TaxTMI 
TaxTMI 
2024 (10) TMI 846
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.... respondent no. 2.; c. To quash the notification bearing S.O. 1845 (E) F.No.673/21/2015-Cus.VIII dated 06.07.2015 passed under section 7 (1) of COFEPOSA Act and was published in official gazette on 06.7.2015. d. direct the Respondent to decide the representation dated 03.07.2017 filed by the proposed detenue before the concerned authority by a speaking order; e. to pass such other and further order as this Hon'ble Court may deem fit, just and proper in the facts and circumstances of the present case and in the interest of justice in favour of the Petitioners." 2. By way of the present petition, Order of Detention dated 27th April, 2015 under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities (hereinafter referred as "COFEPOSA") Act, 1974 is sought to be quashed at pre-execution stage. 3. The impugned order was passed by the Detaining Authority after receiving a proposal from Lucknow Zonal Unit, Directorate of Revenue Intelligence (hereinafter as "Sponsoring Authority") and after finding sufficient material regarding involvement of the Petitioner, the said detention order was passed. It is the case of the....
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.... drew attention of this Court to order dated 10th September, 2018 passed by Predecessor Bench of this Court wherein after noting the aforesaid, it was observed as under:- "9. It is not explained why the Respondent, despite knowing the address of the Petitioner in Nepal, made no attempt to actually serve him the detention order at that address. 10. Counsel for the Respondent seeks time to obtain specific instructions on the legal obligation of the Respondent to serve the detention order on the Petitioner at his Nepal address, particularly considering the fact that the Petitioner is a citizen of Nepal." 8. It is pointed out that thereafter in pursuance of the direction of the Court, an additional reply on behalf of the Respondents was filed on 1st November, 2018 wherein it recorded as under: "4 (e) Further, in the process to verify the Nepalese address as given by the Petitioner absconder while filing a restoration application before this Court, the Embassy of India, Kathmandu (Nepal) vide the letter dated 12.3.2018 (ANNEXURE - VII) requested the Director General, Department of Revenue Investigation, Kathmandu, Nepal to verify the given Nepalese address ....
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.... available residential addresses in Delhi and Haryana respectively. After having verified the address of Shri Pawan Gupta, a Proclaimed Offender being in Nepal, necessary recourse of available legal persuasion including extradition of proclaimed offender from Nepal to India is being initiated." It is submitted the aforesaid additional reply/affidavit is completely silent on the issue raised in the order dated 10th September, 2018. 9. The attention of this Court was also drawn to order dated 12th July, 2022, passed by learned Additional Sessions Judge, Patiala House Courts, New Delhi in Crl. Rev. Petition No. 353/2018, wherein the process under Section 82 of the Cr.P.C. issued against the Petitioner was stayed. Attention was also drawn to an order dated 10th August, 2022 passed in CRM-M-32366-2022, passed by Hon'ble High Court of Punjab and Haryana whereby the proclamation under Section 82 of the Cr.P.C. of trial Court of Haryana was stayed. It is submitted that the aforesaid order reflects that the exercise alleged to have been done by the Respondents to serve the order of detention on the Petitioner at his alleged residences in Delhi and Haryana was a farce as he never resid....
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....e was passed with respect to the co-accused of the present Petitioner namely Deepak Verma and the said challenge was dismissed by a judgment dated 4th September, 2015 by Division Bench of this Court in W.P.(CRL.) 1214/2015. Another writ petition being W.P.(CRL) 203/2015 preferred by co-detenue Gautam Jain against the same Detention Order dated 27th April, 2015 was also dismissed by the Hon'ble Supreme Court vide its judgment dated 4th January, 2017. It is further submitted that the present petition, which is at the stage of pre-execution cannot challenge the detention order on merits as the said order was not available with the Petitioner. Furthermore, in view of the fact that the said detention order with respect to other co-detenues were upheld, the merits of the same cannot be urged by the Petitioner in the present petition. 13. Attention of this Court was drawn to the additional reply filed on behalf of the Respondents, as pointed out hereinabove with regard to the service of the Petitioner and in particular to the following paragraphs: "4.(b) Since the Petitioner has been absconding and has not submitted to the Detention Order by way of surrendering or otherwise be....
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....epalese residential address of the absconding Petitioner, the Sponsoring Authority have also arranged to have issued Look Out Circular (LOC)/ Red Alert No.15/2015 dated 05.05.2015 but in vain till date. In pursuance of the efforts to execute the detention order at the earliest and also in view of the untraceability of the absconding Petitioner at his known addresses in India, the concerned authorities in the Ministry of External Affairs, New Delhi were also addressed on 28.05.2015 with the request to provide information in respect of the passport of the absconding Petitioner. (e) Further, in the process to verify the Nepalese address as given by the Petitioner absconder while filing a restoration application before this Court, the Embassy of India, Kathmandu (Nepal) vide the letter dated 12.3.2018 (ANNEXURE - VII) requested the Director General, Department of Revenue Investigation, Kathmandu, Nepal to verify the given Nepalese address of Shri Pawan Gupta. Consequently, Embassy of India, Kathmandu (Nepal) vide the letter dated 10.9.2017 (ANNEXURE - VIII) confirmed verification in respect of Shri Pawan Gupta, the Proclaimed Offender as Kathmandu Municipality, ward No. 9, Bat....
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....r at his Nepal address, it is respectfully submitted that as per Section 4 of the COFEPOSA Act, 1974 a detention order can be executed anywhere in India similar to arrest warrants under the Code of Criminal Procedure, 1973. Procedure in respect of issuance and execution of the Warrants has been defined in Section 70 and 75 of the Criminal Procedure Code and as per the said provisions, the warrants is to be executed through jurisdictional police. It is also submitted that in terms of Section 6 of COFEPOSA Act, 1974, no detention order shall be invalid or inoperative merely by reason - (a) that the person to be detained thereunder is outside the limits of the territorial jurisdiction of the Government or the officer making the order of detention, or (b) that the place of detention of such person is outside the said limits. Further, so far as execution of the COFEPOSA Detention Order upon Shri Pawan Gupta in Nepal being a sovereign country is concerned, it is respectfully submitted that the said Detention Order was to be executed through local/jurisdictional police authorities i.e. Delhi Police Commissioner or DGP, Haryana in accordance with his available residential....
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.....- (1) If the appropriate Government has reason to believe that a person in respect of whom a detention order has been made has absconded or is concealing himself so that the order cannot be executed, that Government may- (a) make a report in writing of the fact to a Metropolitan Magistrate or a Magistrate of the first-class having jurisdiction in the place where the said person ordinarily resides; and thereupon the provisions of sections 82, 83, 84 and 85 of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply in respect of the said person and his property as if the order directing that he be detained were a warrant issued by the Magistrate; (b) by order notified in the Official Gazette direct the said person to appear before such officer, at such place and within such period as may be specified in the order; and if the said person fails to comply with such direction, he shall, unless he proves that it was not possible for him to comply therewith and that he had, within the period specified in the order, informed the officer mentioned in the order of the reason which rendered compliance therewith impossible and of his whereabouts, be punishable ....
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....nd sustainable which persuaded the authorities to pass the order of detention, the same is fit to be quashed merely due to long lapse of time specially when the detenu is allowed to challenge the order of detention even before the order of detention is served on him, he would clearly be offered with a double-edged weapon to use to his advantage circumventing the order of detention. On the one hand, he can challenge the order of detention at the pre-execution stage on any ground, evade the detention in the process and subsequently would be allowed to raise the plea of long pendency of the detention order which could not be served and finally seek its quashing on the plea that it has lost its live link with the order of detention. This, in my view, would render the very purpose of preventive detention laws as redundant and nugatory which cannot be permitted. On the contrary, if the order of detention is allowed to be served on the proposed detenu even at a later stage, it would be open for the proposed detenu to confront the materials or sufficiency of the material relied upon by the authorities for passing the order of detention so as to contend that at the relevant time when the or....
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....r of detention merely on the ground of long lapse of time might lead to grave consequences which would clearly clash with the object and purpose of the preventive detention laws. xxx xxx xxx 20. It is also not possible to lose sight of the fact that if the petitioners and the appellants had preferred not to challenge the order of detention at the pre-execution stage or had not evaded arrest, the grounds of detention would have been served on them giving them a chance to challenge the same but if the petitioners and the appellants have taken recourse to the legal remedy to challenge the order of detention even before it was executed, it is not open for them to contend that it should be quashed because there is no live link between the existing/subsequent situation and the previous situation when the order of detention was passed overlooking that they succeeded in pre-empting the order by challenging it at the pre-execution stage never allowing the matter to proceed so as to examine the most crucial question whether there were sufficient material or grounds to pass the order of detention. 21. Subsequent events or conduct in any view would be a matter of con....
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....m the said Section 7 that in a case where proposed detenu is absconding or concealing himself, the Government may report the matter to the Magistrate having jurisdiction over the place where the proposed detenu ordinarily resides. On making of such report by the Government, the provisions of Sections 82, 83, 84 and 85 of the Code of Criminal Procedure apply to the proposed detenu and his property, as if the order of preventive detention is a warrant issued by the Magistrate under the provisions of the Code of Criminal Procedure. In substance, the property of the proposed detenu could be attached and perhaps even be confiscated in an appropriate case. Apart from that the State can also by notification in the Official Gazette direct the proposed detenu to appear before an officer specified in the said notification at such place and time. Failure to comply with such notified direction on the part of the proposed detenu-without a reasonable cause-is made an offence punishable either with imprisonment for a term extending up to one year or with fine or both. 43. If a preventive detention order is to be quashed or declared illegal merely on the ground that the order remained une....
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.... that: (SCC p. 605, para 6) "6. ... 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." It was a case where the detention order was challenged at the pre-execution stage before the High Court and the High Court had stayed the execution of the order and the matter was pending for some time. After losing the matter in the High Court, the proposed detenu approached this Court without surrendering and advanced the argument that the live nexus snapped in view of the delay in executing the preventive detention order. The submission was rejected. 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. Permit....
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....ay in serving the order of detention." (M. Ahamedkutty case, p. 10, para 14)]. In both Shafiq Ahmad [(1989) 4 SCC 556 : 1989 SCC (Cri) 774] and Ahamedkutty [(1990) 2 SCC 1 : 1990 SCC (Cri) 258] cases, these questions were examined after the execution of the detention order. Permitting an absconder to raise such questions at the pre-execution stage, I am afraid would render the jurisdiction of this Court a heaven for characters of doubtful respect for law. 48. This Court in Alka Subhash Gadia [Govt. of India v. Alka Subhash Gadia, 1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301], emphatically asserted that "it is not correct to say that the courts have no power to entertain grievances against detention order prior to its execution". This Court also took note of the fact that such an inquiry had indeed been undertaken by the courts in a very limited number of cases and in circumstances glaringly untenable at the pre-execution stage. (emphasis supplied) 21. As per the above decision in Subhash Popatlal Dave (supra) mere delay in execution of detention order per se cannot lead to quashing of the same. The reasons for non-execution of the detention order deserves to be examine....
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....r on the Petitioner at his Nepal address would not be proper procedure under the provisions of the COFEPOSA Act read with the provisions of the CrPC. 26. Learned Counsel for the Respondent has also placed on record the Treaty of Extradition between the Government of India and the Government of Nepal dated 22nd February, 1963 and in particular drew the attention of the Court to the following articles: "Article 2 Neither Government shall be bound in any case to surrender any person who is not a national of the country by the Government of which the requisition has been made, except where such person is accused of having committed the offence specified in clause (10) of Article 3. Article 3 The offences for which extradition is to be granted in accordance with this Treaty are the following, namely :- (1) Murder or attempt or conspiracy to murder, (2) Culpable homicide not amounting to murder, (3) Grievous hurt, (4) Rape, (5) Dacoity, (6) Highway robbery, (7) Robbery with violence, (8) Burglary or house breaking, (9) Arson, (10) Desertion from Armed forces. ....
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....d on 23rd September, 2024 and subsequently a fresh Passport had been issued on 7th March, 2019 which is currently valid. This Court while recording the aforesaid submissions passed the following order on 29th July, 2024: "6. The Court notes that the seizure of goods and arrest of the accomplice was done between 21st October, 2014 to 29th October, 2014. As per the writ petition, the Petitioner was stated to be in India in April, 2014 when he was admitted to the Medanta hospital. However, in November, 2014 the Petitioner is stated to be in Kathmandu, Nepal. The exact date when he left India is not clear from the writ petition or from the record. 7. Accordingly, a short affidavit shall be filed by the Petitioner giving the dates when the Petitioner left India along with copies of his passport. Let the same be filed within one week." 29. In pursuance of the aforesaid order an affidavit dated 12th August, 2024 was filed by the Petitioner. In the affidavit it has been stated that the Petitioner left India in the month of July, 2014 and was admitted in Hospital in Kathmandu, Nepal from 2nd August, 2014 to 10th August, 2014. It is further stated that his earlier passpo....
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....nd was used to travel to India allegedly between April to July is stated to be missing and the said passport has also not been produced. Details of the said earlier passport are also not available in the passport bearing No. 07899371 at page 31 as the said pages 31-32 are missing from the passport bearing No. 07899371. The period which is relevant for the present case is April to October 2014. The passport for the said period is not produced. It cannot be therefore, categorically accepted that in September-October 2014 the Petitioner was not present in India. 5. Mr. Soni, ld. Standing Counsel on the other hand submits that to travel from India to Nepal, a visa is not required, and only an identity card is usually required. 6. As per the observation of this Court, the missing pages 31 and 32 in the passport bearing No. 07899371 appear to be clearly an attempt by the Petitioner not to reveal the details of the earlier passport. The passport bearing no. 07899371 has also been shown to the Counsel for the Petitioner and he was also queried regarding the missing pages 31 and 32, to which he candidly admits that the said pages 31 and 32 do not exist. 7. Both th....
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....t court must come with clean hands and put forward all facts before the court without concealing or suppressing anything. A litigant is bound to state all facts which are relevant to the litigation. If he withholds some vital or relevant material in order to gain advantage over the other side then he would be guilty of playing fraud with the court as well as with the opposite parties which cannot be countenanced." 34. It is pertinent to note that the Petitioner has still not been served with the detention order. In similar circumstances, the Hon'ble Supreme Court in Union of India v. Parasmal Rampuria, (1998) 8 SCC 402 observed and held as under: "4. In our view, a very unusual order seems to have been passed in a pending appeal by the Division Bench of the High Court. It is challenged by the Union of India in these appeals. A detention order under Section 3 (1) of the COFEPOSA Act was passed by the authorities on 13-9-1996 against the respondent. The respondent before surrendering filed a writ petition in the High Court on 23-10-1996 and obtained ad interim stay of the proposed order which had remained unserved. The learned Single Judge after hearing the parties vacate....
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....t petition, the main ground urged is that since the impugned detention order dated 13th October, 2003 was passed nearly 14 years ago, it should be quashed. 2. In response to the petition, it has been pointed out inter alia by the Respondents that the Petitioner cannot take advantage of the fact that the detention order has remained unexecuted for over 13 years. It is pointed out that the legal requirement is that the detenue must first surrender to the process of law before seeking legal remedies. He cannot be allowed to take advantage of his own conduct of evading the process of law. 3. It is further stated by the Respondents in reply to grounds 6 and 7 that the question of considering the plea of the Petitioner for revoking the order of detention would arise only if the Petitioner first surrenders. 4. The above stand of the Respondents does not seem to be unreasonable. The Petitioner cannot take advantage of the fact that he himself was evading the process of law and till date has not surrendered. Whether in a given case, a detention order should be revoked due to lapse of time is a call that should be taken by the Detaining Authority. There cannot be a....