- (1.) The above writ petition was filed under Art. 32 of the Constitution of India for issuance of a Writ of Habeas Corpus or any other appropriate writ quashing and setting aside the order of detention dated 12.01.2005 under COFEPOSA Act, 1974 issued against the petitioner by respondent No.2 - Principal Secretary (Appeals and Security), Government of Maharashtra, Mumbai.
(2.) The petitioner was detained under Sec. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "COFEPOSA Act") in pursuance of the impugned order of detention. The petitioner by way of this writ petition is challenging the legality and validity of the impugned order of detention passed by respondent No.2 at pre-execution stage in the peculiar facts and circumstances of this case. It is stated that two similar orders of detention dated 12.01.2005 and 31.01.2005 were issued under the COFEPOSA Act by respondent No.2 against the petitioner Alpesh Navinchandra Shah and his brother Kamlesh Shah respectively. The detention order has already been served upon Kamlesh Shah. The grounds of detention order and the documents relied upon in the case of the petitioner are identical in content and material.
(3.) The brief facts of the case are mentioned in seriatim as under: 3.1. in or about, August, 2004 M/s. Perfect Trading Co. (proprietorship firm of Shri Rajendra Mamgaim) imported Ball bearings in five containers. On 3.9.2004, consignments of mis-declared consignments were intercepted by the DRI officials. The petitioner and his brother were arrested on 4.9.2004 by the Intelligence Officers, DRI, Mumbai Zonal Unit primarily on the allegations that they have been indulging in import of high quality and high value Ball Bearing and were clearing the same by evading duty of custom. 3.2. The Addl. Chief Metropolitan Magistrate, 3rd Court, Esplanade, Mumbai vide Order dated 23.9.2004 directed to release the petitioner and his brother on bail imposing conditions including their regular attendance in the Department and the imposition of an embargo not to leave the country without the prior permission of the court. 3.3. Impugned Detention Order bearing No. PSA 1204/21 (2)/SLP-3(A) dated 12.1.2005 was issued by respondent No.2 for detaining the petitioner ostensibly under the provisions of COFEPOSA Act 1974. Similar Order No. PSA 1204/21 (1 )/SLP-3 (A) dated 31.1.2005 was also issued to detain Shri Kamlesh Shah, the brother of the petitioner. 3.4. Show Cause Notice dated 23.2.2005 was issued to the petitioner and his brother by the DRI, Mumbai Zonal Unit. Pursuant to the said show cause notice, the application for settlement u/s. 127B of the Customs Act, 1962 , was filed on 19.4.2005 by M/s Perfect Trading Co. as Applicant and the petitioner, his brother and others as Co-Applicants before the settlement Commission, Mumbai. 3.5. During the course of the admission hearing of the aforesaid settlement application, the petitioner came to know that the Order dated 27.12.2005 has been passed by respondent No.2 for detaining him while invoking sec. 3(1) of the COFEPOSA Act, 1974. Accordingly, at the stage of the admission hearing, the Settlement Commission was urged to make recommendation to the Detaining Authority for the revocation of the Detention Order. 3.6. The Settlement Commission, vide order dated 03.01.2006, rejected the prayer by adopting the reasoning narrated in the case of Vipul Gor, Proprietor of M/s Sonam Enterprises (Misc. Order No.12/ 2005 CUS dated 19.12.2005) wherein it was, inter alia, held that the Commission did not have any jurisdiction to make a recommendation to the Detaining Authority for revocation of a Detention order and further held that the petitioner and his brother would be at liberty to take recourse to any other legal remedy available to it for lifting of the detention order whether by the sponsoring authority, detaining authority or the courts. However, the Settlement Commission allowed the application for settlement to be proceeded with. 3.7. The case was finally heard by the Settlement Commission on 1.3.2006. 3.8. Vide Final Order bearing No.17/CUS/ 2006 dated 7.3.2006, the Settlement Commission allowed the Settlement Application and settled the case on payment of Customs Duty of Rs. 1,40,52,959.00. In terms of sub-sec. (1)of Sec. 127H of the Customs Act, 1962 , and in view of full and true disclosure, the Commission granted immunity to all the Applicants including the petitioner from any penalty that could be levied under the Customs Act and also from the prosecution under the Customs Act, 1962 , as well as under IPC. It is evident from the Order that a copy of the said Final Order of complete settlement of the case, was also forwarded to the Detaining Authority by the Settlement Commission. 3.9. It is also pertinent to note that though the Settlement Commission vide Sec. 127H of the Customs Act, 1962 is empowered to impose such conditions as it may deem fit for grant of immunities, deemed it fit not to impose any condition on the petitioner, in spite of the fact that detention order having been issued against the petitioner, was before the Commission and granted full immunities and settled the case giving quietus to all issues. 3.10. In spite of complete settlement of all disputes among the petitioner and the Revenue, after the case was fully settled by the said Final Order dated 7.3.2006 of "compromise"/ "settlement" of the entire case, the officers of DRI apprehended the Petitioners brother and he was detained under the detention order dated 31.1.2005. 3.11. The petitioner is also relying upon the copy of order dated 5.05.2005 published in Gazette of Maharashtra Government at page 56, Page IV-A, inter alia, showing that the Order No. PSA 1204/21(2)/ SLP-3(A) was issued against the petitioner on 12.01.2005 by the respondent.;