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DELHI HIGH COURT
S. Ravindra Bhat & Vipin Sanghi, JJ.
Manish Gadodia — Petitioner
versus
Union of India & Anr. — Respondents
W.P.(Crl.) No.1695 of 2014
Decided on 4.12.2014
For the Petitioner:Mr. Vikram Chaudhri, Senior Advocate with Mr. Sanjay Agarwal, Mr. Shorab Kirpal, Mr. Raktim Gogoi, & Mr. Wattan Sharma, Advocates
For the Respondent No.1:Mr. Sanjay Jain, ASG along with Mr. Sanjeev Narula, CGSC and Mr. Ajay Kalia, Advocates
For the Respondent No.2:Mr. S.K. Dubey & Mr. Rajmangal Kumar, Advocate
IMPORTANT POINTS
(1) 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
(2) 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.
Headnote:COFEPOSA Act, 1974 — Section 3—Preventive detention order — Unexplained delay in passing of detention order — Detention order was passed with a view to prevent detenue from smuggling of goods and in transportation and concealment of smuggled goods after red sanders were recovered and detenue was suspected to be the kingpin of syndicate involved in export of red sanders — Seizure of red sanders from possession and custody of detenue was made on 29.9.2013 and on compilation of investigation complaint for offences under Customs Act was filed on 28.11.2013 — Detention order was made on 25.7.2014 and that was even after 5 months of grant of bail to detenue in criminal case — Unexplained delay in passing detention order created doubt on genuineness of subjective satisfaction of detaining authority and impugned order was vitiated.
Held: We are of the view that the impugned order of detention suffers from the vice of unexplained delay in the passing and service of the detention order. We are also satisfied that Article 22(5) of the Constitution stands violated on account of delay beyond 5 days in service of the GoD upon the detenue with the RuD, and that the respondents have failed to disclose exceptional circumstances to justify service of the GoD and documents when they were served.
We find merit in the submission of learned counsel for the petitioner that there was unexplained delay in passing of the detention order. After the alleged seizure of red sanders from the possession and custody of the detenue on 28/29.09.2013 and conduct of investigation, the complaint was filed under Section 132 and 135 of the Customs Act on 28.11.2013. Thus, the investigation was complete by the said date. Further, the show cause notice under the Customs Act was issued to the detenue on 24.03.2014, which clearly establishes that the material evidence required for passing of the detention order were available to the Detaining Authority and inspite of the same, he did not pass the detention order till 25.07.2014. In the present case, the detention order was passed after a delay of about 8 months, which has defeated the purpose of the detention as it was to prevent the detenue from acting in a prejudicial manner by indulging in the prohibited trade. Thus, the live link had already broken by the time the detention order was passed belatedly on 25.07.2014. (Paras 20 to 22)
(ii) COFEPOSA Act, 1974 — Section 3 — Preventive detention order — Delay of 19 days in execution of order no satisfactory explanation for delay would vitiate order
Held: In the present case, there is a delay of 19 days in executing the detention order. It is no more res integra that the Detaining Authority must explain satisfactorily the inordinate delay in executing the detention order, otherwise the subjective satisfaction gets vitiated. (Para 28)
(iii) COFEPOSA Act, 1974 — Section 3 — Prevention Detention order — Unexplained and unsatisfactory delay of more than 5 days in serving grounds of detention upon detenue will vitiate the order. (Paras 34 and 35)
Result: Petition allowed.
JUDGMENT
Vipin Sanghi, J. — The petitioner has preferred the present writ petition under Article 226 of the Constitution of India to seek a writ of Certiorari – to quash the detention order bearing No. F. NO. 673/06/2014-CUS VIII dated 25.07.2014 (hereinafter referred to as ‘the detention order’) passed under Section 3(1) (i) & 3(1) (iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) against Sh. Anil Gadodia (detenue) – the Petitioners brother, and a direction to set at liberty the detenue from detention.
2. The Joint Secretary to the Govt. of India, Shri Harmeet S. Singh, passed the detention order in respect of the detenue, therein stating that the detaining authority is satisfied that the detenue be detained “with a view to preventing him from smuggling of goods and in transportation & concealment of the smuggled goods in future………”.
3. The Grounds of Detention (GoD), inter alia, state that an intelligence was received by the officers of Directorate of Revenue Intelligence (DRI), Jaipur, that a syndicate is involved in illegal storage and then export of red sanders (which is a prohibited item under Appendix II of the CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora) and as per import-export policy, 2009-14, their export in any form is prohibited). The detenue – Mr. Anil Gadodia is allegedly the kingpin of the syndicate involved in export of red sanders.
4. The respondents claim that on 28.09.2013, five containers were examined and in four of them red sanders was found, apart from marble. The four containers were placed under seizure. Searches were simultaneously conducted, inter alia, at various premises in Delhi, Mundra and Jaipur by the DRI, which resulted in recovery of, inter alia, red sanders apart from documents, etc.
5. The statement of, inter alia, the detenue was recorded on 28.09.2013 and 29.09.2013, wherein he allegedly admitted to having supplied illegally procured red sanders for export through containers. The detenue, however, subsequently retracted from his statement on 30.09.2013.
6. On 29.09.2013, the detenue was arrested under Section 104 of the Customs Act, 1962 by the DRI, Jaipur for allegedly having committed an offence under Section 132, 135(a), 135(b) and 135(c) of the Customs Act, 1962.
7. DRI, Jaipur filed the complaint against the detenue and others on 28.11.2013, where the matter is pending prosecution before the learned Metropolitan Magistrate (MM), Jaipur. After a period of 5 months, the detenue was granted bail by the Court of Session Judge, Jaipur vide its order dated 22.02.2014.
8. On 25.07.2014, the detention order was passed under Section 3 (1) (i) & (iii) of COFEPOSA Act. Thereafter, on 13.08.2014, the police served upon the detenue the one page detention order dated 25.07.2014 (in English language). On the same day he was brought to the police station and was kept in custody. Subsequently, the detenue was taken to Tihar Jail and ever since he has been lodged in it.
9. The petitioner has pleaded several grounds to challenge the detention order against the detenue. However, at the stage of arguments only some of these grounds were highlighted – which are being discussed. On 20.08.2014, the detenue was served with the Grounds of Detention (GoD) along with the other documents i.e. after the expiry of around 7 days.
10. Learned Counsel for the petitioner submits that there is an unexplained and immense delay of about 8 months in passing of the detention order. The prosecution in respect of the alleged recovery of red sanders – which took place on 28.09.2013, was lodged on 28.11.2013 – meaning thereby, that the investigation was complete, while the detention order was passed only on 25.07.2014 and, therefore, on account of the aforesaid delay, the live link between the alleged occurrence – namely the recovery of red sanders, and the object of detention, stood snapped. It is pointed out that the deten
