Important PointA pre-detention order of preventive detention can be quashed only on a limited ground.

Headnote:COFEPOSA Act—Preventive detention order—Writ challenging order at pre detention stage—Pre detention order could be quashed only on a limited ground—Though raid was made on 26.5.2004, till date no prosecution was lodged against appellant by D.G.F.T.—No show cause notice had been issued on ground that export commitment were not fulfilled and authorities had granted redemption certificates—No explanation as to why order of detention had been issued after a long time as it was issued on 31.3.2005—Status report called for from Customs Department was not taken into consideration by competent authority—Some grounds of the decision in Alka Subhash Gadia case were attracted and detention order was liable to be set aside.
       Held : It is not in dispute that the authorities in terms of Sections 9(4), 10 and 11 of the Foreign Trade Development and Regulation Act, 1994 exercise a wide jurisdiction. Although the raid was made on 26.05.2004, admittedly, till date, no prosecution has been lodged as against the Appellant by DGFT. It is also not in dispute that the statutory authorities has not yet issued any show cause notice on the Appellant on the ground that the export commitments were not fulfilled. It is furthermore not in dispute that the authorities had granted redemption certificates. (Para 10)
       It is, however, not in dispute that although the raid was conducted on 26.05.2004, no material had been brought on record for even launching a prosecution as against the Appellant as yet. When the aforementioned question was raised by the Appellant, herein before the High Court, the Respondent contended that the prosecution would be launched soon. But, when the same point was raised before us, the Respondents in their counter affidavit merely stated :
       "OO) In reply to the contents of para OO, it is submitted that the Show Cause Notice in the matter has been drafted and is being issued shortly. Complaint in the matter will be filed only after adjudication. However, detention under the COFEPOSA Act 1974 is not a punitive action and is preventive in nature. Prevention detention under COFEPOSA Act is independent of adjudication and prosecution proceedings."
       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 the Appellant. It has furthermore not in dispute that even the DGFT authorities have not issued any show cause notice in exercise of their power under Foreign Trade Development and Regulation Act, 1994. 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. (Paras 18 to 20)
       Admittedly, furthermore, the status report called for from the Customs Department has not been taken into consideration by the competent authorities. A Division Bench of this Court in K.S. Nagamuthu v. State of Tamil Nadu & Ors. [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 case was a letter of the detenu retracting from confession made by him. 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 (supra) are attracted in the instant case. (Paras 23 to 25)

Judgment

S.B. Sinha, J.—Leave granted.

2. The Appellant is an industrialist. He manufactures acrylic yarn, blankets and shawls. The said goods are exportable items. The units of the Appellant are recognized export houses. They were awarded the highest export performance Awards by Wool and Woolen Export Promotion Council for manufacture of the aforementioned goods. The Appellant imported some raw materials on the premise that the imported items would be utilized for manufacture of the goods which were meant for export. A raid was conducted in his residence on 26.05.2004 by the Directorate of Revenue Intelligence (DRI) and he was taken in custody. He allegedly was continuously tortured for two days. During his detention statements under Section 108 of the Customs Act were recorded allegedly under coercion, duress and threat. He was shown arrested on 28.05.2004 and produced before a Magistrate. He was medically examined whereupon marks of multiple injuries on his person were found. After he was remanded to judicial custody by the Magistrate by an order dated 28.5.2004, he retracted his alleged confession stating that the same had been obtained under coercion, duress and torture. He remained under treatment for 45 days out of the total period of 60 days of his judicial remand (the requisite statutory period for filing a complaint). Upon failure on the part of the DRI Department to file a complaint against the Appellant within the statutory period of 60 days, he was enlarged on bail on 28.7.2004. In the meanwhile, his family members were forced to deposit a sum of Rs. 60 lakhs as customs duty. Such deposit, however, was made without prejudice to the rights and contentions of the Appellant. Several representations were made by the Appellant stating the aforesaid facts.

3. He filed a criminal complaint on 18.02.2005. The Medical Officer concerned was examined in the said proceeding wherein he stated :

"On 28.05.2004 at 8.40 PM 1 examined physically Sh. Rajinder Arora vide my emergency OPD No. 6607/04. Patient was brought to me by Mr. R.K. Saini, Intelligence Officer, DRI, Ludhiana Regional Unit. I found following injuries on the person of Rajinder Arora who is present today:

1. Multiple abrasions, superficial, in an area of 4 inch x 2 inch over mid of left upper arm, antero laterally. Patient also complaint of heaviness in chest. His B.P. was 150/106 mm Hg.

In my opinion, duration of injury was about 24 hours. I have seen the certified copy of injury report which is correct according to original report and is Ex. CW2/1, which is signed by me. When Rajinder Arora was brought to me he was under the custody of DRA authorities."

4. In the meanwhile, a proposal was forwarded to the DRI, Delhi Zonal Unit, Delhi for his detention under COFEPOSA. A proposal was also sent to COFEPOSA Unit by the said authority. Allegedly, on 15.2.2005, the DRI Ludhiana opined that no case has been made out for his detention under COFEPOSA. A proposal, however, was made by the said authorities for determination of detention of Shital Vij, who was said to be the brain behind utilization of the unlawful import.

5. Only on 31.3.2005, the order of detention was issued.

6. A writ petition was filed by the Appellant herein before the High Court of Punjab and Haryana praying for quashing of the said order of detention. By reason of the impugned order, the writ petition has been dismissed. The Appellant is, thus, in appeal before us.

7. The High Court in his impugned judgment opined :

(i) In the grounds of detention, the detaining authority had adverted to all the evidences collected against the Appellant including his statement under Section 108 of the Customs Act as also the subsequent retraction.

(ii) The activities of the Appellant come within the purview of the expression "smuggling" as defined in Section 2(39) of the Customs Act read with Section 2(e) of the COFEPOSA Act.

(iii) Delay in issuing the order of detention is not fatal. Delay, per se, cannot be a circumstance to s

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2006 Supreme(SC) 227

Important PointA pre-detention order of preventive detention can be quashed only on a limited ground.

Cases Referred (4)