TaxTMI 
TaxTMI 
2021 (10) TMI 136
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....he was taken from his home in Delhi to the Presidency Correctional Home, Alipore, Kolkata on the pretext of questioning him and is being held in detention at the Kolkata Jail ever since. 2. Although the detention order contains a lengthy discussion citing several grounds for preventive detention, in essence and substance, the principal ground for the petitioner's detention is alleged to be that he : ".... is controlling a syndicate involved in effecting fraudulent exports and imports in order to evade Customs duty and earn undue export benefits including IGST refunds through 33 non-existent and/or dummy firms...." 3. The petitioner is stated to have made a representation dated 08.02.2021 to the Joint Secretary (COFEPOSA), Government of India, Ministry of Finance, Department of Revenue; and another representation dated 25.02.2021 to the Chairman, COFEPOSA Advisory Board and to other officials of the Central Economic Intelligence Bureau and the Directorate of Revenue Intelligence of the Government of India, but to no avail. 4. A hearing before the COFEPOSA Advisory Board is stated to have taken place in Kolkata on 05.03.2021; which however, was adjourned to 24.0....
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.... d) That though the petitioner was detained on 20.01.2021, the detention order containing the grounds of detention along with relied upon documents was served upon him only later, which, the written submissions filed by the respondents say, happened on 23.01.2021; e) That a substantial number of the documents relied upon by the respondents, as served upon the petitioner, are completely illegible and the petitioner is accordingly unable to comprehend the purport and effect thereof, especially since, according to the petitioner, such documents do not relate to him; and the petitioner is therefore unable to make an effective representation against the detention order; f) That there is inordinate and unexplained delay in the passing of the detention order, which proceeds on the heels of a show cause notice dated 07.01.2021; but the issuance of the show cause notice itself suffers from inordinate and unexplained delay; g) That furthermore, the detention order suffers from non-application of mind, for which reason also, it is vitiated; h) That in addition to the forgoing, from the time the petitioner suffered a stroke on 31.10.2019, his medical c....
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....e petitioner's own name or in the names of his immediate relatives; b) That 17 of these 33 firms purportedly exported goods worth Rs. 1,45,60,63,026/- (One Hundred Forty-five Crore Sixty Lac Sixty-three Thousand Twenty-six Only) under 133 shipping bills but no export remittances have been realised against the said bills, while customs duty drawback in the sum of Rs. 3,02,35,243/- (Three Crore Two Lac Thirty-five Thousand Two Hundred Fortythree Only) and benefit of Rs. 12,72,25,116/- (Twelve Crore Seventy-two Lac Twenty-five Thousand One Hundred Sixteen Only) has been availed under the Integrated Goods & Services Tax Act, 2017 ('IGST Act'); c) That the Director of Revenue Intelligence (DRI), Kolkata intercepted export documents relating to a live consignment vidé shipping bill No. 9551237 dated 11.12.2018 in the name of M/s Buller Trades, which consignment was however processed 'only on-paper' and no goods were physically exported and no entry was found in the Cross Border Register maintained by Customs. Furthermore, the consignment covered by the said shipping bill was found to have been loaded onto a vehicle, which was registered as a 'tractor' and not a t....
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....-border transportation of goods, did the question of 'smuggling' arise. 11. This query was answered by the respondents on a prima-facie basis, by pointing-out that smuggling is defined in section 2(39) of the Customs Act 1962 as : "''smuggling'', in relation to any goods, means any act or omission which will render such goods liable to confiscation under section 111 or section 113..." (emphasis supplied) and section 113(k) of the Customs Act, which refers to confiscation of goods attempted to be improperly exported, says : "113. Confiscation of goods attempted to be improperly exported, etc.- ... (k) any goods cleared for exportation which are not loaded for exportation on account of any wilful act, negligence or default of the exporter; his agent or employee, or which after having been loaded for exportation are unloaded without the permission of the proper officer;" (emphasis supplied) and that accordingly, since the essential allegation is that the petitioner wilfully omitted to load for exportation, goods that were cleared for that purpose, in an attempt to avail duty drawback and benefit under the IGST Act, tha....
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....r after about ten months of the alleged illegal act. Basing reliance on the decision in T.A. Abdul Rahman [(1989) 4 SCC 741: 1990 SCC (Cri) 76] the detention order was quashed on the ground of delay in passing the same. * * * * * "27. As regards the second contention, as rightly pointed out by the learned counsel for the appellant, the delay in passing the detention order, namely, after 15 months vitiates the detention itself. The question whether the prejudicial activities 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 activities and the purpose of detention is snapped depends on the facts and circumstances of each case. Though there is no hard-and-fast rule and no exhaustive guidelines can be laid down in that behalf, however, when there is undue and long delay between the prejudicial activities and the passing of detention order, it is incumbent on the part of the court to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a reasonable and acceptable explanation as to why such a delay has occasioned. "28. It is also the....
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....uld be vitiated by taking into account incidents so far back in the past, as would have no bearing on the immediate need to detain a person without trial. The Supreme Court observed : "16. Obviously, therefore, the power to detain, under the 1986 Act can be exercised only for preventing a person from engaging in, or pursuing or taking some action which adversely affects or is likely to affect adversely the maintenance of public order; or for preventing him from making preparations for engaging in such activities. There is little doubt that the conduct or activities of the detenu in the past must be taken into account for coming to the conclusion that he is going to engage in or make preparations for engaging in such activities, for many such persons follow a pattern of criminal activities. But the question is how far back ? There is no doubt that only activities so far back can be considered as furnish a cause for preventive detention in the present. That is, only those activities so far back in the past which lead to the conclusion that he is likely to engage in or prepare to engage in such activities in the immediate future can be taken into account. In Golam Hussain ....
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....cision of the executive. Nonetheless, the court has a duty to enquire that the decision of the executive is made upon matters laid down by the statute as relevant for reaching such a decision. For what is at stake, is the personal liberty of a citizen guaranteed to him by the Constitution and of which he cannot be deprived, except for reasons laid down by the law and for a purpose sanctioned by law. As early as in Machindar Shivaji Mahar v. R. [Machindar Shivaji Mahar v. R., 1950 SCC OnLine FC 4 : AIR 1950 FC 129], this Court observed : (SCC OnLine FC) "... and it would be a serious derogation from that responsibility if the court were to substitute its judgment for the satisfaction of the executive authority and, to that end, undertake an investigation of the sufficiency of the materials on which such satisfaction was grounded. ... The Court can, however, examine the grounds disclosed by the Government to see if they are relevant to the object which the legislation has in view, namely, the prevention of acts prejudicial to public safety and tranquility, for "satisfaction" in this connection must be grounded on material which is of rationally probative value." ....
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.... satisfaction of the authority is not a genuine one. "24. The extent of staleness of grounds in this case compel us to examine the aspect of malice in law. It is not necessary to say that there was an actual malicious intent in making a wrong detention order. ....... * * * * * * "26. The influence of the stale incidents in the detention order is too pernicious to be ignored, and the order must therefore go; both on account of being vitiated due to malice in law and for taking into account matters which ought not to have been taken into account. (emphasis supplied) Conclusions 13. In our view, the two questions, the answers to which would be dispositive of the present matter are : (i) whether there was a live-link or a causal connection between the prejudicial activity, in which the petitioner is alleged to have indulged, and the passing of the detention order; and (ii) whether the grounds on which the detention order is premised are 'stale' or 'illusory' or have 'no real nexus' with the need for placing the petitioner under prevention detention. 14. To address the above aspects, we called upon the respondents to place on reco....
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....'. 18. Since, as the record discloses, the last act which the petitioner undertook, and which may amount to prejudicial activity, was on 11.12.2018, but the detention order was passed more than 02 years later on 15.01.2021, it is evident that the live-link or causal connection between the petitioner's preventive detention, meant to forestall the petitioner from indulging in any prejudicial activity, can surely be said to have snapped. 19. Furthermore, if, as we see it, the only activity specifically alleged against the petitioner is the one arising from shipping bill dated 11.12.2018, the ground for detention arising therefrom is clearly stale, illusory and lacks real nexus with a detention order passed more than 02 years later, on 15.01.2021. 20. In view of the foregoing discussion, we are of the view that detention order passed on 15.01.2021 and served upon the petitioner on 23.01.2021 cannot be said to be validly based upon alleged prejudicial activity undertaken by the petitioner on 11.12.2018. A gap of more than 02 years between the last alleged prejudicial activity undertaken by the petitioner cannot be the basis for a justifiable apprehension that the petitioner wou....