9911796707
TMI Blog2024 (10) TMI 846X X X X Extracts X X X X X X X X Extracts X X X X ..... ng S.O. 1845 (E) F.No.673/21/2015-Cus.VIII dated 06.07.2015 passed under section 7 (1) of COFEPOSA Act and was published in official gazette on 06.7.2015. d. direct the Respondent to decide the representation dated 03.07.2017 filed by the proposed detenue before the concerned authority by a speaking order; e. to pass such other and further order as this Hon'ble Court may deem fit, just and proper in the facts and circumstances of the present case and in the interest of justice in favour of the Petitioners." 2. By way of the present petition, Order of Detention dated 27th April, 2015 under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (hereinafter referred as "COFEPOSA") Act, 1974 is sought to be quashed at pre-execution stage. 3. The impugned order was passed by the Detaining Authority after receiving a proposal from Lucknow Zonal Unit, Directorate of Revenue Intelligence (hereinafter as "Sponsoring Authority") and after finding sufficient material regarding involvement of the Petitioner, the said detention order was passed. It is the case of the Respondents that the Petitioner is involved with a syndicate in illegal storage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch of this Court wherein after noting the aforesaid, it was observed as under:- "9. It is not explained why the Respondent, despite knowing the address of the Petitioner in Nepal, made no attempt to actually serve him the detention order at that address. 10. Counsel for the Respondent seeks time to obtain specific instructions on the legal obligation of the Respondent to serve the detention order on the Petitioner at his Nepal address, particularly considering the fact that the Petitioner is a citizen of Nepal." 8. It is pointed out that thereafter in pursuance of the direction of the Court, an additional reply on behalf of the Respondents was filed on 1st November, 2018 wherein it recorded as under: "4 (e) Further, in the process to verify the Nepalese address as given by the Petitioner absconder while filing a restoration application before this Court, the Embassy of India, Kathmandu (Nepal) vide the letter dated 12.3.2018 (ANNEXURE - VII) requested the Director General, Department of Revenue Investigation, Kathmandu, Nepal to verify the given Nepalese address of Shri Pawan Gupta. Consequently, Embassy of India, Kathmandu (Nepal) vide the letter dated 10.9.2017 (ANNEXURE - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Offender being in Nepal, necessary recourse of available legal persuasion including extradition of proclaimed offender from Nepal to India is being initiated." It is submitted the aforesaid additional reply/affidavit is completely silent on the issue raised in the order dated 10th September, 2018. 9. The attention of this Court was also drawn to order dated 12th July, 2022, passed by learned Additional Sessions Judge, Patiala House Courts, New Delhi in Crl. Rev. Petition No. 353/2018, wherein the process under Section 82 of the Cr.P.C. issued against the Petitioner was stayed. Attention was also drawn to an order dated 10th August, 2022 passed in CRM-M-32366-2022, passed by Hon'ble High Court of Punjab and Haryana whereby the proclamation under Section 82 of the Cr.P.C. of trial Court of Haryana was stayed. It is submitted that the aforesaid order reflects that the exercise alleged to have been done by the Respondents to serve the order of detention on the Petitioner at his alleged residences in Delhi and Haryana was a farce as he never resided at those addresses and at his address in Nepal which was known to the Respondents, no attempt was made to serve him. 10. Learned Seni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench of this Court in W.P.(CRL.) 1214/2015. Another writ petition being W.P.(CRL) 203/2015 preferred by co-detenue Gautam Jain against the same Detention Order dated 27th April, 2015 was also dismissed by the Hon'ble Supreme Court vide its judgment dated 4th January, 2017. It is further submitted that the present petition, which is at the stage of pre-execution cannot challenge the detention order on merits as the said order was not available with the Petitioner. Furthermore, in view of the fact that the said detention order with respect to other co-detenues were upheld, the merits of the same cannot be urged by the Petitioner in the present petition. 13. Attention of this Court was drawn to the additional reply filed on behalf of the Respondents, as pointed out hereinabove with regard to the service of the Petitioner and in particular to the following paragraphs: "4.(b) Since the Petitioner has been absconding and has not submitted to the Detention Order by way of surrendering or otherwise before the concerned authorities as per the requirement of law, therefore, an Order dated 6th July, 2015 was issued by Central Government under Section 7 (1) (b) of the COPEPOSA Act, 1974 as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uance of the efforts to execute the detention order at the earliest and also in view of the untraceability of the absconding Petitioner at his known addresses in India, the concerned authorities in the Ministry of External Affairs, New Delhi were also addressed on 28.05.2015 with the request to provide information in respect of the passport of the absconding Petitioner. (e) Further, in the process to verify the Nepalese address as given by the Petitioner absconder while filing a restoration application before this Court, the Embassy of India, Kathmandu (Nepal) vide the letter dated 12.3.2018 (ANNEXURE - VII) requested the Director General, Department of Revenue Investigation, Kathmandu, Nepal to verify the given Nepalese address of Shri Pawan Gupta. Consequently, Embassy of India, Kathmandu (Nepal) vide the letter dated 10.9.2017 (ANNEXURE - VIII) confirmed verification in respect of Shri Pawan Gupta, the Proclaimed Offender as Kathmandu Municipality, ward No. 9, Battsputali, Kathmandu, Nepal. (f) It is evident that respective authorities and the Courts have made all efforts provided under law to secure presence of Petitioner absconder; however, the Petitioner has not so far su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of issuance and execution of the Warrants has been defined in Section 70 and 75 of the Criminal Procedure Code and as per the said provisions, the warrants is to be executed through jurisdictional police. It is also submitted that in terms of Section 6 of COFEPOSA Act, 1974, no detention order shall be invalid or inoperative merely by reason - (a) that the person to be detained thereunder is outside the limits of the territorial jurisdiction of the Government or the officer making the order of detention, or (b) that the place of detention of such person is outside the said limits. Further, so far as execution of the COFEPOSA Detention Order upon Shri Pawan Gupta in Nepal being a sovereign country is concerned, it is respectfully submitted that the said Detention Order was to be executed through local/jurisdictional police authorities i.e. Delhi Police Commissioner or DGP, Haryana in accordance with his available residential addresses in Delhi and Haryana respectively. After having verified the address of Shri Pawan Gupta, a Proclaimed Offender being in Nepal, necessary recourse of available legal persuasion including extradition of proclaimed offender from Nepal to India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrate 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, unless he proves that it was not possible for him to comply therewith and that he had, within the period specified in the order, informed the officer mentioned in the order of the reason which rendered compliance therewith impossible and of his whereabouts, be punishable with imprisonment for a term which may extend to one year or with fine or with both. (2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence under clause (b) of sub-section (1) shall be cognisable." 18. It is submitted that the Respondents have taken all the necessary ste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hand, he can challenge the order of detention at the pre-execution stage on any ground, evade the detention in the process and subsequently would be allowed to raise the plea of long pendency of the detention order which could not be served and finally seek its quashing on the plea that it has lost its live link with the order of detention. This, in my view, would render the very purpose of preventive detention laws as redundant and nugatory which cannot be permitted. On the contrary, if the order of detention is allowed to be served on the proposed detenu even at a later stage, it would be open for the proposed detenu to confront the materials or sufficiency of the material relied upon by the authorities for passing the order of detention so as to contend that at the relevant time when the order of detention was passed, the same was based on non-existent or unsustainable grounds so as to quash the same. But to hold that the same is fit to be quashed merely because the same could not be executed for one reason or the other specially when the proposed detenu was evading the detention order and indulging in forum shopping, the laws of preventive detention would surely be reduced into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention would have been served on them giving them a chance to challenge the same but if the petitioners and the appellants have taken recourse to the legal remedy to challenge the order of detention even before it was executed, it is not open for them to contend that it should be quashed because there is no live link between the existing/subsequent situation and the previous situation when the order of detention was passed overlooking that they succeeded in pre-empting the order by challenging it at the pre-execution stage never allowing the matter to proceed so as to examine the most crucial question whether there were sufficient material or grounds to pass the order of detention. 21. Subsequent events or conduct in any view would be a matter of consideration for the authorities before whom the representation is filed after the grounds are served on the detenu and cannot be gone into when the only question raised is regarding the correctness and legality of the order of detention. The alternative view is bound to operate as a convenient tool in the hands of the law-breakers which has not been approved earlier by this Court in the decisions referred to earlier. 22. A fallout an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode of Criminal Procedure. In substance, the property of the proposed detenu could be attached and perhaps even be confiscated in an appropriate case. Apart from that the State can also by notification in the Official Gazette direct the proposed detenu to appear before an officer specified in the said notification at such place and time. Failure to comply with such notified direction on the part of the proposed detenu-without a reasonable cause-is made an offence punishable either with imprisonment for a term extending up to one year or with fine or both. 43. If a preventive detention order is to be quashed or declared illegal merely on the ground that the order remained unexecuted for a long period without examining the reasons for such non-execution, I am afraid that the legislative intention contained in the provisions such as Section 7 (1) (b) of the Cofeposa Act would be rendered wholly nugatory. Parliament declared by such provision that an (recalcitrant) individual against whom an order of preventive detention is issued is under legal obligation to appear before the notified authority once a notification contemplated under Section 7 (1) (b) of the Cofeposa Act is issued. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roposed detenu approached this Court without surrendering and advanced the argument that the live nexus snapped in view of the delay in executing the preventive detention order. The submission was rejected. 46. Therefore, I am of the opinion that those who have evaded the process of law shall not be heard by this Court to say that their fundamental rights are in jeopardy. At least, in all those cases, where proceedings such as the one contemplated under Section 7 of the Cofeposa Act were initiated consequent upon absconding of the proposed detenu, the challenge to the detention orders on the live nexus theory is impermissible. Permitting such an argument would amount to enabling the law-breaker to take advantage of his own conduct which is contrary to law. 47. Even in those cases where action such as the one contemplated under Section 7 of the Cofeposa Act is not initiated, the same may not be the only consideration for holding the order of preventive detention illegal. This Court in Shafiq Ahmad v. District Magistrate, Meerut [(1989) 4 SCC 556 : 1989 SCC (Cri) 774], held so and the principle was followed subsequently in M. Ahamedkutty v. Union of India [(1990) 2 SCC 1 : 1990 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 92 SCC (Cri) 301], emphatically asserted that "it is not correct to say that the courts have no power to entertain grievances against detention order prior to its execution". This Court also took note of the fact that such an inquiry had indeed been undertaken by the courts in a very limited number of cases and in circumstances glaringly untenable at the pre-execution stage. (emphasis supplied) 21. As per the above decision in Subhash Popatlal Dave (supra) mere delay in execution of detention order per se cannot lead to quashing of the same. The reasons for non-execution of the detention order deserves to be examined viz., whether the detenue is evading/ absconding or the authorities have been recalcitrant. If it is the former, then quashing may not be warranted. The aforesaid judgement of the Hon'ble Supreme Court in Subhash Popatlal Dave (supra) has been followed by coordinate Division Benches of this Court in Naushad Ali (supra) and Mohd. Nashruddin Khan (supra). 22. On the other hand, the judgements relied upon by the Petitioner with respect to the aforesaid issue of non-execution of detention order are distinguishable on the facts of the case. In Abhishek Gupta (supra) the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , except where such person is accused of having committed the offence specified in clause (10) of Article 3. Article 3 The offences for which extradition is to be granted in accordance with this Treaty are the following, namely :- (1) Murder or attempt or conspiracy to murder, (2) Culpable homicide not amounting to murder, (3) Grievous hurt, (4) Rape, (5) Dacoity, (6) Highway robbery, (7) Robbery with violence, (8) Burglary or house breaking, (9) Arson, (10) Desertion from Armed forces. (11) Offences against the laws prohibiting the export and import of goods, (12) Embezzlement by public officers, (13) Serious theft, that is to say, cases of theft where violence has been used or where the value of the property stolen exceeds Rs. 500 and cattle stealing, (14) Abduction or kidnapping, (15) Forgery and the use of what is known to be forged, counterfeiting or altering money; uttering or bringing into circulation counterfeited or altered money, (16) Receiving of illegal gratification by a public servant, (17) Escaping from custody while undergoing punishment after conviction for any of the offences specified in clauses (1) to (16)." 27. Thus, as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes when the Petitioner left India along with copies of his passport. Let the same be filed within one week." 29. In pursuance of the aforesaid order an affidavit dated 12th August, 2024 was filed by the Petitioner. In the affidavit it has been stated that the Petitioner left India in the month of July, 2014 and was admitted in Hospital in Kathmandu, Nepal from 2nd August, 2014 to 10th August, 2014. It is further stated that his earlier passport got expired so he was issued a fresh passport in September, 2014. The original Passport was shown to this court and the following order was passed on 20th August, 2024: "2. An affidavit dated 12th August, 2024 has been filed on behalf of the Petitioner placing on record the details regarding the travel of the Petitioner. 3. The case of the Petitioner in the affidavit is that the earlier passport had expired and the same is not available with the Petitioner. However, the new passport was received by the Petitioner, with effect from24th September, 2014 at Kathmandu, Nepal and from September, 2014 onwards, the Petitioner has not travelled to India. Copy of the said passport along with the relevant pages have been annexed along with the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 899371 appear to be clearly an attempt by the Petitioner not to reveal the details of the earlier passport. The passport bearing no. 07899371 has also been shown to the Counsel for the Petitioner and he was also queried regarding the missing pages 31 and 32, to which he candidly admits that the said pages 31 and 32 do not exist. 7. Both the original passports are returned to the Counsel for the Petitioner and the coloured photocopies (cover-to-cover) have been retained by the Court." 31. A perusal of the aforesaid proceedings would reflect that the Petitioner has placed on record documents which are clearly manipulated and an attempt has been made to conceal some information from this Court. It is pertinent to note that Page 31 of the Passport contains the details of the previous Passport held by the concerned person, which can be observed from Page 31 of the Passport of the Petitioner issued to him on 19th March, 2019 which has been reproduced as under: The highlighted portion shows the details of previous passport of the Petitioner issued on 24th September, 2014. 32. However, the said Page 31 has been torn from the booklet issued to the Petitioner on 24th September, 2014. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 (1) of the COFEPOSA Act was passed by the authorities on 13-9-1996 against the respondent. The respondent before surrendering filed a writ petition in the High Court on 23-10-1996 and obtained ad interim stay of the proposed order which had remained unserved. The learned Single Judge after hearing the parties vacated the ad interim relief. Thereafter, the respondent went in appeal before the Division Bench and again obtained ad interim relief on 10-1-1997 which was extended from time to time. The writ appeal has not been still disposed of. 5. When the writ petition was filed, the respondent had not surrendered. Under these circumstances, the proper order which was required to be passed was to call upon the respondent first to surrender pursuant to the detention order and then to have all his grievances examined on merits after he had an opportunity to study the grounds of detention and to make his representation against the said grounds as required by Article 22(5) of the Constitution of India. It is true as the learned Senior Counsel for the respondents submits that the appeal is partly heard before the Division Bench and the last hearing was over on 4-6-1997 and thereafter, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner cannot take advantage of the fact that he himself was evading the process of law and till date has not surrendered. Whether in a given case, a detention order should be revoked due to lapse of time is a call that should be taken by the Detaining Authority. There cannot be a mandamus issued in every case where there is a delay in executing the detention order that due to the lapse of time, it should be revoked. The conduct of the detenue would also be relevant factor. However, in a given case, where the detenue surrenders after a considerable lapse of time, the Detaining Authority may want to take a call as to whether any useful purpose would be served in continuing with the order of the detention. 5. In the present case that stage has not been reached since the Petitioner is yet to submit to the process of law. As and when the Petitioner does that, the Respondents can decide whether they need to continue with the order of detention taking into account all the relevant factors. 6. This Court is not inclined to grant the relief prayed for by the Petitioner, at this stage. 7. The petition and the application are accordingly dismissed." 36. In view of the above discussion ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
