CRWP No.1722 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRWP No.1722 of 2010 (O&M) Date of decision: 08.02.2011 Seema Garg ........ Petitioner Versus Union of India and others ........ Respondents CORAM: HON'BLE MR.JUSTICE JORA SINGH **** PRESENT: Mr. Jagmohan Bansal, Advocate, for the petitioner. Mr. HPS Ghuman, Advocate, for respondents No. 1 and 2. Mr. PS Grewal, AAG, Punjab. **** JORA SINGH, J. Seema Garg, preferred this writ petition under Article 226 of the Constitution of India, for issuance of a writ in the nature of Habeas Corpus for quashing of detention order (Annexure P-7) dated 31.12.2004, issued from file No. 673/21/2004-Cus. VII by respondent No.2 in terms of provisions of Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activites Act, 1974 (hereinafter referred as the 'COFEPOSA Act') and for release of detenu CRWP No.1722 of 2010 (O&M) -2- namely Vinod Garg. That respondent No.2 ordered to detain Vinod Garg, but the order was passed in violation of fundamental rights guaranteed under Article 14, 21 and 22 of the Constitution of India. That the detenu has been detained after the expiry of about six years from the date of detention order. That grounds of detention have not been served to detenu and detention is totally contrary, inconsistent to the objects of the COFEPOSA Act itself and amounts to violation of Article 22 (5) of the Constitution. That the Ministry of Commerce with intent to promote export has declared different export incentive schemes. These export incentive schemes are declared under Foreign Trade (Development and Regulation) Act, 1992. Duty Entitlement Pass Book (hereinafter called as 'DEPB') is one of various export promotion schemes of Ministry of Commerce and under the above said scheme exporter is entitled to credit of fixed percentage of export value called as Free on Board (FOB) and the said credit can be used within 12 months for the purpose of payment of duty at the time of import of goods. Under the Central Excise Act and Rules goods meant for export are exempt from duty. The goods can be exported directly by manufacturer or through a merchant exporter. Exporter had to prepare a document called as ARE-I at the time of clearance of goods. Detenu is the resident of Ludhiana and carrying on his business activities at Ludhiana. The detenu during 2004-05, was CRWP No.1722 of 2010 (O&M) -3- exporting goods under DEPB and Advance Licence Scheme. That the detenu appointed Mr. Supriya Kumar Panja, as his agent to complete all export formalities. In February, 2004, detenu placed purchase order of 25,000 blankets upon the Panipat based manufacturers and the blankets were meant for export purpose. Goods were exported from Haldia (Kolkata) port. Panipat based manufacturers despatched material to Kolkata port in three trucks of M/s BLR Transport. Detenu came to know from manufacturer that they are despatching only 16130 pieces, so the detenu prepared two ARE-I bearing No. 15 and 19 both dated 17.02.2004 and the goods were exported under self-sealing so there was no question of physical examination and putting his seal on goods as well as ARE-I by Excise Staff. Transporter as per directions Mr. Panja (agent of detenu) got unloaded goods in a godown at Kolkata. Though the blankets sent by detenu had to be exported in two containers, Mr. Panja, converted the whole consignment in three containers. He got loaded goods in three containers and put seal of the Excise Officers so that Customs Staff, may not examine goods. Mr. Panja, engaged M/s S.C. Ghosh & Co. as CHA. Mr. Arup Kumar Mukherjee and Mr. Jaldhar Bose, were working on behalf of M/s S.C. Ghosh and Co. (CHA). Mr. Panja, Mr. Mukherjee and Mr. Jaldhar Bose, connived with each other, prepared shipping bill by putting seal of the Excise Staff on the ARE-I and presented goods for export before Customs Officers. Custom Officers on the spot seized all the three containers. Customs Staff also raided at different places including office of CHA. CRWP No.1722 of 2010 (O&M) -4- Statement of detenu was recorded on 7.5.2004. After investigation, as per orders of Commissioner of Customs (Prev.), Kolkata, on 22.9.2004, Mr. Panja and Mukherjee were arrested under Section 104 read with Section 132 and 135 of the Customs Act. Show cause notice dated 6.9.2004, was issued to the petitioner, Mr. Panja, Mr. Mukherjee, Mr. Bose and CHA. The Commissioner of Customs, proposed detention of detenu to respondent No.2 under COFEPOSA Act. Representation dated 23.12.2004 (Annexure P-6), was sent to the detenu to clear his position. That the local police of Ludhiana on 4.9.2010, detained the detenu and the detenu was served copy of detention order but grounds of detention have not been served. On 9.9.2010, detenu was served with copy of letter dated 9.9.2010, addressed to SSP, Ludhiana by Commissioner of Customs, Kolkata. That the grounds of detention must be served within 5 days and in exceptional circumstances within 15 days from the date of detention but in the present case detenu was detained on 4.9.2010 and the grounds of detention have not been served even after expiry of 15 days. Notice was issued and after notice Mr. HPS Ghuman, Senior Standing Counsel, appeared on behalf of respondents No.1 and 2. Vide order dated 30.9.2010 detenu was ordered to be released on interim bail. Reply was filed by the respondents and the same is to the effect that grounds of detention and relied upon documents should be served upon the detenu within 5 days or 15 days, in exceptional circumstances and for reason to be recorded in writing from the date of CRWP No.1722 of 2010 (O&M) -5- detention. A team of officers from the office of the Commissioner of Customs (Prev.), Kolkata, met the concerned Assistant Commissioner of Police, Ludhiana, to confirm whether grounds of detention, list of relied upon documents have been served upon Vinod Kumar (detenu) or not but the Police Authority informed that the relevant documents are not available with them, therefore, the same could not be served on Vinod Kumar. Relevant documents were not found available with the concerned Executing Authority after a gap of about 6 years so, Ministry is not in a position to contest the writ petition. I have heard learned counsel for the petitioner, learned standing counsel for respondents No.1 and 2, learned State counsel for respondent No. 3 and have carefully gone through the file. Learned counsel for the petitioner argued that in view of the reply grounds of detention and list of relied upon documents were not supplied to the detenu. So in view of the reply, petition be accepted. Learned counsel for respondents No.1 and 2 argued that in view of the reply, when the grounds of detention and list of relied upon documents were not supplied to the detenu then respondents are not in a position to contest the writ petition. In view of the reply petition be disposed of. Undisputedly, as per Section 3 (3) of the COFEPOSA Act, grounds of detention and list of relied upon documents are required to be supplied within 5 days or in exceptional circumstances within 15 days and for reasons to be recorded in writing from the date of detention. CRWP No.1722 of 2010 (O&M) -6- Detention order is dated 31.12.2004. Detention order along with documents were handed over to Senior Superintendent of Police, Ludhiana, on 29.1.2005, for execution. Detenu was ultimately detained on 4.9.2010 i.e. after about six years. When the grounds of detention and list of relied upon documents were not supplied to the detenu as per Section 3 (3) of the COFEPOSA Act, then I am of the opinion that detention order dated 31.12.2004 (Annexure P-7), is liable to be set aside particularly when relevant documents were not found with the concerned executing authority. In the absence of documents with the executing authority, respondent are not in a position to contest the writ petition. In view of all discussed above, detention order dated 31.12.2004 (Annexure P-7), is quashed. Accordingly, the instant petition is allowed. February 08, 2011 ( JORA SINGH ) rishu JUDGE