Punjab-Haryana High Court
Geeta Goyal vs Joint Secretary (Cofeposa) on 20 March, 2014
CRWP No.1967 of 2013 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRWP No.1967 of 2013
DATE OF DECISION: March 20, 2014
GEETA GOYAL ...PETITIONER
VERSUS
JOINT SECRETARY (COFEPOSA)
MINISTRY OF FINANCE, NEW DELHI ...RESPONDENT
CORAM: HON'BLE MR. JUSTICE M. JEYAPAUL.
1. Whether the judgement should be reported in the digest? Yes/
----
PRESENT: MR. R.S.RAI, SR.ADVOCATE
WITH MR SANDEEP WADHAWAN, ADVOCATE
FOR THE PETITIONER.
MR. SANJIV DUBEY, ADVOCATE
WITH MS. SONIA SHARMA, ADVOCATE
AND MR. SUNISH BINDISH, ADVOCATE
FOR THE RESPONDENT-UNION OF INDIA.
M. JEYAPAUL, J.
1. Petitioner Geeta Goyal wife of Rakesh Kumar Goyal has filed the present criminal writ petition praying for issuance of an appropriate order in the nature of habeas corpus quashing the impugned order of detention bearing No.673/02/2013-Cus/VIII dated 19.9.2013 passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'COFEPOSA') by the respondent against Rakesh Kumar Goyal and his consequential release as the impugned order of detention is unconstitutional being patently violative of the fundamental rights of the detenu as enshrined under Article 21 of the Constitution of India.
Gulati Sumit2014.03.20 14:46 I attest to the accuracy and integrity of this document CRWP No.1967 of 2013 -2-
2. The facts of the case reads as follows:
a) Specific information was received by the DRI, Regional Unit, Ludhiana to the effect that Rakesh Kumar Goyal, Director of M/s Kwality Overseas Private Ltd., 863, Industrial Area-A, Ludhiana (for short 'M/s KOL) has been resorting to mis-declaration and under valuation of the goods imported by the company. The DRI Ludhiana directed Joint Commissioner of Customs, CFS, Ludhiana to get a suitable test done from the Textile Committee before clearance of goods imported by M/s KOL in Container No.HDMU6551553. The imported consignment declared as Flock fabric was suspected to be Woven brushed pile fabric.
b) DRI, Ludhiana took up the investigation of mis-declaration and undervaluation of imported goods as well as diversion of goods imported without payment of duty with actual user condition under various exemption schemes (Target Plus Scheme) by various businesses entities controlled by Rakesh Kumar Goyal. Examination and testing of imported goods coupled with market enquiry confirmed mis-declaration and undervaluation of imported goods. Searches made at the declared supporting manufacture's premises established diversion of goods imported under various export promotion schemes. It was found out that there had been import of counterfeit goods of brand 'CK' (Calvin Klein) in violation of Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007. Further, imports sought to be made on the basis of advance authorization were found misdeclared in description/value.
c) Searches of various premises including the office of M/s KOL, Gulati Sumit 2014.03.20 14:46 I attest to the accuracy and integrity of this document CRWP No.1967 of 2013 -3- Ludhiana and the declared supporting manufacturer M/s Cannon Industries Private Ltd., Ludhiana which was also owned by Rakesh Kumar Goyal confirmed that it has no production/manufacturing capability. Jurisdictional Central Excise Authorities also reported that M/s Cannon Industries Private Ltd. had not declared any manufacturing or clearance activity in the ER-3 returns for the period January 2011 to December 2011.
d) Documents recovered from the office of M/s KOL, Ludhiana and M/s Cannon Industries Private Ltd. on 26.5.2012 and various other searches revealed clandestine diversion of the goods, namely, Acrylic Tow, Polyester Staple Fibre, etc. imported and cleared without payment of duty under Target Plus Scheme by M/s Cannon Industries Private Ltd. to M/s Garg Acrylics Ltd., Ludhiana.
e) The scrutiny of invoices resumed during search dated 26.5.2012 at M/s KOL Ludhiana revealed that M/s Cannon Industries Private Ltd., Ludhaina had clandestinely diverted goods imported under Target Plus Scheme.
f) In order to ascertain the unit price of similar type of imported goods, fabric market enquiry was conducted which revealed that the goods were attempted to be imported by M/s KOL through substantial undervaluation. The enquriy would reveal that in collusion with the associates, Rakesh Kumar Goyal fraudulently availed the benefits of Target Plus Scheme by violation of its actual user condition and unauthorizedly diverted raw materials imported as well as capital goods which were imported under actual user condition thereby causing loss of revenue to the Gulati Sumit 2014.03.20 14:46 I attest to the accuracy and integrity of this document CRWP No.1967 of 2013 -4- national exchequer to the tune of more than `3 crores. Further, he attempted to undervalue as well as misdeclare imported goods and violated the conditions of advance authorization for Annual Requirements Licence leading to loss of revenue estimated at over `77 lacs. Rakesh Kumar Goyal also tried to import counterfeit goods valued at approximately `27 lacs alongwith other goods in violation of prohibition imposed under Section 11 of the Customs Act, 1962. Rakesh Kumar Goyal also had not co-operated with the investigation.
3. Based on the proposal of the Director of Revenue Intelligence (DRI), Ludhiana, DZU, New Delhi, detention order was issued on 19.9.2013 against Rakesh Kumar Garg by Joint Secretary, COFEPOSA, the specially empowered officer of the Central Government under COFEPOSA Act, 1974 to prevent him from indulging in smuggling of goods in future. The order of detention was executed by Punjab Police and the detenu was detained on and from 20.10.2013.
4. Learned senior counsel Mr. R.S.Rai, appearing for the detenu would vehemently submit that there had been an undue delay in passing the detention order on 19.9.2013 after the proposal was accepted by the Screening Committee as early as on 29.1.2013. Such an unexplained delay proves fatal to the order of detention passed by the detaining authority. Learned counsel appearing for the respondent would submit that the time chart prepared by the Sponsoring Authority and served on the detenu would go to establish that proposal for detention was duly considered and the detaining authority passed the order of detention only after all the materials Gulati Sumit 2014.03.20 14:46 I attest to the accuracy and integrity of this document CRWP No.1967 of 2013 -5- were produced substantiating the grounds of detention. Even otherwise, the delay, if any, has been properly explained by the respondent.
5. The time chart produced by both the sides before this Court would go to establish that the proposal to detain Rakesh Kumar Goyal under the COFEPOSA, 1974 was received by the detaining authority on 27.11.2012. The Central Screening Committee had held its meeting on 18.1.2013 after the adjudicating authority passed a final order as regards the provisional release of the goods of M/s KOL on 12.12.2012. The Screening Committee having approved the proposal for detention under COFEPOSA, 1974 called for documents from the Sponsoring Authority, namely, DRI, DZU, New Delhi on 29.1.2013. Rakesh Kumar Goyal was directed by the Sponsoring Authority to remain present on 6.2.2013 for forensic examination of CPU, Laptop, Hard Disk, Pen Drives recovered under panchnamas. But Rakesh Kumar Goyal failed to remain present on the said day for associating in the matter of forensic examination of the electronic devices resumed by the Sponsoring Authority. Rakesh Kumar Goyal was once again directed to be present on 11.2.2013 for the aforesaid purpose. It was intimated to the aforesaid Authority that he was still out of station. No other authorized person also was sent by M/s KOL to be present before the Sponsoring Authority for examination on 11.2.2013. Forensic examination of the electronic devices had to be done by the Sponsoring Authority on 26.5.2012 in the presence of two independent witnesses. On 14.2.2013, a show cause notice for the proposed confiscation of the counterfeit imported goods was issued to M/s KOL. Show cause notice for the proposal to Gulati Sumit 2014.03.20 14:46 I attest to the accuracy and integrity of this document CRWP No.1967 of 2013 -6- enhance the price of the seized goods was also issued on 15.2.2013. The Detaining Authority reminded the Sponsoring Authority on 21.2.2013 to send the details/documents. Thereafter there had been correspondence between M/s KOL and Director of Revenue Intelligence. On 7.3.2013, the Sponsoring Authority was asked to spell-out the relevancy of each document received on 5.3.2013. On 15.3.2013 M/s KOL requested to provide certain documents and allow cross-examination of officers for submitting final reply to the show cause notice. On 25.3.2013, the Adjudicating Authority was requested by the Sponsoring Authority for early disposal of the case. Thereafter the Sponsoring Authority was requested to furnish more details on 1.4.2013 and 4.4.2013 and 5.4.2013. Market enquiry also was conducted in respect of the sample of fabrics. The Joint Secretary, COFEPOSA also was on medical leave from 21.6.2013 to 6.10.2013. Rakesh Kumar Goyal was further summoned to appear before the DRI on 3.7.2013. Thereafter the detention order which is under challenge alongwith the grounds of detention was issued under Section 3(1) of the COFEPOSA, 1974 by the Joint Secretary, COFEPOSA, Ministry of Finance for preventive detention of the detenu.
6. The above details found from the time chart would go to show that the detaining authority had to collect documents, seek clarification from the Sponsoring Authority to subjectively satisfy himself as regards the necessity to pass the order of preventive detention. In my view, though there is some delay, the same has been properly explained by the respondent. Therefore, on this ground the order of detention cannot be Gulati Sumit 2014.03.20 14:46 I attest to the accuracy and integrity of this document CRWP No.1967 of 2013 -7- quashed.
7. Learned senior counsel Mr. R.S.Rai would submit that there had been a delay in despatching and disposing of the representation submitted by the detenu on 14.11.2013 to the detaining authority through Superintendent, Central Jail, Ludhiana.
8. Learned counsel appearing for the respondent would submit that no such representation dated 14.11.2013 was received from the Central Jail, Ludhiana. Only after filing of the criminal writ petition, a copy of the representation dated 12.11.2013 was received on 16.1.2014 and the same was disposed of on 17.1.2014 after receiving the comments from the Sponsoring Authority. Therefore, it was vehemently submitted by learned counsel appearing for the respondent that there was no delay in disposing of the representation received from the detenu.
9. The petitioner has produced Annexure P-44 to establish that the detenue in fact made a representation dated 12.11.2013 and signed by the detenu on 14.11.2013. But unfortunately the Superintendent, Central Jail, Ludhiana had forwarded the same only on 22.11.2013, having taken about 8 days in despatching the representation made by the detenu to the detaining authority. There is no explanation from the Superintendent, Central Jail, Ludhaina as to the delay of 8 days caused by him in despatching the representation to the detaining authority.
10. In this context it is relevant to refer to some of the decisions of the Hon'ble Supreme Court and this Court.
11. In Smt. Pebam Ningol Mikoi Devi vs. State of Manipur and Gulati Sumit 2014.03.20 14:46 I attest to the accuracy and integrity of this document CRWP No.1967 of 2013 -8- others, 2010 (4) RCR (Criminal) 563, it has been held as follows:-
"24. The second issue is that of delay. There has been a delay of 7 days, i.e. from 09/10/2009 to 16/10/2009, in forwarding the representation of the detenu to the Central Government. There has been no explanation of the reasons for this delay given by the respondents.
.........27. In the matter before us, a delay of 7 days has occurred in the forwarding of the representation. This may not be inordinate; however, at no stage has there been an explanation given for this delay. The State Government or Central Government has not clarified the same and thus the delay remains unexplained."
12. In the above case, there was only a delay of about 7 days in forwarding the representation to the Central Government for consideration. Such a delay completely vitiated the order of detention, it has been held.
13. In Aslam Ahmed Zahire Ahmed Shaik vs. Union of India, 1989 (1) RCR (Criminal) 486, it has been held as follows:-
"11. Reverting to the instant case, we hold that the above observation in Vijay Kumar's case will squarely be applicable to the facts herein. Indisputably the Superintendent of Central Prison of Bombay to whom the representation was handed over by the detenu on 16.6.88 for mere onward transmission to the Central Government has callously ignored and kept it in cold storage unattended for a period of 7 days, and as a result of Gulati Sumit 2014.03.20 14:46 I attest to the accuracy and integrity of this document CRWP No.1967 of 2013 -9- that, the representation reached the Government 11 days after it was handed over to the Jail Superintendent. Why the representation was retained by the Jail Superintendent has not at all been explained in spite of the fact that this Court has permitted the respondent to explain the delay in this appeal, if not before the High Court.
12. In our view, the supine indifference, slackness and callous attitude on the part of the Jail Superintendent who had unreasonably delayed in transmitting the representation as an intermediary, had ultimately caused undue delay in the disposal of the appellant's representation by the Government which received the representation 12 days after it was handed over to the Jail Superintendent by the detenu. This avoidable and unexplained delay has resulted in rendering the continued detention of the appellant illegal and constitutionally impermissible."
14. The avoidable and unexplained 11 days delay had resulted in rendering continued detention of the detenu illegal and constitutionally impermissible.
15. In Satnam Singh vs. State of Punjab, 1998(4) RCR (Criminal) 152, the decision of the Hon'ble Supreme Court in Aslam Ahmed Zahire Ahmed Shaik's case (supra) was followed to declare the order of detention as illegal considering the unexplained delay of 11 days in despatching the representation made by the detenu to the Government through jail Gulati Sumit 2014.03.20 14:46 I attest to the accuracy and integrity of this document CRWP No.1967 of 2013 -10- authorities.
16. In the light of the above decisions, I am of the considered view that the unexplained delay in despatching the representation dated 12.11.2013 and signed by the detenu on 14.11.2013 completely renders the continued detention of the detenu illegal.
17. It was further submitted by learned counsel appearing for the respondent that there was no proof for the receipt of representation dated 12.11.2013 by the detaining authority.
18. The order of detention passed by the detaining authority and the forwarding letter found in Annexure P-44 sent by Superintendent, Central Jail, Ludhiana on 22.11.2013 were thoroughly perused by me. It is found that the address of the detaining authority had been properly incorporated by the detenu in the representation dated 12.11.2013 and the Superintendent, Cental Jail, Ludhiana had also properly addressed the detaining authority. The very fact that the detaining authority had been properly addressed by the Superintendent, Central Jail, Ludhiana would give rise to a presumption that the addressee had in fact received the representation of the detenu sent by the Superintendent, Central Jail, Ludhiana. In the above facts and circumstances, I am of the view that the representation dated 12.11.2013 and signed by the detenu on 14.11.2013 had been disposed of only on 17.1.2014 after receiving a copy of the representation alongwith the advance copy of miscellaneous application. I am of the considered view that the detaining authority had in fact received the representation forwarded by the Superintendent, Central Jail, Ludhiana, but kept quite for Gulati Sumit 2014.03.20 14:46 I attest to the accuracy and integrity of this document CRWP No.1967 of 2013 -11- the reasons best known to it and it woke-up only on 16.1.2014 when it received the copy of the representation alongwith the miscellaneous application and disposed of the same on 17.1.2014. Such an inordinate and unexplained delay proves fatal to the continued detention of the detenu.
19. Learned counsel appearing for the respondent cited a decision in D.Anuradha vs. Joint Secretary and another, (2006) 5 SCC 142, wherein it has been held as follows:-
"17. It is true that this Court in a series of decisions has held that if there is any serious delay in disposal of the representation, the detention order is liable to be set aside. Nevertheless, it may be noticed that if the delay is reasonably explained and that by itself is not sufficient to hold that the detention was bad and illegal. In K.Aruna Kumari v. Govt. of A.P., (1988) 1 SCC 296, relying on the State of U.P. v. Zavad Zama Khan, (1984) 3 SCC 505, this Court held that there is no right in favour of the detenu to get his successive representations based on the same grounds rejected earlier to be formally disposed of again and also pointed out that in any event no period of limitation is fixed for disposal of an application.
18. In Union of India vs. Paul Manickam, (2003) 8 SCC 342, this Court deprecated the practice of sending representations to various authorities which were not directly or immediately concerned with the detention, and delay, if any, in disposing of Gulati Sumit 2014.03.20 14:46 I attest to the accuracy and integrity of this document CRWP No.1967 of 2013 -12- such representations shall not be taken advantage of by the detenu. In the present case also, all the representations were not addressed to the authorities concerned.
19. As regards delay in disposing of the representation, this Court, as early as in 1981 observed in Ummu Saleema case that there cannot be any fixed time and the delay, if any, in disposal of the representation is to be considered vis-a-vis any prejudice that may be caused to the detenu."
20. It is true that there is no time limit fixed for disposal of the representation made by the detenu. But the representation should be disposed of within a reasonable time. If undue delay has occasioned, the same should be explained by the authorities. In the aforesaid case, it is found that the delay in disposing of the representation was properly explained. Therefore, in my considered view, the above decision will not apply to the facts and circumstances of this case.
21. The unexplained delay in disposing of the representation has rendered the impugned order of detention unconstitutional.
22. It is further argued by the learned senior counsel appearing for the petitioner that the detaining authority had extensively referred to the confessional statement of Mithil Nanda in paragraph 54 of the impugned order of detention. But the retraction letter dated 5.10.2012 (Annexure P-36) sent by way of registered post with proof of delivery was not placed or considered by the authorities.
23. Learned counsel appearing for the respondent would Gulati Sumit 2014.03.20 14:46 I attest to the accuracy and integrity of this document CRWP No.1967 of 2013 -13- vehemently submit that Mithil Nanda is not the detenu in this case. There was only a passing reference as to the confessional statement made by Mithil Nanda. The confessional statement of Mithil Nanda was not the basis for passing the order of detention. Therefore, non-reference to the retraction letter sent by Mithil Nanda would not vitiate the order of detention passed by the detaining authority. Annexure P-36 would go to show that retraction letter dated 5.10.2012 had been sent by Mithil Nanda and the same was received by the DRI on 8.10.2012. But the same was not placed by the aforesaid authority nor was it considered by the detaining authority. This being the factual position, the Court will have to decide as to whether such a document was material document for consideration.
24. In para 54 of the grounds of detention, the confessional statement given by Mithil Nanda had been elaborately dealt with. That apart, at paragraph 82-A of the grounds of detention, detenu Rakesh Kumar Goyal had allegedly hatched a conspiracy with Mithil Nanda to fraudulently avail the benefits of Target Plus Scheme and also to divert the imported goods causing loss to the national exchequer to the tune of 3 crores.
25. It has been held in Vinod K.Chawla vs. Union of India and others, (2006) 7 SCC 337 that if material or vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make detention order are not placed before or are not considered by the detaining authority, it would vitiate its subjective satisfaction rendering the detention order illegal, relying upon the decision of the Hon'ble Supreme Court passed earlier in Ashadevi vs. K.Shivraj, Gulati Sumit 2014.03.20 14:46 I attest to the accuracy and integrity of this document CRWP No.1967 of 2013 -14- (1979) 1 SCC 222.
26. In the instant case, on a careful perusal of the grounds of detention served upon the detenu alongwith the order of detention, I find that the confessional statement of Mithil Nanda had also weighed in the mind of the detaining authority. The confessional statement had been retracted by Mithil Nanda and the letter of retraction also had been duly communicated to the authority. But unfortunately, the same was not placed by the Sponsoring Authority which resulted in non-consideration of such retraction by Detaining Authority.
27. Of course, learned counsel appearing for the respondent would submit that it is not as if some retraction made by the detenu was not placed before the detaining authority for consideration. It is only the retraction allegedly made by Mithil Nanda which was not placed as it was not a vital document which would weigh in the mind of the detaining authority.
28. I find that there is no merit in the submission made by learned counsel appearing for the respondent. Conspiracy theory has been projected in the grounds of detention. Mithil Nanda was party to the conspiracy hatched by the detenu, as per the decision of the detaining authority. Mithil Nanda's confessional statement also has been elaborately dealt with. The ultimate decision as regards the conspiracy had been arrived at by the detaining authority based on such confessional statement allegedly given by Mithil Nanda. Under such circumstances, the retraction made by Mithil Nanda is found to be all the more material document which should have been placed before the detaining authority by the Sponsoring Authority for Gulati Sumit 2014.03.20 14:46 I attest to the accuracy and integrity of this document CRWP No.1967 of 2013 -15- consideration. Such a lapse made by the Sponsoring Authority renders the order of detention illegal.
29. For all these reasons, the order of detention bearing No.673/02/2013-Cus/VIII dated 19.9.2013 passed under Section 3(1) of COFEPOSA stands quashed and the detenu is directed to be set at liberty forthwith. Consequently, the criminal writ petition is allowed.
March 20, 2014 (M. JEYAPAUL)
Gulati JUDGE
Gulati Sumit
2014.03.20 14:46
I attest to the accuracy and
integrity of this document