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DELHI HIGH COURT
G.S. Sistani, Sangita Dhingra Sehgal, JJ.
Sumita Dey Bhattacharya - Appellant
Versus
Union of India & Anr. - Resopndent
W.P. (Crl.) 2118/2014 & Crl. M.A. 16333 of 2004
Decided On : 22-01-2015
COFEPOSA - DETENTION ORDER - VALIDITY - NON-SUPPLY OF DOCUMENTS IN LANGUAGE KNOWN TO DETENUE - DELAY IN EXECUTION OF DETENTION ORDER - DELAY IN DISPOSAL OF REPRESENTATION - DELAY IN PASSING DETENTION ORDER - EFFECT.
Fact of the Case:
Petitioner, wife of the detenue, filed a petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, for issuance of a writ or direction in the nature of certiorari for quashing the impugned detention order dated 18.2.2014 passed under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) and the order dated 11.9.2014 confirming the detention order for a period of one year.
Finding of the Court:
1. Non-supply of documents in the language known to the detenue: The Court held that the petitioner was conversant with the English language and had a workable knowledge of it. The Court relied on the fact that the petitioner had sent a retraction in English and had acknowledged the receipt of the detention order in English. The Court also noted that the petitioner had not informed the authorities that he did not know English. 2. Delay in execution of the detention order: The Court held that the delay in executing the detention order was satisfactorily explained by the respondents. The Court noted that the department had taken all necessary steps to serve the petitioner, including issuing a look out circular and publishing the order in the official gazette and local newspaper. 3. Delay in disposal of the representation: The Court held that there was an inordinate delay in deciding the representation of the petitioner. The Court noted that the representation was received by the authorities on 11.8.2014 and was rejected on 2.9.2014, a period of 22 days. The Court held that this delay was not satisfactorily explained by the respondents. 4. Delay in passing the detention order: The Court held that there was an unexplained delay of 8 months in passing the detention order. The Court noted that the proposal for detention was approved on 28.6.2013, but the order was not passed until 18.2.2014. The Court held that this delay was not satisfactorily explained by the respondents.
Issues: 1. Whether the non-supply of documents in the language known to the detenue vitiated the detention order? 2. Whether the delay in executing the detention order was justified? 3. Whether the delay in disposal of the representation was justified? 4. Whether the delay in passing the detention order was justified?
Ratio Decidendi: 1. Non-supply of documents in the language known to the detenue: The Court held that the petitioner was conversant with the English language and had a workable knowledge of it. The Court relied on the fact that the petitioner had sent a retraction in English and had acknowledged the receipt of the detention order in English. The Court also noted that the petitioner had not informed the authorities that he did not know English. 2. Delay in execution of the detention order: The Court held that the delay in executing the detention order was satisfactorily explained by the respondents. The Court noted that the department had taken all necessary steps to serve the petitioner, including issuing a look out circular and publishing the order in the official gazette and local newspaper. 3. Delay in disposal of the representation: The Court held that there was an inordinate delay in deciding the representation of the petitioner. The Court noted that the representation was received by the authorities on 11.8.2014 and was rejected on 2.9.2014, a period of 22 days. The Court held that this delay was not satisfactorily explained by the respondents. 4. Delay in passing the detention order: The Court held that there was an unexplained delay of 8 months in passing the detention order. The Court noted that the proposal for detention was approved on 28.6.2013, but the order was not passed until 18.2.2014. The Court held that this delay was not satisfactorily explained by the respondents.
Final Decision: The petition was allowed and the detention order was quashed.
G.S. Sistani, J.
1. Pleadings are complete. With the consent of counsel for the parties, the present petition is taken up for final hearing and disposal.
2. Petitioner, wife of the detenue, has filed the present petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, for issuance of a writ or direction in the nature of certiorari for quashing the impugned detention order dated 18.2.2014 passed under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as “COFEPOSA”) and the order dated 11.9.2014 confirming the detention order for a period of one year. For the sake of convenience, the detenue is hereafter referred to as “the petitioner.”
3. The facts of the case, as per the writ petition inter alia are as under:
1. “The Directorate of Revenue Intelligence Head Quarter New Delhi initiated investigation on the basis of intelligence that one company M/s. Gaurav Pharma Ltd. Sampla Haryana (owned by Mr. K.K. Arora), a 100% Export Oriented Unit had been diverting duty free imported pharmaceutical goods to domestic tariff area without payment of duty.
2. During the period 23.3.2013 to 26.3.2013 on the basis of allegation of diversion of duty free goods into local market, DRI raided various transporter’s place as well as in the premises of M/s. Gaurav Pharma Ltd and it’s consignees when goods were seized from their premises. Goods after testing from experts found to be “ascorbic acid (vitamin – C)” in place of declared Goods “Calcium Phosphate” “Lime Powder” “Playex tablet”. Hence it was alleged that imported inputs were diverted in Domestic Tariff Area without manufacturing and physical exports. Investigations were carried out by the DRI wherein statements of various persons were recorded.
3. It has been alleged that K.K. Arora along with Vitaysh Koser of M/s. Billion Incorporation and the detenue hatched a conspiracy to divert duty free imported goods in the domestic tariff area and forged the bills of export /shipping bills, export certificate, ARE-1 and invoices to show proof of export of goods through merchant exporter M/s Billions Incorporation, New Delhi to Bangladesh via LCS Ghojadanga, West Bengal.
4. That export of bulk drugs has shown in the name of M/s. Billion Incorporation through land Customs station Ghojadanga. However, the transporter’s statements brought out the fact that they never transported the subject goods claimed to have been exported and in fact, the movement of the transporters vehicle with these goods consignments was denied. That under this modus operandi the CHA who has been named by them was M/s United Shipping Agency Kolkata
5. That the name of the detenue has been given by Vitash Koser Proprietor of M/s Billions Incorporation in his statement dated 23/24.3.2013 wherein he inter alia stated that all his export shipments were handled by Sh. Malay Bhattacharyya @ prabir in the name of M/s United Shipping Agency based in Kolkata.
6. That on 25.3.2013 statement of Ashok Mitra partner and G card holder of CHA United Shipping Agency based in Kolkata was recorded under section 108 of the Customs Act, 1962 who declined to have worked in the transaction since their licence was suspended w.e.f. 11.2.2012. That on 5.4.2013 M/s Gaurav Pharma made a deposit of Rs. 1 Crore by demand draft allegedly admitting their role towards the said alleged contravention of provisions of Customs Act in export/import. That on 7.4.2013 summons to detenue was given in the hands of Vitayash Koser who assured that detenue shall be present on 10.4.2013 before DRI Delhi.
7. That on 12.4.2013 Detenue’s house was searched by DRI – Kolkata and retrieved one hand written paper and one computer print-out showing invoice No. and date etc. which appeared to be particulars of Bills of Exports/Shipping Bills. On 16.04.2013 summon was issued to Detenue by DRI – Kolkata. Detenue attended on that day. Statement of deten
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