Delhi HC was confronted with a writ petition to quash a preventive detention order passed in 2021 for alleged offences committed in 2018.
Facts in Brief
On 31.10.2019, the petitioner suffered a brain stroke which resulted in paralysis on the left side of his body, which left him physically incapacitated. A detention order under section 3(1) of the Conversation of Foreign Exchange & Prevention of Smuggling Activities Act 1974, was passed against the petitioner on 15.01.2021 and the petitioner was taken into custody on 20.1. 2021. The main ground invoked to authorize his detention was that the petitioner was running a syndicate, which was involved in fraudulent imports and exports with the aim of avoiding customs duty and earn undue export benefits through IGST (Integrated Goods and Services Tax). The Petitioner made representations to serval forums, but of no avail. The Petitioner approached the High Court via Writ petition under Article 226, 227 of the Constitution and under section 482 of the Criminal Procedure Code, 1973.
Arguments by the Petitioner
The petitioner contended that none of the statements relied on by the respondents provide any basis to infer that the petitioner was involved in any prejudicial activity. He further contended that the respondents have placed reliance on a bill dated 11.12.2018 by MG Enterprises to depict prejudicial activity, but the detention order is passed in 2021 that depicts inordinate delay, which in effect vitiates the aim of preventive detention. He further contended that the grounds of the detention and the related documents were provided to him 3 days after his detention. He further contended that due to his medical condition, he could not have indulged in prejudicial acts and his detention is unjustified.
Arguments by the Respondent
The respondents contended that the petitioner is involved in fraudulent transactions as 33 firms have been found to be in the petitioner’s name or associated with his close family members that were used to claim buybacks. They further contended that the petitioner operates under 2 names such as that of Naveen Kasera and Naveen Aggarwal, which is indicative of his mala fide approach towards the law. They further contended that they sent a summons to the petitioner in 2019, before he suffered a brain stroke, but he failed to comply with them.
Analysis
The Court first relied on section 2 (39) of the Customs Act, 1962 to ascertain the meaning of smuggling and referred to section 113 (k) to ascertain the meaning of confiscation of goods attempted to be improperly exported. The Court after examination held that, since the main allegation against the petitioner is that goods were omitted to load for exportation, in an attempt to avail duty drawback and benefit under the IGST, that would prima-facie amount to smuggling.
The Court placed reliance on T.A Abdul Rahman v State of Kerala, which stated that the question of 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. And the court has to scrutinize whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occurred. The Court relying on this ruling held that in this present case the live link between the prejudicial activities and the purpose of detention is snapped as the reliance is placed on a bill of 2018 and the detention order is passed in 2021.
The Court also placed reliance on Licil Antony v State of Kerala in which it was held that mere delay is not ground enough to set aside a detention order, but if the detention is premised on grounds that are stale or illusory or lack real nexus with the detention, it can be quashed. The Court then held that in the present case the grounds are stale and illusory as the detention order is passed in 2021 after a period of 2 years. The Court then stated that no purpose would be served in keeping the petitioner under custody, as aim of the preventive detention is to prevent crimes, not to punish for them and the petitioner now is not under the condition to commit further crimes.
Decision of the Court
The Court quashed the detention order passed on 15.01.2021 and ordered the release of the petitioner from custody and disposed of the writ petition on these terms.
Click here to view the Judgement
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