2024 (10) TMI 846 - HC - Customs

Petition dismissed for challenging detention order under COFEPOSA Section 7 while absconding from legal process

Pawan Gupta Versus Union Of India & Anr.

Delhi HC dismissed petition seeking quashing of detention order under COFEPOSA Act for illegal export of Red Sanders Woods. Petitioner argued detention ... Seeking quashing of detention order at pre-execution stage - involvement with a syndicate in illegal storage and illegal exports of Red Sanders Woods, a prohibited item for export under Foreign Trade Policy read with CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora), in the guise of genuine exports - primary contention of the Petitioner is that despite Nepal’s address being in knowledge of the Respondents, the detention order was not served upon him at the said address - HELD THAT:- The Hon’ble Supreme Court in Subhash Popatlal Dave [2013 (8) TMI 8 - SUPREME COURT] while examining the issue whether the detention order can be quashed merely on the ground that there was a long delay in execution of the same at the pre-execution stage by way of the majority decision has observed and held '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.' In the present case the Petitioner was not available at any given address for its execution in India. The Petitioner’s stand is that the detention order has to be executed on his Nepal address which was not done by the Respondents herein. The said stand is not tenable - It has already come on record that the Respondents had taken all the possible steps as provided for in the COFEPOSA Act to ensure the presence of the Petitioner, however the latter did not surrender before any authority and continues to evade the process of law. This Court is of the considered opinion that the only procedure for serving the detention order on the Petitioner, is in the manner provided under the Section 4 of the COFEPOSA Act, i.e., by detaining the person on whom the order is served, in the absence of the same, the proceedings as contemplated under Section 7 of the COFEPOSA Act are required to be initiated in case the proposed detenue has absconded - the Court has no option but to draw an inference that the said passport may have in fact established that the Petitioner has evaded the service of the Detention Order. Presence of Petitioner’s wife during the search conducted at his alleged residence in South Extension may have a role in his disappearance from India. The Petitioner for the present purposes, due to the non-production of the relevant passport document, would have to be treated as a person who has absconded deliberately. Nothing has been shown to prove otherwise or to establish the bona fide of the Petitioner. The prayer of the Petitioner with respect to non-consideration of the representation dated 3rd July, 2017 is also not maintainable as the right of representation to the detenu is available post execution of the said detention order in terms of Article 22(5) of the Constitution of India. Thus, in the facts and circumstances of the case, the Court finds no ground to interfere with the detention order dated 27th April, 2015 bearing F. NO. 673 /13/2015-CUS.VIII issued against Sh. Pawan Gupta under section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act, 1974 by the Respondent No. 2 at this stage. Petition dismissed. Issues Involved:1. Quashing of the detention order at the pre-execution stage.2. Delay in the execution of the detention order.3. The legality of serving the detention order on the petitioner at his Nepal address.4. The validity of proceedings under Section 7 of the COFEPOSA Act.5. Consideration of the representation dated 3rd July 2017.Issue-wise Detailed Analysis:1. Quashing of the Detention Order at Pre-execution Stage:The petitioner sought to quash the detention order dated 27th April 2015 under Section 3(1) of the COFEPOSA Act at the pre-execution stage. The court analyzed the principles laid down in the case of Addl. Secy. to the Govt. of India v. Alka Subhash Gadia, which limits the grounds for challenging a detention order before execution. The court emphasized that the order of detention is not fit to be quashed merely due to a long lapse of time, especially when the petitioner has evaded the detention order. The court held that the petitioner must first surrender, and then the grounds of detention can be challenged.2. Delay in Execution of the Detention Order:The petitioner argued that the delay in executing the detention order indicated that the live link between the grounds of detention and the purpose of detention had snapped. The court referred to the Supreme Court's judgment in Subhash Popatlal Dave, which states that mere delay in execution does not automatically invalidate the detention order. The reasons for non-execution, such as the petitioner absconding, were considered, and it was concluded that the delay was due to the petitioner's evasion, not the authorities' inaction.3. Legality of Serving the Detention Order on the Petitioner at His Nepal Address:The petitioner contended that the detention order should have been served at his Nepal address. The court found this argument untenable, as Section 4 of the COFEPOSA Act provides for execution similar to an arrest warrant under the Cr.P.C., which requires physical detention. The court noted that the extradition treaty with Nepal does not cover the offenses under the COFEPOSA Act, making extradition unfeasible. Therefore, the detention order could not be executed in Nepal.4. Validity of Proceedings under Section 7 of the COFEPOSA Act:The court examined the initiation of proceedings under Section 7 of the COFEPOSA Act, which applies when a person absconds. The court noted that the respondents had taken all necessary steps, including issuing a Look Out Circular and initiating extradition efforts. The court held that the petitioner had evaded the process of law, and the proceedings under Section 7 were justified, thus maintaining the validity of the detention order.5. Consideration of the Representation Dated 3rd July 2017:The petitioner sought a direction for the consideration of his representation dated 3rd July 2017. The court clarified that the right to representation is available post-execution of the detention order as per Article 22(5) of the Constitution. Therefore, the petitioner's request was premature, and the court found no grounds to interfere with the detention order at this stage. However, the court noted that if the petitioner surrenders, the representation may be considered by the competent authority, considering the time elapsed since the order's issuance.Conclusion:The court dismissed the petition, upholding the detention order's validity and emphasizing the petitioner's obligation to surrender before challenging the order. The court reiterated the importance of not allowing individuals to evade the law and then claim relief based on procedural delays.