TaxTMI 
TaxTMI 
2021 (2) TMI 915
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.... 1974 (hereinafter referred to as "COFEPOSA ACT"). The Respondent Authorities have not been able to execute the Detention Order prior to, and even after filing of the present writ petition. The Petitioner has, thus, not yet been served with either the Detention Order, or the Grounds of Detention, or the Relied upon Documents. Brief Factual Matrix 2. On the night of 1st February, 2019, on the basis of certain specific intelligence that items, such as drones, gold and cigarettes would be smuggled in commercial quantities, one Mr. Gaganjot Singh and one Mr. Gurpreet Singh were interrupted at the IGI Airport upon their arrival from overseas. Contraband items such as drones, foreign branded cigarettes etc were recovered from both of them. On being questioned about the items, Mr. Gaganjot Singh admitted that he along with Mr. Gurpreet had bought the items to sell in the Indian market and gain profits, and revealed that his brother (Petitioner herein) would also be arriving with other people via the connecting flight no. KU 381 from Kuwait to Delhi, smuggling similar contraband items into the Indian Territory. Consequently, on the intervening night of 01.02.19 and 02.02.19, at around 1:....
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....he proposal for detention of the Petitioner was sent along with the proposal of his brother, i.e. Mr. Gaganjot Singh on 25th February 2019 by the Sponsoring Authority under Section 3 of the COFEPOSA Act. However, Respondent No.2 passed the Detention Order dated 11.03.2019 only qua Mr. Gaganjot Singh (who has since completed his period of detention), and not against the present Petitioner. Mr. Gaganjot Singh challenged his detention by filing W.P.(CRL.) 1843/2019, which was dismissed by this Court on 24.11.19. 7. On 6th April 2019, the Petitioner was released on statutory bail as the Investigating Agency did not file the chargesheet within prescribed period of 60 days. The petitioner was then summoned to appear before Air Customs Superintendent on 22.04.19, when his statement under Section 108 of the Customs Act, 1862 was again recorded. 8. Separately, Show Cause Notice dated 22.07.19 w.r.t. the seized goods was issued to the petitioner, proposing confiscation of the goods and imposing penalty under Section 112 (A), 112 (B) and 114AA of the Customs Act, 1962. 9. As a part of the investigation, the respondents desired to unlock the mobile phone instrument of the petitioner to retr....
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.... not taken into custody, his representation would not be decided. The petitioner placed reliance on the decision of a Division Bench of this Court in Mansuk Chhagan Lal Bhatt Vs. Union of India and Anr. 1994 (31) DRJ (DB) 317 which was subsequently relied upon in Bhavna Mehra Vs. Union of India and Ors., W.P.(Crl) 274/2009 decided on 25.5.2009. This Court has taken the view in the aforesaid decisions, that the consideration of the representation cannot be withheld by the Detaining Authority for such like reasons. Even otherwise, on a reading of Section 11 of the COFEPOSA Act, 1974, it does not emerge that the consideration of the representation made by the detenu would be subject to his being detained, or his surrendering in pursuance of the Detention Order. On 28.09.20, we directed the Respondents to consider the representation and place the result of the said consideration before us, on the next date of hearing. On 07.10.20 we were informed that the said representation had been rejected and the rejection was placed on record. Petitioner's Submissions: 12. The only submission advanced by Mr. Aggarwal on behalf of the petitioner is that the impugned Detention Order was issued aft....
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....sent it is deemed that the investigation is complete, which is enough to detain a person, and any additional investigation which may have been carried out, cannot be a ground to explain the delay." 15. Mr. Aggarwal submits that since the initial proposal for detention was sent on 25th February 2019, the Sponsoring Authority i.e. Office of the Commissioner Customs (Airport & General) IGI Airport T-3, New Delhi, believed that they had enough material to seek detention of the petitioner under the Act, and, therefore there cannot be any justification for the delay between the proposal of detention, and the impugned Detention Order. 16. Mr. Aggarwal further submits that, admittedly, the Sponsoring Authority had all the incriminating material by 31st January 2020. As per the counter affidavit, a fresh proposal for detention was forwarded on 13th March 2020, but the approval was only received on 19th May 2020. However, there is no explanation for delay of one month in initiating the proposal. The nationwide lockdown on account of COVID-19 cannot be used as a justification for delay in matters pertaining to personal liberty. In this regard, reliance is placed on judgement of the Supreme ....
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.... of the petitioner was delayed on account of nationwide lockdown, and finally the said approval came on 19.05.20. This proposal of Sponsoring Authority was then considered by CSC in its meeting held on 29.05.2020. Thereafter, the proposal was examined by Detaining Authority with reference to the recommendation of the CSC. After a careful consideration of the facts and circumstances of the case, the nature of activities, the material collected, the propensity and potentiality of the petitioner to indulge in further smuggling activities, the Detaining Authority passed the Detention Order on 05.06.2020. 20. Mr. Mahajan submits that the petitioner had not cooperated in the investigation, and consequently, forensic examination of his mobile phone was delayed. He submits that it is apparent from the conduct of the petitioner that since the date of his voluntary statement given on 22.04.2019, till the forensic examination of his phone on 20.01.2020, the major reason for the delay caused in the investigation was due to non- cooperation of the petitioner. 21. Mr. Mahajan submits that if the time lag in passing and executing the Detention Order is reasonably explained by the Respondents, t....
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....is possible to be laid or has been laid in this regard. However, one thing is clear that in case of delay, that has to be satisfactorily explained. After all, 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 making of the order of detention and the delay has not been explained, the order of detention becomes vulnerable. Delay in issuing the order of detention, if not satisfactorily explained, itself is a ground to quash the order of detention. No rule with precision has been formulated in this regard. The test of proximity is not a rigid or a mechanical test. In case of undue and long delay the court has to investigate whether the link has been broken in the circumstances of each case. 11. Further, this Court had the occasion to consider this question in Rajinder Arora v. Union of India [(2006) 4 SCC 796 : (2006) 2 SCC (Cri) 418] in which it has been held as follows: (SCC pp. 802-03, paras 20-22) "20. Furthermore no explanation whatsoever has been offered by the respondent as to why the order of detention has been issued after suc....
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....the question whether the prejudicial activity of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activity and the purpose of detention is snapped depends on the facts and circumstances of each case. 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. We must bear in mind that distinction exists between the delay in making of an order of detention under a law relating to preventive detention like COFEPOSA and the delay in complying with procedural safeguards enshrined under Article 22(5) of the Constitution. In view of the factual scenario as aforesaid, we are of the opinion that the order of detention is not fit to be quashed on the ground of delay in passing the same. 19. The conclusion which we have reached is in tune with what has been observed by this Court in M. Ahamedkutty v. Union of India [(1990) 2 SCC 1 : 1990 SCC (Cri) 258]. It reads as follows: (SCC p. 8, para 10) "10. ... Mere delay in m....
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....uidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the causal connection has been broken in the circumstances of each case." (emphasis supplied) Analysis and Conclusion: 24. We have given our thoughtful consideration to the entire matter. We have examined the submissions made, the documents and case law relied upon by learned counsels. 25. A Detention Order can validly be assailed even at the pre-execution stage, though on limited grounds. This position was recognized by the Supreme Court in Additional Secretary to Government of India and Others Vs. Smt. Alka Subhash Gadia and Anr, (1992) Supp 1 SCC 496, which enlists some of the grounds on which the ....
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....shed the order of detention either on the ground of delay in passing the impugned order or delay in executing the said order, for mere delay either in passing the order or execution thereof is not fatal except where the same stands unexplained. In the given circumstances of the case and if there are good reasons for delay in passing the order or in not giving effect to it, the same could be explained and those are not such grounds which could be made the basis for quashing the order of detention at a pre-detention stage. Therefore, following the decisions of this Court in Addl. Secy. to the Govt. of India v. Alka Subhash Gadia [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] and Sayed Taher Bawamiya v. Jt. Secy. to the Govt. of India [(2000) 8 SCC 630 : 2001 SCC (Cri) 56], we hold that the order made by the High Court is bad in law and deserves to be set aside." (emphasis supplied) 28. At this stage, we may take note of the timeline of events as produced before us by the Respondents 1 & 2 in their Counter Affidavit. The recovery of contraband items from the petitioner and co-accused persons was done on the intervening night of 1st and 2nd February. On 3rd February, Respondent No. 3 (D....
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....(DZ), New Delhi could not grant his approval on account of nationwide lockdown, and finally gave its approval on 19.05.20. This proposal of the Sponsoring Authority was considered by CSC in its meeting held on 29.05.20. Thereafter, the proposal was examined by Detaining Authority with reference to the recommendation of the CSC. The impugned Detention Order came to be finally passed on 05.06.20 by the Detaining Authority. 31. On a careful examination of all the facts present before us, we find that the aforesaid timeline satisfactorily explains and justifies the time taken by the Respondents in undertaking investigation, which finally culminated in passing of the impugned Detention Order. The initial proposal sent by the Sponsoring Authority in February, 2019 was not found sufficient to justify the petitioner's detention under Section 3 of the COFEPOSA Act. The Sponsoring Authority, therefore, continued with its efforts to conduct further investigation and, for that purpose, retrieval of the contents of the mobile phone of the petitioner was crucial. Vide his letter dated 23.04.19, the petitioner desired that the forensic examination of his phone be done in his presence. Vide summo....
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....hone for as long as it could be done. Thus, the delay in the forensic examination of the petitioner's mobile phone is primarily attributable to the petitioner, and not to the respondents. We, therefore, reject the submission of the petitioner that there was any unexplained delay on the part of the respondents in the forensic examination of his mobile phone between 1-2.02.2019 and 20.01.2020. 33. The fresh proposal for preventive detention of the petitioner was forwarded on 13.03.2020 by the Sponsoring Authority to the CEID, Department of Revenue, Ministry of Finance. Considering the fact that the forensic examination of the petitioner's mobile phone was undertaken on 20.01.2020, whereafter the documents retrieved therefrom would have been studied and analyzed, in our view, it cannot be said that there was any inordinate delay in sending the fresh proposal by the Sponsoring Authority for the petitioner's preventive detention. The respondents have explained that after the proposal was sent, consideration of the same by the Central Screening Committee was delayed due to the nation-wide Lockdown on account of the Covid-19 Pandemic. The proposal was approved by the CSC on 29.05.2020 an....
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....e same group/ syndicate which consists of his brothers and others, who are involved in smuggling of goods from overseas. According to the respondents, the seizure made from the petitioner and his associates on 12.02.2019 was valued at over Rs. 1.09 crores. The respondents have also stated on record that the petitioner is a habitual offender. He had been arrested by the Officers of the DRI on 03.09.2016 while attempting to smuggle foreign currency out of India equivalent to Rs. 1.86 Crores. He was granted bail subject to conditions. He had threatened the Investigating Officer and bail was cancelled by the Court. In the adjudication proceedings, currency amounting to Rs. 37,32,450/- was confiscated absolutely and penalty was imposed upon the petitioner and his brother. Prosecution has already been filed in that case, booked by DRI on 07.08.2020. When one looks at the fact that the petitioner was found to be involved in similar prejudicial activity, in the year 2016, and again in February, 2019, that is over a period of three years, there is no reason to assume that the petitioner would not indulge in similar activity after his involvement discovered in February, 2019. This also shows....