TaxTMI 
TaxTMI 
2004 (12) TMI 670
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....ly based on the ground that on the basis of information received on 8.1.2002 by the Special Investigation Branch, Kolkata Customs, seven containers of (7 x 20') and one container of (1 x 40') were offloaded, from the vessel of Vishakapatnam Port were detained and examined. The allegation was that few Kolkata based exporters have exported on 5.1.2002 readymade garments, ball pens and side rubber wheels grossly mis-declaring the quantity, description and value with an ulterior motive to avail undue drawback worth crores of rupees. Detenu who was the proprietor of M/s. Shyam Sunder Enterprises had exported some of the containers. After opening the consignments, substantial shortage in quantities were detected. It appeared that the goods were highly over invoiced and even mis-declared in respect of description of certain items. There was grave difference in the actual quantity and the quantity of garments and ball pens and side rubber wheels that were to be exported with that of those articles which were actually found in the container at the port. It was concluded that all these were done with the sole intention of getting huge amount of foreign currency. Investigations were d....
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....y the Central Govt. as required under Section 11 of the COFEPOSA. The stand was opposed by the Detaining Authority. The counter affidavit was filed. A rejoinder was filed by the writ petitioner purportedly with a view to clarify some of the statements made in the counter affidavit. The High Court found that there was no unusual delay in passing the order of detention. But it was held that there was undue delay in initiating the process i.e. the proposal for detention by the sponsoring authority. It was held that there was unexplained delay in passing the order of detention. It was also held that there was unusual delay in executing the order of detention. While the other pleas of the detenu were rejected, it was observed that there was unexplained delay in disposing of the representations and the solitary instance highlighted by the Detaining Authority was not sufficient to justify the order of detention. The rejection of representation by Central Government was without application of mind. Aggrieved by such judgment of the High Court, as noted above, this Appeal has been filed. It was submitted by the learned counsel appearing for the appellants that the High Court did not take....
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....anding that the order has been made by an officer of a State Government, by that State Government or by the Central Government; (b) notwithstanding that the order has been made by an officer of the Central Government, or by a State Government by the Central Government." In any event, it was submitted, the detenu was released on 23.8.2003 and more than one year has passed, the detenu had suffered detention for more than eight months and after considerable length of time it would not be proper to send him back. Before dealing with rival submissions, it would be appropriate to deal with the purpose and intent of preventive detention. Preventive detention is an anticipatory measure and does not relate to an offence, while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The object of the law of preventive detention is not punitive but only preventive. It is resorted to when the Executive is convinced that such detention is necessary in order to prevent the person detained from acting in a manner prejudicial to certain objects which are specified by the concerned law. The action of Executive in detai....
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....o be administered under strict constitutional restrictions. In Smt. Ichhu Devi v. Union of India (AIR 1980 SC 1983), this judicial commitment was highlighted in the following words: "The Court has always regarded personal liberty as the most precious possession of mankind and refused to tolerate illegal detention, regardless of the social cost involved in the release of a possible renegade". "This is an area where the Court has been most strict and scrupulous in ensuring observance with the requirement of the law and even where a requirement of the law is breached in the slightest measure, the Court has not hesitated to strike down the order of detention". In Vijay Narain Singh v. State of Bihar (AIR 1984 SC 1334), Justice Chinnappa Reddy in his concurring majority view said: ".....I do not agree with the view that those who are responsible for the national security or for the maintenance of public order must be the sole Judges of what the national security or public requires. It is too perilous a proposition. Our Constitution does not give as carte blanche to any organ of the State to be the sole arbiter in such matter......" ".....There are ....
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....s Pacham Dales' case: (1881 (6) QBD 376: "Then comes the question upon the habeas corpus. It is a general rule, which has always been acted upon by the Courts of England, that if any person procures the imprisonment of another he must take care to do so by steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity the Court will not allow the imprisonment to continue." Article 21 of the Constitution having declared that no person shall be deprived of life and liberty except in accordance with the procedure established by law, a machinery was definitely needed to examine the question of illegal detention with utmost promptitude. The writ of habeas corpus is a device of this nature. Blackstone called it "the great and efficacious writ in all manner of illegal confinement". The writ has been described as a writ of right which is grantable ex dobito justitae. Though a writ of right, it is not a writ of course. The applicant must show a prima facie case of his unlawful detention. Once, however, he shows such a cause and the return is not good and sufficient, he is entitled to this writ as of right. In cas....
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....ically indicate the authority to whom the representation is to be made, such indication is also part of the move to facilitate an expeditious consideration of the representations actually made. While dealing with a habeas corpus application undue importance is not to be attached to technicalities, but at the same time where the court is satisfied that an attempt has been made to deflect the course of justice by letting loose red herrings the Court has to take serious note of unclean approach. Whenever a representation is made to the President or the Governor instead of the indicated authorities, it is but natural that the representation should indicate as to why the representation was made to the President or the Governor and not the indicated authorities. It should also be clearly indicated as to whom the representation has been made specifically. The President as well as the Governor, no doubt are constitutional Heads of the respective Governments but day to day administration at respective levels are carried on by the Heads of the Department-Ministries concerned and designated officers who alone are ultimately responsible and accountable for the action taken or to be taken in....
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....High Court had not properly appreciated the factual scenario. It had in fact noted that there was some delay in passing the order of detention. It referred to the Writ Petitions filed before the Calcutta High Court and the orders passed in those cases. It also noted that the proposal was sent on 4.7.2002 and the statement of the detenu was recorded on 16.7.2002. The proposal for detention was considered by the Central Screening Committee on 18.9.2002 and after consideration of all relevant materials, the order of detention was passed on 20.11.2002. The details of the various steps taken were filed before the High Court. It appears that after the process of investigation started in January, 2002 consequent upon seizure of goods was on 24.1.2002. Writ Petition No. 145 of 2002 was filed in the Calcutta High Court and an interim order was passed staying further effect on the summons and maintenance of status quo of examination of goods. Reply was filed on 12.2.2002. Another Writ Petition No. 366 of 2002 was filed on behalf of the detenu on 20.2.2002. The High Court passed a direction for personal appearance of detenu on 28.2.2002. The date of personal appearance was adjourned to 5.3.20....
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....f the order were sent to the Commissioner of Police on 26.11.2002. In spite of keeping the house under surveillance by the concerned officers and the police officers, he could not be traced. Finally he was arrested on 27.12.2002. It is not a case where there is unusual gap between the date of the order of detention and the actual arrest. The various steps taken by the authorities as noted above clearly indicate that all possible efforts were being taken to arrest the detenu, but he successfully evaded arrest. The High Court was not justified in coming to the conclusion that there was unusual delay in executing the order of detention. So far as the finding of the High Court that there was only one incident is really a conclusion based on erroneous premises. It is not number of acts which determine the question as to whether detention is warranted. It is the impact of the act, the factual position as highlighted goes to show that the financial consequences were enormous and ran to crores of rupees, as alleged by the Detaining Authority. The High Court seems to have been swayed away that there was only one incident and none after release on bail. The approach was not certainly corr....