Gujarat High Court
Union Of India Joint Secretary To The ... vs Madhu Devi Ashok Panchariya on 2 January, 2025
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/LPA/257/2013 JUDGMENT DATED: 02/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 257 of 2013
In
R/SPECIAL CIVIL APPLICATION NO. 9659 of 2012
With
R/LETTERS PATENT APPEAL NO. 258 of 2013
In
R/SPECIAL CIVIL APPLICATION NO. 11866 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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Approved for Reporting Yes No
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UNION OF INDIA JOINT SECRETARY TO THE GOVT.OF & ANR.
Versus
MADHU DEVI ASHOK PANCHARIYA & ORS.
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Appearance:
MR HARSHEEL D SHUKLA(6158) for the Appellant(s) No. 1,2
MR DEVEN PARIKH SR. ADVOCATE with MR. HARMISH K SHAH(2438) for the
Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 02/01/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE PRANAV TRIVEDI)
1. The present Letters Appeals under clause 15 of the Letters
Patent assails the correctness and validity of the order dated
27.09.2012 passed by the learned Single Judge in Special Civil
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Application No. 9659 of 2012 as well as Special Civil Application No.
11866 of 2012. As the issue raised in both the appeals are common
they are being disposed of by present common order by treating
Letters Patent Appeal 257 of 2013 as a lead matter and for the sake
of convenience, the facts are taken from lead matter.
2. The respondent original writ petitioner had preferred writ
petition praying to issue appropriate writ or direction quashing and
setting aside the order of detention bearing No. F.No.673/04/2012-
Cus.VIII dated 14.06.2012 and further directed the detenue Ashok R.
Panchariya to be set at liberty. The learned Single Judge after
considering the arguments canvassed by the learned advocates for
the parties and having perused the material on record was pleased to
allow the writ petition by quashing and setting aside the order of
detention being No.F.No.673/04/2012-Cus.VIII dated 14.06.2012
passed by the Joint Secretary to the Government of India. Being
aggrieved by the order passed by the learned Single Judge, the
appellant - original respondent has preferred the present appeal.
3. The factual matrix which has led to filing of the writ petition is
that the Director of Revenue Intelligence, Ahmedabad Zonal Unit,
gathered information that M/s S.V Enterprises, situated at
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Ahmedabad was importing 'Betel Nuts' of Indonesian origin but
declaring the same as of Sri Lankan origin so as to wrongly avail the
benefit of Free Trade Agreement between Sri Lanka and India, and
get partial exemption from payment of custom duty. On the basis of
such information, the Office of the Director of Revenue Intelligence
carried out search at the premises of M/s. S.V. Enterprise as well as
at the residential premises of the detenue. Pursuant to the search,
panchnama was drawn and financial transactions were verified. The
accounts were also retrieved. It was the case of the office of the
Director of Revenue Intelligence that the detenue had also imported
three container loads of 'Betel Nuts' from M/s 4S International, Sri
Lanka for quantity of 72 metric tons through Nhava Sheva Port. It was
the case of the office of the Director of Revenue Intelligence that the
investigation revealed that the detenue was mastermind in controlling
the entire activities of M/s. S.V. Enterprises though he was not in the
records of the firm. It was the case of the office of the Director of
Revenue Intelligence that the detenue in collusion with one
Sarfarazkhan Pathan had negotiated with the Indonesian suppliers of
'Betel Nuts' and all this aspect was supported by evidence and
statement of panchas.
4. In wake of such fact, the detenue was summoned time and again
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and the statements were recorded. The detenue was initially arrested
and released on bail. Thereafter, the office of the Director of Revenue
Intelligence after having found sufficient material sent a proposal to
make orders of detention of a person under Section 3 of the
Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 (hereinafter referred to as the 'COFEPOSA Act").
The proposal was scrutinized by the Screening Committee of the
detaining authority and the Screening Committee thereafter accepted
the proposal. The minutes were prepared by the Screening Committee
and finally respondent no. 1 had passed the detention order dated
14.06.2012 under the provisions of Section 3 of the COFEPOSA Act.
5. Being aggrieved by the order of detention, the wife of the
detenue preferred writ petition before this Court, which came to be
numbered as Special Civil Application No. 9659 of 2012. It was the
case of the original petitioner that there was a gross delay in passing
the detention order. There was delay in considering the
representation made by the detenue by the detaining authority as well
as the Union of India. There was delay in execution of the detention
order. It was also the case of the original petitioner that there was
variance on the ground of the detenue and the authorities have
discriminated the detenue by not detaining other persons who were
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involved in the alleged activity and there was complete non-
application of mind. The learned Single Judge after considering the
submissions made by the learned counsels of the parties came to
conclusion that there was no satisfactory explanation or reason for
passing the order of detention after a long gap between the approval
of the proposal and passing of the detention order. It was also
observed that there was no explanation by the Union of India or by
the detaining authority or the Central Government as to why
detention order was passed after 19 days of the receipt of the
representation submitted by the detenue and what was the basis of
delay in passing the order. With such observation, the writ petition
came to be allowed. This order of the learned Single Judge is assailed
in the present appeal by the Union of India.
6. Before going into the merit of the matter, a pertinent query was
put forward to Mr. Harsheel Shukla, learned advocate appearing for
the appellant as to what would be the consequence of as well as
validity of detention order which was passed in the year 2012. The
detention order would have lived its life. If Section 10 of the
COFEPOSA Act is perused, the life of the detention order is only for a
period of one year i.e. from the date of passing of the order.
Therefore, even if the order of detention is revived, then the detention
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order has lived its life. Mr. Shukla, learned advocate for the appellant
was unable to respond to the query raised by the Court. The only
reason given was that probably on the basis of reviving of the
detention order the appellant would be able to initiate certain
proceedings against the detenue. Unfortunately, this cannot be said
to be an explanation for quashing the order passed by the learned
Single Judge.
7. Apart from the fact that the detention order has lived its life, the
other most important aspect that has been recorded by the learned
Single Judge is with regard to the delay in passing the detention
order. The learned Single Judge has categorically observed the fact
that the raid was carried out at the premises of M/s. S. V. Enterprise
on 12.11.2011. Thereafter, appropriate procedure was followed and
panchnamas were drawn. Even the detenue was arrested and released
on bail. Thereafter, after going through all the material, the proposal
was sent by the Detaining Authority having its office at Delhi which
was received by the Detaining Authority. The files were put before
the Screening Committee, senior most Secretary of the Central
Government, to approve the proposal of the Sponsoring Authority
on 13.02.2012. Thereafter, the statement of the detenue was
recorded on 16.03.2012. It was categorically recorded by the
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learned Single Judge that there is no explanation offered by the
authorities for the period from 13.02.2012 to 02.03.2012 with regard
to the procedure undertaken. Only after some laxity, the statement
was recorded on 16.03.2012.
7.1. The learned Single Judge has, thereafter, categorically
observed that after recording the statement on 16.03.2012 the
discussion took place on 19.03.2012. Thereafter, after about 22 days
i.e. on 10.04.2012, the matter was again discussed by the detaining
authority of the COFEPOSA Unit. Thereafter, relevant documents
were placed before the detaining authority after 31 days after the
discussion i.e. on 16.05.2012 and again on 21.05.2012 and thereafter
again on 04.06.2012. There is no explanation of such delay by the
detaining authority before filing of the impugned detention order on
14.06.2012. On the basis of such factual aspect, it was categorically
recorded by the learned Single Judge while placing reliance on the
decision of the Rajinder Arora v. Union of India reported in (2006)
4 SCC 796 that the delay caused in issuance of the detention order
has not been explained and, therefore, the detention order is required
to be quashed and set aside. It is also recorded that there is no further
explanation by the COFEPOSA unit, the detaining authority or the
Central Government as to why representation was placed before the
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Central Government for the first time on 31.07.2012. Therefore,
pursuant to the detention order there was laxity in deciding the
representation of the petitioner. Thus, on the basis of the delay in
passing the detention order and delay in deciding the representation
by the Central Government, the learned Single Judge has quashed and
set aside the impugned order of detention dated 14.06.2012. The fact
of delay being uncontroverted and the detention order having lived its
life and since 10 years have passed, we see no reason in interfering
with the order passed by the learned Single Judge.
8. In wake of such observations, the contention raised in the
present appeals are meritless and the appeals are hereby dismissed.
No order as to costs.
(SUNITA AGARWAL, CJ )
(PRANAV TRIVEDI,J)
phalguni
