M. Jeyapaul, J. - (1.) PETITIONER Geeta Goyal wife of Rakesh Kumar Goyal has filed the present criminal writ petition praying for issuance of an appropriate order in the nature of habeas corpus quashing the impugned order of detention bearing No. 673/02/2013 -Cus/VIII dated 19.9.2013 passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'COFEPOSA) by the respondent against Rakesh Kumar Goyal and his consequential release as the impugned order of detention is unconstitutional being patently violative of the fundamental rights of the detenu as enshrined under Article 21 of the Constitution of India. The facts of the case reads as follows: a) Specific information was received by the DRI, Regional Unit, Ludhiana to the effect that Rakesh Kumar Goyal, Director of M/s. Kwality Overseas Private Ltd., 863, Industrial Area -A, Ludhiana (for short 'M/s. KOL) has been resorting to mis -declaration and under valuation of the goods imported by the company. The DRI Ludhiana directed Joint Commissioner of Customs, CFS, Ludhiana to get a suitable test done from the Textile Committee before clearance of goods imported by M/s. KOL in Container No. HDMU6551553. The imported consignment declared as Flock fabric was suspected to be Woven brushed pile fabric. b) DRI, Ludhiana took up the investigation of mis -declaration and undervaluation of imported goods as well as diversion of goods imported without payment of duty with actual user condition under various exemption schemes (Target Plus Scheme) by various businesses entities controlled by Rakesh Kumar Goyal. Examination and testing of imported goods coupled with market enquiry confirmed mis -declaration and undervaluation of imported goods. Searches made at the declared supporting manufacture's premises established diversion of goods imported under various export promotion schemes. It was found out that there had been import of counterfeit goods of brand 'CK' (Calvin Klein) in violation of Intellectual Property Rights (Imported Goods) Enforcement Rules, 2007. Further, imports sought to be made on the basis of advance authorization were found misdeclared in description/value. c) Searches of various premises including the office of M/s. KOL, Ludhiana and the declared supporting manufacturer M/s. Cannon Industries Private Ltd., Ludhiana which was also owned by Rakesh Kumar Goyal confirmed that it has no production/manufacturing capability. Jurisdictional Central Excise Authorities also reported that M/s. Cannon Industries Private Ltd. had not declared any manufacturing or clearance activity in the ER -3 returns for the period January 2011 to December 2011. d) Documents recovered from the office of M/s. KOL, Ludhiana and M/s. Cannon Industries Private Ltd. on 26.5.2012 and various other searches revealed clandestine diversion of the goods, namely, Acrylic Tow, Polyester Staple Fibre, etc. imported and cleared without payment of duty under Target Plus Scheme by M/s. Cannon Industries Private Ltd. to M/s. Garg Acrylics Ltd., Ludhiana. e) The scrutiny of invoices resumed during search dated 26.5.2012 at M/s. KOL Ludhiana revealed that M/s. Cannon Industries Private Ltd., Ludhiana had clandestinely diverted goods imported under Target Plus Scheme. f) In order to ascertain the unit price of similar type of imported goods, fabric market enquiry was conducted which revealed that the goods were attempted to be imported by M/s. KOL through substantial undervaluation. The enquiry would reveal that in collusion with the associates, Rakesh Kumar Goyal fraudulently availed the benefits of Target Plus Scheme by violation of its actual user condition and unauthorizedly diverted raw materials imported as well as capital goods which were imported under actual user condition thereby causing loss of revenue to the national exchequer to the tune of more than Rs.3 crores. Further, he attempted to undervalue as well as misdeclare imported goods and violated the conditions of advance authorization for Annual Requirements Licence leading to loss of revenue estimated at over Rs.77 lacs. Rakesh Kumar Goyal also tried to import counterfeit goods valued at approximately Rs.27 lacs alongwith other goods in violation of prohibition imposed under Section 11 of the Customs Act, 1962. Rakesh Kumar Goyal also had not co -operated with the investigation.
(2.) BASED on the proposal of the Director of Revenue Intelligence (DRI), Ludhiana, DZU, New Delhi, detention order was issued on 19.9.2013 against Rakesh Kumar Garg by Joint Secretary, COFEPOSA, the specially empowered officer of the Central Government under COFEPOSA Act, 1974 to prevent him from indulging in smuggling of goods in future. The order of detention was executed by Punjab Police and the detenu was detained on and from 20.10.2013. Learned senior counsel Mr. R.S. Rai, appearing for the detenu would vehemently submit that there had been an undue delay in passing the detention order on 19.9.2013 after the proposal was accepted by the Screening Committee as early as on 29.1.2013. Such an unexplained delay proves fatal to the order of detention passed by the detaining authority. Learned counsel appearing for the respondent would submit that the time chart prepared by the Sponsoring Authority and served on the detenu would go to establish that proposal for detention was duly considered and the detaining authority passed the order of detention only after all the materials were produced substantiating the grounds of detention. Even otherwise, the delay, if any, has been properly explained by the respondent.
(3.) THE time chart produced by both the sides before this Court would go to establish that the proposal to detain Rakesh Kumar Goyal under the COFEPOSA, 1974 was received by the detaining authority on 27.11.2012. The Central Screening Committee had held its meeting on 18.1.2013 after the adjudicating authority passed a final order as regards the provisional release of the goods of M/s. KOL on 12.12.2012. The Screening Committee having approved the proposal for detention under COFEPOSA, 1974 called for documents from the Sponsoring Authority, namely, DRI, DZU, New Delhi on 29.1.2013. Rakesh Kumar Goyal was directed by the Sponsoring Authority to remain present on 6.2.2013 for forensic examination of CPU, Laptop, Hard Disk, Pen Drives recovered under panchnamas. But Rakesh Kumar Goyal failed to remain present on the said day for associating in the matter of forensic examination of the electronic devices resumed by the Sponsoring Authority. Rakesh Kumar Goyal was once again directed to be present on 11.2.2013 for the aforesaid purpose. It was intimated to the aforesaid Authority that he was still out of station. No other authorized person also was sent by M/s. KOL to be present before the Sponsoring Authority for examination on 11.2.2013. Forensic examination of the electronic devices had to be done by the Sponsoring Authority on 26.5.2012 in the presence of two independent witnesses. On 14.2.2013, a show cause notice for the proposed confiscation of the counterfeit imported goods was issued to M/s. KOL. Show cause notice for the proposal to enhance the price of the seized goods was also issued on 15.2.2013. The Detaining Authority reminded the Sponsoring Authority on 21.2.2013 to send the details/documents. Thereafter there had been correspondence between M/s. KOL and Director of Revenue Intelligence. On 7.3.2013, the Sponsoring Authority was asked to spell -out the relevancy of each document received on 5.3.2013. On 15.3.2013 M/s. KOL requested to provide certain documents and allow cross -examination of officers for submitting final reply to the show cause notice. On 25.3.2013, the Adjudicating Authority was requested by the Sponsoring Authority for early disposal of the case. Thereafter the Sponsoring Authority was requested to furnish more details on 1.4.2013 and 4.4.2013 and 5.4.2013. Market enquiry also was conducted in respect of the sample of fabrics. The Joint Secretary, COFEPOSA also was on medical leave from 21.6.2013 to 6.10.2013. Rakesh Kumar Goyal was further summoned to appear before the DRI on 3.7.2013. Thereafter the detention order which is under challenge alongwith the grounds of detention was issued under Section 3(1) of the COFEPOSA, 1974 by the Joint Secretary, COFEPOSA, Ministry of Finance for preventive detention of the detenu.;