While quashing an order of detention passed under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, the Bombay High Court on Thursday held that the purpose of a detention order issued under the Act is to prevent the detenu from indulging in prejudicial activity like smuggling and if there is unreasonable delay in making of the detention order, it becomes vulnerable. If delay is not satisfactorily explained, that itself is ground to quash order of detention, Court said.
Division bench of Justice SS Shinde and MS Karnik heard the criminal writ petition filed by 40-year-old Suresh Jaiswal who was arrested after seizure of electronic goods worth more than Rs.4 crore on September 4, 2019 under Section 110 of the Customs Act, 1962 on a reasonable belief that the same is liable to confiscation under Section 111 of the Customs Act, 1962. The detention order was passed on February 14, 2020.
The said detention order was passed after the Sponsoring Authority brought to the notice of the Union of India the following facts- An international passenger, named Abhishek Ranpariya arrived at Terminal 3, New Delhi dated September 3, 2019 from Hongkong. He was in transit in Delhi and was travelling to Mumbai by a Flight on the same day.
Two domestic passengers, namely, Bhadresh and the petitioner were also travelling from Delhi to Mumbai. It is alleged that the said passengers including the petitioner are involved in smuggling of mobile phones, laptop batteries and memory cards, deliberately, intentionally and knowingly with intent to evade custom duty. The said recovered miscellaneous goods/items having market value (as per web portal) of Rs.4,03,64,328 were seized.
Petitioner's statement was recorded on September 5, 2019 under Section 108 of the Customs Act. The investigations revealed that the petitioner in whose possession 74829 memory cards were recovered was the carrier for three occasions in the past. The petitioner along with others were produced before the Jurisdictional Magistrate on September 9, 2019 and was remanded to judicial custody upto September 23, 2019 which was further extended from time to time. The petitioner was released on bail by the Chief Metropolitan Magistrate, Patiala House Courts, New Delhi via order dated November 6, 2019 observing that the complaint in the present case has already been filed after conclusion of investigation and custodial interrogation of the petitioner is no more required.
Before the Chief Metropolitan Magistrate the petitioner stated that his statement was obtained under pressure, threat and force.
The Detaining Authority was of the view that the investigations revealed that all three passengers were involved in smuggling of commercial goods in a repeated and systematic manner. All the three passengers formed a cartel adopting the modus operandi by importing dutiable goods through Abhishek Ranpariya and changing hands at transit area and clearing it illegally with the help of domestic passengers, the petitioner being one of them.
Thus, the Detaining Authority was therefore satisfied that there is a need to prevent the petitioner from smuggling goods under the provisions of Section 3(1) of the COFEPOSA Act.
Appearing on behalf of the petitioner, Dr.Abhinav Chandrachud contended that there is inordinate delay in passing impugned order of detention by the Detaining Authority. He submitted that though the petitioner was released on bail by an order dated November 6, 2019, the detention order was made on February 14, 2020 and the same was executed on July 2, 2020 i.e. almost 8 months after the petitioner was released on bail.
There is no explanation of the undue delay in passing the detention order as well as its execution till July 2, 2020. In support of his submissions, Dr.Chandrachud relied upon the decision of the Apex Court in the case of SMF Sultan Abdul Kader vs. Joint Secretary to Government of India and others.
Moreover, Dr.Chandrachud submitted that the order of detention was passed on February 14, 2020, prior to the lockdown which was imposed on account of the international outbreak of Covid-19. Thereafter, international commercial fights ceased all operations. He argued that the apprehension which the Detaining/Sponsoring Authorities had against the petitioner on February 14, 2020 that the petitioner would smuggle electronic goods from China to India through international commercial passenger fights, in his hand baggage, is now no longer well founded and therefore the material relied upon by the Detaining Authority has become stale.
The live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken to have been snapped in this case, Dr.Chandrachud submitted.
On the other hand, an affidavit-in-reply was filed by LR Chauhan, Deputy Secretary, Central Economic Intelligence Bureau, Department of Revenue, Ministry of Finance, Government of India, justifying the order of detention. In the affidavit it is stated that there is no delay in passing the order of detention as according to the Union of India, the delay in passing the order of detention is satisfactorily explained.
So far as the delay in execution of the detention order is concerned, the Detaining Authority said that the petitioner was absconding and all possible steps were being taken by the executing authority i.e. the State to execute the order. It is further stated in the affidavit that the detention order is passed after the Detaining Authority has arrived at his subjective satisfaction based on material submitted before it and after careful consideration of all the material placed before it.
After examining submissions made on behalf of all parties, Court relied upon three judgments of the Supreme Court -
i)KPM Basheer Vs. State of Karnataka and anr.
ii)SMF Sultan Vs. Joint Secretary to Government of India
iii)Licil Antony Vs. State of Kerala & anr.
The bench observed-
"A conspectus of the law laid down by the Apex Court shows that the Respondents have to offer satisfactory and reasonable explanation in respect of delay in execution of order of detention. Live and proximate link between the grounds of detention and the purpose of the detention is snapped on account of the undue and unreasonable delay in securing the detenu and detaining him unless the delay is satisfactorily and reasonably explained.
While dealing with the question of delay., we are conscious that COFEPOSA Act intends to deal with persons engaged in smuggling activities who pose a serious threat to the economy and thereby security of the nation. The Court is required to be circumspect and has to take a pragmatic view. No hard and fast formula is possible to be laid or has been laid in this regard. 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 delay in execution of the order of detention, the order of detention becomes vulnerable. "
Moreover, Court rejected the submission on behalf of the Detaining Authority that the petitioner was absconding that is why the delay occurred. The bench concluded that no serious efforts were made by the detaining authority to trace the petitioner-
"We find that for the period from March 3, 2020 to June 8, 2020 there is hardly any explanation leave alone satisfactory explanation of the efforts made to trace out the detenu. In the facts of the present case, it is not possible for us to accept the bare and vague contention of the executing authority that the detenu had absconded in the absence of bringing materials on record about efforts made to trace out the detenu during the period from March 3, 2020 to May 28, 2020."
Finally, Court allowed the petition, quashed and set aside the order of detention.
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