JOINT KUMAR JAIN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution of India wherein the challenge is to the order of preventive detention dated 8th April 2013 passed under sub-section 1 of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "COFEPOSA"). The petition is filed at pre-execution stage. We have heard the learned counsel for the petitioner and the learned APP for the respondent. As noted by this Court in its order dated 15th July 2013, the learned counsel for the petitioner has pressed into service grounds (C), (D), (F), (G) and (I) in the memorandum of this Writ Petition. Before we make a reference to the submissions made by the learned counsel for the petitioner, some of the factual aspects of the case will have to be noted.

(2.) On 18th April 2012, the petitioner was arrested by the Intelligence Officer of the Directorate of Revenue Intelligence (DIR) Mumbai on the allegation of commission of an offence punishable under section 135 of the Customs Act, 1962 (hereinafter referred to as "the Customs Act"). The allegation is of illegal import of 10,00,000 pieces of seized memory cards in the name of four different firms. The petitioner was enlarged on bail. The petitioner obtained provisional release order of the seized goods on 28th July 2013 and 29th August 2012, the petitioner availed of the said order. On 24th September 2012, a show cause notice was issued to the petitioner on completion of the investigation alleging that the petitioner had smuggled 9,98,035 memory cards valued at Rs. 8,11,75,446/-. On 27th September 2012, the petitioner filed an application for settlement under section 127-B of the Customs Act. A Criminal Writ Petition was filed by the petitioner before the Apex Court praying that a direction be issued to the State of Maharashtra to consider the proposal of preventive detention of the petitioner only subject to obtaining recommendation from the Settlement Commission having jurisdiction over the case. By order dated 12th October 2012, the Apex Court observed that in view of the fact that threatened arrest of the petitioner is based on allegation of Customs violation, it would be appropriate for the State of Maharashtra to obtain comments of the Settlement Commission before any final order is passed. The Apex Court directed the petitioner to deposit his passport with the Settlement Commission. The Apex Court directed that if the order of detention of the petitioner is being considered only on the basis of the recommendations of the Customs Department, the State Government shall seek comments of the Settlement Commission before passing any order of preventive detention against the petitioner.

(3.) On the application made by the petitioner, the Settlement Commission passed an order on 17th May 2013 directing the petitioner to pay penalty of Rs. 10,00,000/- ( Rupees ten lacs only). The Settlement Commission granted immunity to the petitioner for the amount in excess of sum of Rs. 10,00,000/- ( Rupees ten lac). Subject to payment of aforesaid amount, immunity from the prosecution was granted to the petitioner in so far as the particular case was concerned.