TaxTMI 
TaxTMI 
2019 (8) TMI 340
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....l for the petitioner stated that the impugned order 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 12^th 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 neces....
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....favourable orders against the confiscation orders proved that the detaining authority had not examined the relevant material before passing the 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 ord....
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...., it would have directed the Detaining Authority to forward the impugned order directly to SSP Muzaffarpur and not to DGP Bihar. He pointed out that although the Respondents had 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 i....
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....who heard the matters, but had no occasion to consider the same." ARGUMENTS ON BEHALF OF LEARNED COUNSEL FOR RESPONDENTS 11. Per contra, Mr. Rajesh Gogna, learned standing counsel for the Respondent 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 Departm....
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....ontaining the detention order was forwarded by Superintendent of Police (D) to SSP, Muzaffarpur for service vide letter dated 27.04.2018. Copy of the letter dated 27.04.2018 forwarding the detention order by SP (D) to SSP, Muzaffarpur is annexed as Annexure-B. 8. That the police authorities of Town Police Station, 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, Pat....
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.... It is further to add that Shri Mangal Singh, Sub-Inspector of Police, Sikandepur Out-post, Muzaffarpur have submitted the updated position in the case of attachment of property in respect of Shri Pankaj Sharma, S/o Shri Yashwant Kumar Sharma, Balughat, Muzaffarpur. (Copy enclosed) Sd/- 13/02/2019 Deputy Commissioner Encl: 02 Sheets Customer (P) Division, Muzaffarpur" 16. Learned counsel for Respondent Nos. 1 & 2 stated that vide letter dated 21st May, 2018, SSP, 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 - Bal....
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....04.2018 and dated 08.05.2018 respectively and letter No. C.No. VIII910)01-167/ Cus/P/H/COFEPOSA/pd- 12002/03/2018/3065 dated 09.05.2018. Subject : Compliance of Detention order against Pankaj Kumar Sharma, S/o Yashwant Kumar Sharma, Mohalla - Balughat Brahmasthan, P.S. - Muzaffarpur Town, Dist. - Muzaffarpur under COFEPOSA - regarding. Sir, In context to above reference and subject it is to inform that Detention order issued against Pankaj Kumar Sharma, S/o Yashwant Kumar Sharma, Mohalla - Balughat, Brahmasthan, P.S. - Muzaffarpur Town, Dist. - Muzaffarpur issued by Min. of Finance, Govt. of India issued under F.No. PD-12001/03/2018-COFEPOSA dtd. 09.04.2018 was sent to 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 h....
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....erate absence) had recommended issuance of a notification under Section 7(1) (b) COFEPOSA vide letter dated 1st June 2018. THE NOTIFICATION ISSUED UNDER SECTION 7(1) (b) COFEPOSA WAS PUBLISHED IN THE OFFICIAL GAZETTE ON 26th JUNE 2018, AND THEREAFTER IT WAS THE DUTY OF THE PETITIONER TO APPEAR BEFORE THE CONCERNED AUTHORITY. IT IS SETTLED LAW THAT PUBLICATION IN THE OFFICIAL GAZETTE CONSTITUTES DEEMED KNOWLEDGE OF THE NOTIFICATION. 21. The notification issued under Section 7(1) (b) COFEPOSA was duly published in the Official Gazette on 26th June 2018, and thereafter it was the duty of the petitioner to appear before the concerned authority. It is settled law that publication in the Official Gazette constitutes deemed knowledge of the notification to the person concerned. The Supreme Court in 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.....
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....the execution of the Order. It will be recalled that the Detention Order against the Petitioner was passed on 11.4.2002 and served upon him on 10.6.2002. It has been explained that the Petitioner was not available in his home despite surveillance being maintained. Consequently, an order under Section 7 (1)(b) of the COFEPOSA Act was issued on 21.5.2002, a copy whereof has been supplied in the course of the hearing. Learned counsel for the Petitioner has objected to the late filing but since it is a copy of the Gazette, the genuineness of which has not been assailed, we have taken it on record and in our deliberation. We are prima facie satisfied that the Petitioner was absconding or keeping out of the way of service upon him of the Detention Order. This is fortified by the fact that recourse has been taken to Section 7 (1) (b) of COFEPOSA Act. The possibility that the Detaining Authority 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 G....
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....had been seizure of smuggled goods, i.e., foreign origin spices on 30th August, 2017, 01st November, 2017 and 17th February, 2018, in which transactions, the petitioner is stated to be the "master mind". 27. The handed over documents also reveal that the Unit Case No.35/16-17 dated 13th October, 2016 had been adjudicated vide O-I-O No.33-CUS/JC/MZP/2017-18 dated 01st January, 2018 by which complete confiscation of goods valued at Rs. 10,00,000/- had been made with redemption fine of Rs. 3,00,000/-. The vehicle bearing No. BR-06-GA1457 valued at Rs. 4,00,000/- was also confiscated under Section 115(2) of the Customs Act, 1962 with redemption fine of Rs. 50,000/- and personal penalty of Rs. 25,000/- had been imposed upon the petitioner under Section 112 of the Customs Act, 1962. Further, another show cause notice vide C.No. VIII(10)232-T/CUS/MTH/16-17/3345-3352 dated 30th June, 2017 had been adjudicated 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 c....
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....s well as potentiality to indulge in similar acts of smuggling goods into India and it further proves existence of live-link between the incidents and issuance of the impugned order. 34. The Apex Court in Union of India and Anr. Vs. Dimple Happy Dhakad, 2019 SCC OnLine SC 875 has held as under:- "42. ......we are conscious that the Constitution and the Supreme Court are very zealous of upholding the personal liberty of an individual. But the liberty of an individual has to be subordinated within reasonable bounds to the good of the people. Order of detention is clearly a preventive measure and devised to afford protection to the society. When the preventive detention is aimed to protect the safety and security of the nation, balance has to be struck between liberty of an individual and the needs of the society. 43. Observing that the object of preventive detention is not to punish a man for having done something but to intercept and to prevent him from doing so,......" (emphasis supplied) THE ALLEGATION THAT THE IMPUGNED ORDER WAS BASED ON EXTRANEOUS REASONS CANNOT BE EXAMINED AS THE PERSON AGAINST WHOM MALA FIDES HAD BEEN ALLEGED,HAD NOT BEEN I....