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2022 (5) TMI 997 - HC - CustomsValidity of preventive detention order - allegation of smuggling activities - COFEPOSA - impugned Preventive Detention Order is yet to be served on the petitioner - firms alleged to be operated/controlled by the petitioner were placed in Denied Entry List (Blacklist), prior to passing of the detention order - diligent to serve the detention order on the petitioner at the earliest despite being available for service since the detention order was passed on 26.03.2019 and the petitioner had appeared before the Ld. CMM on 28.03.2019 and 05.04.2019 after the passing of the impugned detention order - whether petitioner is absconding or concealing himself to avoid execution of the impugned detention order or not - HELD THAT - If a person against whom the preventive detention order is passed comes to the court at pre-execution stage and satisfies the court that such order is clearly illegal, there is no reason why the court should stay its hands and compel him to go to jail even though he is bound to be released subsequently because of the illegality of such order. Coming to the present petition, as per the case of respondent No. 3, the petitioner was engaged in smuggling activities referred to in section 3(1) of COFEPOSA Act and resorted to mis-declaration of material particulars to avail undue benefits in exporting goods under MEIS Scheme. Also, the petitioner had been involved in smuggling of goods, abetting the smuggling of goods and engaging in transporting or concealing or keeping smuggled goods. Further, the Officers of Respondent No. 3 arrested the petitioner on 18.12.2018 for alleged commission of offences punishable under section 132 and 135 of the Customs Act 1962, in respect of the firms M/s C.L. International, of which the petitioner is a partner and M/s Purav International of which the petitioner is the proprietor. The petitioner is also alleged to be involved directly or indirectly in affairs of other two firms, namely, M/s Yashee Impex and M/s Gauri Global Exports and Trading. The fact remains that presence of the petitioner on 05.04.2019 before Ld. CMM has not been denied and assumption by respondents that petitioner would not appear, is an afterthought. In the facts and circumstances, the respondents cannot be absolved of their conduct of non taking of steps for service of detention order on 28.03.2019 and 05.04.2019. No justified reasons have been disclosed by the respondent for non-service of detention order on the petitioner on 28.03.2019 and 05.04.2019 despite availability of the petitioner. In the aforesaid backdrop, despite opportunities to serve the detention order, neither the Detaining Authority nor the Executing Agency as well as Sponsoring Authority was diligent or responsible to serve the detention order on the petitioner. There is absolutely no reasonable justification for non-service of detention order dated 26.03.2019 on the petitioner, from 28.03.2019 to 05.04.2019, despite the petitioner being available to the authorities. The purpose of detention order is a preventive measure and if the detenu is not served or detained at the earliest possible, keeping in view the spirit of Article 22(5) of the Constitution of India, the purpose is defeated. A sense of urgency needs to be exhibited by the respondents, if the preventive detention order is to be justified. The entire exercise for service of detention order appears to have been undertaken in a casual and cavalier manner, which, in our considered view is fatal to the case of the respondents. The non placement of the vital fact that the firms had been placed in Denied Entry List (DEL) before the Detaining Authority prior to passing of detention order also vitiates the subjective satisfaction of the Detaining Authority. Petition allowed.
Issues Involved:
1. Non-placement of the fact that the subject firms were placed in the Denied Entry List (Blacklist) before the Detaining Authority. 2. Diligence of the detaining authority or executing agency or sponsoring authority in serving the detention order on the petitioner. 3. Mechanical publication of the impugned order under Section 7(1)(b) of the COFEPOSA Act and unexplained delay in service of the detention order. Issue-wise Detailed Analysis: Issue 1: Non-placement of the fact that the subject firms were placed in the Denied Entry List (Blacklist) before the Detaining Authority. The petitioner argued that the fact of the subject firms being placed in the Denied Entry List (DEL) was not presented to the Detaining Authority before issuing the detention order. This omission was critical as it foreclosed any future possibility of the petitioner indulging in prejudicial activities. The court observed that the respondents failed to ascertain the outcome of their request to the DGFT and only received intimation about the DEL orders on 16.04.2019, well after the detention order was issued. The court concluded that the non-placement of this vital fact vitiated the subjective satisfaction of the Detaining Authority. Consequently, the detention order was quashed on this ground alone. Issue 2: Diligence of the detaining authority or executing agency or sponsoring authority in serving the detention order on the petitioner. The petitioner was available for service on multiple occasions after the detention order was issued on 26.03.2019, specifically on 28.03.2019 and 05.04.2019, but the respondents failed to serve the order. The court found the respondents' explanations for non-service fallacious and noted a lack of promptitude and diligence. The respondents' failure to act with urgency and their casual approach in executing the detention order were deemed in complete defiance of constitutional mandates. The court emphasized that the purpose of a detention order is preventive, not punitive, and strict compliance with procedural safeguards is essential. The unexplained delay in serving the detention order led to the conclusion that the subjective satisfaction of the Detaining Authority was vitiated. Issue 3: Mechanical publication of the impugned order under Section 7(1)(b) of the COFEPOSA Act and unexplained delay in service of the detention order. The respondents argued that the petitioner was absconding, which justified the publication of the order under Section 7(1)(b) of the COFEPOSA Act. However, the court found this claim unsubstantiated, noting that the petitioner responded to show-cause notices and was available for service. The publication of the order in the newspaper on 11.07.2019, long after the official gazette notification, indicated a lack of urgency. The court found that the respondents' assumption that the petitioner was evading service was not credible, given the lack of serious attempts to execute the order. The delay in executing the detention order cast doubt on the genuineness of the subjective satisfaction of the Detaining Authority, leading to the conclusion that the detention order was invalid. Conclusion: The court quashed the detention order No.PD-12001/07/2019-COFEPOSA dated 26.03.2019 issued under Section 3(1) of the COFEPOSA Act on multiple grounds, including the non-placement of vital facts before the Detaining Authority, lack of diligence in serving the detention order, and mechanical publication of the order under Section 7(1)(b) of the COFEPOSA Act. The court emphasized the need for strict compliance with procedural safeguards and prompt action in executing preventive detention orders.
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