TaxTMI 
TaxTMI 
TaxTMI 
2020 (9) TMI 697
X X X X Extracts X X X X
X X X X Extracts X X X X
....sues raised in all the three petitions are the same, we proceed to decide these petitions by this common judgment. 2. The reliefs sought by each of the petitioners is to seek quashing of the respective Detention Orders issued by respondent No.2 against each of them dated 21.01.2020 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act), and all consequential proceedings arising therefrom. The petitioners also assail the respective notifications issued by respondent No.2 in respect of each of them under Section 7(1)(b) of the COFEPOSA Act dated 17.03.2020 [in the case of the petitioner Mohd Nashruddin Khan(MNK)], dated 08.06.2020 (in the case of Gopal Gupta), and dated 17.03.2020 [in the case of Amit Pal Singh (APS)]. The petitioners have challenged the aforesaid Detention Orders at the pre-execution stage. 3. The submission of Mr. Vikram Chaudhri, Sr. Advocate appearing for the petitioners is that a writ petition challenging the Detention Order - at the pre-execution stage, is maintainable, as held by the Supreme Court in Additional Secretary to Government of India and Others Vs. Smt. Alka Subhash Gadia and Anr, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ressed to the CMM on 26.05.2019. 7. Before the Court, on 29.05.2019, the DRI - in response to the bail applications moved by the three petitioners, conceded that no case of duty evasion was made out. All the three petitioners were released on bail by the learned CMM on 03.06.2019. On 20.06.2019, the petitioner MNK moved an application before the learned CMM wherein he furnished his address of Dubai, UAE for verification. He also disclosed that though his permanent address is at Rasulpur Adampur @ Rampur Dist. Mau, U.P, but he was not on talking terms with his parents and, hence, he was residing with his friends. He also disclosed that service of any process may be affected upon him through his counsel situated at Delhi. 8. The petitioners have disclosed that W.P. (Crl) 173/2019 was filed by IMNPL seeking quashing of the entire investigation and for release of goods. In those proceedings, the Court directed that no coercive steps be taken against the petitioner IMNPL. In W.P.(C) 8707/ 2019 - filed by IMNPL for release of the goods, the Court directed that decision be taken on the petitioner"s representation dated 31.07.2019 within four weeks. 9. The petitioner MNK further states ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sport was not released. This position was noticed by the Court in the proceedings held on 07.01.2020. On 21.01.2020, the impugned Detention Order came to be passed in the aforesaid background. 12. On 11.02.2020, the petitioner MNK preferred W.P.(Crl.) 63 of 2020 before the Supreme Court - challenging the Detention Order. The Supreme Court permitted the petitioner to approach this Court vide its order dated 16.03.2020. On 17.03.2020, the respondents issued the notification under Section 7(1)(b) of the COFEPOSA Act qua MNK. The petitioners state that since 22.03.2020, in view of the on-going pandemic, the borders were sealed and public transport was stopped. Janta Curfew was enforced. On 25.03.2020 country-wide lockdown was ordered for 21 days. 13. In so far as the petitioner Gopal Gupta (the petitioner in W.P.(CRL) 1009/2020) is concerned, he states that in response to the invitation received from MNK of M/s MN Khan Jewellers (FZE) - based in UAE, by IMNPL -for participation in a private jewellery exhibition at UAE from 18.02.2019 to 13.03.2019, IMNPL obtained the approval of the Gems and Jewellery Export Promotion Council for participation in the said exhibition. On 20/21.02.2019....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rs of their being detained/ arrested. The petitioners were granted bail on 03.06.2019 on the statement made on behalf of the DRI, that the case against the petitioners was not one of duty evasion. So far as the petitioner MNK is concerned, he was religiously persecuted. In respect thereof, he also made his complaint. The petitioner MNK was granted permission to travel abroad. Despite the said order, his passport was not released, and he was not allowed to travel abroad. The challenge made by the DRI to the said permission and to the release of the passport before this Court, failed. The petitioner MNK had to initiate Contempt Proceedings on account of non-compliance of the orders passed by this Court. The directions issued in the writ petition preferred by IMNPL (W.P.(C) 8707/2019) - whereby the respondents were directed to decide the representation for release of goods within four weeks, was not complied with. Consequently, Contempt proceedings had to be filed against the Officers of Customs at DRI. Mr. Chaudhri also draws our attention to the observations made by the CESTAT against the respondents while permitting provisional release of the goods in its order dated 13.11.2019. IM....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ation of its satisfaction regarding the need to detain the petitioners under Section 3(1) of the COFEPOSA Act. Mr. Chaudhri has taken us through the evolution of law right from Alka Subhash Gadia (supra) to Deepak Bajaj v. State of Maharashtra and Another, (2008) 16 SCC 14, wherein the Supreme Court held that the five conditions on which a Detention Order could be challenged at the pre-execution stage were only illustrative, and not exhaustive. It was further held that non placement of vital documents before the detaining authority would be a good ground to quash a Detention Order at the pre-execution stage. 19. In Subhash Popatlal Dave Vs Union of India & Another, (2012) 7 SCC 533 (Subhash Popatlal Dave1), the ratio of Deepak Bajaj (supra) was reiterated. 20. Mr. Chaudhri further submits that in the second case of Subhash Popatlal Dave, reported as (2014) 1 SCC 280, (Subhash Popatlal Dave2) the same 3-Judge Bench, by majority, held that if the proposed detenue absconds or evades the execution of the Detention Order, and subsequently challenges the order of detention at the pre-execution stage after a long lapse of time, he could not take advantage of non-execution of the order, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....they have been associated with the investigation; they were arrested and released on bail, and there is no allegation of non-compliance of any condition imposed upon them. Immediately upon coming of know of the existence of the Detention Orders, they have knocked the doors of this Court. 26. Mr. Chaudhri submits that if the respondents" plea, that merely because an order is notified by the Government in the Official Gazette under the first part of Section 7(1)(b), the intended detenues" right to seek redress at pre-execution stage gets extinguished is accepted, it would tantamount to barring constitutional remedies for such proposed detenues. That could have never been the ratio of Subhash Popatlal Dave2 (supra). 27. Mr. Chaudhri submits that in the case of MNK, he had approached the Supreme Court vide W.P.(Crl) No. 63/2020 on 11.02.2020, challenging the impugned Detention Order when, vide order dated 16.03.2020, the said petition was disposed of in the presence of the Respondents with permission to approach this Court. No submission was made by the Respondents that action under Sec. 7 of COFEPOSA has been initiated against the Petitioners, whereas, on the very next day i.e. 17.0....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hri points out that APS was not even remotely aware about the existence of the impugned Detention Order. On account of serious family issues - especially the old age and general indisposition of his father, APS has been frequently residing at his father"s home located in Delhi. Sometimes, APS"s father stays at his home. Even during the period of lockdown, APS has been staying at his father"s home. APS was informed by his wife about the visits of some persons claiming themselves to be some officials; however, it could not even be remotely countenanced that those visits may have been related to COFEPOSA. Needless to say, that ever since the onslaught of atrocities by the DRI, some or the other department has been instigated by the DRI to hound and indulge in witch-hunt against the Petitioners. It is alleged that the DRI and its coterie of vested interests have indulged in such overreach, without even considering the APS"s peculiar family circumstances where a baby girl has arrived only a few months back. 34. Mr. Chaudhri submits that insofar as Notification under Section 7 qua Gopal Gupta is concerned, a pretence to execute the order is being shown. No reason is forthcoming as to wh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hority which has to apply his mind to all the materials placed before him, and form a subjective satisfaction in the matter with regard to the need to preventively detain the proposed detenue. 39. He further submits that the Supreme Court has held that the basis of detention is the satisfaction of the Executive - of a reasonable probability of the likelihood of the detenue acting in a manner similar to his past acts, and preventing him by detention from doing the same. It has been further held that there is no parallel between prosecution in a court of law, and a Detention Order under the Act. One is a punitive action, and the other is a preventive act. The Supreme Court in unequivocal terms has observed that action taken under Section 3 does not overlap with prosecution, even if it relies on certain facts for which prosecution may be launched, or may have been launched. An order of preventive detention may be made before, or during prosecution. An order of preventive detention may be made with, or without, prosecution and in anticipation, or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. In this regard, reliance is pl....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the passing of the Detention Order, would amount to examining the sufficiency of the material relied upon by the Detaining Authority at the pre-execution stage, which is not permissible. In this regard, he places reliance on Subhash Popatlal Dave 2 (paragraph 15) followed in Pankaj Kumar Shukla v. UOI 2015 SCC Online Del 995 (paragraph 29). 44. Mr. Mahajan submits that reliance placed on the judgments in Deepak Bajaj (supra) is misplaced, because the said judgement was passed in the peculiar facts of that case (see para 15, 18, 29, 31 of Deepak Bajaj (supra)). He submits that the decision in Deepak Bajaj (supra) stands impliedly overruled by the subsequent 3-Judge Bench in Subhash Popatlal Dave 2 (supra). He submits that all the relevant and vital documents were placed before the Detaining Authority, and only after arriving at its subjective satisfaction, the Detaining Authority passed the Detention Order. When the petitioner has not even been served with the Grounds of Detention and the Relied Upon Documents, on the basis of their bald and frivolous allegations about non-placement of the vital documents by the Sponsoring Authority before the Detaining Authority, roving and fishi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....; para 2,3 ii) The sponsoring authority had not even issued a show cause notice; para18 iii) No explanation for delay had been tendered; para 22 iv) That a certain status report, which negated the passing of the Detention Order, was not placed before the Detaining Authority. Para 4,15 49. He submits that in view of the aforesaid peculiar facts and circumstances, the Supreme Court quashed the Detention Order at the pre-execution stage. 50. He submits that the facts and circumstances of the present case are completely dissimilar from the facts in Rajinder Arora (supra). 51. On the aspect of abscondence, Mr. Mahajan submits that each of the petitioners had been deliberately absconding and, therefore, the Detention Orders could not be served upon them and executed. He submits that the Detention Orders are required to be executed through the local police, and in respect of each of the petitioners reports were called with regard to the status of the execution order. He has placed on record the relevant correspondences in this respect. 52. On 25.02.2020, the Deputy Secretary to the Government of India in the CEIB (COFEPOSA wing) sent a communication to the Principal Director Gen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n reading of Section 7 of the COFEPOSA Act. 53. In relation to the petitioner Gopal Gupta, Mr. Mahajan has placed on record the report sent from the office of the Commissioner of Police, Delhi to the Joint Secretary, Ministry of Finance, Department of Revenue, CEIB, COFEPOSA Unit on 17.03.2020, which states that as per the report of the SHO, Mayur Vihar, the detenue could not be traced despite sincere efforts. The report of the DCP/ East District was enclosed with the said communication. 54. Similarly, in relation to the petitioner APS, Mr. Mahajan submits that he was not found at his given address, which justifies the conclusion that the petitioner APS was absconding and evading the service of Detention Order upon him. 55. Mr. Mahajan submits that the Supreme Court in Subhash Popatlal Dave 2 (supra) has held that a detenue cannot be allowed to take advantage of his own conduct and challenge the Detention Order on the plea that purpose of execution of Detention Order no longer survived, especially in view of the fact that the notification under Section 7(1)(b) had been issued. 56. Mr. Mahajan submits that the argument of learned senior counsel for the petitioner that in Subhash....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ll consider dropping of the proceedings. In the present case, no further proceeding before the magistrate could be initiated, because of the passing of the interim order by this Hon"ble Court. 59. We have given our thoughtful consideration to the entire matter. We have examined the submissions, the documents and the case law relied upon by learned counsels in support of their submissions. 60. There is no doubt that a Detention Order can validly be assailed even at the pre-execution stage. This position was recognised by the Supreme Court in Alka Subhash Gadia (supra). Alka Subhash Gadia (supra) enlists some of the grounds on which the detention order could be assailed even prior to execution. Those grounds are illustrative, and not exhaustive as held in Deepak Bajaj (supra). At the same time, "As a general rule, an order of detention passed by a detaining authority under the relevant "preventive detention" law cannot be set aside by a writ court at the pre-execution or pre-arrest stage unless the court is satisfied that there are exceptional circumstances specified in Alka Subhash Gadia [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] . The Court must be conscious and mindful of the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution. 33. Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu. 34 ..... ..... ..... The principles which can be broadly stated are these. First, merely because a detenu is liable to be tried in a criminal court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act. Second, the fact that the Police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate issuing a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of Subhash Popatlal Dave2 (supra), the writ petitioner(s) are precluded from challenging the Detention Orders at this stage on account of such abscondence. The last issue noticed hereinabove is intertwined with the issue: whether the issuance of notification under Section 7(1)(b) of the COFEPOSA Act in respect of the petitioners is justified, or not. 64. The submission of the petitioners is that the respondents have acted with malice in fact, and in law. In this regard, Mr. Chaudhri has made reference to, inter alia, the orders passed by the Courts/ Tribunals in different petitions from time to time. The submission of Mr. Chaudhri is that the conduct of the respondents shows that they failed to comply with the Court"s orders, directing the respondents to take a decision on the representation made for release of the goods, and the respondents also did not release the passport of the petitioner MNK despite specific directions. Consequently, the petitioners were driven to filing contempt proceedings against the officers of the respondents. 65. Allegations made by the petitioners with regard to their detention beyond 24 hours; recording of their statements under coercion, or duress,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as also advanced the submission that vital documents were presumably either not placed before, or considered by the Detaining Authority while passing the Detention Orders against the three petitioners. As pointed out by Mr. Mahajan, this plea is premature since the Detention Orders, the Grounds of Detention, and the Relied Upon Documents have not yet been served upon the petitioners, and this submission of the petitioners cannot be substantiated by the petitioners at this stage. There is no basis for such a plea being raised. The said plea is a shot in the dark. This Court cannot presume at this stage, that any vital or material document was not placed before the Detaining Authority, or considered by it before passing of the Detention Orders. In fact, the presumption is to the contrary - that the acts performed by the Detaining Authority are valid, and it is for the petitioners who assail the action of the Detaining Authority to establish that the action is invalid. We, therefore, reject this plea of Mr. Chaudhri. 67. Mr. Chaudhri has also argued that there is inordinate delay in passing of the Detention Orders. In support of this submission, Mr. Chaudhri has argued that the petit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng on and the show-cause notice was issued by the DRI on 26.09.2020. The matter was examined keeping in view the tendency of the petitioners and their propensity to indulge in the acts of smuggling, which is detrimental to the economic security of the country. Accordingly, proposals for invoking the provisions of the COFEPOSA Act were mooted in the second week of October 2019. In the meantime, further overseas evidence was received from SPA Dubai in the first week of November 2019. The proposal to detain the petitioners was further analysed keeping in view the strong tendency to indulge in smuggling activities in future. The proposal for preventive detention of the petitioners was sent to the Detaining Authority on 02.01.2020. The proposal was placed before the Central Screening Committee on 13.01.2020, and the recommendations of the Central Screening Committee (CSC) were submitted to the Detaining Authority on 14.01.2020. The proposals were examined by the Detaining Authority, and after arriving at his subjective satisfaction, the Detaining Authority passed the Detention Orders dated 21.01.2020. 69. In our view, the aforesaid satisfactorily explains and justifies the time consume....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in Court cannot be called an absconder. 72. In respect of the petitioner APS, Mr. Chaudhri has submitted that he too had moved an application before the learned CMM for clarification of the order dated 22.01.2020 vide which the learned CMM had taken the rejection of retraction on record in an ex-parte manner. Mr. Chaudhri submits that APS was not even remotely aware about the existence of the impugned Detention Order. On account of the serious family issues, especially the old age and general indisposition of his father, APS was residing at his father"s home located at Delhi. Even during the period of lockdown, APS has been residing at his father"s home. Mr. Chaudhri submits that the petitioner"s wife informed the petitioner APS that persons claiming themselves to be officials had visited his residence in his absence. However, the petitioner"s wife was not aware of the identity of the said officers and the petitioner could not even remotely imagine that those visits were made in relation to, or for service of the Detention Orders. 73. So far as the petitioner Gopal Gupta is concerned, Mr. Chaudhri has submitted that no attempt was made to execute the detention order at his native....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Code of Criminal Procedure shall apply in respect of such person and his property as if the order directing that he be detained, is a warrant issued by a Magistrate. The second step that the Government could take was to notify an order in the official gazette directing the said person to appear before such officer, at such place and within such period as may be specified in the order and if the said person fails to comply with such direction, he would be punishable with imprisonment for a term which may extend to one year, or with fine, or with both. The person concerned, however, has the right to prove that it was not possible for him to comply with the order and that he had within the period specified in the order, informed the officer mentioned in the order of the reasons which render compliance therewith impossible, and of his whereabouts. 76. Mr. Chaudhri submits that the respondents have proceeded to bypass the steps that the Government could have taken under Clause (a) of Section 7(1) and straightaway notification under Section 7(1)(b) has been issued only to be able to label the petitioners as absconders - which they are not. 77. On the other hand, Mr. Mahajan has argu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....garding the efforts made to serve the Detention Order on the proposed detenue. Vide their letter dated 05.03.2020, the Sponsoring Authority forwarded the execution report dated 26.02.2020 received from the Office of the DCP, West District, New Delhi, which was received in the CEIB on 11.03.2020. Founded upon the said communication, the matter was posted for issuance of the notification under Section 7 of the Act. The communication dated 26.02.2020 issued by the ACP, West District, New Delhi, in relation to the execution of the Detention Order upon the petitioner APS, inter alia, states: "... ... ... that as per report of SHO/Rajouri Garden a fresh enquiry has been got conducted by local police at given address House No. ED-118, First Floor Tagore Garden, New Delhi where Harpreet Kaur W/o Sh. Amit Pal Singh Mob.:-9971268383 met and stated that the above said person was not residing at the given address. Sh. Bhupinder Singh S/o Late S. Gurdit Singh R/o House No. L-64 New Mahavir Nagar, Tilak Nagar, New Delhi Mob. No. 9811165233 (father of Amit Pal Singh) also examined and he also stated that he does not know whereabouts of Amit Pal Singh. Further enquiry, was conducted from the loc....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... considered the respective submissions on these aspects, we are of the view that there is no merit in the petitioners" submissions that neither of the three petitioners was not absconding. Abscondence is not only a matter of physical disappearance, but also carries with it the intent to hide, disappear, or evade the concerned person, or authority. 83. The petitioner MNK - while stating that he would not be found at his permanent address on account of his relationship with his parents not being good, failed to provide the actual address where he could be found. Even if the petitioner MNK was residing with his friends - as claimed by him, he should have provided the actual address where he would be residing, and if he were to shift from one address to the other, it was obligatory on him to keep the authorities posted of his current address to ward off the charge of abscondence. Had the petitioner MNK intended not to evade service of Detention Order, he would not have provided only his counsel"s address for the purpose of service of communications and notices. Service/ execution of Detention Order could, possibly, have not been effected on the counsel of the petitioner MNK. The purpo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d the date of arrival of her husband. This again, we find to be rather unusual that a wife would not know where her husband has gone and would not even know when he would arrive. In today"s day and age - when mobile communication is common place, we find the statement made by the petitioner Gopal Gupta"s wife Smt. Smita to be unacceptable and clearly the idea was to suppress the information with regard to the whereabouts of Gopal Gupta. The stand now taken by the petitioner Gopal Gupta - that he was at his father"s residence, is completely contradicted with the statement of his wife Smita. 86. The submission of Mr. Chaudhri - that the abscondence of the petitioners in the present petition was for too short a period, unlike in the case of Subhash Popatlal Dave2 (supra) and, therefore, their abscondence would not come in the way of their pressing these petitions, has only to be noted to be rejected. The time duration for which the proposed detenue absconds is not material. What is material is that he has deliberately absconded, and taking advantage of such abscondence, he approaches the Court to assail the Detention Order at the pre-execution stage. It is the act of deliberate absco....