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TMI Blog2015 (2) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... etention order bearing no. F. No. 673/07/2014-CUS VIII dated 25.07.2014 (hereinafter referred to as 'the detention order') passed under Section 3(1) (i) & 3 (1) (iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) against Mr. Rameshwar Sharma (detenue) - the petitioner's husband, and a direction to set at liberty the detenue from detention. 2. The Joint Secretary to the Govt. of India, Shri Harmeet S. Singh, passed the detention order in respect of the detenue, therein stating that the detaining authority is satisfied that the detenue be detained "with a view to preventing him from smuggling of goods and in transportation & concealment of the smuggled goods in future.........". 3. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Act, 1962. 7. DRI, Jaipur filed the complaint against the detenue and others on 28.11.2013, where the matter is pending prosecution before the Ld. M.M., Jaipur. On 24.03.2014, the Show Cause Notice was issued to the detenue under the Customs Act and subsequently, on 12.05.2014, the detenue was granted bail by Sessions Judge, Jaipur, after a period of more than 7 months. 8. On 25.07.2014, the detention order was passed under Section 3 (1) (i) and (iii) of COFEPOSA Act. Thereafter, on 04.08.2014, the detenue appeared before the Chief Metropolitan Magistrate (Economic Offence), Jaipur for regular trial in the same matter. 9. The Detenue informed the sponsoring authority of his illness and that he was confined to bed on 05.08 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gagodia vs. Union of India). In Manish Gagodia (supra), the grounds challenging the detention order have been considered in details. For the sake of brevity, we shall not discuss at length the grounds that have been taken by the petitioner, as the same has been discussed in W.P. (Crl.) 1695/2014. In the present case, we shall discuss in brief, mainly two grounds for challenging the detention order i.e. ground of delay in passing of the detention order, and execution of the detention order. 13. In the matter at hand, after the alleged seizure of red sanders from 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en, 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. 15. It is evident from the facts of the case that the detenue informed the sponsoring authority about his illness, and that he was confined to his bed on 05.08.2014 and, thereafter, made regular correspondence with the sponsoring authority. Again, he personally appeared before the Sponsoring Authority on 14.08.2014. The above circumstances clearly establish the availability of the detenue at his residence and on one occasion, even before the Sponsoring Authority. Despite this the detention order wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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