TaxTMI 
TaxTMI 
TaxTMI 
2021 (6) TMI 721
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....aforesaid detention order in the backdrop of the following facts : (i) On 27th September 2017, a container was examined at Mumbai Port and it was found that 38 Kg of foreign marked gold valued at Rs. 11.71 Crore was illegally smuggled. The persons concerned with M/s. Al Rehman Impex, the Clearing House Agents were arrested. During the course of investigation, it transpired that the petitioner herein was the principal controlling person of M/s. Rajeshwar Bullion Trading, which was involved in smuggling of gold. The petitioner gave an incriminating statement. The petitioner came to be arrested on 25th November 2017. On 22nd January 2018, the petitioner was ordered to be released on bail. (ii) Eventually, on 8th March 2018, a detention order came to be passed against the petitioner. It reads as under : "ORDER Whereas, I, P.V. Subba Rao, Joint Secretary to the Government of India, specially empowered under Section 3(1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (as amended), am satisfied with respect to the person known as Shri Karnaram Lumbaji Choudhary, that with a view to preventing him from abetting smuggling of goods and dealing i....
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.... the impugned order of detention. The petitioner, therefore, asserts that the impugned order of detention deserves to be quashed and set aside. 3. An affidavit in reply is filed on behalf of respondent Nos.1 and 2. The respondents contend that the petitioner has resorted to litigation with a view to delay the execution of the impugned order. The petitioner deliberately made himself scarce. The order could not be executed despite earnest efforts by the respondents. The petitioner was well aware of the detention order dated 8th March 2018. An order under section 7(1)(b) of the COFEPOSA Act was issued on 18th July 2018 and it was published in two local newspapers on 18th August 2018. The proclamation was issued by the learned Magistrate on 7th February 2020. Yet, the petitioner has willfully evaded the execution of the impugned order. In the circumstances, the petitioner cannot be permitted to take benefit of his own wrong. 4. We have heard Dr. Sujay Kantawala, the learned counsel for the petitioner, Ms. Ameeta Kuttikrishnan, the learned counsel for respondent Nos.1 and 2 and Mr. J.P. Yagnik, the learned APP for the State. With the assistance of the learned counsels for the parties,....
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....lucidated the cases in which the Court may be justified in interfering with a detention order at a pre-execution stage in the following words : "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 necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to t....
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....etention, yet, the Supreme Court had quashed and set aside the detention order therein on a substantive count that the relevant material was not placed before the Detaining Authority when it passed the detention order. The observations in paragraph 38 to 40 make the aforesaid position abundantly clear. They read as under : "38 Shri Soli Sorabjee, learned counsel for the petitioner also submitted that the petitioner had stopped his alleged illegal activities in 2006 and hence the detention of the petitioner now would be illegal. He has relied on a decision of this Court in Maqsood Yusuf Merchant vs. Union of India and another Criminal Appeal No. 1337 of 2008 decided on 22.8.2008 by this Bench. In that decision it was observed that the activities of the accused who was said to have indulged in unlawful activities were of the year as far back as 2002, and thereafter the appellant had not indulged in similar activities. Hence it was held that continuing the order of detention today would be an exercise of futility and the same should not be given effect to any further. 39. Shri Soli Sorabjee also relied on a decision of this Court in Alpesh Navinchandra Shah vs. State of Maharashtr....
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....lopments, according to Ms. Kuttikrishnan, in view of the judgment of the Supreme Court in the case of Subhash Popatlal Dave Vs. Union of India & Anr. (2014) 1 SCC 280 (Subhash-II), the petitioner is not entitled to any relief. 14. In order to properly appreciate the aforesaid submissions, it may be advantageous to make a reference to the judgment of the Supreme Court in the case of Subhash Popatlal Dave Vs. Union of India & Anr. (2012) 7 SCC 533 (Subhash-I). In the said case, a three Judge Bench considered the question as to whether the five grounds enumerated in paragraph 30 of the judgment in the case of Alka Subhash Gadia (Supra) were exhaustive of the challenge to the detention order at a pre-execution stage. The Supreme Court ruled that Alka Subhash Gadia (Supra) does not lay down that the challenge can be made on the grounds enumerated in paragraph 30 only. The Court was, however, of the view that the question of challenge to detention at the pre-execution stage on grounds other than those set out in Paragraph 30 of the judgment in Alka Subhash Gadia (Supra) required further examination. The absence of a live link between the incident and the detention order, and also the gr....
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....ween the order of detention and the purpose for which it had been issued at the relevant time. In the light of ratio of the decisions referred to hereinabove and the law on preventive detention, it is essentially the sufficiency of materials relied upon for passing the order of detention which ought to weigh as to whether the order of detention was fit to be quashed and set aside and merely the length of time and liberty to challenge the same at the pre-execution stage which obviated the execution of the order of preventive detention cannot be the sole consideration for holding that the same is fit to be quashed. When a proposed detenue is allowed to challenge the order of detention at the pre-execution stage on any ground whatsoever contending that the order of detention was legally unsustainable, the Court will have an occasion to examine all grounds except sufficiency of the material relied upon by the detaining authorities in passing the order of detention which legally is the most important aspect of the matter but cannot be gone into by the Court as it has been allowed to be challenged at the pre-execution stage when the grounds of detention has not even been served on him. ....
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....ave already noticed that failure to appear without a reasonable excuse would be an offence and render the defaulter liable for a punishment of imprisonment. Holding that the preventive detention orders are themselves rendered illegal, on the basis of the live nexus theory (which, in my opinion, is valid only for examining the legality of the order, viz-a-viz the date on which the order is passed) would not only exonerate the person from the preventive detention order but also result in granting impunity to such person from the subsequent offence committed by him under the provisions such as Section 7(b) of the COFEPOSA Act. ....... 46 Therefore, I am of the opinion that those who have evaded the process of law shall not be heard by this Court to say that their fundamental rights are in jeopardy. At least, in all those cases, where proceedings such as the one contemplated under Section 7 of the COFEPOSA Act were initiated consequent upon absconding of the proposed detenu, the challenge to the detention orders on the live nexus theory is impermissible. Permitting such an argument would amount to enabling the law breaker to take advantage of his own conduct which is contrary to la....
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....s plain that the petitioner cannot be permitted to count the said period, while the respondents were restrained from executing the order. 18. A useful reference in this context can be made to a judgment of the Supreme Court in the case of Union of India & Ors. Vs. Arvind Shergill & Anr. (2000) 7 SCC 601, wherein also an interim order not to execute the order of detention was obtained and thereafter a submission was canvassed that, in view of the lapse of time, the live link was snapped. In that context, the Supreme Court observed as under : "6............The husband of the respondent evaded arrest as is obvious and obtained an interim order from the High Court which was in force till the disposal of the writ petition and thereafter on quashing of the detention order, question of detention made did not arise now. Therefore, we do not think that it would be appropriate to state that merely by passage of time the nexus between the object for which the husband of the respondent is sought to be detained and the circumstances in which he was ordered to be detained has snapped.............." (emphasis supplied) 19. A profitable reference can also be made to the judgment of the Suprem....
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....ssion of absence of "live and proximate link" between the grounds of detention and the purpose of detention was canvassed. There was a delay of about three years in executing the order of detention. Repelling the challenge, the Supreme Court observed as under : "6 It is true that the purpose of detention under the COFEPOSA is not punitive but preventive. The purpose is to prevent organised smuggling activities and to conserve and augment Foreign Exchange. It is true that the maximum period for which a person may be detained under the COFEPOSA is one year. It is further true that there must be a 'live and proximate link' between the grounds of detention alleged by the detaining authority and the avowed purpose of detention namely the prevention of smuggling activities. We may in appropriate cases assume that the link is 'snapped' if there is a long and unexplained delay between the date of the order of detention and the arrest of the detenu. In such a case we may strike down an order of detention unless the grounds indicate a fresh application of the mind of the detaining authority to the new situation and the changed circumstances. But where the delay is not only ....