2019 (5) TMI 931 - HC - Customs

Validity of Detention order - alleged contravention of the provisions of the Customs Act, 1962 - Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - HELD THAT - This Court is in agreement with the learned counsel for respondent-Custom that the petitioner was aware of the detention order as he had made a representation to the Hon ble Lieutenant Governor, Govt. of NCT of Delhi in 2005 - This Court is also in agreement with the contention of learned counsel for respondent-Customs that the detention order could not be executed against the petitioner because he had fled to USA and after coming to India had kept changing his residential addresses in Delhi, Ghaziabad and Dehradun. However, as the petitioner had allegedly indulged in unlawful activity as far back as July, 2001 and the business of import of mobile phones is no longer lucrative and the petitioner s passport is lying expired since 2005 as well as the fact that the penalty proceedings had resulted in exoneration of the petitioner, this Court is of the view that continuing the order of detention would be an exercise in futility - In fact, this Court is of the opinion that there is no live-link today between the alleged prejudicial activities and the purpose of detention. The impugned detention order dated 28th September, 2001 passed by respondent No.2 against the petitioner is set aside - petition allowed - decided in favor of petitioner.

Summary

Issues:
1. Quashing of detention order under COFEPOSA Act based on retracted statement.
2. Execution of detention order after long delay and loss of utility.
3. Allegations of absconding and changing residential addresses.
4. Freezing of bank accounts under SAFEM (FOP) Act, 1976 and NDPS Act, 1985.
5. Examination of causal connection and live-link between prejudicial activities and detention.

Issue 1: Quashing of detention order under COFEPOSA Act based on retracted statement

The petitioner filed a writ petition seeking quashing of a detention order under COFEPOSA Act based on a retracted statement made by an individual implicating the petitioner in smuggling activities. The petitioner argued that the detention order solely relied on this retracted statement and that subsequent investigations did not reveal any involvement of the petitioner in smuggling activities. The petitioner also highlighted that a revision application had previously set aside a penalty imposed on him due to lack of evidence supporting his involvement.

Issue 2: Execution of detention order after long delay and loss of utility

The petitioner contended that the detention order had not been executed for over sixteen years, leading to the argument that it had lost its utility and should be considered lapsed. The petitioner emphasized that he was unaware of the order when it was passed and stressed that there was no intention to execute it against him as he had not been involved in any smuggling activities. The petitioner's counsel vehemently argued that the continued existence of the order was futile.

Issue 3: Allegations of absconding and changing residential addresses

The respondent, representing Customs, alleged that the petitioner absconded to the USA to evade the case's consequences and continuously changed his residential addresses to avoid detention. The petitioner was declared a proclaimed offender, further supporting the contention of evading authorities and attempting to escape legal consequences.

Issue 4: Freezing of bank accounts under SAFEM (FOP) Act, 1976 and NDPS Act, 1985

The respondent highlighted the freezing of the petitioner's bank accounts under SAFEM (FOP) Act, 1976, and NDPS Act, 1985, as a reason for filing the present petition. The petitioner had appealed before the Appellate Tribunal, resulting in an interim order in his favor, indicating ongoing legal proceedings related to financial matters.

Issue 5: Examination of causal connection and live-link between prejudicial activities and detention

The court examined the causal connection and live-link between the petitioner's alleged unlawful activities and the purpose of detention. Citing legal precedents, the court emphasized the importance of proximity in passing a detention order and scrutinized the undue delay between the prejudicial activities and the order. Ultimately, due to the absence of a live-link and causal connection, the court set aside the detention order dated 28th September, 2001, against the petitioner.

The judgment delves into the complexities of detention orders, examining issues of evidence, execution, absconding, freezing of assets, and the necessity of establishing a live-link between alleged activities and detention purposes. Through legal analysis and precedent references, the court meticulously dissects each issue to arrive at a comprehensive decision, ultimately setting aside the detention order against the petitioner.