UNION OF INDIA Vs. CHAYA GHOSHAL

JUDGEMENT

(1.) Union of India and the Joint Secretary (COFEPOSA), Government of India, Ministry of Finance, Department of Revenue, (hereinafter referred to as the detaining authority) call in question legality of the judgment rendered by the Division Bench of the Calcutta High Court quashing the order of detention passed by the appellant No.2 under Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA) directing detention of Rajen Ghosal (hereinafter referred to as the detenu).

(2.) A Habeas Corpus Writ Petition under Article 226 of the Constitution of India, 1950 (in short the Constitution) was filed by the respondent No.1, the wife of the detenu. The order of detention was primarily based on the ground that on the basis of information received on 8-1-2002 by the Special Investigation Branch, Kolkata Customs, seven containers of (7 x 20) and one container of (1 x 40) were offloaded, from the vessel of Vishakapatnam Port were detained and examined. The allegation was that few Kolkata based exporters have exported on 5-1-2002 readymade garments, ball pens and side rubber wheels grossly mis-declaring the quantity, description and value with an ulterior motive to avail undue drawback worth crores of rupees. Detenu who was the proprietor of M/s. Shyam Sunder Enterprises had exported some of the containers. After opening the consignments, substantial shortage in quantities were detected. It appeared that the goods were highly over invoiced and even mis-declared in respect of description of certain items. There was grave difference in the actual quantity and the quantity of garments and ball pens and side rubber wheels that were to be exported with that of those articles which were actually found in the container at the port. It was concluded that all these were done with the sole intention of getting huge amount of foreign currency. Investigations were done and a licenced clearing agent was interrogated and his statement was recorded under Section 108 of the Customs Act, 1962 (in short the Customs Act). It appears that one Shri Anil Kumar Mahensaria was the brain behind the acts and the detenu was deeply involved in the concerned acts. Residence of the detenu was searched and he was arrested. He was interrogated at length about his accomplicity in the matter. He clearly stated that he was a person of limited means and had obtained Importer Exporter Code No. (in short the IEC). He had allowed the same to be used and was only lending his Code for petty sums. The detenu was produced before the Chief Judicial Magistrate, Kolkata who remanded him to the judicial custody. During his detention further statements were recorded. Detenu was released on bail on 11th September, 2002. On the basis of the materials collected, it was felt that with a view to prevent him from continuing the illegal activities he was to be detained under COFEPOSA. The order of detention was passed on 20-11-2002 and he was arrested on 17-12-2002. The order of detention and the grounds of detention were duly served and he was made aware of his right to make representations to the Central Government and the Detaining Authority and also the Advisory Board. The representations made by the detenu were rejected. The order of detention was questioned by the respondent No.1 on several grounds; firstly it was submitted that there was unusual delay in passing the order of detention. The investigation process had started in January, 2002 but the order of detention was passed in November, 2002. After his release on bail there was nothing to show that he had continued to indulge in prejudicial activities of smuggling. Further there was unusual delay in executing the order of detention. Only one incident was referred in the grounds of detention to justify his detention. There was nothing to demonstrate continuing criminality and culpability to continue such action in future. There was non-application of mind while taking the decision to detain the detenu. Irrelevant materials were taken into consideration. Materials which were in the possession of the sponsoring authority were not placed before the Detaining Authority. In any event there was unusual delay in disposing of the representations and there was no independent consideration by the Central Govt. as required under Section 11 of the COFEPOSA. The stand was opposed by the Detaining Authority. The counter affidavit was filed. A rejoinder was filed by the writ petitioner purportedly with a view to clarify some of the statements made in the counter affidavit. The High Court found that there was no unusual delay in passing the order of detention. But it was held that there was undue delay in initiating the process i.e. the proposal for detention by the sponsoring authority. It was held that there was unexplained delay in passing the order of detention. It was also held that there was unusual delay in executing the order of detention. While the other pleas of the detenu were rejected, it was observed that there was unexplained delay in disposing of the representations and the solitary instance highlighted by the Detaining Authority was not sufficient to justify the order of detention. The rejection of representation by Central Government was without application of mind.

(3.) Aggrieved by such judgment of the High Court, as noted above, this Appeal has been filed. It was submitted by the learned counsel appearing for the appellants that the High Court did not take note of the various relevant factors and on presumptions adverse inferences and surmises have been drawn. Having accepted that the investigation was going on and there was delay in completion of the investigation due to filing of Writ Petitions by the detenu and interim orders passed, a contrary view should not have been taken to hold that there was unusual delay in passing the order of detention. Similarly it was submitted that in spite of best efforts the detenu could not be apprehended and after about three weeks of sincere efforts he was arrested. That cannot be termed as unusual delay in executing the order of detention. The High Court attached undue importance to the fact that after the release on bail there was no allegation of the detenu indulging in any objectionable activity. It is the impact of the act and not the number of infractions which is relevant. Finally there was no unusual delay in disposing of the representations and the view of the High Court, that the Central Government had not in fact applied its independent mind and had merely rejected the representation on the ground that the Detaining Authority had rejected it, is not factually correct.