RAJENDRA KUMAR Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This petition under Art. 226 of the Constitution of India has been filed at pre-execution stage praying that the order dated 30-5-94 passed under S.3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (for short COFEPOSA) for detaining the petitioner be quashed and a writ of mandamus be issued directing the respondents not to arrest the petitioner or to take any coercive measure against him in pursuance of the aforesaid order. Though the petition was prepared and was got reported from the office on 23-8-95 but the same was actually filed on 19-2-96. By the order dated 26-2-96, a Division Bench restrained the respondents from arresting the petitioner.

(2.) The material facts which are borne out from the affidavits filed by the parties are that on 21-1-98 the Customs Authorities checked three persons in Rupedeha in the district of Bahraich while they were coming on three different vehicles from Nepalganj side and found 6.90 grams, 700.5 grams and 700.5 grams gold pieces bearing foreign markings in rubber balloons which had been tied to their elbows by adhesive tape. In their statements under S.107 of Customs Act, they admitted that they had purchased the gold from Kathmandu (Nepal) and were going to sell it to the petitioner-Rajendra Kumar who is resident of Sarrafa-Bazar, Kanpur. They further stated that earlier also they had brought foreign gold from Kathmandu and had sold the same to the petitioner. The statement of petitioner was also recorded under S.108 of Customs Act on 8-2-93. Thereafter, the State Government passed the impugned order under S.3(1) of COFEPOSA for detaining the petitioner with a view to prevent him from dealing in smuggled goods, copy of which has been filed as Annexure-1 to the writ petition. Two counter affidavits have been filed on behalf of the State of U.P.wherein it is averred that after consideration of all the relevant materials and documents, the State Govt., on being satisfied that with a view to preventing the petitioner front dealing in smuggled goods, passed the detention order under S.3(1) of the Act. Regarding delay in passing of the order, it is stated that after receiving all relevant papers pertaining to the case from Seizing-Officer and Follow-up action report from the Collector, Customs (Patna) on 13-10-93 and after their due and proper scrutiny, the Custom Department forwarded the proposal for detention of the petitioner to the State Govt. on 21-1-94. The proposal was considered by the Screening Committee of the State Govt. in its meeting held on 31-1-94 but as it was felt that some more information was required, the case was fixed for consideration at the next meeting which took place on 22-2-94. It was in this meeting of the Screening Committee that a recommendation was made for detaining the petitioner. The necessary formalities and legal vetting of the proposed detention order and ground was completed on 19-2-94 and the same was placed before the higher authorities of the State Govt. on 23-2-94. The order approving the detention of the petitioner was passed on 28-4-94 and thereafter, the impugned order of detention was actually issued on 30-5-94. It is further averred that the order could not be served as the petitioner was absconding and he had not surrendered despite publication of Notification dated 14-3-95 which was published in the U.P.Gazette on 29-4-95. It may be noticed that in the counter affidavit the correctness of the detention order and the grounds of detention have not been challenged. What is pleaded is that as the detention order and the grounds of detention have not been served upon the petitioner he has got no legal or authoritative source of obtaining the copies of the aforesaid orders. Since the respondents have not challenged the correctness of the detention order and the grounds, we are proceeding on the footing that the same are genuine. We are not going into the question as to how the petitioner was able to secure the copies of the aforesaid documents as the same does not appear to be necessary for the decision of the petition.

(3.) Shri A.D.Giri, learned senior counsel has submitted that the gold was seized by the Customs Authorities from the possession of three persons in district Bahraich on 21-1-93 and the statement of the petitioner was also recorded on 8-2-93 but the detention order was passed almost after sixteen months on 30-5-94 and in view of this long period which has elapsed the vital link with the offending activity had snapped and therefore, there was no justification for passing the impugned detention order. It is urged that the order has been passed for a wrong purpose. Learned counsel has placed reliance on Ravindra Kumar Ghosh v. State of West Bengal, 1974 (4) SCC 111 (sic), Sirajul v. State of West Bengal, 1975 (2) SCC 78 : (AIR 1975 SC 1517), Anand Prakash v. State of U.P., 1990 (1) SCC 291 : (AIR 1990 SC 516), K.P.M.Bashir v. State of Karanataka, 1992 (2) SCC 295 : (AIR 1992 SC 1352), P.U.Iqbal v. Union of India, 1992 (1) SCC 434 : (AIR 1992 SC 1900), Mustakamia Jabar Miyan Sheikh v. M.N.Mehta, 1995 (3) SCC 237 and P.M.Hari Kumar v. Union of India, 1995 (5) SCC 691 : (1995 AIR SCW 3726), in support of the proposition that on account of long delay which has elapsed the detention order is vitiated and the same is liable to be set aside.