Important pointWhere all possible efforts were being taken to arrest the detenu, but he successfully evaded arrest, the High Court was not justified in coming to the conclusion that there was unusual delay in executing the order of detention.

Headnote:(i) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974—Sections 3(1) and 11—Detention order—Allegations that few Kolkata based exporters exported readymade garments, ball pens etc. grossly mis-declaring the quantity, description and the value with an ulterior motive to avail undue drawback—It was concluded that this was done with the sole intention of getting huge amount of foreign currency—Order of detention challenged on ground of delay in passing the order of detention—There was some delay in passing the order but it was not unusual—Whether High Court was justified in quashing the order on this ground—(No).
       Held : The details of the various steps taken were filed before the High Court. It appears that after the process of investigation started in January, 2002 consequent upon seizure of goods was on 24.1.2002. Writ Petition No. 145 of 2002 was filed in the Calcutta High Court and an interim order was passed staying further effect on the summons and maintenance of status quo of examination of goods. Reply was filed on 12.2.2002. Another Writ Petition No. 366 of 2002 was filed on behalf of the detenu on 20.2.2002. The High Court passed a direction for personal appearance of detenu on 28.2.2002. The date of personal appearance was adjourned to 5.3.2002. On 8.3.2002 the Writ Petition was dismissed for non-prosecution. Another application was filed by another concern. Thereafter various statements were recorded. The interim order passed on 29.1.2002 was vacated and the judgment was delivered on 8.5.2002; summons were issued to the detenu and information was sought for in terms of the High Court’s order dated 6.5.2002. In between Writ Petition No. 573 of 2002 was filed. Summons were issued and the matter was further heard by the Calcutta High Court. Ultimately the detenu was traced on 16.7.2002 and statements were thereafter recorded and after he was remanded to judicial custody, his statements were recorded. Show cause notices were issued to the detenu and the proprietor of the concern and Anil Kumar and Clearing House Agent. On 9.8.2002 the detenu retracted from his earlier statement. Finally the Central Screening Committee considered the proposal on 18.9.2002. It was referred to the Detaining Authority and after discussions and supply of documents in October, 2002 the records, which were voluminous were placed before the Detaining Authority who asked for orders passed by the Chief Judicial Magistrate dated 2.9.2002 and 11.9.2002. Copies of orders of the Chief Judicial Magistrate regarding extension of judicial custody and grant of bail were received on 15.11.2002 and the order of detention was passed on 20.11.2002. Above recital of the factual scenario clearly goes to show that there was really delay much less unusual in passing the order of detention. On that score, the High Court’s findings prove to be contrary and indefensible. (Para 19)
       (ii) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974—Sections 3(1) and 11—Order of detention—Challenge on ground of delay in execution of order—Order of detention was passed on 20.11.2002 — Arrest made on 17.12.2002—Not a case where there is unusual gap between the date of order of detention and the usual arrest—Various steps taken by the authorities indicate that all possible efforts were being taken to arrest the detenu, but he successfully evaded arrest—Whether High Court was justified in quashing the order on ground of unusual delay in executing the order of detention—(No).
       Held : From the materials on record it appears that after the order of detention was passed efforts were made to arrest the detenu. In fact the police authorities were requested to co-operate in the matter and the detention order was sent to the office of the Commissioner of Police Lal Bazar Police Head Quarters on 20.11.2002. Identification particulars including photographs of the detenu as required by the police for execution of the order were sent to the Commissioner of Police on 26.11.2002. In spite of keeping the house under surveillance by the concerned officers and the police officers, he could not be traced. Finally he was arrested on 27.12.2002. It is not a case where there is unusual gap between the date of the order of detention and the actual arrest. The various steps taken by the authorities as noted above clearly indicate that all possible efforts were being taken to arrest the detenu, but he successfully evaded arrest. The High Court was not justified in coming to the conclusion that there was unusual delay in executing the order of detention. (Para 20)
       (iii) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974—Sections 3(1) and 11—Detention order—Act of exporting goods by grossly misdeclaring the quantity, description and the value with an ulterior motive to avail undue drawback—Finding of High Court that there was only one incident—Whether High Court was justified in quashing the order—(No)—It is not the number of acts which is material—It is the impact and effect of the act which is determinative—Financial consequences were enormous and ran to crores of rupees, as alleged by the Detaining Authority.
       Held : It is not number of acts which determine the question as to whether detention is warranted. It is the impact of the act, the factual position as highlighted goes to show that the financial consequences were enormous and ran to crores of rupees, as alleged by the Detaining Authority. The High Court seems to have been swayed away that there was only one incident and none after release on bail. The approach was not certainly correct and the judgment on that score also is vulnerable. At the cost of repetition it may be said that it is not the number of acts which is material, it is the impact and effect of the act which is determinative. The High Court’s conclusions in this regard are therefore not sustainable. (Para 21)
       (iv) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974—Sections 3(1) and 11—Detention order—Validity challenged on ground of delay in disposing of the representation—There was an independent application of mind by the Central Government—There were two representations each addressed to the Detaining Authority and the Central Government, which were considered and rejected—Both the authorities have dealt with the representation with utmost expedition—Factual position on record does not justify the conclusion drawn by the High Court about the unexplained delay in disposal of representation and/or non application of mind by the Central Government.
       Held : In law the President or the Governor, as the case may be, cannot be impleaded as a party. Therefore, there is no question of their explaining as to what happened after representation was received by the office of the President or the Governor, as the case may be. The Central Government or the Detaining Authority are also not authorized and competent in law to say what happened after representation is received in the office of the President or the Governor, as the case may be. The Detaining Authority or the concerned authority of the Central Government has to explain the action taken by the said authority after receipt of the representation by it. The factual position also does not justify the conclusion drawn by the High Court about the unexplained delay in disposal of the representation and/or non-application of the mind by the Central Government. Looked at from any angle the order of the High Court is unsustainable and it is therefore set aside. Both the authorities have dealt with the representation with utmost expedition. A plea appears to have been taken before the High Court that there was no explanation offered for keeping the representation unattended after its receipt. It has to be noted that the Detaining Authority and/or the Central Government and/or the State Government, as the case may be, have to explain the action taken on the representation after it had reached the concerned authority. The representation should be received by a person authorized to receive it. The Detaining Authority or the concerned authority of the Central Government may have authorized some members of the staff to receive representation or any official document. If the representation is handed over to or served on a person who is not authorized to receive it the concerned authority cannot be held responsible if any delay is occasioned on account of inaction by such unauthorized person. If any dispute is raised about the authority of the person to whom the representation is claimed to have been handed over or served, the person making the representation on behalf of the detenu or the detenu, as the case may be, has to establish as to on whom the service was effected and he had authority to receive the document in question. (Paras 23 to 25)

Judgment

Arijit Pasayat, J.—Union of India and the Joint Secretary (COFEPOSA), Government of India, Ministry of Finance, Department of Revenue, (hereinafter referred to as the ‘detaining authority’) call in question legality of the judgment rendered by the Division Bench of the Calcutta High Court quashing the order of detention passed by the appellant No. 2 under Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the ‘COFEPOSA’) directing detention of Rajen Ghosal (hereinafter referred to as the ‘detenu’).

2. A Habeas Corpus Writ Petition under Article 226 of the Constitution of India, 1950 (in short the ‘Constitution’) was filed by the respondent No.1, the wife of the detenu. The order of detention was primarily based on the ground that on the basis of information received on 8.1.2002 by the Special Investigation Branch, Kolkata Customs, seven containers of (7 x 20) and one container of (1 x 40) were off loaded, from the vessel of Vishakapatnam Port were detained and examined. The allegation was that few Kolkata based exporters have exported on 5.1.2002 readymade garments, ball pens and side rubber wheels grossly mis-declaring the quantity, description and value with an ulterior motive to avail undue drawback worth crores of rupees. Detenu who was the proprietor of M/s. Shyam Sunder Enterprises had exported some of the containers. After opening the consignments, substantial shortage in quantities were detected. It appeared that the goods were highly over invoiced and even mis-declared in respect of description of certain items. There was grave difference in the actual quantity and the quantity of garments and ball pens and side rubber wheels that were to be exported with that of those articles which were actually found in the container at the port. It was concluded that all these were done with the sole intention of getting huge amount of foreign currency. Investigations were done and a licenced clearing agent was interrogated and his statement was recorded under Section 108 of the Customs Act, 1962 (in short the ‘Customs Act’). It appears that one Shri Anil Kumar Mahensaria was the brain behind the acts and the detenu was deeply involved in the concerned acts. Residence of the detenu was searched and he was arrested. He was interrogated at length about his accomplicity in the matter. He clearly stated that he was a person of limited means and had obtained Importer Exporter Code No. (in short the ‘IEC’). He had allowed the same to be used and was only lending his Code for petty sums. The detenu was produced before the Chief Judicial Magistrate, Kolkata who remanded him to the judicial custody. During his detention further statements were recorded. Detenu was released on bail on 11th September, 2002. On the basis of the materials collected, it was felt that with a view to prevent him from continuing the illegal activities he was to be detained under COFEPOSA. The order of detention was passed on 20.11.2002 and he was arrested on 17.12.2002. The order of detention and the grounds of detention were duly served and he was made aware of his right to make representations to the Central Government and the Detaining Authority and also the Advisory Board. The representations made by the detenu were rejected. The order of detention was questioned by the respondent No.1 on several grounds; firstly it was submitted that there was unusual delay in passing the order of detention. The investigation process had started in January, 2002 but the order of detention was passed in November, 2002. After his release on bail there was nothing to show that he had continued to indulge in prejudicial activities of smuggling. Further there was unusual delay in executing the order of detention. Only one incident was referred in the grounds of detention to justify his detention. There was nothing to demonstrate continuing criminality and culpability to continue such action in future

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2004 Supreme(SC) 1571

Important pointWhere all possible efforts were being taken to arrest the detenu, but he successfully evaded arrest, the High Court was not justified in coming to the conclusion that there was unusual delay in executing the ­order of detention.

Cases Referred (10)

Important pointWhere all possible efforts were being taken to arrest the detenu, but he successfully evaded arrest, the High Court was not justified in coming to the conclusion that there was unusual delay in executing the order of detention.