TMI Blog2006 (8) TMI 521X X X X Extracts X X X X X X X X Extracts X X X X ..... rder passed against him on 12.2.1997 under Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA ) by the Joint Secretary, Government of India, was dismissed. 2. Though the detention order was passed on 12.2.1997 but the same could be served upon the appellant after more than a year on 12.3.1998 when he was taken into custody as he was absconding. The appellant filed the writ petition under Articles 226 and 227 of the Constitution soon thereafter before the Delhi High Court which was dismissed on 27.1.1999. The appellant has already undergone the entire period of detention but he is pursuing the present appeal as he is threatened with proceedings under Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976. 3. The grounds of detention mention that the Director of Revenue Intelligence, New Delhi (for short DRI ) had received information that the appellant was indulging in large scale evasion of customs duty by importing consumer electronic goods at grossly under-invoiced prices and by circumventing Import and Export Policy and remitting payments for the same through illegal channels. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order are not placed before or are not considered by the detaining authority, it would vitiate its subjective satisfaction rendering the detention order illegal." Reliance is also placed on Ayya v. State of U.P. (1989) 1 SCC 374, wherein it was held : "There would be vitiation of the detention on grounds of non-application of mind if a piece of evidence, which was relevant though not binding, had not been considered at all. If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind which, in turn, vitiates the detention. The detaining authority might very well have come to the same conclusion after considering the material; but in the facts of the case the omission to consider the material assumes materiality." Substantiating his argument learned counsel for the appellant has also relied upon Sita Ram Somani v. State of Rajasthan (1986) 2 SCC 86, wherein it was observed that it was for the detaining aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , several incriminating documents were recovered from the premises listed at Sr. No.1, 3 and 6 which are resumed by the officers for further investigation. In the premises listed at Sr. No.7 above imported goods of foreign origin valued at Rs.14.83 lakhs were recovered which were detained pending further enquiries as the functionaries present could not produce any documents for lawful importation and acquisition of the said goods. In a subsequent search carried out on 11.12.97, at the premises listed at Sr. No.6, several goods viz. speakers, cabinets, connectors and AT T Cables, all the foreign origin valued at Rs.35 lakhs approximately were also recovered from the basement of the said premises. These were also detained pending further enquiry, and were subsequently seized on 17.12.1996 under Section 110 of the Customs Act, 1962 as no person, including you could produce any documents for legal import depicting their correct and true value. 5. In your statement recorded on 19.12.96 under Section 108 of the Customs Act, 1962 you inter alia stated that initially you started doing business in purchase and sale of electronic components under a firm named M/s WINGS Electronics, 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the officers of DRI scrutinized the documents which were recovered from your various premises, as a result of searches conducted on 10.12.96. Scrutiny of records resumed from the business premises of M/s CONNECTRONICS AND CABLES Pvt. Ltd. revealed gross under valuation of the items viz. connectors imported by the company from Taiwan. It was found that all the goods imported by the said company since 1994 were supplied by a single supplier, namely, M/s MIRTEX ENTERPRISES (HK) LTD., Taiwan. Investigations revealed that this was a branch office with the main office at Hongkong. 13. On correlating the price of the items shown in the invoices of M/s MIRTEX which were declared to customs for duty purposes, with their quotation/proforma invoice, it was observed that the goods were under valued to the extent of approx 1/5th of the actual quoted price. From the respective bills of entry 9, in number regarding which the exercise of correlation has been carried out so far it was found that the firm had evaded customs duty to the tune of Rs.25 lakhs approx by way of such under invoicing. 14. Mr. Asheesh Chawla, your son and Managing Director of the said firm, was summoned on 07.01.97 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beating. I have been maltreated and subjected to deep humiliation. I have not been provided anything to eat for the last one day. I was not permitted to sleep or drink any water. Sd/- ( Ashish Chawla ) 8.1.97" 7. The grounds of detention are very detailed and long and run into 35 paragraphs and several pages. They refer to the documents recovered from business premises of M/s Connectronics and Cables Pvt. Ltd., M/s Wings Electronics and M/s Mobicon and factory premises of M/s Life Electronics Pvt. Ltd. situate in Noida and also the godown of M/s Connectronics and Cables Pvt. Ltd. at Chittaranjan Park, New Delhi. They extensively refer to the statement of the appellant recorded on 19.12.1996 wherein he admitted that he was doing business through two firms owned by him, viz., M/s Wings Electronics and M/s Life Electronics Pvt. Ltd. and that he had started trading centre in the name and style of M/s Connectronics and Cables Pvt. Ltd. and also the fact that his son Asheesh Chawla was the Managing Director of this firm. The detention order refers to the several other statements of the appellant himself which were recorded on different dates and the admissions made by him. The st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Asheesh Chawla has no bearing at all as it in no way could affect the formation of opinion and the subjective satisfaction of the detaining authority. Therefore, the contention raised by the learned counsel for the appellant has no substance and is liable to be rejected. 8. We would like to clarify here that the law does not require that every document or material in possession of sponsoring authority must necessarily be placed by him before the detaining authority and in every case where any such document or material is not placed by the sponsoring authority before the detaining authority, the formation of opinion and the subjective satisfaction of the detaining authority would get vitiated. This view has been taken in several decisions of this Court. In Abdul Sathar Ibrahim Manik v. Union of India Ors. AIR 1991 SC 2261, it was held as under : "If the detenu has moved for bail then the application and the order thereon refusing bail even if not placed before the detaining authority it does not amount to suppression of relevant material. The question of nonapplication of mind and satisfaction being impaired does not arise as long as the detaining authority was aware of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the representation, the continued detention of the appellant was rendered illegal. Some decisions of this Court were cited where emphasis has been laid on expeditious disposal of the representation made by the detenu and it was also observed that unexplained delay in disposal of the representation renders the continued detention illegal. 10. The contention raised cannot be judged by any straight jacket formula divorced from facts. This has to be examined with reference to the facts of each case having regard to the volume and contents of the grounds of detention, the documents supplied along with the grounds, the inquiry to be made by the officers of different departments, the nature of the inquiry, the time required for examining the various pleas raised, the time required in recording the comments by the authorities of the department concerned, and so on. 11. In L.M.S. Ummu Saleema v. B.B. Gujaral Anr. AIR 1981 SC 1191 it was held that there can be no doubt that the representation made by the detenu has to be considered by the detaining authority with the utmost expedition but as observed in Francis Coralie Mullin v. W.C. Khambra AIR 1980 SC 849, "The time imperative can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g one running into 35 paragraphs which were accompanied by 82 documents running into 447 pages. The representation made by the appellant was also a fairly long one. The representation made by the appellant on 24.3.1998 was received in the Ministry on 27.3.1998. The comments of the sponsoring authority were called on 30.3.1998 which were received on 17.4.1998. The comments were placed before the Secretary (R) through the A.D.G. on 22.4.1998 (18th and 19th being holidays). The decision of the Central Government was taken and communicated on 29.4.1998 (25 th and 26th being holidays). The representation was also considered by the detaining authority in the meantime and was rejected on 21.4.1998. In the additional affidavit filed on behalf of the sponsoring authority before the High Court, it was stated that the representation was received by them on 2.4.1998 and the comments were dispatched on 17.4.1998. During this period, there were holidays on 4th, 5th, 8th to 12th April, and only seven working days were available. Again there were holidays on 18th, 19th, 25 th and 26th April. Having regard to the facts and circumstances of the case, we are clearly of the opinion that the entire t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avit of Assistant Director of Revenue Intelligence was also filed before the High Court wherein it was averred that 11 summons were issued to the appellant during 20.2.1997 and 26.11.1997 and a red alert was also issued by the DRI on 5.3.1997. These facts conclusively establish that the detention order which was passed on 12.2.1997 soon after the searches had been made and the statement of the appellant had been recorded, could not be served in spite of every possible attempt had been made to serve him as the appellant was absconding. Where a person himself evades service of detention order, it is not open to him to contend that in view of the long period which has elapsed between the offending activities and the actual arrest and detention, the vital link had snapped and there was no ground for actually detaining him. An otherwise valid detention order cannot be rendered invalid on account of the own act of the detenu of evading arrest and making himself scarce. The contention thus raised has absolutely no merit and has to be rejected. 14. In view of the discussions made, we are in complete agreement with the view taken by the High Court. The appeal being wholly devoid of merit, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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