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2019 (8) TMI 340

..... and the impugned order does not suffer from delay in execution. This Court is of the view that Respondent Nos. 1 and 2 have not only adequately explained the delay, if any, in execution of the impugned order, but have also explained that it was due to the conduct of the petitioner (as he was evading service), due to which recourse had to be taken under Section 7(1)(b) of COFEPOSA. Consequently, there is warrant to consider that the link between issuance of the impugned order and the execution has not snapped but strengthened. This Court is also of the view that the person, against whom mala fides are alleged, has to be impleaded as a party to the proceeding to enable him/her to answer the allegations. In the present case, even though the petitioner had alleged personal mala fides against Shri Sunil Kumar Singh, he had not impleaded him as a respondent. The allegation that the impugned order was based on extraneous reasons cannot be examined - petition dismissed. - W.P.(CRL) 3008/2018 & CRL.M.As. 33406/2018, 2262/2019 & 2271/2019 - 5-8-2019 - MR. MANMOHAN AND MS. SANGITA DHINGRA SEHGAL JJ. Petitioner Through: Mr. Varun Singh, Advocate with Mr. Lenin Raj K., Advocate. Respondents Thr .....

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..... t to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question. 4. Learned counsel for the petitioner stated that there was no live link as the impugned detention order issued in April 2018 was based on notices and cases of 2012-2015. In support of his contention, he referred to the cases mentioned in the counter affidavit dated 25th October 2018, which are reproduced hereinbelow:- Sl.No. Case No. Date of issuance of Summons Whether appeared or not 1 18/12-13 dated 28.12.12 30.12.2012 Not appeared 2 05/14-15 dated 17.07.14 18.07.2014 Not appeared. 21.08.2014 Personally served but not appeared. 22.09.2014 Not appeared. 3 01/15-16 dated 15.04.15 07.05.2015 Personally served but not appeared. 29.05.2015 Not a .....

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..... detenu was available at his own address, no real effort had been made to locate the detenu and execute the detention order. The Hon ble Supreme Court has held in a number of cases that if the authorities did not make sincere and honest efforts and take any urgent or effective steps the service of the detention order on the detenu, the order of the detention is liable to be set aside. 5. It is generally noticed that the Sponsoring Authorities who originally move the proposal, somehow develop a lax attitude after a detention order based on their proposal has been issued. They tend to harbour a feeling that they have no further role in the matter and it is entirely for the Detaining Authority and the Executive Authority to ensure that the Detention Order is served. This wrong notion needs to be dispelled forthwith. The Sponsoring Authority must keep in mind the fact that their role and object is not confined merely to having a detention order issued but to have a person detained otherwise the very object of issuing the detention order gets defeated. 6. All the Sponsoring Authorities, Executive Authorities and the Detaining Authorities are once again requested that they must ensure tha .....

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..... espect of the said person) and his property, as if the order directing him that he be detained were a warrant issued by the Magistrate. Section 7(1)(b) also provides for penal consequences, in the event directions given thereunder, are not complied with by the proposed detenu. Accordingly, Section 7 empowers the Government to take recourse to either the provisions of the Code of Criminal Procedure relating to absconding persons or pass an order directing the person concerned to appear before the officer concerned and on the detenu's failure to do so, to inflict punishment with imprisonment for a term which could extend to one year or with fine or both. 100. The provisions of Sections 6 and 7 of the National Security Act, 1980, are identical to the provisions of Sections 6 and 7 of the Cofeposa Act, 1974. 101. In my view, the said provisions clearly enumerate the powers vested in the authorities when a proposed detenu absconds. That, in my view, is the ordinary law of the land, and not preventive detention, which is meant to prevent the commission of offences, and not to punish an individual for violation of statutory provisions. Accordingly, in my view, the submissions made on .....

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..... Commissioner (Appeal) Vide O-in-A No. 53-Pat/Cus/Appeal/2017 dated 03.10.2017 & 123- 25/Pat/Cus/Appeal/2017 dated 14.12.2017 d. 14-Cus/JC/FBG/16-17 dated 26.08.2016 -Party Appeal dismissed by Commissioner (Appeal) vide O-in-A No.134-136/Pat/Cus/Appeal/2017 dated 03.10.2017 14. Learned counsel for the Respondent Nos.1 & 2 contended that there had been no delay in execution of the impugned detention order. He relied on the Additional affidavit dated 20th February 2019 filed by the Respondent Nos.1 & 2 wherein the steps taken by the Respondent authorities to execute the impugned order have been detailed. The relevant portion of the same is reproduced hereinbelow - 5. That after the passing of the detention order dated 09.04.2018, the department prepared the necessary records to be sent to Director General of Police, Bihar as the DGP, Bihar was the appropriate authority for the purpose of service of the detention order to the Petitioner. 6. That the sealed envelope containing the order of detention was served upon the DGP, Bihar on 13.04.2018 for the purpose of taking the necessary steps for the service of the detention order to the Petitioner. Copy of the acknowledgement .....

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..... FICE OF THE DEPUTY COMMISSIONER CUTOMS (Prev.) DIVISION, MUZAFFARPUR 2nd Floor, Customs Building, Imalichatti, Muazaffarpur Phone No. 0621-2212966, 2215242, Fax No. 0621-2215150 C. No. VIII(12)25-Cus/MUZ/PS/2018/1034 Dated: 13.02.2019 To, The Assistant Commissioner (Legal) Customs (H) Patna Sub: W.P.(Crl.) No. 3008 of 2008 titled as Pankaj Kumar, Sharma, COFEPOSA Absconder Vs. Union of India & Ors. Before Hon ble Delhi High Court - reg. Please refer to your letter C.No.1(10)39-465/Cus/L/2018 dtd. 06.02.2019 on the above subject. It this connection the chronological events w.e.f. 09.04.2018 to 16.05.2018 as appears from the available records are as under: 1. 09.04.2018 - Detention order issued by the Joint Secretary, CEIB, New Delhi. 2. 13.04.2018 - Service of sealed envelope of detention was serviced to Director General of Police, Bihar. 3. 27.04.2018 - Superintendent of Police (D), Crime Investigation Department, Patna, Bihar forwarded the sealed envelope to Senior Superintendent of Police, Muzaffarpur for execution. 4. 15.05.2018 - SSP Muzaffarpur forwarded sealed envelope to SHO, Sikandarpur, OP vide C. No. 3961 dtd. 15.05.2018. 5. 15.05.2018 - The envelope was received by S .....

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..... directed to ascertain in the early detention after receipt of information and to submit compliance report. 17. Learned counsel for Respondent Nos.1 & 2 also stated that whatever delay was caused in the execution of the impugned detention order was due to the fact that the petitioner had been evading service. He stated that CID, Patna had clearly laid out the steps that it had taken to locate the petitioner in their letter dated 1st June 2018, which included conducting raids on different locations, but the petitioner was not found. He contended that it was in these circumstances that notification under Section 7(1)(b) COFEPOSA had to be issued. The letter dated 01st June, 2018 is reproduced hereinbelow- Letter No. 109/N.G.O. File No. - 15/11 Crime Investigation Department, Bihar, Patna From, Additional Director General of Police Crime Investigation Department Bihar, Patna, To, Shri V.C. Gupta, Commissioner Customs (Prev.) Patna. Patna, Date: 01/06/2018 Reference : Ministry of Finance, Govt. of India s Letter No. - F.No. PD-12001 and 12002/03/2018 - COFEPOSA dated 09.04.2018 and dated 08.05.2018 respectively and letter No. C.No. VIII910)01-167/ Cus/P/H/COFEPOSA/pd- 12002/03/2018/ .....

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..... dated 20th February 2019, have clearly stated that the department had served the impugned order dated 9th April 2018 upon the DGP Bihar within four days i.e. on 13th April 2018 with a direction to take further steps for effecting service. The order was duly forwarded to the Superintendent of Police (D) to SSP, Muzaffarpur, where the petitioner resides, vide letter dated 27th April 2018. Thereafter, SSP Muzaffarpur forwarded the impugned order to the SHO, Sikanderpur OP vide letter dated 15th May 2019. Upon receiving the impugned order, the local police had taken effective steps for the service of the impugned detention order upon the petitioner, including conducting raids at different locations. When the petitioner was not found at his own address, the impugned order was duly served upon the mother of the petitioner. Furthermore, after making sincere and honest efforts to locate the petitioner, CID Bihar (due to petitioner s deliberate absence) had recommended issuance of a notification under Section 7(1) (b) COFEPOSA vide letter dated 1st June 2018. THE NOTIFICATION ISSUED UNDER SECTION 7(1) (b) COFEPOSA WAS PUBLISHED IN THE OFFICIAL GAZETTE ON 26th JUNE 2018, AND THEREAFTER IT W .....

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..... dgment it can be stated that it is an established practice that the publication in the Official Gazette, that is, the Gazette of India (sic is an) ordinary method of bringing a rule or subordinate legislation to the notice of the persons concerned. Individual service of a general notification on every member of the public is not required and the interested person can acquaint himself with the contents of the notification published in the Gazette. It is the usual mode followed since years and there is no other mode prescribed under the present statute except by the amendment in the year 1998 by Bill 21 of 1998. (emphasis supplied) 22. A Division Bench of this Court in Rudra Pratap Singh Vs. Union of India & Ors., 2008 (101) DRJ 568 (DB) has also held as under:- 8. We must next consider whether there was any delay in the execution of the Order. It will be recalled that the Detention Order against the Petitioner was passed on 11.4.2002 and served upon him on 10.6.2002. It has been explained that the Petitioner was not available in his home despite surveillance being maintained. Consequently, an order under Section 7 (1)(b) of the COFEPOSA Act was issued on 21.5.2002, a copy whereo .....

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..... s due to the conduct of the petitioner (as he was evading service), due to which recourse had to be taken under Section 7(1)(b) of COFEPOSA. Consequently, there is warrant to consider that the link between issuance of the impugned order and the execution has not snapped but strengthened. [See Bhawarlal Ganeshmalji Vs. State of Tamil Nadu and Another, (1979) 1 SCC 465]. A PERUSAL OF THE SEALED DOCUMENTS HANDED OVER BY THE RESPONDENT NOS.1 & 2 SHOWS THAT THE IMPUGNED ORDER IS BASED ON INCIDENTS OF 2017-2018 AND NOT OF 2012-2015 AS STATED BY THE PETITIONER. 25. Further, a perusal of the sealed documents handed over by the Respondent Nos.1 & 2 shows that the impugned order is based on incidents of 2017-2018 and not of 2012-2015 as stated by the petitioner. 26. The handed over documents show that there had been seizure of smuggled goods, i.e., foreign origin spices on 30th August, 2017, 01st November, 2017 and 17th February, 2018, in which transactions, the petitioner is stated to be the master mind . 27. The handed over documents also reveal that the Unit Case No.35/16-17 dated 13th October, 2016 had been adjudicated vide O-I-O No.33-CUS/JC/MZP/2017-18 dated 01st January, 2018 .....

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..... JC/Muz/2016 and 14-Cus/JC/FBG/16-17 despite taking time to clarify the position. 31. In view of the aforesaid facts, this Court is further of the opinion that petitioner s argument with respect to relevant material not being placed before the detaining authority is without any merit. 32. Consequently, this Court is of the opinion that the impugned detention order is neither based on incident of 2012-15 nor on a solitary incident. MULTIPLE INCIDENTS OF 2017 AND 2018 PROVE THAT THE PETITIONER HAS THE PROPENSITY AS WELL AS POTENTIALITY TO INDULGE IN SIMILAR ACTS OF SMUGGLING GOODS INTO INDIA AND IT FURTHER PROVES EXISTENCE OF LIVE-LINK BETWEEN THE INCIDENTS AND ISSUANCE OF THE IMPUGNED ORDER. 33. There are multiple incidents of 2017 and 2018, wherein smuggled goods had been recovered, which prove that the petitioner has the propensity as well as potentiality to indulge in similar acts of smuggling goods into India and it further proves existence of live-link between the incidents and issuance of the impugned order. 34. The Apex Court in Union of India and Anr. Vs. Dimple Happy Dhakad, 2019 SCC OnLine SC 875 has held as under:- 42. ......we are conscious that the Constitution and the S .....

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