TaxTMI 
TaxTMI 
TaxTMI 
1997 (7) TMI 707
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....000 pieces of LCD Modules (Watch Parts) from the aforesaid shop and 1,90,000 pieces of LCD Modules, all of foreign origin, which were recovered from the residential premises of said Madan Lal Girdhar. At the time of raid, Madan Lal Girdhar was not present at his residential premises as well as his shop. No documents regarding the valid and legal import/possession of the said goods could be produced before the raiding authority. The aforesaid LCD Modules of foreign make were seized under the Customs Act. One Maruti car bearing registration No. DL-2 CE-1143 was also seized under the said Act. As per allegations of the respondents, these modules were smuggled and the said Maruti car was used for transportation of the smuggled goods. An enquiry was conducted regarding the said LCD modules and it was found that the consignment was imported vide AIR Way Bill No. 160/83260030 in the name of M/s Modern Time Industries, E- 137, Industrial Area, Bhiwadi, Rajasthan and was duly cleared by Bombay Customs under Bill of Entry No. 8310 dated 24.8.93 on the basis of a declaration given by the importer that the said goods had been imported under Other Than Negative List (OGL). The search in the fac....
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....ining authority. Even the custom value of any part during the period 1991 to 1994 would show that the value of such items valued from Rs. 5/- to Rs. 7/- per piece. The Collector of Customs (Appeals) New Delhi during the adjudication proceedings recorded the findings to the effect that the imported goods are described in the bills of entry and invoices as "components of digital watches-digital modules" and the same are found as such in customs examination reports and the impugned goods are not considered even by the adjudicating officer as watches but only as part of digital watches- "complete modules, which will fall in the category of consumer durables for which import licence is required." The petitioner alleged that the view of the adjudicating officer is not supported by the provisions of the import policy, since sub-item (3) of item 156, Part II-A, Chapter XV of 1992-97 Policy Book covers "Watches in SRD, CKD or assembled condition as well as movements (mechanical); watches cases; watch dials." The impugned digital modules are not watches in SKD-CRD or assembled condition. The view of the adjudicating officer further that "as the modules are covered under negative list of impo....
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....s further been mentioned that the order of detention in respect of the petitioner arises out of the same facts and circumstances under which Harbhagwan Wadhwa and Madan Lal Girdhar were detained and their detention having been revoked, on the basis of the opinion of the Advisory Board, no useful purpose would be served in first serving the impugned order of detention on the petitioner and then making the petitioner to challenge the same before the Advisory Board. As per contention of the petitioner, his case is the one, which is covered under the rare of the rarest cases of it kind, which requires interference and indulgence of this Court at pre-execution stage. It has also been mentioned that though the impugned order of detention was passed on 4.2.1994, yet the same has not been served on the petitioner. As per the provisions of the COFEPOSA Act, a person can be detained for a period of one year as a preventive measure, whereas a period of more than 2½ years had already elapsed between the passing of the order and its execution. As such the purpose for which the order was passed stands lost. The delay, on the other hand, in execution of the order of detention shows that th....
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...., but prevents their abuse and the perversion of the law in question." 6. It is pointed out that co-detenu Madan Lal Girdhar had also filed a writ petition seeking the quashing of his detention order at pre-execution stage and the same was dismissed by this Court on the ground of jurisdiction. It has also been mentioned that it is now a well settled position of law as held by the Apex Court in a number of cases that the High Court under Article 226 and the Supreme Court of India under Articles 32 and 136 cannot look into the matter on the basis of which the detention order was passed. It is the duty of the appellate authority. The Court can only examine whether the formalities enjoined by Article 22(5) of the Constitution have been complied with or not. The respondents have further mentioned that the detention order could not be served upon the petitioner as he had been declared as a proclaimed offender by the Court at impost Delhi on 25.10.1994 and 8.12.1994. The averments made in the petition regarding the petitioner having been implicated only on the basis of a bald assertion by an employee was wrong and denied. The petitioner, it was mentioned, had imported the seized goods.....
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.... efforts were made to detain the petitioner but he successfully evaded the implementation of the order of detention. Non-bailable warrants had been issued against him and he had been declared a proclaimed offender by the Court of ACMM, Patiala House, New Delhi on 25.10.1994 and 9.12.1994. It is stated that if the order of detention has been passed after due application of mind and without service of the impugned order, the petitioner cannot make a submission regarding the said order being mala fide and passed without application of mind. 7. Undisputedly, this writ petition has been filed seeking the quashing of the impugned order of detention at the pre-execution stage. The petitioner, as per averments made in the written statement, evaded service of the impugned order. He had been declared a proclaimed offender by a court of competent jurisdiction at New Delhi. The law regarding the challenge to the order of detention at the pre-execution is well settled and has been stated even in the reply of the respondents, which has been quoted in the earlier part of this judgment. The scope of challenge has been limited to the following five grounds: (i) That the impugned order i....
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...., it is empowered to issue writ against a person or authority residing outside the jurisdiction of the particular High Court. The complete address of the petitioner, in details as mentioned above, is clearly wanting in the writ petition. The respondents in their reply in para 1 mentioned that the petitioner has no cause of action in the territorial jurisdiction of this Court. The petitioner in his statement made before the DRI on 27.12.1994 at Bombay had stated that he is resident of B-127, Malvia Nagar, New Delhi. Even in the writ petition, the petitioner has stated about his residence at Delhi, but described the same to be a temporary address. It is note-worthy that he did not mention in the petition about his being a permanent resident of Haryana. No rejoinder was filed after the reply of the respondents. It is not disputed that searches and raids in this case were conducted at places outside the territorial jurisdiction of this Court. It is also significant to note that in the affidavit filed by the petitioner, his address has been mentioned as under :- 10. "Affidavit of Rajinder Nanda (Petitioner) R/o New Mandi, Mandi Adampur District Hissar." 11. The words "Affidavit by....
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....a 16 of the said grounds, it was stated that enquiries were made at House No. 800, Phase IV, Mohali, the address of the companion of the detenu, namely Amrik Singh and it was found that in fact that house was occupied by one Shri S.S. Padam, Manager in the Life Insurance Corporation of India, Mohali since June, 1988. It was further stated that in the same statement made by the detenu he had given his own address as house No. 813, Phase IV, Mohali. The enquiries made in this connection revealed that the said address was not right. Learned counsel for the petitioner wants to infer from the above material that the allegations against the petitioner narrated to alleged smuggling/prejudicial activities being carried on at Mohali, district Ropar in the State of Punjab, which is under the jurisdiction of this Court. After hearing the learned counsel for both the parties, I am unable to accept the above contention. It is well known that whenever a person is interrogated he is asked about his residence and some other antecedents and these facts are normally verified. It is in this connection that the petitioner appears to have mentioned about his own residential address as also of his compa....
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....ecretary to the Government of India and Others v. Alka Subhash Gadia and another, 1991(1) RCR (Crl.) 677; 1992 Supreme Court Cases (Crl) 301, the Apex Court formulated the question which cropped up for consideration in the said case (in para 5) as under :- 18. "The neat question of law that falls for consideration is whether the detenu or anyone on his behalf is entitled to challenge the detention order without the detenu submitting or surrendering to it. As a corollary to this question, the incidental question that has to be answered is whether the detenu or the petitioner on his behalf, as the case may by, is entitled to the detention order and the grounds on which the detention order is made before the detenu submits to the order." 19. After considering the rival contentions made in the said case, the Apex Court held :- "30. As regards his last contention, viz., that to deny a right to the proposed detenu to challenge the order of detention and the grounds on which it is made before he is taken in custody is to deny the remedy of judicial review of the impugned order which right is a part of the basic structure of the Constitution; we find that this argument is al....
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.... this is more important, it is not correct to say that the courts have no powers to entertain grievances against any detention order prior to its execution. The courts have the necessary power and they have used it is 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 the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question. 20. In view of this settled position of ....
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....Punjab, 1994(1) RCR 581, wherein it was held (in para 9) as under :- 24. "In the instant case, the explanation furnished in the return filed on behalf of the State, indicates that the sponsoring authority took about 5½ months to sponsor the proposal to the State Government on 11-1-1993 after the arrest of the petitioner on 23.7.92 under Section 104(1) of the Customs Act, 1962, concerning the recovery of seven biscuits of gold. The proposal was received by the detaining authority on 14.1.1993 and there after it again took about 2¾ months before the order of detention was passed by it. Even after taking into consideration the number of holidays during this period, no plausible explanation has been put forth as to why it took eight months before passing the impugned order of detention against the petitioner when the latter had been arrested on the charge of smuggling gold as early as 23.7.1992. It is quite obvious that there is no close nexus between the alleged prejudicial activity indulged in by the petitioner and the detention order in this case and the said order has been passed by the detaining authority without due application of mind and without reaching any su....