2021 (6) TMI 721 - HC - Customs

Detention Order - Smuggling - foreign Gold - pre-execution stage are not - respondents contend that the petitioner has resorted to litigation with a view to delay the execution of the impugned order - HELD THAT - Undoubtedly, there must be a live and proximate link between the prejudicial activities, as reflected in the grounds of detention, and the stated purpose of detention, namely prevention of those prejudicial activities. An inordinate delay has the tendency to snap the link between the detention order and its purpose. However, the mere fact that a detention order could not be executed for a certain period is not by itself a justifiable ground to quash and set aside the detention order, irrespective of the circumstances which attend its non-execution. The cause for delay is as important as its length. In fact, the cause for delay assumes critical significance. The submission on behalf of the petitioner that the live link between the prejudicial activities and the purpose of detention is snapped on account of lapse of time does not merit countenance. The material on record, on the other hand, indicates that the petitioner resorted to litigative strategy to evade the execution of the detention order. The very same order was impugned before this Court as well as Delhi High Court. For a considerable period, a restraint order was in force. No sooner the writ petition was dismissed by the Delhi High Court, the respondents initiated the proceedings under section 7 of the COFEPOSA Act before the jurisdictional Magistrate. In this backdrop, if the petitioner is allowed to urge the ground of delay, as a factor which snapped live link, it would amount to putting a premium on the disingenunity on the part of the petitioner. The submission on behalf of the petitioner that, in the intervening period, no prejudicial activity has been attributed to the petitioner does not advance the cause of the petitioner. The Competent Authority has passed the detention order on the premise that the petitioner was the prime character in the smuggling of the gold. Obviously, the petitioner has made himself scarce and is lying low. The live link between the prejudicial activity and the purpose of detention, therefore, cannot be said to have been lost. For the foregoing reasons, we are not inclined to interfere with the impugned order on the premise that now there is no live link between the prejudicial activities and the purpose of detention. - Petition dismissed.

Issues Involved:
1. Legality and validity of the detention order.
2. Delay in execution of the detention order.
3. Whether the delay has snapped the live link between the prejudicial activities and the purpose of detention.
4. Whether the authorities were diligent in executing the detention order.
5. Petitioner's alleged evasion of the detention order.

Issue-wise Detailed Analysis:

1. Legality and Validity of the Detention Order:
The petitioner challenged the legality and validity of the detention order dated 8th March 2018 under Article 226 of the Constitution of India. The petitioner argued that the detention order was based on extraneous and irrelevant material and passed for a wrongful purpose, thus falling within clauses (iii) and (iv) of paragraph 30 of the Supreme Court judgment in *Additional Secretary to the Government of India and Ors. Vs. Alka Subhash Gadia and Ors. 1992 Supp (1) SCC 496*. The court noted that the petitioner had previously made two unsuccessful attempts to challenge the detention order in both the Bombay High Court and the Delhi High Court. Therefore, the current challenge was restricted to the aspect of delay in execution and its continued utility.

2. Delay in Execution of the Detention Order:
The petitioner contended that the inordinate delay in executing the detention order rendered it unworthy of execution. The petitioner argued that the passage of time had made the purpose of the detention order, which was to prevent the petitioner from abetting smuggling of goods, otiose. The court examined the judgments in *Deepak Bajaj Vs. State of Maharashtra & Anr. (2008) 16 SCC 14* and *Maqsood Yusuf Merchant Vs. Union of India & Anr. (2008) 16 SCC 31*, which dealt with the impact of delay on the validity of detention orders.

3. Whether the Delay Has Snapped the Live Link:
The court referred to the Supreme Court's judgment in *Subhash Popatlal Dave Vs. Union of India (2014) 1 SCC 280* (Subhash-II), which held that a detention order cannot be set aside merely due to long lapse of time if the delay is attributable to the detenu's evasion. The court emphasized that the cause for delay is as important as its length and that the detenu cannot benefit from his own wrong. The court found that the petitioner had resorted to litigation to evade the execution of the detention order, thus snapping the live link between the prejudicial activities and the purpose of detention.

4. Whether the Authorities Were Diligent:
The court rejected the petitioner's claim that the authorities were not diligent in executing the detention order. The material on record indicated that the authorities had taken prompt action by moving the jurisdictional Magistrate for the issuance of a proclamation after the dismissal of the writ petition by the Delhi High Court. The petitioner was declared an absconder, and a proclamation was issued on 7th February 2020. The court concluded that the authorities had made diligent efforts to execute the order.

5. Petitioner's Alleged Evasion:
The court noted that the petitioner had made multiple attempts to avoid the execution of the detention order by resorting to litigation. The petitioner's wife initially filed a writ petition in the Bombay High Court, which was dismissed. The petitioner then filed a writ petition in the Delhi High Court and obtained an interim order preventing coercive action against him. This interim order was in force for about 15 months. The court held that the petitioner could not benefit from the delay caused by his own evasive actions.

Conclusion:
The court dismissed the petition, holding that the delay in executing the detention order was attributable to the petitioner's evasive actions and that there was no snapping of the live link between the prejudicial activities and the purpose of detention. The court found that the authorities had made diligent efforts to execute the order and that the petitioner could not benefit from his own wrong.

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