TaxTMI 
TaxTMI 
2020 (10) TMI 185
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....hority brought to the notice of the Detaining Authority i.e. respondent No.1 the following facts :- One International passenger, namely, Shri Abhishek Bhavanbhai Ranpariya arrived at Terminal - 3, New Delhi by Flight No. AI-315 dated September 3, 2019 from Hongkong. He was in transit in Delhi and was travelling to Mumbai by Flight No.AI-315 dated September 3, 2019. Two domestic passengers, namely, Bhadresh and the petitioner were also travelling from Delhi to Mumbai by Flight No.AI-315. It is alleged that the said passengers including the petitioner are involved in smuggling of mobile phones, laptop batteries and memory cards, deliberately, intentionally and knowingly with intent to evade custom duty. The said recovered miscellaneous goods / items having market value (as per web portal) of Rs. 4,03,64,328/- were seized under Section 110 of the Customs Act, 1962 by seizure memo dated September 4, 2019 on a reasonable belief that the same is liable to confiscation under Section 111 of the Customs Act, 1962. 3. So far as the petitioner is concerned, his statement was recorded on September 5, 2019 under Section 108 of the Customs Act. The investigations revealed that the pe....
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....t and his acts of deliberate commissions and omissions have rendered the goods involved liable to confiscation under the Customs Act, 1962. The Detaining Authority concluded that the petitioner played a vital role in smuggling of goods of foreign origin from abroad along with other accomplices and having regard to his continued propensity and inclination to indulge in act of smuggling in a planned manner to the detriment of the economic security of the country and that unless the petitioner is prevented, he will continue to indulge in these activities. The Detaining Authority was therefore satisfied that there is a need to prevent the petitioner from smuggling goods under the provisions of Section 3(1) of the COFEPOSA Act. It is further stated in the detention order that the Detaining Authority is aware that prosecution under Section 135 of the Customs Act, 1962 has been launched against the petitioner and adjudication proceedings were likely to be initiated soon, which are however, punitive in nature and independent of the preventive detention provided under the COFEPOSA Act. The Detaining Authority was satisfied that in the meantime the petitioner should be immobilised by detenti....
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....mits that the live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken to have been snapped in this case. He would submit that in the present situation as the International flights are not operating, detaining the petitioner on the apprehension that he might indulge in smuggling activities in future, goes against the concept of preventive detention in as much as the detention is not to punish him for something he has done but to prevent him from doing it. In support of his submission learned counsel relied upon the decision of the Apex Court in the case of Sama Aruna vs. State of Telangana and another (2018) 12 SCC 150. The learned counsel would submit that the impugned order of detention is unsustainable and deserves to be quashed. SUBMISSIONS OF LEARNED COUNSEL FOR THE RESPONDENTS:- 7. An affidavit-in-reply has been filed by Shri L.R. Chauhan, presently working as Deputy Secretary, Central Economic Intelligence Bureau, Department of Revenue, Ministry of Finance, Government of India, justifying the order of detention. In the affidavit the stand of the respondents is recorded that there is no delay in pas....
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....sidering the individual role of the petitioner, the Detaining Authority satisfied itself as to his continued propensity and his inclination to indulge in acts of smuggling in a planned manner to the detriment of the economic security of the country that there is a need to prevent the petitioner from smuggling goods. She would thus submit that there is no delay in passing the order of detention. 11. She would next submit that the detention order cannot be said to be vitiated on the ground of delay in its execution. So far as execution is concerned, she would submit that the detention order dated February 14, 2020 was forwarded to the Commissioner of Police, Greater Mumbai, by hand on February 18, 2020 for execution of the detention order. The petitioner was absconding and was not found in his known residence. She would submit that the petitioner was not traceable by Mumbai Police. She further urged that action under Section 7 (1) (b) of the COFEPOSA Act was initiated on June 8, 2020 and Notification was published in the official gazette of Government of India. She pointed out that the Mumbai Police traced the petitioner after surveillance and the order of detention was executed u....
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....He argued that the petitioner was absconding and every possible attempt was made to execute the order. He submitted that with the help of secret informants and through technical investigation police team was taking sincere efforts to trace the petitioner. It is his submission that time consumed to execute the detention order is not a delay from their end but it is the petitioner who himself avoided execution of the detention order despite having full knowledge that the detention order is issued against him. The learned APP would further contend that address which was mentioned in the order of detention of the petitioner was not in existence due to redevelopment of his residential premises and he has not furnished any alternative address of his premises. He would submit that even the shop of the petitioner's brother was found closed on February 25, 2020 and March 3, 2020. The executing authority therefore submitted a detailed report to the Joint Secretary of Government of India on May 28, 2020 and accordingly, the Detaining Authority issued proclamation under Section 7 (1) (b) of COFEPOSA Act on June 8, 2020. Learned APP would submit that sincere efforts were made by the executing a....
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....has snapped. The Apex Court has held that even in a case of undue or long delay between the prejudicial activity and the passing of detention order, if the same is satisfactorily explained and a tenable and reasonable explanation is offered, the order of detention is not vitiated. The Apex Court in the case of M. Ahamedkutty vs. Union of India (1990) 2 SCC 1) which was referred in the case of Licil Antony (supra) has held that under a law like the COFEPOSA enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence, have been posing a serious threat to the economy and thereby to the security of the nation, the courts should not merely on account of the delay in making of an order of detention assume that such delay, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. Taking of such a view would not be warranted unless the court finds that the grounds are stale or illusory or that there was no real....
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....d available to the petitioner to contend the live link between the petitioner's arrest in connection with an alleged crime and need to detain him has snapped, more so when on selected routes the international flights are operational on case to case basis. 19. We now deal with the contention of the petitioner that the delay in executing the order of detention will vitiate the same. The order of detention is made on February 14, 2020. The same was executed on June 29, 2020. 20. From the affidavit of the Executing Authority, it is seen that on 18/02/2020, the office of the Commissioner of Police, Brihanmumbai received an order for execution of the detention order. On 25/02/2020, the police team of PCB, CID, Mumbai visited the address of detenu as mentioned in the detention order. The police were informed that the said society has been demolished for SRA project. The police were informed that the address pertains to the room standing in the name of detenu's brother - Mukesh. They were informed that the detenu's brother - Mukesh runs a mobile shop. Hence, police visited the mobile shop, which they found closed. When the detenu's brother was contacted on his mobile phone, he inform....
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....of the bail or praying that the petitioner shall not be granted exemption from personal appearance since he is evading arrest pursuant to the order of detention. Clearly, therefore, the respondents have miserably failed to ofer any explanation let alone a satisfactory explanation in respect of delay in execution of the order of detention. The inevitable conclusion is that the respondents were not serious in detaining the petitioner under the preventive law of COFEPOSA." 22. It would be also material to consider the law laid down by the Apex Court in the case of K.P.M. Basheer Vs. State of Karnataka and anr. (1992) 2 SCC 295 paragraphs 10 & 11 where it is held thus : "10. All the above points show that no serious and sincere effort appears to have been taken by the arresting officers and that there was only exchange of correspondence between the Department and the arresting officers. It is incomprehensible as to why no effort has been made to secure the appellant/detenu during the two days, namely, on 6th and 20th February when he appeared before the Assistant Collector of Customs. No supporting affidavit s or documents are filed to substantiate the averments made in the....
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....would not have been apprehended now." The joint Secretary has not explained why no attempt was made from 14.3.1996 to 25.4.1996 to apprehend the detenue and put him under detention even though the detention order was passed on 14.3.1996. It further appears that no attempt was made to see that the petitioner was immediately apprehended. No serious efforts were made by the police authorities to apprehend the detenu. Only once in a month the police had tried to find out the petitioner. It is also not stated where they looked for him and what inquiries were made to find out his whereabouts. The Joint Secretary himself had made no effort to find out from the Police authority as to why they were not able to apprehend the petitioner. No material has been produced on the basis of which it can be said that the police authorities had made reasonable efforts to locate the petitioner and apprehend him and yet they were not successful in finding him out. There is also no material to show that the detaining authority had made any serious attempt during this whole period of delay to find out if the detention order was executed or not. Thus, the delay in execution of the detention order r....
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....en the grounds of detention and the purpose of the detention is snapped on account of the undue and unreasonable delay in securing the detenu and detaining him unless the delay is satisfactorily and reasonably explained. While dealing with the question of delay., we are conscious that COFEPOSA Act intends to deal with persons engaged in smuggling activities who pose a serious threat to the economy and thereby security of the nation. The Court is required to be circumspect and has to take a pragmatic view. No hard and fast formula is possible to be laid or has been laid in this regard. The purpose of preventive detention is to take immediate steps for preventing the detenu from indulging in prejudicial activity. If there is undue and long delay between the prejudicial activity and delay in execution of the order of detention, the order of detention becomes vulnerable. 26. It is also material to note that after issuance of the proclamation for initiating action under Section 7 (1) (b) of the COFEPOSA Act, the detention order was executed on June 29, 2020. It is pertinent to note that after the detenu was released on bail on November 6, 2019, the petitioner and other accused person....