Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2020 Supreme(Del) 789

IN THE HIGH COURT OF DELHI AT NEW DELHI
Vipin Sanghi, Rajnish Bhatnagar, JJ.
Mohd Nashruddin Khan - Appellant
Versus
Union Of India & Ors. - Respondent
Writ Petition (Criminal) No. 786 of 2020, 1009 of 2020, 1019 of 2020; Criminal Miscellaneous Application No. 5862 of 2020, 8726 of 2020, 8743 of 2020
Decided On : 11-09-2020

Advocates Appeared:
Vikram Chaudhri, Advocate, Harshit Sethi, Advocate, M.B. Rajwade, Advocate, Amit Mahajan, Advocate, Dhruv Pande, Advocate, Ravi Prakash, Advocate, Farmaan Ali, Advocate, Aman Malik, Advocate, Mohammad Shahan Ulla, Advocate

A person who is evading the law cannot invoke the extraordinary discretionary jurisdiction of the High Court to quash a Detention Order at the pre-execution stage.

Headnote:
The Court held that the petitioners were not entitled to maintain the petitions in view of their conduct of abscondence and in view of the decision of the Supreme Court in Subhash Popatlal Dave2 (supra), and even otherwise, the Court did not find any merit in any of the grounds taken by the petitioners to assail the Detention Orders issued in respect of each of them under Section 3 of the COFEPOSA Act at the pre-execution/ detention stage.
Fact of the Case:

The petitioners were detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). They challenged the Detention Orders at the pre-execution stage on various grounds, including mala fides, inordinate delay in passing the Detention Orders, non-application of mind to relevant documents and facts, and non-compliance with the provisions of Section 7 of the COFEPOSA Act.
Finding of the Court:

The Court found that the petitioners were not entitled to maintain the petitions in view of their conduct of abscondence and in view of the decision of the Supreme Court in Subhash Popatlal Dave2 (supra). The Court also found that there was no merit in any of the grounds taken by the petitioners to assail the Detention Orders issued in respect of each of them under Section 3 of the COFEPOSA Act at the pre-execution/ detention stage.
Issues: 1. Whether the petitioners were entitled to maintain the petitions in view of their conduct of abscondence and in view of the decision of the Supreme Court in Subhash Popatlal Dave2 (supra)? 2. Whether there was any merit in any of the grounds taken by the petitioners to assail the Detention Orders issued in respect of each of them under Section 3 of the COFEPOSA Act at the pre-execution/ detention stage?
Ratio Decidendi: The Court held that the petitioners were not entitled to maintain the petitions in view of their conduct of abscondence and in view of the decision of the Supreme Court in Subhash Popatlal Dave2 (supra). The Court also found that there was no merit in any of the grounds taken by the petitioners to assail the Detention Orders issued in respect of each of them under Section 3 of the COFEPOSA Act at the pre-execution/ detention stage.
Final Decision: The Court dismissed the petitions leaving the parties to bear their respective costs.

JUDGMENT

Vipin Sanghi, J. - The above mentioned petitioners have preferred their respective writ petitions to seek similar reliefs. The underlying facts in these three cases are also similar, and stem out of - more or less, the same transaction. Learned counsel for the petitioner in each of these three cases is the same, and so is the counsel for the respondents. Learned counsels have advanced common arguments in all these three petitions, apart from pointing out certain specific features of each of these cases. Since the issues raised in all the three petitions are the same, we proceed to decide these petitions by this common judgment.

2. The reliefs sought by each of the petitioners is to seek quashing of the respective Detention Orders issued by respondent No.2 against each of them dated 21.01.2020 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act), and all consequential proceedings arising therefrom. The petitioners also assail the respective notifications issued by respondent No.2 in respect of each of them under Section 7(1)(b) of the COFEPOSA Act dated 17.03.2020 [in the case of the petitioner Mohd Nashruddin Khan(MNK)], dated 08.06.2020 (in the case of Gopal Gupta), and dated 17.03.2020 [in the case of Amit Pal Singh (APS)]. The petitioners have challenged the aforesaid Detention Orders at the pre-execution stage.

3. The submission of Mr. Vikram Chaudhri, Sr. Advocate appearing for the petitioners is that a writ petition challenging the Detention Order - at the pre-execution stage, is maintainable, as held by the Supreme Court in Additional Secretary to Government of India and Others Vs. Smt. Alka Subhash Gadia and Anr, (1992) Supp1 SCC 496 . His submission is that each of them have made out a case for interference with the Detention Order at this stage, on the grounds set out in Alka Subhash Gadia (supra) which, in any event, are not exhaustive.

4. The case of the petitioners is that the petitioner Mohd Nashruddin Khan (MNK) is a non-resident Indian Citizen. He is engaged in the business of trading in gold jewellery in the United Arab Emirates (UAE). The petitioner carries on its aforesaid business in the name of style of M/s MN Khan Jewellers FZE. On 14.02.2019, the petitioner extended an invitation to M/s. Its My Name Pvt. Ltd. (IMNPL) for participation in a jewellery exhibition at United Arab Emirates (UAE) from 18.02.2019 to 30.03.2019.

5. Amit Pal Singh (APS), the petitioner in W.P.(CRL) 1019/2020 - an employee of IMNPL, left from New Delhi carrying jewellery with him after satisfying the requirements under the Exhibition Export Scheme of FTP, firstly on 20/21.02.2019, and again on 13/14.03.2020. On 24.04.2019, APS brought back the unsold jewellery. He landed at the IGI Airport and walked to the red channel and he declared the good brought by him. He filed reimport declaration, bills of entry, photographs of re-imported jewellery and the appraisal carried out in respect thereof. Though, he was issued the gate pass, he was detained at the exit gate. APS was issued a notice under Section 102 of the Customs Act alleging invasion of customs duty on the same day i.e. 24.04.2019.

6. On the same day i.e. 24.04.2019, the petitioner MNK arrived at IGI Airport separately. The petitioner MNK was also detained, even though nothing was found on him. Between 24th and 25th April, 2019 seizure of gold was affected at the factory premises of IMNPL. Gopal Gupta - the petitioner in W.P.(CRL) 1009/2020, who is a Chartered Accountant, was also arrested. A self-incriminating statement of the petitioner MNK was recorded on 25.04.2019 under coercion. The said petitioner disclosed his parental address at District Mau, UP, and also disclosed about his strained relations with his parents. The petitioners state that APS and Gopal Gupta were arrested on 26.04.2019 and they were produced before the Duty MM on the same day. The petitioner MNK initially retracted his stateme

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2020 Supreme(Del) 789

A person who is evading the law cannot invoke the extraordinary discretionary jurisdiction of the High Court to quash a Detention Order at the pre-execution stage.

Cases Referred (10)