Purpose Of Detention To Prevent Detenu From Indulging In Smuggling, Undue Delay Makes Detention Order Vulnerable: Bombay HC Quashes Order U/COFEPOSA [Read Judgment]

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.Case BackgroundThe 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.SubmissionsAppearing 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...

Purpose Of Detention To Prevent Detenu From Indulging In Smuggling, Undue Delay Makes Detention Order Vulnerable: Bombay HC Quashes Order U/COFEPOSA [Read Judgment]

Nitish Kashyap

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