TMI Blog2018 (9) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... n till date - Thirdly, the petitioner did respond to the SCN issued by the DRI on 13th October, 2017. He appeared before the Adjudicating Authority i.e. the Principal Commissioner of Customs (Preventive) along with his Advocate on 24th October 2017. The Court would like to add that in the instant case, even when the DRI challenged the order dated 9th October, 2017 of the CMM before this Court, the petitioner in response to the notice issued by this Court filed an affidavit. It is not as if, therefore, the petitioner has tried to avoid the process of law. Mr. Diwakar was unable to point out how the case of the petitioner on merits was any different from that of the co-detenues. The only explanation offered is that while the co-detenues underwent some period of detention, the petitioner did not. If on merits, the case of the petitioner is no different from that of the co-detenues and the detention orders in respect of the co-accused have not been confirmed by the Advisory Board, the Court sees no purpose being served in the petitioner being detained on the basis of the impugned detention order, the grounds for which are no different from the detention orders issued in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, he sold weapons to mainly Slovenian buyers. Later as shooters came for practice from all over the world to the said shooting range, he got acquainted with many of them from various countries and this included some Indian shooters as well. The petitioner is stated to have closed the gun shop, and begun to travel to various parts of the world as a travel agent. It is stated that the petitioner s wife is the only Director of the Company Mikos D.O.O., Slovenia which has been in existence since 2009 and has been managing its affairs. The company is engaged in the sale of arms and ammunition. 4. Two Indians i.e. Mr. Amit Goel and Mr. Anil Langan are stated to have visited Slovenia in April, 2017 and asked the petitioner to accompany them to India for touring purposes. According to the petitioner, since it was a lean business period as Slovenia had national holidays during that time, he accompanied them on a visit to India. On 28th April, 2017, they boarded a Turkish Airlines flight and reached India on 29th April, 2017. After his immigration clearance, the petitioner waited for the other two Indians since they had arms and ammunition with them and had approached the red channel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ixty days in custody, the petitioner was granted statutory bail under Section 167(2) Cr PC by an order dated 1st July 2017 of the CMM subject to the following conditions : (i) That the I.O/DRI officers shall open the LOC against accused since the accused is a foreign national; (ii) That the accused shall not leave the territories of Delhi/NCR for the period of 30 days from the date of his release and shall join the investigation as and when required; (iii) That the accused is directed to surrender his passport, if any before the I.O. within seven days from today; (iv) That the accused shall not leave the country without seeking prior permission from the Court; (v) That the accused shall attend the proceedings either before the I.O. or before the Court, in accordance with the conditions of the bond executed by him. 9. Meanwhile, the DRI issued a Show Cause Notice ( SCN ) dated 13th October, 2017 under Section 110(2) of the Customs Act, 1962 alleging inter alia that a syndicate is involved in smuggling of arms and ammunition from Slovenia to India. The SCN referred to the personal search of the petitioner upon his arrival at the IGI Airport. It state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssions and Findings , the Adjudicating Authority in the order dated 26th October, 2017 noted that the petitioner had been visiting India regularly and that he had been receiving payments on behalf of M/s. Mikos in cash. Enquiries were in progress to obtain the complete details of all the arms and ammunitions supplied by him to the other noticees in the past which were vital to complete the investigation in the case. Accordingly, it was ordered that the period for issuance of the SCN under Section 124(a) of the Customs Act should be extended by six months. The Court is informed that pursuant to the above order, a copy of the final SCN dated 26th April, 2018 as a soft copy was sent to the petitioner by e-mail. It does not raise any duty demand against the petitioner. However, a penalty is proposed. Be that as it may, the fact remains that the petitioner did appear before the Adjudicating Authority on 24th October, 2017 pursuant to the SCN dated 13th October, 2017 issued to him. 13. The petitioner states that an application was filed by him before the Learned CMM seeking release of his passport and permission to go abroad for 15 days on 3rd August, 2017. The CMM allowed this applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenged by the DRI in Crl. M.C. No. 4193/2017 which is pending before a Learned Single Judge of this Court. 4. It is not in dispute that the detention orders in respect of the three other co-noticees who were alleged to have engaged in smuggling of non-sport category arms and ammunition from Slovenia with the petitioner have been revoked pursuant to the orders passed by the Advisory Board on 3rd January, 2018 which have been accepted by the Central Government. Learned Counsel appearing for the Central Government is unable to confirm whether any independent case, not involving those three co-noticees, is made out against the petitioner in the grounds of detention. 5. In the circumstances, the Court considers it appropriate to direct that, till the next date of hearing, no coercive steps will be taken against the petitioner pursuant to the detention order dated 17th October, 2017, which is yet to be served on the petitioner. 6. List on 4th April, 2018. Order dasti under the signature of the Court Master. 17. A reply has been filed to the writ petition on behalf of the detaining authority (Respondent Nos. 1 and 3) in which inter alia it is submitted that the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being aware of the fact that the petitioner was appearing before the Adjudicating Authority on 24th October, 2017 pursuant to the SCN issued by the DRI, no effort was made to serve the detention order on the petitioner and detain him. 21. At the hearing of the case today, Ms. Anjali Manish Jha, Learned Counsel for the petitioner, informed the Court that the petitioner had, in compliance with the conditional order of bail, furnished two sureties. Yet, no attempt was made by the respondents to enquire from the petitioner s sureties about his whereabouts. It is stated that the petitioner was at the address of his surety. 22. In reply it is pointed out by Mr. Vinod Diwakar, Learned Counsel for the respondents No. 1 and 3, that at no point in time did the petitioner disclose his address in Delhi and therefore it was not possible for the respondents to serve the detention order upon the petitioner. Reference was made to an affidavit filed in reply to the petition filed by the DRI in this Court challenging the order dated 9th October, 2017 passed by the Learned CMM granting permission to the petitioner to travel abroad for 15 days. It is pointed out that even in that affidavit the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be a real likelihood of the person being able to indulge in such activities, the inference of such likelihood being drawn from objective data. 25. In the present case the facts not in dispute are that far from avoiding the processes of law, the petitioner responded to the notices issued to him by the DRI. In the first instance after being detained for more than two months he applied for and obtained statutory bail under Section 167(2) Cr. PC. That order, as already noted, was subject to stringent conditions including an LOC having to be opened by the authorities to ensure that the petitioner is not able to leave the country notwithstanding that his passport is in the custody of the DRI. It is not the case of the respondents that any of those conditions have been violated by the petitioner. 26. If indeed the petitioner was refusing to co-operate in the investigations concerning him, an application ought to have been filed before the Learned CMM for cancellation of his bail. There is no such application till date. 27. Thirdly, the petitioner did respond to the SCN issued by the DRI on 13th October, 2017. He appeared before the Adjudicating Authority i.e. the Principal Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passing of the detention order. 31. The Court would like to add that in the instant case, even when the DRI challenged the order dated 9th October, 2017 of the CMM before this Court, the petitioner in response to the notice issued by this Court filed an affidavit. It is not as if, therefore, the petitioner has tried to avoid the process of law. The observations in Subhash Popatlal Dave v. Union of India (supra) referred to by Mr. Diwakar may not stricto sensu apply in this case. Those observations are in respect of a law breaker who, at the time of passing of the detention order was absconding. In the present case, the detention order was passed not at the stage when the petitioner was absconding but when he was about to be released on statutory bail. 32. As regards the Court interfering with the detention order at the pre-execution stage, what has observed in Additional Secretary v. Smt. Alka Subhash Gadia (supra) is that the jurisdiction of this Court in such circumstances has to be used sparingly. It was pointed out that : It is not correct to say that the Courts have no power to entertain grievances against any detention order prior to its execution. The Courts hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the respondents unable to explain how the petitioner s case in this regard is any different from that of the co-detenues whose detention orders have ceased to exist, the question of the petitioner having the propensity to commit a crime does not arise. In any event his passport is with the DRI and as of now he is available in this country. 36. The Court is also not satisfied that any serious attempt was made during the time when the detention order in respect of the co-detenues was still alive, to execute the impugned detention order to take the petitioner into custody despite the DRI knowing of his participation in the adjudication proceedings pursuant to the SCN issued by it. That stage having been crossed, the Court has no hesitation in holding that the detention order issued in respect of the petitioner has ceased to serve any purpose whatsoever. 37. For the aforementioned reasons, the Court quashes the detention order No. F. No. PD-12001/04/2017-COFEPOSA, dated 17th October, 2017 issued by Respondent No. 3 issued under Section 3(1) of the COFEPOSA Act. 38. The writ petition is allowed and the application is disposed of in the above terms with no order as to costs. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
