The present petition has been preferred to quash and set aside the order of detention dated 18-10-2011 passed by the respondent No.3 against husband of the petitioner, who has been detained under Sec.3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974(hereinafter referred to as `COFEPOSA Act' for short).
Facts in short are that husband of the petitioner (hereinafter referred to as 'the detenu' for short) is the Director of M/s Deeplalit Enterprises Pvt. Ltd. which is engaged in import and sale of electronic goods and having its office at Ahmedabad. M/s Rodex International Gandhidham, sought clearance of goods imported by the company of detenue at Mundra Port by filing Bill of Entry dated 2-2-2011. A search was then carried out by the Officers of Directorate of Revenue Intelligence('DRI' for short), Gandhidham, and accordingly, search was carried out at the residence of detenue based on the statement of partner of said firm, Mr.Dilip Dhakkan and certain documents and four mobile phones were seized. The detenue was then arrested on 3-2-2011 under Sec.104 of the Customs Act, 1962 for the alleged contravention of Sec.135 of Customs Act. He was released on bail vide order dated 7-3-2011 passed in Cri.Misc.Appln.No.672 of 2011 by the learned Addl. Sessions Judge, Ahmedabad City. Application for cancellation of bail preferred by the Department was rejected vide order dated 4-4-2011 passed in Cri.Misc.Appln.No.3701 of 2011 by this Court (Coram: Z.K.Saiyed,J.). Thereafter, a notice was issued by the Commissioner of Customs, Kandla, on 7-7-2011 to show cause as to why the goods imported should not be confiscated and penalty under Sec.114(AA) of Customs Act should not be imposed on the detenue on the ground of he being defecto importer of consignment imported by M/s Rodex International. However, order dated 18-10-2011 was passed by the respondent No.3 whereby the detenue was detained. Hence, the present petition.
Heard learned Senior Counsel, Mr.S.I.Nanavati for Ms.Anuja S.Nanavati for the petitioner, learned Senior Counsel, Mr.R.J.Oza with learned counsel, Mr.Hriday Buch for the respondent Nos.1 to 3 and learned AGP, Ms.Krina Calla for the respondent No.4-State. Also perused the record pertaining to the case.
It is contended by learned Senior Counsel, Mr.S.I.Nanavati that impugned order of detention is illegal and contrary to the law and facts. It is also submitted that copies of grounds of detention have not been supplied to the detenue in Gujarati but have been served upon in English which is a language not known to the detenue. It is also submitted that as per the rules, detenue was not allowed to engage advocate and the detenue was only present before the detaining authority and hence, detenue could not make an effective representation violating fundamental rights enshrined under Article 22(5) of the Constitution of India. It is also contended that though the Customs Authorities have relied upon panchnama dated 2-2-2011 drawn at the office of M/s Rodex International, Gandhidham, and email and other documents recovered, copy of these documents have not been supplied to the detenue. It is further contended that though the goods were seized on 2-2-2011 and panchnama drawn on the said date, detention order was passed on 18-10-2011 and there is an inordinate delay of 9 months and 2 days in passing the detention order and no satisfactory explanation has been assigned by the detaining authority in the said delay and hence, the impugned detention order itself stands vitiated and it is requested that the impugned order of detention be quashed and set aside. He has relied on the following reported decisions:
i) 2006(205) E.L.T. 3 (S.C.) in the case of Rajinder Arora Vs.Union of India;
ii) 1990(48) E.L.T. 171 (S.C.) in the case of Kubic Dariusz Vs. Union of India;
iii) 2009(248) E.L.T. 7(S.C.) in the case of Gimik Piotr Vs.Union of India; and
iv) 2006(0) GLHEL-SC 37955 in the case of Adishwar Jain Vs.Union of India.
Learned Senior Counsel, Mr.R.J.Oja, for the Union of India, relying on a decision of the Hon'ble Apex Court in the case of Additional Secretary to the Govt. of India & Ors. Vs. Smt. Alka Subash Gadia and another reported in 1992 Supp.(1) SCC page 498 has submitted that discretionary jurisdiction of the High Court under Article 226 of the Constitution of India cannot be resorted to as an alternative remedy for relief as it can be obtained by suit or other mode prescribed by the Statute which, in this case, is the Central Advisory Board. According to him, the Central Advisory Board, hearing the detenue and his advocate, found sufficient ground to detain the detenue. It is further submitted that panchnama dated 2-2-2011 drawn at M/s Rodex International, Gandhidham and documents recovered therefrom were not relied on by the detaining authority in the grounds of detention. As regards the delay in passing the detention order is concerned, it is submitted that there is no inordinate delay as the detention order was passed after the prejudicial act which is the result of detailed investigation and consideration of the facts of the case. It is further submitted as regards non-supply of documents in the language known to the detenue that detenue has acknowledged that he had been explained each and every page of grounds of detention order in Gujarati and he did not raise objection within the statutory period regarding non-communication of the grounds in Gujarati. He has relied on the following judgments:
i)Ashok Narain Vs. Union of India reported in (1982)2 SCC page 437;
ii)Smt.Rekhaben Virendra Kapadia Vs. State of Gujarat reported in (1979)2 SCC page 566;
iii)M.Ahamed Kutty Vs. Union of India reported in 1990(47) ELT 188(SC);
iv)Abdu Salem Thiyyan Vs. Unioin of India reported in 1990(48) E.L.T. 162 (S.C.);
v)Union of India Vs. Paul Manickam reported in AIR 2003 SC 4622;
vi) Gurudev Singh Vs. Union of India reported in (2002)SCC page 545;
vii)Gimik Piotr Vs. State of Tamil Nadu reported in 2009(248) ELT 7 (SC);
It is further submitted that the detaining authority on having satisfied from documentary evidences and statements of detenue and other persons has passed the detention order under COFEPOSA Act to prevent the detenue from indulging in similar activities in future.
This Court has gone through the impugned order of detention along with the grounds as also other relevant documentary evidence pertaining to the case. It appears from the grounds of detention that one solitary offence has been registered against the detenue, wherein it is alleged that 28580 pieces of "Micro Band SD Memory Cards of 2GB" having market value of Rs.45,72,800/- were found concealed in refrigerators which were not declared in the import documents filed before the Customs authorities. On the basis of registration of this case, the detaining authority held that the present detenue is defecto importer of consignment imported by M/s Rodex International and with a view to prevent the detenue from engaging in smuggling goods in future, he has been immobilized by detention order under COFEPOSA Act. The detaining authority has placed reliance on the above registered offence and statements of detenue and Shri Dilip Dhakan, partner of M/s Rodex International, Gandhidham, Shri Anand Mehta, Proprietor of M/s A.D.Mehta Clearing Agency, Gandhidham, Shri Sarav Pramodchandra Suthar among others. It also appears from the grounds that a general statement has been made by the detaining authority that detenue had shown high potentiality and propensity to indulge in smuggling of goods in an organized manner which would have serious adverse effect on the economy and security of the country and hence, to prevent him from continuing with such activities, he has been detained.
It is pertinent to note that only a single offence has been registered against the detenue. He has no antecedence. It is also to be noted that the detenue has been enlarged on bail by the learned Sessions Judge, Ahmedabad City, on 7-3-2011 and no untoward incident is reported nor any offence is registered since then. Based on registration of a solitary offence, it cannot be made sure that he has been only interested in smuggling of memory cards and undervaluation of import of refrigerators, LCD/Plasma TVs and would be indulged in such prejudicial activities in future also and, therefore, on this ground, the subjective satisfaction arrived at by the detaining authority is vitiated on account of non-application of mind on the part of detaining authority.
Apart from the above, there is a delay of nine months in passing the detention of order. It is to be noted that though goods were seized on 2-2-2011, the order of detention was passed on 18-10-2011 and hence, there is an unexplained and unsatisfactory delay of more than eight months from the date of search. There is nothing on record to show that the detenue has continued with his alleged smuggling activities. Moreover, the detenue has been scrupulously following all the conditions imposed by the learned City Sessions Judge, Ahmedabad, while releasing the detenue on bail. Therefore, the subjective satisfaction arrived at by the detaining authority that the detenue would engage in smuggling goods in future and to prevent him from continue with the same, he is required to be detained, is vitiated. Therefore there is non-application of mind on the part of detaining authority in passing the impugned detention order. Reference may be made to the decision of the Hon'ble Apex Court in the cases of Anand Prakash V. State of U.P. reported in AIR 1990 SC 516 and Pradeep Nilkanth Vs. S. Ramamurthy reported in 1993(2) Suppl. SCC 61. Though affidavit has been filed by the detaining authority, said delay could not be satisfactorily explained by the detaining authority. Applying the ratio of the above decisions to the facts of the present case, this Court is of the opinion that continued detention of the detenue is illegal and the same cannot be sustained. Since this petition succeeds only on this ground, no other grounds are necessary to be dealt with and are not being dealt with.
The petition is thus allowed. The impugned order of detention dated 18-10-2011 passed by the respondent No.3 against husband of the petitioner is hereby quashed and set aside. The detenue is ordered to be set at liberty forthwith, if not required in any other case. Rule is made absolute accordingly. Direct service is permitted.
[M.D.SHAH,J.] radhan FURTHER ORDER After pronouncement of the order, learned Senior Counsel, Mr.R.J.Oza for the respondent Nos.1 to 3 has requested to stay the aforesaid order. However, looking to the facts and circumstances, the request is rejected.
[M.D.SHAH,J.] radhan Top