TMI Blog2020 (9) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... ention of the petitioners under the COFEPOSA Act and for consideration of the said proposal, firstly, by the Central Screening Committee, and thereafter, by the Detaining Authority. The time lapse, in our view, is not such as to lead to the inference that the live-link between the prejudicial activity of the petitioners, which was discovered in April 2019, and the object of detention, namely, to prevent them from indulging in such prejudicial activity, stood snapped. Pertinently, it is not the case of either of these petitioners that they have discontinued their ostensible business of dealing in gold and gold jewellery - observations in Muneesh Suneja [ 2001 (1) TMI 903 - SUPREME COURT] is attracted in the facts of these cases. We also agree with the submission of Mr. Mahajan that petitioners reliance on Rajinder Arora [ 2006 (3) TMI 173 - SUPREME COURT is misplaced for the reasons advanced by Mr. Mahajan and recorded hereinabove. Therefore, we reject this submission of Mr. Chaudhri. Whether the petitioners absconded and, if so, whether they are precluded from assailing the Detention Orders in respect of each of them on that account? - We are of the view that there is no me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is common place, we find the statement made by the petitioner Gopal Gupta s wife Smt. Smita to be unacceptable and clearly the idea was to suppress the information with regard to the whereabouts of Gopal Gupta. The stand now taken by the petitioner Gopal Gupta that he was at his father s residence, is completely contradicted with the statement of his wife Smita. We find that, firstly, the petitioners are not entitled to maintain these petitions in view of their conduct of abscondence and in view of the decision of the Supreme Court in Subhash Popatlal Dave [ 2013 (8) TMI 8 - SUPREME COURT] and even otherwise, we do not find any merit in any of the grounds taken by the petitioners to assail the Detention Orders issued in respect of each of them under Section 3 of the COFEPOSA Act at the pre-execution/ detention stage. - W.P.(CRL) 786/2020 & CRL.M.A. 5862/2020 W.P.(CRL) 1009/2020 & CRL.M.A. 8726/2020 W.P.(CRL) 1019/2020 & CRL.M.A. 8743/2020 - - - Dated:- 11-9-2020 - HON'BLE MR. JUSTICE VIPIN SANGHI And HON'BLE MR. JUSTICE RAJNISH BHATNAGAR For the Petitioner : Mr. Vikram Chaudhri, Sr. Adv. with Mr. Harshit Sethi, Mr. M.B. Rajwade, Advs For the Responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of style of M/s MN Khan Jewellers FZE. On 14.02.2019, the petitioner extended an invitation to M/s. Its My Name Pvt. Ltd. (IMNPL) for participation in a jewellery exhibition at United Arab Emirates (UAE) from 18.02.2019 to 30.03.2019. 5. Amit Pal Singh (APS), the petitioner in W.P.(CRL) 1019/2020 an employee of IMNPL, left from New Delhi carrying jewellery with him after satisfying the requirements under the Exhibition Export Scheme of FTP, firstly on 20/21.02.2019, and again on 13/14.03.2020. On 24.04.2019, APS brought back the unsold jewellery. He landed at the IGI Airport and walked to the red channel and he declared the good brought by him. He filed re-import declaration, bills of entry, photographs of re-imported jewellery and the appraisal carried out in respect thereof. Though, he was issued the gate pass, he was detained at the exit gate. APS was issued a notice under Section 102 of the Customs Act alleging invasion of customs duty on the same day i.e. 24.04.2019. 6. On the same day i.e. 24.04.2019, the petitioner MNK arrived at IGI Airport separately. The petitioner MNK was also detained, even though nothing was found on him. Between 24th and 25th April, 2019 seiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeks as directed. 10. On 25.09.2019, before the CMM, the Deputy Director, DRI stated that Petitioner MNK is no more required for investigation. Consequently, the application moved by the respondents for cancellation of bail was dismissed. The petitioners also disclosed that an application was moved against the respondents under Section 340 Cr.P.C. for fabricating the records, tampering of documents and for other wrong doings. IMNPL also sought prosecution of the Officers of the respondents under Section 2019 IPC for making false and dishonest statements. They also sought initiation of Contempt proceedings under Section 12 of the Contempt of Courts Act. On 11.11.2019, the learned CMM allowed the petitioner MNK to travel abroad, and directed release of his passport. On 13.11.2019, CESTAT allowed the appeal of IMNPL, directing provisional release of goods. The challenge made by the DRI to the permission granted to MNK to travel abroad, and for release of his passport, was rejected by the Sessions Court with the dismissal of the Revision preferred by the DRI. IMNPL again moved a Civil Contempt Petition i.e. Cont. Cas (Civil) 1052 of 2019 against the Principal ADG ADG, DRI; Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so recorded on the backside of the shipping bill. On 20/21.02.2019, APS personally carried gold jewellery weighing 33,805.770gms and 25,229.680 gms respectively, by declaring the same and filing the requisite documents/ shipping bills for exhibition purpose. Pictures/ colour photocopies of the jewellery were presented to the Customs Officers/ Appraisers for comparison upon the return of APS to India with unsold stock that APS brought back of unsold jewellery exported for exhibition. As noticed hereinabove, he landed on 24.04.2019 at 06.30 P.M. and proceeded to the red channel. He declared the goods re-imported by him, and he filed the bill of entry. After clearance of the goods, when APS exited the red channel, he was detained by the DRI Officials and his goods were seized. A notice under Section 102 of the Customs Act was issued alleging evasion of customs duty. 14. Like MNK, the petitioner Gopal Gupta also states that his incriminating statement under coercion was retracted by him. Several averments have been made in writ petition, which, in our opinion, are not necessary to be taken note of at this stage, keeping in view the limited enquiry that we are called upon to undertak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly demonstrates that the impugned order against each of these petitioners has been passed vindictively and mala fide. Since the respondents faced adverse orders and defeat practically in all judicial proceedings, and the petitioners did not accept the conduct of the respondents, and they initiated Contempt Proceedings against the Officers of the Customs and the DRI, the said officers acted mala fide and contrived to have the impugned Detention Orders issued against the petitioners. 16. The next submission of Mr. Chaudhri is that there is inordinate delay in the passing of the Detention Order. The petitioners were apprehended as early as on 24.04.2019. The investigation had culminated into issuance of show cause notice on 26.09.2019. This show cause notice even claims that overseas investigations have been made qua the petitioner MNK. The impugned Detention Orders came to be issued only on 21.01.2020. Mr.Chaudhri submits that the livelink between the prejudicial acts which form the basis of the Detention Orders, and the purpose of detention is snapped. Mr. Chaudhri submits that delay in passing the order is a good ground for quashing even at the pre-execution stage, as held in R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 7(1)(b) of the COFEPOSA Act, Mr. Chaudhri submits that all the three notifications have been issued as acts of malice. There was no question of issuing a notification under Section 7(1)(b) of the COFEPOSA Act within a matter of a few months of the issuance of the Detention Order. 22. Mr. Chaudhri submits that Section 7 of COFEPOSA contemplates 3 stages:- i. Notifying an order in the official gazette by the Government directing the proposed detenue to appear before such officer, at such place and within such period as may be specified [First part of Section 7(1)(b)]; ii. Making a report in writing by the Government of the fact of absconsion of the proposed detenue to a Magistrate, whereupon provisions of Sec. 82, 83, 84 and 85 Cr.P.C. shall apply in respect of the detenue [Section 7(1)(a)]; iii. Launching of prosecution by the Government for non-compliance with the order notified in the official gazette [Later part of Section 7(1)(b)]. 23. In the cases of the petitioners, only an order has been notified in terms of first part of Section 7(1)(b), and no action has been taken in terms of Section 7(1)(a), and no prosecution has been launched in terms of latt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition was filed after ease down of listing norms which came up for hearing on 24.4.2020 when the Detention Order was stayed. 29. Mr. Chaudhri submits that the allegation that MNK was not found at his address in District Mau, UP is equally specious. When MNK was arrested, his statement was recorded on 25.4.2019, when he had informed the DRI that though the only permanent address that he has in India is his father s residence, but he was not on talking terms with his father and he has been an NRI for a long time. MNK had already furnished his counsel s address for service. No information has been given at his counsel s address and no summons have been issued to MNK after issuance of the Detention Order. 30. He submits that MNK was granted bail by the CMM, and during the course of hearing, he had undertaken that any process or summons served upon his counsel shall amount to service upon him. Similar undertaking was recorded by this Court while deciding the issue relating to release of his passport, and permission to travel abroad. MNK has not travelled abroad despite the said permission and, therefore, neither was there any intention to abscond, nor to evade the execution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to execute the Detention Order even when Gopal Gupta was physically present before this Court on 29.01.2020. Therefore, the allegation that the Petitioner has absconded is wholly misconceived. 36. Moreover, the Respondents have not complied with their own guidelines which stipulate the initiation of proceedings under Section 7 of COFEPOSA immediately after one month of the passing of the Detention Order. 37. Mr. Chaudhri submits that the respondents have made an attempt to shift the blame of non-execution of the Detention Orders on the Executing Authority, while trying to protect the officers of DRI/Sponsoring Authority for their lapse in executing the Detention Order. Even as per the guidelines issued by the respondents, the Sponsoring Authority is equally responsible for execution of the Detention Order, and it cannot feign ignorance and adopt a casual/lethargic attitude by claiming that it is only responsible to sponsor an order of detention, but not to execute the same. 38. Mr. Mahajan, learned Central Government Standing Counsel has advanced his submissions in opposition to the present writ petitions. So far as the plea of the petitioners with regard to malice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding, and to browbeat the officers. Moreover, the allegations made against the officers of the investigating agency does not affect the validity of the Detention Order, passed by a separate body which is independent of the Sponsoring Authority. 41. Mr. Mahajan submits that the jurisdiction exercised by the Detaining Authority in the matter of passing an order for preventive detention is a jurisdiction of suspicion i.e. jurisdiction based on suspicion and the action is taken with a view to preventing a person from acting in any manner prejudicial to the Foreign Exchange position of the country and to prevent activities enumerated in the relevant detention law, and the Detaining Authority has issued the Detention Order after it had arrived at the subjective satisfaction that the three detenues had to be preventively detained for the ground which have been elaborated in the Grounds of Detention. Similarly, the disputed allegations of ill treatment, custodial violence etc would not affect the validity of the Detention Order. Reliance is placed on State of Maharashtra Ors. v. Bhaurao Punjabrao Gawande [(2008) 3 SCC 613]; (para 41,42, 51, 53, 55,63.) 42. So far as the plea of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through the averments made in the counter affidavit, which we shall advert to a little later. 46. Mr. Mahajan submits that if the apparent delay in passing and executing the Detention Order is explained by the respondents, that cannot be a ground for quashing a Detention Order. In this regard, he places reliance on Union of India v. Muneesh Suneja, (2001) 3 SCC 92. Even in a case of undue or long delay between the prejudicial activity and the passing of Detention Order, if the same is satisfactorily explained and a tenable and reasonable explanation is offered, the order of detention is not vitiated. In this regard, he places reliance on Licil Antony v. State of Kerala (2014) 11 SCC 326. He also places reliance on T.A.Abdul Rahman vs State of Kerala, (1989) 4 SCC 741, wherein the Supreme Court held in paragraph 12 that no hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and order of detention 47. He submits that the Supreme Court was mind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mahajan submits that the petitioner MNK was not found at his given address. Mr. Mahajan submits that the petitioner MNK deliberately did not disclose his address as to where he could be found, while claiming that he was not on good terms with his parents and he was staying with his friends. If that were the case, he should have provided the address of his friends where he was staying, and if there were more than one such friends, addresses of his friends should have been provided. However, the petitioner MNK only provided the address of his advocate for the purpose of correspondence, apart from the address of his parents where, even according to him, he could not be found. Mr. Mahajan submits that a Detention Order could possibly not have been served on the counsel of MNK and it had to be personally served upon the petitioner MNK. The whole object of serving the Detention Order would be lost, if it were to be communicated to MNK s counsel. The only manner of execution of the said Detention Order was to serve MNK personally. However, MNK used his counsel as a shield, while holding back the address where he was residing. This itself shows that the petitioner MNK intentionally abscond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uct which is also relevant to be considered by the Court dealing with a challenge to the passing of the Detention Order at the pre-execution stage. 57. Mr. Mahajan submits that Section 7 of the COFEPOSA Act specifically provides the action to be taken in case the person is absconding. In terms of Section 7 of the Act, the satisfaction of the appropriate Government that a person is absconding is qualified by reason to believe which is based on the report of the executing agency, which at times is another independent agency i.e. concerned local Police. The reason to believe is not a mere whim or ipsi dixit of the officer. Notification is published under Section 7(1)(b) after having the reason to believe that the person is absconding or concealing himself, so that the order cannot be executed. Once that satisfaction is formed, it is for the proposed detenue to dispel it and satisfy the court that the satisfaction is wrongly arrived at. It is not a case where notification under Section 7(1)(b) was issued immediately on passing of the Detention order. Thus issuance of notification under Section 7(1)(b) itself is testimony to the fact that the proposed detenues were absconding. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with extreme care, caution and circumspection. A detenu cannot ordinarily seek a writ of mandamus if he does not surrender and is not served with an order of detention and the grounds in support of such order. (see Bhaurao Punjabrao Gawande (supra) para 63) 61. The Constitution Bench of the Supreme Court, in Haradhan Saha (supra) explained the difference between Preventive Detention and Punitive Detention elaborately. The Court held: 19. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it. The basis of detention is the satisfaction of the Executive of a reasonable probability of the likelihood of the detenu acting in a manner similar to his past acts and preventing him by detention from doing the same. A criminal conviction on the other hand is for an act already done which can only be possible by a trial and legal evidence. There is no parallel between prosecution in a court of law and a detention order under the Act. One is a punitive action and the other is a preventive act. In one case a person is punished on proof of his guilt and the standard is proof beyond r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dulging in activities which would jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances. (emphasis supplied) 62. In Union of India Vs. Muneesh Suneja, (2001) 3 SCC 92, after noticing Alka Subhash Gadia (supra), the Supreme Court held: 7. ... ... ... This Court has been categorical that in matters of pre-detention cases interference of court is not called for except in the circumstances set forth by us earlier. If this aspect is borne in mind, the High Court of Punjab and Haryana could not have quashed the order of detention either on the ground of delay in passing the impugned order or delay in executing the said order, for mere delay either in passing the order or execution thereof is not fatal except where the same stands unexplained. In the given circumstances of the case and if there are good reasons for delay in passing the order or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icers of either the Customs, or the DRI. At the highest, the said authorities acted in their capacity as the Sponsoring Authority. The proposal to detain the petitioners was, firstly, examined by the Central Screening Committee of senior officers. It is not the petitioners case that any member of the Central Screening Committee has so acted as to betray a sense of malice. After the matter is examined by the Central Screening Committee, it is for the Detaining Authority to apply his mind, and arrive at his own subjective satisfaction that the detention of the proposed detenue is necessary to prevent him from continuing with the prejudicial activity in terms of Section 3 of the COFEPOSA Act. There is nothing produced before us by the petitioners to show that the Detaining Authority had any interaction with either of these petitioners, or in relation to their respective cases, before he passed the Detention Orders against each of them. There is absolutely no material placed on record by the petitioners to justify the claim of either malice in fact, or in law, against the members of the Central Screening Committee, or the Detaining Authority. Actions taken by the petitioners to inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Chaudhri has placed reliance on Rajender Arora (supra) to urge that delay in passing the detention order is a good ground for quashing the same even at a pre-execution stage. On this aspect, he has also placed reliance on Pankaj Kumar Shukla (supra) and Boris Sobotic Mikolic (supra). 68. On the other hand, Mr. Mahajan has submitted that the aspect of delay in passing of the execution and Detention Orders, in the light of the averments made in the counter-affidavit, cannot be gone into and that, in any event, there is no merit in the said plea of the petitioner. Mr. Mahajan has referred to the averments made by the respondents in their counter-affidavit. It would be appropriate, at this stage, to take note of the averments made by the respondents in their counter-affidavit to explain as to how the passing of the Detention Orders on 21.01.2020 cannot be labelled as belated, so as to vitiate the same. The respondents have explained that though the seizure of gold jewellery was effected at the factory premises during the search conducted at the office premises of IMNPL on 24/ 25.04.2019, however, Mr. Rahul Gupta, Director of IMNPL did not join investigation and Non-Bailable Warr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners, which was discovered in April 2019, and the object of detention, namely, to prevent them from indulging in such prejudicial activity, stood snapped. Pertinently, it is not the case of either of these petitioners that they have discontinued their ostensible business of dealing in gold and gold jewellery. In our view, the observations in Muneesh Suneja (supra) is attracted in the facts of these cases. We also agree with the submission of Mr. Mahajan that petitioners reliance on Rajinder Arora (supra) is misplaced for the reasons advanced by Mr. Mahajan and recorded hereinabove. Therefore, we reject this submission of Mr. Chaudhri. 70. The next issue that arises for our consideration is whether the petitioners absconded and, if so, whether they are precluded from assailing the Detention Orders in respect of each of them on that account. Intertwined with this issue, is the challenge raised by the petitioners to the notifications issued under Section 7(1)(b) of the COFEPOSA Act in respect of the three petitioners. 71. Mr. Chaudhri submits that so far as the petitioner MNK is concerned, he had disclosed to the respondents right from the beginning that he is a Non-Resident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appropriate Government has reason to believe that the person in respect of whom the Detention Order has been made, has absconded, or has conceded himself so that the order cannot be executed. The said provision reads as follows: 7. Powers in relation to absconding persons. (1) If the appropriate Government has reason to believe that a person in respect of whom a detention order has been made has absconded or is concealing himself so that the order cannot be executed, that Government may- (a) make a report in writing of the fact to a Metropolitan Magistrate of or a Magistrate of the first class having jurisdiction in the place where the said person ordinarily resides; and thereupon the provisions of sections 82, 83, 84 and 85 of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply in respect of the said person and his property as if the order directing that he be detained were a warrant issued by the Magistrate; (b) by order notified in the Official Gazette direct the said person to appear before such officer, at such place and within such period as may be specified in the order; and if the said person fails to comply with such direction, he shall , u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hajan submits that looking to the past conduct of the petitioners and their propensity to indulge in smuggling of gold, the petitioners were aware of the possibility of they being detained under the COFEPOSA Act. Keeping this in mind, the petitioner MNK deliberately did not provide his correct and actual address in India where the Detention Order could be served upon him. Mr. Mahajan submits that a Detention Order passed under Section 3 of the COFEPOSA Act is no ordinary communication and the same could not have been served upon his representative, or counsel. The whole purpose of detention would be defeated, if the Detention Order were to be served on the counsel, or the representative of the petitioner MNK, since that would alert the proposed detenue and he would be able to evade its service. By its very nature, the Detention Order has to be served only on the detenue. If his submission is that he was staying with his friends, then he should have provided the address(es) of his friends with whom he was staying from time to time. He failed to do so deliberately with a view to evade the service of the Detention Order. 78. Mr. Mahajan has submitted that the execution of the Deten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajouri Garden has been directed to take necessary efforts to detain the Proposed Detenue and the service report will be sent to your office timely. 79. In respect of the petitioner Gopal Gupta, the report submitted by the DCP, East District, Delhi dated 12.03.2020, inter alia, states as follows: In this regard, it is stated that a report from SHO/Mayur Vihar has been obtained which revealed that despite sincere efforts the detenue has not been traced so far. During enquiry, Smt. Smita W/o Sh. Gopal Gupta (detenue) was found present at the given address. She told that her husband Sh. Gopal Gupta had gone to somewhere in South India for his medical treatment and she does not have any knowledge about exact whereabouts and date of arrival of her husband. Beat staff of the area has also been directed to collect the informations secretly through the informers to know the whereabouts of Sh. Gopal Gupta (detenue) and to intimate the senior officers immediately if any clue is found about the detenue. Moreover, SHO/Mayur Vihar has also been directed to make further efforts and maintain surveillance in the Court Complexes as the proceedings against the detenue to be held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucial to be able to detain a person, as there is every likelihood of the person absconding, or evading execution of the Detention Order the moment he learns that such an order had been passed. The respondents are not obliged to serve the Detention Order, the Grounds of Detention, or the Relied Upon Documents on a third party. If this submission of the petitioner MNK were to be accepted, it would render the law of preventive detention completely ineffective and not workable. The petitioner MNK, however, failed to provide his actual address where he could be served the Detention Order. If the petitioner MNK was not to be found at his ancestral address, there was no point of furnishing the same. Thus, we are satisfied that the petitioner MNK deliberately absconded to evade the service of the Detention Order. 84. So far as the petitioner APS is concerned, we find that the position is no different. The reason given by the petitioner APS for his not being found at his given address is completely belied by the reports submitted by the DCP, West District, New Delhi relevant portion whereof has been extracted hereinabove. At his given address, the wife of APS/ Harpreet Kaur was found a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tage, invokes the extraordinary discretionary jurisdiction of the Court. The High Court would not exercise such discretionary jurisdiction in favour of a person who is evading the law. 87. We also find merit in the submission of Mr. Mahajan with regard to interpretation of Section 7 of the COFEPOSA Act. A plain reading of the said Section shows that the Government may take steps in accordance with Clause (a) and/ or (b) and there is nothing to say that the Government is bound to first take steps under Clause (a) of the Section 7(1) of the Act. The formation of the belief that the three petitioners, in respect of whom Detention Orders had been made have absconded, or that they were concealing themselves so that the order could not be executed is supported by cogent material taken note of hereinabove. Therefore, we find that there is no illegality about the notification issued under Section 7(1)(b) of the COFEPOSA Act qua each of these petitioners. 88. The submission of Mr. Chaudhri with regard to the affidavits not being sworn or verified properly does not impress us, since the respondents have placed reliance on the record, and on the law laid down by the Supreme Court. We, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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