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2014 Supreme(Del) 2556
High Court of Delhi
S. RAVINDRA BHAT & VIPIN SANGHI, JJ.
Manish Gadodia
Versus
Union of India & Another
W.P. (Crl.) No. 1695 of 2014
Decided On : 04-12-2014
For the Petitioner:Vikram Chaudhri, Senior Advocate with Sanjay Agarwal, Shorab Kirpal, Raktim Gogoi, Wattan Sharma, Advocates.
For the Respondents:R1, Sanjay Jain, ASG along with Sanjeev Narula, CGSC, Ajay Kalia, R2, S.K. Dubey, Rajmangal Kumar, Advocates.
The main legal point established in the judgment is the requirement for strict compliance with procedural safeguards in preventive detention cases, including timely passing, execution, and service of detention orders, as well as the communication of grounds of detention within the prescribed period.
Headnote:
COFEPOSA - Detention Order - Section 3(1) (i) & 3(1) (iii) - Summary of Acts and Sections: The court discussed the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) under Section 3(1) (i) & 3(1) (iii) and highlighted the provisions related to passing and execution of detention orders, service of grounds of detention, and exceptional circumstances for delay in service of documents.
Fact of the Case:
The petitioner sought to quash a detention order passed under COFEPOSA Act against his brother, alleging involvement in illegal storage and export of red sanders. The petitioner challenged the delay in passing and serving the detention order, as well as the delay in providing the grounds of detention and relied upon documents (RUD) to the detenue.
Finding of the Court:
The court found that the detention order suffered from unexplained delay in passing and service, violating Article 22(5) of the Constitution. It also noted the delay in execution of the detention order and service of grounds of detention, which violated Section 3(3) of COFEPOSA Act read with Article 22(5) of the Constitution.
Issues: The issues included the unexplained delay in passing and serving the detention order, as well as the delay in providing the grounds of detention and relied upon documents to the detenue.
Ratio Decidendi: The court held that the detention order was passed and executed with unexplained delay, violating the constitutional and statutory provisions related to preventive detention. It emphasized the importance of timely communication of grounds of detention and the need for exceptional circumstances to justify any delay beyond the prescribed period.
Final Decision: The court allowed the writ petition and quashed the detention order, ordering the petitioner's brother to be set at liberty forthwith.
VIPIN SANGHI, J.
1. 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 detenue
