Calcutta High Court
Vinod Kumar Garg vs The Union Of India & Others on 19 September, 2008
Author: Surinder Singh Nijjar
Bench: Surinder Singh Nijjar, Sanjib Banerjee
APOT No. 228 of 2008
GA No. 1871 of 2008
WP No. 130 of 2005
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
VINOD KUMAR GARG
-Versus-
THE UNION OF INDIA & OTHERS
For the Appellant: Mr. Saktinath Mukherjee, Sr. Adv.,
Mr. Aniruddha Chatterjee, Adv.,
Mr. Syed Nurul Arefin, Adv.
For the Respondents: Mr. Tilok Bose, Adv.,
Mr. R.N. Bharadwaj, Adv.
Heard on: September 2, 2008 & September 15, 2008.
Judgment on: September 19, 2008.
BEFORE The Hon'ble CHIEF JUSTICE SURINDER SINGH NIJJAR And The Hon'ble JUSTICE SANJIB BANERJEE SANJIB BANERJEE, J. : -
The unsuccessful writ petitioner assails the order of dismissal of the writ petition on the ground that he was eminently eligible to have the preventive order of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 set aside at the pre-execution stage on twin counts of delay on the touchstone of tests laid down by the Supreme Court.
The appellant carried on business of manufacture of blankets under the name and style of Brij Spinners since 1996. He claims to have started exporting blankets in the year 2003 and executed export orders of value of Rs.33 crore. He was constrained to close down his manufacturing unit in Ludhiana in March 2004 following the seizure of certain quantities of blankets in course of their export. Such seizure was made in Haldia on March 9, 2004. On March 10, 2004 the appellant's Ludhiana unit was raided and thereafter sealed or seized. The seizure was lifted on May 5, 2004. The appellant was served with summons under Section 108 of the Customs Act in late April, 2004 and his statement was recorded in Ludhiana in May 7, 2004. A show-cause notice of September 6, 2004 was issued by the Customs authorities in Calcutta. The show-cause notice referred to various documents which the appellant demanded upon receipt of the notice. The appellant now cites the authorities' failure to furnish all the documents as a ruse for not responding to the notice.
In the appellant's words, "sometime around in December 2004 (he) came to learn that the respondents are in the process of invoking the provisions of ... COFEPOSA ... on the basis of the alleged over-invoicing and misdeclaration in the ... shipping bills ..." The appellant claims that he purchased blankets from Panipat firms at or about Rs.490/- per piece though the respondents were of the view that the value of the blankets were Rs.100/- apiece. The appellant relies on his earning valuable foreign exchange for the country and says that it is unbelievable that for availing duty exemption benefit of Rs.19.60 lakh the appellant would have indulged in over-invoicing to the extent of Rs.63,44,450/-. The appellant relies on some "internal policy of the respondents" to not invoke the provisions of COFEPOSA if the export duty evasion is less than Rs.25 lakh.
The appellant says that there was delay in issuance of the preventive order of detention, the number and date whereof the appellant has quoted in his writ petition, between the date of the seizure of the blankets in Haldia on March 9, 2004 and the date of the order of December 31, 2004. The appellant emphasises that the purpose of an order of such nature is preventive and not punitive and if the appellant was left undisturbed for more than nine months upon discovery of the alleged over-invoicing indulged by him, it would belie the need for an arrest for preventive purpose. The second count of delay that the appellant stresses on is in the department's failure to have the order executed till date despite the appellant living and moving about openly and freely and going about his usual chores. The appellant dwells on the second aspect now that it is nearly four years that the warrant has remained unexecuted. The appellant claims that there is a duty on the department to act promptly both in issuing a preventive order of detention and in executing it; and, any unexplained delay on either score would make the order susceptible to a successful challenge at the pre-execution stage.
The appellant has relied on a judgment reported at 1992 Supp (1) SCC 496 (Additional Secretary to the Government of India & ors. v. Smt. Alka Subhash Gadia & anr.). The applicant says that his challenge on the limited grounds available at the pre-execution stage meets the tests laid down therefor by the Supreme Court. The extent of a challenge at the pre-execution stage of an order of preventive detention has been laid down in the reported case:
"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 Supreme Court recognised in such case that a would-be detenu's rights in such case were not only confined to Article 22(5) of the Constitution of India but they extended to rights under Articles 14, 19 and 21. An action of a statutory authority complained of must satisfy the tests of all the rights, as they are applicable to individual cases; it would not do if it satisfies the requirements of one or the other of them. The deprivation of liberty of any person has to be tested on the basis of limitation imposed on State action by the fundamental rights available to a citizen.
A judgment reported at (2006) 4 SCC 796 (Rajinder Arora v. Union of India & ors.), another case of a pre-execution challenge to a detention order, has been placed by the appellant to demonstrate that an order of detention passed 10 months after the date found favour with the Supreme Court. In such case the Supreme Court found that there was unexplained delay prior to issuance of the detention order.
The parties refer to another judgment reported at (2000) 8 SCC 630 (Sayed Taher Bawamiya v. Joint Secretary to the Govt. of India & ors.) where the scope of examination by Court of an order of preventive detention at the pre-execution stage was culled out from the Alka Subhash Gadia case. The Supreme Court disagreed with the submission that the Alka Subhash Gadia tests were not exhaustive.
The respondent authorities have raised an issue as to the jurisdiction of this Court to receive the petition and have relied on a decision reported at (2003) 8 SCC 342 (Union of India v. Paul Manickam). In the context of the order proposed to be made, it is not necessary to address the issue of jurisdiction.
The respondents have produced the records, from which it appears that the respondents followed up the matter after the seizure of the blankets in March, 2004. For the period after the date of the order, it appears from the records that the detention order was forwarded to the police authorities in Ludhiana for execution and reminders have been issued but the police authorities have not been able to execute the order.
Though the appellant insists that the purpose of the preventive order of detention has been lost by reason of the passage of time since the date of issuance thereof, to accept such contention made by a person who has apparently dodged service of the order would amount to putting a premium on dishonesty. All five grounds recognised in the Alka Subhash Gadia case touch upon, in a sense, a matter of jurisdiction. The appellant is not in doubt that it was his lot of blankets that was seized at the Haldia Port; and a reasonable conclusion can be drawn that the order of detention thus may not have been erroneously passed under the COFEPOSA Act. The order has neither been sought to be executed against a wrong person nor is there any material to conclude that it has been passed for a wrong purpose. As in the Sayed Taher Bawamiya case, there is nothing on record in the matter at hand to suggest that the order was passed on vague or extraneous or irrelevant grounds. Also, it has not been urged that the authority that issued the order lacked jurisdiction so to do.
There is no infirmity in the order under appeal. There is no merit in the appeal, which is dismissed without costs.
Urgent certified photostat copies of this judgment, if applied for, be issued to the parties upon compliance with all requisite formalities.
I agree.
(Surinder Singh Nijjar, C.J.) (Sanjib Banerjee, J.)