2020 (12) TMI 4 - HC - Customs

Smuggling - detention of the petitioner - COFEPOSA Act - delay of 14 months in passing the detention order - stand of the respondents is that the Deputy Commissioner of Police, Rohini, Delhi informed the respondents vide his letter dated 3rdMarch, 2016 that several visits were made at the address of the petitioner in Rohini to execute the detention order but no one could be found - HELD THAT - The material placed before the Detaining Authority should be sufficient and the Detaining Authority ought to have scrutinized the same to reach a reasonable conclusion by due application of mind, so as to find grounds for issuing the preventive detention order stands satisfied in the present case and we do not find any blatant malice in issuance of the subject detention order dated 30th December, 2015. The next ground to challenge the impugned detention order is that there has been a long delay of 14 months in passing the detention order - HELD THAT - It is pertinent to mention here that the link between the illegal and detrimental activities of the detenue and the detention order did not break at that stage as he never deterred from indulging in the said activities even after passing of the said detention order and in being full knowledge of the same. Hence, the live link remains always active and the respondents have been able to satisfactorily explain that there was no inordinate delay in passing of the detention order which might have resulted in snapping the link between the illegal and detrimental activities of the detenue and the detention order. The next ground agitated on behalf of the petitioner is that there is variance in the subjective satisfaction of the Detaining Authority - HELD THAT - As per the respondents, there is no variance so as to confuse the detenue. All the grounds which lead to issuance of impugned detention order have been specifically laid down in the grounds of detention served upon the petitioner - In view of this and the details given in the grounds of detention, there cannot be any confusion in the mind of the petitioner/detenue, which might have deprived him of his legal right to submit his detailed representation. The next ground raised on behalf of the petitioner/detenue is that vital documents were not placed before the Detaining Authority - HELD THAT - The relevant documents which were required for subjective satisfaction of the Detaining Authority wereduly placed before the Detaining Authority for consideration and on the basis of those documents, the Detaining Authority came to a conclusion that the detention order is necessary to be issued for preventive detention of the petitioner, so as to ensure that he does not indulge in illegal and detrimental activities and copies of the said documents have been supplied to the petitioner running into more than 600 pages as stated by the learned counsel for the respondent. However, each and every document referred to but not relied upon by the Detaining Authority to reach to its subjective satisfaction is not required to be supplied to the petitioner/detenue. Learned counsel for the petitioner has also argued that there was mechanical rejection of his representation dated 20th February, 2020 whereas the contention of the learned counsel for the respondent is that the said representation made to Detaining Authority was duly considered and rejected as the said documents were neither relied upon nor there was a basis of the subjective satisfaction of the Detaining Authority - HELD THAT - When the documents asked for by the petitioner/detenue were not relied upon or are not the basis of the subjective satisfaction of the Detaining Authority, the detention order cannot be quashed on the ground that the said documents were not supplied and the representation for the supply of the said documents was rejected. Learned counsel for the petitioner has also argued that till date no prosecution has been launched in the case in hand, so his detention is vitiated - HELD THAT - Where the petitioner/detenue himself has absconded for a considerable number of years and his son, who is a co-accused, is not traceable even on date, mere fact that the hearings in the case has not started, cannot be a ground for quashing of the preventive detention order which has got no direct connection with the proceedings to be launched by DRI before Court. Ground of oral undertaking by DRI of not taking any coercive action under Customs Act, 1962 - HELD THAT - We do not agree with the learned counsel for the petitioner as mere moving an application for recall of the warrant cannot be a substitute of his personal presence before the Court on the basis of the bond executed by him before the Jail Superintendent at Vishakhapatnam. It is reiterated that the detenue has not surrendered before a Court in Delhi, where he was declared as a proclaimed offender and he failed to appear despite his undertaking, so these judgments are of no help to his cause. One last ground taken is that due to the pandemic and deteriorating medical condition of the detenue, he being a senior citizen and patient of diabetes and hypertension, he may be ordered to be released by this Court. In this regard, it is to be noted that although, the petitioner had made a representation before the High-Power Committee appointed by the High Court of Delhi for his release and has taken other steps before the Authorities, but it was not found to be a fit case for his interim release. Similar is our considered view. This Court arrives at a considered conclusion that the preventive detention order passed by the Joint Secretary, COFEPOSA under Section 3 (1) of COFEPOSA does not suffer from any illegality and is not liable to be quashed - Petition dismissed.

Summary

Issues Involved:
1. Delay in execution of the detention order.
2. Original order of detention not traceable.
3. Reliance on previous detention orders.
4. Issuance of detention order despite previous court undertakings.
5. Delay between prejudicial activity and passing of the detention order.
6. Variance in subjective satisfaction and grounds of detention.
7. Non-placement of vital documents before the Detaining Authority.
8. Mechanical rejection of the request for supply of documents.
9. Rejection of temporary release request under Section 12 of COFEPOSA Act due to the pandemic.

Detailed Analysis:

1. Delay in Execution of the Detention Order:
The petitioner argued that there was a significant delay in executing the detention order despite his surrender on 9th September 2019. The court found that the delay was due to the petitioner absconding for over four years and the procedural steps taken by the authorities to execute the order. The court concluded that the respondents took all reasonable steps to execute the detention order promptly upon learning of the petitioner’s surrender.

2. Original Order of Detention Not Traceable:
The petitioner contended that the original detention order was lost, making the detention illegal. The court held that the loss of the original order did not invalidate the detention as a scanned photocopy was provided, and missing reports were lodged. The court compared this to the reconstruction of court records and found no legal bar against executing a scanned photocopy.

3. Reliance on Previous Detention Orders:
The petitioner claimed that the reliance on previous detention orders vitiated the current order. The court clarified that while the previous orders were mentioned, the current detention order was based on new facts and circumstances. Thus, the court held that the present order was not dependent on the previous ones and was valid.

4. Issuance of Detention Order Despite Previous Court Undertakings:
The petitioner argued that the detention order was issued despite undertakings by the DRI not to take coercive action. The court found that the detention order under COFEPOSA Act was independent of the Customs Act proceedings and that the previous undertakings had no bearing on the validity of the detention order.

5. Delay Between Prejudicial Activity and Passing of the Detention Order:
The petitioner pointed out a 14-month delay between the alleged prejudicial activities and the passing of the detention order. The court found that the delay was justified due to the ongoing investigations and procedural requirements. The court held that the link between the activities and the detention order remained intact.

6. Variance in Subjective Satisfaction and Grounds of Detention:
The petitioner argued that there was a variance between the subjective satisfaction in the detention order and the grounds of detention, causing confusion. The court found no such variance and held that the grounds of detention were clearly laid out, allowing the petitioner to make an effective representation.

7. Non-Placement of Vital Documents Before the Detaining Authority:
The petitioner claimed that vital documents were not placed before the Detaining Authority. The court held that all relevant documents necessary for the subjective satisfaction of the Detaining Authority were placed and considered. The court emphasized that not every document referred to but not relied upon needed to be supplied to the petitioner.

8. Mechanical Rejection of the Request for Supply of Documents:
The petitioner argued that his request for documents was rejected mechanically. The court found that the documents requested were neither relied upon nor formed the basis of the Detaining Authority’s satisfaction. Therefore, the rejection of the request did not vitiate the detention order.

9. Rejection of Temporary Release Request Under Section 12 of COFEPOSA Act Due to the Pandemic:
The petitioner sought temporary release due to the COVID-19 pandemic and his medical condition. The court noted that the High-Powered Committee did not find his case fit for interim release. The court concurred with this assessment, considering the petitioner’s history of absconding and ongoing illegal activities.

Conclusion:
The court concluded that the preventive detention order dated 30th December 2015 did not suffer from any illegality. The habeas corpus writ petition filed by the petitioner was dismissed, and the pending applications were disposed of accordingly.