9911796707
TMI Blog2022 (5) TMI 997X X X X Extracts X X X X X X X X Extracts X X X X ..... on, as per the case of respondent No. 3, the petitioner was engaged in smuggling activities referred to in section 3(1) of COFEPOSA Act and resorted to mis-declaration of material particulars to avail undue benefits in exporting goods under MEIS Scheme. Also, the petitioner had been involved in smuggling of goods, abetting the smuggling of goods and engaging in transporting or concealing or keeping smuggled goods. Further, the Officers of Respondent No. 3 arrested the petitioner on 18.12.2018 for alleged commission of offences punishable under section 132 and 135 of the Customs Act 1962, in respect of the firms M/s C.L. International, of which the petitioner is a partner and M/s Purav International of which the petitioner is the proprietor. The petitioner is also alleged to be involved directly or indirectly in affairs of other two firms, namely, M/s Yashee Impex and M/s Gauri Global Exports and Trading. The fact remains that presence of the petitioner on 05.04.2019 before Ld. CMM has not been denied and assumption by respondents that petitioner would not appear, is an afterthought. In the facts and circumstances, the respondents cannot be absolved of their conduct of non taking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EPOSA dated 26.03.2019 issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) to detain the petitioner in custody for a period of one year. The petitioner also challenges the further order under Section 7(1)(b) of the COFEPOSA Act, 1974 issued on 21.05.2019 directing the petitioner to appear before the Commissioner of Police, NCT of Delhi within seven days of the publication of the order dated 21.05.2019 in the official gazette i.e. on or before 28.05.2019 but published in newspapers only on 11.07.2019. 2. Respondent No.1 is the Union of India/Central Government which issued the impugned order under Section 7 of the COFEPSA Act, 1974 (hereinafter referred to as the Act ), pursuant to impugned detention order under Section 3(1) of the Act, 1974 issued by the Detaining Authority (i.e. respondent No.2). The respondent No.3 is the Directorate of Revenue Intelligence, New Delhi- the Sponsoring Authority, on whose proposal the detention order is issued against the petitioner. Respondent No.4 is the Commissioner of Police, Delhi, before whom the petitioner has been directed to appear as per the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctively prevented from acting in any prejudicial manner. The said vital fact exhibits lack of any genuine and real 'necessity' to again apprehend and detain him, now for alleged preventive purpose. d) That if the orders dated 21.12.2018 and 24.12.2018 obtained by the respondent No.3 from the office of DGFT showing the fact of placing of all the subject firms in the Denied Entity List (Black List) on 21.12.2018 and 24.12.2018 which had foreclosed any future possibility of the petitioner indulging in any of the alleged prejudicial activities, were not placed before the respondent No.2; it would axiomatic that non-placement of such vital documents, having a significant and direct bearing on the subjective satisfaction, was mala fide, illegal and erroneous on the part of the Sponsoring Authority. Consequently, the subjective satisfaction of the Detaining Authority regarding necessity to detain is vitiated for non-application of mind on the relevant and vital documents having a significant and direct bearing on the subjective satisfaction. e) That the powers under preventive detention law have been exercised mechanically without any sense of urgency to detain, in a w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 3(1) as well as the impugned Order dated 21.05.2019 issued under Section 7(1)(b) of COFEPOSA Act. h) That the impugned orders are liable for judicial scrutiny and review inter alia in the context of relevance, reasonableness, fairness, necessity to detain, nexus with the alleged pre-judicial activity, natural justice, equality, non-discrimination and compliance of all procedural safeguards. It is incumbent on the part of the Respondents to also satisfy this Court, by producing records for perusal of this Court and by placing adequate details in their reply that:- i. The proposal for detention of the petitioner was sent by the Sponsoring Authority to the concerned Detaining Authority as early as possible, and in any case within a period of 15 days from gathering such evidence, as was considered adequate by them to detain the petitioner, ii. No vital material and information having a definite bearing on subjective satisfaction for necessity to detain, including DEL Orders, has been suppressed by the Sponsoring Authority from the Detaining Authority, and were placed before the Detaining Authority with the proposal to issue Detention order; iii. The Detaining Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional affidavit filed on behalf of the petitioner, additional ground has also been taken that Section 7(1)(a) and 7(1)(b) of COFEPOSA Act contemplates the issuance of order under Section 7(1)(a) and 7(1)(b) by the Appropriate Government . The Appropriate Government under Section 2(a) of the COFEPOSA Act implies either the Central Government or the State Government, and in the instant case, it is the Central Government. It is submitted that order dated 21.05.2019 passed purportedly under Section 7(1)(b) of the COFEPOSA Act feigns satisfaction of the Central Government on reasons to believe that the petitioner had absconded or has been concealing himself. Further, from the affidavits filed by the respondents and order dated 21.05.2019, the alleged competent authority i.e. Shri Ravi Pratap Singh, Joint Secretary, CEIB in Ministry of Finance, is specially empowered by the Central Government under sub-section (1) of section 3 of COFEPOSA Act and vide impugned detention order dated 26.03.2019, he directed that the petitioner be detained. It is further submitted that the said competent authority usurped the jurisdiction of the Appropriate Government i.e. the Central Government in issuin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Salt were being exported in the guise of Whey Flour, Flour of Others (Almo) i.e. Almond Flour and Milk Powder, to avail ineligible benefit under MEIS. It was pointed out that MEIS was made applicable @10% to certain dairy products under Chapter-4 of ITC HS Code, including Whey Powder and Milk Powder vide DGFT Public Notice No.23/2015-2020 dated 13.07.2018 which was further enhanced to 20% vide DGFT Public Notice No.41/2015-2020 dated 27.09.2018. b) It was submitted that the petitioner was found involved, through entities in his name and in the name of others (viz. M/s Yashee Impex, M/s. Gauri Global Exports . Trading and M/s C.L International), in export of low value goods i.e. Wheat Flour ('Maida'), Common Salt by mis-declaring the same as high value goods i.e. Whey Flour, Flour of Others (Almo) i.e. Almond Flour and Milk Powder to avail ineligible export benefit under MEIS (@ 20% of Declared Value). During the course of investigation, 25 containers worth declared FOB value of Rs. 21.8 Crores (approx.) having MEIS benefit worth Rs. 4.14 Crores (approx.) being exported by three exporters named above were intercepted by DRI. Investigation revealed that the Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of this Respondent was present on next date of hearing on 30.03.2019 but the petitioner was not present. The Counsel of Respondent No.3 in the Ld. CMM Court informed in writing that on 30.03:2019, reply to the application could not be filed on that date as the Presiding Officer was not in his chair on 30.03.2019 and that it is wrongly recorded in the order sheet that DRI had sought more time to file reply. f) That the petitioner is misleading this Court that he withdrew his application on 05.04.2019 and it is a matter of record that the application before the Ld. CMM, New Delhi, to withdraw his application for release of passport is dated 01.04.2019. Further, on 04.04.2019, Respondent No.3's Counsel in Ld. CMM Court informed the Respondent No.3 that the said application for release of passport had been dismissed as withdrawn on 04.04.2019 by the petitioner. Since the Respondent No.3 was intimated by its Counsel on 04.04.2019 itself that the said application had been dismissed as withdrawn, the officers of Respondent No. 3 did not attend any further proceedings in the matter of the petitioner's application before the Ld. CMM for release of passport. g) It is sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Ld. Trial Court. j) That due efforts had been made by the Sponsoring Authority to get the detention Order executed, but the same could not be done due to intentional avoidance of the law by the Petitioner. Moreover, Order dated 21.05.2019 under Section 7(l)(b) of Act was published in the Official Gazette on 21.05.2019 itself and that on request of Respondent No. 2 (the issuing authority), the same order was also got published by Respondent No. 3 in local newspapers i.e. The Hindustan Times dated 11.07.2019 in English and in Dainik Jagaran dated 11.07.2019 in Hindi after observing due formalities. k) It is submitted that prompt action had been taken in accordance with law. However, the petitioner attempted to mislead the Court by surreptitiously re-phrasing preferable actions as mandatory. For Instance, as per para B.8 of the 'Handbook on Compilation of Instructions issued on COFEPOSA matters from July, 2001 to February, 2007' referred to in Ground F of the petition under reply, detention proposal should be sent as early as possible but preferably within 15 days from gathering such evidence, as will be adequate to detain the person..., whereas the same g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guishable. 12. Respondent No.4, in brief, in the counter-affidavit submitted that on 27.03.2019 the Office of answering respondent received a detention order dated 26.03.2019 from the Directorate of Revenue Intelligence whereby the petitioner was directed to be detained. The constituted teams made extensive searches to arrest the petitioner but were of no avail. No clue could be found of the petitioner and his father was intimated of the warrant of arrest issued against the petitioner. It was secretly revealed that the petitioner had absconded with his family and wife to an unfamiliar place. The order dated 21st May 2019 issued vide F.N. PD12001/07/2019 COFEPOSA was pasted outside the residence of the petitioner but he did not appear before the Commissioner of Police. 13. Rejoinder was further filed on behalf of the petitioner to common counter-affidavit filed on behalf of respondents No. 1 2 as well as counter-affidavit filed on behalf of respondent No.4. DISCUSSION CONCLUSIONS 14. To appreciate the contentions raised by the petitioner as well as the respondents, the following issues need to be considered. (i) Whether non placement of the fact before the De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Alka Subhash Gadia case [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] also emphasised in particular that it was well settled that Article 22(5) is not the sole repository of the detenu's rights. His rights are also governed by the other fundamental rights, particularly those enshrined in Articles 14, 19 and 21 of the Constitution and the nature of constitutional rights thereunder. Their Lordships were of the view that read together the articles indicate that the Constitution permits both punitive and preventive detention, provided it is according to procedure established by law made for the purpose and if both the law and the procedure laid down by it are valid. Going on to consider the various decisions rendered by this Court in this regard, Their Lordships in para 5 observed as follows: ( Alka Subhash Gadia case [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] , SCC p. 503) 5. The neat question of law that falls for consideration is whether the detenu or anyone on his behalf is entitled to challenge the detention order without the detenu submitting or surrendering to it. As a corollary to this question, the incidental question that has to be answered is whether the detenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows: ( Alka Subhash Gadia case [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] , SCC p. 521, para 30) 30. The courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number viz. where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question. 45. Nowhere in Alka Subhash Gadia case [1992 Supp (1) SCC 496 : 1992 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00) 8 SCC 630 : 2001 SCC (Cri) 56], we have not been able to read into the judgment in Alka Subhash Gadia case [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] any intention on the part of the Hon'ble Judges, who rendered the decision in that case, that challenge at the pre-execution stage would have to be confined to the five exceptions only and not in any other case. Both the State and the Hon'ble Judges relied on the decision in Sayed Taher Bawamiya case [(2000) 8 SCC 630 : 2001 SCC (Cri) 56]. As submitted by Mr Rohatgi, to accept that it was the intention of the Hon'ble Judges in Alka Subhash Gadia case [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] to confine the challenge to a detention at the pre-execution stage, only on the five exceptions mentioned therein, would amount to imposing restrictions on the powers of judicial review vested in the High Courts and the Supreme Court under Articles 226 and 32 of the Constitution. The exercise of powers vested in the superior courts in judicially reviewing executive decisions and orders cannot be subjected to any restrictions by an order of the court of law. Such powers are untrammelled and vested in the superior courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion was fit to be quashed and set aside and merely the length of time and liberty to challenge the same at the pre-execution stage which obviated the execution of the order of preventive detention cannot be the sole consideration for holding that the same is fit to be quashed. When a proposed detenu is allowed to challenge the order of detention at the pre-execution stage on any ground whatsoever contending that the order of detention was legally unsustainable, the Court will have an occasion to examine all grounds except sufficiency of the material relied upon by the detaining authorities in passing the order of detention which legally is the most important aspect of the matter but cannot be gone into by the Court as it has been allowed to be challenged at the pre-execution stage when the grounds of detention have not even been served on him. 49. The question whether the five circumstances specified in Alka Subhash Gadia case [Govt. of India v. Alka Subhash Gadia, 1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] are exhaustive of the grounds on which a pre-execution scrutiny of the legality of preventive detention order can be undertaken was consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ords, mis-declaration regarding the import or exports of any goods is not a cognizable offence. However, such misdeclaration is a non bailable offence under clause C of sub section 6 of section 104 of Act. Thus, the offence in relation to mis-declaration of value of the imported or exported goods is a non-cognizable and non-bailable offence. No fruitful purpose would be served by keeping accused in custody any longer. In the given facts and circumstances of the case, accused Abhishek Gupta is granted bail on his furnishing a personal bond in the sum of Rs.1,00,000/- with one surety of the like amount subject to conditions that accused shall submit his passport in the court and shall not leave the country without prior permission to the court. The accused persons shall not temper with the investigation or the evidence and shall join the investigation as and when required. .. 20. Further, the crucial fact to be noticed is that on 18.12.2018 itself the office of respondent No. 3 vide letter DRI.F No. DRI/11Q-C1/50D/EN23/2018, informed the DGFT that during examination of live exports consignments of some of the exporters, prima facie, mis-declaration in description ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention order is liable to be quashed on this ground alone as the subjective satisfaction of the Detaining Authority in issuing detention order stands vitiated. In view of above, Issue No.1 is decided in favour of the petitioner. 21. It may further be noticed that the petitioner, after his initial production for purpose of remand on 19.12.2018 was released on bail on 24.12.2018. The petitioner was thereafter present before the learned CMM on 28.03.2019 as recorded in order dated 28.03.2019 with reference to application for release of passport and permission to go abroad as per application filed by him. Shri Satish Aggarwal, learned Special PP was present on the date of hearing along with Ms. Pooja Bhaskar, counsel for DRI and sought time to file reply. However, no efforts were made by the respondents to serve the detention order dated 26.03.2019, despite the availability of the petitioner. Thereafter, the application for release of passport was further fixed for reply and arguments, on 30.03.2019 before the learned ACMM and on the aforesaid date, the matter was further put up for reply and arguments for 05.04.2019 at request of learned Special PP for DRI in presence of learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention order soon after the same was made and the same is in complete defiance of constitutional mandate. The purpose of a detention order is preventive in nature and not punitive. As such, strict compliance of the procedural safeguards is fatal to the case of respondents as there was no diligent effort to serve the detention order. 23. Observations in Mohd. Farook v. Joint Secretary to Govt. of India, (2000) 2 SCC 360 are also apt to be noticed in this regard:- 27. In A. Mohd. Farook (supra), the detention order was passed on 25.02.1999, however, it was executed by the Detaining Authority on 05.04.1999. Although the detenue was present in the Court of Addl. Chief Metropolitan Magistrate on 25.02.1999 and 25.03.1999, but neither the Detaining Authority, nor the Executing Authority served the detention order on the detenue, at the earliest. In these circumstances, the Supreme Court held as follows: 9. There is catena of judgments on this topic rendered by this Court wherein this Court emphasised that the detaining authority must explain satisfactorily the inordinate delay in executing the detention order otherwise the subjective satisfaction gets vitiated. Since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Government has reason to believe that a person in respect of whom a detention order has been made has absconded or is concealing himself so that the order cannot be executed, that Government may- (a) make a report in writing of the fact to a Metropolitan Magistrate or a Magistrate of the First Class having jurisdiction in the place where the said person ordinarily resides; and thereupon the provisions of Sections 82, 83, 84 and 85 of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply in respect of the said person and his property as if the order directing that he be detained were a warrant issued by the Magistrate; (b) by order notified in the Official Gazette direct the said person to appear before such officer, at such place and within such period as may be specified in the order, and if the said person fails to comply with such direction, he shall, unless he proves that it was not possible for him to comply therewith and that he had, within the period specified in the order, informed the officer mentioned in the order of the reason which rendered compliance therewith impossible and of his whereabouts, be punishable with imprisonment for a term which may ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in executing the detention order, failing which the subjective satisfaction get vitiated. Reliance may be placed upon Boris Sobotic Mikolic v. Union of India Ors. 2018 SCC OnLine Del 9363. On the face of record, there has been a casual approach by the respondents in issuing as well as executing the detention order, by overlooking the instructions, settled procedural safeguards and cardinal principle that such an order is to be passed in rare circumstances. Such action requires utmost promptitude and strict compliance with the procedural safeguards to sustain the validity of the detention order, which is lacking in the instant case. Thus, when there is unsatisfactory and unexplained delay between the order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner. 27. Reference may also be made to the procedural safeguards circul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 issued but to have a person detained otherwise the very object of issuing the detention order gets defeated. 6. All the Sponsoring Authorities, Executive Authorities and the Detaining Authorities are once again requested that they must ensure that timely action is taken for execution of the detention order after it has been issued. Simultaneously, they should keep detailed records of the efforts made for execution of the Detention order from time to time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g delay between the prejudicial activities and the passing of detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the causal connection has been broken in the circumstances of each case. 11. Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner. 22. The delay caused in this case in issuing the order of detention has not been explained. In fact, no reason in that behalf whatsoever has been assigned at all. 24. A Division Bench of this Court in K.S. Nagamuthu v. State of T.N. [(2006) 4 SCC 792 : (2005) 9 Scale 53 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SA Act. 30. On the other hand, it has been contended on behalf of the respondents that powers vested in the Central Government under Sub-section 1 of Section 7 under the COFEPOSA Act, 1974 have been delegated to the Joint Secretary (COFEPOSA) i.e. the Detaining Authority. It is denied that the Competent Authority usurped the jurisdiction of the Appropriate Government i.e. Central Government. The action taken under Section 7 (1)(b) is stated to be in total sync with the powers vested with the Joint Secretary (COFEPOSA) i.e. the Detaining Authority under Sub-section 1 of Section 7 under the COFEPOSA Act, 1974 in terms of delegation made in the Gazette Notification dated 16.08.2018. The case law cited by the petitioner is further stated to be not applicable in the facts and circumstances of the present case and distinguishable. 31. It may be appropriate to reproduce the Notification dated 16.08.2018 issued by the Ministry of Finance, Department of Revenue, which reads as under:- MINISTRY OF FINANCE (Department of Revenue) (Central Economic Intelligence Bureau) ORDER New Delhi, the 16th August, 2018 S.O. 4045 (E). - In pursuance of prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the detaining authority ought to defer consideration of such representation till the report is received from the Advisory Board. 33. With reference to the first issue, whether a representation can independently be made to and must be considered by the Detaining Authority who is specially empowered Officer of the Government concerned, it was observed that the apparent conflict in State of Maharashtra Vs. Sushila Mafatlal Shah, (1988) 4 SCC 490 and Amir Shad Khan Vs. L. Hmingliana, (1991) 4 SCC 39 came up for consideration before a Constitution Bench of the Supreme Court in Kamleshkumar Ishwardas Patel Vs. Union of India, (1995) 4 SCC 51 and the Supreme Court did not accept the law laid down in Sushila Mafatlal Shah (supra). It was accordingly observed in para 13 in Ankit Ashok Jalan (supra) as follows:- 13. With the judgment of the Constitution Bench of this Court in Kamleshkumar, the law on the first issue is well settled that where the detention order is made inter alia under Section 3 of the COFEPOSA Act by an officer specially empowered for that purpose either by the Central Government or the State Government, the person detained has a right to make a represen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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