2015 (2) TMI 260 - HC - FEMA

Quashment of the detention order passed under Section 3(1) (i) & 3 (1) (iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 against Mr. Rameshwar Sharma (detenue), the petitioner s husband, and a direction to set at liberty the detenue from detention - Held that - In the matter at hand, after the alleged seizure of red sanders from possession and custody of the detenue on 28/29.09.2013, and conduct of investigation, the complaint was filed under Section 132 and 135 of the Customs Act on 28.11.2013. Thus, the investigation was complete by the said date. Further, the show cause notice under the Customs Act was issued to the detenue on 24.03.2014, which clearly establishes that the material evidence required for passing of the detention order was available with the Detaining Authority. However, inspite of the same, the detention order was not passed till 25.07.2014. The detention order was passed after a delay of about 8 months, which has defeated the purpose of the detention as it was to prevent the detenue from acting in a prejudicial manner by indulging in the prohibited trade. Thus, the live link had already broken by the time the detention order was passed belatedly on 25.07.2014. There is no satisfactory or convincing explanation brought on record by the respondents to explain the aforesaid delay. It is evident from the facts of the case that the detenue informed the sponsoring authority about his illness, and that he was confined to his bed on 05.08.2014 and, thereafter, made regular correspondence with the sponsoring authority. Again, he personally appeared before the Sponsoring Authority on 14.08.2014. The above circumstances clearly establish the availability of the detenue at his residence and on one occasion, even before the Sponsoring Authority. Despite this the detention order was not served upon the detenue. The respondents have not disclosed any attempt made to serve the detention order soon after it had been made. It is not the respondents case that the detenue was avoiding service of the detention order. - Detention order quashed - Decided in favour of appellant.

Summary

Issues:
Challenge to detention order under COFEPOSA Act - Delay in passing detention order - Execution of detention order

Analysis:
The petitioner filed a writ petition under Article 226 of the Constitution of India to challenge a detention order passed under Section 3(1)(i) & 3(1)(iii) of the COFEPOSA Act against the detenue, seeking quashing of the order and release of the detenue.

The detention order was based on the detaining authority's satisfaction to prevent the detenue from smuggling goods, particularly red sanders, a prohibited item under CITES. The grounds of detention mentioned the involvement of a syndicate in illegal activities related to red sanders.

The detenue's statement, arrest under the Customs Act, and subsequent legal proceedings were detailed, including the issuance of a show cause notice and bail granted after seven months. The detention order was passed in July 2014, and the detenue was arrested and lodged in Tihar Jail.

The petitioner challenged the detention order primarily on two grounds: delay in passing the order and its execution. The court noted a significant delay of about 8 months between the completion of investigation and passing of the detention order, which was deemed to have broken the live link necessary for preventive detention. The court found no satisfactory explanation for this delay.

Regarding the execution of the detention order, it was highlighted that the order was served to the detenue after 26 days and not during his appearance before the court, which was considered fatal to the case. Despite the detenue's availability and correspondence with the sponsoring authority, the order was not promptly served, and no attempt was made to do so.

Considering the delay in passing the detention order and its flawed execution, the court allowed the writ petition, quashing the detention order and ordering the detenue's immediate release. The judgment also referenced a similar case for detailed analysis of the grounds challenging the detention order.