Case: Vinod K. Chawla Vs. Union of India and Ors

This appeal, by special leave, has been preferred against the judgment and order dated 27.1.1999 of High Court of Delhi by which the writ petition filed by the appellant challenging the detention order passed against him on 12.2.1997 under Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA) by the Joint Secretary, Government of India, was dismissed2. Though the detention order was passed on 12.2.1997 but the same could be served upon the appellant after more than a year on 12.3.1998 when he was taken into custody as he was absconding. The appellant filed the writ petition under Articles 226 and 227 of the Constitution soon thereafter before the Delhi High Court which was dismissed on 27.1.1999. The appellant has already undergone the entire period of detention but he is pursuing the present appeal as he is threatened with proceedings under Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 19763. The grounds of detention mention that the Director of Revenue Intelligence, New Delhi (for short DRI) had received information that the appellant was indulging in large scale evasion of customs duty by importing consumer electronic goods at grossly under-invoiced prices and by circumventing Import and Export Policy and remitting payments for the same through illegal channels. The goods were imported through various firms and concerns owned by the appellant. On the basis of the said information, the officers of the DRI conducted simultaneous searches on 20.12.1996 at seven residential/business/factory premises of the appellant, wherein many incriminating articles and documents were recovered. Further searches were also made on 30th December, 1996 and some more goods of foreign origin were recovered which established evasion of excise duty. His statement was recorded on 19th and 20th December, 1996 and 30th January, 1997. On the basis of the material collected, the Joint Secretary to the Government of India passed the impugned order under Section 3(1) of COFEPOSA on 12.2.1997. The appellant evaded service of the detention order and absconded. After great efforts had been made and proceedings had been initiated under Section 7 of COFEPOSA, the appellant was served with the copy of the detention order on 12.3.1998 when he was taken into custody. The representation made by the appellant was rejected by the detaining authority and also by the Central Government after the Advisory Board had recorded an opinion that there was sufficient cause for his detention. The appellant challenged the detention order by filing the writ petition before the High Court of Delhi raising several pleas but the same was dismissed on 27.1.1999.

Reasoning: 8. We would like to clarify here that the law does not require that every document or material in possession of sponsoring authority must necessarily be placed by him before the detaining authority and in every case where any such document or material is not placed by the sponsoring authority before the detaining authority, the formation of opinion and the subjective satisfaction of the detaining authority would get vitiated. This view has been taken in several decisions of this Court10. The contention raised cannot be judged by any straight jacket formula divorced from facts. This has to be examined with reference to the facts of each case having regard to the volume and contents of the grounds of detention, the documents supplied along with the grounds, the inquiry to be made by the officers of different departments, the nature of the inquiry, the time required for examining the various pleas raised, the time required in recording the comments by the authorities of the departments concerned, and so on12. The grounds of detention in the present case are a long one running into 35 paragraphs which were accompanied by 82 documents running into 447 pages. The representation made by the appellant was also a fairly long one. The representation made by the appellant on 24.3.1998 was received in the Ministry on 27.3.1998. The comments of the sponsoring authority were called on 30.3.1998 which were received on 17.4.1998. The comments were placed before the Secretary (R) through the A.D.G. on 22.4.1998 (18th and 19th being holidays). The decision of the Central Government was taken and communicated on 29.4.1998 (25th and 26th being holidays). The representation was also considered by the detaining authority in the meantime and was rejected on 21.4.1998. In the additional affidavit filed on behalf of the sponsoring authority before the High Court, it was stated that the representation was received by them on 2.4.1998 and the comments were dispatched on 17.4.1998. During this period, there were holidays on 4th, 5th, 8th to 12th April, and only seven working days were available. Again there were holidays on 18th, 19th, 25th and 26th April. Having regard to the facts and circumstances of the case, we are clearly of the opinion that the entire time taken in consideration and disposal of the representation made by the appellant has been fully explained and it cannot be said by any stretch of imagination that there was any inordinate delay or unexplained delay in considering the representation made by the appellant. The challenge to the detention order made on the ground of delay in consideration of the representation made by the appellant has no substance and deserves to be rejected13. It was lastly urged that the searches of the premises of the appellant were conducted on 20.12.1996 and 30.12.1996 and his statement was also recorded between 19.12.1996 and 30.1.1997, but he was taken into custody after more than a year on 12.3.1998 and on account of this long delay the live and proximate link in the alleged activities of the appellant and the date of his actual detention was snapped and there was no reasonable cause for detaining the appellant. The argument raised is wholly misconceived. The detention order was passed on 12.2.1997 soon after searches were conducted and his statement had been recorded but as the appellant was evading arrest and was absconding, it could only be served on 12.3.1998 when he was taken into custody. In the counter affidavit filed in the High Court on behalf of the respondents it was averred that continuous efforts were made both by the police authorities as well as the officers of DRI to arrest the appellant. A notice under Section 7(1)(b) of COFEPOSA was published in Official Gazette on 23.3.1997 and also in leading English and Hindi newspapers on 4.10.1997. An application under Section 7(1)(a) of the act was also moved before the Court of ACMM for initiating proceedings under Section 82 and 83 Cr.P.C. where proclamation was made on 3.12.1997 to appear on 9.1.1998. An order of attachment under Section 83 Cr.P.C. was also issued which was brought to the notice of his family members and only then the appellant could be apprehended and detained on 12.3.1998. Reference has also been made to three letters dated 28.2.1997, 17.7.1997 and 5.9.1997 from the Police Headquarters regarding the efforts made to serve the detenu and copies of those letters were placed on record. Every time the family members of the appellant reported before the police that the appellant had left the house on 12.3.1997 to an unknown place and that his whereabouts were not known. An additional affidavit of Assistant Director of Revenue Intelligence was also filed before the High Court wherein it was averred that 11 summons were issued to the appellant during 20.2.1997 and 26.11.1997 and a red alert was also issued by the DRI on 5.3.1997. These facts conclusively established that the detention order which was passed on 12.2.1997 soon after the searches had been made and the statement of the appellant had been recorded, could not be served in spite of every possible attempt had been made to serve him as the appellant was absconding. Where a person himself evades service of detention order, it is not open to him to contend that in view of the long period which has elapsed between the offending activities and the actual arrest and detention, the vital link had snapped and there was no ground for actually detaining him. An otherwise valid detention order cannot be rendered invalid on account of the own act of the detenu of evading arrest and making himself scarce. The contention thus raised has absolutely no merit and has to be rejected.