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2017 Supreme(Del) 957
IN THE HIGH COURT OF DELHI AT NEW DELHI
G.S. SISTANI, VINOD GOEL, JJ.
ATIKUR RAHAMAN - Petitioner
Versus
UNION OF INDIA & ANR - Respondents
W.P. (Crl.) 3105 of 2016
Decided on : 21-03-2017
Advocate Appeared:
For the Petitioner: Mr. Pradeep Jain, Mr.Shubhankar Jha, Mr.Tarun Chawla, Mr.Rahul Raheja, Mr.Ashish Bansal and Mr.Vikas Sarin, Advs.
For the Respondent: Mr.Sanjay Jain, ASG with Mr.Ajay Digpaul, CGSC, Ms.Mohita, Ms.Karnika Singh and Mr.Vignaraj Pasayat, Advs.
Delay in execution of detention order
Headnote:
The High Court quashed the detention order passed under Section 3(1)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) against the detenue on the ground of delay in execution of the order.
Fact of the Case:
The detenue was caught carrying 10 kg of gold jewellery seized at the Dabolin Airport, Goa. The incident involved extensive planning, expertise in flight timings and coordination. The detenue had a vital role to play in the smuggling of goods into India. He showed expertise in flight timings to enable booking of flight tickets in the nick of time. He thereafter ensured the presence of the carrier at the transit point and personally handed over the packet to her. The detention order was passed on 20.05.2016, while the same was not executed until the surrender of the detenue on 10.08.2016.
Finding of the Court:
The High Court held that the delay in the execution of the detention order was not satisfactorily explained by the State snapping the live link between the order and the subjective satisfaction arrived at. Thus, the detention order was quashed.
Issues: Whether the detention order was validly passed and executed.
Ratio Decidendi: 1. The High Court held that the detention order was validly passed as the detenue had a vital role to play in the smuggling of goods into India. He showed expertise in flight timings to enable booking of flight tickets in the nick of time. He thereafter ensured the presence of the carrier at the transit point and personally handed over the packet to her. The propensity and potentiality of future activities was manifest as the incident was clearly an organized act perpetrated with great expertise and preparation. 2. The High Court held that the delay in the execution of the detention order was not satisfactorily explained by the State snapping the live link between the order and the subjective satisfaction arrived at. Thus, the detention order was quashed.
Final Decision: The High Court quashed the detention order passed under Section 3(1)(ii) of the COFEPOSA Act against the detenue on the ground of delay in execution of the order.
1. Pleadings in this matter are complete. With the consent of the parties, the writ petition is set down for final hearing and disposal.
2. Present petition has been instituted under Article 226 of the Constitution of India read with Section 482 Cr.P.C. for issuance of a writ, order or direction in the nature of Certiorari for quashing the detention order bearing F. No.673/03/2016-CUS.VIII dated 20.05.2016 passed under Section 3(1)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as “COFEPOSA Act”) against Ibrahim Ateef Damda Fakki (“detenue”). The present petition has been filed by the brother of the detenue.
3. The necessary facts to be noticed for disposal of the writ petition and as stated by the petitioner in the petition are that the detenue is a resident of Bhatkal, Karnataka. He has completed his B.Com. in the year 2003. Besides his old parents, he has four brothers and two sisters. Initially, the detenue was working as a Sales Executive in Bangalore, however, in the year 2008 he shifted to Dubai in search of a job and better future prospects. At the relevant time, the detenue was working with M/s Richmand General Trading LLC. Simultaneously, the detenue started a small time business wherein he used to trade in electronics and garments. Detenue used to purchase garments from Dubai and used to sell the same to shopkeepers in Bahrain and sometimes customers directly. In order to earn extra money, detenue also used to book online air tickets by charging some commission. Detenue also used to book air tickets of one Ajmal Sheikh in Dubai.
4. On 02.11.2015, detenue was approached by Ajmal Sheikh for booking of an air ticket for one Smt.Shehnaz Laiq Ahmed Ansari. Accordingly, the detenue booked the air ticket in the name of Ms.Ansari. On 02.11.2015 itself the detenue was scheduled to go to Bahrain. He was approached by a person named Abdul who was known to the detenue. He was requested by Abdul to handover gold jewellery weighing about 10 kg. to one Smt.Shehnaz Laiq Ahmed Ansari at the Transit Lounge of Doha International Airport. For monetary benefit, he accepted the request, without ascertaining the contents of the packet. He travelled on Qatar Airways Flight from Doha to Bahrain. The detenue handed over the packet to the said lady.
5. Around December, 2015 the detenue had come to India for the purpose of his marriage which was fixed for 21.12.2015. Around 10.12.2015 detenue received summons from DRI, Goa Regional Unit for his appearance on 18.12.2015 before the DRI officers at Goa. As a bona fide person and in compliance with the summons, he duly appeared before the DRI officers on 18.12.2015. He learnt that the DRI was investigating a case of seizure of 10 kg. of smuggled gold jewellery effected vide Panchnama dated 03.11.2015 from the Qatar Airways Flight landed at Dabolim Airport, Goa.
6. Detenue claims that he cooperated in the investigation and recorded his statement under Section 108 of the Customs Act, giving the entire facts. He stated that he was not involved in any smuggling activities and he has merely handed over a parcel to a person. During the investigation, he was confronted with Smt.Shehnaz Laiq Ahmed Ansari. The detenue admitted that she was the lady to whom he had supplied the said bag. Statement of Smt.Shehnaz was also recorded wherein she also identified the detenue as the person who gave her the gold jewellery at Doha Airport. At the time of recording of his statement, detenue was asked to submit his passport which was handed over to DRI Officers on 18.12.2015. The detenue and the said woman were arrested by the DRI under Section 135 of the Customs Act, 1962. The detenue was released on bail on 19.12.2015 by the CJM, Goa on certain terms and conditions which the detenue claims to have complied with, including that he wou
