2024 (4) TMI 919 - HC - Customs

Detention order under COFEPOSA Section 3(1)(i) upheld despite SAFEMA proceedings and time lapse

Delhi HC dismissed a writ petition challenging a detention order under COFEPOSA dated 02.05.2005. The detenu's legal heirs sought to quash the order, ... Detention Order under COFEPOSA - legal heirs of detenu - Smuggling - diesel oil of foreign origin - seeking to impugn detention order dated 02.05.2005 on the ground that proceedings under SAFEMA have been initiated (action against detenu was initiated under SAFEMA during his lifetime) - HELD THAT:- As per investigation conducted by DRI, detenu was found to be the person who was directly involved in the smuggling and for organizing the finances as well as logistic and, therefore, detention order passed under Section 3(1)(i) of COFEPOSA was fully justified. It is also reiterated that detenu, when he was alive, could have easily prayed this Court for disposal of his writ petition on merit but he himself submitted that it be dismissed as withdrawn with liberty to raise all the issues in case of initiation of any proceedings under SAFEMA. Petitioner is not justified in asserting that the earlier writ petition was withdrawn on 16.08.2007, with liberty as sought for, as it could not reach for final hearing. The orders available on website rather indicate that at one earlier point of time the final arguments were heard on merits and the matter was even reserved for judgment. Be that as it may, there is nothing to infer that the detenu had withdrawn the petition as it could not reach final hearing. On the contrary, he himself had sought withdrawal, albeit, with liberty, as aforesaid. After the demise of detenu, fresh summons and Notice in connection with proceedings under SAFEMA have been issued to his legal heirs. We have seen such communication dated 15.02.2019 and 08.12.2021. In later communication, detenu has been referred as affected person no. 1 (AP-1) and his wife as affected person no. 2 (AP-2) and according to such notice, there are two immovable properties in possession of AP-2 and she has, merely, been called upon to indicate the source of income or the means through which said two properties had been acquired. In case, affected person is in a position to satisfactorily explain about the manner in which the properties were acquired, naturally, there might not be any adverse action of any kind under SAFEMA. Thus, the petitioner can always respond to such notice appropriately - coming back to the instant petition, there is nothing here which may compel to quash the detention order. Contentions made by the petitioner are found to be without any substance. There is nothing to indicate that detenu did not know English and it is also quite obvious that detenu was evading service and execution of the ‘detention order’ and since the repeated visits at his premises did not yield any result, eventually, publication had to be carried out in newspaper - There is also nothing which may portray that the time lapse, between detention order and its execution, is such as would lead to the inference that the live-link between the prejudicial activity of the detenu and the object of detention, namely, to prevent him from indulging in such prejudicial activity, stood snapped. The petitioner herein is always at liberty to agitate all contentions in such proceedings under SAFEMA and she would also be at liberty to agitate about the delay in initiation of such proceedings - there are no merit in the writ petition. The writ petition is dismissed. Issues Involved:1. Knowledge of English language by the detenu.2. Delay in execution of the detention order.3. Non-application of mind by the detaining authority.4. Non-supply of documents to the detenu.Summary:1. Knowledge of English Language by the Detenu:The petitioner argued that the detenu had studied in Urdu medium and had no workable knowledge of English, rendering the detention order and related documents served in English ineffective. However, the detenu had made a statement u/s 108 of the Customs Act, 1962, in which he claimed to understand English. This was further substantiated by his handwritten endorsement in English confirming the voluntary nature of his statement. The court found no merit in the petitioner's claim, noting that the detenu had previously filed an affidavit in English, indicating his understanding of the language.2. Delay in Execution of the Detention Order:The petitioner contended that there was gross delay in executing the detention order, suggesting a lack of genuine subjective satisfaction by the detaining authority. The court examined the efforts made by the authorities to serve the detention order, including multiple visits to the detenu's residence and publication in newspapers. The court concluded that the delay was due to the detenu absconding and avoiding service, thus attributing the delay to the detenu's own conduct.3. Non-application of Mind by the Detaining Authority:The petitioner argued that the detaining authority failed to consider that the responsibility for bringing the diesel oil was not of the detenu but of another individual, Bobby Chully. The court held that the detenu was directly involved in smuggling activities, including organizing finances and logistics, justifying the detention order u/s 3(1)(i) of COFEPOSA.4. Non-supply of Documents to the Detenu:The petitioner claimed that the documents demanded by the detenu were not supplied, preventing him from making an effective representation against the detention order. The court found no substantial evidence to support this claim and dismissed it.Conclusion:The court dismissed the writ petition, finding no merit in the petitioner's contentions. It was established that the detenu knew English, the delay in executing the detention order was due to the detenu's own actions, the detaining authority had applied its mind correctly, and there was no evidence of non-supply of documents. The interim order passed on 13.03.2004 was vacated, and the petition was disposed of accordingly.