Deepak Dhemla vs State & Anr

Manmohan, J

Present writ petition has been filed under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure for

issuance of a writ of certiorari or any other writ/ order/direction seeking quashing of the detention order dated 28th September, 2001 passed under

Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as “COFEPOSA

Actâ€​) by the Deputy Secretary (Home) against the petitioner on account of the alleged contravention of the provisions of the Customs Act, 1962.

The brief facts of the present case are that one Mr. Rajesh Gulati was intercepted by the Customs authorities at the Indira Gandhi International

Airport, New Delhi on 05th July, 2001 and a number of mobile phones were seized from him. Mr. Rajesh Gulati gave a statement under Section 108

of the Customs Act, 1962 implicating his brother-in-law i.e. the petitioner. However, when Mr. Rajesh Gulati was produced before the Court of

learned Metropolitan Magistrate, he retracted his confessional statement.

Learned counsel for petitioner points out that in a petition filed by Mr.Rajesh Gulati before the Supreme Court, his detention order dated 28th

September, 2001 passed under Section 3(1) of the COFEPOSA Act, was quashed as far back as 29th August, 2002.

He contends that the impugned detention order could not have been passed by the respondent solely on the basis of retracted statement under

Section 108 of the Customs Act, 1962, of an estranged relative of the petitioner and more so, when searches/raids conducted at the premises of the

petitioner immediately after the alleged incident, had not revealed any involvement of the petitioner in the alleged activities of smuggling.

Learned counsel for petitioner states that the impugned order dated 28 th September, 2001 passed under Section 3(1) of COFEPOSA Act against

the petitioner has not been executed till date. He emphasises that the impugned order was never in the knowledge of the petitioner when it had been

passed or even later. He contends that the authorities had no real intention of executing the said order against the petitioner nor was there any

need/requirement of the said order against the petitioner because the petitioner had never been involved in any smuggling activity.

Learned counsel for petitioner vehemently contends that the impugned order having not been executed for more than sixteen long years, had lost its

utility and sanctity and the same had lapsed.

He further states that vide order dated 28th June, 2007 passed by Joint Secretary, Department of Revenue, Ministry of Finance, Government of

India, a revision application filed by the petitioner against order dated 12th January, 2007 passed by the Commissioner of Customs (Appeals), New

Delhi, was allowed and the order imposing penalty on the petitioner was set aside on the ground that he had neither admitted his involvement in the

case nor was his involvement proved by the Department through other corroborative evidence.

He points out that the petitioner was earlier possessing a passport No.B0994443 in his name, but the same had expired in or about 2005 and the said

passport had not been renewed. He states that the petitioner is currently not holding any passport.

He lastly states that the petitionerâ€s father is suffering from cancer and in the event, the order of detention is not quashed, petitioner would suffer

irreparable harm and injury.

Per contra, Mr. Satish Aggarwala, learned counsel for respondent-Customs states that the petitionerâ€s contention that he came to know of the

impugned detention order dated 29th September, 2001 only after the final order dated 17th March, 2016 had been passed under Section 7(1) & (3) of

SAFEMA Act, 1976, is wrong, since in the year 2005, the petitioner had applied to the Honâ€ble Lieutenant Governor, Govt. of NCT of Delhi, for

revocation/cancellation of detention order passed under COFEPOSA Act.

He points out that the petitioner absconded to USA to escape the consequences of the case as he was well aware that the investigation was going

on in the case of Mr. Rajesh Gulati. He also states that the petitioner kept on changing his residential address to escape from the detention. He points

out that the petitioner had been declared proclaimed offender vide order dated 07th August, 2002 passed by the Chief Metropolitan Magistrate, Delhi.

Mr. Satish Aggarwala emphasises that the reason for filing the present petition is the order dated 17th March, 2016 passed by the Competent

Authority, SAFEM (FOP) Act, 1976 and NDPS Act, 1985 freezing the petitionerâ€s bank accounts. He, however, admits that the petitioner had filed

an appeal before the Appellate Tribunal for SAFEMA, FEMA, PMLA, NDPS, PBPT Act, at New Delhi and an interim order had been passed in

petitionerâ€​s favour.

Having heard learned counsel for parties, this Court is in agreement with the learned counsel for respondent-Custom that the petitioner was aware

of the detention order as he had made a representation to the Honâ€​ble Lieutenant Governor, Govt. of NCT of Delhi in 2005.

This Court is also in agreement with the contention of learned counsel for respondent-Customs that the detention order could not be executed

against the petitioner because he had fled to USA and after coming to India had kept changing his residential addresses in Delhi, Ghaziabad and

Dehradun.

However, as the petitioner had allegedly indulged in unlawful activity as far back as July, 2001 and the business of import of mobile phones is no

longer lucrative and the petitionerâ€s passport is lying expired since 2005 as well as the fact that the penalty proceedings had resulted in exoneration

of the petitioner, this Court is of the view that continuing the order of detention would be an exercise in futility. In fact, this Court is of the opinion that

there is no live-link today between the alleged prejudicial activities and the purpose of detention. The Supreme Court in T.A. Abdul Rahman vs. State

of Kerala & Ors., AIR 1990 SC 225 with regard to „live-linkâ€​ has held as under:-

“11. The conspectus of the above decisions can be summarised thus: The question whether the prejudicial activities of a person necessitating to

pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of

detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable

under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical

test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay

between the prejudicial activities and the passing of detention order, the court has to scrutinise whether the detaining authority has satisfactorily

examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and

further the court has to investigate whether the causal connection has been broken in the circumstances of each case.â€​

Similarly, the Supreme Court in Saeed Zakir Hussain Malik vs. State of Maharashtra & Ors., (2012) 8 SCC 233 has held as under:-

“27. As regards the second contention, as rightly pointed out by the learned counsel for the appellant, the delay in passing the detention order,

namely, after 15 months vitiates the detention itself. The question whether the prejudicial activities of a person necessitating to pass an order of

detention is proximate to the time when the order is made or the live link between the prejudicial activities and the purpose of detention is snapped

depends on the facts and circumstances of each case. Though there is no hard-and-fast rule and no exhaustive guidelines can be laid down in that

behalf, however, when there is undue and long delay between the prejudicial activities and the passing of detention order, it is incumbent on the part of

the court to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a reasonable and acceptable explanation

as to why such a delay has occasioned.

It is also the duty of the court to investigate whether causal connection has been broken in the circumstance of each case......

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......Consequently, we set aside the judgment dated 14-8-2008 in Saeed Zakir Hussain Malik v. State of Maharashtra [WP (Cri) No. 455 of 2008,

order dated 14-8-2008 (Bom)] and quash the detention order dated 14-11-2006. Inasmuch as the detention period has already expired, no further

direction is required for his release. The appeal is allowed.â€​

Keeping in view the aforesaid mandate of law as well as absence of causal connection and live-link, the impugned detention order dated 28th

September, 2001 passed by respondent No.2 against the petitioner is set aside.

At this stage, learned counsel for the petitioner states that for his failure to disclose his representation of 2005 to the Honâ€ble Lieutenant

Governor, the petitioner shall voluntarily deposit Rs.1,00,000/- with AIIMS Poor Fund Account No.10874588424 with SBI, Ansari Nagar, New

Delhi(IFSC Code:SBIN0001536) within two weeks. The statement made by learned counsel for petitioner is accepted by this Court and petitioner is

held bound by the same. With the aforesaid observation, present petition and pending application stand disposed of.