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2006 DIGILAW 383 (DEL)

SHOBHA ANIL GOYAL v. UNION OF INDIA

2006-03-01

MANJU GOEL, MANMOHAN SARIN

body2006
MANJU GOEL, J. ( 1 ) THE order of detention dated 16. 3. 2004 was passed under Section 3 (1) of conservation of Foreign Exchange and Prevention of Smuggling Activities Act (`cofeposa for short) against Anil Goyal (hereinafter referred to as `the absconder ). The petitioner is the wife of the absconder who has challenged the order of detention. The detention order has not been executed so far. It is submitted on her behalf that her husband has never been involved in any smuggling activities and that there was no occasion for passing such a detention order. The petition is defended by the Union of India and more particularly by the Additional Director General of the Directorate of Revenue Intelligence and the Commissioner of Customs, namely, respondents 3 and 4. Respondent states that activities of the petitioner s husband demonstrate that he has propensity to smuggle. Accordingly, the detention order has been validly passed to prevent smuggling activity, which may be indulged in by the absconder. ( 2 ) THE limited grounds on which an order of this nature can be challenged have been clearly laid down by the Apex Court in the case of Additional Secretary to the Government of India and Ors. Vs. Smt. Alka Subhash Gadia and Another reported as 1992 Supp (1) SCC 496. The detention order can be quashed only on one of the following grounds: (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) It is passed for a wrong purpose. (iv) That it is passed on vague, extraneous and irrelevant grounds. (v) That the authority which passed it has no authority to do so. ( 3 ) LEARNED counsel for the petitioner during arguments confined the challenge to the impugned order mainly on the ground that it was passed for a wrong purpose. He has gone on to say that the intention of respondent Nos. 3 and 4 is actually to punish the petitioner for certain alleged activities and not to actually prevent the petitioner from any smuggling. He has gone on to say that the intention of respondent Nos. 3 and 4 is actually to punish the petitioner for certain alleged activities and not to actually prevent the petitioner from any smuggling. It is specifically stated that the absconder was presumed to have been involved in evading the anti dumping duty by taking undue advantage of the Indo Sri Lanka Free Trade Agreement which exempted goods originating in Sri Lanka from the anti dumping duty and that the agreement having expired, there can be no fear of the absconder engaging himself in any activity of the nature which he had allegedly been involved in. Petitioner asserts that the goods in respect of which the allegation of smuggling has been made were in fact of Sri Lankan origin and supports her assertion by production of certificates of origin and another document confirming the certificate of origin. It is further submitted that since Indo Sri Lanka Free Trade Agreement has come to end, no useful purpose would be served by detaining the absconder and instead the respondent should proceed to recover the duty due, if any. ( 4 ) BEFORE proceeding further it will be appropriate also to refer to the judgment of the Supreme Court in the case of Union of India Vs. Amrit Lal Manchanda and anr. reported as (2004) 3 SCC 75 in which it has been clarified that preventive detention is resorted to when the executive is convinced that such detention is necessary in order to prevent him from acting in a manner prejudicial to certain objects which are specified by the law concerned and the matter is necessarily to be left to the discretion of the authority and, therefore, satisfaction of the detaining authority has to be considered to be of primary importance with great latitude in the exercise of such discretion. Further it has also been explained in this judgment that the information available with the State may merely afford basis for a sufficiently strong suspicion to take action but may not satisfy the tests of legal proof on which alone a conviction for offence will be tenable. The respondents have, therefore, attempted to show that they had sufficient material with them for raising a suspicion about the involvement of the absconder in certain smuggling activities and about his propensity to smuggle. The respondents have, therefore, attempted to show that they had sufficient material with them for raising a suspicion about the involvement of the absconder in certain smuggling activities and about his propensity to smuggle. According to the respondents, even after the expiry of the Indo Sri lanka Free Trade Agreement the suspicion continues and the preventive detention is justified. ( 5 ) THE order of detention has not been served on the absconder so far but the materials available with the respondents which have led to the passing of the detention order can be found in two notices of show cause dated 22. 4. 2004 and 30. 4. 2004 respectively issued by the respondent No. 3. The absconder is alleged to have been associated with M/s. Aman Traders and M/s. Maya Trading Company and to have entered into a conspiracy with one Suresh Pal Gupta of M/s. Mehta trading of Dubai and Jitender Mehta of Sakshi International of Sri Lanka and to be the real person behind M/s. Maya Trading Company and M/s. Devsons. The absconder apparently represented certain goods imported by M/s. Aman Traders, as of being of Sri Lankan origin and to have taken benefit of Indo Sri Lanka Free trade Agreement. The three certificates of origin on the basis of which anti dumping duty have been avoided are:1. CO/isfta/03/2748 dated 9. 5. 2003 2. CO/isfta/03/3618 dated 16. 6. 2003 3. CO/isfta/03/2138 dated 3. 4. 2003 ( 6 ) ACCORDING to the respondents the goods in question, namely, bearings of `kg brand were actually made in China on job work basis. Further the Department of commerce, Govt. of Sri Lanka on verification of the certificates found that they were forged. Interestingly, the petitioner also claims to have letters confirming the certificates of origin to be genuine. The Sri Lankan trader from which the goods have been purchased for import is one M/s. Aurea Industries Pvt. Ltd. According to the respondents, M/s. Aurea Industries Pvt. Ltd. is a bogus firm and the certificates of origin mentioned above were never issued to M/s. Aurea Industries Pvt. Ltd. but were issued to some other trader. The petitioner is placing reliance on the letter issued by the office of Deputy Director of commerce of the Government of Sri Lanka dated 28. 7. The petitioner is placing reliance on the letter issued by the office of Deputy Director of commerce of the Government of Sri Lanka dated 28. 7. 2004 in which it is confirmed that the three certificates of origin referred to in the letter of the advocate of the absconder were issued by the Department of Commerce. This letter, however, does not mention in whose favour the same were issued. The respondents, on the other hand, have produced certification dated 20. 7. 2005 from sri Lanka Customs saying that the Department of Commerce of Government of Sri lanka issued the two certificates dated 9. 5. 2003 and 16. 6. 2003 but these certificates were not issued to M/s. Aurea Industries Pvt. Ltd. but had been issued to M/s Coloron Ltd. By another letter dated 29. 1. 2004 DRI, Chennai wrote to DRI, New Delhi that verification from the Department of Commerce, Sri Lanka confirms that the certificates of origin dated 9. 5. 2003 and 16. 6. 2003 in favour of Aurea Industries Pvt. Ltd. were forged documents. By a letter dated 22. 4. 2004, DRI, Chennai also confirmed that on verification the third certificate of origin dated 3. 4. 2003 was also found to be a forged document and that the same had not been issued by the Department of Commerce, Sri Lanka. The state have also taken pains to place on record the specimen signatures of the authorised officer to show that the correspondence relied upon by the petitioner is also forged. The respondents have demonstrated, prima facie, that the certificates of origin dated 9. 5. 2003 and 16. 6. 2003 are not genuine documents and on the contrary, are reported to be forged. In these circumstances, the petitioner in any case would be disentitled to seek relief in writ jurisdiction on the basis of the said certificates of origin. ( 7 ) APART from this the respondents claim to have obtained sufficient material to show the absconder s association with the aforesaid firms. A search conducted on 31. 4. In these circumstances, the petitioner in any case would be disentitled to seek relief in writ jurisdiction on the basis of the said certificates of origin. ( 7 ) APART from this the respondents claim to have obtained sufficient material to show the absconder s association with the aforesaid firms. A search conducted on 31. 4. 2004 at the godowns of the absconder at Ghazipur yielded recovery of empty cartons with marks of M/s. Aurea Industries Pvt. Ltd. In fact, the absconder himself in a statement made to DRI admitted his involvement in the import of ball bearings which were seized by respondent No. 3 at ICD, Patparganj which was believed by respondent No. 3 to be of Chinese origin although the goods were being shown as of Sri Lankan origin and exempt from anti dumping duty. The respondents have thus been able to show that they had conducted indepth investigation and had sufficient material to raise a suspicion that the absconder was involved in smuggling activities in a planned and schematic manner and also that he had the propensity to be involved into smuggling activities also in the future. ( 8 ) FOR the present purpose it is not necessary for this court to go into an adjudication as to whether the certificates of origin were actually forged or whether there is sufficient material to hold the petitioner guilty of some smuggling activity. All that is necessary now is to see whether the respondents were justified in exercising their jurisdiction based on suspicion that had arisen in the circumstances to pass an order of detention under Section 3 (1) of cofeposa. The situation being what is described above, the respondents cannot be faulted for having passed an order of detention. The same cannot be quashed on the allegation that the order of detention has been passed for a wrong purpose. It may be added here that no malice or ulterior motive of any kind has been alleged or shown to exist behind the passing of the order. ( 9 ) A long time has elapsed after the passing of the detention order. This by itself is not sufficient to quash the order of detention. It may be added here that no malice or ulterior motive of any kind has been alleged or shown to exist behind the passing of the order. ( 9 ) A long time has elapsed after the passing of the detention order. This by itself is not sufficient to quash the order of detention. In the case of Amrit lal Manchanda (Supra) the Supreme Court categorically laid down that the detention order cannot be quashed on the ground of passage of time between the date of detention order and the date on which the High Court took up the writ petition for consideration as the delay was caused by the effort of the detenu himself to evade arrest. There has been no such delay in passing of the detention order so as to snap the nexus between the activities indulged in or which may be indulged in by the absconder. 10. We find no reason why the impugned order of detention dated 16. 3. 2004 should be quashed. The petition is accordingly dismissed with costs. .