2019 (8) TMI 340 - HC - Customs

Legality and validity of Detention order - Smuggling - Section 3(1) of COFEPOSA Act 1974 - HELD THAT - This Court is of the view that steps for service had been taken by the respondents promptly and the impugned order does not suffer from delay in execution. This Court is of the view that Respondent Nos. 1 and 2 have not only adequately explained the delay, if any, in execution of the impugned order, but have also explained that it was due to the conduct of the petitioner (as he was evading service), due to which recourse had to be taken under Section 7(1)(b) of COFEPOSA. Consequently, there is warrant to consider that the link between issuance of the impugned order and the execution has not snapped but strengthened. This Court is also of the view that the person, against whom mala fides are alleged, has to be impleaded as a party to the proceeding to enable him/her to answer the allegations. In the present case, even though the petitioner had alleged personal mala fides against Shri Sunil Kumar Singh, he had not impleaded him as a respondent. The allegation that the impugned order was based on extraneous reasons cannot be examined - petition dismissed.

Summary

Issues Involved:
1. Legality and validity of the Preventive Detention order under Section 3(1) of COFEPOSA.
2. Allegation of extraneous reasons for the detention order.
3. Delay in execution of the detention order.
4. Whether the petitioner was evading service of the detention order.
5. Examination of relevant material by the Detaining Authority.
6. Link between incidents leading to the detention order and its execution.
7. Allegation of mala fides against a customs official.

Analysis:

1. Legality and Validity of the Preventive Detention Order:
The petitioner challenged the Preventive Detention order dated 9th April 2018, issued under Section 3(1) of COFEPOSA, requesting a writ of certiorari to set aside the order. The petitioner argued that the order was based on extraneous reasons and lacked a live link with past incidents.

2. Allegation of Extraneous Reasons:
The petitioner claimed the order was issued due to his actions against a corrupt customs official, Mr. Sunil Kumar Singh. The petitioner cited a Supreme Court ruling in *Additional Secretary to the Government of India & Ors. vs. Smt. Alka Subhash Gadia & Anr.*, 1992 Supp(1) SCC 496, which allows interference with a Preventive Detention order at the pre-execution stage if based on extraneous reasons. However, the court noted that the person against whom mala fides were alleged was not impleaded as a party, thus the allegation could not be examined.

3. Delay in Execution of the Detention Order:
The petitioner argued that there was a considerable delay in executing the order, referencing a Ministry of Finance letter dated 21st February 2007 which emphasizes prompt action. The court found that the respondents had taken prompt steps to serve the order, forwarding it to the DGP Bihar and subsequently to local authorities. The delay was attributed to the petitioner evading service.

4. Evading Service of the Detention Order:
The respondents provided evidence of multiple attempts to serve the order, including raids at different locations and serving the order to the petitioner's mother. The court concluded that the petitioner was evading service, justifying the issuance of a notification under Section 7(1)(b) COFEPOSA.

5. Examination of Relevant Material:
The petitioner contended that the Detaining Authority did not consider relevant material, including his compliance with investigations and favorable orders in past cases. The court reviewed sealed documents and found the detention order was based on recent incidents (2017-2018) involving smuggling activities, not on older cases from 2012-2015.

6. Link Between Incidents and Execution:
The court determined that multiple incidents of smuggling in 2017 and 2018 demonstrated the petitioner's propensity for such activities, establishing a live link between these incidents and the detention order. The court cited *Union of India and Anr. Vs. Dimple Happy Dhakad, 2019 SCC OnLine SC 875*, emphasizing the preventive nature of such orders for societal protection.

7. Allegation of Mala Fides:
The court noted that allegations of mala fides require the implicated individual to be a party to the proceedings. Since Mr. Sunil Kumar Singh was not impleaded, the court could not examine the claim of extraneous reasons.

Conclusion:
The court dismissed the petition and all pending applications, finding the detention order legally valid, promptly executed, and based on relevant and recent incidents of smuggling. The interim orders were vacated.