Awantika Didwania vs Union of India (UOI) and Another

A.N. Jindal, J.—The petitioner has invoked the jurisdiction of this Court under Article 226 of the Constitution of India with a prayer to quash the order of detention bearing F. No. 673/51/95-CUS.VII dated 17.5.1995 passed by the Detaining Authority-cum-Joint Secretary, COFEPOSA-respondent No. 2 under the provisions of Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (herein referred as "the COFEPOSA") issued against the husband of the petitioner namely Manoj Kumar Didwania son of Ram Gopal Did-wania, proprietor of the firm M/s Western Metal Corporation engaged in the business of trading of imported ferrous and non-ferrous metals, being illegal, unconstitutional and passed with wrong purpose based on extraneous, irrelevant and vague grounds and having suffered from inordinate delay for issuance as well as execution thereof.

The detention order issued against detenue on 17.5.1995 by the respondent No. 1 is being executed now after 13 years.

The factual background of the case is that Manoj Kumar a resident of District Bhiwani (Haryana) was the proprietor of one firm namely M/s Western Metal Corporation engaged in the business of trading of importing ferrous and non-ferrous metals. In the month of June/July, 1993, he being the proprietor of the firm entered into a contract with one M/s Donald Mearthy Private Limited for the purchase and supply of copper and brass scrap. The goods were shifted to Bombay port on the basis of "documents against payment terms". Since there was a delay in shipment and also the goods were wrongly landed at Bombay instead of Nheva Sheva, M/s Western Metal Corporation refused to accept the goods and did not retire the import documents by making necessary payments in the bank. Even no bill of the entry was ever filed. On 7.2.1994, M/s Donald Mearthy Private Limited sent a fax message to M/s Western Metal Corporation regarding non clearance of the goods, therefore, request was made for reshipment of the goods which was allowed on 21.3.1994. The Custom Department moved an application for modification of the order dated 21.3.1994 which was dismissed. Aggrieved by the said order, the Custom Department filed a SLP before the Supreme Court of India, whereupon, the Apex Court vide order dated 20.5.1994 rejected the application. However, a direction was given to the Custom Department to file the findings of further investigation before the High Court at Bombay. Again, on filing of the application for modification, the Bombay High Court, vide order dated 5.8.1994 stayed the order of re-shipment of the goods. The aforesaid litigation was only between exporter M/s Donald Mearthy Private Limited and the Customs Department and Manoj Kumar Didwania was not a party to those proceedings. On 18.8.1994, the Customs Department enlarged the scope of enquiry and issued a show cause notice u/s 124 of the Customs Act, 1962 for the violation of Section 7 of Foreign Trade (Development and Regulation) Act, 1992 and for confiscation of goods u/s 111 (d) of the Customs Act. Since the High Court had directed a time bound the programme for adjudication, therefore, the Collector of Customs without adjudicating the claim and, without supplying the requisite documents held that Didwania family had fictitious firms (without any specific reference to the detenue Manoj Kumar Didwania) and was directly or indirectly responsible for effecting massive imports with a sole intention to evade the prohibition of Export and Import Policy and also to evade tax liability. It was also held that importation was made by Didwania family against the prohibition imposed by Section 7 of the Foreign Trade and Development Act, 1992 and consequently, was liable for action u/s 111(d) of the Customs Act. However, the reshipment was allowed on payment of redemption fine of Rs. 2 crores. Didwania family filed the appeal, however, during the pendency of the appeal, orders of detention were issued against the detenue and the other family members including two brothers and nephew. However, Secretary, CEFAT vide order dated 8.7.1997, remanded the matter back for denovo adjudication. Later on, in the month of March, 2004, Government of India, revoked the detention orders against Deendayal Didwania and his son Navneet Kumar Didwania vide orders Annexures P-l and P-2 respectively, whereas, the order against the present detenue was not revoked, though his case was on better footings. The petitioner has claimed the order of detention to be unconstitutional, illegal, arbitrary and against the settled provisions of law on the following grounds:

The order suffers from malice in law and discriminatory resulting in violation of the article 14 of the Constitution of India. Repeated reference has been made in the grounds of detention that members of the Didwania family (without mentioning name of the detenue) had been indulging in importing goods. Though the detention orders regarding Deendayal Didwania and his son Navneet Kumar Didwania were revoked prior to their execution while exercising the powers vested u/s 11 of COFEPOSA by the Central vide Annexures P-l and P-2, but the order against the present detenue was not revoked which is highly discriminatory, illegal, malafide, tainted and arbitrary. In this regard he has placed reliance upon the judgment Pawan Bhartiya v. Union of India and Anr. : (2003)11SCC479 , and the verdict given by the Delhi High Court in case Bhuvan Aggarwal v. Union of India Writ Petition (Crl.) No. 1270 of 2007, decided on 10.04.2008.

The order of detention suffers from gross delay. The alleged prejudicial'' activities relate to May, 1993, whereas the. detention order was passed only on 17.5.1995 i.e. after a lapse of about 2 years. It raises a serious question on the necessity of the detention order. It also reflects lack of subjective satisfaction in passing the impugned order, therefore, the live and proximate link between the alleged prejudicial activities and the passing of the detention order has been snapped leading to the vitiation of the detention order. Further this delay caused in passing the detention order frustrates the very object for detaining the detenue for one year. The spirit behind the order was just to prevent the proposed detenue from illegal activities but passing of the order after 2 years frustrates it object. Further more, due to the lapse of more than 12-1/2 years in its execution, the order has been rendered stale and no live and proximate link is left between the alleged prejudicial activities and the necessity for detention. The Detaining Authority was required to apply its mind fresh as to whether there is still any necessity to execute the same and also to conclude whether the detenue was still indulging in any such activities warranting its prevention by way of execution of the impugned order of detention. Reference in this regard has been made to the judgment delivered by the Apex Court in case Sunil Funchand Shah v. Union of India AIR 2000 S.C. 1024. He has also referred to the judgments delivered in case P.M. Hari Kumar Vs. Union of India and others, ; A Mohammed Farook 2000 5 S.C.C. 411; Manju Ramesh Nahar 1999 6 S.C.C. 498 and S.M.F. Abdul Kadar, 7 1998 S.C.C. 1534.

The material and relevant documents have been withheld by the sponsoring authority from the gaze of scrutiny of the detaining authority. Non placement of these documents by the Sponsoring Authority resulting into non-consideration thereof by the detaining authority have impaired the subjective satisfaction of the detaining authority resulting in vitiation of the impugned detention order. Besides others the following documents have not been placed before the Detaining Authority:

Copy of the Fax message dated 7.12.1994, whereby M/s Donald Mcarthy Private Limited requested for reshipment of the entire consignment.

Copy of the order dated 15.3.1995 passed by the CEGAT regarding transfer of appeals at New Delhi, wherein, categoric observations were made pertaining to the word "Smuggling" vis-a-vis the facts of the present case.

Learned Counsel has further stressed that if the vital piece of evidence which is likely to infringe the subjective satisfaction if not placed before the detaining authority, then the detention order would be vitiated, on the view of non application of mind. In this regard he has cited Asha Devi v. K. Shivraj AIR 1979 S.C. 447 and State of U.P. Vs. Kamal Kishore and Another, .

The detention order has been passed in haste without awaiting the result of the appeal filed in the CEGAT.

The impugned order purported to have been executed against the detenue even if is assumed correct, does not fall under any of the prejudicial activities u/s 3(1) of the COFEPOSA, 1974.

The detention order has been issued for a wrong purpose because the detenue is not in any manner connected or related with smuggling of any goods, nor he dealt with any goods. He never indulged in smuggling activities nor his act has been detrimental to the COFEPOSA, thus, the order is based on non existence, vague or irrelevant grounds. In this regard, he has referred to the magna carta given by the Apex Court in case Additional Secretary to the Government of India and Others Vs. Smt. Alka Subhash Gadia and Another, .

To the contrary, learned Counsel for the Union of India, by way of return on sworn testimony of Ms. Rasheda Hussain, Joint Secretary to Government of India. Ministry of Finance, Department of Revenue, Janpath Bhawan, Janpath, New Delhi has submitted that the detention order was passed on subjective satisfaction in order to prevent the illegal and smuggling activities of the detenue. He has also relied upon the Apex court judgment delivered in case Alka Subhash Gadia and Anr.''s case (supra) and Administration of the National Capital of Delhi, Raj Niwas, Delhi Vs. Prem Singh, . It has been further asserted that order was passed against the right person by the duly empowered authority and on the specific and relevant grounds, based on the material placed before the detaining authority. The petitioner has sought the order of detention dated 17.5.1995 quashed on the allegations that it was passed on non existence, extraneous and irrelevant grounds which are factually not correct. He has tried to explain the delay for execution of the order. It was further replied that the detention order is well within the scope of Section 3(1) of COFEPOSA and the activities detailed in the impugned detention order in re* spect of Manoj Kumar Didwania falls under the scope of smuggling u/s 2(29) of the Customs Act, 1962. The contention raised by the petitioner regarding territorial jurisdiction has not been categorically denied as the respondents have submitted that they are not in the knowledge if the detenue had any residence at village Jhumpa Tehsil Shiwani. From the reply submitted by the respondents, it appears that the respondents did not categorically deny if the detention orders are not executed at village Jhumpa (Haryana).

Arguments heard. Record perused.

There is no denying a fact that four detention orders against Didwania family were passed on 17.5.1995 i.e. against Deendayal Didwania. Navneet kumar Didwania, Manoj Kumar Didwania and Anil Kumar, Didwania. The case of the husband of the petitioner namely Manoj Kumar Didwania is similar to those of Deendayal Didwania and Navneet Kumar Didwania. The detention orders with regard to these two persons were withdrawn vide Annexures P-1 and P-2 by the Central Government. The grounds for detention in the aforesaid orders were identical which were allegedly committed by Didwania Group/Family. Apparently, there is no distinct and different role attributed to the detenue from that of the codetenues, as such non revocation of the order of detention qua the detenue while the orders regarding the co-detenues were revoked, transpires a pick and choose policy and indicates discriminatory behaviour of the Government towards the present detenue. Similar view was taken by the Apex Court in case Pawan Bhartiya v. Union of India and Anr. : (2003)11SCC479 , wherein, the Apex Court was pleased to quash the order of detention at the pre-execution stage on the ground that the order against the similarly situated co-detenue was revoked. Similar view was taken by the Delhi High Court in case Bhuvan Aggarwal v. Union of India, Writ Petition (Crl.) No. 1270 of 2007, decided on 10.4.2008.

The law of preventive detention, which seeks to curtail the liberty of a person on the ground that there is likelihood or apprehension of a person indulging in unlawful activities in case he is not subjected to confinement, is indeed a draconian measure which is the very ante thesis of protection of life and liberty as enshrined in our Constitution.

Needless to say that Statutes conferring such a power have been viewed and handled with great care and caution with judicial precedents cushioning the impacts of such measures as also cautioning the authorities time and again to strictly adhere to the safeguards provided in the Statute as also the Constitution so as to ward off any violation and the safeguards have to be strictly complied with and violations dissuaded. The petitioner has highlighted the material which was not made available and non production of the material documents enabling the authority to reach the subjective satisfaction before passing the detention order which certainly could be said to be sufficient ground for setting aside the order of detention. It has been observed in Asha Devi v. K. Shivraj AIR 1979 S.C. 447 that although the confessional statement of the detenue was placed before the detaining authority, the detenue''s subsequent retraction was not placed before the said authority and the Supreme Court took the view that the failure to place the latter, vitiated the detention order on the vice of non application of mind and rendered the detention as unsustainable.

Similarly, in case Ahamed Nassar Vs. The State of Tamil Nadu and Others, as would be manifest from para No. 39, the two letters which were relevant were not placed. It was held in the said judgment that the question is not whether the second part of the contents of those letters was relevant or not but whether they were placed before the detaining authority for his consideration. There could be no two opinions on it. The contents of letter may be of any worth whatsoever. What else would be relevant if not this? It may be that the detaining authority might have come to the same conclusion as the sponsoring authority.

Learned Counsel for the petitioner has also placed reliance on the order dated 21.32007 passed in Criminal Writ Petition No. 1181 of 2006 titled as Narinder Singh Lottye v. State of Punjab and Ors., vide which the detention order was quashed at the pre-executing stage. The contention of the petitioner that since the order was passed for a wrong purpose and based on malafides is executed after 12-1/2 years when its very purpose has been frustrated finds substance and is clearly covered by the guidelines issued by the Apex Court in case Additional Secretary to the Government of India and Others Vs. Smt. Alka Subhash Gadia and Another, . At the same time, Mr. Gurpreet Singh, Advocate on behalf of the respondent has also stressed that the guidelines as issued in Alka Subhash Gadia''s case (supra), still holds the field, yet the case of the petitioner is not covered by the aforesaid judgment. The Apex Court while elaborating the scope and object of detention observed in para No. 27 of the judgment as under:

the preventive detention law by its very nature has always posed a challenge before the Courts in a democratic society such as ours to reconcile the liberty of the individual with the alleged threatened interests of the society and the security of the State particularly during times of peace. It is as much a deprivation of liberty of an individual as the punitive detention. Worst still unlike the latter, it is resorted to prevent the possible misconduct in future, though the prognosis of the conduct is based on the past record of the individual. The prognosis further is the result of the subjective satisfaction of the detaining authority, which is not justifiable. The risk to the liberty of the individual under our detention law as it exists is all the more aggravated because the authority entrusted with the power to detain is not directly accountable to the legislature and the people.

It has further been held, inter alia as under:

Thirdly, and this is more important, it is not correct to say that the courts have no power to entertain grievances against any detention order prior to its execution. The Courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied (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 refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or their denial to the proposed detenue, but prevents their abuse and the perversion of the law in question.

In the instant case, in the absence of evidence regarding any prejudicial activities, covered within the scope of Section 3 of COFEPOSA, 1974, the detention order and subjective satisfaction with regard to possible misconduct in future could be treated as wholly unwarranted, arbitrary, unreasonable and without jurisdiction. It has also been observed in case Rajinder Arora Vs. Union of India (UOI) and Others, , that the detention order could be quashed on the pre-execution stage on the ground of delay in passing of the order, non launching of the adjudication proceedings and prosecution, non placement/non-consideration of the vital documents as well as malafides. They further observed that aforesaid grounds brings the case within the exception (iii) and (iv) as enumerated in Alka Subhash Gadia''s case (supra). Consequently, I also observe that the present case is also covered by the ratio of the law laid down in Alka Subhash Gadia''s case (supra).

As a matter of fact, delay in deciding the proposed detention and also inordinate delay in executing the same really frustrate the very object of the detention and such order now put for execution after 12-1/2 years of its passing could certainly be termed as based on malafldes. The allegations on record reveal that it was only for the evasion of some custom duty for which penalty could be imposed. The object of detention is not to punish but to prevent the commission of certain offences. The detention could be allowed only on subjective satisfaction of the detaining authority based on sufficient material that the detenue was a habitual offender, but it should not be objective one based on detaining authority''s emotions, belief or prejudices. There must be a real likelihood of the person being able to indulge in such activities and it should take precautions and give due regard to the personal liberty as the most precious right of the mankind.

As regards the territorial jurisdiction, it may be observed that as per Section 4 of the COFEPOSA, 1974, the execution of the order of detention could be executed at any place in India in the manner provided for the execution of the warrants of arrest under Code of Criminal Procedure, 1973 (2 of 1974). The petitioner has placed on record copy of the jamabandi showing Meenu Goyal, now known as Avantika Didwania resident of Village Jhumpa, Tehsil Sivani District Bhiwani, having landed property there. The certificate issued by the Sarpanch certifying that she is the resident of village Jhumpa lends support of her claim. Other documents Mark-X and Mark-Y placed before me also reveal that dispute between the detenue and village men had arisen in village Jhumpa which was got settled by the Sarpanch of the village. Even otherwise, besides the ancestral house and agricultural land situated in the said village, the petitioner has a real, genuine and bona-fide apprehension that the said order of detention would be served at the said village. The union of India has neither categorically denied if she is not the resident of village Jhumpa nor has stated that warrants are not executed in the said village, therefore, it is hard to disbelieve that the contention of the petitioner that the detenue is not the resident of State of Haryana and also that warrants could not be executed at a place in Haryana. The jurisdiction of this Court could be inferred from the reasoning that warrants could be executed in the State of Haryana and it is also settled by now that the petitioner could invoke the jurisdiction of the Court where part of cause of action arises. Nevertheless, The order of detention was passed at New Delhi or some transactions took place at Bombay, yet, it cannot be ignored that since the warrant of detention could be executed at his permanent residential place at Haryana, this Curt assumes jurisdiction to try the petition.

For the foregoing reasons, this petition is allowed and the impugned order of detention dated 17.5.1995 is set aside.

However, the respondents would be at liberty to proceed afresh in accordance with law.