W.P.(CRL) 1911/2019 Page 1 of 50

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 02.03.2022

Judgment delivered on: 20.05.2022

+ W.P.(CRL) 1911/2019

ABHISHEK GUPTA ..... Petitioner

versus

UNION OF INDIA & ORS. ..... Respondents

Advocates who appeared in this case:

For the Petitioner : Mr. Saurabh Kripal, Senior Advocate with Mr. Ashish Batra,

Mr. Sarthak Sachdev, Ms. Aanehal Mulliek and Ms. Tanima

Gaur, Advocates.

For the Respondents : Mr. Vinod Diwakar, CGSC with Mr. Vishal Kr. Singh and Mr.

B. N. Dubey, Advocates for UOI/R-1. Mr. Satish Aggarwala,

Sr. SPP with Mr. Aditya Singla, Senior Standing Counsel

(CBIC), Mr. Utsav Vasudeva and Ms. Sonali Sharma,

Advocates for DRI/R-3.

CORAM:

HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA

J U D G M E N T

ANOOP KUMAR MENDIRATTA , J.

1. By way of the present writ petition under Article 226 of the Constitution

of India read with Section 482 of the Code of Criminal Procedure, 1973,

petitioner Abhishek Gupta, challenges Preventive Detention Order

No.PD-12001/07/2019-COFEPOSA dated 26.03.2019 issued under

Section 3(1) of the Conservation of Foreign Exchange and Prevention of

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Smuggling Activities Act, 1974 (COFEPOSA Act) to detain the

petitioner in custody for a period of one year. The petitioner also

challenges the further order under Section 7(1)(b) of the COFEPOSA

Act, 1974 issued on 21.05.2019 directing the petitioner to appear before

the Commissioner of Police, NCT of Delhi within seven days of the

publication of the order dated 21.05.2019 in the official gazette i.e. on or

before 28.05.2019 but published in newspapers only on 11.07.2019.

2. Respondent No.1 is the Union of India/Central Government which

issued the impugned order under Section 7 of the COFEPSA Act, 1974

(hereinafter referred to as „the Act‟), pursuant to impugned detention

order under Section 3(1) of the Act, 1974 issued by the Detaining

Authority (i.e. respondent No.2). The respondent No.3 is the Directorate

of Revenue Intelligence, New Delhi- the Sponsoring Authority, on

whose proposal the detention order is issued against the petitioner.

Respondent No.4 is the Commissioner of Police, Delhi, before whom the

petitioner has been directed to appear as per the impugned order issued

under Section 7(1)(b) of the Act.

3. In sum and substance, order dated 21.05.2019, which directed the

petitioner to appear before the Commissioner of Police, Govt. of NCT of

Delhi within seven days of the publication of the said order, reflects that

petitioner was required to be detained and kept in Tihar Jail, New Delhi

with a view to preventing him from smuggling of goods, abetting the

smuggling of goods and engaging in transporting or concealing or

keeping smuggled goods in future as per Order No.PD-12001/07/2019-

COFEPOSA dated 26.03.2019.

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4. It is pertinent to note that the impugned Preventive Detention Order is

yet to be served on the petitioner. Further, it was observed by this Court

vide order dated 22.07.2019 that despite the detention order, which has

been rendered on 26.03.2019, the same was not executed upon the

petitioner on behalf of the official respondents, and in these

circumstances no coercive action be taken against the petitioner.

5. The principal grounds of challenge to the detention order as canvassed in

the petition and in the submissions made by the learned counsel for the

petitioner are as follows:-

a) That the impugned orders are in grave derogation of settled tenets of

law, equity and justice and also in violation of mandatory procedural

safeguards established by law and instructions issued in this regard

by the Ministry of Finance.

b) That the impugned orders have been obtained by respondent No.3,

for 'punitive' rather than 'preventive' purpose, as an alternative to the

ordinary laws of the Land providing for criminal prosecution.

Despite claiming in the remand application dated 19.12.2018 that -

"even conviction can be recorded exclusively on the basis of such

statements.", no criminal prosecution has been filed against the

petitioner under the ordinary laws of land under Customs Act, 1962.

Reliance is also placed on “Yumman Ongbi Lembi Leima Vs. State

of Manipur & Ors (supra), Munagala Yadamma Vs. State of A.P.

& Ors (2012) 2 SCC 386 and Rekha Vs. State of Tamil Nadu

(2011) 5 SCC 244”.

c) That even before the petitioner came out on bail, the Import Export

Code of the subject four firms which are alleged to be

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operated/controlled / used by the petitioner, were placed in Denied

Entity List (Black List) vide Orders dated 21.12.2018 and

24.12.2018. Thus, the petitioner was already effectively prevented

from acting in any prejudicial manner. The said vital fact exhibits

lack of any genuine and real 'necessity' to again apprehend and detain

him, now for alleged preventive purpose.

d) That if the orders dated 21.12.2018 and 24.12.2018 obtained by the

respondent No.3 from the office of DGFT showing the fact of

placing of all the subject firms in the Denied Entity List (Black List)

on 21.12.2018 and 24.12.2018 which had foreclosed any future

possibility of the petitioner indulging in any of the alleged prejudicial

activities, were not placed before the respondent No.2; it would

axiomatic that non-placement of such vital documents, having a

significant and direct bearing on the subjective satisfaction, was mala

fide, illegal and erroneous on the part of the Sponsoring Authority.

Consequently, the subjective satisfaction of the Detaining Authority

regarding „necessity to detain‟ is vitiated for non-application of mind

on the relevant and vital documents having a significant and direct

bearing on the subjective satisfaction.

e) That the powers under preventive detention law have been exercised

mechanically without any sense of urgency to detain, in a wholly

routine, callous, casual and cavalier manner. The petitioner was

granted bail on 24.12.2018. If the respondents were really sincere,

anxious and zealous in executing the order of detention for alleged

preventive purpose promptly, without any delay, it was expected of

them, in the fitness of things, to approach this Court or, at least, the

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Court which initially granted the bail to the petitioner for its

cancellation, and thereby to enforce his appearance or production.

Surprisingly, however, no such steps were taken. On the contrary, it

is a matter of record that even after issuance of the impugned

Detention Order on 26.03.2019, the petitioner had appeared before

the Trial Court on 28.03.2019 and 05.04.2019, but the same was not

executed on him. Reliance is further placed on “A Mohammed

Farook vs Jt. Secy, (2000) 2 SCC 360”.

f) That the Sponsoring Authority as well as the Detaining Authority are

bound to satisfy that the obligations in the nature of procedural

safeguards cast on them vide the Instructions issued by the Ministry

of Finance, Government of India, for handling COFEPOSA matters

were scrupulously followed.

g) That the Sponsoring as well as the Detaining Authority failed to

make any effort to serve the Detention Order dated 26.03.2019 on the

petitioner upon his repeated appearance before the Trial Court on

28.03.2019 and 05.04.2019. Only after a period of about two months

on 21.05.2019 the impugned Order under Section 7(1)(b) of the Act

was mechanically issued alleging that the petitioner is absconding or

concealing himself to avoid the execution of the impugned Detention

Order, and the same was published in Official Gazette. No action

under Section 7(1)(a) had been taken till date. Moreover, the

impugned Order dated 21.05.2019 contained a direction that the

petitioner shall appear within "Seven days of its publication in

Official Gazette" i.e. prior to 28.05.2019, before the Respondent

No.4. However, the publication of the same in Newspaper to

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communicate the same to the petitioner and to all others was made

only on 11.07.2019, i.e. after 53 days of publication in official

gazette. The petitioner till then was unaware of any Order dated

21.05.2019, and he came to know about the same only on 11.07.2019

upon its publication in Newspaper, which contained the details of the

impugned Detention Order dated 26.03.2019 issued under Section

3(1) as well as the impugned Order dated 21.05.2019 issued under

Section 7(1)(b) of COFEPOSA Act.

h) That the impugned orders are liable for judicial scrutiny and review

inter alia in the context of relevance, reasonableness, fairness,

necessity to detain, nexus with the alleged pre-judicial activity,

natural justice, equality, non-discrimination and compliance of all

procedural safeguards. It is incumbent on the part of the

Respondents to also satisfy this Court, by producing records for

perusal of this Court and by placing adequate details in their reply

that:-

i. The proposal for detention of the petitioner was sent by the

Sponsoring Authority to the concerned Detaining Authority

as early as possible, and in any case within a period of 15

days from gathering such evidence, as was considered

adequate by them to detain the petitioner,

ii. No vital material and information having a definite bearing

on subjective satisfaction for necessity to detain, including

DEL Orders, has been suppressed by the Sponsoring

Authority from the Detaining Authority, and were placed

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before the Detaining Authority with the proposal to issue

Detention order;

iii. The Detaining Authority has noticed, adverted to and

considered the DEL Orders passed by the office of DGFT at

the instance of Respondent No. 3 before issuance of the

impugned Detention Order;

iv. The subjective satisfaction is not vitiated for non-

application of mind to relevant and vital material touching

the question of culpability as well as necessity to order the

detention,

v. Each vital material was noticed, adverted to and considered

in the grounds of detention,

vi. The impugned detention order is not mala fide or

discriminatory,

vii. The impugned Order is not to supplant criminal

prosecution,

viii. The Detaining Authority was vigilant enough at every stage,

and had acted reasonably and with utmost promptitude:

ix. The Detaining Authority has himself formulated /

reformulated the Grounds of Detention in accordance with

law, before issuance of the impugned Detention Order.

x. The Sponsoring and Executing Authority was vigilant

enough at every stage, and had acted reasonably and with

utmost promptitude;

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xi. The impugned detention order is not in the teeth of the

Constitutional imperatives of Article 14 and 21 of the

Constitution of India.

6. In support of the contentions, the petitioner further relied upon following

judicial precedents:-

(i) Rajinder Arora v. Union of India, (2006) 4 SCC 796;

(ii) Deepak Bajaj v. State of Maharashtra, (2008) 16 SCC 14;

(iii) Subhash Popatlal Dave v. Union of India, (2014) 1 SCC 280;

(iv) Subhash Popatlal Dave v. Union of India and Another, (2012) 7

SCC 533;

(v) Boris Sobotic Mikolic v. Union of India & Ors., 2018 SCC

Online Del 9363;

(vi) Pankaj Kumar Shukla v. Union of India & Ors., 2015 SCC

Online Del 9925;

(vii) Ankit Ashok Jalan v. Union of India & Ors., (2020) 16 SCC

127;

(viii) Mohd. Nashruddin Khan v. Union of India & Ors., W.P. (Crl)

No.1924/2020;

(ix) Mohd. Nashruddin Khan v. Union of India & Ors., 2020 SCC

Online Del 1190;

(x) Manish Gadodia v. Union of India & Ors., 2014 SCC Online

6838;

(xi) Tsering Dolkar v. Administrator Union Territory of Delhi &

Others, (1987) 2 SCC 69;

(xii) Hem Lall Bhandari v. State of Sikkim & Others, (1987) 2 SCC

9;

(xiii) Ram Manohar Lohia v. State of Bihar & Another, 1966 Cri LJ

608; and

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(xiv) State of Punjab v. Sukhpal Singh, (1990) 1 SCC35.

7. In the additional affidavit filed on behalf of the petitioner, additional

ground has also been taken that Section 7(1)(a) and 7(1)(b) of

COFEPOSA Act contemplates the issuance of order under Section

7(1)(a) and 7(1)(b) by the “Appropriate Government”. The Appropriate

Government under Section 2(a) of the COFEPOSA Act implies either

the Central Government or the State Government, and in the instant case,

it is the Central Government. It is submitted that order dated 21.05.2019

passed purportedly under Section 7(1)(b) of the COFEPOSA Act feigns

satisfaction of the Central Government on reasons to believe that the

petitioner had absconded or has been concealing himself. Further, from

the affidavits filed by the respondents and order dated 21.05.2019, the

alleged competent authority i.e. Shri Ravi Pratap Singh, Joint Secretary,

CEIB in Ministry of Finance, is specially empowered by the Central

Government under sub-section (1) of section 3 of COFEPOSA Act and

vide impugned detention order dated 26.03.2019, he directed that the

petitioner be detained. It is further submitted that the said competent

authority usurped the jurisdiction of the Appropriate Government i.e. the

Central Government in issuing the order dated 21.05.2019 purportedly

under Section 7(1)(b). The orders dated 28.03.2019 and 05.04.2019

were not placed for consideration and not considered while arriving at

satisfaction, necessary for issuing the impugned order dated 21.05.2019,

which vitiate the satisfaction, so reached, and renders the order null and

void.

8. Reliance is further placed upon Ankit Ashok Jalan v. Union of India,

2020 SCC Online SC 288 to contend that the practice of specially

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empowered officers of Central Government, acting as detaining

authority, holding itself equivalent to the Central Government or

Appropriate Government and performing such acts/functions as are to be

undertaken or performed only by the Appropriate Government has been

held to be erroneous and legally flawed.

9. It is further contended that the impugned order dated 21.05.2019 under

Section 7(1)(b) of COFEPOSA Act is bad in law as neither it has been

issued by the Appropriate Government nor by complying with the

established procedure under law warranting- (a) satisfaction of the

Central Government on reasons to believe with due application of mind,

and upon consideration of relevant material, and (b) without expeditious

action by the authorities concerned to communicate the same to the

detenu for forthwith compliance of the directions under Section 7(1)(b)

as mandated by guidelines already issued in this regard.

It is also submitted that the impugned detention order was passed

prior to judgment in Ankit Ashok Jalan (supra).

10. Controverting the submissions made on behalf of the petitioner, learned

counsel for the respondents No.1 & 2 relied upon the following

contentions:-

a) That on the basis of specific information that certain Delhi based

exporters were indulging in mis-declaration of export goods to avail

export incentive under Merchandise Exports from India Scheme

(„MEIS‟), investigation was initiated by the DRI (Hqrs.) regarding

mis-declaration in exports by M/s Yashee Impex, M/s C.L.

International and M/s Gauri Global Exports & Trading. During

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examination of live exports consignments, wherein items were

declared in export documents as „Whey Flour (CTH 0404 1020)‟,

Flour of Others (Almo) i.e. Almond Flour (CTH-11063090)‟ and

„Milk Powder (CTH 0402 9990)‟, samples of the goods were drawn

under Panchnamas. Upon testing of the samples, it was found that

Wheat Flour (Maida), Common Salt were being exported in the guise

of Whey Flour, Flour of Others (Almo) i.e. Almond Flour and Milk

Powder, to avail ineligible benefit under MEIS.

It was pointed out that MEIS was made applicable @10% to

certain dairy products under Chapter-4 of ITC HS Code, including

Whey Powder and Milk Powder vide DGFT Public Notice

No.23/2015-2020 dated 13.07.2018 which was further enhanced to

20% vide DGFT Public Notice No.41/2015-2020 dated 27.09.2018.

b) It was submitted that the petitioner was found involved, through

entities in his name and in the name of others (viz. M/s Yashee

Impex, M/s. Gauri Global Exports &. Trading and M/s C.L

International), in export of low value goods i.e. Wheat Flour

('Maida'), Common Salt by mis-declaring the same as high value

goods i.e. Whey Flour, Flour of Others (Almo) i.e. Almond Flour

and Milk Powder to avail ineligible export benefit under MEIS (@

20% of Declared Value). During the course of investigation, 25

containers worth declared FOB value of Rs. 21.8 Crores (approx.)

having MEIS benefit worth Rs. 4.14 Crores (approx.) being exported

by three exporters named above were intercepted by DRI.

Investigation revealed that the Petitioner had indulged in similar mis-

declaration in exports with intent to defraud the Exchequer. Further

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investigation was stated to be underway. It was in these

circumstances that Order dated 26.03.2019 for detention of the

Petitioner under COFEPOSA had been issued by competent

authority after following due process. Further, Order dated

21.05.2019 directing the Petitioner to appear before the

Commissioner of Police, Delhi was subsequently issued by the

competent authority in accordance with Section 7(l)(b) of

COFEPOSA. The said order was also forwarded by the issuing

authority to Respondent No. 3 for publishing in newspapers which

was done promptly after observing due formalities. The above two

orders were stated to be issued in accordance with law after

observing due diligence. It was strongly denied that the said Orders

were illegal or malafide.

c) That the investigation revealed that the Petitioner had committed

offence under Sections 132 and 135 of Customs Act 1962. He was

accordingly arrested under Section 104 of Customs Act 1962, served

Arrest Memo dated 18.12.2018 and subsequently produced before

Magistrate. As a measure of precaution, Respondent No. 3 had

shared the facts of mis-declaration in exports by the said Entities,

with the DGFT, the government agency issuing the export incentives

(MEIS), in order to safeguard government revenue, for suitable

action at their end. Thus, effective preventive steps were taken by the

DRI on the date of arrest itself.

d) Further, the Sponsoring Authority was only intimated about passing

of DGFT Order dated 21.12.2018, placing the exporter entities on

Denied Entry List only on 16.04.2019.

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e) It is submitted that the petitioner's application before the Ld. CMM,

New Delhi for release of passport, is a matter of record and

respondent No.3 was informed about the existence of the said

application of Abhishek Gupta only in the evening of 28.03.2019

through Notes of Proceedings received from DRI's Counsel at around

5 PM on 28.03.2019. Thus, there was no question of attending Court

on 28.03.2019 to have the Detention Order executed. It is also

submitted that Respondent 3 had requested their Counsel to inform

the Ld. Trial Court that a detention Order under COFEPOSA had

been issued against the petitioner, with request to direct the petitioner

to surrender before the competent authority. Further, the Officer of

this Respondent was present on next date of hearing on 30.03.2019

but the petitioner was not present. The Counsel of Respondent No.3

in the Ld. CMM Court informed in writing that on 30.03:2019, reply

to the application could not be filed on that date as the Presiding

Officer was not in his chair on 30.03.2019 and that it is wrongly

recorded in the order sheet that DRI had sought more time to file

reply.

f) That the petitioner is misleading this Court that he withdrew his

application on 05.04.2019 and it is a matter of record that the

application before the Ld. CMM, New Delhi, to withdraw his

application for release of passport is dated 01.04.2019. Further, on

04.04.2019, Respondent No.3's Counsel in Ld. CMM Court informed

the Respondent No.3 that the said application for release of passport

had been dismissed as withdrawn on 04.04.2019 by the petitioner.

Since the Respondent No.3 was intimated by its Counsel on

04.04.2019 itself that the said application had been dismissed as

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withdrawn, the officers of Respondent No. 3 did not attend any

further proceedings in the matter of the petitioner's application before

the Ld. CMM for release of passport.

g) It is submitted that the Detention Order dated 26.03.2019 has been

duly issued in accordance with law, for preventive detention purpose

of the Petitioner as the Petitioner was found indulging into gross mis-

declaration of export goods in the live export consignments as well

as in past, to avail undue benefit under MEIS and thus defraud the

Exchequer to the tune of crores of rupees. Further, the investigation

under Customs Act in the matter was stated to be underway, and,

therefore, criminal prosecution under the said Act was yet to be

filed.

h) It is denied that mere placing of the exporter entities currently under

investigation in DEL by the DGFT obviates the possibility of the

Petitioner indulging in smuggling activities in the future. Moreover,

investigation revealed that the Petitioner was involved in such

fraudulent exports through firms in his name as well as in the name

of others. Further, Respondent No. 3 had shared the facts of mis-

declaration in exports by the said entities, with DGFT vide DRI letter

dated 18.12.2018, in order to safeguard government revenue, for

suitable action at their end. The fact that DGFT had issued order

placing the exporter firms in DEL list was communicated by DGFT

to DRI only on 16.04.2019. Thus, there was no question of

intentionally not placing such orders of DGFT before Respondent

No. 2 while sponsoring the COFEPOSA proposal.

i) The bail application dated 19.12.2018 of the Petitioner before the Id.

Trial Court is stated to have been opposed by the Sponsoring

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Authority. It is submitted that non-execution of the detention order is

not due to lack of intent by Respondents and in fact, the Petitioner

has been intentionally absconding to avoid the execution of the order.

Due efforts are stated to have been made to serve the detention order

to the Petitioner but could not be executed as the Petitioner (detenu)

was not found at his known addresses during visits by the officers of

Executing Authority and/or the Sponsoring Authority on 27.03.2019,

30.04.2019 & 11.05.2019. Moreover, officer of Sponsoring

Authority is stated to have been present during hearing of passport

release application on 30.03.2019 but the Petitioner was not present.

Subsequently, Sponsoring Authority was intimated about withdrawal

of passport release application on 04.04.2019 and hence, in these

circumstances, no officer from DRI was present on 05.04.2019

before the Ld. Trial Court.

j) That due efforts had been made by the Sponsoring Authority to get

the detention Order executed, but the same could not be done due to

intentional avoidance of the law by the Petitioner. Moreover, Order

dated 21.05.2019 under Section 7(l)(b) of Act was published in the

Official Gazette on 21.05.2019 itself and that on request of

Respondent No. 2 (the issuing authority), the same order was also

got published by Respondent No. 3 in local newspapers i.e. The

Hindustan Times dated 11.07.2019 in English and in Dainik Jagaran

dated 11.07.2019 in Hindi after observing due formalities.

k) It is submitted that prompt action had been taken in accordance with

law. However, the petitioner attempted to mislead the Court by

surreptitiously re-phrasing preferable actions as mandatory. For

Instance, as per para B.8 of the 'Handbook on Compilation of

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Instructions issued on COFEPOSA matters from July, 2001 to

February, 2007' referred to in Ground F of the petition under reply,

detention proposal should be sent as early as possible but preferably

within 15 days from gathering such evidence, as will be adequate to

detain the person..., whereas the same guideline has been twisted and

misquoted by the petitioner as any case within 15 days in sub-para

(a) of Ground H of the petition under reply, with the intent to create

an impression of delay when there was none. It is further submitted

that Section 11 of COFEPOSA relates to revocation of detention

orders by the State/Central Government and has been misconstrued

by the Petitioner in letter and spirit and in no manner applieds to the

instant case.

l) It was submitted that the ratio of the cited judgments does not apply

to the present case and there has been no delay in term of any legal

requirements by Sponsoring Authority. Further, sincere efforts have

been made by the Sponsoring Authority to have the detention order

executed; and that there has been no instance of non-placement/non

consideration of any vital document by Sponsoring Authority. The

said order could not be executed on account of the Petitioner

willfully absconding with full intent to avoid the law taking its

course.

11. In the short affidavit filed on behalf of respondents No. 1 & 2 in

response to the additional affidavit filed by the petitioner, it was

submitted that the powers vested in the Central Government under sub-

section 1 of section 7 under the COFEPOSA Act, 1974 have been

delegated to the Joint Secretary (COFEPOSA), i.e. the Detaining

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Authority. Further, the order dated 21.05.2019 is stated to be justified

and enforceable through the process of law.

It was reiterated that Joint Secretary to the Government of India,

Central Economic Intelligence Bureau, New Delhi who is specially

empowered under the COFEPOSA Act, 1974 after subjective

satisfaction, issued the Detention Order dated 26.03.2019 under Section

3(1) of the said Act and, hence, the detention order is legally sustainable,

proper and valid. It was denied that the competent authority usurped the

jurisdiction of the „appropriate government‟, i.e. the Central

Government. The action taken under Section 7(1)(b) vide order dated

21.05.2019 was stated to be in total sync with the powers vested to the

Joint Secretary (COFEPOSA), i.e. the Detaining Authority under Sub-

section 1 of Section 7 under the COFEPOSA Act, 1974 in terms of

delegation made in the Gazette Notification dated 16.08.2018. The case

law quoted by the Petitioner was stated to be not applicable in the

present case, as the facts and circumstances are entirely distinguishable.

12. Respondent No.4, in brief, in the counter-affidavit submitted that on

27.03.2019 the Office of answering respondent received a detention

order dated 26.03.2019 from the Directorate of Revenue Intelligence

whereby the petitioner was directed to be detained. The constituted

teams made extensive searches to arrest the petitioner but were of no

avail. No clue could be found of the petitioner and his father was

intimated of the warrant of arrest issued against the petitioner. It was

secretly revealed that the petitioner had absconded with his family and

wife to an unfamiliar place. The order dated 21

st

May 2019 issued vide

W.P.(CRL) 1911/2019 Page 18 of 50

F.N. PD12001/07/2019 COFEPOSA was pasted outside the residence of

the petitioner but he did not appear before the Commissioner of Police.

13. Rejoinder was further filed on behalf of the petitioner to common

counter-affidavit filed on behalf of respondents No. 1 & 2 as well as

counter-affidavit filed on behalf of respondent No.4.

DISCUSSION & CONCLUSIONS

14. To appreciate the contentions raised by the petitioner as well as the

respondents, the following issues need to be considered.

(i) Whether non placement of the fact before the Detaining Authority

that the subject four firms which are alleged to be

operated/controlled by the petitioner were placed in Denied Entry

List (Blacklist) vide order dated 21.12.2018 and 24.12.2018, prior to

passing of the detention order, vitiates the subjective satisfaction of

the Detaining Authority in issuing the detention order;

(ii) Whether the detaining authority or the executing agency or

sponsoring authority were diligent to serve the detention order on the

petitioner at the earliest despite being available for service since the

detention order was passed on 26.03.2019 and the petitioner had

appeared before the Ld. CMM on 28.03.2019 and 05.04.2019 after

the passing of the impugned detention order;

(iii) Whether the publication of the impugned order on 21.05.2019 under

section 7(1)(b) of the COFEPOSA Act was mechanical, alleging that

petitioner is absconding or concealing himself to avoid execution of

the impugned detention order and if the detention order is liable to be

set aside for unexplained delay in service of detention order.

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15. At the outset, the observations of the Supreme Court in Subhash

Popatlal Dave v. Union of India (2012) 7 SCC 533 in para 41 to 48 are

apt to be noticed with reference to the right to challenge an order of

detention at pre-execution stage.

“41. The decision in Alka Subhash Gadia case [1992 Supp (1)

SCC 496 : 1992 SCC (Cri) 301] , appears to suggest several

things at the same time. The three-Judge Bench, while

considering the challenge to the detention order passed

against the detenu, at the pre-execution stage, and upholding

the contention that such challenge was maintainable, also

sought to limit the scope of the circumstances in which such

challenge could be made. However, before arriving at their

final conclusion on the said point, the learned Judges also

considered the provisions of Articles 19 to 22 relating to the

fundamental freedoms conferred on citizens and the

proposition that the fundamental rights under Part III of the

Constitution have to be read as a part of an integrated scheme.

Their Lordships emphasised that they were not mutually

exclusive, but operated, and were, subject to each other. Their

Lordships held that it was not enough that the detention order

must satisfy the tests of all the said rights so far as they were

applicable to individual cases.

42. Their Lordships in Alka Subhash Gadia case [1992 Supp

(1) SCC 496 : 1992 SCC (Cri) 301] also emphasised in

particular that it was well settled that Article 22(5) is not the

sole repository of the detenu's rights. His rights are also

W.P.(CRL) 1911/2019 Page 20 of 50

governed by the other fundamental rights, particularly those

enshrined in Articles 14, 19 and 21 of the Constitution and the

nature of constitutional rights thereunder. Their Lordships

were of the view that read together the articles indicate that

the Constitution permits both punitive and preventive

detention, provided it is according to procedure established by

law made for the purpose and if both the law and the

procedure laid down by it are valid. Going on to consider the

various decisions rendered by this Court in this regard, Their

Lordships in para 5 observed as follows: (Alka Subhash Gadia

case [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] , SCC p.

503)

“5. 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 be, is

entitled to the detention order and the grounds on which the

detention order is made before the detenu submits to the

order.”

43. It is in the aforesaid background that Their Lordships

in Alka Subhash Gadia case [1992 Supp (1) SCC 496 : 1992

SCC (Cri) 301] while examining the various decisions

rendered on the subject, summed up the discussion in para 30

W.P.(CRL) 1911/2019 Page 21 of 50

of the judgment, wherein Their Lordships again reiterated

that: (SCC p. 520)

“30. … Neither the Constitution including the provisions of

Article 22 thereof nor the Act in question places any

restriction on the powers of the High Court and this Court to

review judicially the order of detention.”

Their Lordships observed that: (SCC p. 520, para 30)

“30. … the powers under Articles 226 and 32 are wide, and

are untrammelled by any external restrictions, and can reach

any executive action resulting in civil or criminal

consequences.”

However, the said observations were, thereafter, somewhat

whittled down by the subsequent observation that the courts

have over the years evolved certain self-restraints in

exercising these powers. Such self-imposed restraints were not

confined to the review of the orders passed under detention

law only, but they extended to orders passed and decisions

made under all laws. It was also observed that in pursuance of

such self-evolved judicial policy and in conformity with the

self-imposed internal restrictions that the courts insist that the

aggrieved person should first allow the due operation and

implementation of the law concerned and exhaust the remedies

provided by it before approaching the High Court and this

Court to invoke their discretionary, extraordinary and

equitable jurisdiction under Articles 226 and 32, respectively

and that such jurisdiction by its very nature has to be used

W.P.(CRL) 1911/2019 Page 22 of 50

sparingly and in circumstances where no other efficacious

remedy is available. However, having held as above, Their

Lordships also observed that all the self-imposed restrictions

in respect of detention orders would have to be respected as it

would otherwise frustrate the very purpose for which such

detention orders are passed for a limited purpose.

44. Consequently, in spite of upholding the jurisdiction of the

Court to interfere with such orders even at the pre-execution

stage, Their Lordships went on to observe as follows: (Alka

Subhash Gadia case [1992 Supp (1) SCC 496 : 1992 SCC

(Cri) 301] , SCC p. 521, para 30)

“30. … The courts have the necessary power and they have

used it in 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

W.P.(CRL) 1911/2019 Page 23 of 50

proposed detenu, but prevents their abuse and the perversion

of the law in question.”

45. Nowhere in Alka Subhash Gadia case [1992 Supp (1) SCC

496 : 1992 SCC (Cri) 301] has it been indicated that challenge

to the detention order at the pre-execution stage, can be made

mainly on the aforesaid exceptions referred to hereinabove. By

prefacing the five exceptions in which the courts could

interfere with an order of detention at the pre-execution stage,

with the expression “viz.” Their Lordships possibly never

intended that the said five examples were to be exclusive

(sic exhaustive). In common usage or parlance the expression

“viz.” means “in other words”. There is no aura of finality

attached to the said expression. The use of the expression

suggests that the five examples were intended to be exemplars

and not exclusive (sic exhaustive). On the other hand, the

Hon'ble Judges clearly indicated that the refusal to interfere

on any other ground did not amount to the abandonment of the

said power.

46. It is only in Sayed Taher Bawamiya case [(2000) 8 SCC

630 : 2001 SCC (Cri) 56] that another three-Judge Bench

considered the ratio of the decision of this Court in Alka

Subhash Gadia case [1992 Supp (1) SCC 496 : 1992 SCC

(Cri) 301] and observed that the courts have the power in

appropriate cases to interfere with the detention orders at the

pre-execution stage, but that the scope of interference was

very limited. It was in such context that the Hon'ble Judges

W.P.(CRL) 1911/2019 Page 24 of 50

observed that while the detention orders could be challenged

at the pre-execution stage, that such challenge could be made

only after being prima facie satisfied that the five exceptions

indicated in Alka Subhash Gadia case [1992 Supp (1) SCC

496 : 1992 SCC (Cri) 301] had been fulfilled. Their Lordships

in para 7 of the judgment in Sayed Taher case [(2000) 8 SCC

630 : 2001 SCC (Cri) 56] held that the case before them did

not fall under any of the five exceptions to enable the Court to

interfere. Their Lordships also rejected the contention that the

exceptions were not exhaustive and that the decision in Alka

Subhash Gadia case [1992 Supp (1) SCC 496 : 1992 SCC

(Cri) 301] indicated that it is only in the five types of instances

indicated in the judgment in Alka Subhash Gadia case [1992

Supp (1) SCC 496 : 1992 SCC (Cri) 301] that the courts may

exercise their discretionary jurisdiction under Articles 226 and

32 of the Constitution at the pre-execution stage.

47. With due respect to the Hon'ble Judges in Sayed Taher

Bawamiya case [(2000) 8 SCC 630 : 2001 SCC (Cri) 56] , we

have not been able to read into the judgment in Alka Subhash

Gadia case [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301]

any intention on the part of the Hon'ble Judges, who rendered

the decision in that case, that challenge at the pre-execution

stage would have to be confined to the five exceptions only and

not in any other case. Both the State and the Hon'ble Judges

relied on the decision in Sayed Taher Bawamiya case [(2000)

8 SCC 630 : 2001 SCC (Cri) 56] . As submitted by Mr

W.P.(CRL) 1911/2019 Page 25 of 50

Rohatgi, to accept that it was the intention of the Hon'ble

Judges in Alka Subhash Gadia case [1992 Supp (1) SCC 496 :

1992 SCC (Cri) 301] to confine the challenge to a detention at

the pre-execution stage, only on the five exceptions mentioned

therein, would amount to imposing restrictions on the powers

of judicial review vested in the High Courts and the Supreme

Court under Articles 226 and 32 of the Constitution. The

exercise of powers vested in the superior courts in judicially

reviewing executive decisions and orders cannot be subjected

to any restrictions by an order of the court of law. Such

powers are untrammelled and vested in the superior courts to

protect all citizens and even non-citizens, under the

Constitution, and may require further examination.

48. In such circumstances, while rejecting Mr Rohatgi's

contention regarding the right of a detenu to be provided with

the grounds of detention prior to his arrest, we are of the view

that the right of a detenu to challenge his detention at the pre-

execution stage on grounds other than those set out in para 30

of the judgment in Alka Subhash Gadia case [1992 Supp (1)

SCC 496 : 1992 SCC (Cri) 301] , requires further

examination. There are various pronouncements of the law by

this Court, wherein detention orders have been struck down,

even without the apprehension of the detenu, on the ground of

absence of any live link between the incident for which the

detenu was being sought to be detained and the detention

order and also on grounds of staleness. These are issues which

W.P.(CRL) 1911/2019 Page 26 of 50

were not before the Hon'ble Judges deciding Alka Subhash

Gadia case [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] .

16. The parameters on which the detention order can be challenged at the pre-

execution stage was further clarified in Subhash Popatlal Dave v. Union

of India & Another (2014) 1 SCC 280 and observations in para 15 & 49

are relevant.

“15. From the ratio of the aforesaid authoritative

pronouncements of the Supreme Court which also include a

Constitution Bench judgment [Sunil Fulchand Shah v. Union

of India, (2000) 3 SCC 409 : 2000 SCC (Cri) 659] having a

bearing and impact on the instant matters, the question which

emerges is that if the order of detention is allowed to be

challenged on any ground by not keeping it confined to the five

conditions enumerated in Alka Subhash Gadia [Govt. of

India v. Alka Subhash Gadia, 1992 Supp (1) SCC 496 : 1992

SCC (Cri) 301] except the fact that there had been sufficient

materials and justification for passing the order of detention

which could not be gone into for want of its execution, then

whether it is open for the proposed detenu to contend that

there is no live link between the order of detention and the

purpose for which it had been issued at the relevant time. In

the light of ratio of the decisions referred to hereinabove and

the law on preventive detention, it is essentially the sufficiency

of materials relied upon for passing the order of detention

which ought to weigh as to whether the order of detention was

fit to be quashed and set aside and merely the length of time

W.P.(CRL) 1911/2019 Page 27 of 50

and liberty to challenge the same at the pre-execution stage

which obviated the execution of the order of preventive

detention cannot be the sole consideration for holding that the

same is fit to be quashed. When a proposed detenu is allowed

to challenge the order of detention at the pre-execution stage

on any ground whatsoever contending that the order of

detention was legally unsustainable, the Court will have an

occasion to examine all grounds except sufficiency of the

material relied upon by the detaining authorities in passing the

order of detention which legally is the most important aspect

of the matter but cannot be gone into by the Court as it has

been allowed to be challenged at the pre-execution stage when

the grounds of detention have not even been served on him.

…………………………………………………………………

49. The question whether the five circumstances specified

in Alka Subhash Gadia case [Govt. of India v. Alka Subhash

Gadia, 1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] are

exhaustive of the grounds on which a pre-execution scrutiny of

the legality of preventive detention order can be undertaken

was considered by us earlier in the instant case. We held that

the grounds are not exhaustive. [Subhash Popatlal

Dave v. Union of India, (2012) 7 SCC 533 : (2012) 3 SCC

(Cri) 415] But that does not persuade me to hold that such a

scrutiny ought to be undertaken with reference to the cases of

those who evaded the process of law.”

W.P.(CRL) 1911/2019 Page 28 of 50

17. In the light of aforesaid legal position, we are of the considered opinion

that if a person against whom the preventive detention order is passed

comes to the court at pre-execution stage and satisfies the court that such

order is clearly illegal, there is no reason why the court should stay its

hands and compel him to go to jail even though he is bound to be

released subsequently because of the illegality of such order. Reliance in

this regard may also be placed upon Deepak Bajaj v. State of

Maharashtra & Another (2008) 16 SCC 14.

18. Coming to the present petition, as per the case of respondent No. 3, the

petitioner was engaged in smuggling activities referred to in section 3(1)

of COFEPOSA Act and resorted to mis-declaration of material

particulars to avail undue benefits in exporting goods under MEIS

Scheme. Also, the petitioner had been involved in smuggling of goods,

abetting the smuggling of goods and engaging in transporting or

concealing or keeping smuggled goods. Further, the Officers of

Respondent No. 3 arrested the petitioner on 18.12.2018 for alleged

commission of offences punishable under section 132 and 135 of the

Customs Act 1962, in respect of the firms M/s C.L. International, of

which the petitioner is a partner and M/s Purav International of which

the petitioner is the proprietor. The petitioner is also alleged to be

involved directly or indirectly in affairs of other two firms, namely, M/s

Yashee Impex and M/s Gauri Global Exports and Trading.

19. It is pertinent to notice that the petitioner was released on bail vide order

dated 24.12.2018 and the observations made by ld. ACMM while

releasing the petitioner on bail may be noticed:-

“………………..

W.P.(CRL) 1911/2019 Page 29 of 50

It is pertinent to note that u/s 104 (4) of the Customs act

1962 only two categories of offences have been made

cognizable i.e. offence relating to prohibited goods and

offences relating to evasion of duty exceeding fifty lakh rupees.

Sub section 5 of Section 104 of the Act declares all the other

offences under the Customs Act as non-cognizable. In other

words, mis-declaration regarding the import or exports of any

goods is not a cognizable offence. However, such mis-

declaration is a non bailable offence under clause C of sub

section 6 of section 104 of Act. Thus, the offence in relation to

mis-declaration of value of the imported or exported goods is

a non-cognizable and non-bailable offence. No fruitful

purpose would be served by keeping accused in custody any

longer.

In the given facts and circumstances of the case,

accused Abhishek Gupta is granted bail on his furnishing a

personal bond in the sum of Rs.1,00,000/- with one surety of

the like amount subject to conditions that accused shall submit

his passport in the court and shall not leave the country

without prior permission to the court. The accused persons

shall not temper with the investigation or the evidence and

shall join the investigation as and when required.

………………..”

20. Further, the crucial fact to be noticed is that on 18.12.2018 itself the

office of respondent No. 3 vide letter DRI.F No. DRI/11Q-C1/50D/EN-

23/2018, informed the DGFT that during examination of live exports

W.P.(CRL) 1911/2019 Page 30 of 50

consignments of some of the exporters, prima facie, mis-declaration in

description and value of goods had been found and requested in interest

of government revenue that post export benefits to the petitioner‟s

company be disallowed till finalization by DRI. Thereafter, the

petitioner was produced before Ld. CMM, Patiala House Courts on

19.12.2018 wherein he retracted the statements allegedly recorded

during investigation. Further, in view of communication dated

18.12.2018, the office of DGFT issued orders dated 21.12.2018 and

24.12.2018 thereby placing the Importer Exporter Code (IEC) of M/s

C.L. International, M/s Purav International, M/s Gauri Global Exports

and Trading and M/s Shivoy Enterprises (Earlier known as Yashee

Impex) under the Denied Entry List (DEL) earlier known as “Blacklist”.

Thereby, the said firms were not permitted to avail any export benefits

under MEIS under the Foreign Trade Policy.

Further, separate show-cause notices dated 22.04.2019 were

issued to M/s Purav International and M/s C.L. International, with copy

marked to petitioner Abhishek Gupta as to why the respective

company‟s names should not be kept under Denied Entry List (DEL) and

IEC should not be suspended with an opportunity to reply by

08.05.2019. However, it is claimed by the petitioner that no show-cause

notice had been served with respect to other two firms on the petitioner.

It is pertinent to note that as per reply to para 3.6-3.7 in counter-

affidavit it is submitted that as informed by the Sponsoring Authority, it

was only intimated about passing of order dated 21.12.2018 placing the

exporter entities on Denied Entry List (DEL) only on 16.04.2019 and no

such order is available on respondent No.3‟s record. It may be observed

W.P.(CRL) 1911/2019 Page 31 of 50

that no efforts appear to have been made by respondent No.3 to

ascertain the outcome of request made to DGFT and only a bald

assertion is made that intimation regarding order dated 21.12.2018 was

received on 16.04.2019.

The said vital facts placing the firms under Denied Entry List

(DEL) and not placing the same before the Detaining Authority have a

significant and direct bearing on the subjective satisfaction of the

Detaining Authority regarding necessity to detain as the same foreclosed

any future possibility of petitioner in indulging in any prejudicial

activity. As such, there appears to be lack of any genuine and real

necessity to again apprehend and detain the petitioner for alleged

preventive purpose and the detention order is liable to be quashed on this

ground alone as the subjective satisfaction of the Detaining Authority in

issuing detention order stands vitiated.

In view of above, Issue No.1 is decided in favour of the petitioner.

21. It may further be noticed that the petitioner, after his initial production

for purpose of remand on 19.12.2018 was released on bail on

24.12.2018. The petitioner was thereafter present before the learned

CMM on 28.03.2019 as recorded in order dated 28.03.2019 with

reference to application for release of passport and permission to go

abroad as per application filed by him. Shri Satish Aggarwal, learned

Special PP was present on the date of hearing along with Ms. Pooja

Bhaskar, counsel for DRI and sought time to file reply. However, no

efforts were made by the respondents to serve the detention order dated

26.03.2019, despite the availability of the petitioner. Thereafter, the

application for release of passport was further fixed for reply and

W.P.(CRL) 1911/2019 Page 32 of 50

arguments, on 30.03.2019 before the learned ACMM and on the

aforesaid date, the matter was further put up for reply and arguments for

05.04.2019 at request of learned Special PP for DRI in presence of

learned counsel for the applicant/petitioner. Thereafter, on 05.04.2019,

the presence of the petitioner is recorded before the learned CMM and

DRI was represented by Ms. Pooja Bhaskar, Advocate. A request was

made by the petitioner/applicant for withdrawing the application seeking

release of passport and permission to go abroad and the same was

allowed by the learned CMM on the same date, after recording the

statement of counsel for the applicant/petitioner at the bottom margin of

the application.

22. It may be observed that the stand taken by the respondents that

respondent No.3 was informed about existence of application of

Abhishek Gupta only in the evening of 28.03.2019 through notes of

proceedings received from DRI‟s counsel at around 5:00PM and as such

there was no question of attending the court on 28.03.2019 to have the

detention order executed, appears to be fallacious. There appears to be

failure of respondent to act with promptitude as an advance copy of

application is stated to have been served to the counsel for DRI on

27.03.2019.

Further, again the stand of respondent is that the proceedings

could not be attended on 05.04.2019 by its officers since the respondent

No.3 was intimated by its counsel on 04.04.2019 that application has

been dismissed as withdrawn and the application was dated 01.04.2019.

The fact remains that presence of the petitioner on 05.04.2019 before Ld.

CMM has not been denied and assumption by respondents that petitioner

W.P.(CRL) 1911/2019 Page 33 of 50

would not appear, is an afterthought. In the facts and circumstances, the

respondents cannot be absolved of their conduct of non taking of steps

for service of detention order on 28.03.2019 and 05.04.2019.

No justified reasons have been disclosed by the respondent for

non-service of detention order on the petitioner on 28.03.2019 and

05.04.2019 despite availability of the petitioner. In the aforesaid

backdrop, despite opportunities to serve the detention order, neither the

Detaining Authority nor the Executing Agency as well as Sponsoring

Authority was diligent or responsible to serve the detention order on the

petitioner. There is absolutely no reasonable justification for non-service

of detention order dated 26.03.2019 on the petitioner, from 28.03.2019

to 05.04.2019, despite the petitioner being available to the authorities.

No serious attempt appears to have been made by the respondents to

serve the detention order soon after the same was made and the same is

in complete defiance of constitutional mandate. The purpose of a

detention order is preventive in nature and not punitive. As such, strict

compliance of the procedural safeguards is fatal to the case of

respondents as there was no diligent effort to serve the detention order.

23. Observations in Mohd. Farook v. Joint Secretary to Govt. of India,

(2000) 2 SCC 360 are also apt to be noticed in this regard:-

“27. In A. Mohd. Farook (supra), the detention order was

passed on 25.02.1999, however, it was executed by the

Detaining Authority on 05.04.1999. Although the detenue was

present in the Court of Addl. Chief Metropolitan Magistrate on

25.02.1999 and 25.03.1999, but neither the Detaining

Authority, nor the Executing Authority served the detention

W.P.(CRL) 1911/2019 Page 34 of 50

order on the detenue, at the earliest. In these circumstances,

the Supreme Court held as follows:

"9. There is catena of judgments on this topic rendered by this

Court wherein this Court emphasised that the detaining

authority must explain satisfactorily the inordinate delay in

executing the detention order otherwise the subjective

satisfaction gets vitiated. Since the law is well settled in this

behalf we do not propose to refer to other judgments which

were brought to our notice.

10. As indicated earlier the only explanation given by the

detaining authority as regards the delay of 40 days in

executing the detention order is that despite their efforts the

petitioner could not be located at his residence or in his office

and therefore the order could not be executed immediately. No

report from the executing agency was filed before us to

indicate as to what steps were taken by the executing agency to

serve the detention order. In the absence of any satisfactory

explanation explaining the delay of 40 days, we are of the

opinion that the detention order must stand vitiated by reason

of non execution thereof within a reasonable time. From

Annexure P.2 (the proceeding sheet of the M.M. Court

Madras) it appears that the petitioner (accused) was present in

the court of Additional Chief Metropolitan Magistrate on

25.2.1999 as well on 25.3.1999. Despite such opportunities

neither the detaining authority nor the executing agency as

well as sponsoring authority were diligent to serve the

W.P.(CRL) 1911/2019 Page 35 of 50

detention order on the petitioner at the earliest. In this view of

the matter, we are of the opinion that the subjective

satisfaction of the detaining authority in issuing detention

order dated February 25, 1999 is vitiated. It is in these

circumstances it is not possible for us to sustain the detention

order."

24. It is contended by the respondents that order dated 26.03.2019 for

detention of the petitioner under COFEPOSA had been issued by the

competent authority after following due process. Further, since the

petitioner was intentionally absconding, order dated 21.05.2019 directing

the petitioner to appear before the Commissioner of Police, Delhi was

subsequently published by the competent authority in accordance with

Section 7(1)(b) of COFEPOSA. The said order is stated to have been

forwarded by the issuing authority to Respondent No.3 for publishing in

newspaper, which was done on 11.07.2019 after observing due

formalities and the orders dated 26.03.2019 and 21.05.2019 are stated to

be issued in accordance with law after observing due diligence.

25. To appreciate the aforesaid contention, Section 7 of the COFEPOSA Act

may be beneficially quoted:-

“7. Powers in relation to absconding persons.-

(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

W.P.(CRL) 1911/2019 Page 36 of 50

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 with

imprisonment for a term which may extend to

one year or with fine or with both.

(2) Notwithstanding anything contained in the Code of

Criminal Procedure, 1973 (2 of 1974), every offence under

clause (b) of sub-section (1) shall be cognizable.”

26. It needs to be noticed, in the present case, the petitioner did not violate

any of the court orders including the order on bail. Further, he duly

W.P.(CRL) 1911/2019 Page 37 of 50

responded to the show-cause notices. No effort was made to serve the

detention order on the petitioner and detain him on the dates fixed before

the learned ACMM. If the petitioner was refusing to cooperate or was

unavailable for the purpose of service of detention order, an application

ought to have been filed before the learned ACMM for cancellation of

his bail or for issuance of notice to sureties but no such application

appears to have been made. Nothing has come on record, if any steps

were taken to ascertain the whereabouts of the petitioner from the

sureties.

The submission made on behalf of the respondents that petitioner

was absconding, does not appear to be probable in the facts and

circumstances of the case, as even a show-cause notice dated 21.04.2019

was issued warranting him to show-cause as to why the names of M/s

C.L. International and M/s Purav International should not continue to

place in Denied Entry List (DEL) and their IEC be not suspended. The

receipt of the same by the petitioner reflects his availability and the same

has not been suitably explained by the respondents.

Even order dated 21.05.2019 was published in the Hindustan

Times on 11.07.2019, after a long delay and no urgency in any manner

was exhibited by the respondents for serving the impugned order No.

PD-12001/07/2019-COFEPOSA dated 26.03.2019.

Thus despite the availability of the petitioner and without taking

requisite steps for effecting service, the proceedings were further

initiated under Section 7(1)(b) of the COFEPOSA Act, wrongly

assuming that the petitioner had been evading service.

W.P.(CRL) 1911/2019 Page 38 of 50

It may be difficult to accept the explanation of the respondents

that the petitioner was eluding the dragnet of the detention order as the

fact cannot be lost sight that no serious attempt was made to execute the

impugned detention order to take the petitioner into custody despite his

participation in the proceedings before the learned ACMM. The

Executing Authority is required to satisfactorily explain this inordinate

delay in executing the detention order, failing which the subjective

satisfaction get vitiated.

Reliance may be placed upon Boris Sobotic Mikolic v. Union of

India & Ors. 2018 SCC OnLine Del 9363.

On the face of record, there has been a casual approach by the

respondents in issuing as well as executing the detention order, by

overlooking the instructions, settled procedural safeguards and cardinal

principle that such an order is to be passed in rare circumstances. Such

action requires utmost promptitude and strict compliance with the

procedural safeguards to sustain the validity of the detention order,

which is lacking in the instant case.

Thus, when there is unsatisfactory and unexplained delay between

the order of detention and the date of securing the arrest of the detenu,

such a delay would throw considerable doubt on the genuineness of the

subjective satisfaction of the detaining authority leading to a legitimate

inference that the detaining authority was not really and genuinely

satisfied as regards the necessity for detaining the detenu with a view to

preventing him from acting in a prejudicial manner.

W.P.(CRL) 1911/2019 Page 39 of 50

27. Reference may also be made to the procedural safeguards circulated vide

F.No.702/MAD/S/33/2006-CUS.IX, Government of India, Ministry of

Finance, Department of Revenue, COFEPOSA Section on 21.02.2007 to

all Sponsoring Authorities and Chief Secretaries to be observed for the

purpose of execution of detention order and the relevant extract in para 1

to 7 of F.No.702/MAD/S/33/2006-CUS.IX dated 21.02.2007 of is apt to

be noticed, which appears to have been ignored in the present case:-

“Attention is invited to this Ministry's letter F.No.671/6/2001-

Cus.VIII dated 12

th

July, 2001 wherein detailed procedural

safeguards/requirements to be observed by all the Sponsoring

Authorities/Detaining Authorities while proposing/ finalizing

the detention proposal and in the execution of the detention

orders under the COFEPOSA Act, 1974, were circulated for

compliance by all the concerned.

2. These instructions interalia state the procedure to be

followed for execution of detention orders, particularly

emphasizing the need for prompt service of the same. The

authorities concerned were also informed that where there is

any undue and unexplained delay between the date of issue of

the detention order and that of its execution, such a delay is

normally adversely viewed since it goes against the very object

and purpose of issuing the detention order. These instructions

further envisage that there should be a close monitoring at a

senior level by the executing and sponsoring authorities and

these authorities must invariably keep documentary records of

W.P.(CRL) 1911/2019 Page 40 of 50

the efforts made by them for execution of the detention order

from time to time.

3. As regards action against absconders. These instructions

interalia envisage that action under Section 7(1)(b) of the

COFEPOSA Act should be taken immediately on expiry of one

month from the date of detention order in case it remained

unexecuted during that period. It has been further stated

therein that it would be preferable to wait one more month and

if the person is still absconding, action under Section 7(1)(a)

of the COFEPOSA Act should be initiated forthwith.

4. Despite these clear instructions, instances have come to the

notice of this Ministry where even though the detenu was

available at his own address, no real effort had been made to

locate the detenu and execute the detention order. The Hon'ble

Supreme Court has held in a no. of cases that if the authorities

did not make sincere and honest efforts and take any urgent or

effective steps the service of the detention order on the detenu,

the order of the detention is liable to be set aside.

5. It is generally noticed that the Sponsoring Authorities who

originally move the proposal, somehow develop a lax attitude

after a detention order based on their proposal has been

issued. They tend to harbour a feeling that they have no

further role in the matter and it is entirely for the Detaining

Authority and the Executive Authority to ensure that the

Detention Order is served. This wrong notion needs to be

dispelled forthwith. The Sponsoring Authority must keep in

W.P.(CRL) 1911/2019 Page 41 of 50

mind the fact that their role and object is not confined merely

to having a detention order issued but to have a person

detained otherwise the very object of issuing the detention

order gets defeated.

6. All the Sponsoring Authorities, Executive Authorities and

the Detaining Authorities are once again requested that they

must ensure that timely action is taken for execution of the

detention order after it has been issued. Simultaneously, they

should keep detailed records of the efforts made for execution

of the Detention order from time to time, as it would be

important to convince the Advisory Board / Hon'ble High

Courts, if need arises......"

(Emphasis Supplied)

7. These instructions may please be brought to the notice of all

concerned for strict compliance.

28. It may be appropriate to also refer to the conclusions arrived at in

Rajinder Arora v. Union of India (2006) 4 SCC 796, wherein the order

of detention was quashed at pre-execution stage on various grounds

including unexplained delay, non launching of prosecution under the

Customs Act and non placement/non consideration of a vital document.

Observations of the Supreme Court in para 19 to 26 are apt to be

noticed:-

“19. The said counter-affidavit has been affirmed in

November 2005. It is beyond anybody's comprehension as to

why despite a long passage of time, the respondents have not

been able to gather any material to lodge a complaint against

W.P.(CRL) 1911/2019 Page 42 of 50

the appellant. It is furthermore not in dispute that even the

DGFT Authorities have not issued any show-cause notice in

exercise of their power under the Foreign Trade

(Development and Regulation) Act, 1992.

20. Furthermore no explanation whatsoever has been offered

by the respondent as to why the order of detention has been

issued after such a long time. The said question has also not

been examined by the Authorities before issuing the order of

detention.

21. The question as regards delay in issuing the order of

detention has been held to be a valid ground for quashing an

order of detention by this Court in T.A. Abdul Rahman v. State

of Kerala [(1989) 4 SCC 741 : 1990 SCC (Cri) 76 : AIR 1990

SC 225] stating: (SCC pp. 748-49, paras 10-11)

“10. The conspectus of the above decisions can be

summarised thus: 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. No hard-and-fast rule can be

precisely formulated that would be applicable under all

circumstances and no exhaustive guidelines can be laid

down in that behalf. It follows that the test of proximity is

not a rigid or mechanical test by merely counting number

of months between the offending acts and the order of

W.P.(CRL) 1911/2019 Page 43 of 50

detention. However, when there is undue and long delay

between the prejudicial activities and the passing of

detention order, the court has to scrutinise whether the

detaining authority has satisfactorily examined such a

delay and afforded a tenable and reasonable explanation

as to why such a delay has occasioned, when called upon

to answer and further the court has to investigate

whether the causal connection has been broken in the

circumstances of each case.

11. Similarly when there is unsatisfactory and

unexplained delay between the date of order of detention

and the date of securing the arrest of the detenu, such a

delay would throw considerable doubt on the

genuineness of the subjective satisfaction of the detaining

authority leading to a legitimate inference that the

detaining authority was not really and genuinely satisfied

as regards the necessity for detaining the detenu with a

view to preventing him from acting in a prejudicial

manner.”

22. The delay caused in this case in issuing the order of

detention has not been explained. In fact, no reason in that

behalf whatsoever has been assigned at all.

24. A Division Bench of this Court in K.S. Nagamuthu v. State

of T.N. [(2006) 4 SCC 792 : (2005) 9 Scale 534] struck down

an order of detention on the ground that the relevant material

had been withheld from the detaining authority; which in that

W.P.(CRL) 1911/2019 Page 44 of 50

case was a letter of the detenu retracting from confession

made by him.

25. Having regard to the findings aforementioned, we are of

the opinion that Grounds (iii) and (iv) of the decision of this

Court in Alka Subhash Gadia [1992 Supp (1) SCC 496 : 1992

SCC (Cri) 301] are attracted in the instant case.

26. For the reasons aforementioned, the impugned order of

detention cannot be sustained, which is set aside accordingly.

The appeal is allowed.”

In the light of aforesaid discussion and findings on Issue No.2 &

3, the impugned detention order is also liable to be set aside.

29. A contention has also been raised on behalf of the petitioner that

provisions of Section 2 (a), 3 and 7 of the Act, in juxtaposition with each

other would leave no manner of doubt that the discretionary power to

issue and make a report relating to the abscondence of a person in

respect of whom the detention order has been made or about his

concealment in terms of Section 7 (1) (a) as well as directions vide an

order to be notified in the Official Gazette in terms of Section 7 (1)(b)

are powers to be exercised only by the „Appropriate Government‟. As

such none else, much less the Detaining Authority can ever substitute to

exercise such power and such power cannot even be delegated to any

other authority. It has been submitted by the learned counsel for the

petitioner that there is a completely flawed understanding of the

respondents that action under Section 7 could be taken by the Detaining

Authority, considering itself to be equivalent to the Central Government.

W.P.(CRL) 1911/2019 Page 45 of 50

Reliance has been further placed upon Ankit Ashok Jalan Vs.

Union of India & Ors., (2020) 16 SCC 127.

Relying upon the same, it has also been submitted that the

impugned detention order and order under Section 7 (1)(b) were issued

prior to the judgment in Ankit Ashok Jalan (supra) and even a writ

petition as well as counter affidavit and rejoinder were filed before the

said judgment. The proceedings, as such, are stated to be completely

vitiated in law, since the Detaining Authority assumed the role and

jurisdiction as well as to use the power that are vested only with

„appropriate Government‟ for the purpose of initiating proceedings under

Section 7 of the COFEPOSA Act.

30. On the other hand, it has been contended on behalf of the respondents

that powers vested in the Central Government under Sub-section 1 of

Section 7 under the COFEPOSA Act, 1974 have been delegated to the

Joint Secretary (COFEPOSA) i.e. the Detaining Authority. It is denied

that the Competent Authority usurped the jurisdiction of the Appropriate

Government i.e. Central Government. The action taken under Section 7

(1)(b) is stated to be in total sync with the powers vested with the Joint

Secretary (COFEPOSA) i.e. the Detaining Authority under Sub-section 1

of Section 7 under the COFEPOSA Act, 1974 in terms of delegation

made in the Gazette Notification dated 16.08.2018. The case law cited

by the petitioner is further stated to be not applicable in the facts and

circumstances of the present case and distinguishable.

W.P.(CRL) 1911/2019 Page 46 of 50

31. It may be appropriate to reproduce the Notification dated 16.08.2018

issued by the Ministry of Finance, Department of Revenue, which reads

as under:-

“MINISTRY OF FINANCE

(Department of Revenue)

(Central Economic Intelligence Bureau)

ORDER

New Delhi, the 16

th

August, 2018

S.O. 4045 (E). - In pursuance of provision of rule 3 of the Government of

India (Transaction of Business) Rules, 1961 and supersession of all previous order

on this subject the Competent Authority hereby directs that the powers vested in the

Central Government under the Conservation of Foreign Exchange and Prevention of

Smuggling Activities Act, 1974 (52 of 1974), shall be exercised by the officers in the

Ministry of Finance (Deparment of Revenue).

Sl

No.

Provisions of

the Act

Powers delegated Officers to whom designated

1 Sub-section 2

of Section 3

All powers Secretary or Director General,

Central Economic Intelligence

Bureau or Joint Secretary

(COFEPOSA) in the Department

of Revenue, Ministry of Finance.

2 Section 5 All powers

3 Sub-section 1

of Section 7

All powers

4 Clause (b) of

Section 8

All powers Deputy Secretary (COFEPOSA)

or Under Secretary (COFEPOSA)

in the Department of Revenue,

Ministry of Finance.

5 Clause (f) of

Section 8

Cases where the

Advisory Board had

reported that there is

on sufficient cause for

detention

Joint Secretary (COFEPOSA) or

Deputy Secretary (COFEPOSA)

or Under Secretary (COFEPOSA)

in the Department of Revenue,

Ministry of Finance.

W.P.(CRL) 1911/2019 Page 47 of 50

6 Section 11 Power to consider and

dispose of

representations from

and on behalf of

COFEPOSA detenues.

Secretary or Director General,

Central Economic Intelligence

Bureau in the Department of

Revenue, Ministry of Finance.

7 Section 12 All powers

2. This notification shall come into force with effect from 28.06.2016.

[F.No.671/09/2016-Cus-VIII]

L. SATYA SRINIVAS, Jt. Secy.”

32. It may be noticed that the twin questions which arose for consideration

as referred in paras 11.1 and 11.2 in Ankit Ashok Jalan (supra) were as

under:-

“First, on the issue whether a representation can

independently be made to and must be considered by the

detaining authority, who is a specially empowered officer of

the Government concerned.

Secondly, whether, in certain circumstances, the detaining

authority ought to defer consideration of such representation

till the report is received from the Advisory Board.”

33. With reference to the first issue, whether a representation can

independently be made to and must be considered by the Detaining

Authority who is specially empowered Officer of the Government

concerned, it was observed that the apparent conflict in State of

Maharashtra Vs. Sushila Mafatlal Shah, (1988) 4 SCC 490 and Amir

Shad Khan Vs. L. Hmingliana, (1991) 4 SCC 39 came up for

consideration before a Constitution Bench of the Supreme Court in

W.P.(CRL) 1911/2019 Page 48 of 50

Kamleshkumar Ishwardas Patel Vs. Union of India, (1995) 4 SCC 51

and the Supreme Court did not accept the law laid down in Sushila

Mafatlal Shah (supra). It was accordingly observed in para 13 in Ankit

Ashok Jalan (supra) as follows:-

“13. With the judgment of the Constitution Bench of this Court

in Kamleshkumar, the law on the first issue is well settled that

where the detention order is made inter alia under Section 3 of

the COFEPOSA Act by an officer specially empowered for that

purpose either by the Central Government or the State

Government, the person detained has a right to make a

representation to the said officer; and the said officer is

obliged to consider the said representation; and the failure on

his part to do so would result in denial of the right conferred

on the person detained to make a representation. Further, such

right of the detenue has been taken to be in addition to the

right to make the representation to the State Government and

the Central Government. It must be stated in Para 12 of the

grounds of detention in the instant case, as quoted

hereinabove, is in tune with the law so declared by this

Court.”

Thus, it may be seen that the ratio laid down in Ankit Ashok

Jalan (supra) primarily relates on the issue whether a representation can

independently be made to and must be considered by the detaining

authority, who is a specially empowered officer of the Government

concerned. However, there does not appear to be any mandate that the

appropriate Government has no power to delegate the same to the Joint

W.P.(CRL) 1911/2019 Page 49 of 50

Secretary (COFEPOSA) i.e. the Detaining Authority. The powers vested

in the Central Government under Sub-section 1 of Section 7 under the

COFEPOSA Act, 1974 appear to have been duly delegated to the Joint

Secretary (COFEPOSA) i.e the Detaining Authority as per notification

dated 16.08.2018 and there does not appear to be any irregularity in this

regard.

34. In view of above, we are unable to be persuaded that the Detaining

Authority has wrongly assumed the role and jurisdiction as well as use

the powers vested with the Appropriate Government for the purpose of

proceedings under Section 7 of the COFEPOSA Act, 1974.

35. In the facts and circumstances, we are of the considered view that the

purpose of detention order is a preventive measure and if the detenu is

not served or detained at the earliest possible, keeping in view the spirit

of Article 22(5) of the Constitution of India, the purpose is defeated. A

sense of urgency needs to be exhibited by the respondents, if the

preventive detention order is to be justified. The entire exercise for

service of detention order appears to have been undertaken in a casual

and cavalier manner, which, in our considered view is fatal to the case of

the respondents. The non placement of the vital fact that the firms had

been placed in Denied Entry List (DEL) before the Detaining Authority

prior to passing of detention order also vitiates the subjective satisfaction

of the Detaining Authority.

36. In view of aforesaid discussion, we allow the present Writ Petition and

quash the detention order No.PD-12001/07/2019-COFEPOSA dated

26.03.2019 issued under Section 3(1) of the Conservation of Foreign

W.P.(CRL) 1911/2019 Page 50 of 50

Exchange and Prevention of Smuggling Activities Act, 1974

(COFEPOSA Act).

ANOOP KUMAR MENDIRATTA

(JUDGE)

SIDDHARTH MRIDUL

(JUDGE)

May 20, 2022

SD