Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA Act) – Section 3(1)(i) and 3(1)(ii) – Order of detention – Non mention in the grounds of detention about the show cause notice would not be a sufficient ground to quash the order of detention at its pre-execution stage.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.T.SANKARAN & K.P. JYOTHINDRANATH, JJ.
W.P.(C) No.34051 of 2014
Dated this the 22nd day of March, 2016
BY ADVS.SRI.M.K.DAMODARAN (SR.) SRI.O.V.MANIPRASAD SRI.GILBERT GEORGE CORREYA
1. STATE OF KERALA REP. BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
2. THE PRINCIPAL SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
3. THE DIRECTORATE OF REVENUE INTELLIGENCE REGIONAL UNIT, VILAKUNNEL, KAITHOTH ROAD, PALARIVATTOM, KOCHI- 682025, REPRESENTED BY THE DEPUTY DIRECTOR.
R1 & R2 BY DIRECTOR GENERAL OF PROSECUTION SRI.ASAF ALI R3 BY STANDING COUNSEL SRI.C.P.UDAYABHANU
The reliefs prayed for by the petitioner in the Writ Petition are the following:
“i. Call for the entire records leading to the detention order No.7018/SSA4/2013/Home dated 06.05.2013 issued by the 2nd respondent against the petitioner and issue a writ of certiorari or any other appropriate writ quashing the same.
ii. Issue a direction to the 2nd respondent to provide a copy of the detention order No.7018/SSA4/2013/Home dated 06.05.2013 issued by the 2nd respondent against the petitioner and the grounds of detention to the petitioner.
iii. To declare that the detention order No.7018/SSA4/2013/Home dated 06.05.2013 issued by the 2nd respondent against the petitioner is illegal and the petitioner is not liable to be detained as per the said order. iv. Such other relief this Hon’ble Court deems fit and proper to grant in the facts and circumstances of the case.”
2. The order issued by the second respondent against the petitioner, which is sought to be quashed, is an order issued under
Section 3(1)(i) and 3(1)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act
(hereinafter referred to as ‘the COFEPOSA Act). The order of detention was not served on the petitioner and he was not arrested as, even according to the petitioner, he was all throughout in Dubai, UAE, in connection with his employment.
3. The petitioner submits that Ext.P2 grounds of detention was issued to Antony Morris, who is involved in the same incident in which the petitioner is allegedly involved. The petitioner also relies on the facts stated in Ext.P2 grounds of detention issued in the case of Antony Morris. The petitioner relies on Ext.P3 statement given by Antony Morris under Section 108 of the Customs Act to show that there was no real complicity by the petitioner in the incident. It is submitted that even Antony Morris has retracted his statement under Section 108 of the Customs Act.
4. The learned State Prosecutor submitted that the allegations in Ext.P2 grounds of detention issued to Antony Morris and the grounds which are available against the petitioner are similar. Since both parties rely on Ext.P2 grounds of detention, we are of the view that the facts stated in Ext.P2 can be taken into account for the purpose of disposing of this Writ Petition and in dealing with the contentions raised by the petitioner.
5. Ext.P2 shows that on 28.10.2011 and 16.11.2012 large quantity of red sanders was seized from the containers made ready for transshipment at Vallarpadom transshipment terminal. The red sanders were concealed in dehusked coconuts and coir pith under the pretext that what was being exported was dehusked coconuts and coir pith. It is also alleged that a total number of seven containers were transshipped on different dates, out of which four containers containing red sanders. It is also alleged that even subsequently, three containers were transshipped allegedly at the instance of the petitioner, in which two containers contained only coconut husks and the third container attempted to be transshipped on 16.11.2012 contained 7.75 metric tonnes of red sanders valued at ₹77.50 lakhs, which was seized on 17.11.2012. 6. The statement of Antony Morris and others were recorded under Section 108 of the Customs Act. With respect to the incident dated 28.10.2011, show cause notice dated 20.4.2012 was issued to the petitioner. The proceedings in respect of the same culminated in Ext.P8 order dated 30.4.2013 passed by the Commissioner of Customs. At paragraph 94 of Ext.P8 order, it was held thus:
“94. I also find that though S/Shri Hameed and Sadique were mentioned as noticee to the SCN at Sl.No.12 and 13 respectively, the SCN was not served as the whereabouts are not known. Shri Anil Kumar has stated that smuggling of red sanders was arranged by Hameed and Shafique, residents of Dubai. Apart from the above mention, the investigation has failed to locate the above persons or to bring out the role played them. As such the proposal for imposition of penalty on them is not considered.”
It is submitted by the learned counsel for the petitioner that the name Sadique mentioned in paragraph 94 of Ext.P8 is none other than the petitioner (Shafique) and the name was wrongly shown as Sadique in Ext.P8 order. It is also submitted that Sadique was also a party to Ext.P8 proceedings and fine was imposed on him as is seen from Ext.P8 order. It is therefore submitted that paragraph 94 of Ext.P8 order really refers to Shafique, the petitioner, and not Sadique. Learned State Prosecutor submitted that it may be a mistake with respect to the name as mentioned in paragraph 94 of Ext.P8 order.
7. With respect to the incident dated 16.11.2012 on which date a quantity of 7.75 metric tonnes of red sanders was attempted to be transshipped illegally, Ext.P7 show cause notice dated 2.5.2013 was issued to the petitioner under Section 124 of the Customs Act. In that proceeding, order dated 23.10.2014 was passed by the Commissioner of Customs and a penalty of Rupees ten lakhs was imposed on the petitioner. The petitioner challenged the order dated 23.10.2014 in appeal before the Customs, Excise & Service Tax Appellate Tribunal, South Zonal Bench, Bangalore. The Appellate Authority allowed the appeal filed by the petitioner as per Ext.P9 order dated 8.9.2015 and the order issued by the Commissioner of Customs was set aside. The Commissioner of Customs filed Customs Appeal No.1 of 2016 before this Court challenging Ext.P9 order of the Appellate Authority. The Customs Appeal was admitted on 19.1.2016 and as per the order in I.A.No.146 of 2016, a Division Bench of this Court said that the decision of the Appellate Authority, setting aside the order of imposition of penalty, will be subject to the final decision of the appeal. 8. At the time when the Writ Petition was filed, Ext.P9 order was not passed. Later, on 8.9.2015, Ext.P9 order was passed and it was produced by the petitioner as an additional document. The petitioner raised a contention that in similar circumstances where the order imposing penalty was set aside by the Appellate Authority, the Supreme Court in Ext.P10 order in W.P.(Crl) No.88 of 2010 directed the detaining authority to consider the representation of the party concerned and to take note of the subsequent events. Thereafter, Ext.P11 order was passed by the Supreme Court recording the order passed by the Government of Maharashtra revoking the order of detention against the petitioner in W.P.(Crl) No.88 of 2010. It was submitted at the time when Exts.P10 and P11 orders were produced in the present Writ Petition that the Writ Petition filed by the petitioner also could be disposed of directing the detaining authority to take into account the subsequent event, namely, passing of Ext.P9 order by the Appellate Authority exonerating the petitioner from liability. At that juncture, the learned State Prosecutor submitted that an appeal was proposed to be filed challenging Ext.P9 order. Subsequently, the Commissioner of Customs filed Customs Appeal No.1 of 2016 before the High Court of Kerala challenging Ext.P9 order. In these circumstances, the submission made by the learned counsel for the petitioner that a direction could be issued to the detaining authority to take note of the subsequent event has lost its significance, since Ext.P9 order is subject to the result of the Customs Appeal pending before the High Court. 9. In the statement given by Antony Morris under Section 108 of the Customs Act, he stated as follows: