IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : COFEPOSA
W.P.(CRL.)680/2008
Date of Hearing : 30th July, 2008
Date of Decision : 5th August, 2008
RAJ KUMAR ….Petitioner
Through Mr. Pradeep Jain with
Mr. A. Samad and Mr. Y.R. Sharma, Advs.
-versus-
UOI and ORS. ..Respondent
Through Mr. K.K. Sharma, Adv.
CORAM:
HON’BLE MR. JUSTICE VIKRAMAJIT SEN
HON’BLE MR. JUSTICE V.K. SHALI
VIKRAMAJIT SEN, J.
1. The Petitioner challenges the preventive detention of his brother,
Dharmender Jhethwani, son of Late Asa Ram, under Section 3(1) of the
Conservation of Foreign Exchange and Prevention of Smuggling Activities
Act, 1974 (for short “COFEPOSA”). The said impugned Order is dated
18.2.2008 and is accompanied by the “Grounds” of even date on which the
said Order is predicated.
2. Briefly stated, the Detenu had reported at the Red Channel of Customs,
Delhi at 2330 hours on 17th October, 2007 and had declared the total value
of goods sought to be imported by him as his baggage at Rupees Sixty
Thousand. Since the conduct of the Detenu was found to be suspicious by
the officers of the Customs Department, an inspection was carried out of the
three checked-in- baggages and two hand-baggages carried by the
Petitioner/Detenu. It is not in dispute that the items and quantities declared
by the Petitioner/Detenu in the Embarkation Form were found drastically
less than what was actually contained in the baggage. The Customs
Department assessed the duty at Rupees Nine Lac Eighty Thousand and
Fifty Only instead of Rupees Sixty Thousand mentioned by the Detenu. The
Department took note of the fact that between the period August, 2004 and
October, 2007 (that is a period of three years and two months) the Detenu
had made as many as fifty-one journeys, of very short duration, to Thailand
and two journeys to Hong Kong. Mr. Jain, learned counsel for the Detenu,
has conceded that the Detenu made his livelihood by purchasing goods
abroad and thereafter importing them into India in his personal baggage. He
has however argued that this is a legitimate livelihood since imports can be
freely made on payment of the duty attracted against such importation.
3. It has been vehemently contended on behalf of the Detenu that the
procedure adopted by the Department was not in consonance with law. We
may only record that the Detenu was unable to produce any document
evidencing the price actually paid by him either before the Department or in
these proceedings. Furthermore, as already mentioned above, the declaration
made by the Detenu was incorrect inasmuch as the quantity of items
mentioned by him were much less than what was contained in his baggage;
and items such as fifty metres of suit length and fifty pieces of processors
were not mentioned at all. In these proceedings we are not concerned with
the quantum of duty quantified by the Department as that can be assailed in
proceedings specifically provided for that purpose.
4. Where there has been a substantial mis-declaration, Section 111(l) of the
Customs Act, 1962 (for short “Customs Act”) which deals with confiscation
of improperly imported goods renders goods liable for confiscation if they
are not included or are in excess of those included in the entry made under
the Act, or in the case of baggage, in the declaration made under Section 77
thereof. It seems to us that Mr. Jain is not correct in drawing our attention to
Section 111 (m) of the Customs Act which speaks of the valuation of
imported goods.
5. The next contention is that the Department had made a wrong inference
from the fifty-three journeys of the Detenu. The contention is that as per the
information received by the Department from the Commissioner of
Customs, Kolkata, Redemption Fee and Penalty was imposed with regard to
only two journeys, and in respect of nine successive journeys between
10.12.2005 and 18.12.2006, no case was made out against the Detenu. This
argument is a double- edged weapon in our opinion. Keeping the nature of
the Detenu”s business in mind and the relatively small amount of duty paid
by him, and nil duty paid in respect of nine journeys, prima facie his
activities can be seen as suspicious and of a smuggling nature. At the same
time, preventive detention based on suspicion alone may not meet the tests
laid down in this context.
6. It has also been contended by Mr. Jain that the Grounds of Detention are
verbatim the same as the Complaint filed before the ACMM, New Delhi
which is indicative of the fact that the conduct of the Department is
malicious and calculated to harass the Detenu. We find no merit in this
submission. An analogy cannot be drawn between this factor and instances
where the Order of the Detaining Authority is verbatim that of the
Sponsoring Authority.
7. Mr. Jain has also contended that there is no likelihood of the Detenu being
enlarged on bail and that successive applications have been rejected since he
was taken into custody on 18.10.2007, under Section 132/135(1)(a) of the
Customs Act. Reliance has been placed on the following observations that
are to be found in Rajesh Gulati “vs- Govt. of NCT of Delhi, (2002) 7 SCC
129: It cannot be overemphasized that the object of detention under the Act
is not to punish but to prevent the commission of certain offences. Section
3(1) of the Act allows the detention of a person only if the appropriate
detaining authority is satisfied that with a view to preventing such person
from carrying on any of the offensive activities enumerated therein, it is
necessary to detain such person. The satisfaction of the detaining authority is
not a subjective one based on the detaining authority”s emotions, beliefs or
prejudices. There must be a real likelihood of the person being able to
indulge in such activities, the inference of such likelihood being drawn from
objective data. In this case, the detaining authority's satisfaction consisted of
two parts-one: that the appellant was likely to be released on bail and two:
that after he was so released the appellant would indulge in smuggling
activities. The detaining authority noted that the appellant was in custody
when the order of detention was passed. But the detaining authority said that
``bail is normally granted in such cases'`. When in fact the five applications
filed by the appellant for bail had been rejected by the Courts (indicating that
this was not a 'normal' case), on what material did not detaining authority
conclude that there was ``imminent possibility'` that the appellant would
come out on bail” The fact that the appellant was subsequently released on
bail by the High Court not have been foretold. As matters in fact stood when
the order of detention was passed, the 'normal' rule of release on bail had not
been followed by the courts and it could not have been relied on by the
detaining authority to be satisfied that the appellant would be released on
bail. [See: in this context Ramesh Yadav v. District Magistrate, AIR 1986
SC 315. Assuming that by some method of prescience the detaining
authority foresaw the order of bail which was granted to the appellant on his
sixth application, the question still remained, would the appellant again
resort to smuggling goods into the country” It was not the detaining
authority's case that the appellant was a die-hard smuggler. In fact in the
impugned detention order, the detaining authority noted that: ``Though Shri
Deepak Dhembla, the proprietor of M/s. B.D. Denim had denied any
association in that case, yet from the statement of Shri Rajesh Gulati i.e. you
it is clearly evident that Shri Dhembla was the brain behind the smuggling of
mobile phones through your help and he was arranging for your ticket and
other expenses for executing the process of smuggling of mobile phones in
clandestine manner'`. This case is of no advantage to the Detenu as the
factual matrix is dissimilar on essentials. Moreover, if the Detenu is so
fatalistically certain of the inevitability of not being enlarged on bail, he
should welcome that the period of detention runs its course while he is in
incarceration in the pending prosecution under Sections 132/135 of the
Customs Act.
8. It is next contended that legally unexcusable and uncondonable delay in
passing the impugned Order has occurred. It has already been noted that the
Detenu was taken into custody by the Customs Department on 18.10.2007.
Judicial Remand was applied for and ordered by the ACMM, New Delhi on
the application of the Customs Department on 19.10.2007. It is trite that the
importer or passenger, as the case may be, whose valuation of the imported
goods has not been accepted by the Customs Department, would not
automatically or invariably be prosecuted under Section 132/135 of the
Customs Act. Requisite mens rea would have to be evident to justify
prosecution. We do not intend to make any observations so far as the
pending prosecution is concerned. We have mentioned it only for the reason
that the entire conspectus of facts would have had to be taken note of in
order to arrive at the decision to prosecute him. Everyday scores of
passengers pay duty as per the valuation and assessment of the Department
even though they may not agree with it. Prosecution of each one of them
would result in the travesty of the law.
9. Returning to the facts of the case in hand it appears to us that the relevant
material was already available with the Respondents on 18.10.2007. The
only investigation or inquiry was restricted to the calling for a Report from
the Department in Kolkata on 25.10.2007; the Report was received on
1.11.2007. Furthermore, it is undisputable that prosecution under the
Customs Act is not synonymous with preventive detention. Having said that
it is well-neigh impossible to conceive of circumstances where preventive
detention may be justified even though prosecution is not intended or
recommended. The proposal for the detention of the Detenu appears to have
been finalised on 10.1.2008.
10. The impugned Detention Order has been passed two months after the
initiation of prosecution on 15.12.2007, on which date investigation must be
deemed to have been completed. We have to consider whether the passage
of two months thereafter would constitute delay as it would vitiate the
impugned Detention Order. It is trite that the decision to detain a citizen
would not be sustainable if it does not manifest urgency and imminence
since the vital links between an action of the Detenu and the decision to
detain him would almost invariably stand snapped.
11. In these circumstances, we find that there is uncondonable delay in the
passing of the impugned Order, the vital links necessitating preventive
detention having snapped in the interregnum. Reference to the following
passage from Kundanbhai Dulabhai Shaikh “vs- Distt. Magistrate,
Ahmedabad, AIR 1996 SC 2998 would be advantageous to adumbrate the
need for expeditious action: Turning now to the main question relating to the
early disposal of the representation, we may immediately observe that this
Court, in a large number of cases, has already laid down the principle in
clear and specific terms that the representation has to be disposed of at the
earliest and if there has been any delay in the disposal of the representation,
the reasons for the delay must be indicated to the Court or else the
unexplained delay or unsatisfactory explanation in the disposal of the
representation would fatally affect the order of detention and in that
situation, continued detention would become bad. This has been the
consistent view of this Court all along from its decision in Sk. Abdul Karim
v. State of West Bengal, (1969) 1 SCC 433 : (AIR 1969 SC 1028); In re:
Durga Show, (1970) 3 SCC 696 : Jaynarayan Sukul v. State of West Bengal
(1970) 1 SCC 219 : (AIR 1970 SC 675); Shaik Hanif v. State of West
Bengal, (1974) 1 SCC 637 : (AIR 1974 SC 679); Raisuddin @ Babu Tamchi
v. State of U.P., (1983) 4 SCC 537 : (AIR 1984 SC 46); Frances Coralie
Mullin v. W.C. Khambra, (1980) 2 SCC 275 : (AIR 1980 SC 849);
Mohinuddin alias Moin Master v. District Magistrate, Beed, (1987) 4 SCC
58 : (AIR 1987 SC 1977); Rama Dhondu Borade v. V.K. Saraf, Commr. of
Police, (1989) 3 SCC 173 : (AIR 1989 SC 1861); Aslam Ahmed Zahire
Ahmed Shaik v. Union of India, (1989) 3 SCC 277 : (AIR 1989 SC 1403);
Mahesh Kumar Chauhan alias Banti v. Union of India, (1990) 3 SCC 148 :
(AIR 1990 SC 1455), right upto its reiteration in Gazi Khan alias Chotia v.
State of Rajasthan, (1990) 3 SCC 459 : (AIR 1990 SC 1361).
12. Regretfully the views of the Apex Court remain unheeded in the
Administration. Keeping the plethora of precedents of the Hon”ble Supreme
Court in perspective, we are constrained to record our displeasure with the
impugned decision of the Detaining Authority. The time is not too distant
when the decision or conduct of the Detaining Authorities is seen as so
deliberately contumacious as to require the initiation of contempt of Court
proceedings.
13. There is one further factor for which no answer has been furnished by
the Customs Department. A Representation was made by the Detenu on
11.3.2008 and a Reference to the Advisory Board was made on 24.3.2008.
However, the Representation dated 11.3.2008 came to be disposed of by the
Joint Secretary (COFEPOSA), that is, Detaining Authority by Memorandum
dated 27.3.2008 and by the Special Secretary and Director General, Central
Economic Intelligence Bureau, Ministry of Finance, Department of
Revenue, New Delhi on 28.3.2008 i.e. after the matter was forwarded to the
Advisory Board. It is in this regard that Mr. Jain places reliance on the
observations of the Constitution Bench to be found in Jayanarayan Sukul
“vs- State of West Bengal, 1970 (1) SCC 219 wherein their Lordships
concisely and unambiguously opined that “ “the appropriate Government is
to exercise its opinion and judgment on the representation before sending the
case along with the Detenu”s representation to the Advisory Board”. Mr.
Sharma, learned counsel for the Respondent, has submitted that the making
of the Reference to the Advisory Board has been circumscribed by the
statute, that is, five weeks from the date of the Detention Order and hence
could not be delayed or postponed after the disposal of the Representation of
the Detenu. That may well be so but this fact does not justify noncompliance
with another imperative, namely, disposal of the Representations
made by the Detenu.
14. The provisions for filing of the representation by the Detenu are not
based on Rules and Regulations. They are also not based only on a statute.
Article 21 of the Constitution guarantees that no person shall be deprived of
his life or personal liberty except according to the procedure established by
law. Article 22(5) of the Constitution prescribes that when any person is
detained in pursuance of an order made under any law providing for
preventive detention, the authority making the order shall, as soon as may
be, communicate to such person the grounds on which the order has been
made and shall afford him the earliest opportunity of forwarding a
representation against the order. Failure to prescribe the precise schedule of
time is conspicuous by its absence but it has to be “as soon as may be.”
There is, however, plenitude of precedents on the time within which the
grounds on which the order has been made must be communicated to the
Detenu. The following Table would illustrate that the urgency has been seen
in terms of a couple of days only: SR. NO. PETITIONER/DETENU DATE
OF SERVICE OF BARE GROUNDS DATE OF SERVICE OF RELIED
UPON DOCUMENTS TIME GAP (NO. OF DAYS) QUASHED OR
REVOKED BY COURT OR CENTRAL GOVERNMENT 1. VIRENDRA
SINGH “VS-UOI 1.11.80 5.11.80 4 DAYS SUPREME COURT 2.
LAXMAN HARWANI 28.11.80 3.12.80 5 DAYS BOMBAY HC 3.
SUMAN B. SOMANI 31.8.88 1.9.88 1 DAY BOMBAY HC 4. HAJI
HOHD.USMAN BHATI 24.11.95 29.11.95 5 DAYS BOMBAY HC 5.
THAKURDAS U. KAMRA 27.6.95 30.6.95 3 DAYS BOMBAY HC 6.
SANJAY U. MAHATRE 27.12.95 30.12.95 3 DAYS BOMBAY HC 7.
SHASHI GOYAL 21.2.06 24.2.06 3 DAYS DELHI HC 8. UOI Vs.
SHASHI GOYAL 21.2.06 24.2.06 3 DAYS SUPREME COURT 9.
GURBAX @ SAM BIRYANI 28.5.88 30.5.88 2 DAYS CENTRAL
GOVERNMENT 15. In T.A. Abdul Rahman -vs- State of Kerala, (1989) 4
SCC 741 = AIR 1990 SC 225 the Supreme Court opined that “when there is
unsatisfactory and unexplained delay between the date of detention and the
date of securing 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”.
These observations have been extracted and reiterated in Rajinder Arora -vs-
Union of India, AIR 2006 SC 1719: 2006(4) SCC 796. This kind of delay
has been found to be fatal in P.M. Hari Kumar -vs- Union of India, (1995) 5
SCC 691 and SMF Sultan Abdul Kader -vs- Jt. Secy. to Govt. of India,
(1998) 8 SCC 343. A complete analysis of the law is available in the
decision of the Division Bench of this Court in Dalbir Singh -vs- Union of
India, 1995 I AD (Delhi) 1169 which deals with the circumstances that can
be considered as constituting delay both in the passing of the Detention
Order as well as its execution. 16. It appears to us that the law has not
undergone any appreciable change as is evident from a reading of Rajinder
Arora, Vinod K. Chawla -vs- Union of India, (2006) 7 SCC 337 and Sheetal
Manoj Gore -vs- State of Maharashtra, (2006) 7 SCC 560. We are fortified
in our understanding from a perusal of the following extracts from Adishwar
Jain “vs- Union of India, (2006) 11 SCC 339: 14. The question came up for
consideration recently in Rajinder Arora v. Union of India, (2006) 4 SCC
796 wherein it has been held: “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 regard 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 stating: “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 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”.
15. Delay, as is well known, at both stages has to be explained. The court is
required to consider the question having regard to the overall picture. We
may notice that in Sk. Serajul v. State of West Bengal, (1975) 2 SCC 78 this
Court opined: “There was thus delay at both stages and this delay, unless
satisfactorily explained, would throw considerable doubt on the genuineness
of the subjective satisfaction of the District Magistrate, Burdwan recited in
the order of detention. It would be reasonable to assume that if the District
Magistrate of Burdwan was really and genuinely satisfied after proper
application of mind to the materials before him that it was necessary to
detain the petitioner with a view to preventing him from acting in a
prejudicial manner, he would have acted with greater promptitude both in
making the order of detention as also in securing the arrest of the petitioner,
and the petitioner would not have been allowed to remain at large for such a
long period of time to carry on his nefarious activities.”
16. In Abdul Salam v. Union of India, (1990) 3 SCC 15 whereupon the
learned Additional Solicitor General has placed strong reliance, this Court
found that there had been potentiality or likelihood of prejudicial activities
and, thus, mere delay, as long as it is explained, the court may not strike
down the detention.
17. It is of importance to note that the Supreme Court has, on several
occasions, laid down a period which is much shorter than that provided in
Section 3(3) of COFEPOSA. This statute lays down that for the purposes of
Clause (5) of Article 22 of the Constitution, the communication to a person
detained in pursuance of a detention order of the grounds on which the order
has been made shall be made as soon as may be after the detention, but
ordinarily not later than five days, and in exceptional circumstances and for
reasons to be recorded in writing, not later than fifteen days, from the date of
detention. We see no reason why very period prescribed for compliance of
both the actions envisaged in Article 22 of the Constitution should similarly
hold with full force for all other attendant actions. In the present case the
Detenu was served with the impugned Order on 19.2.2008 from which date
his detention on a preventive platform had commenced. It is not
extraordinary or unreasonable to expect the Respondents to anticipate the
filing of a Representation by the Detenu, which, in the present case, was
served on the Respondents on 11.3.2008. Its disposal cannot be left to the
whims and convenience of the Respondents, especially since it is a
preventive and not a punitive detention that is being dealt with. We find no
reason why the requisite decision was not taken on the representation “as
soon as may be .... but ordinarily not later than five days”. The
unsatisfactory and legally unacceptable reason which has been proffered is
forthcoming, however that the Respondents were concentrating on making
the Reference to the Advisory Board within the statutory period of five
weeks. The Respondents are clearly mistaken and misdirected in doing so.
They should have instead concentrated first on disposing of the
Representation of the Detenu.
18. It is manifestly evident that the difference between preventive and
punitive detention has escaped the comprehension of the Respondents since
their manner of dealing with the issue shows that they discern no distinction
so far as the punitive and preventive detention is concerned. The remedy
with respect to punitive detention will ordinarily lie in a Court of law. The
Constitution, however, provides in Article 22(5) for the remedy of the
redressal of the detentu”s grievance, in the first instance by the filing of a
representation. This is plainly not a punctilio or an idle formality. Each and
every citizen of India, including high and senior Government officials, must
respect and comply with the spirit of the Constitution. Therefore, as and
when a representation is received from a Detenu it must immediately be
cogitated upon and decided. It is only thereafter that any further step towards
legalising the preventive detention can be taken. It would be most
unreasonable to contend that the decision to proceed to the next step viz.
Reference to the Advisory Board can be taken without first deciding whether
there is any strength in the representation of the Detenu. The officers and
officials of the Government are expected to reverse or amend their decisions
if just cause is shown in the Representation for doing so. The Reference to
the Advisory Board made on 24.3.2008, keeping the Detenu”s representation
pending, smacks of a mindless and mechanical process of decision making.
We are in no manner of doubt that wherever and whenever the legality and
appropriateness of preventive detention is to be considered, the highest
standards of free, frank and forthright thinking is to be expected of the
officer concerned. Presumption that a representation is meritless cannot be
drawn. In fact this is what is presumed if and when a Reference to the
Advisory Board is made even before a representation is dealt with and
finally disposed of. That is why the Apex Court has ordained in Sukul that
the representation must be decided before sending the case to the Advisory
Board. The Respondents action in deciding the subject Representation after
the Reference was made is legally indefensible.
19. Before parting we will once again reproduce the following passage of
Union of India “vs- Yumnam Anand M. Alias Bocha Alias Kora Alias Suraj,
(2007) 10 SCC 190, which is a reiteration of similar observations made on
many previous occasions, in the hope that the Respondents will wake up to
the need to comply with the Constitution. “In case of preventive detention no
offence is proved, nor any charge is formulated and the justification of such
detention is suspicion or reasonability and there is no criminal conviction
which can only be warranted by legal evidence. Preventive justice requires
an action to be taken to prevent apprehended objectionable activities. (See R.
v. Halliday and Kubic Darusz v. Union of India.) But at the same time, a
person”s greatest of human freedoms i.e. personal liberty is deprived, and,
therefore, the laws of preventive detention are strictly construed, and a
meticulous compliance with the procedural safeguard, however technical, is
mandatory. The compulsions of the primordial need to maintain order in
society, without which enjoyment of all rights, including the right of
personal liberty would lose all their meanings, are the true justifications for
the laws of preventive detention. This jurisdiction has been described as a
“jurisdiction of suspicion”, and the compulsions to preserve the values of
freedom of a democratic society and social order sometimes merit the
curtailment of the individual liberty. (See Ayya v. State of U.P.) To lose our
country by a scrupulous adherence to the written law, said Thomas
Jefferson, would be to lose the law, absurdly sacrificing the end to the
means. No law is an end itself and the curtailment of liberty for reasons of
State”s security and national economic discipline as a necessary evil has to
be administered under strict constitutional restrictions. No carte blanche is
given to any organ of the State to be the sole arbiter in such matters.”
20. For these reasons the impugned Detention Order is quashed. The Detenu
is directed to be released forthwith if not required in any other case of
punitive or preventive detention. Since the Respondents have turned a deaf
ear to and a closed or obdurate comprehension of the numerous decisions of
the Hon”ble Supreme Court, as well as High Courts across our country, we
impose costs against the Respondents and in favour of the Petitioner
quantified at Rs.5,000/-.
21. The writ petition is allowed in these terms.
Sd/-
( VIKRAMAJIT SEN )
JUDGE
Sd/-
( V.K. SHALI )
JUDGE
