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2014 (12) TMI 942 - HC - CustomsDetention order passed under Section 3(1) (i) & 3(1) (iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Attempt to smuggle red sanders - Commission of an offence under Section 132, 135(a), 135(b) and 135(c) of the Customs Act, 1962 - Held that:- There was unexplained delay in passing of the detention order. After the alleged seizure of red sanders from the possession and custody of the detenue on 28/29.09.2013 and conduct of investigation, the complaint was filed under Section 132 and 135 of the Customs Act on 28.11.2013. Thus, the investigation was complete by the said date. - detention order was passed after a delay of about 8 months, which has defeated the purpose of the detention as it was to prevent the detenue from acting in a prejudicial manner by indulging in the prohibited trade. Thus, the live link had already broken by the time the detention order was passed belatedly on 25.07.2014 After the detenue was granted bail on 25.02.2014. Although the Central Screening Committee had considered the proposal for preventive detention, and approved it on 12.02.2014, the Detaining Authority filed for cancellation of bail rather than passing the detention order to prevent the detenue from carrying out such prejudicial activities. Further, there are no valid reasons disclosed by the respondents as to why the detention order was passed only on 25.07.2014, i.e. after about 5 months of grant of bail when the proposal was approved by the Central Screening Committee on 12.02.2014. The Detaining Authority even delayed the execution of the detention order passed on 25.07.2014. The detenue was served with the same only on 13.08.2014 i.e. after about 19 days. It is evident from the facts of the case that the detenue had been available all along; rather he even attended the hearing in the prosecution case on 04.08.2014, when he could have been served with the detention order. The respondents have not disclosed that any attempt was made to serve the detention order soon after it had been made. It is not the respondents case that the detenue was avoiding service of the detention order. In fact, the same was served upon him at his residence. - The purpose of a detention order is preventive in nature and not punitive. Therefore, there must be strict compliance of the procedural safeguards in every case of preventive detention. Detenue appeared in the Court of CMM, Jaipur on 04.08.2014. There is absolutely no explanation offered as to why the detention order was not served upon him on the next date. The respondents have themselves tendered in Court a time chart showing the chronological sequence of events in respect of the detenue. In this chronological chart at sl. No.108, it is disclosed that on 01.08.2014, a letter was written by SA to DGP Rajasthan with a copy to the Ministry, informing that if the detention order has not been executed till then, the same could be executed against the detenue on 04.08.2014 when he had to appear before the CMM, Jaipur. In this background, the failure of the respondents to serve the detenue with the detention order on 04.08.2014 is, in our view, fatal. The service of GoD and the RuD is a constitutional right and communication of the same has to be made within the prescribed period to enable the detenue to make a representation. Only in cases where there are exceptional circumstances does the law permit extension from the prescribed period of 5 days upto 15 days. In the present case, the so called exceptional circumstances furnished by the respondent have been set out herein above. In our view, the same cannot, under any circumstance, be classified as "exceptional circumstances". Admittedly, the detaining authority was informed of the execution of the detention order on 14.08.2014. Merely because the ADJ (COFEPOSA) was then on Kolkata for attending a hearing before the Advisory Board in another matter cannot be an excuse for the detaining authority in not taking steps for service of the GoD and the RuD upon the detenue at the earliest and positively within the period of 5 days. It is not the respondents case that apart from the ADJ (COFEPOSA), there are no other officers working in the office of the detaining authority. The failure of the executing authority to intimate the sponsoring authority of the detention of the detenue on 13.08.2014 cannot be cited as an excuse to defeat the fundamental rights of the detenue. With regard to delay in furnishing of the Hindi translation of the RuD is concerned, we may observe that the respondents have pointed out that on earlier occasions, the detenue had addressed letters in English and even stated that he can read, write and understand English language. Thus, it appears that there is a real controversy as to, whether or not the detenue bonafidely required translations of the GoD and the RuD to be able to make an effective representation. We do not propose to get into this aspect in the light of the aforesaid discussion, since the detention cannot be sustained on account of serious infirmities - firstly, on account of passing of the detention order; secondly, on account of delay in execution of the detention order, and; thirdly, on account of delay in service of the GoD and the RuD upon the detenue post the detention. - Decided in favour of assesse.
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