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2009(2) Supreme 790
SUPREME COURT OF INDIA
(From Delhi High Court)
Dalveer Bhandari and P. Sathasivam, JJ.
Pooja Batra — Appellant(s)
versus
Union of India & Ors. — Respondent(s)
Criminal Appeal No. 563 of 2009
(Arising out of S.L.P.(Crl.)No. 7644 of 2008)
Decided on : 27-03-2009
(b) Detention – Representation disposed within 10 days which included two holidays – No undue delay – Detention order valid. (Para 7)
(c) Indian Evidence Act, 1872 – Section 17 – The very same person who signed the detention order also signed the counter affidavit – Contents therein, therefore, cannot be lightly ignored. (Para 8)
(d) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 – Section 3 – Incomplete material, which is either pending or inconclusive, cannot be a basis for detention order. (Para 9)
(2002)3 SCC 754; JT 2009 (1) SC 516 – Relied upon.
(e) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 – Section 3 – It is open to the Courts to see whether there has been due and proper application of mind and that all the relevant and vital materials for the purpose have been noticed, adverted to and considered. (Para 9)
(f) Customs Act, 1962 – Sections 111 and 113 – Unless there is proper enquiry and a conclusion has been arrived at in terms of Section 111 or Section 113 it cannot be concluded that smuggling had taken place. (Para 10)
(g) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 – Section 3 – Subjective satisfaction of the authority under the law is not absolute and should not be unreasonable. (Para 10)
(h) Constitution of India, 1950 – Article 226 – Issue before the High Court in Habeas Corpus writ petition was about the validity of the detention order and the curtailment of the personal liberty of the detenu and nothing more – It was beyond jurisdiction for the High Court to issue direction to lodge criminal cases and impose exemplary fine relying on section 482 Cr.P.C. (Para 14)
Facts of the case :
1. Deepak Kumar @ Deepak Batra, husband of the appellant was detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
2. The appellant filed a habeas corpus petition praying for issuance of a writ of Habeas Corpus to release her husband from detention.
3. The High Court, by the said judgment, dismissed the writ petition with costs of Rs.50,000/- on her and directed the department to initiate criminal proceedings against the detenu under Sections 199, 420, 468 and 471 of the Indian Penal Code.
Finding of the Court :
The detention authorities considered extraneous materials; and High Court went beyond its jurisdiction u/Art. 226.
Result : Appeal allowed.
JUDGMENT
P. Sathasivam, J.—
1. Leave granted.
2. This appeal is directed against the judgment dated 05.09.2008 passed by the High Court of Delhi in W.P. (Crl.) No. 782 of 2008 which was filed by Pooja Batra wife of Deepak Kumar @ Deepak Batra detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as “the COFEPOSA Act”) praying for issuance of a writ of Habeas Corpus to release the detenu i.e. her husband from detention. The High Court, by the said judgment, dismissed the writ petition with costs of Rs.50,000/- on her and directed the department to initiate criminal proceedings against the detenu under Sections 199, 420, 468 and 471 of the Indian Penal Code in exercise of its power under Section 482 of the Code of Criminal Procedure.
3. The case of the department is as follows:
(a) The Detaining Authority has issued the detention order dated 05.12.2007 against Shri Deepak Kumar @ Deepak Batra, the husband of the appellant herein on the basis of the facts and documents put up before them and after satisfying with the facts on records that the detenu has propensity and potentiality to indulge in smuggling activities in future. The detenu is the mastermind for import of the goods covered under Bill of Entry No. 589144 dated 25.04.2007. The goods covered under above-mentioned Bill of Entry were not only mis-declared in respect of quantity but also there were certain goods which were concealed in the container. The value of such mis-declared/smuggled goods as calculated comes to Rs.87,07,220/- and attracting duty has worked out to Rs. 30 lacs approximately. The detenu had indulged in repeated offences since 2006 as he was not the actual owner of the Importer Exporter Code, (in short “IEC”). The grounds are based on the eight Bills of Entry which were filed by the detenu through his Customs House Agent, (in short “CHA”) and also on the basis of the statements tendered by Shri Naveen Kumar, an employee of CHA. Eight Bills of Entry have been filed by the CHA in the name of firm provided by the detenu. The detenu also provided the photocopy of the IEC. Shri Naveen Kumar also identified the earlier signatures of the detenu on the authorization letter dated 20.08.2007 given by the detenu. Shri Naveen Kumar confirmed the relationship between the last consignment and the earlier eight consignments imported by the detenu. The detenu had fraudulently used IEC No. and PAN No. of M/s Om Prakash Deepak Kumar. The actual owner of the IEC was not aware of the fact that his IEC is being misused by the detenu since 2006 and thorough investigation conducted by the Customs Authorities has revealed that in the past also eight such Bills of Entry were filed by the same CHA on the directions of the detenu and the goods were cleared and handed over to the detenu. The Detaining Authority has issued the detention order after satisfying with the facts and circumstances of the case and material available on record.
(b) Ms. Pooja Batra, wife of Deepak Batra has filed Writ Petition (Crl.) No. 782 of 2008 before the High Court of Delhi for quashing the detention order bearing No. F.N.673/06/2007-CUS/VIII dated 5th December, 2007 issued by the Joint Secretary (COFEPOSA), Ministry of Finance, Department of Revenue under Section 3 of the COFEPOSA Act. Before the High Court, various contentions such as non-application of mind on the part of the Detaining Authority, consideration of irrelevant material, reliance on extraneous material, non-supply of relevant and relied on materials, delay in passing detention order and delay in disposal of representation etc were raised. The High Court, by the impugned order dated 05.09.2008, dismissed her writ petition. Questioning the same, she filed the present appeal by way of special leave petition.
4. Heard Mr. R.S. Sodhi, learned senior counsel for the appellant and Mrs. K. Amreshwari, learned senior counsel for the respondents.
5. Mr. R.S. Sodhi, learned
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