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2021 (2) TMI 915 - HC - FEMAOffence under COFEPOSA ACT - detention order - respondents desired to unlock the mobile phone instrument of the petitioner to retrieve the materials/ documents therefrom but petitioner did not co-operate in the opening/ unlocking of his mobile phone instrument - HELD THAT - As timeline satisfactorily explains and justifies the time taken by the Respondents in undertaking investigation, which finally culminated in passing of the impugned Detention Order. The initial proposal sent by the Sponsoring Authority in February, 2019 was not found sufficient to justify the petitioner s detention under Section 3 of the COFEPOSA Act. The Sponsoring Authority, therefore, continued with its efforts to conduct further investigation and, for that purpose, retrieval of the contents of the mobile phone of the petitioner was crucial. Vide his letter dated 23.04.19, the petitioner desired that the forensic examination of his phone be done in his presence. Vide summons dated 21.05.19, he was asked to appear on 30.05.19. He did not appear. Another summons dated 06.06.19 was issued on 12.06.19. He appeared on 12.06.19. However, the petitioner did not cooperate. He did not provide the code to unlock his mobile phone on his own. He feigned ignorance and loss of memory with respect to the password/ code that left the respondents with no other option but to look for avenues to unlock the mobile phone even without the petitioner providing the password/ code. The respondents have stated that, ultimately, it was found that the mobile phone of the petitioner could be unlocked at the Cyber Laboratory of DRI, Mumbai. The respondents have stated that DRI, Mumbai is not a part of Air Customs. Thus, the submission that the respondents ought to have been aware of the existence of its facility at DRI, Mumbai to unlock the mobile phone of the petitioner, cannot be accepted on the basis of assumptions that the petitioner would like us to draw. The petitioner was sent a letter dated 20.11.2019 informing that Forensic Examination of his mobile phone would be conducted at DRI, Mumbai on 25.11.2019. That letter could not be served on the petitioner, since he was not found residing on the given address. The fact that the petitioner did not intimate the change of his address or his definite address where he could be found, itself shows that the conduct of the petitioner was evasive. The petitioner was sent another letter dated 17.01.2020 at his new address in Ramesh Nagar informing him that forensic examination of his mobile phone would be undertaken at DRI, Mumbai on 20.01.2020. He was put to notice that, in case, he did not appear, either himself, or through his authorized representative, the forensic examination of his mobile phone would be conducted in the presence of other witnesses. Despite receipt of this notice, the petitioner failed to appear in the office of the DRI, Mumbai and, therefore, the forensic examination got conducted in the presence of other witnesses on 20.01.2020 In case, the petitioner was really interested in participating in the forensic examination, he should have appeared at DRI, Mumbai on 20.01.2020. His non-appearance on that day, and non-appearance of even his authorized representative shows that the endeavor of the petitioner was merely to drag the matter and delay the forensic examination of his mobile phone for as long as it could be done. Thus, the delay in the forensic examination of the petitioner s mobile phone is primarily attributable to the petitioner, and not to the respondents. We, therefore, reject the submission of the petitioner that there was any unexplained delay on the part of the respondents in the forensic examination of his mobile phone between 1-2.02.2019 and 20.01.2020. We are also of the view that in the facts and circumstances of this case, it cannot be concluded that the livelink between the prejudicial activity in which the petitioner was found involved on 1-2.02.2019 and the purpose and object of detention, when the detention order was passed on 05.06.2020, was broken. Mere passage of time between the date of the prejudicial activity and the date on which the detention order came to be passed when the said passage of time has been sufficiently explained by the respondents, cannot lead to the definite conclusion with regard to the snapping of the nexus between the two. The petitioner also cannot take shelter of the argument regarding the time lapse between the detention order passed against his brother Mr. Gaganjot Singh, and the detention order passed against himself. The brother of the petitioner is purported to be the kingpin of the smuggling ring which allegedly caused immense economic loss to the country. The CSC and the Detaining Authority found the evidence against him to be sufficient to proceed against him in 2019 itself, which resulted in the passing of the Detention Order dated 11.03.19 against him. To justify the preventive detention of the petitioner in the assessment of the Detaining Authority, the Respondents had to collect evidence against the present petitioner, including recovering the relevant data from his mobile phone instrument, which took considerable time for reasons attributable primarily to the petitioner himself. No merit in the assertions of the petitioner. We, accordingly, dismiss the petition
Issues Involved:
1. Validity of the Detention Order under COFEPOSA Act. 2. Alleged delay in passing the Detention Order. 3. Petitioner's non-cooperation in the investigation. 4. Consideration of the petitioner's representation under Section 11 of COFEPOSA. 5. Pre-execution challenge to the Detention Order. Detailed Analysis: 1. Validity of the Detention Order under COFEPOSA Act: The petitioner challenged the Detention Order dated 05.06.2020 issued under Section 3(1) of the COFEPOSA Act by the Joint Secretary, COFEPOSA, Government of India. The Detention Order was issued to prevent the petitioner from smuggling activities. Contraband items such as drones, gold, and cigarettes were recovered from the petitioner and his associates. The petitioner argued that his statement recorded on 2nd February 2019 was self-incriminating and given under coercion. 2. Alleged Delay in Passing the Detention Order: The petitioner contended that the Detention Order was issued after an inordinate delay of 1 year and 4 months, which is fatal to the order. The initial proposal for detention was sent on 25th February 2019, but the Detention Order was issued only on 5th June 2020. The petitioner relied on the judgments in Licil Antony vs. State of Kerala and Rajinder Arora vs. Union of India to argue that the delay had snapped the live link between the prejudicial activity and the purpose of detention. The respondents explained that the delay was due to the need for further investigation and the unlocking of the petitioner's mobile phone, which was delayed due to the petitioner's non-cooperation. The forensic examination of the mobile phone was conducted on 20.01.2020, leading to the recovery of incriminating materials. A fresh proposal for detention was then forwarded on 13.03.2020, and the Detention Order was issued on 05.06.2020 after approval from the Chief Commissioner of Customs and the Central Screening Committee. 3. Petitioner's Non-Cooperation in the Investigation: The respondents argued that the petitioner did not cooperate in the investigation, particularly in unlocking his mobile phone, which delayed the forensic examination. The petitioner was summoned multiple times but either failed to appear or claimed to have forgotten the password to his mobile phone. The forensic examination was eventually conducted on 20.01.2020 without the petitioner's presence, leading to the recovery of incriminating documents. 4. Consideration of the Petitioner's Representation under Section 11 of COFEPOSA: The petitioner's representation under Section 11 of COFEPOSA was pending consideration. The court directed the respondents to consider the representation and place the result before the court. On 07.10.2020, it was informed that the representation had been rejected. 5. Pre-Execution Challenge to the Detention Order: The court noted that a Detention Order could be assailed at the pre-execution stage on limited grounds as recognized in Alka Subhash Gadia and Deepak Bajaj cases. The court examined whether there was an inordinate and unexplained delay in passing the Detention Order. The timeline provided by the respondents satisfactorily explained the delay, attributing it primarily to the petitioner's non-cooperation and the nationwide lockdown due to COVID-19. Conclusion: The court found that the delay in passing the Detention Order was satisfactorily explained by the respondents. The petitioner's non-cooperation significantly contributed to the delay. The court concluded that the live link between the prejudicial activity and the purpose of detention was not broken. The petition was dismissed, and the Detention Order was upheld.
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