TaxTMI 
TaxTMI 
2019 (8) TMI 340
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....rder is based on extraneous reasons inasmuch as the impugned order had been passed against the petitioner because he had raised his voice against a corrupt custom official in Patna, namely, Shri Sunil Kumar Singh who had been running a racket in Muzaffarpur to extort large amounts of money from the traders with threats that if the amount was not paid, the traders would be implicated in false cases. He pointed out that the petitioner had even filed a criminal case No. 43 of 2017 dated 12th January 2017 before the Additional Chief Judicial Magistrate (West) Muzaffarpur in this regard. 3. He submitted that the Supreme Court in Additional Secretary to the Government of India & Ors. vs. Smt. Alka Subhash Gadia &Anr., 1992 Supp(1) SCC 496 has held that a Preventive Detention order can be interfered with at the pre-execution stage if it is based on extraneous reasons. The relevant portion of the same is reproduced hereinbelow - "30. ...... Thirdly, and this is more important, it is not correct to say that the courts have no power to entertain grievances against any detention order prior to its execution. The courts have the necessary power and they have used it in proper cases as has b....
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.... impugned order. He submitted that it is settled law that in the event the Detaining Authority failed to consider the relevant material, the order would stand vitiated. In support of his submission, he relied upon Deepak Bajaj vs. State of Maharashtra & Anr., (2008) 16 SCC 14 wherein the Supreme Court has held as under:- "15. If a person against whom a preventive detention order has been passed comes to court at the pre-execution stage and satisfies the court that the detention order is clearly illegal, there is no reason why the court should stay its hands and compel the petitioner to go to jail even though he is bound to be released subsequently (since the detention order was illegal). As already mentioned above, the liberty of a person is a precious fundamental right under Article 21 of the Constitution and should not be lightly transgressed. Hence, in our opinion, Alka Subhash Gadia case [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] cannot be construed to mean that the five grounds mentioned therein for quashing the detention order at the pre-execution stage are exhaustive." 7. Learned counsel for the petitioner contended that there had been considerable delay in execution of....
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....ad alleged that the impugned order was executed on 15th May 2018, however, no report to the said effect had been brought on record. 9. Learned counsel for the petitioner stated that the petitioner had not been evading service of the impugned order as suggested by the Respondent Nos.1 & 2 and the Notification passed under Section 7(1) (b) COFEPOSA was invalid inasmuch as it was passed without taking effective steps to serve the impugned order on the petitioner. He pointed out that the address mentioned in the publication and notification under Section 7(1)(b) COFEPOSA was incorrect. He stated that the petitioner got to know about the impugned order on 04th September, 2018 only when a copy of proclamation requiring the appearance of the petitioner was affixed at his father's residence in Muzaffarpur. 10. He contended that the Petitioner had made a representation by way of a letter dated 17th September 2018 stating that he was willing to depose before the respondent authorities. He also contended that the impugned order should not be used as a tool to make a criminal case against the petitioner and the case should be investigated according to ordinary criminal law. He relied upon Su....
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....t Nos. 1 & 2 vehemently denied that the impugned order had been passed on extraneous reasons. He stated that Mr. Sunil Kumar Singh had no role to play in the passing of the impugned order as he had been transferred from his post long ago. 12. Learned counsel for Respondent Nos. 1 & 2 further contended that the impugned order was based on recent incidents and not on the show cause notice and orders passed in 2012-15 - as alleged by the petitioner. In support of his contention, he handed over, in a sealed envelope, the following documents for Court's consideration:- a. Impugned Preventive Detention Order b. Proposal For Detention Submitted By Sponsoring Authority c. Minutes of Central Screening Committee Meeting d. Grounds of Detention e. Index of Relied Upon Documents f. Notification issued under Section 7(1)(b) COFEPSA g. Steps taken by the authority to serve the petitioner 13. He further contended that the Department of Customs had succeeded in a number of cases filed against the petitioner and personal penalties imposed on the petitioner had been upheld in Appeal. He pointed out that the petitioner had wrongly stated that he had secured favourable orders in all th....
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....tion, Muzaffarpur, vide letter dated 16.05.2018 informed the SSP, Muzaffarpur about the steps taken by authorities of Town Police Station for the purpose of service of summons upon the Petitioner. The letter narrates the steps taken by police by way of searches, surveillance at the probable hide out of Petitioner till service of the detention order upon the mother of the Petitioner on 16.05.2018. Copy of the letter dated 13.02.2019 detailing the steps taken by Town Police Station, Muzaffarpur is annexed herewith as Annexure-C. 9. That vide letter dated 21.05.2018, a report was submitted by SSP, Mujjafarpur to SP (D), Patna detailing the steps taken by the concerned authorities for the service of summons. Copy of the letter dated 21.05.2018 is annexed herewith as Annexure-D. 10. That vide letter dated 01.06.2018, the CID, Patna informed the Commissioner of Customs of Patna regarding the service of the detention order upon the mother of the Petitioner. The said letter was received by the Commissioner of Customs of Patna on 07.06.2018. Copy of the letter dated 01.06.2018 is annexed herewith as Annexure-E." 15. Learned counsel for Respondent Nos. 1 & 2 emphasised that the Re....
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....SP, Muzaffarpur submitted a report to SP (D), CID, Patna, Bihar detailing the steps they had taken for service of the impugned order. The letter dated 21st May, 2018 is reproduced hereinbelow:- "Letter No. 4047/C.R. Office of the Senior Superintendent of Police, Muzaffarpur From S.S.P. Muzaffarpur To S.P.(D) Crime Investigation Department, Bihar, Patna Muzaffarpur, Date : 21/05/2018 Reference - Letter No. F.No.- PD 12001/03/2018 of Ministry of Finance, Govt. of India and Letter No. 69/No. A.A. dtd. 27.04.2018 C.I.D., Bihar, Patna. Subject - Detention of Pankaj Kumar Sharma, S/o Yashwant Kumar Sharma, Mohalla - Balughat, Brahmasthan, P.S. - Town, District - Muzaffarpur under COFEPOSA. Sir, With reference to above subject the Detention order against Pankaj Kumar Sharma was sent to local S.H.O. for service. In compliance of which it has been informed by Md. Rafique, S.I., Sikandarpur O.P., Town-P.S. vide memo no. 132/18 dated 16.05.2018 that raids have been conducted on location for detention Pankaj Kumar Sharma, S/o Yashwant Kumar Sharma, Mohalla Balughat Brahmasthan, P.S. - Town, Dist. - Muzaffarpur but he was found absent. His mother has been served a cop....
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....the Sr. S.P., Muzaffarpur for service vide this office letter No. 69/N.G.O. dated 27.04.2018. The acknowledgement of the above Detention order has been received from Sr. S.P., Muzaffarpur copy of which is enclosed with its Annexures. It has been informed by Sr. S.P., Muzaffarpur that raid has been conducted on locations of Shri Pankaj Kumar Sharma for his detention but he was found absent. A copy of the Detention order was served to his mother after explaining the Detention order. It has also been mention that confidential sources have also been deputed by Local police Station head for Detention of Pankaj Kumar Sharma. Therefore, it is requested to do further necessary action under section 7(1)(B) of COFEPOSA. Enc.: As above Additional Director General of Police Crime Investigation Department Bihar, Patna Copy to - Shri S.K. Gupta, Dy. Secretary, Govt. of India, Ministry of Finance, Deptt. of Revenue, Central Economic Intelligence Bureau, Janpad Bhawan, New Delhi for information with reference to his referred letter. Additional Director General of Police Crime Investigation Department Bihar, Patna" 18. Consequently, according to him, there was no delay in executing t....
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.... Union of India and Others Vs. Ganesh Das Bhojraj, (2000) 9 SCC 461 has held as under:- "A two-Judge Bench of this Court by order dated 15-10-1999 has referred this matter to a larger Bench by observing thus: "It appears that there is a conflict in the ratio of the decisions of this Court in Pankaj Jain Agencies v. Union of India [(1994) 5 SCC 198], CCE v. New Tobacco Co. [(1998) 8 SCC 250] and I.T.C. Ltd. v. CCE [(1996) 5 SCC 538] is also relevant. In our view it is appropriate that this appeal is to be heard by a larger Bench." xxxx xxxx xxxx xxxx 5. The contention is - the aforesaid notification was not made available to the public at large and, therefore, on the basis of the said notification customs duty cannot be levied. The learned counsel for the appellant relied upon the decision in Pankaj Jain Agencies v. Union of India [(1994) 5 SCC 198] and the learned counsel for the respondent importer has relied upon the decision in CCE v. New Tobacco Co. [(1998) 8 SCC 250] in support of their respective contentions. xxxx xxxx xxxx xxxx 8. As against this, learned counsel for the respondent referred to the decision in CCE v. New Tobacco Co. [(1998) 8 SCC 250] , para 11 & ....
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....hority or the Executing Authority made no efforts to serve the Order on the Detenu and instead published it in the Gazette an order under Section 7 (1) (b) of COFEPOSA Act Order does not appeal to us, since the former action is so much easier to undertake. On publication of such a Notice in the Official Gazette, the Detenu's knowledge of the existence of the Detention Order will have to be presumed. Therefore, the Petitioner would have to show that he had immediately surrendered pursuant to the publication of this Notice and he may then be heard to assert that a delay had occurred which has the effect of snapping links between the incident and the passing of the Detention Order. The challenge to the Order was rejected by the High Court as well as the Supreme Court. We are satisfied with the explanation that there was no inordinate or unexplained delay in the execution of the Detention Order. In Vinod K. Chawla as well as in Sheetal Manoj Gore the Court was satisfied that keeping in view the detailed account given by the Detaining Authority that the matter was being continuously processed and considered, no delay could be attributable to the issuance of the Order of Detention." ....
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....dicated vide O-I-O No. 41-CUS/JC/MTH/201718 dated 19th January, 2018 by which complete confiscation of goods valued at Rs. 8,80,000/- had been made with redemption fine of Rs. 6,00,000/. 300 kgs of Maize and paddy valued at Rs. 6,000/- used for concealment of smuggled goods had also been confiscated under Section 119 of the Customs Act, 1962 with redemption fine of Rs. 1,500/-. The vehicle bearing No. UP-78-CN-3929 valued at Rs. 16,00,000/- had been confiscated under Section 115(2) of the Customs Act, 1962 with redemption fine of Rs. 2,00,000/- and personal penalty of Rs. 1,50,000/- had been imposed upon the petitioner. 28. Also show cause notices had been issued in respect of Unit Case No. 09/2017-18 vide C. No. VIII(10)12-657/Cus/P/H/Seiz/2017/1537-41 and Unit case no. 10/2017-18 vide C.No. VIII(10)13- 674/Cus/P/H/Seiz/2017/1545-49 both dated 27th February, 2018 valued at Rs. 18,13,000/- and Rs. 1,22,01,214 respectively. 29. The handed over documents further reveal that four summons had been issued to the petitioner, namely, 05th September, 2017, 21st September, 2017, 04th October, 2017 and 18th October, 2017. However, the petitioner had neither appeared before the summoning au....