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High Court Of Delhi
ACHLA KAKKAR - Appellant
Versus
ADMINISTRATOR, UNION TERRITORY OF DELHI - Respondent
CRI.W.P. 118 of 1987
Decided On : 05/18/1987
COFEPOSA ACT - S. 3(1) R/W S. 2(F) - DETENTION - PREVENTIVE DETENTION - PUNITIVE DETENTION - MALA FIDE DETENTION - NON-SUPPLY OF DOCUMENTS - VIOLATION OF ART. 22(5) OF THE CONSTITUTION OF INDIA - QUASHING OF DETENTION ORDER.
Fact of the Case:
The petitioner, a managing director of a company engaged in the import and export of garments, was detained under the COFEPOSA Act for alleged irregularities in the import of polyester fabrics and zip fasteners under the DEEC Scheme. The petitioner challenged the detention order on the grounds that it was punitive in nature, mala fide, and violative of Art. 22(5) of the Constitution of India.
Finding of the Court:
The court found that the detention order was punitive and mala fide as the petitioner had no other import/export licenses or Advance Licenses, and the goods in question were already seized. The court also found that the petitioner was not provided with all the documents relied upon by the detaining authority in forming his subjective satisfaction, which violated Art. 22(5) of the Constitution of India.
Issues: 1. Whether the detention order was punitive in nature and mala fide? 2. Whether the petitioner was provided with all the documents relied upon by the detaining authority?
Ratio Decidendi: 1. The object of the law of preventive detention is not punitive, but preventive. In the present case, the petitioner was found to violate the provisions and conditions of the Advance license only once, and there was no averment of his previous involvement or apprehension of his future involvement in such like economic offenses. The detention order was therefore punitive and mala fide. 2. The failure of the detaining authority to provide the petitioner with all the documents relied upon by the detaining authority in forming his subjective satisfaction violated Art. 22(5) of the Constitution of India.
Final Decision: The court quashed the detention order and ordered the release of the petitioner.
(I) the materials in question are required to be imported for the purpose of manufacture of goods for execution of one or more export orders, or (ii) the materials which are for replenishment of materials used in manufacture of goods exported in execution of one or more export orders. The said notification also laid down certain conditions, for claiming exemption.
( 2 ) IN pursuance to this scheme the petitioner secured the requisite Advance licences, and importing 100% polyester fabrics, as well as foreign made zips with the said materials, the petitioner manufactured the garments for export. On 11-6-1986, a shipping bill No. 562 was filed by the company through M/s. Triways (Pvt.) Ltd. for the export of 7300 pieces of 100% polyester garments ladies night dresses/ night-wears with 20 cms. Y. K. K. polyester zips as per invoice No. 1084 dt. 15-5-1986 and advance licence No. 307823/c/xx/91/d/84. The said shipping bill was processed at ICD Pragati Maidan. The export cargo covered under the said shipping bill arrived at CFS Patparganj on 12-6-1986.
( 3 ) ACTING on a specific information that the Company, would be exporting a consignment of ladies night dresses made of cotton with zip fastners of Indian origin in the garb of ladies night dresses made of 100% polyester with zip fasteners of foreign origin, imported by the company under the DEEC Scheme, for the manufacture and export of the same under the Customs bond, the staff of ICD Pragati Maidan and CFS was alerted and a secret watch was kept on the filing of shipping bill and arrival of cargo for export. Immediately on the arrival of the consignment at Patparganj, the Asstt. Collector, I. C. D. along with Asstt. Collector, Customs and other staff visited the C. F. S. Patparganj, Delhi on 12-6-86. The consignments covered by the abovesaid bill were subjected to examination in the presence of two independent witnesses. It revealed that the ladies night dresses apprehended to be made of polyester fabrics, but the zip fastners did not appear to be of foreign origin. During examination Shri Arun Kakkar, Managing Director of the Company was contacted and he came at the site of examination. Shri Arun Kakkar identified the goods and admitted that though ladies garments consignments were made of 100 per cent polyester but the zip fastners used in them were mostly of Indian origin. In his subsequent statement he also admitted that the cargo covered by the abovesaid bills consisted of readymade garments of 100% polyester and 100% cotton fabrics and zip fastners used in them were mixed i. e. of Indian and foreign origin.
( 4 ) SHRI Arun Kakkar on demand could not give satisfactory explanation regarding the misdeclaration of cargo being exported/attempted to be exported and as such all the goods under the above bills were seized u/s. 110 of the Customs Act, 1962 against proper panchnama on the reasonable belief that the same were liable to confiscation under the Act.
( 5 ) ON the basis of the disclosures made by Shri Arun Kakkar, surveillance was mounted at his residence and factory premises. The premises were searched but nothing incriminating was recovered. During the course of the investigation, Shri Arun Kakkar and Arun Kumar Singhania were arrested, on 14-6-86 for the alleged contravention of S. 135 of the Customs Act. They were produced before the Duty Magistrate on 15-6-86. In the course of time, the detenu and his co-accused were released on bail. In the
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