Point of Law: Section 7 of the COFEPOSA Act may be beneficially quoted - Powers in relation to absconding persons If the appropriate Government has reason to believe that a person in respect of whom a detention order has been made has absconded or is concealing himself so that the order cannot be executed, that Government may - make a report in writing of the fact to a Metropolitan Magistrate or a Magistrate of the First Class having jurisdiction in the place where the said person ordinarily resides; and thereupon the provisions of Sections 82, 83, 84 and 85 of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply in respect of the said person and his property.

JUDGMENT :

ANOOP KUMAR MENDIRATTA, J.

1. By way of the present writ petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, petitioner Abhishek Gupta, challenges Preventive Detention Order No. PD-12001/07/2019-COFEPOSA dated 26.03.2019 issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) to detain the petitioner in custody for a period of one year. The petitioner also challenges the further order under Section 7(1)(b) of the COFEPOSA Act, 1974 issued on 21.05.2019 directing the petitioner to appear before the Commissioner of Police, NCT of Delhi within seven days of the publication of the order dated 21.05.2019 in the official gazette i.e. on or before 28.05.2019 but published in newspapers only on 11.07.2019.

2. Respondent No. 1 is the Union of India/Central Government which issued the impugned order under Section 7 of the COFEPSA Act, 1974 (hereinafter referred to as ‘the Act’) pursuant to impugned detention order under Section 3(1) of the Act, 1974 issued by the Detaining Authority (i.e. respondent No. 2). The respondent No. 3 is the Directorate of Revenue Intelligence, New Delhi the Sponsoring Authority, on whose proposal the detention order is issued against the petitioner. Respondent No. 4 is the Commissioner of Police, Delhi, before whom the petitioner has been directed to appear as per the impugned order issued under Section 7(1)(b) of the Act.

3. In sum and substance, order dated 21.05.2019, which directed the petitioner to appear before the Commissioner of Police, Govt. of NCT of Delhi within seven days of the publication of the said order, reflects that petitioner was required to be detained and kept in Tihar Jail, New Delhi with a view to preventing him from smuggling of goods, abetting the smuggling of goods and engaging in transporting or concealing or keeping smuggled goods in future as per Order No. PD-12001/07/2019-COFEPOSA dated 26.03.2019.

4. It is pertinent to note that the impugned Preventive Detention Order is yet to be served on the petitioner. Further, it was observed by this Court vide order dated 22.07.2019 that despite the detention order, which has been rendered on 26.03.2019, the same was not executed upon the petitioner on behalf of the official respondents, and in these circumstances no coercive action be taken against the petitioner.

5. The principal grounds of challenge to the detention order as canvassed in the petition and in the submissions made by the learned counsel for the petitioner are as follows:

(a) That the impugned orders are in grave derogation of settled tenets of law, equity and justice and also in violation of mandatory procedural safeguards established by law and instructions issued in this regard by the Ministry of Finance.

(b) That the impugned orders have been obtained by respondent No. 3, for ‘punitive’ rather than ‘preventive’ purpose, as an alternative to the ordinary laws of the Land providing for criminal prosecution. Despite claiming in the remand application dated 19.12.2018 that “even conviction can be recorded exclusively on the basis of such statements.” no criminal prosecution has been filed against the petitioner under the ordinary laws of land under Customs Act, 1962. Reliance is also placed on Yumman Ongbi Lembi Leima vs. State of Manipur and Others (supra), Munagala Yadamma vs. State of A.P. and Others, (2012) 2 SCC 386 and Rekha vs. State of Tamil Nadu, (2011) 5 SCC 244.”

(c) That even before the petitioner came out on bail, the Import Export Code of the subject four firms which are alleged to be operated/controlled/used by the petitioner, were placed in Denied Entity List (Black List) vide Orders dated 21.12.2018 and 24.12.2018. Thus, the petitioner was already effectively prevented from acting in any prejudicial manner. The