TaxTMI 
TaxTMI 
2020 (12) TMI 4
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....leased on 11th November, 2019. During this period, no order of detention was executed. (ii) It has been further submitted that original order of detention is not traceable and it was imperative that the original order ought to have been served on the petitioner. (iii) Further ground taken by the petitioner-challenging the detention order is that while issuing the impugned detention order, reliance was placed on the previous detention orders and the said reliance has vitiated the impugned detention order. (iv) Moreover, this detention order has been issued in the teeth of the submission made by counsel for DRI before the Hon'ble Court in Writ Petition (Crl.) No.1898/2015, that no coercive action would be taken against the petitioner. (v) Another ground taken by the petitioner is that there was a delay of about 14 months between the alleged prejudicial activity and passing of the detention order. (vi) There is a gross variance in the subjective satisfaction mentioned in the impugned detention order and the grounds of detention and it has led to confusion in the mind of the detenue and deprived him of making an effective representation agai....
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....he order of detention at pre-execution stage, being Writ Petition (Criminal) No.548/2016 was withdrawn to challenge the detention order after its execution. The petitioner also filed a Writ Petition (Criminal) No.40/2019 before Hon'ble Supreme Court, challenging the order of detention at pre-execution stage, which was ultimately withdrawn to avail appropriate remedies in law. 3. The petitioner has submitted that he came to know that a case was registered against him under Section 120B, 420, 467, 468, 471 read with Section 34 of Indian Penal Code at Vishakhapatnam and he chose to surrender before the Court of learned CMM, Vishakhapatnam on 9thSeptember, 2019 and thereafter, he was sent to judicial custody. As mentioned above, intimation was sent to the Detaining Authority, Executing Authority and the Sponsoring Authority by the petitioner through his nephew on 11th September, 2019/18th September, 2019. An application dated 12th September, 2019 was also moved before learned CMM, Patiala House Courts, New Delhi for cancellation of warrants of arrest and closure of proceedings under Section 7 of COFEPOSA Act and as such the Sponsoring Authority (DRI) became aware of the petitioner b....
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....o his own remedies. Thereafter, the petitioner approached the Hon'ble Supreme Court, vide Writ Petition (Criminal) No.344/2019, which was permitted to be withdrawn with liberty to approach this Court. 6. In the writ petition filed by the wife of the petitioner, being Writ Petition (Criminal) No.2554/2018, an additional affidavit dated 13th December, 2019 was filed by the Joint Secretary of COFEPOSA, in which certain startling revelations were made and flimsy excuses were given for delay in execution of the detention order. The detenue approached this Court by filing Writ Petition (Criminal) No.3538/2019 challenging the detention order at pre-execution stage and on 19th December, 2019, notice was issued for 24th February, 2020 but the detention order was executed on 4th February, 2020 and the petitioner was sent to Tihar Jail. He was served with grounds of detention and relied upon documents running into about 600 pages on 5th of February, 2020 and remaining relied upon documents were served upon him on 6th February, 2020. A request for supply of certain relied upon documents/material for enabling him to make an effective representation to Government and the Advisory Board was su....
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....the Court. The said record was produced during physical hearing on 14th September, 2020 by the officials of the respondents but it was observed that the record is voluminous. Hence, on specific request of the learned Senior Advocate appearing on behalf of the petitioner regarding certain communications as detailed in the order dated 14th September, 2020 were ordered to be handed over to the Court Master of this Court for perusal by this Court. This direction was complied with. 9. In counter affidavit filed on behalf of the respondents, it has been submitted that a case was booked by DRI, Delhi Zonein October, 2014 wherein a large number of LED TVs/Electronic goods, Red Sanders, Vitamin C, Fabric, etc. were seized from the godown /container belonging to certain persons and during investigation it was found that those goods were smuggled through various ports by the detenue. Son of the detenue, namely Sh. Rahul Goyal,was also found to be accomplice, who used to distribute smuggled goods in the local market and all these godowns were controlled/operated by the said Shri Rahul Goyal, along with the detenue. Repeated summons were issued from November, 2014 to July, 2015 but the deten....
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....as filed on 20th September, 2019 before learned CMM, Vishakhapatnam, seeking permission to execute the original detention order dated 30th December, 2015 on the petitioner in Central Jail, Vishakhapatnam and with a subsequent direction to the Jail Superintendent, Vishakhapatnam to shift the petitioner to Central Jail, Tihar, Delhi. This application was returned by the learned CMM, Vishakhapatnam with the objections that a prisoner transit warrant was to be obtained by the applicants from the concerned Court, how the Court at Vishakhapatnam was competent to transfer the prisoner from Central Jail, Vishakhapatnam to Tihar Jail, New Delhi andhow the Court at Vishakhapatnam had jurisdiction as the detenue had filed a Writ Petition No. 1898/2015 before the High Court of Delhi and some of the documents mentioned in the application were not filed along with the application and as to whether the petitioner has been declared proclaimed offender by learned CMM, Patiala House Courts, New Delhi and the said documents be furnished. These proceedings were informed to the answering respondents and Delhi Police on 26th September, 2019 and thereafter, an application was moved on 1st October, 2019 b....
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....mber, 2019 and as such he has defaulted on the bond furnished by him on 11th November, 2019 at the time of his release from Vishakhapatnam Jail. 13. As per the respondents, the detention order under COFEPOSA Act, 1974 is a prohibitory/preventive order and it remains alive until it is executed upon the detenue. It is submitted that Deputy Commissioner of Police, Rohini District, Delhi informed DRI vide his letter dated 7th October, 2019 that the detention order dated 30th December, 2015 in respect to the detenue was not traceable and it was requested to issue a fresh detention order. In reply, it was informed to Delhi Police on 18th October, 2019 that the original detention order was issued from the office of CEIB and officials of Delhi Police were requested to approach the COFEPOSA Wing of CEIB in this regard. The COFEPOSA Wing of CEIB informed DRI and Commissioner of Police as well as DCP, Rohini, Delhi that request for issuing a detention order afresh can only be considered after a report/FIR is registered regarding missing of the said detention order with the concerned police station. Vide letter dated 22nd October, 2019, SHO, Prashant Vihar, New Delhi informed the COFEPOSA W....
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....f criminals can be released on parole or on interim bail and the minutes of the said committee constituted in Delhi demonstrate that it was resolved that the undertrial prisoners in cases investigated by CBI/DA/NIA/Special Cell/ Police and terror related cases shall not be considered. The jail authorities have taken considerable measures for protection of health of the prisoners. Since, the detenue has been held under the COFEPOSA Act, he does not fall in the category of the UTPs to be released on interim bail as per the recommendations of the High Power Committee. The application for interim release under Section 12 of COFEPOSA Act, 1974 was rejected by the Competent Authority as the detenue is a habitual offender and he does not fall in any of the criteria for consideration of the interim bail. The detenue was always aware of the impugned order. However, even after lapse of more than 3½ years, he never presented himself before the Detaining Authority, Sponsoring Authority or Executing Authority. He surrendered before learned CMM, Vishakhapatnam in a different case rather than surrendering before the answering respondents and even after his release from the Vishakhapatnam J....
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....tion orders could not be executed and sent back unexecuted. The DRI retuned the unexecuted detention orders to Commissioner of Police, Delhi Police requesting to make continuous efforts till the orders are executed by them. Several reminders were also sent to Delhi Police. Sincere efforts were made for execution of the detention order but the detenue had absconded or he was concealing himself so that the detention order could not be executed. The Ministry of Finance issued an order dated 27th April, 2016, published in the Gazette of India on 28th April, 2016 directing the petitioner to appear before Commissioner of Police, New Delhiwithin 7 days of the said publication. The said order was also given wide publicity through newspapers but the petitioner did not surrender and remained absconding. The petitioner had executed a bond at the time of his release from Central Jail, Vishakhapatnam undertaking to be present before learned CMM, Patiala House Courts, New Delhi on 26th November, 2019 but he defaulted the bond and did not appear. By no stretch of imagination, it can be said that the detenue has been unable to make an effective representation to the Advisory Board. It is not his c....
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....the provisions of COFEPOSA Act. The documents related to previous activities are not the relied upon documents in the grounds of detention in the present case. The detention order dated 30th December, 2015 demonstrates the role of detenue in the smuggling syndicate and satisfaction of the Detaining Authority was recorded as to detenue's propensity and likelihood of indulging in the smuggling activity. 19. The petitioner has filed a detailed rejoinder to the counter affidavit in which the stand of the petitioner has been reiterated that there was a hopeless inexplicable delay in execution of the detention order and original order of detention is not traceable. Next ground reiterated is delay in passing the detention order. The petitioner has further pointed out that no prosecution has been lodged against him till date in this case and in the detention order there is a reference to his past conduct inearlier cases and previous detention orders. As per the petitioner, the non-placement of vital documents by the Sponsoring Authority before the Detaining Authority and/or non-consideration thereof, by the Detaining Authority and nonsupply of the said vital documents to the detenue ren....
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.... to call upon the respondents to produce certain documents and in response thereto, certain documents have been produced. The personal bond furnished by the petitioner before Jailer, Central Prison, Vishakhapatnam was also produced on record, which is dated 11th November, 2019, the day when the detenue was released from Central Jail, Vishakhapatnam. The said personal bond is reproduced hereunder: "PERSONAL BOND AND BAIL AFTER ARREST UNDER A PRODUCTION WARRANT DATED: 26.11.2019 IN THE COURT OF HON'BLE CHIEF METROPOLITAN MAGISTRATE, PATIALA HOUSE COURT, NEW DELHI CASE No. Union of India Vs. Bhimendra Kumar Goyal U/Sec 7 of COFEPOSA Act. I Bhimendra Kumar Goyal @ Munna Goyal @ B.K. Goyal @ V.K. Goyal S/o (L) Babulal, Aged: 59 years being required to surrendered before the Hon'ble Chief Metropolitan Magistrate, Patiala House Court, New Delhi under a Warrant issued do hereby bind myself to attend before the Hon'ble Chief Metropolitan Magistrate, Patiala House Court, New Delhi as and when required by the orders of the Hon'ble Court otherwise forfeit to the Government a sum of Rs. 20,000/- (Rupees Twenty Thousand Only) in case of my making default herein. Further, if I f....
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....vered to Jailer, Vishakhapatnam on 3rd October, 2019. Immediately, thereafter, on 7th October, 2019, ACP, Rohini informed DRI that original detention order was lost and not traceable and he requested for issuance of fresh detention order. On 18th October, 2019, DRI asked DCP, Delhi to approach the office of CEIB for issuance of fresh detention order. On 21st October, 2019 DRI endorsed the communication with Delhi Police to CEIB, who in turn informed DRI with intimation to CP and DCP to lodge an FIR/missing report of the detention order. This report was accordingly lodged by SHO, Prashant Vihar, New Delhi on 22nd October, 2019 and he informed CEIB in this regard. SHO further requested for issuance of a fresh detention order. On the same date, COFEPOSA Wing of CEIB forwarded scanned photocopies of the original detention order along with copy of instructions to the Police and Jail Authorities. On the next date, i.e. 23rd October, 2019, CMM, Patiala House Courts, New Delhi issued fresh production warrants of the detenue for 26th November, 2019 from Vishakhapatnam Central Jail, which was delivered on 2nd November, 2019. As per the learned counsel for the petitioner, DRI was in knowledge....
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....in W.P.(Criminal) No.2554/2018 called upon the Detaining Authority to explain the lapses in delay in execution of the detention order and, thereafter, immediately an application was moved on 26th November, 2019 before learned CMM, New Delhi to take action against the jail authorities at Vishakhapatnam, which is merely a coverup exercise. It has been submitted that lethargy of the respondents in executing the detention order is violative of their own instructions. The detention order was not executed as a warrant under Section 4 of the COFEPOSA Act and relevant provisions of applicable laws were not complied with. 25. In response to this argument, it has been submitted on behalf of the respondents that prior to the surrender before the learned CMM, Vishakhapatnam on 9th September 2019, the petitioner had been absconding and evading arrest for more than4 years and consequently, the impugned detention order could only be executed on 4th February, 2020. It has been submitted that all necessary steps were taken to execute the impugned detention order after the respondents came to know about surrender of the detenue in Vishakhapatnam. An application in this regard was filed on 20th Se....
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....rong. A notification under Section 7 of the COFEPOSA Act was issued on 27th April, 2016 and detenue was declared a proclaimed offender on 3rd January, 2017. The petitioner was absconding during this period and indulging in illegal activities for which FIR No.181/2017 dated 11th May, 2017 was registered at Vishakhapatnam. The petitioner employed all dilatory tactics to avoid execution of the impugned detention order. He was very well aware of the existence of the impugned detention order as he had challenged it three times before this Court at pre-execution stage but he chose not to surrender in Delhi but before learned CMM, Vishakhapatnam. Prompt action was taken by the respondents to execute the impugned detention order. An order was obtained by the petitioner at the back of the learned counsel of the answering respondents on 22nd November, 2019 for filing of affidavit regarding steps taken to execute detention order. However, the affidavit was duly filed explaining the steps being taken and explaining as to how the submissions made on behalf of the petitioner were factually incorrect. All steps have been taken in accordance with the provisions of the Act. The argument as to how a....
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....A team reached Vishakhapatnam and moved an application on 20th September, 2019 seeking permission to execute the detention order but the said application was returned on the same date with the following objections: "(a) The Petitioner has to obtain Prisoner Transit (PT) Warrant from the courts where the accused is charged with other offences if any; (b) How can this court competent to transit the accused from Central Jail, Vishakhapatnam to Tihar Jail, under COFEPOSA Act, 1974; (c) It may also be mentioned in para-5 of the application filed by the petitioner that Bhimendra Kumar Goyal had filed a writ petition No. 1898/2015 before the Hon'ble High Court of New Delhi which is going to be listed on 04.11.2019 without any interim order in the said writ petition. How can this court have jurisdiction to entertain this petition; (d) Some of the documents mentioned in the petition are not filed along with this petition for perusal of the entire record whether the petitioner has obtained any orders of the Learned CMM, New Delhi, with regard to declaring the accused proclaimed offender, as mentioned in para 3 of the petition shall be furnished." 28. On....
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....ce himself in person, so as to enable the authorities to serve the detention order and for the Court to pass an order directing his detention in jail, no specific reply was given. The petitioner himself is responsible for delay in execution of the detention order dated 30th December, 2015 throughout the period of more than 5 years; he was well aware about the passing of the detention order and he unsuccessfully knocked at the doors of various Courts to get the said detention order quashed and when he failed to do so, instead of surrendering before the respondents or the concerned Court in New Delhi, he chose to surrender before the Court in Vishakhapatnam. In our view, immediately on coming to know about surrender of the petitioner in Vishakhapatnam, the respondents took all reasonable steps to ensure that the detention order is served upon the petitioner and in consequence thereto, he is detained in prison. It was not as if the respondents were sitting idle during the period from 11th September, 2019 to 4th February, 2020, when they were finally able to serve the detention order on the petitioner. In our considered view, the respondents had taken all possible steps to execute the ....
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....rd. Under those circumstances, the subjective satisfaction of the Detaining Authority in issuing the detention order was vitiated by reason of nonexecution of the detention order within a reasonable time. 31. On the other hand, learned counsel appearing for the respondents, has relied upon the judgment of the full bench of the Hon'ble Supreme Court in the matter of Subhash Popatlal Dave v. Union of India &Anr. (2014)1 SCC 280 wherein it was held that the detention order cannot be quashed merely because there is a long delay in execution of detention order. Although, preventive detention order is not punitive and in case of long delay, a fresh application of mind by the Detaining Authority is normally required as the live proximate link is snapped due to such delay but where the delay is adequately explained and is result of the conduct of the proposed detenues in evading arrest, the detention order cannot be quashed. Further reliance has been placed by learned counsel for the respondent on the judgment titled Licil Antony v. State of Kerala (2014) 11 SCC 326 in which the Hon'ble Supreme Court has again held that where the delay has been explained, the detention order cannot be q....
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....to file a detailed affidavit explaining the delay in execution of the detention order and accordingly a detailed affidavit was filed and taken on record by the Hon'ble High Court in a pending writ. So, in our view, the delay in execution of the detention order has been satisfactorily explained by the respondents and the said detention order is not liable to be quashed on this ground. 32. The next ground taken by the petitioner, in support of his request to quash the detention order, is that the original detention order was lost and the same is not traceable and as such his detention is not legal as the said detention order was to be served as a Warrant of Arrest as per Section 70 of the Cr.P.C. In our view, mere loss of the original detention order cannot be a ground to quash the same as the scanned photocopy of the warrant was made available to the Executing Agency being Delhi Police as soon as a missing report in this regard was lodged. It is to be noted here that even in Court cases where either the original files or specific order sheets are lost or become non traceable, the record is always re-constructed. When the Court record or the order sheets can be re-constructed on t....
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....n illegal one and the present impugned detention order has been issued on fresh facts and grounds. We agree with the submission made on behalf of the learned counsel for the respondents that the impugned detention order dated 30th December, 2015, if read along with the grounds of detention as a whole, is based upon new facts and circumstances, although, the fact regarding earlier detention orders has been also mentioned in it but the present detention order is not based upon the earlier detention orders. Hence, the present detention order is not liable to be quashed. 34. As per the petitioner, there is a blatant malice in issuance of the detention order. On the other hand, the submission of the learned counsel for the respondents is that the Detaining Authority has considered all the facts before passing the detention order and had carefully considered the facts and circumstances of the case, the nature of activities, the material collected, the propensity and potentiality of the petitioner to indulge in such activities and after his subjective satisfaction, the present detention order was issued as the Detaining Authority was convinced, keeping in view the magnitude of offen....
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.... ought to have scrutinized the same to reach a reasonable conclusion by due application of mind, so as to find grounds for issuing the preventive detention order stands satisfied in the present case and we do not find any blatant malice in issuance of the subject detention order dated 30th December, 2015. 35. The next ground to challenge the impugned detention order is that there has been a long delay of 14 months in passing the detention order. In this regard, learned Senior Advocate Shri Vikram Chaudhary, appearing for the petitioner, has relied upon a judgment in the matter of Rajinder Arora v. Union of India (2006) 4 SCC 796, wherein it was held that if there is a long delay of about 10 months from the date of the raid to issuance of the detention order but there was no explanation for such long delay, that will result in quashing of the detention order. On the other hand, learned counsel for the respondents has submitted that the delay in issuance of the detention order was duly explained and it is not a case where the test mentioned in the matter of Addl. Secretary v. Alka Subhash Gadia(1992) Suppl. (1) SCC 496 will be applicable as reiterated in the matter of Rajinder Aro....
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....r is liable to be quashed. In our view, no such confusion has arisen in the mind of the petitioner/detenue in the present case. As per the respondents, there is no variance so as to confuse the detenue. All the grounds which lead to issuance of impugned detention order have been specifically laid down in the grounds of detention served upon the petitioner. Learned counsel for the respondent has placed reliance on the judgment of the Hon'ble Supreme Court in the matter of Gautam Jain v. Union of India & Anr. (2017) 3 SCC 133 to bring home the point that each basic fact would constitute a ground and particulars in supports thereof or the details of the subsidiary facts or further particulars of the said basic facts, will be integral parts of the grounds. Moreover, different instances would be treated as different grounds. In view of this and the details given in the grounds of detention, there cannot be any confusion in the mind of the petitioner/detenue, which might have deprived him of his legal right to submit his detailed representation. 37. The next ground raised on behalf of the petitioner/detenue is that vital documents were not placed before the Detaining Authority. Relian....
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.... no prosecution has been launched in the case in hand, so his detention is vitiated. Learned counsel for the respondent has submitted that launching of the prosecution has been intentionally delayed by the acts of the petitioner/detenue and his family members as initially he was not traceable for a period of more than four years and now his son, who is a co-accused, is not traceable and all steps are being taken to ensure his presence before the authorities so that his statement may be recorded and case may be launched. In our view, where the petitioner/detenue himself has absconded for a considerable number of years and his son, who is a co-accused, is not traceable even on date, mere fact that the hearings in the case has not started, cannot be a ground for quashing of the preventive detention order which has got no direct connection with the proceedings to be launched by DRI before Court. 40. As far as the ground of oral undertaking by DRI of not taking any coercive action under Customs Act, 1962 is concerned, we are of a view that the present detention order was not passed under the Customs Act, 1962. Hence, that oral undertaking has no bearing on passing or validity of the ....