HARPAL SINGH Vs. UNION OF INDIA AND ORS.

JUDGEMENT

(1.) HARPAL Singh challenges at pre -detention stage his detention under the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 ('COFEPOSA, Act', for short). The detention order enclosed as Annexure P -1 to the writ petition is dated 31st of March, 2015 and the present writ petition was filed in this High Court on 4th July, 2015.

(2.) THE petitioner contends that the detention order deserves quashing at the pre -detention stage, in the absence of "live link" due to time gap between the detention order dated 31st March, 2015 and the occurrence on 7th July, 2014, which is the substratum and foundation of the detention order. The "live link" snapped once the petitioner ceased to be an employee of M/s. Minar Travels Pvt. Ltd. in January, 2015. The monetary transactions in the year 2012 -13, by way of loans between the petitioner / his wife and Sheikh Mohammed Javid, were too distinct in time to show any connection or involvement of the petitioner and the gold smuggling in 2014. The said transactions were duly disclosed in the income -tax returns. The "live link" also came apart due to delay in execution of the detention order dated 31st March, 2015, as the said detention order and grounds of detention were dispatched to the executing authority only on 5th May, 2015, after a gap of about 35 days and thereafter no attempt and effort was made to serve the order of detention and detain the petitioner. It is asserted that the petitioner had not absconded and in fact had appeared, on being summoned, before the Enforcement Directorate at Goa on 04.06.2015. Petitioner's wife had also fully cooperated and was questioned by the Enforcement Directorate on 02.06.2015. Lastly, on merits it is submitted that the petitioner had signed application forms for access to the airport as an employee of M/s. Minar Travels Pvt. Ltd., as he had the signing authority and not for any personal gains or advantage. Sheikh Mohammed Javid too was an employee of M/s. Minar Travels Pvt. Ltd., a company engaged in travel business. Similar applications were signed by the petitioner for other employees. As per the instructions of the Airport Authority of India, access passes were /are issued for three months and were/are renewable. The passes were /are scrutinized by AAI Pass Committee. On the recommendation of the said Committee, the Bureau of Civil Aviation issues all area entry pass. M/s. Minar Travels Pvt. Ltd. had applied for renewal of pass in the name of Sheikh Mohammed Javid, as entry to the airport was required and necessary even after the chartered flights had stopped for attending to the leftover passenger from Russia, who could be flying out on regular basis. Reliance is placed upon the decision dated 29.5.2015 of this High Court in Pankaj Kumar Shukla Vs. Union of India & Ors. [WP(Crl.) No. 827/2015]. Attention was also drawn to the decision of the Supreme Court in Additional Secretary to the Government of India and Anr. Vs. Smt. Alka Subhash Gadia & Anr. reported at : 1992 Suppl.(1) SCC 496; Subhash Popatlal Dave Vs. Union of India & Anr. reported at : (2012) 7 SCC 533 [hereinafter referred to, as Subhash Popatlal Dave (1)] and also on Subhash Popatlal Dave Vs. Union of India and Anr. reported as : (2014) 1 SCC 280 [hereinafter referred to, as Subhash Popatlal Dave (2)].

(3.) THE aforesaid five grounds mentioned in Smt. Alka Subhash Gadia (Supra) were treated as sacrosanct in Sayed Taher Bawamiya Vs. Govt. of India : (2000) 8 SCC 630 wherein the five exceptions or grounds were held to be exhaustive. However, in Subhash Popatlal Dave (1) (Supra), three Judges of the Supreme Court observed: