This HC dismisses a plea seeking quashing of detention of a COFEPOSA accused who falsely declared the description and value of goods for export [Read Order]

A Karnataka High Court Bench comprising Justice Alok Adhare and Justice Anant Ramanath Hegde in the matter of Asses Punjee Kaur Kochhar v. Union of India had dismissed a plea seeking quashing of a detention order of a person resulting from falsely declaring the description and value of goods for export to fraudulently claim duty drawback and IGST refund benefits. 

Background

Petitioner is the sister of  Amanpuneet Singh Kohli, the detenu who sought to quash of the order of detention dated 23.02.2021 passed under the provisions of The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

Facts leading to the filing of this petition briefly stated are that the detenu claims himself to be an exporter of 'Indian Hand Knotted Silk Carpets'. The officers of Directorate of Revenue Intelligence, Bengaluru gathered specific intelligence that detenue along with others was misdeclaring the description and value of the goods in the shipping bills filed by them for the export of said goods for fraudulently claiming undue duty drawback and IGST refund benefits. Thereafter, several searches were conducted. On 23.02.2021, an order of detention was passed against the detenue under Section 3(1) of the Act with a view to preventing him from smuggling goods, abetting the smuggling of goods and dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods. The said order of detention was served on the detenue on 03.07.2021. The grounds of detention along with the gist of documents and copies of statements were supplied to the detenue. 

Being aggrieved by the order of detention, the detenue submitted a representation before the Advisory Board which submitted its report dated 09.08.2021 in which it was opined that reasons recorded by the detaining authority are sound and proper. During the pendency of this petition, the Union of India by an order dated 07.09.2021 confirmed the order of detention.

Submissions Made

​​​​​​​Learned counsel for the petitioner while inviting the attention of this court to grounds of detention as well as the order of detention pointed out that detaining authority in the order has used disjunctive word 'or' instead of the conjunctive word 'and', therefore, it is evident that the detaining authority itself was not sure or conscious of the fact under which category the detenue has to be detained. Therefore, it is contended that the order of detention suffers from non-application of mind. It is also urged that the detenue has not been allowed to be represented by an Advocate before the Advisory Board and therefore, the order of detention is vitiated in law. In support of aforesaid submissions, it relied on a decision of the Supreme Court in AK Roy v. Union of India and Ors., State of Maharastra and Ors. v.  Zubair Haji​​​​​​.

It was also urged that some of the documents, which were in Kannada and Marathi language, which the detenue did not understand and which were relied upon by the detaining authority in passing the order of detention, were not supplied to him. In this regard, reference has been made to decisions of the Supreme Court.

​​​​​​​On the other hand, learned counsel for the respondent submitted that an order of detention dated  23.02.2021 could not be served on the detenue as he was absconding. After passing the order of detention, steps were taken to apprehend the detenue from March 2021 onwards and steps were taken to publish the Notification under Section 7 of the Act. It is submitted that the detenue was arrested on 11.06.2021 and therefore, there is no delay in serving the order of detention on the detenue. It is further submitted that since, the respondents were also not represented before the Advisory Board through an Advocate, therefore, the detenue also could not seek representation through an  Advocate. It is further submitted that in view of the bar contained in Section 8(e) of the Act, the detenue is not entitled to representation through an Advocate. 

​​​​​​​It was also urged that the English translation of the documents on which reliance was placed is available and no prejudice has been caused to the detenue to submit an effective representation. It is also submitted that a list of the documents were made available to the detenue. It is also argued that subjective satisfaction has been recorded by the detaining authority and in case, the detenue is released, he has the propensity and potentiality to engage in the offences again. 

Order of the Court

Court after taking into consideration the rival submissions made by the learned counsel for the parties and notes that Learned counsel for the respondents had produced the record of the proceeding before the Advisory Board in a sealed cover. The Court has pursued the same. Section 8(e) of the Act mandates that a detenue shall not be entitled to appear through any legal practitioner in a proceeding before the Advisory Board. The validity of an analogous provision namely Section 9 of the National Security Act, which provided that detenue under the aforesaid Act has no right of representation by a legal practitioner, was upheld by the Supreme Court in A.K.ROY SUPRA and it was held that if a legal practitioner appears before the Advisory Board for the detaining authority, the then similar facility has to be provided to the detenue.

It was held in a case that detenue is entitled to make a request before the Board for being represented by a legal practitioner and the Board is bound to consider the same on merits by applying its mind. In CHOIT NANAK RAM HARCHANDANI SUPRA, the Supreme Court held that detenue was entitled to be represented through a legal advisor as he had made such a prayer before the Advisory Board. Therefore, in the facts of the case, it was held that detenue was not given an opportunity of fair hearing. 

The court said that,

“In the instant case, from perusal of the record of the proceeding before the Advisory Board. The Advisory Board by an order dated 02.08.2021 took note of the decision of the Supreme Court in A.K.ROY SUPRA and held that if the detaining authority takes the aid of a legal practitioner or a legal advisor before the Advisory Board, the detenue must be allowed the facility of being represented through a legal practitioner before the Board. The Board rejected the request to be represented through a legal advisor on the ground that detaining authority is also not represented by a legal practitioner. However, the detenue was permitted to take assistance from any person who is not a legal practitioner. Thereafter, on 03.08.2021 the detenue appeared and was heard. Therefore, in the facts of the case, the order of detention is not vitiated on account of denial of the opportunity to the detenue to be represented through a legal practitioner.”

With respect to the delay in the order of detention, the Court said that so far as the issue pertaining to delay in serving the order of detention on the detenue was concerned, it was pertinent to note that the order of detention was passed on 23.02.2021. The detenue was absconding in order to avoid the execution of the order of detention. Thereafter, efforts were made and a status report dated 25.03.2021 was received by the respondents from the police authorities. A request was also made on 01.04.2021 to the sponsoring authority was also requested on 01.04.2021 to keep coordination with the police authorities and to furnish a status report with regard to efforts made to trace out the detenue. The requisite report was received on 19.04.2021 and action under Section 7(1)(b) of the Act was initiated on 24.02.2021 and order under Section 7(1)(b) was issued and was published in the gazette on 12.05.2021. 

Thereafter, steps were taken to arrest and eventually the detenue was arrested on 11.06.2021 while he was traveling from Mumbai to Delhi. Thereafter, the order of detention was served on 03.07.2021. Therefore, in the facts of the case there was no delay in serving the order of detention, as the same has been explained. 

As far as grievance of the detenue that non supply of translated documents of Kannada and Marathi language was concerned, the said documents were Annexures to the mahazar dated 02.12.2020 which was been recorded in English and the context of the rent agreement, which was in Marathi Language has been spelt out in the mahazar. The documents written in Kannada language were written at the branch address of M/s Sun Vista Trading. The address of the aforesaid firm has been found to be fake during the course of investigation. 

The documents were Annexures to the mahazar which has been recorded in the English Language. The detenue has submitted a representation which runs into 27 pages. Therefore, non-supply of the aforesaid documents, the gist of which was already provided to the detenue did not result in vitiating the order of detention. 

 The order of detention as well as the grounds of detention had been issued by the detaining authority after recording subjective satisfaction which had been elaborated in grounds of detention. Therefore, the order of detention does not suffer from the vice of non-application of mind. 

In the end Court in its order recorded  that,

“Despite the fact that an active investigation is going on against them, Shri Gurmeet Singh Kohil and Shri. Amanpuneet Singh Kohli i.e. you not only abstained themselves from appearing in response to the several summons issued to them, but also conducted another alleged offence that was detected by DGGI, Mumbai, by the way of effecting exports from M/s Murugan Enterprises having registered address as Garage No.1, Homeo House, 15th Road, Plot No.F/14, Khar-West, Next to Jain Mandir, Mumbai - 400052, the IEC address of M/s Terrain Overseas India. M/s Murugan Enterprises have affected these exports in August, 2020, having FOB Value of Rs.15.2 Crores approx. involving Drawback claims of Rs.82.28 Lakhs from Mumbai Nhava Sheva Port. The said act represents the fact that Shri. Gurmeet Singh Kohli and Shri Amanpuneet Singh Kohli i.e., you are habitual offenders. Thus, the detenue has the propensity and potentiality to engage in the offences and despite service of summons has indulged in offences. For the aforementioned reasons, we do not find any ground to interfere with the order of detention. In a result, the petition fails and is hereby dismissed”

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