Point of Law: Illegally smuggling of gold - Detention order confirmed - Interim order not to execute order of detention was obtained and lapse of time live link was snapped - No live link between prejudicial activities and purpose of detention.

JUDGMENT :

N.J. JAMADAR, J.

1. By this petition under Article 226 of the Constitution of India, the petitioner-proposed detenu has assailed the legality and validity of an order of detention, dated 8th March 2018, passed by the Joint Secretary, Government of India, under the provisions of section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (‘the COFEPOSA Act’).

2. The petitioner has invoked the writ jurisdiction of this Court at a pre-execution stage of the aforesaid detention order in the backdrop of the following facts:

(i) On 27th September 2017, a container was examined at Mumbai Port and it was found that 38 Kg of foreign marked gold valued at Rs. 11.71 Crore was illegally smuggled. The persons concerned with M/s. Al Rehman Impex, the Clearing House Agents were arrested. During the course of investigation, it transpired that the petitioner herein was the principal controlling person of M/s. Rajeshwar Bullion Trading, which was involved in smuggling of gold. The petitioner gave an incriminating statement. The petitioner came to be arrested on 25th November 2017. On 22nd January 2018, the petitioner was ordered to be released on bail.

(ii) Eventually, on 8th March 2018, a detention order came to be passed against the petitioner. It reads as under:

“ORDER

Whereas, I, P.V. Subba Rao, Joint Secretary to the Government of India, specially empowered under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended), am satisfied with respect to the person known as Shri Karnaram Lumbaji Choudhary, that with a view to preventing him from abetting smuggling of goods and dealing in smuggled goods in future, it is necessary to make the following order:

Now, therefore, in exercise of the powers conferred by Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended), I direct that said Shri Karnaram Lumbaji Choudhary S/o Shri Lumbaji Vanaji Choudhary, R/o Flat No. 2701, Shreepati Arcade, August Kranti Marg, Nana Chowk, Mumbai - 400 007 to be detained and kept in Central Prison facility of Arthur Road, Mumbai.

(P.V. Subba Rao)

Joint Secretary to the Government of India.”

(iii) Gulabidevi, the wife of the petitioner, filed Writ Petition No. 1729 of 2018 in this Court, assailing the legality and validity of the aforesaid detention order. By an order dated 5th July 2018, this Court dismissed the writ petition as withdrawn. Thereafter, the petitioner preferred Writ Petition, being Writ Petition (Criminal) No. 2167 of 2018 before Delhi High Court assailing the very same order of detention. The Delhi High Court was also persuaded to dismiss the writ petition as withdrawn by order dated 10th October 2019.

(iv) The petitioner has again invoked writ jurisdiction of this Court asserting that the impugned detention order is illegal as it is based on extraneous and irrelevant material and passed for a wrongful purpose and thus falls within clauses (iii) and (iv) of paragraph 30 of the judgment of the Supreme Court in the case of Additional Secretary to the Government of India and Others vs. Alka Subhash Gadia and Others, 1992 Supp (1) SCC 496. The principal challenge to the detention order is that in view of the time which has elapsed from the date of the impugned order, the live link between the order of detention and the purpose for which the petitioner is ordered to be detained has since snapped.

(v) The petitioner avers that the respondents were never serious in executing the order of detention. Neither the sponsoring authority nor the concerned police made a genuine effort to trace out the petitioner though the whereabouts of the petitioner were well within the knowledge of the respondents. This deliberate inaction in executing the order of detention has snapped the nexus between the alleged prejudicial conduct and the purpose of detention. Moreover, in the intervening period, the authorities initiated