IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE A.M.SHAFFIQUE WEDNESDAY, THE 7TH DECEMBER 2011 / 16TH AGRAHAYANA 1933 WP(C).No. 1051 of 2010(F) ------------------------------------ PETITIONER(S): -------------------- ALEX C.JOSEPH, CHEKKATTU HOUSE, THADIYOOR, P.O.TIRUVALLA, PATHANAMTHITTA DISTRICT, KERALA. BY SR. ADVOCATE SHRI M. K. DAMODARAN & BY ADVS. M/S. K.JAYAKUMAR, P.B. KRISHNAN, P.A. AUGUSTIAN, R. SURAJ KUMAR, GEETHA P. MENON, N. AJITH & NEELAKANDAN P.M. RESPONDENT(S): ----------------------- 1. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI. 2. JOINT SECRETARY, GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, CENTRAL ECONOMIC INTELLIGENCE BUREAU, 6TH FLOOR, "B WING", JANPATH BHAVAN, JANPATH, NEW DELHI-110001. 3. THE CIRCLE INSPECTOR OF POLICE, THIRUVALLA. ADDL. 4 ADDITIONAL DIRECTOR, DIRECTORATE OF REVENUE INTELLIGENCE, KOCHI, REPRESENTED BY THE PRESENT ADDL. DIRECTOR MRS. RAMA MATHEW, AGED 46 YEARS, W/O. C.J. MATHEW. W.P.(C).NO.1051 OF 2010 F (ADDL. R4 IS IMPLEADED AS PER ORDER DATED 5.2.2010 IN IA.NO.1714/10). R1 & R2 BY SHRI P.S. BIJU, ADDL. CGSC. R3 BY SHRI T. ASAF ALI, DIRECTOR GENERAL OF PROSECUTIONS. ADDL.R4: BY SHRI C.P. UDAYA BHANU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/12/2011, THE COURT ON 07/12/2011 DELIVERED THE FOLLOWING: APPENDIX IN WP(C).NO.1051 OF 2010 F PETITIONER'S EXHIBITS: EXT.P1 DATED 13-4-2000, TRUE COPY OF THE ORDER F.NO.673/5/2000-CUS.VII, PASSED BY RESPONDENT NO.2. EXT.P2 DATED 24-1-2003, TRUE COPY OF THE FINAL ORDER NO.69 & 70/2003, DATED 24-1-2003, PASSED BY THE CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL, BANGALORE BENCH, WITH FORWARDING LETTER DATED 24-1-2003. EXT.P3 DATED 5-1-2000, TRUE COPY OF THE ORDER-IN-APPEAL NO.275, 276 & 277/2000 PASSED BY THE COMMISSIONER OF CUSTOMS & CENTRAL EXCISE (APPEALS), COCHIN WITH FORWARDING LETTER DATED 7-12- 2000. EXT.P4 DATED 20-7-2005, TRUE COPY OF THE ORDER NO.SIB/28/99, PASSED BY THE COMMISSIONER OF CUSTOMS, COCHIN. EXT.P5 DATED 31-1-2008, TRUE COPY OF THE ORDER-IN-APPEAL NO.15/2008, PASSED BY THE COMMISSIONER OF CUSTOMS, COCHIN. EXT.P6 DATED 9-7-2003, TRUE COPY OF THE FINAL ORDER NO.952 & 953/2003 PASSED BY THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, BANGALORE BENCH WITH FORWARDING LETTER DATD 23-7- 2003. EXT.P7 DATED 20-4-2001, TRUE COPY OF THE ORDER IN APPEAL NOS.C/V.507 & 508/2000, PASSED BY CEGAT, BANGALORE BENCH. EXT.P8 DATED 6-12-2004, TRUE COPY OF THE ORDER IN APPEAL NOS.C/354- 355/2004, PASSED BY CESTAT, BANGALORE BENCH. EXT.P9 DATED 2-2-2005, TRUE COPY OF THE ORDER IN APPEAL NO.C/354/04, PASSED BY THE CESTAT, BANGALORE BENCH. EXT.P10 DATED 8-3-2007, TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN CUS. APPEAL NO.6 OF 2005. EXT.P11 DATED NIL, TRUE COPY OF REGISTRATION DETAILS OF THE VEHICLE, KL- 03-D-9010. EXT.P12 DATED 23-7-1999, TRUE COPY OF THE DEPOSITION OF K.A. JOSEPH, SENIOR MANAGER OF BANK OF BARODA RECORDED BY THE JUDL. MAGISTRATE-V, COIMBATORE. EXT.P12(A) DATED DO., TRUE ENGLISH TRANSLATION OF EXT.P12. EXT.P13 DATED 30-3-2010, TRUE COPY OF THE LETTER RECEIVED FROM THE S.I. OF POLICE, THRIKKAKARA. EXT.P14 DATED 10-10-1992, TRUE COPY OF DOCUMENT NO.2768, S.R.O., THIRUVALLA. EXT.P15 DATED 27-3-2010, TRUE COPY OF THE LETTER RECEIVED FROM THE S.I. OF POLICE, MUVATTUPUZHA. WP(C).NO.1051/2010 F EXT.P16 DATED 10-1-2001, TRUE COPY OF THE PLAINT IN O.S.NO.8 OF 2001, SUB COURT, THIRUVALLA. EXT.P17 DATED 17-4-2010, TRUE COPY OF THE LETTER AND REPLY THERETO RECEIVED FROM THE C.J.M. COURT, PATHANAMTHITTA. EXT.P18 DATED 17-4-2010, TRUE COPY OF THE LETTER AND REPLY THERETO RECEIVED FROM JMFC, THIRUVALLA. RESPONDENTS' EXHIBITS: ANNEXURE-1 CHRONOLOGICAL ORDER OF EVENTS. EXT.R4(1) THE CONFIDENTIAL REPORT DATED 19.3.2003. EXT.R4(2) THE REPORT BY ASST. DIRECTOR, DRI, CALICUT DATED 28.2.2003. EXT.R4(3) ADJUDICATION ORDER NO.142/2010 BY THE ADDL. COMMISSIONER OF CUSTOMS, COCHIN. EXT.R4(4 & 5) THE FIRST LOOK OUT CIRCULAR ISSUED BY THE DIRECTOR GENERAL OF POLICE, GOVT. OF KERALA DATED 9.6.1999. EXT.R4(5) 2ND LOOK OUT CIRCULAR ISSUED BY GOVT. OF INDIA DATED 22.11.1999. EXT.R4(6) DECLARATION IN THE GAZETTE OF INDIA DATED 1.6.2000. EXT.R4(7) A REPORT FILED BEFORE JFCM COURT AT PATHANAMTHITTA. EXT.R4(8) LETTER DATED 9.12.2003 FROM THE DEPUTY SUPERINTENDENT OF POLICE. EXT.R4(9) LETTER DATED 2.2.2010 FROM THE DEPUTY SUPERINTENDENT OF POLICE. EXT.R4(10, 11 & 12): COPIES OF THREE PASSPORTS BEING USED BY THE PETITIONER. EXT.R4(13) A LOC NO.6/SIC/2011(2) ISSUED ON 27.1.2011. EXT.R4-2(1) MAHAZAR DRAWN AT HYDERABAD INTERNATIONAL AIRPORT. EXT.R4-2(2) STATEMENT DATED 6.11.2011 RECORDED FROM ABEY JOHN AT HYDERABAD. EXT.R4-2(3) COPY OF THE PASSPORT IN THE NAME OF ABEY JOHN. //TRUE COPY// PS TO JUDGE K.M. JOSEPH & A. M. SHAFFIQUE, JJ. ----------------------------------------- W.P.(C).NO. 1051 OF 2010 F ------------------------------------------ Dated this the 7th December, 2011 JUDGMENT K.M. Joseph, J. An order of detention dated 13/4/2000 passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the Act) issued against the petitioner is challenged. A writ of certiorari is sought. 2. The Writ Petition was filed on 12/01/2010. As on the date of the Writ Petition, the impugned order had not been executed. While the Writ Petition was pending, that is on 06/11/2011, the impugned order has been enforced and the petitioner was taken into custody and he has been imprisoned. WP(C).NO.1051 OF 2010 F 2 3. The case of the petitioner, in brief, is as follows: It is averred that the order of detention has been passed for a wrong purpose based on vague, extraneous and irrelevant grounds, and that it is illegal, arbitrary and malafide. Import of four old and used cars by four non-resident Indians who had returned back to India for permanent settlement, is stated to be the basis of the impugned order. It is contended that customs duty had been paid by the importers. He refers to the fact that of the four cases which engaged the attention of the statutory authorities, three of the cases were decided in favour of the petitioner. In one of the cases which culminated in Exhibit P10 judgment of a Division Bench of this Court, the Court reduced the penalty from Rs.2,00,000/= to Rs.1,00,000/=. It is contended, inter alia, in the petition that there is gross delay of more than ten years in executing the order. 4. We heard Shri M. K. Damodaran, learned senior counsel for the petitioner; Shri Biju, who appeared on behalf of WP(C).NO.1051 OF 2010 F 3 respondents 1 and 2, Union of India and Joint Secretary, Government of India in the Ministry of Finance, Department of Revenue; Shri C.P Udaya Bhanu, learned counsel appearing on behalf of the 4th respondent, namely the Additional Director of the Directorate of Revenue Intelligence, Cochin which is the sponsoring authority and also Shri T. Asaf Ali, learned Director General of Prosecutions, appearing for the 3rd respondent Circle Inspector of Police, Thiruvalla. 5. Learned senior counsel for the petitioner would contend that though the detention order was not served and it is a case of pre-execution challenge, the Writ Petition is indeed maintainable. He drew our attention to the decisions of the Apex Court in Additional Secretary to The Government of India And Others v. Smt. Alka Subhash Gadia And Another (1992 Suppl. (1) SCC 496), Rajinder Arora v. Union of India And Others (2006 (4) SCC 796), Deepak Bajaj v. State of Maharashtra And Another ((2008) 16 SCC 14) and Maqsood Yusuf Merchant v. Union of India And WP(C).NO.1051 OF 2010 F 4 Another (2008 (16) SCC 31) among other decisions. According to learned senior counsel, on the facts of this case, clearly the petitioner is entitled to relief under the following head recognised by the Apex Court in Gadia's case, that is the order of detention has been issued by a person who is not authorised to issue the order of detention. He also relied on the judgments of the Apex Court in Biram Chand v. State of Uttar Pradesh And Others (1974 (4) SCC 573), which, no doubt, he fairly points out, has been over ruled in Haradhan Saha v. The State of West Bengal And Others (1975 (3) SCC 198). He would submit further that the latest decision on the point also supports him, namely Rekha v. State of T. Nadu Tr. Sec. to Govt. & Anr. (JT 2011 (4) SC 392). He would submit that there is no smuggling involved and the petitioner was only a car broker. He further relies on the decisions of this Court in Lekha Nandakumar v. Joint Secretary to Government of India And Others (2004 (3) ILR 355) and Shobha Jayaprakash v. Union of India & Ors. (2007 (3) KLJ 415). To buttress his argument WP(C).NO.1051 OF 2010 F 5 about the delay being fatal, he also relies on Kadhar Naina Ushman v. Union of India And Others(2008 (17) SCC 725). He further contends that the cases, four in number, related to the years 1998 and 1999. He points out that there was gross delay of nine months from the date of the alleged last incident involving the petitioner and the order of detention which is dated 13/04/2000. He would submit that the petitioner cannot be treated as an absconder and he did not abscond. The delay of ten years has clearly resulted in snapping of the link. No earnest efforts have been made to detain him. In this context, he relied on the pleadings. 6. Per contra Shri Biju, learned counsel appearing on behalf of respondents 1 and 2 submits that the petitioner was absconding. He took us through the pleadings. It is pointed out that he was caught when he was travelling on a false passport obtained on an assumed name. He also sought to distinguish the decisions relied on by the learned senior counsel for the petitioner. He further pointed out that the petitioner had actually shifted his base. He WP(C).NO.1051 OF 2010 F 6 further contended that the detention order itself was not in force because it has been executed and the Writ Petition will not lie. He would submit that the petitioner has remedies as provided under Section 8 of the Act and he can approach the Advisory Board and he can file representations, he points out. He would submit that the grounds of detention which have been served on the petitioner will actually reveal circumstances justifying the issuance of the order of detention. 7. Shri C. P. Udaya Bhanu, learned counsel for the Additional 4th respondent also submits that this is a case where the Writ Petition has become infructuous, as the impugned order has been executed. He would also submit that the petitioner was clearly an absconder. Steps had been taken. A red alert had been sounded. Petitioner had filed Writ Petitions in the High Courts at Delhi and Calcutta and, thereafter, he had withdrawn the same. The petitioner had made himself scarce and by remaining an absconder, he cannot defeat the order of detention, he contends. WP(C).NO.1051 OF 2010 F 7 He relied on the decision of the Apex Court in Sayed Taher Bawamiya v. Joint Secretary to the Govt. of India and Others (2002 Crl. L. J 259), reported also in (2000) 8 SCC 630. He pointed out that in that case, the delay of sixteen years did not avail the detenu as it was found that he was absconding. He would submit that the detenu had many passports. The Relevant Pleadings: We will refer to the relevant pleadings: The address of the detenu as shown in the Writ Petition is "Chekkattu House, Thadiyoor, P.O. Tiruvalla, Pathanamthitta District, Kerala" In Ground (aa) dealing with the grounds of delay in executing the order, it is averred that the petitioner was all through available at his residence, but no attempt was ever made to execute the order of detention on him and that in the premises, the delay of over eight years warrants interference by this Court. He further says that he has filed a Writ Petition challenging the order of detention before the High Court at Calcutta. The said Writ WP(C).NO.1051 OF 2010 F 8 Petition was thereafter dismissed for default as none appeared for the petitioner. Thereafter the petitioner says that he made a representation to the Central Government for revocation of detention which was rejected in 2003. The said order was challenged before the High Court of Delhi. It is averred that at the time of hearing of the said Writ Application, a point was raised on behalf of the Union of India that the Delhi Court has no jurisdiction and it has no territorial jurisdiction, as all searches and seizures were conducted at Kerala and in the circumstances, the petition was withdrawn on 14/02/2005. In ground (dd) the petitioner avers that after withdrawing the cases from the Delhi High Court, the petitioner has been residing at his residence within the jurisdiction of this Court. 8. The fourth respondent in its application to implead has, inter alia, stated that it had reliable information with supporting documents that the petitioner is using Passport No.Z1703812 issued in the name of Abey John, S/o. John Mathew, for travelling WP(C).NO.1051 OF 2010 F 9 and that his original Passport Number is 1269046. It is submitted that he has taken a new Passport in the name Abey John affixing his photo and suppressing the real facts before the Passport Authorities. Still later, the additional fourth respondent, namely the sponsoring authority has filed a counter affidavit. It is, inter alia, stated that even though the order of detention was attempted to be served on him on his last known address at Thiruvalla in Pathanamthitta District, Kerala, he evaded service by absconding. It is stated, incidentally this is the same address which the petitioner flaunts in the present petition. Subsequently, action was taken under Section 7(1)(a) of the Act by publishing the order of detention in the gazette by which he was ordered to surrender for detention. Sufficient publicity was given at Thiruvalla and a report was submitted to the Court of the Chief Judicial Magistrate, Pathanamthitta to declare him as an absconder. He refused to surrender and he instead approached the High Court of Calcutta. The sponsoring authority was not made a party. It got itself WP(C).NO.1051 OF 2010 F 10 impleaded and sought time for presenting their case. Then, the petitioner withdrew the case. When the Investigating Agency started defending the case filed by the petitioner in the High Court of Delhi, he withdrew, it is stated. It is further specifically stated that immediately after promulgation of the detention order in the year 2000, he left his residence at Thiruvalla and migrated to UAE and continued in his smuggling activities. It is also stated that while staying at Sharjah, he not only continued with his smuggling and hawala operations, but also maintained his legal defence at various original and appellate forums, both departmental and judicial. He refused to comply with orders of authorities and made its enforcement impossible by keeping himself out of the range of Indian Law. It is further stated that a red alert was issued under the circumstances against him by the Government of India to apprehend him while travelling out of India through International Airports. It is further stated that upon coming to know of this, he succeeded in obtaining a passport from the Indian Embassy in WP(C).NO.1051 OF 2010 F 11 Dubai, UAE under an assumed name and address. Thus, he was able to hoodwink the Indian Immigration Authorities from enforcing the red alert during entrance and exit to and from India. It is also further stated while under exile at UAE, he was not only continuing in smuggling and hawala activities unabatedly, but was also pursuing Court battles through its agents and accomplices under various pretexts, damage suits, libel suits, appeal petitions at various forums including anticipatory bail applications and writ petitions before various High Courts in India. Most of the petitions were dismissed, it is stated. 9. The petitioner has filed a reply affidavit. He would deny the case that he was absconding. In paragraph 15 he would state, inter alia, as follows: "My passport expired in 1993 and I have not travelled overseas since. I have not attempted to hoodwink the immigration authorities as alleged.” He further states as follows:- WP(C).NO.1051 OF 2010 F 12 "17. Regarding filing of the Writ Petition challenging the impugned order before Hon'ble High Court of Calcutta and New Delhi, it is admitted that due to harassment made by DRI Officers by way of frequent summons, threat of arrest and detention order, petitioner had shifted to Calcutta for a short period and filed an appeal challenging the order of adjudication authority before appellate authorities. When adjudication authority passed 2 orders exonerated the petitioner from the allegations, petitioner filed a Writ Petition challenging the impugned order before Hon'ble High Court of Calcutta. However, at the insistence of DRI, Customs Authority had filed an appeal challenging the orders where petitioner was exonerated. Due to the pendency of such appeal, the Hon'ble Court was not inclined to grant relief to the petitioner and the petitioner withdrawn the said petition. Thereafter petitioner came back to Kerala and continuing with litigation to prove his innocence. But when petitioner was again exonerated by Hon'ble Tribunal, in two cases, petitioner filed a fresh petition before the Hon'ble WP(C).NO.1051 OF 2010 F 13 High Court of Delhi challenging of impugned order. As stated by respondent in the present counter affidavit, the respondent submitted before Hon'ble Court that the order issued by Tribunal are not acceptable to them and they are proposing to file an appeal before higher authority. Hence petitioner decided to withdraw the case and defend the matter in proper forum. Now a stage has come where 3 out of 4 cases where the petitioner exonerated by proper authority and period of filing an appeal against said order is also expired. In such circumstances, there is no reason or justification to submit irrational argument that the department is proposing to file an appeal against the said orders. 18. The detention order is stated to be published in the official gazette. The order was produced by the official respondents in the course of the proceedings taken against me with reference to the four cars referred to in paragraphs 6A to D of the counter- affidavit. In the same breath it cannot be said that Ext.P1 is a secret document. I have not attempted to manipulate the legal system as alleged. The DRI is not entitled to insist that this Hon'ble Court must rely on WP(C).NO.1051 OF 2010 F 14 the contents of the sealed cover.” He further states in paragraph 20 that his permanent address is at Thadiyoor and there is no bar to having places of work at New Delhi or other places. He further denies the allegation that he entered India under an assumed name, passport, parentage etc. through the Mumbai Airport. Statement dated 10.8.2010 has been filed by the third respondent as directed by this Court. Therein, it is, inter alia, stated as follows: “3. The permanent address (Chakkattu House, Thadiyoor P.O., Thiruvalla) given by the petitioner in the writ petition is not in Thiruvalla Circle Limit. The said house is located in Koipuram Police Station limit. The petitioner also owns a house at Manjadi in Thiruvalla. I had made an enquiry on the petitioner and it revealed that no one is residing in the said house and a security by name Achankunju, age 50, Kunnupurayidathil Veedu, Nazhippara is posted for guarding the house. He says that he has joined there for duty only on 28-1-10 seeing an advertisement and he knows nothing about the former security. Jose. C. WP(C).NO.1051 OF 2010 F 15 Joseph, the brother of the petitioner appointed him there. 4. Warrants against the petitioner were issued to the Deputy Superintendent of Police, Thiruvalla for execution and last request regarding the present status of the execution of the detention order from the Directorate of Revenue Intelligence, Kochi Regional Unit was received at Dy. SP Office, Thiruvalla on 29- 1-10. All possible efforts were made to locate the petitioner and during 2002 the then Sub Inspector of Police, Thiruvalla Police Station even went to Coimbatore to arrest the petitioner. 5. On 8-6-10, Perinadu SI, N. Vijayan and Police party went to Tamilnadu for tracing the petitioner as per a reliable information received about him, that the son of the petitioner is studying in Desai (Manford) Police School at Erkkad, Salem, Tamilnadu and he used to visit his son there. And it came to know that the son of the petitioner Sangeeth Alex, a 5th standard student joined the school in that academic year and one Susi Alex, Pathenparambil Veedu, Kuttappuzha, Thiruvalla took his admission there and the petitioner never visited his son so far after he had WP(C).NO.1051 OF 2010 F 16 joined the school. 6. Searches were conducted by Dy. SP. Thiruvalla and Police party at the petitioner's relative's house at Kuttappuzha. But no useful information had been received about the petitioner so far. Enquiries are being continued. Detention order against the petitioner Alex. C. Joseph is pending with Thiruvalla Police Station. 7. As alleged in the petition, the petitioner is not residing in Thiruvalla. The allegation raised by the petitioner that no one is trying to execute the detention order against him is insignificant. He has gone somewhere outside Kerala and Police is trying to collect his whereabouts and arrival here to execute the Warrant.” 10. An additional Counter Affidavit was filed by the fourth respondent (sponsoring authority). This was, no doubt, filed on 28/11/2011 after commencement of the hearing. We notice that by order dated 25/02/2010, a Bench of this Court had passed the following Order: WP(C).NO.1051 OF 2010 F 17 "Learned counsel for the 4th respondent submitted that over and above the Counter Affidavit placed on record, certain documents in sealed covers are also being presented. The Court Officer will receive the same and retain it in safe custody for the perusal of the Judges as and when necessary. In the light of the Counter Affidavit of the 4th respondent, learned counsel for the petitioner also seeks an adjournment. Counter Affidavits, if any, by any among the respondents will also be placed on record within three weeks." Accordingly, two sealed covers were produced by the fourth respondent. It was thereafter the case was admitted on 22/03/2010. When the hearing commenced, learned senior counsel for the petitioner objected to the Court perusing the contents of the two sealed covers. It is thereupon that the fourth respondent proceeded to file an additional Counter Affidavit dated 28/11/2011. Therein, it is, inter alia, stated that the original adjudicating authorities in the cases had found that the detenu had his specific part in the WP(C).NO.1051 OF 2010 F 18 offences alleged and had imposed penalties on him. It was further stated in respect of the contention of the petitioner that there was no involvement in offences during the period 2000 to 2011 that, it is contrary to the facts on record. Reference was placed on confidential report dated 19/02/2003 and produced as Ext.R4(1). It is further stated that Ext.R4(2) is a report by the Assistant Director, DRI, Calicut, dated 28/02/2003 indicating the smuggling of four cars by the petitioner. Ext.R4(3) is the adjudication order No.142/10 imposing a penalty of Rs.5 lakhs. In regard to the delay, it is alleged as follows: “But, this delay has to be appreciated on the factual circumstances of the availability of the petitioner in person at his declared address or even anywhere within the territories of India. The first look out circular against the petitioner was issued by the Director General of Police, Govt. of Kerala, in the year 1999 and a further Look Out Circular was issued by Govt. of India in the same year (Exbt - R4(4) & (5)). Both these circulars indicate that the petitioner WP(C).NO.1051 OF 2010 F 19 was keeping himself aloof from the law even before the issue of the Detention Order when the investigation was in progress. It is also an established fact the petitioner have never appeared before the investigating Officers of DRI during the investigations of the 4 cases mentioned above, and he had also not appeared for any personal hearing before the Adjudicating or Appellate