Delhi High Court
Pankaj Kumar Sharma vs Union Of India & Ors. on 5 August, 2019
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 3008/2018 & CRL.M.As. 33406/2018, 2262/2019 &
2271/2019
PANKAJ KUMAR SHARMA ..... Petitioner
Through: Mr. Varun Singh, Advocate with
Mr. Lenin Raj K., Advocate.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Rajesh Gogna, CGSC with
Mr. Kamaldeep and
Mr. P. Updendra Sai, Advocates for
respondent No.1 and 2 with
Mr. Sanjay Kumar, Superintendent,
Customs Patna.
Reserved on : 16th July, 2019
% Date of Decision: 05th August, 2019
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
JUDGMENT
MANMOHAN, J:
1. Present petition has been filed by Pankaj Kumar Sharma
challenging the legality and validity of the Preventive Detention order
dated 9th April 2018 passed against him by Respondent No. 2 under
Section 3(1) of Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act 1974 (hereinafter referred to as COFEPOSA)
and all other proceedings emanating therefrom. The petitioner prays for
issuance of a writ in the nature of certiorari for setting aside the said order.
ARGUMENTS ON BEHALF OF LEARNED COUNSEL FOR THE
PETITIONER
2. Mr. Varun Singh, learned counsel for the petitioner stated that the
impugned order is based on extraneous reasons inasmuch as the impugned
order had been passed against the petitioner because he had raised his
voice against a corrupt custom official in Patna, namely, Shri Sunil Kumar
Singh who had been running a racket in Muzaffarpur to extort large
amounts of money from the traders with threats that if the amount was not
paid, the traders would be implicated in false cases. He pointed out that
the petitioner had even filed a criminal case No. 43 of 2017 dated 12th
January 2017 before the Additional Chief Judicial Magistrate (West)
Muzaffarpur in this regard.
3. He submitted that the Supreme Court in Additional Secretary to the
Government of India & Ors. vs. Smt. Alka Subhash Gadia &Anr., 1992
Supp(1) SCC 496 has held that a Preventive Detention order can be
interfered with at the pre-execution stage if it is based on extraneous
reasons. The relevant portion of the same is reproduced hereinbelow -
―30. ...... Thirdly, and this is more important, it is not correct to
say that the courts have no power to entertain grievances against
any detention order prior to its execution. The courts have the
necessary power and they have used it in proper cases as has
been pointed out above, although such cases have been few and
the grounds on which the courts have interfered with them at the
pre-execution stage are necessarily very limited in scope and
number, viz., where the courts are prima facie satisfied (i) that
the impugned order is not passed under the Act under which it is
purported to have been passed, (ii) that it is sought to be
executed against a wrong person, (iii) that it is passed for a
wrong purpose, (iv) that it is passed on vague, extraneous and
irrelevant grounds or (v) that the authority which passed it had
no authority to do so. The refusal by the courts to use their
extraordinary powers of judicial review to interfere with the
detention orders prior to their execution on any other ground
does not amount to the abandonment of the said power or to their
denial to the proposed detenu, but prevents their abuse and the
perversion of the law in question.‖
4. Learned counsel for the petitioner stated that there was no live link
as the impugned detention order issued in April 2018 was based on
notices and cases of 2012-2015. In support of his contention, he referred
to the cases mentioned in the counter affidavit dated 25th October 2018,
which are reproduced hereinbelow:-
Sl. Case No. Date of issuance Whether
No. of Summons appeared or not
1 18/12-13 dated 30.12.2012 Not appeared
28.12.12
2 05/14-15 dated 18.07.2014 Not appeared.
17.07.14
21.08.2014 Personally served
but not appeared.
22.09.2014 Not appeared.
3 01/15-16 dated 07.05.2015 Personally served
15.04.15 but not appeared.
29.05.2015 Not appeared.
10.07.2015 Not appeared.
4 04/2015-16 08.09.2015 Not appeared.
dated 20.07.15
22.09.2015 Not appeared.
5. He further stated that the Petitioner had joined the investigation and
secured favourable orders in all the aforesaid cases. He emphasised that it
was incorrect to allege that petitioner had failed to take action against
summons/notices issued between the years 2012-2015.
6. Learned counsel for the petitioner stated that the fact that
Respondent Nos.1 & 2 were unaware that the petitioner had joined
investigation in all the pending cases and had secured favourable orders
against the confiscation orders proved that the detaining authority had not
examined the relevant material before passing the impugned order. He
submitted that it is settled law that in the event the Detaining Authority
failed to consider the relevant material, the order would stand vitiated. In
support of his submission, he relied upon Deepak Bajaj vs. State of
Maharashtra & Anr., (2008) 16 SCC 14 wherein the Supreme Court has
held as under:-
―15. If a person against whom a preventive detention order has
been passed comes to court at the pre-execution stage and
satisfies the court that the detention order is clearly illegal,
there is no reason why the court should stay its hands and
compel the petitioner to go to jail even though he is bound to be
released subsequently (since the detention order was illegal).
As already mentioned above, the liberty of a person is a
precious fundamental right under Article 21 of the Constitution
and should not be lightly transgressed. Hence, in our
opinion, Alka Subhash Gadia case [1992 Supp (1) SCC 496 :
1992 SCC (Cri) 301] cannot be construed to mean that the five
grounds mentioned therein for quashing the detention order at
the pre-execution stage are exhaustive.‖
7. Learned counsel for the petitioner contended that there had been
considerable delay in execution of the impugned order and on this ground
alone, it was bound to be set aside. In support of his contention, he relied
upon Letter dated 21st February 2007 issued by the Ministry of Finance,
Government of India for "Procedural Safeguards/ Requirements To Be
Observed To Avoid Delay In Execution Of Detention Order". The relevant
portion of the same is reproduced hereinbelow-
―4. Despite these clear instructions, instances have come to
the notice of this Ministry where even though the detenu was
available at his own address, no real effort had been made to
locate the detenu and execute the detention order. The Hon'ble
Supreme Court has held in a number of cases that if the
authorities did not make sincere and honest efforts and take any
urgent or effective steps the service of the detention order on the
detenu, the order of the detention is liable to be set aside.
5. It is generally noticed that the Sponsoring Authorities
who originally move the proposal, somehow develop a lax
attitude after a detention order based on their proposal has
been issued. They tend to harbour a feeling that they have no
further role in the matter and it is entirely for the Detaining
Authority and the Executive Authority to ensure that the
Detention Order is served. This wrong notion needs to be
dispelled forthwith. The Sponsoring Authority must keep in
mind the fact that their role and object is not confined merely to
having a detention order issued but to have a person detained
otherwise the very object of issuing the detention order gets
defeated.
6. All the Sponsoring Authorities, Executive Authorities and
the Detaining Authorities are once again requested that they
must ensure that timely action is taken for execution of the
detention order after it has been issued. Simultaneously, they
should keep detailed records of the efforts made for execution of
the Detention order from time to time, as it would be important
to convince the Advisory Board/Hon'ble High Courts, if need
arises....‖
8. He emphasised that the Respondent Authorities had failed to take
prompt steps for communication of the impugned order in terms of the
abovementioned letter. He further stated that had the Sponsoring
Authority been prompt, it would have directed the Detaining Authority to
forward the impugned order directly to SSP Muzaffarpur and not to DGP
Bihar. He pointed out that although the Respondents had alleged that the
impugned order was executed on 15th May 2018, however, no report to
the said effect had been brought on record.
9. Learned counsel for the petitioner stated that the petitioner had not
been evading service of the impugned order as suggested by the
Respondent Nos.1 & 2 and the Notification passed under Section 7(1) (b)
COFEPOSA was invalid inasmuch as it was passed without taking
effective steps to serve the impugned order on the petitioner. He pointed
out that the address mentioned in the publication and notification under
Section 7(1)(b) COFEPOSA was incorrect. He stated that the petitioner
got to know about the impugned order on 04th September, 2018 only when
a copy of proclamation requiring the appearance of the petitioner was
affixed at his father's residence in Muzaffarpur.
10. He contended that the Petitioner had made a representation by way
of a letter dated 17th September 2018 stating that he was willing to depose
before the respondent authorities. He also contended that the impugned
order should not be used as a tool to make a criminal case against the
petitioner and the case should be investigated according to ordinary
criminal law. He relied upon Subhash Popatlal Dave Vs. Union of India
and Anr., (2014) 1 SCC 280 wherein the Supreme Court has held as
under:-
―99. It will be seen from the provisions of Section 7 that if the
appropriate Government has reason to believe that a person in
respect of whom a detention order has been made, is absconding,
or is concealing himself so that the order cannot be executed, the
Government may take recourse to the provisions of Sections 82,
83, 84 and 85 of the Code of Criminal Procedure (sic in respect
of the said person) and his property, as if the order directing him
that he be detained were a warrant issued by the Magistrate.
Section 7(1)(b) also provides for penal consequences, in the
event directions given thereunder, are not complied with by the
proposed detenu. Accordingly, Section 7 empowers the
Government to take recourse to either the provisions of the Code
of Criminal Procedure relating to absconding persons or pass an
order directing the person concerned to appear before the officer
concerned and on the detenu's failure to do so, to inflict
punishment with imprisonment for a term which could extend to
one year or with fine or both.
100. The provisions of Sections 6 and 7 of the National Security
Act, 1980, are identical to the provisions of Sections 6 and 7 of
the Cofeposa Act, 1974.
101. In my view, the said provisions clearly enumerate the
powers vested in the authorities when a proposed detenu
absconds. That, in my view, is the ordinary law of the land, and
not preventive detention, which is meant to prevent the
commission of offences, and not to punish an individual for
violation of statutory provisions. Accordingly, in my view, the
submissions made on behalf of the Union of India and the State
of Maharashtra, cannot be accepted and absconsion cannot,
therefore, be made a ground for making an order of preventive
detention. Neither in Dropti Devi case [(2012) 7 SCC 499 :
(2012) 3 SCC (Cri) 387] nor in Amrit Lal Manchanda
case [Union of India v. Amrit Lal Manchanda, (2004) 3 SCC 75 :
2004 SCC (Cri) 662] or in M. Ahamedkutty case [(1990) 2 SCC
1 : 1990 SCC (Cri) 258] had the abovementioned provisions
been brought to the notice of the learned Judges who heard the
matters, but had no occasion to consider the same.‖
ARGUMENTS ON BEHALF OF LEARNED COUNSEL FOR
RESPONDENTS
11. Per contra, Mr. Rajesh Gogna, learned standing counsel for the
Respondent Nos. 1 & 2 vehemently denied that the impugned order had
been passed on extraneous reasons. He stated that Mr. Sunil Kumar Singh
had no role to play in the passing of the impugned order as he had been
transferred from his post long ago.
12. Learned counsel for Respondent Nos. 1 & 2 further contended that
the impugned order was based on recent incidents and not on the show
cause notice and orders passed in 2012-15 - as alleged by the petitioner.
In support of his contention, he handed over, in a sealed envelope, the
following documents for Court's consideration:-
a. Impugned Preventive Detention Order
b. Proposal For Detention Submitted By Sponsoring Authority
c. Minutes of Central Screening Committee Meeting
d. Grounds of Detention
e. Index of Relied Upon Documents
f. Notification issued under Section 7(1)(b) COFEPSA
g. Steps taken by the authority to serve the petitioner
13. He further contended that the Department of Customs had
succeeded in a number of cases filed against the petitioner and personal
penalties imposed on the petitioner had been upheld in Appeal. He
pointed out that the petitioner had wrongly stated that he had secured
favourable orders in all the proceedings filed against him. In support of
his contention he relied upon the following cases, wherein the Petitioner's
appeal had been dismissed:-
a. 19/Cus/JC/MUZ/16-17 dated 01.11.2016 - Party appeal
dismissed by Commissioner (Appeal) vide O-In-A No.
163/Pat/Cus/Appeal/2018 dated 30.01.18
b. 23/Cus/JC/Muz/16-17 dated 09.12.2016 - Party appeal
dismissed by Commissioner (Appeal) vide O-In-A
No.144-146/Pat/Cus/Appeal/2018 dated 04.01.18
c. 15/Cus/JC/Muz/2016 dated 26.08.2016 --Party Appeal
dismissed by Commissioner (Appeal) Vide O-in-A No.
53-Pat/Cus/Appeal/2017 dated 03.10.2017 & 123-
25/Pat/Cus/Appeal/2017 dated 14.12.2017
d. 14-Cus/JC/FBG/16-17 dated 26.08.2016 -Party Appeal
dismissed by Commissioner (Appeal) vide O-in-A
No.134-136/Pat/Cus/Appeal/2017 dated 03.10.2017
14. Learned counsel for the Respondent Nos.1 & 2 contended that there
had been no delay in execution of the impugned detention order. He relied
on the Additional affidavit dated 20th February 2019 filed by the
Respondent Nos.1 & 2 wherein the steps taken by the Respondent
authorities to execute the impugned order have been detailed. The relevant
portion of the same is reproduced hereinbelow -
―5. That after the passing of the detention order dated
09.04.2018, the department prepared the necessary records
to be sent to Director General of Police, Bihar as the DGP,
Bihar was the appropriate authority for the purpose of
service of the detention order to the Petitioner.
6. That the sealed envelope containing the order of detention
was served upon the DGP, Bihar on 13.04.2018 for the
purpose of taking the necessary steps for the service of the
detention order to the Petitioner.
Copy of the acknowledgement of receipt of one envelope
containing two sealed envelope bearing file No. PD-
12002/03/2018, COFEPOSA addressed to DGP,
Government of Bihar, Patna on 13.04.2018 is annexed
herewith as Annexure-A.
7. That as the necessary steps were to be taken by the
Government of Bihar, Patna, it was informed to the
deponent department that the above mentioned sealed
envelope/packet containing the detention order was
forwarded by Superintendent of Police (D) to SSP,
Muzaffarpur for service vide letter dated 27.04.2018.
Copy of the letter dated 27.04.2018 forwarding the
detention order by SP (D) to SSP, Muzaffarpur is annexed
as Annexure-B.
8 That the police authorities of Town Police Station,
Muzaffarpur, vide letter dated 16.05.2018 informed the SSP,
Muzaffarpur about the steps taken by authorities of Town
Police Station for the purpose of service of summons upon
the Petitioner. The letter narrates the steps taken by police
by way of searches, surveillance at the probable hide out of
Petitioner till service of the detention order upon the mother
of the Petitioner on 16.05.2018.
Copy of the letter dated 13.02.2019 detailing the steps taken
by Town Police Station, Muzaffarpur is annexed herewith as
Annexure-C.
9. That vide letter dated 21.05.2018, a report was submitted by
SSP, Mujjafarpur to SP (D), Patna detailing the steps taken
by the concerned authorities for the service of summons.
Copy of the letter dated 21.05.2018 is annexed herewith as
Annexure-D.
10. That vide letter dated 01.06.2018, the CID, Patna informed
the Commissioner of Customs of Patna regarding the
service of the detention order upon the mother of the
Petitioner. The said letter was received by the
Commissioner of Customs of Patna on 07.06.2018.
Copy of the letter dated 01.06.2018 is annexed herewith as
Annexure-E.‖
15. Learned counsel for Respondent Nos. 1 & 2 emphasised that the
Respondent Nos. 1 & 2 had taken all the necessary steps to serve the
impugned order upon the petitioner and that they were dependent upon the
executing authority i.e. Bihar Police for the purpose of service. He stated
that the steps taken between 9th April 2018 i.e. the date of the impugned
order and 16th June 2018 i.e. till the service of the impugned order upon
the petitioner's mother by the executing authority were recorded in the
letter dated 13th February, 2019. The same is reproduced hereinbelow -
―GOVT. OF INDIA
OFFICE OF THE DEPUTY COMMISSIONER
CUTOMS (Prev.) DIVISION, MUZAFFARPUR
nd
2 Floor, Customs Building, Imalichatti, Muazaffarpur
Phone No. 0621-2212966, 2215242, Fax No. 0621-2215150
C. No. VIII(12)25-Cus/MUZ/PS/2018/1034 Dated: 13.02.2019
To,
The Assistant Commissioner (Legal)
Customs (H)
Patna
Sub: W.P.(Crl.) No. 3008 of 2008 titled as Pankaj Kumar,
Sharma, COFEPOSA Absconder Vs. Union of India & Ors.
Before Hon'ble Delhi High Court - reg.
Please refer to your letter C.No.1(10)39-465/Cus/L/2018 dtd.
06.02.2019 on the above subject.
It this connection the chronological events w.e.f. 09.04.2018 to
16.05.2018 as appears from the available records are as under:
1. 09.04.2018 - Detention order issued by the Joint Secretary,
CEIB, New Delhi.
2. 13.04.2018 - Service of sealed envelope of detention was
serviced to Director General of Police, Bihar.
3. 27.04.2018 - Superintendent of Police (D), Crime
Investigation Department, Patna, Bihar forwarded the
sealed envelope to Senior Superintendent of Police,
Muzaffarpur for execution.
4. 15.05.2018 - SSP Muzaffarpur forwarded sealed envelope to
SHO, Sikandarpur, OP vide C. No. 3961 dtd. 15.05.2018.
5. 15.05.2018 - The envelope was received by SHO,
Sikanderpur OP at 15.30 Hrs.
6. 16.05.2018 - The detention order was served to Mrs. Sona
Devi mother of Shri Pankaj Sharma after due search and
surveillance for tracing him.
It is further to add that Shri Mangal Singh, Sub-Inspector of
Police, Sikandepur Out-post, Muzaffarpur have submitted the
updated position in the case of attachment of property in respect of
Shri Pankaj Sharma, S/o Shri Yashwant Kumar Sharma, Balughat,
Muzaffarpur. (Copy enclosed)
Sd/- 13/02/2019
Deputy Commissioner
Encl: 02 Sheets Customer (P) Division,
Muzaffarpur‖
16. Learned counsel for Respondent Nos. 1 & 2 stated that vide letter
dated 21st May, 2018, SSP, Muzaffarpur submitted a report to SP (D),
CID, Patna, Bihar detailing the steps they had taken for service of the
impugned order. The letter dated 21st May, 2018 is reproduced
hereinbelow:-
―Letter No. 4047/C.R.
Office of the Senior Superintendent of Police, Muzaffarpur
From
S.S.P.
Muzaffarpur
To
S.P.(D)
Crime Investigation Department,
Bihar, Patna
Muzaffarpur, Date : 21/05/2018
Reference - Letter No. F.No.- PD 12001/03/2018 of Ministry of
Finance, Govt. of India and Letter No. 69/No. A.A. dtd.
27.04.2018 C.I.D., Bihar, Patna.
Subject - Detention of Pankaj Kumar Sharma, S/o Yashwant Kumar
Sharma, Mohalla - Balughat, Brahmasthan, P.S. - Town,
District - Muzaffarpur under COFEPOSA.
Sir,
With reference to above subject the Detention order against
Pankaj Kumar Sharma was sent to local S.H.O. for service. In
compliance of which it has been informed by Md. Rafique, S.I.,
Sikandarpur O.P., Town-P.S. vide memo no. 132/18 dated 16.05.2018
that raids have been conducted on location for detention Pankaj
Kumar Sharma, S/o Yashwant Kumar Sharma, Mohalla Balughat
Brahmasthan, P.S. - Town, Dist. - Muzaffarpur but he was found
absent. His mother has been served a copy after explaining the
detention. Also it has been mentioned regarding deputation of
confidential sources. For ready reference, the original copy of the
report submitted by O.P. Incharge is being enclosed and being sent
for perusal.
Thus till now Pankaj Kumar Sharma has not been detained due
to absence. The O.P. incharge has been directed to continue his
efforts for his detention.
Submitted for kind information.
Yours faithfully
Encl. - As above
Senior Superintendent of Police
Muzaffarpur
Copy to : O.P. incharge Sikandarpur, P.S. -Town, Muzaffarpur for
information. He is being directed to ascertain in the early detention
after receipt of information and to submit compliance report.‖
17. Learned counsel for Respondent Nos.1 & 2 also stated that
whatever delay was caused in the execution of the impugned detention
order was due to the fact that the petitioner had been evading service. He
stated that CID, Patna had clearly laid out the steps that it had taken to
locate the petitioner in their letter dated 1st June 2018, which included
conducting raids on different locations, but the petitioner was not found.
He contended that it was in these circumstances that notification under
Section 7(1)(b) COFEPOSA had to be issued. The letter dated 01st June,
2018 is reproduced hereinbelow-
―Letter No. 109/N.G.O.
File No. - 15/11
Crime Investigation Department, Bihar, Patna
From,
Additional Director General of Police
Crime Investigation Department
Bihar, Patna,
To,
Shri V.C. Gupta,
Commissioner
Customs (Prev.)
Patna.
Patna, Date: 01/06/2018
Reference : Ministry of Finance, Govt. of India's Letter No. -
F.No. PD-12001 and 12002/03/2018 -
COFEPOSA dated 09.04.2018 and dated
08.05.2018 respectively and letter No. C.No.
VIII910)01-167/ Cus/P/H/COFEPOSA/pd-
12002/03/2018/3065 dated 09.05.2018.
Subject : Compliance of Detention order against Pankaj
Kumar Sharma, S/o Yashwant Kumar Sharma,
Mohalla - Balughat Brahmasthan, P.S. -
Muzaffarpur Town, Dist. - Muzaffarpur under
COFEPOSA - regarding.
Sir,
In context to above reference and subject it is to
inform that Detention order issued against Pankaj
Kumar Sharma, S/o Yashwant Kumar Sharma,
Mohalla - Balughat, Brahmasthan, P.S. -
Muzaffarpur Town, Dist. - Muzaffarpur issued by
Min. of Finance, Govt. of India issued under F.No.
PD-12001/03/2018-COFEPOSA dtd. 09.04.2018
was sent to the Sr. S.P., Muzaffarpur for service
vide this office letter No. 69/N.G.O. dated
27.04.2018.
The acknowledgement of the above Detention
order has been received from Sr. S.P., Muzaffarpur
copy of which is enclosed with its Annexures. It
has been informed by Sr. S.P., Muzaffarpur that
raid has been conducted on locations of Shri
Pankaj Kumar Sharma for his detention but he was
found absent. A copy of the Detention order was
served to his mother after explaining the Detention
order. It has also been mention that confidential
sources have also been deputed by Local police
Station head for Detention of Pankaj Kumar
Sharma. Therefore, it is requested to do further
necessary action under section 7(1)(B) of
COFEPOSA.
Enc.: As above
Additional Director General of Police
Crime Investigation Department
Bihar, Patna
Copy to - Shri S.K. Gupta, Dy. Secretary, Govt. of India,
Ministry of Finance, Deptt. of Revenue, Central
Economic Intelligence Bureau, Janpad Bhawan, New
Delhi for information with reference to his referred letter.
Additional Director General of Police
Crime Investigation Department
Bihar, Patna‖
18. Consequently, according to him, there was no delay in executing
the impugned detention order.
COURT'S REASONING
THIS COURT IS OF THE VIEW THAT STEPS FOR SERVICE HAD
BEEN TAKEN BY THE RESPONDENTS PROMPTLY AND THE
IMPUGNED ORDER DOES NOT SUFFER FROM DELAY IN
EXECUTION.
19. Having heard the counsel for the parties and having perused the
Additional Affidavit dated 20th February, 2019 filed by the Respondent
Nos. 1 and 2 as well as letters dated 21st May, 2018, 1st June, 2018 and
13th February, 2019, this Court is of the view that steps for service had
been taken by the respondents promptly and the impugned order does not
suffer from delay in execution.
20. Respondent Nos. 1 & 2, in their Additional Affidavit dated 20 th
February 2019, have clearly stated that the department had served the
impugned order dated 9th April 2018 upon the DGP Bihar within four
days i.e. on 13th April 2018 with a direction to take further steps for
effecting service. The order was duly forwarded to the Superintendent of
Police (D) to SSP, Muzaffarpur, where the petitioner resides, vide letter
dated 27th April 2018. Thereafter, SSP Muzaffarpur forwarded the
impugned order to the SHO, Sikanderpur OP vide letter dated 15 th May
2019. Upon receiving the impugned order, the local police had taken
effective steps for the service of the impugned detention order upon the
petitioner, including conducting raids at different locations. When the
petitioner was not found at his own address, the impugned order was duly
served upon the mother of the petitioner. Furthermore, after making
sincere and honest efforts to locate the petitioner, CID Bihar (due to
petitioner's deliberate absence) had recommended issuance of a
notification under Section 7(1) (b) COFEPOSA vide letter dated 1 st June
2018.
THE NOTIFICATION ISSUED UNDER SECTION 7(1) (b) COFEPOSA
WAS PUBLISHED IN THE OFFICIAL GAZETTE ON 26th JUNE 2018,
AND THEREAFTER IT WAS THE DUTY OF THE PETITIONER TO
APPEAR BEFORE THE CONCERNED AUTHORITY. IT IS SETTLED
LAW THAT PUBLICATION IN THE OFFICIAL GAZETTE
CONSTITUTES DEEMED KNOWLEDGE OF THE NOTIFICATION.
21. The notification issued under Section 7(1) (b) COFEPOSA was
duly published in the Official Gazette on 26th June 2018, and thereafter it
was the duty of the petitioner to appear before the concerned authority. It
is settled law that publication in the Official Gazette constitutes deemed
knowledge of the notification to the person concerned. The Supreme
Court in Union of India and Others Vs. Ganesh Das Bhojraj, (2000)
9 SCC 461 has held as under:-
―A two-Judge Bench of this Court by order dated 15-10-1999
has referred this matter to a larger Bench by observing thus:
―It appears that there is a conflict in the ratio of the decisions of
this Court in Pankaj Jain Agencies v. Union of India [(1994) 5
SCC 198] , CCE v. New Tobacco Co. [(1998) 8 SCC 250]
and I.T.C. Ltd. v. CCE [(1996) 5 SCC 538] is also relevant. In
our view it is appropriate that this appeal is to be heard by a
larger Bench.‖
xxxx xxxx xxxx xxxx
5. The contention is -- the aforesaid notification was not made
available to the public at large and, therefore, on the basis of the
said notification customs duty cannot be levied. The learned
counsel for the appellant relied upon the decision in Pankaj Jain
Agencies v. Union of India [(1994) 5 SCC 198] and the learned
counsel for the respondent importer has relied upon the decision
in CCE v. New Tobacco Co. [(1998) 8 SCC 250] in support of
their respective contentions.
xxxx xxxx xxxx xxxx
8. As against this, learned counsel for the respondent referred to
the decision in CCE v. New Tobacco Co. [(1998) 8 SCC 250] ,
para 11 & 12 and emphasised that in the aforesaid case, the
Court has specifically held that if publication is through a Gazette
then mere printing of it in the Gazette would not be enough unless
the Gazette containing the notification is made available to the
public...........
xxxx xxxx xxxx xxxx
10. It has been submitted by the learned counsel for the appellant
that the afore-quoted observations in the case of New Tobacco
Co. [(1998) 8 SCC 250] are directly in conflict with the law laid
down by this Court in Pankaj Jain Agencies [(1994) 5 SCC 198]
and in I.T.C. Ltd. [(1996) 5 SCC 538] We agree with the said
submission.
xxxx xxxx xxxx xxxx
14. From the aforesaid judgment it can be stated that it is an
established practice that the publication in the Official Gazette,
that is, the Gazette of India (sic is an) ordinary method of
bringing a rule or subordinate legislation to the notice of the
persons concerned. Individual service of a general notification on
every member of the public is not required and the interested
person can acquaint himself with the contents of the notification
published in the Gazette. It is the usual mode followed since years
and there is no other mode prescribed under the present statute
except by the amendment in the year 1998 by Bill 21 of 1998.‖
(emphasis supplied)
22. A Division Bench of this Court in Rudra Pratap Singh Vs. Union
of India & Ors., 2008 (101) DRJ 568 (DB) has also held as under:-
―8. We must next consider whether there was any delay in the
execution of the Order. It will be recalled that the Detention
Order against the Petitioner was passed on 11.4.2002 and
served upon him on 10.6.2002. It has been explained that the
Petitioner was not available in his home despite surveillance
being maintained. Consequently, an order under Section 7
(1)(b) of the COFEPOSA Act was issued on 21.5.2002, a copy
whereof has been supplied in the course of the hearing. Learned
counsel for the Petitioner has objected to the late filing but
since it is a copy of the Gazette, the genuineness of which has
not been assailed, we have taken it on record and in our
deliberation. We are prima facie satisfied that the Petitioner
was absconding or keeping out of the way of service upon him
of the Detention Order. This is fortified by the fact that recourse
has been taken to Section 7 (1) (b) of COFEPOSA Act. The
possibility that the Detaining Authority or the Executing
Authority made no efforts to serve the Order on the Detenu and
instead published it in the Gazette an order under Section 7 (1)
(b) of COFEPOSA Act Order does not appeal to us, since the
former action is so much easier to undertake. On publication of
such a Notice in the Official Gazette, the Detenu's knowledge of
the existence of the Detention Order will have to be presumed.
Therefore, the Petitioner would have to show that he had
immediately surrendered pursuant to the publication of this
Notice and he may then be heard to assert that a delay had
occurred which has the effect of snapping links between the
incident and the passing of the Detention Order. The challenge
to the Order was rejected by the High Court as well as the
Supreme Court. We are satisfied with the explanation that there
was no inordinate or unexplained delay in the execution of the
Detention Order. In Vinod K. Chawla as well as in Sheetal
Manoj Gore the Court was satisfied that keeping in view the
detailed account given by the Detaining Authority that the
matter was being continuously processed and considered, no
delay could be attributable to the issuance of the Order of
Detention.‖
(emphasis supplied)
23. Consequently, petitioner cannot contend that he was not aware
of the impugned order and/or that none of the authorities had informed
him about the detention order or that he came to know on 04 th
September, 2018 only when a copy of proclamation requiring the
appearance of the petitioner was affixed at his father's residence.
THERE IS WARRANT TO CONSIDER THAT THE LINK BETWEEN
ISSUANCE OF THE IMPUGNED ORDER AND THE EXECUTION HAS
NOT SNAPPED BUT STRENGTHENED.
24. In fact, this Court is of the view that Respondent Nos. 1 and 2 have
not only adequately explained the delay, if any, in execution of the
impugned order, but have also explained that it was due to the conduct of
the petitioner (as he was evading service), due to which recourse had to be
taken under Section 7(1)(b) of COFEPOSA. Consequently, there is
warrant to consider that the link between issuance of the impugned order
and the execution has not snapped but strengthened. [See Bhawarlal
Ganeshmalji Vs. State of Tamil Nadu and Another, (1979) 1 SCC 465].
A PERUSAL OF THE SEALED DOCUMENTS HANDED OVER BY THE
RESPONDENT NOS.1 & 2 SHOWS THAT THE IMPUGNED ORDER IS
BASED ON INCIDENTS OF 2017-2018 AND NOT OF 2012-2015 AS
STATED BY THE PETITIONER.
25. Further, a perusal of the sealed documents handed over by the
Respondent Nos.1 & 2 shows that the impugned order is based on
incidents of 2017-2018 and not of 2012-2015 as stated by the petitioner.
26. The handed over documents show that there had been seizure of
smuggled goods, i.e., foreign origin spices on 30th August, 2017, 01st
November, 2017 and 17th February, 2018, in which transactions, the
petitioner is stated to be the "master mind".
27. The handed over documents also reveal that the Unit Case
No.35/16-17 dated 13th October, 2016 had been adjudicated vide O-I-O
No.33-CUS/JC/MZP/2017-18 dated 01st January, 2018 by which complete
confiscation of goods valued at Rs. 10,00,000/- had been made with
redemption fine of Rs. 3,00,000/-. The vehicle bearing No. BR-06-GA-
1457 valued at Rs. 4,00,000/- was also confiscated under Section 115(2)
of the Customs Act, 1962 with redemption fine of Rs. 50,000/- and
personal penalty of Rs. 25,000/- had been imposed upon the petitioner
under Section 112 of the Customs Act, 1962. Further, another show cause
notice vide C.No. VIII(10)232-T/CUS/MTH/16-17/3345-3352 dated 30th
June, 2017 had been adjudicated vide O-I-O No. 41-CUS/JC/MTH/2017-
18 dated 19th January, 2018 by which complete confiscation of goods
valued at Rs. 8,80,000/- had been made with redemption fine of Rs.
6,00,000/-. 300 kgs of Maize and paddy valued at Rs. 6,000/- used for
concealment of smuggled goods had also been confiscated under Section
119 of the Customs Act, 1962 with redemption fine of Rs.1,500/-. The
vehicle bearing No. UP-78-CN-3929 valued at Rs.16,00,000/- had been
confiscated under Section 115(2) of the Customs Act, 1962 with
redemption fine of Rs. 2,00,000/- and personal penalty of Rs. 1,50,000/-
had been imposed upon the petitioner.
28. Also show cause notices had been issued in respect of Unit Case
No. 09/2017-18 vide C. No. VIII(10)12-657/Cus/P/H/Seiz/2017/1537-41
and Unit case no. 10/2017-18 vide C.No. VIII(10)13-
674/Cus/P/H/Seiz/2017/1545-49 both dated 27th February, 2018 valued at
Rs. 18,13,000/- and Rs. 1,22,01,214 respectively.
29. The handed over documents further reveal that four summons had
been issued to the petitioner, namely, 05th September, 2017, 21st
September, 2017, 04th October, 2017 and 18th October, 2017. However,
the petitioner had neither appeared before the summoning authority nor
responded by filing any written submission. The documents show that
thereafter a complaint had been filed before the competent Court for non-
compliance of summons under Sections 174 and 175 of IPC.
30. The documents handed over by the respondents also prove that the
petitioner's contention that he had received favourable orders in all cases
filed against him by the Department of Revenue was incorrect. In fact,
Mr. Varun Singh, learned counsel for the petitioner, in rejoinder, had not
controverted the argument that petitioner's Appeals had been dismissed in
19/Cus/JC/MUZ/16-17, 23/Cus/JC/Muz/16-17, 15/Cus/JC/Muz/2016 and
14-Cus/JC/FBG/16-17 despite taking time to clarify the position.
31. In view of the aforesaid facts, this Court is further of the opinion
that petitioner's argument with respect to relevant material not being
placed before the detaining authority is without any merit.
32. Consequently, this Court is of the opinion that the impugned
detention order is neither based on incident of 2012-15 nor on a solitary
incident.
MULTIPLE INCIDENTS OF 2017 AND 2018 PROVE THAT THE
PETITIONER HAS THE PROPENSITY AS WELL AS POTENTIALITY TO
INDULGE IN SIMILAR ACTS OF SMUGGLING GOODS INTO INDIA
AND IT FURTHER PROVES EXISTENCE OF LIVE-LINK BETWEEN
THE INCIDENTS AND ISSUANCE OF THE IMPUGNED ORDER.
33. There are multiple incidents of 2017 and 2018, wherein smuggled
goods had been recovered, which prove that the petitioner has the
propensity as well as potentiality to indulge in similar acts of smuggling
goods into India and it further proves existence of live-link between the
incidents and issuance of the impugned order.
34. The Apex Court in Union of India and Anr. Vs. Dimple Happy
Dhakad, 2019 SCC OnLine SC 875 has held as under:-
―42. ......we are conscious that the Constitution and the Supreme
Court are very zealous of upholding the personal liberty of an
individual. But the liberty of an individual has to be subordinated
within reasonable bounds to the good of the people. Order of
detention is clearly a preventive measure and devised to afford
protection to the society. When the preventive detention is aimed
to protect the safety and security of the nation, balance has to be
struck between liberty of an individual and the needs of the
society.
43. Observing that the object of preventive detention is not to
punish a man for having done something but to intercept and to
prevent him from doing so,......‖
(emphasis supplied)
THE ALLEGATION THAT THE IMPUGNED ORDER WAS BASED ON
EXTRANEOUS REASONS CANNOT BE EXAMINED AS THE PERSON
AGAINST WHOM MALA FIDES HAD BEEN ALLEGED,HAD NOT
BEEN IMPLEADED AS A PARTY TO THE PROCEEDING.
35. This Court is also of the view that the person, against whom mala
fides are alleged, has to be impleaded as a party to the proceeding to
enable him/her to answer the allegations. In the present case, even though
the petitioner had alleged personal mala fides against Shri Sunil Kumar
Singh, he had not impleaded him as a respondent. The Supreme Court in
Ratnagari Gas And Power Private Limited Vs. RDS Projects Limited
and Others, (2013) 1 SCC 524 has held as under:-
―27. There is yet another aspect which cannot be ignored. As
and when allegations of mala fides are made, the persons against
whom the same are levelled need to be impleaded as parties to
the proceedings to enable them to answer the charge. In the
absence of the person concerned as a party in his/her individual
capacity it will neither be fair nor proper to record a finding that
malice in fact had vitiated the action taken by the authority
concerned. It is important to remember that a judicial
pronouncement declaring an action to be mala fide is a serious
indictment of the person concerned that can lead to adverse civil
consequences against him. Courts have, therefore, to be slow in
drawing conclusions when it comes to holding allegations of
mala fides to be proved and only in cases where based on the
material placed before the Court or facts that are admitted
leading to inevitable inferences supporting the charge of mala
fides that the Court should record a finding in the process
ensuring that while it does so, it also hears the person who was
likely to be affected by such a finding.‖
(emphasis supplied)
36. Consequently, the allegation that the impugned order was based on
extraneous reasons cannot be examined.
CONCLUSION
37. Accordingly, the present petition and pending applications being
bereft of merit are dismissed and the interim orders passed stand vacated.
MANMOHAN, J
SANGITA DHINGRA SEHGAL, J
AUGUST 05, 2019
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