2005 (2) TMI 912 - HC - Customs

Summary

Issues Involved:
1. Delay in execution of the detention order.
2. Delay in consideration of the representation.
3. Validity of the detention order based on the materials placed before the Detaining Authority.

Detailed Analysis:

1. Delay in Execution of the Detention Order:
The Petitioner contested the delay of nearly two years and seven months in serving the detention order, arguing that this delay impaired the satisfaction of the Detaining Authority, rendering the order null and void. The Petitioner cited cases like K.P.M. Basheer v. State of Karnataka and Narendra Punjabhai Shah v. Union of India to support the argument that unexplained delays invalidate detention orders.

The Respondents explained that the order was sent to Kerala, the detenu's ordinary residence, immediately after issuance. Despite multiple efforts, including sending a wireless message and recalling the papers to Mumbai, the detenu could not be located. Actions under Section 7(1) of the COFEPOSA Act were initiated, but the detenu remained absconding until he surrendered in September 2004.

The Court found the Respondents' explanation satisfactory, noting that the detenu was absconding and avoided service. The Court distinguished this case from K.P.M. Basheer and Narendra Punjabhai Shah, where the detaining authorities failed to make genuine efforts to arrest the detenu. The Court held that the live link between the grounds of detention and the purpose of detention had not snapped, and thus, the delay did not invalidate the order.

2. Delay in Consideration of the Representation:
The Petitioner argued that the State Government delayed considering the representation, violating Article 22(5) of the Constitution. The representation dated 2.11.2004 was allegedly not considered promptly by the State Government.

The Respondents countered that the representation was processed promptly, considering intervening holidays and non-working days. The Commissioner of Customs called for comments on 5.11.2004, received them on 9.11.2004, and submitted parawise comments by 17.11.2004. The State Government received the Advisory Board's opinion on 20.11.2004 and rejected the representation on 25.11.2004.

The Court, referencing Union of India v. Sneha Khemka, emphasized that representations must be disposed of within a reasonable time. Given the holidays and the time taken to gather necessary comments, the Court found the delay reasonable and satisfactorily explained. The Court rejected the contention that the State Government's decision was influenced by another authority's decision, finding no evidence to support this claim.

3. Validity of the Detention Order Based on the Materials Placed Before the Detaining Authority:
The Petitioner contended that the materials did not justify the conclusion that the detenu's activities were prejudicial to the augmentation of foreign exchange. The detenu was found with foreign and Indian currency worth Rs.12,87,252/- while traveling to Dubai, without declaring it to Customs Authorities.

The Respondents argued that the detenu's possession of undeclared foreign currency, exceeding permissible limits, and his failure to deposit part of it within the stipulated time, indicated activities detrimental to the augmentation of foreign exchange. The Court agreed, noting that the detenu's actions amounted to an attempt to drain foreign exchange from the country, justifying the detention order.

Conclusion:
The Court dismissed the petition, finding no merit in the arguments regarding delay in execution and consideration of the representation, and upheld the validity of the detention order based on the materials presented. The petition was dismissed, and the rule was discharged with no order as to costs.