VIDYA BAGARIA Vs. UOI

JUDGEMENT

(1.) MS . Vidya Bagaria wife of Ratan Bagaria, r/o Hansi, Tehsil Hansi, District Hisar, has filed the present under Article 226 of the Constitution of India, praying for the issuance of a writ or any other order quashing the order of detention dated December, 1995, passed by respondent No. 2 u/s 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as 'the COFEPOSA Act' ).

(2.) IT is stated by the petitioner that she along with her husband is residing at District Hisar. Her husband Ratan Bagaria is the Managing Director of M/s. Ratan Exports and Industries Limited, New Delhi. This concern was established in the year 1981. On 7. 3. 1995, the company of the husband of the petitioner received a purchase order for export of 4,000 pieces of Floppy Disc Drives from M/s. Indem General Trading, Dubai, which was confirmed in writing on 12. 3. 1995. These goods were to be supplied to M/s. Arvee International, Moscow. Rattan Bagaria negotiated with Alok Gupta, Director of M/s. Sujata Data Products Ltd. on 8. 3. 1995. After the final negotiations, the purchase order dated 24. 3. 1995 was received and back to back agreement dated 24. 3. 1995 was entered into on the basis of which 4,000 pieces of Floppy Disc Drives of 100% tested and certified, were to be supplied by M/s. Sujata Data Products at the price of Rs. 2,800.00 per piece C and E Moscow. The benefit of duty drawback was to accrue to M/s. Sujata Data Products. Apart from the difference of the export price of UD dollars 83 per piece and purchase price of Rs. 2,800.00 per piece, M/s. Ratan Exports and Industries Ltd. was not entitled to any payment.

(3.) REPLY to the show cause notice was filed and it was stated that the husband of the petitioner Ratan Bagaria had acted in an upright and bona fide manner. He categorically stated that he was not the manufacturer. An order was placed with M/s. Sujata Data Products for the supply of Floppy Disc Drives and he had at no stage conveyed to M/s. Sujata Data Products to supply only the covers and not the floppy discs. It was further made clear that there was no evidence to show that Ratan Bagaria had conspired with M/s. Sujata Data Products to manufacture and export covers instead of floppy disc drives and neither there was any incriminating statement by anybody to that effect. It was also made clear that it was only M/s. Sujata Data Products which had manufactured the goods, prepared the documents and sent them to their clearing agent in containers with the Central Excise Seal intact. Thereafter, respondent No. 3 adjudicated the matter and vide order dated 19. 1. 1996, rejected the objections of the company. Thereafter, Ratan Bagaria as well as his company filed an appeal before the Customs, Excise and Gold (Control) Appellate Tribunal, Madras (Chennai) and challenged the order passed by respondent No. 3 and the appeal is still pending. Thereafter, Ratan Bagaria went to Moscow on a business tour and during his stay at Moscow, he suffered various problems with regard to his health and he was advised to undergo repeated courses of laser therapy and spinal massage. He was also advised to be in constant medical examination and to take strict physical bed rest without any physical exertion. To the utter astonishment of the petitioner and her husband, even before the matter could be adjudicated by respondent No. 3, a detention order u/s 3 (1) of the COFEPOSA Act has been passed by respondent No. 2. So much so, prosecution has also been launched against Ratan Bagaria and the case has been filed in the Economic Offence Court at Madras (Chennai ). The petitioner has challenged the impugned order, Annexure P-5 on the ground that the provisions of section 3 (1) of the COFEPOSA Act are not applicable. The allegations contained in Annexure P-5 do not constitute any offence warranting the passing of the order of detention under the COFEPOSA Act. The allegations do not fall within the meaning of smuggling of goods. It has further been alleged by the petitioner that there is an inordinate delay in passing the detention order. The alleged detection was in the month of March, 1995 while the detention order has been passed in January, 1996. There is no nexus with the alleged act of smuggling and the detention order. For the alleged single act, the provisions of the COFEPOSA Act cannot be invoked. Finally, it has been prayed that the order, Annexure P-5, be struck down.