Delhi High Court
Deepak Dhemla vs State & Anr. on 10 May, 2019
6
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 960/2018 & CRL.M.A. 5948/2018
DEEPAK DHEMLA ..... Petitioner
Through: Mr. Mohinder Kumar Madan, Advocate
versus
STATE & ANR. ..... Respondents
Through: Mr. Satish Aggarwala, Advocate with
Mr. Gagan Vaswani, Advocate for
for respondent No.3-Customs.
% Date of Decision: 10th May, 2019
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
MANMOHAN, J: (Oral)
1. Present writ petition has been filed under Article 226 of the
Constitution of India read with Section 482 of the Code of Criminal
Procedure for issuance of a writ of certiorari or any other writ/
order/direction seeking quashing of the detention order dated 28 th
September, 2001 passed under Section 3(1) of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter
referred to as "COFEPOSA Act") by the Deputy Secretary (Home) against
the petitioner on account of the alleged contravention of the provisions of
the Customs Act, 1962.
2. The brief facts of the present case are that one Mr. Rajesh Gulati was
intercepted by the Customs authorities at the Indira Gandhi International
Airport, New Delhi on 05th July, 2001 and a number of mobile phones were
seized from him. Mr. Rajesh Gulati gave a statement under Section 108 of
the Customs Act, 1962 implicating his brother-in-law i.e. the petitioner.
However, when Mr. Rajesh Gulati was produced before the Court of learned
Metropolitan Magistrate, he retracted his confessional statement.
3. Learned counsel for petitioner points out that in a petition filed by
Mr.Rajesh Gulati before the Supreme Court, his detention order dated 28 th
September, 2001 passed under Section 3(1) of the COFEPOSA Act, was
quashed as far back as 29th August, 2002.
4. He contends that the impugned detention order could not have been
passed by the respondent solely on the basis of retracted statement under
Section 108 of the Customs Act, 1962, of an estranged relative of the
petitioner and more so, when searches/raids conducted at the premises of the
petitioner immediately after the alleged incident, had not revealed any
involvement of the petitioner in the alleged activities of smuggling.
5. Learned counsel for petitioner states that the impugned order dated
28th September, 2001 passed under Section 3(1) of COFEPOSA Act against
the petitioner has not been executed till date. He emphasises that the
impugned order was never in the knowledge of the petitioner when it had
been passed or even later. He contends that the authorities had no real
intention of executing the said order against the petitioner nor was there any
need/requirement of the said order against the petitioner because the
petitioner had never been involved in any smuggling activity.
6. Learned counsel for petitioner vehemently contends that the
impugned order having not been executed for more than sixteen long years,
had lost its utility and sanctity and the same had lapsed.
7. He further states that vide order dated 28th June, 2007 passed by Joint
Secretary, Department of Revenue, Ministry of Finance, Government of
India, a revision application filed by the petitioner against order dated 12 th
January, 2007 passed by the Commissioner of Customs (Appeals), New
Delhi, was allowed and the order imposing penalty on the petitioner was set
aside on the ground that he had neither admitted his involvement in the case
nor was his involvement proved by the Department through other
corroborative evidence.
8. He points out that the petitioner was earlier possessing a passport
No.B0994443 in his name, but the same had expired in or about 2005 and
the said passport had not been renewed. He states that the petitioner is
currently not holding any passport.
9. He lastly states that the petitioner‟s father is suffering from cancer and
in the event, the order of detention is not quashed, petitioner would suffer
irreparable harm and injury.
10. Per contra, Mr. Satish Aggarwala, learned counsel for respondent-
Customs states that the petitioner‟s contention that he came to know of the
impugned detention order dated 29th September, 2001 only after the final
order dated 17th March, 2016 had been passed under Section 7(1) & (3) of
SAFEMA Act, 1976, is wrong, since in the year 2005, the petitioner had
applied to the Hon‟ble Lieutenant Governor, Govt. of NCT of Delhi, for
revocation/cancellation of detention order passed under COFEPOSA Act.
11. He points out that the petitioner absconded to USA to escape the
consequences of the case as he was well aware that the investigation was
going on in the case of Mr. Rajesh Gulati. He also states that the petitioner
kept on changing his residential address to escape from the detention. He
points out that the petitioner had been declared proclaimed offender vide
order dated 07th August, 2002 passed by the Chief Metropolitan Magistrate,
Delhi.
12. Mr. Satish Aggarwala emphasises that the reason for filing the present
petition is the order dated 17th March, 2016 passed by the Competent
Authority, SAFEM (FOP) Act, 1976 and NDPS Act, 1985 freezing the
petitioner‟s bank accounts. He, however, admits that the petitioner had filed
an appeal before the Appellate Tribunal for SAFEMA, FEMA, PMLA,
NDPS, PBPT Act, at New Delhi and an interim order had been passed in
petitioner‟s favour.
13. Having heard learned counsel for parties, this Court is in agreement
with the learned counsel for respondent-Custom that the petitioner was
aware of the detention order as he had made a representation to the Hon‟ble
Lieutenant Governor, Govt. of NCT of Delhi in 2005.
14. This Court is also in agreement with the contention of learned counsel
for respondent-Customs that the detention order could not be executed
against the petitioner because he had fled to USA and after coming to India
had kept changing his residential addresses in Delhi, Ghaziabad and
Dehradun.
15. However, as the petitioner had allegedly indulged in unlawful activity
as far back as July, 2001 and the business of import of mobile phones is no
longer lucrative and the petitioner‟s passport is lying expired since 2005 as
well as the fact that the penalty proceedings had resulted in exoneration of
the petitioner, this Court is of the view that continuing the order of detention
would be an exercise in futility. In fact, this Court is of the opinion that
there is no live-link today between the alleged prejudicial activities and the
purpose of detention. The Supreme Court in T.A. Abdul Rahman vs. State
of Kerala & Ors., AIR 1990 SC 225 with regard to „live-link‟ has held as
under:-
"11. The conspectus of the above decisions can be summarised
thus: The question whether the prejudicial activities of a person
necessitating to pass an order of detention is proximate to the
time when the order is made or the live-link between the
prejudicial activities and the purpose of detention is snapped
depends on the facts and circumstances of each case. No hard
and fast rule can be precisely formulated that would be
applicable under all circumstances and no exhaustive guidelines
can be laid down in that behalf. It follows that the test of
proximity is not a rigid or mechanical test by merely counting
number of months between the offending acts and the order of
detention. However, when there is undue and long delay between
the prejudicial activities and the passing of detention order, the
court has to scrutinise whether the detaining authority has
satisfactorily examined such a delay and afforded a tenable and
reasonable explanation as to why such a delay has occasioned,
when called upon to answer and further the court has to
investigate whether the causal connection has been broken in the
circumstances of each case."
16. Similarly, the Supreme Court in Saeed Zakir Hussain Malik vs. State
of Maharashtra & Ors., (2012) 8 SCC 233 has held as under:-
"27. As regards the second contention, as rightly pointed out by
the learned counsel for the appellant, the delay in passing the
detention order, namely, after 15 months vitiates the detention
itself. The question whether the prejudicial activities of a person
necessitating to pass an order of detention is proximate to the
time when the order is made or the live link between the
prejudicial activities and the purpose of detention is snapped
depends on the facts and circumstances of each case. Though
there is no hard-and-fast rule and no exhaustive guidelines can
be laid down in that behalf, however, when there is undue and
long delay between the prejudicial activities and the passing of
detention order, it is incumbent on the part of the court to
scrutinise whether the detaining authority has satisfactorily
examined such a delay and afforded a reasonable and acceptable
explanation as to why such a delay has occasioned.
28. It is also the duty of the court to investigate whether causal
connection has been broken in the circumstance of each case......
xxx xxx xxx
30. ......Consequently, we set aside the judgment dated 14-8-2008
in Saeed Zakir Hussain Malik v. State of Maharashtra [WP (Cri)
No. 455 of 2008, order dated 14-8-2008 (Bom)] and quash the
detention order dated 14-11-2006. Inasmuch as the detention
period has already expired, no further direction is required for
his release. The appeal is allowed."
17. Keeping in view the aforesaid mandate of law as well as absence of
causal connection and live-link, the impugned detention order dated 28 th
September, 2001 passed by respondent No.2 against the petitioner is set
aside.
18. At this stage, learned counsel for the petitioner states that for his
failure to disclose his representation of 2005 to the Hon‟ble Lieutenant
Governor, the petitioner shall voluntarily deposit Rs.1,00,000/- with AIIMS
Poor Fund Account No.10874588424 with SBI, Ansari Nagar, New Delhi
(IFSC Code:SBIN0001536) within two weeks. The statement made by
learned counsel for petitioner is accepted by this Court and petitioner is held
bound by the same. With the aforesaid observation, present petition and
pending application stand disposed of.
MANMOHAN, J
SANGITA DHINGRA SEHGAL, J
MAY 10, 2019
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