SHOBHA ANIL GOYAL Vs. UNION OF INDIA

JUDGEMENT

(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:

(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. 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.