Point of Law : Preventive detention - Any goods cleared for exportation which are not loaded for exportation on account of any wilful act, negligence or default of exporter; his agent or employee, or which after having been loaded for exportation are unloaded without the permission of proper officer.

JUDGMENT :

ANUP JAIRAM BHAMBHANI, J.

By way of the present petition filed under Articles 226 and 227 of the Constitution of India and section 482 of the Code of Criminal Procedure, 1973, the petitioner Naveen Kasera alias Naveen Agarwal, challenges order dated 15.01.2021 bearing F.No.: PD-12001/03/2021–COFEPOSA (‘detention order’) made under section 3(1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974, (‘COFEPOSA Act’) whereby the petitioner has been put under preventive detention, having been taken into custody on 20.01.2021. It is the petitioner’s case that consequent upon his detention on 20.01.2021, he was taken from his home in Delhi to the Presidency Correctional Home, Alipore, Kolkata on the pretext of questioning him and is being held in detention at the Kolkata Jail ever since.

2. Although the detention order contains a lengthy discussion citing several grounds for preventive detention, in essence and substance, the principal ground for the petitioner's detention is alleged to be that he :

“…. is controlling a syndicate involved in effecting fraudulent exports and imports in order to evade Customs duty and earn undue export benefits including IGST refunds through 33 non-existent and/or dummy firms….”

3. The petitioner is stated to have made a representation dated 08.02.2021 to the Joint Secretary (COFEPOSA), Government of India, Ministry of Finance, Department of Revenue; and another representation dated 25.02.2021 to the Chairman, COFEPOSA Advisory Board and to other officials of the Central Economic Intelligence Bureau and the Directorate of Revenue Intelligence of the Government of India, but to no avail.

4. A hearing before the COFEPOSA Advisory Board is stated to have taken place in Kolkata on 05.03.2021; which however, was adjourned to 24.03.2021. While the writ petition was filed on 13.03.2021, as per the counter affidavit dated 12.04.2021 filed by the respondents, the Advisory Board has rendered a report dated 26.03.2021, in which it has opined that there exist sufficient grounds for the petitioner’s detention; and based on that opinion and other material facts, detention order dated 15.01.2021 has been confirmed by the Ministry vidé its order 08.04.2021.

5. Other things apart, the petitioner is stated to have suffered a severe brain stroke on 31.10.2019 resulting in “hemiplegia right posterior cerebral artery infarct with dystonic spasm left side”, which would commonly be understood as paralysis of the left side of the body, leaving him physically incapacitated.

Petitioner’s Contentions

6. The principal grounds of challenge to the detention order, as canvassed in the petition and in the submissions made by Mr. Neeraj Jain, learned counsel appearing for the petitioner, are the following :

(a) That though the detaining authority has relied upon statements allegedly made by several persons, it is the petitioner’s contention that none of the statements provide any reasonable basis to infer that the petitioner was involved in any prejudicial activity; and there is nothing to show that the detaining authority arrived at any subjective satisfaction to warrant the petitioner’s detention under section 3(1) of the COFEPOSA Act;

(b) That the only transaction disclosed in the proceedings against the petitioner is the one comprised in shipping bill dated 11.12.2018 issued by one M.G. Enterprises, whereby the petitioner is alleged to have attempted to export goods ‘on-paper’ without actually exporting anything, with the intent of illegally availing duty drawback; and there is no other cogent material to show any prejudicial activity during the period after 11.12.2018 until 15.01.2021, that is the date on which the detention order came to be passed;

(c) That even in relation to the transaction comprised in shipping bill dated 11.12.2018, no proceedings have been initiated against the petitioner; not even a show cause notice has been issued; and it is the petitioner’s contention that he has no con