitioner.
3. Petitioner's compliance with legal processes and bail conditions.
4. Comparison with the cases of co-detenues whose detention orders were not confirmed.
5. Petitioner's alleged evasion of the detention order and the authorities' efforts to serve it.

Detailed Analysis:

1. Validity of the Detention Order:
The petitioner, a Slovenian national, sought a writ of certiorari to quash the detention order dated 17th October, 2017, issued under Section 3(1) of the COFEPOSA Act. The detention order was intended to prevent the petitioner from engaging in smuggling activities. However, the Court noted that the grounds of detention were common to the petitioner and three other co-detenues, whose detention orders were not confirmed by the Advisory Board.

2. Non-Service of the Detention Order:
One of the primary contentions was that the petitioner had not been served with a copy of the detention order. The Court observed that despite the petitioner appearing before the Adjudicating Authority on 24th October, 2017, no effort was made by the authorities to serve the detention order on him. The Court found this lack of action significant, especially since the petitioner had been cooperating with the authorities and had not violated any bail conditions.

3. Compliance with Legal Processes and Bail Conditions:
The petitioner had been granted statutory bail under Section 167(2) CrPC after being in custody for over sixty days. The bail conditions included not leaving Delhi/NCR, surrendering his passport, and attending court proceedings. The Court noted that the petitioner had complied with these conditions and had appeared before the Adjudicating Authority on 24th October, 2017, in response to a Show Cause Notice (SCN) issued by the Directorate of Revenue Intelligence (DRI).

4. Comparison with Co-Detenues:
The Court highlighted that the detention orders for the three co-detenues were not confirmed by the Advisory Board, and these orders were revoked. The grounds for the detention order against the petitioner were identical to those of the co-detenues. The Court found no merit in detaining the petitioner when the Advisory Board had already declined to confirm the detention orders for the other co-detenues.

5. Alleged Evasion and Authorities' Efforts:
The respondents argued that the petitioner had been absconding and evading the detention order. However, the Court noted that the petitioner had provided his address as "c/o Embassy of Slovenia" and had been appearing before the authorities as required. The Court found that no serious attempt was made by the authorities to contact the petitioner's sureties or to serve the detention order during the adjudication proceedings.

Conclusion:
The Court quashed the detention order dated 17th October, 2017, issued under Section 3(1) of the COFEPOSA Act, finding that it ceased to serve any purpose. The writ petition was allowed, and the application was disposed of with no order as to costs. The Court emphasized that the purpose of a detention order is to prevent the commission of a crime, and in this case, the petitioner had been complying with legal processes and bail conditions, making the detention order unnecessary.