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IN THE HIGH COURT OF DELHI
Vipin Sanghi, Rajnish Bhatnagar, JJ.
Mohd. Nashruddin Khan - Appellant
Versus
Union of India - Respondent
W.P.(Crl.) 786 of 2020 & Crl.M.A. 5862 of 2020, W.P.(Crl.) 1009 of 2020 & Crl.M.A. 8726 of 2020 and W.P.(Crl.) 1019 of 2020 & Crl.M.A. 8743 of 2020
Decided On : 11-09-2020
A preventive detention order can be quashed at the pre-execution stage only under exceptional circumstances; mere delay does not invalidate the order if justified, and abscondence justifies issuing a notification under the COFEPOSA Act.
Headnote:(A) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - Sections 3(1) and 7(1)(b) - Petitioners sought quashing of Detention Orders at pre-execution stage for alleged mala fides, delay, and lack of material before the Detaining Authority - Court held that a Detention Order can be challenged at pre-execution stage if exceptional circumstances exist, but mere delay is not fatal if explained - Petitioners were found to have absconded, justifying the issuance of notification under Section 7(1)(b). (Paras 60, 89)
(B) Preventive Detention - Characteristics - Preventive detention is based on suspicion to prevent prejudicial activities, distinct from punitive detention; a determination is based on past conduct to foresee future actions. (Paras 19, 32)
Facts of the case:
Petitioners were detained based on allegations of smuggling, and subsequent failure to produce themselves for execution of Detention Orders led to claims of abscondence; they contested the legality of their detention amid procedural delays.
Findings of Court:
The court upheld the Detention Orders finding no merit in allegations of mala fides, delay or non-consideration of documents, emphasizing the necessity of the Detaining Authority's satisfaction based on available material.
Issues: The key issues included whether the Detention Orders were invalid due to delay, absence of documents, or alleged abscondence by the petitioners.
Ratio Decidendi: The court ruled that abscondence, as established by reports and lack of cooperation from petitioners, justified the issuing of notifications under Section 7; assertions of mala fides and improper detention were unsupported.
Result: Writ petitions dismissed.
| Table of Content |
|---|
| 1. petitioners seek quashing of detention orders. (Para 1 , 2) |
| 2. arguments presented against detention orders. (Para 15 , 16 , 17 , 18) |
| 3. court's examination of the detention orders. (Para 19 , 22 , 23) |
| 4. criteria for quashing detention orders recognized. (Para 60 , 64 , 66) |
| 5. petitions dismissed on grounds of abscondence. (Para 90) |
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) Supp 1 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 re-import 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 recor
