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IN THE HIGH COURT OF DELHI AT NEW DELHI
SIDDHARTH MRIDUL, ANUP JAIRAM BHAMBHANI, JJ.
Mohd. Nashruddin - Petitioner
Versus
Union of India & Ors. - Respondents
W.P.(CRL) 1924 of 2020
Decided on : 13-08-2021
Constitution of India, 1950 - Article 226 - Conservation of Foreign Exchange And Prevention of Smuggling Activities Act, 1974 - Section 3(1) - Detaining Authority - Writ of habeas corpus - Detention order - Importing and exporting gold jewellery through hand- carry (personal carriage) to UAE - Whether Detaining Authority acted independently and without any bias, whilst rendering impugned order of detention - Whether detenu’s constitutionally secured right of making an effective representation has been jeopardized, by non-supply of legible and complete documents, inspite of detenu’s request in this regard; thereby rendering order of detention illegal and bad - Whether impugned order of detention passed is
bad in law and vitiated on ground of inordinate delay; Whether impugned detention order is vitiatedon ground of non-application of mind - Whether detaining authority has arrived at its subjective satisfaction without properly appreciating and satisfying itself qua the propensity of detenu to continue indulging in prejudicial activities - Whether there has been delay on ] part of Central Government in deciding representation filed by the detenu - Whether detention order stands vitiated owing to reason that the grounds stated therein have been lifted from grounds taken in an entirely different case.
Finding of the Court:
Powers conferred under Section 3(1) of the COFEPOSA have not been complied with independently in the present case. We are also in agreement with the submissions made by learned Senior Counsel in this behalf that, there is nothing in Section 3 of COFEPOSA or in the scheme of the Act, which suggests that the especially empowered officer must act only on receipt of the proposal of some other agency or “Sponsoring Authority”. In fact the expression “Sponsoring Authority” and “Detaining Authority” find no mention in the statute - Detaining Authority should act independently and with an open mind. He should not prejudge the issue even before considering the materials produced before him by the sponsoring authority - It is trite to say that a person detained in pursuance of an order for preventive detention, has a constitutional right to make an effective representation against the same. The authorities are constitutionally charged with the responsibility to ensure that the grounds of detention, including all relevant documents that are considered whilst forming the subjective satisfaction - It is apparent that stand taken by the respondents qua the receipt of overseas evidence from Dubai in November, 2019 was merely window-dressing, used to cover-up the massive delay that transpired from time of issuance of the said Show Cause Notice dated 26.09.2019 and the proposal of detention being issued in January, 2020 and that the same is specious and untenable - Absence of any mention of such overseas evidence in the subject detention order, the same cannot be considered as germane in order to satisfactorily explain delay occasioned in passing of the impugned order of detention - Court while passing said judgment dated 11.09.2020 had proceeded on basis of stand taken by the respondents that gathering of overseas evidence had delayed the issuance of the subject detention order. However, since in post-execution proceedings, respondents have failed to even cite or rely upon purported overseas evidence collected; nor did they place any such evidence before Detaining Authority, respondents have failed to explain away delay on that count - Court can interfere with order of detention on the ground of inordinate and unexplained delay, a fortiori we are of the view that there has been substantial, unexplained delay in passing the impugned order of detention.
Result: Writ petition is disposed of
JUDGMENT :
Siddharth Mridul, J.
(via Video Conferencing)
1. The present petition under Article 226 of the Constitution of India, essentially in the nature of writ of habeas corpus, has been instituted on behalf of Mohammed Nashruddin Khan (hereinafter referred to as the ‘detenu’), praying for quashing of detention order bearing No. PD-12001/03/2020-COFEPOSA dated 21.01.2020 under Section 3(1) of The Conservation of Foreign Exchange And Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as ‘COFEPOSA’), and for a further direction that he be set at liberty forthwith.
FACTS OF THE CASE:-
2. The relevant facts qua the detenu as are necessary for the adjudication of the subject writ petition are briefly encapsulated as follows:
(ii) One Amit Pal Singh (co-detenu), who is an employee of M/s. Its My Name Private Limited (hereinafter referred to as ‘IMNPL’) was entrusted with the work of importing and exporting gold jewellery through handcarry (personal carriage) to UAE; for the purpose of taking part in an exhibition organized by M/s. M.N. Khan Jewellers (FZE), as per the permission by the Gem & Jewellery Export Promotion Council (hereinafter referred to as ‘GJEPC’).
(iii) IMNPL is a government recognized three-star export house, engaged in the business of manufacturing, import and export of gold jewellery and other allied bullion items.
(iv) IMNPL has been duly issued an Import Export Code (IEC) bearing No.0514037342 from the office of the Joint Director, Directorate General of Foreign Trade (hereinafter referred to as ‘DGFT’) and is stated to have earned foreign exchange valuing around US Dollars 150 million for the country.
(v) IMNPL had also obtained Advance Authorization License from the office of DGFT, New Delhi, inter alia permitting import of 1000 kgs of gold bars.
(vi) IMNPL has against the said Advance Authorization License imported 50 kgs of gold bars and completed export obligation of approximately 19 kgs of gold bars vide Export Invoice No.ITS/EXP/04 dated 20.04.2019; with balance export obligation of approximately 31 kgs.
(vii) At this juncture, it is relevant to observe that the stock related to the aforementioned balance export obligation, was resumed by the Directorate of Revenue Intelligence (hereinafter referred to as the ‘DRI’) on 24-25.04.2019, from the factory premises of IMNPL at Pitampura, Delhi.
(viii) IMNPL also purchased gold from the domestic market, duty and GST in relation to which has been duly paid; besides directly importing gold under the Advance Authorization Scheme, as afore-stated.
(ix) IMNPL is stated to have exported domestic gold jewellery under the Exhibition Export Scheme of the Foreign Trade Policy (FTP 2015-20)
(x) At this stage, it is relevant to observe that as per Para 4.46 of FTP, read with Para 4.80 of the Hand Book of Procedure, domestic jewellery can be exported for exhibitions abroad with the approval of Gems & Jewellery Export Promotion Council (hereinafter referred to as ‘GJEPC’), which approval was granted to IMNPL subject to the condition that unsold gold jewellery has to be re-imported back within 60 days from the close of such exhibition, failing which they would become liable to pay import duty on the quantity of the said re-import. Further, as per Customs Notification No.45/17 dated 30.06.2017, the condition for exemption is that, the goods that are re-imported from such exhibition abroad are required to be the same which were exported.
(xi) IMNPL had, with the approval of GJEPC, exported gold jewellery manufactured from the domestic stock of gold for overseas exhibition. It is, therefore, the detenu’s case that, evidently there was no duty payment required at the stage of re-import of the subject gold into the country, within the stipulated time period of 60 da
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