2015 (9) TMI 1192 - HC - FEMA

Petitioner challenges at pre-detention stage his detention - Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 (COFEPOSA) - smuggling of gold. - absence of live link due to time gap between the detention order dated 31st March, 2015 and the occurrence on 7th July, 2014 - Held that - While deciding the issue whether the proposed deteun has absconded, the courts would have to examine the factual matrix. - in the facts of the present case we would not like to dismiss the present petition only on the ground of abscondence. We would like to dismiss the writ petition primarily for the reason that the petitioner has not been able to make an exceptional ground, to accept the present writ petition at the pre-detention stage. It is certainly not an exceptional case, which would justify interference and exercise of writ jurisdiction without recourse to the normal and mandated statutory procedure. The aforesaid facts including the question of live link etc. could be appropriate and properly examined and decided first under the normal statutory provisions. Case for interference at the pre-detention stage under the exceptions is not made out. - Decided against the petitioner.

Summary

Issues Involved:
1. Challenge to the detention order at the pre-detention stage under COFEPOSA Act.
2. Examination of "live link" between the incident and the detention order.
3. Consideration of abscondence by the petitioner.
4. Evaluation of whether the detention order was passed on vague, extraneous, or irrelevant grounds.

Issue-wise Detailed Analysis:

1. Challenge to the Detention Order at the Pre-detention Stage:
The petitioner challenged his detention under the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 (COFEPOSA) at the pre-detention stage. The court noted that the Supreme Court in Smt. Alka Subhash Gadia had established that a person is not entitled to challenge a detention order without surrendering to it. The court emphasized that judicial review at the pre-detention stage is discretionary and should be exercised sparingly and in exceptional cases. The court identified five grounds from Smt. Alka Subhash Gadia where pre-detention interference is permissible: (i) the order is not passed under the Act it purports to be; (ii) it is executed against the wrong person; (iii) it is passed for a wrong purpose; (iv) it is based on vague, extraneous, or irrelevant grounds; (v) the authority had no jurisdiction to pass the order.

2. Examination of "Live Link":
The petitioner argued that the "live link" between the incident on 7th July 2014 and the detention order dated 31st March 2015 was broken due to the time gap and his cessation of employment with M/s. Minar Travels Pvt. Ltd. The court discussed the concept of "live link," emphasizing that unreasonable and unexplained delay can vitiate a detention order, as preventive detention is based on the prognosis that past conduct justifies future apprehension. The court referred to Subhash Popatlal Dave (1) and (2), noting that "live link" refers to the connection between the incident and the detention order, as well as the time gap between the order and its execution. The court concluded that the petitioner failed to establish that the "live link" was severed, as the respondents provided explanations for the delay in collecting evidence and executing the order.

3. Consideration of Abscondence by the Petitioner:
The court examined whether the petitioner had absconded to avoid detention. The respondents argued that the petitioner was aware of the detention order and was evading arrest. The court noted that the petitioner and his wife appeared before the Enforcement Directorate but found this irrelevant as there was no evidence that the Directorate was aware of the detention order. The court emphasized that abscondence can be established even without specific orders under Section 7 of the COFEPOSA Act. The court found that the petitioner had indeed absconded, as he was not found at his residence on multiple visits by the authorities, and his wife indicated he was in Delhi.

4. Evaluation of Whether the Detention Order was Passed on Vague, Extraneous, or Irrelevant Grounds:
The petitioner contended that the detention order was based on vague and irrelevant grounds. The court reiterated that judicial review of preventive detention is limited to the legality of the subjective satisfaction of the detaining authority. The court found that the grounds for detention, including the petitioner's financial transactions with Sheikh Mohammed Javid and his role in procuring airport passes, were not vague or irrelevant. The court concluded that the petitioner failed to make an exceptional case for interference at the pre-detention stage.

Conclusion:
The court dismissed the writ petition, holding that the petitioner did not establish grounds for quashing the detention order at the pre-detention stage. The stay of arrest was withdrawn, allowing the respondents to execute the detention order in accordance with the law.