The Conduct of Abscondence cannot preclude absconder from detention: Delhi HC
Three separate writ petitions were made by the petitioner seeking similar reliefs in this case of Mohd. Nashruddin Khan v. Union of India &Ors. Since the issues raised in all the three petitions were the same, therefore the case was decided by the common judgment. These petitions were made to quash a detention order dated 21st January 2020 issued by the Government under Section 3(1) and Section 7(1)(b) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act).
Facts of the Case:
In this case, the petitioner ‘Mohd. Nashruddin Khan’ is a non-resident Indian Citizen who is engaged in the business of trading in gold jewelry in the United Arab Emirates (UAE). A private jewelry exhibition was arranged by the petitioner in which an employee of M/s Its My Name Pvt. Ltd. was invited. After completion of the Exhibition, when the Petitioner and Employee of the M/s Its My Name Pvt. Ltd. on his return to India landed at the IGI Airport and walked to the red channel, they were detained by the officers at the exit gate and a notice was issued under Section 102 of the Customs Act, 1962 alleging invasions of customs duty on the same day. The Chartered Accountant of the petitioner was also arrested. A self-incriminating proclamation of the petitioner was recorded under coercion in which he disclosed his personal information. However, the statement made under Section 108 of the Customs Act, 1962 was retracted by the petitioner in the Court.
The Contentions of the Parties:
It was contended by the counsel on behalf of the petitioner that there was inordinate delay in passing of the Detention order and the culmination of the investigation was done in the issuance of show cause notice, Therefore, the link between the prejudicial acts which form the basis of the Detention Orders and the purpose of detention is snapped.
It was presented by the Petitioner that a large number of documents had not been placed before the Detaining Authority and the same was not considered to form satisfaction to be detained Under Section 3(1) of the COFEPOSA Act. It was held by the Supreme Court that the five conditions on which a Detention Order can be challenged at the pre-execution stage were illustrative only, and not exhaustive and further, non-placement of vital documents before the detaining authority would be a good ground to quash a Detention Order at the pre-execution stage.
It was further submitted by the counsel on behalf of the Petitioner that “In respect of the notifications issued under Section 7(1)(b) of the COFEPOSA Act, 1974, all the three notifications have been issued as acts of malice. There was no question of issuing a notification under Section 7(1)(b) of the COFEPOSA Act, 1974 within a matter of a few months of the issuance of the Detention Order”.
Contrary to the submissions made by the petitioner, it was battled by the Counsel on Behalf of the Respondent that reliance made by the petitioner from the above judgment of the Supreme Court is misplaced and invalid. It was submitted that all the relevant and vital documents were placed before the Detaining Authority and only after their abstract satisfaction, the Detention Order was passed. There was no delay in passing and execution of the Detention Orders and no averments could be made by the petitioner at the pre-execution stage.
Observations and Conclusions of the Court:
It was observed by the Court that “There is no doubt that a Detention Order can validly be assailed even at the pre-execution stage, however, an order of detention passed by a detaining authority under the relevant ‘preventive detention’ law cannot be set aside by a writ court at the pre-execution or pre-arrest stage unless the court is satisfied that there are exceptional circumstances” .Also, there is no resemblance between prosecution in the court of law and a detention order passed under the COFEPOSA Act, 1974 which made Article 14 inapplicable.
The Court is of the view that the time consumed in mooting the proposal for the detention of the petitioner under the COFEPOSA Act, 1974 and considering the said proposal by the Central Screening Committee is justified and it does not meddle with the live-link between the prejudicial activity of the petitioners and the object of the detention, hence, the equivalent cannot be snapped.
The Court further observed that the detention orders issued against the Petitioner could not be executed despite the sincere endeavours of the local police and hence there is no merit for the challenge raised by the petitioner to the notifications issued under Section 7(1)(b) of the COFEPOSA Act, 1974 because the petitioner was absconded and precluded from assailing the Detention.
From the above observations and contentions of the parties, the court is of the view that there is no merit in the submission of the petitioners that neither of three was absconding. “Abscondence is not only a matter of physical disappearance but also carries with it the intent to hide, disappear, or evade the concerned person, or authority”. Therefore, the petitioners are not entitled to maintain these writ petitions because of the conduct of absconding, and hence, no merit can be found in any of the grounds taken by the Petitioner to assail the Detention Order issued under Section 3 of the COFEPOSA Act.
Deepak Bajaj v. State of Maharashtra and Another, (2008) 16 SCC 14.