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TMI Blog2019 (8) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... der was based on extraneous reasons cannot be examined - petition dismissed. - W.P.(CRL) 3008/2018 & CRL.M.As. 33406/2018, 2262/2019 & 2271/2019 - - - Dated:- 5-8-2019 - MR. MANMOHAN AND MS. SANGITA DHINGRA SEHGAL JJ. Petitioner Through: Mr. Varun Singh, Advocate with Mr. Lenin Raj K., Advocate. Respondents Through: Mr. Rajesh Gogna, CGSC with Mr. Kamaldeep and Mr. P. Updendra Sai, Advocates for respondent No.1 and 2 with Mr. Sanjay Kumar, Superintendent, Customs Patna. J U D G M E N T MANMOHAN, J: 1. Present petition has been filed by Pankaj Kumar Sharma challenging the legality and validity of the Preventive Detention order dated 9th April 2018 passed against him by Respondent No. 2 under Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (hereinafter referred to as COFEPOSA) and all other proceedings emanating therefrom. The petitioner prays for issuance of a writ in the nature of certiorari for setting aside the said order. ARGUMENTS ON BEHALF OF LEARNED COUNSEL FOR THE PETITIONER 2. Mr. Varun Singh, learned counsel for the petitioner stated that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the counter affidavit dated 25th October 2018, which are reproduced hereinbelow:- Sl.No. Case No. Date of issuance of Summons Whether appeared or not 1 18/12-13 dated 28.12.12 30.12.2012 Not appeared 2 05/14-15 dated 17.07.14 18.07.2014 Not appeared. 21.08.2014 Personally served but not appeared. 22.09.2014 Not appeared. 3 01/15-16 dated 15.04.15 07.05.2015 Personally served but not appeared. 29.05.2015 Not appeared. 10.07.2015 Not ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... To Avoid Delay In Execution Of Detention Order . The relevant portion of the same is reproduced hereinbelow- 4. Despite these clear instructions, instances have come to the notice of this Ministry where even though the detenu was available at his own address, no real effort had been made to locate the detenu and execute the detention order. The Hon ble Supreme Court has held in a number of cases that if the authorities did not make sincere and honest efforts and take any urgent or effective steps the service of the detention order on the detenu, the order of the detention is liable to be set aside. 5. It is generally noticed that the Sponsoring Authorities who originally move the proposal, somehow develop a lax attitude after a detention order based on their proposal has been issued. They tend to harbour a feeling that they have no further role in the matter and it is entirely for the Detaining Authority and the Executive Authority to ensure that the Detention Order is served. This wrong notion needs to be dispelled forthwith. The Sponsoring Authority must keep in mind the fact that their role and object is not confined merely to having a detention order issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has reason to believe that a person in respect of whom a detention order has been made, is absconding, or is concealing himself so that the order cannot be executed, the Government may take recourse to the provisions of Sections 82, 83, 84 and 85 of the Code of Criminal Procedure (sic in respect of the said person) and his property, as if the order directing him that he be detained were a warrant issued by the Magistrate. Section 7(1)(b) also provides for penal consequences, in the event directions given thereunder, are not complied with by the proposed detenu. Accordingly, Section 7 empowers the Government to take recourse to either the provisions of the Code of Criminal Procedure relating to absconding persons or pass an order directing the person concerned to appear before the officer concerned and on the detenu's failure to do so, to inflict punishment with imprisonment for a term which could extend to one year or with fine or both. 100. The provisions of Sections 6 and 7 of the National Security Act, 1980, are identical to the provisions of Sections 6 and 7 of the Cofeposa Act, 1974. 101. In my view, the said provisions clearly enumerate the powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following cases, wherein the Petitioner s appeal had been dismissed:- a. 19/Cus/JC/MUZ/16-17 dated 01.11.2016 Party appeal dismissed by Commissioner (Appeal) vide O-In-A No. 163/Pat/Cus/Appeal/2018 dated 30.01.18 b. 23/Cus/JC/Muz/16-17 dated 09.12.2016 Party appeal dismissed by Commissioner (Appeal) vide O-In-A No.144-146/Pat/Cus/Appeal/2018 dated 04.01.18 c. 15/Cus/JC/Muz/2016 dated 26.08.2016 --Party Appeal dismissed by Commissioner (Appeal) Vide O-in-A No. 53-Pat/Cus/Appeal/2017 dated 03.10.2017 123- 25/Pat/Cus/Appeal/2017 dated 14.12.2017 d. 14-Cus/JC/FBG/16-17 dated 26.08.2016 Party Appeal dismissed by Commissioner (Appeal) vide O-in-A No.134-136/Pat/Cus/Appeal/2017 dated 03.10.2017 14. Learned counsel for the Respondent Nos.1 2 contended that there had been no delay in execution of the impugned detention order. He relied on the Additional affidavit dated 20th February 2019 filed by the Respondent Nos.1 2 wherein the steps taken by the Respondent authorities to execute the impugned order have been detailed. The relevant portion of the same is reproduced hereinbelow 5. That after the passing of the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. Learned counsel for Respondent Nos. 1 2 emphasised that the Respondent Nos. 1 2 had taken all the necessary steps to serve the impugned order upon the petitioner and that they were dependent upon the executing authority i.e. Bihar Police for the purpose of service. He stated that the steps taken between 9th April 2018 i.e. the date of the impugned order and 16th June 2018 i.e. till the service of the impugned order upon the petitioner s mother by the executing authority were recorded in the letter dated 13th February, 2019. The same is reproduced hereinbelow GOVT. OF INDIA OFFICE OF THE DEPUTY COMMISSIONER CUTOMS (Prev.) DIVISION, MUZAFFARPUR 2nd Floor, Customs Building, Imalichatti, Muazaffarpur Phone No. 0621-2212966, 2215242, Fax No. 0621-2215150 C. No. VIII(12)25-Cus/MUZ/PS/2018/1034 Dated: 13.02.2019 To, The Assistant Commissioner (Legal) Customs (H) Patna Sub: W.P.(Crl.) No. 3008 of 2008 titled as Pankaj Kumar, Sharma, COFEPOSA Absconder Vs. Union of India Ors. Before Hon ble Delhi High Court reg. Please refer to your letter C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to above subject the Detention order against Pankaj Kumar Sharma was sent to local S.H.O. for service. In compliance of which it has been informed by Md. Rafique, S.I., Sikandarpur O.P., Town-P.S. vide memo no. 132/18 dated 16.05.2018 that raids have been conducted on location for detention Pankaj Kumar Sharma, S/o Yashwant Kumar Sharma, Mohalla Balughat Brahmasthan, P.S. Town, Dist. Muzaffarpur but he was found absent. His mother has been served a copy after explaining the detention. Also it has been mentioned regarding deputation of confidential sources. For ready reference, the original copy of the report submitted by O.P. Incharge is being enclosed and being sent for perusal. Thus till now Pankaj Kumar Sharma has not been detained due to absence. The O.P. incharge has been directed to continue his efforts for his detention. Submitted for kind information. Yours faithfully Encl. As above Senior Superintendent of Police Muzaffarpur Copy to : O.P. incharge Sikandarpur, P.S. Town, Muzaffarpur for information. He is being directed to ascertain in the early detention after receipt of information and to submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laining the Detention order. It has also been mention that confidential sources have also been deputed by Local police Station head for Detention of Pankaj Kumar Sharma. Therefore, it is requested to do further necessary action under section 7(1)(B) of COFEPOSA. Enc.: As above Additional Director General of Police Crime Investigation Department Bihar, Patna Copy to Shri S.K. Gupta, Dy. Secretary, Govt. of India, Ministry of Finance, Deptt. of Revenue, Central Economic Intelligence Bureau, Janpad Bhawan, New Delhi for information with reference to his referred letter. Additional Director General of Police Crime Investigation Department Bihar, Patna 18. Consequently, according to him, there was no delay in executing the impugned detention order. COURT S REASONING THIS COURT IS OF THE VIEW THAT STEPS FOR SERVICE HAD BEEN TAKEN BY THE RESPONDENTS PROMPTLY AND THE IMPUGNED ORDER DOES NOT SUFFER FROM DELAY IN EXECUTION. 19. Having heard the counsel for the parties and having perused the Additional Affidavit dated 20th February, 2019 filed by the Respondent Nos. 1 and 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Agencies v. Union of India [(1994) 5 SCC 198], CCE v. New Tobacco Co. [(1998) 8 SCC 250] and I.T.C. Ltd. v. CCE [(1996) 5 SCC 538] is also relevant. In our view it is appropriate that this appeal is to be heard by a larger Bench. xxxx xxxx xxxx xxxx 5. The contention is - the aforesaid notification was not made available to the public at large and, therefore, on the basis of the said notification customs duty cannot be levied. The learned counsel for the appellant relied upon the decision in Pankaj Jain Agencies v. Union of India [(1994) 5 SCC 198] and the learned counsel for the respondent importer has relied upon the decision in CCE v. New Tobacco Co. [(1998) 8 SCC 250] in support of their respective contentions. xxxx xxxx xxxx xxxx 8. As against this, learned counsel for the respondent referred to the decision in CCE v. New Tobacco Co. [(1998) 8 SCC 250] , para 11 12 and emphasised that in the aforesaid case, the Court has specifically held that if publication is through a Gazette then mere printing of it in the Gazette would not be enough unless the Gazette containing the notification is made available to the public........ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o us, since the former action is so much easier to undertake. On publication of such a Notice in the Official Gazette, the Detenu's knowledge of the existence of the Detention Order will have to be presumed. Therefore, the Petitioner would have to show that he had immediately surrendered pursuant to the publication of this Notice and he may then be heard to assert that a delay had occurred which has the effect of snapping links between the incident and the passing of the Detention Order. The challenge to the Order was rejected by the High Court as well as the Supreme Court. We are satisfied with the explanation that there was no inordinate or unexplained delay in the execution of the Detention Order. In Vinod K. Chawla as well as in Sheetal Manoj Gore the Court was satisfied that keeping in view the detailed account given by the Detaining Authority that the matter was being continuously processed and considered, no delay could be attributable to the issuance of the Order of Detention. (emphasis supplied) 23. Consequently, petitioner cannot contend that he was not aware of the impugned order and/or that none of the authorities had informed him about the det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of goods valued at ₹ 8,80,000/- had been made with redemption fine of ₹ 6,00,000/. 300 kgs of Maize and paddy valued at ₹ 6,000/- used for concealment of smuggled goods had also been confiscated under Section 119 of the Customs Act, 1962 with redemption fine of ₹ 1,500/-. The vehicle bearing No. UP-78-CN-3929 valued at ₹ 16,00,000/- had been confiscated under Section 115(2) of the Customs Act, 1962 with redemption fine of ₹ 2,00,000/- and personal penalty of ₹ 1,50,000/- had been imposed upon the petitioner. 28. Also show cause notices had been issued in respect of Unit Case No. 09/2017-18 vide C. No. VIII(10)12-657/Cus/P/H/Seiz/2017/1537-41 and Unit case no. 10/2017-18 vide C.No. VIII(10)13- 674/Cus/P/H/Seiz/2017/1545-49 both dated 27th February, 2018 valued at ₹ 18,13,000/- and ₹ 1,22,01,214 respectively. 29. The handed over documents further reveal that four summons had been issued to the petitioner, namely, 05th September, 2017, 21st September, 2017, 04th October, 2017 and 18th October, 2017. However, the petitioner had neither appeared before the summoning authority nor responded by filing any written subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish a man for having done something but to intercept and to prevent him from doing so,...... (emphasis supplied) THE ALLEGATION THAT THE IMPUGNED ORDER WAS BASED ON EXTRANEOUS REASONS CANNOT BE EXAMINED AS THE PERSON AGAINST WHOM MALA FIDES HAD BEEN ALLEGED,HAD NOT BEEN IMPLEADED AS A PARTY TO THE PROCEEDING. 35. This Court is also of the view that the person, against whom mala fides are alleged, has to be impleaded as a party to the proceeding to enable him/her to answer the allegations. In the present case, even though the petitioner had alleged personal mala fides against Shri Sunil Kumar Singh, he had not impleaded him as a respondent. The Supreme Court in Ratnagari Gas And Power Private Limited Vs. RDS Projects Limited and Others, (2013) 1 SCC 524 has held as under: 27. There is yet another aspect which cannot be ignored. As and when allegations of mala fides are made, the persons against whom the same are levelled need to be impleaded as parties to the proceedings to enable them to answer the charge. In the absence of the person concerned as a party in his/her individual capacity it will neither be fair nor proper to recor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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