Pooja Batra vs Union Of India & Ors

judgment, dismissed the writ petition with costs of

Rs.50,000/- on her and directed the department to initiate

criminal proceedings against the detenu under Sections 199,

420, 468 and 471 of the Indian Penal Code in exercise of its

power under Section 482 of the Code of Criminal Procedure.

3) The case of the department is as follows:

(a) The Detaining Authority has issued the detention order

dated 05.12.2007 against Shri Deepak Kumar @ Deepak

Batra, the husband of the appellant herein on the basis of the

facts and documents put up before them and after satisfying

with the facts on records that the detenu has propensity and

potentiality to indulge in smuggling activities in future. The

detenu is the mastermind for import of the goods covered

under Bill of Entry No. 589144 dated 25.04.2007. The goods

covered under abovementioned Bill of Entry were not only

mis-declared in respect of quantity but also there were certain

goods which were concealed in the container. The value of

such mis-declared/smuggled goods as calculated comes to

Rs.87,07,220/- and attracting duty has worked out to

2 Rs. 30 lacs approximately. The detenu had indulged in

repeated offences since 2006 as he was not the actual owner

of the Importer Exporter Code, (in short "IEC"). The grounds

are based on the eight Bills of Entry which were filed by the

detenu through his Customs House Agent, (in short "CHA")

and also on the basis of the statements tendered by

Shri Naveen Kumar, an employee of CHA. Eight Bills of Entry

have been filed by the CHA in the name of firm provided by

the detenu. The detenu also provided the photocopy of the

IEC. Shri Naveen Kumar also identified the earlier signatures

of the detenu on the authorization letter dated 20.08.2007

given by the detenu. Shri Naveen Kumar confirmed the

relationship between the last consignment and the earlier

eight consignments imported by the detenu. The detenu had

fraudulently used IEC No. and PAN No. of M/s Om Prakash

Deepak Kumar. The actual owner of the IEC was not aware of

the fact that his IEC is being misused by the detenu since

2006 and thorough investigation conducted by the Customs

Authorities has revealed that in the past also eight such Bills

of Entry were filed by the same CHA on the directions of the

3 detenu and the goods were cleared and handed over to the

detenu. The Detaining Authority has issued the detention

order after satisfying with the facts and circumstances of the

case and material available on record.

(b) Ms. Pooja Batra, wife of Deepak Batra has filed Writ

Petition (Crl.) No. 782 of 2008 before the High Court of Delhi

for quashing the detention order bearing No.

F.N.673/06/2007-CUS/VIII dated 5th December, 2007 issued

by the Joint Secretary (COFEPOSA), Ministry of Finance,

Department of Revenue under Section 3 of the COFEPOSA

Act. Before the High Court, various contentions such as non-

application of mind on the part of the Detaining Authority,

consideration of irrelevant material, reliance on extraneous

material, non-supply of relevant and relied on materials, delay

in passing detention order and delay in disposal of

representation etc were raised. The High Court, by the

impugned order dated 05.09.2008, dismissed her writ

petition. Questioning the same, she filed the present appeal by

way of special leave petition.

4

4) Heard Mr. R.S. Sodhi, learned senior counsel for the

appellant and Mrs. K. Amreshwari, learned senior counsel for

the respondents.

5) Mr. R.S. Sodhi, learned senior counsel for the appellant

after taking us through the grounds of detention order,

impugned order of the High Court dismissing the writ petition

of the appellant and all other connected materials contended

that

(a) The detention order is liable to be quashed on the

ground of non-application of mind and non-supply of

materials relied on and acted upon by the Detaining

Authority while passing the detention order.

(b) The Detaining Authority relied on extraneous and

irrelevant materials.

(c) The offences alleged are not "smuggling" under the

Customs Act, hence, there is no question of violation

of any Act including the Customs Act, therefore,

detention under COFEPOSA Act is not sustainable.

(d) Delay in passing the detention order as well as in

disposal of the representation of the detenu.

5

6) On the other hand, Mrs. K. Amreshwari, learned senior

counsel for the Union of India and their officials, by taking us

through the grounds of detention and the counter affidavit

filed by the Department, submitted that the detention order

was passed on the basis of the relevant materials and after

subjective satisfaction by the Detaining Authority. She further

submitted that there is no illegality or violation of any of the

statutory provision including that of Article 22(5) of the

Constitution of India and prayed for dismissal of the appeal.

7) For convenience, first let us consider whether there is

any delay in passing the detention order and delay in disposal

of the representation. (a) Regarding delay in passing detention

order, the alleged violation relates to Bill of Entry No. 589144

dated 25.04.2007, the detention order was passed on

05.12.2007. After the seizure of the goods from the container

covered under Bill of Entry No. 589144 dated 25.04.2007,

nobody appeared before the authorities to get the goods

cleared till 23.07.2007. The detenu himself appeared before

Customs Authorities for the first time on 03.08.2007. His

statement under Section 108 of the Customs Act was recorded

6 and he was arrested on 04.08.2007. It was explained that in

the light of the fact that earlier also similar eight

consignments were got cleared by the detenu, the

investigation relied on the statement of witness as if he is the

actual owner of the proprietary concern, the statement of the

clearing agent and his nominee were recorded and it was only

on 29.10.2007 the sponsoring authority recommended to the

COFEPOSA Department for consideration of the matter to

pass detention order against the detenu. All those actions,

various orders/proceedings were mentioned in seriatim both

in the grounds of detention, and in the counter affidavit filed

by the very same authority. We have carefully gone through

the same and find no merit in the contention. On the other

hand, we are satisfied that there is proximity to the alleged

offence and the detention order. In our view, there was no

undue delay so as to snap the link between the incident and

the alleged potentiality of the detenu in indulging in smuggling

activity. Hence, we reject the said contention.

(b) Coming to the contention relating to delay in disposal of

the representation, it is true that whenever a representation is

7 made either by the representative of the detenu or by the

detenu himself, it is incumbent on the part of the named

authority to consider, dispose of the same and pass

appropriate orders and communicate it without any

unreasonable delay. However, it depends upon the facts and

circumstances of each case. In the instant case, the detenu

has taken the plea that he made a representation to the

Secretary, Government of India as suggested in the detention

order on 13.06.2008 which was received by the Suptd. of Jail

on 16.06.2008, and on the very same day it was forwarded to

COFEPOSA Department. It is the contention of the counsel

for the appellant that though the representation was sent to

the COFEPOSA Department on 16.06.2008 itself and the fact

that the Jail and COFEPOSA Department both located in

Delhi yet it took time for more than ten days to respond in

obtaining the comments from the sponsoring authority and

get the same disposed of which is fatal and accordingly the

detention order deserves to be quashed. As against the said

detention, in the counter affidavit, it is clarified that the

representation was received by them on 20.06.2008. The

8 specific assertion made in the counter affidavit has not been

refuted by the detenu in his rejoinder. On the same day, i.e.,

20.06.2008 itself, it was sent to the sponsoring authority, i.e.

Customs Authority, who sent their comments on 27.6.2008.

The comments on the said representation were sent to the

COFEPOSA department on 27.06.2008, 28/29.06.2008 were

holidays being Saturday and Sunday and on the next day i.e.

30.06.2008, the representation of the detenu was considered

by the competent officer of the COFEPOSA department and

the same was rejected. The rejection order was communicated

to the detenu on 01.07.2008 and received by him on

02.07.2008. In the light of the details furnished in the

counter affidavit, we do not find any substance in the

contention and satisfy that there was any delay much more

than the bare minimum time required to obtain the comments

of the sponsoring authority accordingly, we reject the said

contention also.

8) Let us consider the main contention, namely, non-

application of mind on the part of the Detaining Authority and

consideration of extraneous and irrelevant materials. This

9 issue covers all the rest of the contentions raised by the

learned senior counsel for the appellant. Mr. R.S. Sodhi,

learned senior counsel, submitted that though the detention

order was passed on 05.12.2007 after seizure of the goods

contained in Bill of Entry No. 589144 dated 25.04.2007, the

Detaining Authority relying on the eight Bills of

Entry/Consignments which related to earlier years and on the

assumption that the detenu misused CHA and IEC passed the

detention order. According to him, those eight consignments

were cleared by the Customs authorities after proper

verification, hence the same cannot be a subject matter for

detaining the detenu under COFEPOSA Act. No doubt, Mrs.

K. Amreshwari, learned senior counsel for the Department

contended that except the goods seized from the container

covered under Bill of Entry No. 589144 dated 25.04.2007, the

authorities have not based reliance on any other instance.

She also contended that even solitary instance is sufficient to

clamp the detention order if the Detaining Authority is

satisfied with the materials placed before it. There is no

dispute that even for a solitary instance if sufficient materials

10 are available and if the Detaining Authority is subjectively

satisfied that the detenu is indulging in smuggling activities

which is detrimental to the interest of the Department, the

detention order can be clamped. However, perusal of the

grounds of detention order dated 05.12.2007 as well as the

counter affidavit sworn to by the Joint Secretary to the Govt.

of India, Ministry of Finance, Department of Revenue dated

12.12.2008 amply demonstrate that the Detaining Authority

has based its conclusion not only with reference to Bill of

Entry No. 589144 dated 25.04.2007 but also relating to eight

Bills of Entry/Consignments cleared earlier. The detention

order, Annexure P-2, is available at page 97 of the paper book.

In the order apart from narration of various materials as to the

seizure of goods dated 25.04.2007 the Detaining Authority has

adverted to and relied upon the clearance of eight

consignments. In paragraph 18 of the detention order, there

is a specific reference to those facts which reads as under:

"M/s P.P. Datta, Wg. Cdr. (Retd.), the CHA vide their letter dated 9.9.2007 submitted photocopies of bills of entry No. 530534 dated 28.8.2006 No. 538152 dated 25.9.2006 No. 543052 dated 16.10.2006, No. 548191 dated 7.11.2006, No. 554135 dated 1.12.2006, No. 558417 dated 20.12.2006, No. 559159 dated

11 23.12.2006 and No. 562725 dated 9.1.2007 (total 8 (eight) bills of entry). It was observed that in all the said bills of entry the importers were M/s Om Prakash Deepak Kumar and the items imported were Hinges, Scrubber, Telescopic Channels from M/s Mount Overseas (HK) Ltd. and M/s PIT Industries (Hong Kong)."

The same particulars were reiterated in paragraph 22. In

paragraph 23, it is stated that enquiries are being

conducted at overseas to find out the description of goods

declared at port of export, details of payment and the value

declared at port of export in respect to the goods already

stands cleared under the aforesaid eight Bills of Entry. In

paragraph 26, Detaining Authority has asserted that the

detention order was passed "after taking into consideration

the foregoing facts and materials on record" and concluded

that "satisfied that you ought to be detained under the

COFEPOSA Act, 1974 with a view to preventing you from

smuggling goods in future." In paragraph 29, the Detaining

Authority once again reiterated that the clearance of goods

on the basis of eight Bills of Entry, and finally in paragraph

32, the Detaining Authority has concluded thus:

12

"While passing the detention order under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, I have referred to and relied upon the documents mentioned in the enclosed list." (Emphasis supplied)

"The enclosed list" mentioned in paragraph 32 is available as

Annexure P-4 at page 143 of the paper book. S.No. 33 of

Annexure P-4 specifically refers "Request for overseas inquiry

in respect of eight consignments claimed to be cleared by M/s

Om Prakash Deepak Kumar". As rightly contended,

paragraph 32, makes it clear that the Detaining Authority had

not only referred to eight Bills of Entry but also relied upon

those documents in respect of eight consignments. It is not in

dispute that those eight Bills of Entry/consignments were

cleared by M/s Om Prakash Deepak Kumar after verification

and on the orders of the Department. Though, learned senior

counsel for the Department submitted that out of eight

consignments only five of the 10% of the checking of goods

alone were verified by the Department, the fact remains that

firstly nothing prevented the concerned officer from verifying

the entire consignment as it was done in the case of Bill of

Entry No. 589144 dated 25.04.2007 and secondly there was a

13 valid order for clearance by the officer concerned. No doubt,

the department is free to reopen the issue but the fact remains

that on the date of passing the detention order it was only at

the stage of notice and no final decision/conclusion was taken

for violation of the provisions of the Customs Act. In such

circumstances, reliance on those materials which is evident

from paragraph 32 read with S.No. 33 of Annexure P-4 clearly

demonstrate that Detaining Authority has considered

irrelevant materials while formulating the grounds of

detention. As pointed out above though the counsel for the

respondents submitted that the Detaining Authority has

considered only in respect of Bill of Entry No. 589144 dated

25.04.2007 for passing detention order, it is clear that apart

from the reference in the detention order itself about the eight

consignments, paragraph 5(1) of the counter affidavit clearly

shows that the Detaining Authority had relied on eight Bills of

Entry while arriving subjective satisfaction. Though, learned

senior counsel for the respondents, in the course of

arguments, submitted that whatever said in the counter

affidavit may be eschewed, in view of the fact that the very

14 same person who signed the detention order has also signed

the counter affidavit before this Court, the contents therein

cannot be lightly ignored as claimed. On the other hand, the

details mentioned in the detention order as well as in the

counter affidavit clearly demonstrate that in addition to the

Bill of Entry dated 25.04.2007 the Detaining Authority heavily

relied on eight Bill of Entries/consignments and satisfying

that he will continue to indulge in smuggling activities which

will be detrimental to the department passed the impugned

detention order.

9) We have already pointed out that the authorities are free

to reopen the case in respect of import of eight

consignments/Bill of Entries which is said to have been taken

place prior to the Bill of Entry dated 25.04.2007. However,

even according to the department, those consignments were

cleared under proper orders by the authority concerned. It is

also not in dispute that on the date of the passing of the

detention order the authorities have issued notice calling for

certain details in respect of import of those eight

consignments. In other words, the said issue has not

15 concluded and no adverse finding against him is passed on

the date of the passing of the detention order. In such

circumstances, we are of the view that `inconclusive state of

investigation' cannot legitimately help the authorities to pass

an order of detention against the detenu on the perfunctory

and inchoate material relied upon. It is useful to refer a

decision of this Court in Chowdarapu Raghunandan vs. State

of Tamil Nadu and others, 2002 (3) SCC 754. After finding

that on the date of passing of the detention order investigation

in respect of certain other alleged violations is still pending to

ascertain the involvement and role of persons concerned and

noting that apart from the absence of any positive or concrete

materials to connect the baggage in question with the

petitioner therein, the nature of stand disclosed in counter

affidavit filed on behalf of the first respondent does not really

help the authority to prove that the said material and such

vitally relevant aspect was either adverted to or really

considered before passing the order of detention and taking

note of the fact that the detention order suffers the vice of the

total non-application of mind to a relevant and vital material

16 touching question of the culpability as well as the necessity to

order the detention of the petitioner, quashed the same and

allowed the writ petition. It is settled law that Courts

exercising powers of judicial review do not consider the

challenge to an order of detention as if on an appeal, re-

appreciating the materials, yet since an order of detention in

prison involves the fundamental rights of citizens, freedom of

movement and pursuit of normal life and liberty, no absolute

immunity can be claimed by the authorities as to the decision

arrived and it is open to the Courts to see whether there has

been due and proper application of mind and that all the

relevant and vital materials for the purpose have been noticed,

adverted to and considered. If we consider the case on hand

on the above principles, though, the Detaining Authority has

relied on the import of eight consignments, the fact remains

that the goods were cleared after passing appropriate orders

by the authorities and any event on the date of passing of

detention order it was at the stage of notice calling for

reopening the issue hence the same cannot be a valid material

for passing an order of detention against the detenu. In fact,

17 while determining the subjective satisfaction the Detaining

Authority had said that enquiries are pending on all those

documents placed on record and relied upon by them. Use of

incomplete material which is either pending or inconclusive

cannot be a basis for detention order. In the recent judgment

Kothari Filaments & Anr. vs. Commissioner of Customs

(Port), Kolkata and Ors. JT 2009 (1) SC 516, this Court has

held that if any enquiry is inconclusive pending consideration

the same cannot be the basis for passing an order against the

person concerned. Therefore, the eight consignments/Bill of

Entries relied upon by the Detaining Authority become

irrelevant and conclusion on extraneous material cannot be

sustained.

10) Learned senior counsel for the appellant has also pointed

out that all the materials which were relied on and actually

considered in the grounds of detention have not been supplied

to detenu. We have already pointed out that both in the

grounds of detention as well as counter affidavit filed in

support of the said order the Detaining Authority has

reiterated all those documents including the import of eight

18 consignments were relied on in more than one place while

passing the order of detention. In fact, the Detaining

Authority has adverted to the statement of Deepak Kumar and

mentioned that he had seen his signature in his statement

recorded on 03.08.2007 as well as on letter dated 02.08.2007

and agreed that signature of Deepak Kumar on the declaration

and authorization letter do not tally with his signature on the

statement dated 03.08.2007 and letter dated 02.08.2007 and

concluded that both the formats do not tally.

11) It is also relevant to refer the definition of "smuggling" in

Section 2(39) of the Customs Act, 1962 which reads as under:

""smuggling", in relation to any goods, means any act or omission which will render such goods liable to confiscation under section 111 or section 113;"

Section 111 of the Customs Act, 1962 deals with confiscation

of improperly imported goods which reads as thus:-

"111. Confiscation of improperly imported goods, etc.-- The following goods brought from a place outside India shall be liable to confiscation:--

(a) any goods imported by sea or air which are unloaded or attempted to be unloaded at any place other than a customs port or customs airport appointed under clause (a) of section 7 for the unloading of such goods;

19 (b) any goods imported by land or inland water through any route other than a route specified in a notification issued under clause (c) of section 7 for the import of such goods;

(c) any dutiable or prohibited goods brought into any bay, gulf, creek or tidal river for the purpose of being landed at a place other than a customs port;

(d) any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force;

(e) any dutiable or prohibited goods found concealed in any manner in any conveyance;

(f) any dutiable or prohibited goods required to be mentioned under the regulations in an import manifest or import report which are not so mentioned;

(g) any dutiable or prohibited goods which are unloaded form a conveyance in contravention of the provisions of section 32, other than goods inadvertently unloaded but included in the record kept under sub-section (2) of section 45;

(h) any dutiable or prohibited goods unloaded or attempted to be unloaded in contravention of the provisions of section 33 or section 34;

(i) any dutiable or prohibited goods found concealed in any manner in any package either before or after the unloading thereof;

(j) any dutiable or prohibited goods removed or attempted to be removed from a customs area or a warehouse without the permission of the proper officer or contrary to the terms of such permission;

(k) any dutiable or prohibited goods imported by land in respect of which the order permitting clearance of the goods required to be produced under section 109 is not produced or which do not correspond in any material particular with the specification contained therein;

20 (l) any dutiable or prohibited goods which are not included or are in excess of those included in the entry made under this Act, or in the case of baggage in the declaration made under section 77;

(m) any goods which do not correspond in respect of value or in any other particular with the entry made under this Act or in the case of baggage with the declaration made under section 77 in respect thereof or in the case of goods under transshipment, with the declaration for transshipment referred to in the proviso to sub-section (1) of section 54;

(n) any dutiable or prohibited goods transited with or without transshipment or attempted to be so transited in contravention of the provisions of Chapter VIII;

(o) any goods exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under this Act or any other law for the time being in force, in respect of which the condition is not observed unless the non-observance of the condition was sanctioned by the proper officer;

(p) any notified goods in relation to which any provisions of Chapter IVA or of any rule made under this Act for carrying out the purposes of that Chapter have been contravened."

This Section refers to goods brought from a place outside

India shall be liable to confiscation. Unless there is proper

enquiry and arrive at a conclusion in terms of Section 111 or

Section 113 it cannot be concluded that smuggling had taken

place. There is nothing in the order of detention which would

indicate that any of the said earlier imports were effected in

contravention of any of the provisions of the Customs act,

21 1962, or that they could have been regarded as having been

smuggled into the country within the meaning of Section 2(39)

of the said Act. Except notice for reopening the order clearing

eight consignments prior to Bills of Entry dated 25.04.2007,

there is no adjudication and final order by the authority

concerned. In other words, the reference to alleged violation

of the Customs Act in respect of import of eight consignments

which was only at the pre-mature stage and considering

extraneous materials, which are inconclusive cannot be a

valid ground for clamping detention under COFEPOSA Act.

Inasmuch as, the Detaining Authority has extensively relied

upon the allegations that the detenu was involved in the

import of eight consignments through M/s P.P. Dutta,

reliance on those irrelevant material vitiates the detention

order. This is more so as the said alleged earlier imports,

apparently constitute the main basis for the opinion formed by

the Detaining Authority that the detenu had the propensity

and potentiality to indulge in smuggling activities in future.

12) As already discussed, even based on one incident the

Detaining Authority is free to take appropriate action

22 including detaining him under COFEPOSA Act. The Detaining

Authority has referred to the violation in respect of importable

goods covered under Bill of Entry No. 589144 dated

25.04.2007. In an appropriate case, an inference could

legitimately be drawn even from a single incident of smuggling

that the person may indulge in smuggling activities, however,

for that purpose antecedents and nature of the activities

already carried out by a person are required to be taken into

consideration for reaching justifiable satisfaction that the

person was engaged in smuggling and that with a view to

prevent, it was necessary to detain him. If there is no

adequate material for arriving at such a conclusion based on

solitary incident the Court is required and is bound to protect

him in view of the personal liberty which is guaranteed under

the Constitution of India. Further subjective satisfaction of

the authority under the law is not absolute and should not be

unreasonable. In the matter of preventive detention, what is

required to be seen is that it could reasonably be said to

indicate any organized act or manifestation of organized

activity or give room for an inference that the detenu would

23 continue to indulge in similar prejudicial activity warranting

or necessitating the detention of the person to ensure that he

does not repeat this activity in future. In other words, while a

single act of smuggling can also constitute the basis for

issuing an order of detention under the COFEPOSA Act,

highest standards of proof are required to exist. In the

absence of any specific and authenticated material to indicate

that he had the propensity and potentiality to continue to

indulge in such activities in future, the mere fact that on one

occasion person smuggled goods into the country would not

constitute a legitimate basis for detaining him under the

COFEPOSA Act. This can be gathered from the past or future

activities of the said person. In the case on hand, we have

already pointed out that there were no such past activities as

could lead to a reasonable conclusion that he possesses the

propensity or the potentiality to indulge in smuggling activities

in future, to prevent which it is necessary to detain him. At

present there is nothing in the order of detention which would

indicate that any of the said earlier imports was effective in

contravention of any of the provisions of the Customs Act,

24 1962 or that they could have been regarded as having been

smuggled into the country within the meaning of Section 2(39)

of the said Act. In such a case, as held by this Court in

Chowdarapu Raghunandan (supra), the invocation of the

COFEPOSA Act against such a person would not be justified.

13) Apart from these aspects, it is unfortunate that the High

Court while considering the Habeas Corpus writ petition filed

under Article 226 of the Constitution of India by the wife of

the detenu challenging the order of detention on various

grounds, on going through the materials of the department as

if as an Appellate Court relying on Section 482 Code of

Criminal Procedure directed the Commissioner of Customs,

ICD, Tughlakabad, to lodge a report with the police station,

Tughlakabad within a period of 15 days along with the

complete set of relevant documents to enable them to register

a case under Sections 199, 420, 468 and 471 of the Indian

Penal Code against the detenu. The said direction is not

warranted considering the fact that issue before the High

Court was about the validity of the detention order and the

curtailment of the personal liberty of the detenu and nothing

25 more. We are of the view that the High court is not justified in

issuing such direction and awarding exemplary cost of Rs.

50,000/- payable to the sponsoring authority.

14) In the light of the above discussion and for the reasons

stated above the impugned order of the High Court dated

05.09.2008 in W.P. (Crl.) 782/2008 is set aside, consequently

the detention order bearing F.N. No. 673/06/07-CUS/VIII

dated 05.12.2007 issued by Joint Secretary (COFEPOSA),

Ministry of Finance, Department of Revenue is quashed. The

detenu-husband of the appellant viz., Deepak Kumar @

Deepak Batra is ordered to set at liberty forthwith if he is not

required in any other case. Appeal is allowed.

..........................................J. (DALVEER BHANDARI)

..........................................J. (P. SATHASIVAM)

New Delhi;

March 27, 2009.

26 27