A.N. Jindal, J. - (1.) THE petitioner has invoked the jurisdiction of this Court under Article 226 of the Constitution of India with a prayer to quash the order of detention bearing F. No. 673/51/95 -CUS.VII dated 17.5.1995 passed by the Detaining Authority -cum -Joint Secretary, COFEPOSA -respondent No. 2 under the provisions of Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (herein referred as "the COFEPOSA") issued against the husband of the petitioner namely Manoj Kumar Didwania son of Ram Gopal Did -wania, proprietor of the firm M/s Western Metal Corporation engaged in the business of trading of imported ferrous and non -ferrous metals, being illegal, unconstitutional and passed with wrong purpose based on extraneous, irrelevant and vague grounds and having suffered from inordinate delay for issuance as well as execution thereof.
(2.) THE detention order issued against detenue on 17.5.1995 by the respondent No. 1 is being executed now after 13 years. The factual background of the case is that Manoj Kumar a resident of District Bhiwani (Haryana) was the proprietor of one firm namely M/s Western Metal Corporation engaged in the business of trading of importing ferrous and non -ferrous metals. In the month of June/July, 1993, he being the proprietor of the firm entered into a contract with one M/s Donald Mearthy Private Limited for the purchase and supply of copper and brass scrap. The goods were shifted to Bombay port on the basis of "documents against payment terms". Since there was a delay in shipment and also the goods were wrongly landed at Bombay instead of Nheva Sheva, M/s Western Metal Corporation refused to accept the goods and did not retire the import documents by making necessary payments in the bank. Even no bill of the entry was ever filed. On 7.2.1994, M/s Donald Mearthy Private Limited sent a fax message to M/s Western Metal Corporation regarding non clearance of the goods, therefore, request was made for reshipment of the goods which was allowed on 21.3.1994. The Custom Department moved an application for modification of the order dated 21.3.1994 which was dismissed. Aggrieved by the said order, the Custom Department filed a special leave petition before the Supreme Court of India, whereupon, the Apex Court vide order dated 20.5.1994 rejected the application. However, a direction was given to the Custom Department to file the findings of further investigation before the High Court at Bombay. Again, on filing of the application for modification, the Bombay High Court, vide order dated 5.8.1994 stayed the order of re -shipment of the goods. The aforesaid litigation was only between exporter M/s Donald Mearthy Private Limited and the Customs Department and Manoj Kumar Didwania was not a party to those proceedings. On 18.8.1994, the Customs Department enlarged the scope of enquiry and issued a show cause notice under Section 124 of the Customs Act, 1962 for the violation of Section 7 of Foreign Trade (Development and Regulation) Act, 1992 and for confiscation of goods under Section 111 (d) of the Customs Act. Since the High Court had directed a time bound the programme for adjudication, therefore, the Collector of Customs without adjudicating the claim and, without supplying the requisite documents held that Didwania family had fictitious firms (without any specific reference to the detenue Manoj Kumar Didwania) and was directly or indirectly responsible for effecting massive imports with a sole intention to evade the prohibition of Export and Import Policy and also to evade tax liability. It was also held that importation was made by Didwania family against the prohibition imposed by Section 7 of the Foreign Trade and Development Act, 1992 and consequently, was liable for action under Section 111(d) of the Customs Act. However, the reshipment was allowed on payment of redemption fine of Rs. 2 crores. Didwania family filed the appeal, however, during the pendency of the appeal, orders of detention were issued against the detenue and the other family members including two brothers and nephew. However, Secretary, CEFAT vide order dated 8.7.1997, remanded the matter back for denovo adjudication. Later on, in the month of March, 2004, Government of India, revoked the detention orders against Deendayal Didwania and his son Navneet Kumar Didwania vide orders Annexures P -l and P -2 respectively, whereas, the order against the present detenue was not revoked, though his case was on better footings. The petitioner has claimed the order of detention to be unconstitutional, illegal, arbitrary and against the settled provisions of law on the following grounds: 1. The order suffers from malice in law and discriminatory resulting in violation of the article 14 of the Constitution of India. Repeated reference has been made in the grounds of detention that members of the Didwania family (without mentioning name of the detenue) had been indulging in importing goods. Though the detention orders regarding Deendayal Didwania and his son Navneet Kumar Didwania were revoked prior to their execution while exercising the powers vested under Section 11 of COFEPOSA by the Central vide Annexures P -l and P -2, but the order against the present detenue was not revoked which is highly discriminatory, illegal, malafide, tainted and arbitrary. In this regard he has placed reliance upon the judgment Pawan Bhartiya v. Union of India and Anr. : (2003)11SCC479 , and the verdict given by the Delhi High Court in case Bhuvan Aggarwal v. Union of India Writ Petition (Crl.) No. 1270 of 2007, decided on 10.04.2008. 2. The order of detention suffers from gross delay. The alleged prejudicial' activities relate to May, 1993, whereas the detention order was passed only on 17.5.1995 i.e. after a lapse of about 2 years. It raises a serious question on the necessity of the detention order. It also reflects lack of subjective satisfaction in passing the impugned order, therefore, the live and proximate link between the alleged prejudicial activities and the passing of the detention order has been snapped leading to the vitiation of the detention order. Further this delay caused in passing the detention order frustrates the very object for detaining the detenue for one year. The spirit behind the order was just to prevent the proposed detenue from illegal activities but passing of the order after 2 years frustrates it object. Further more, due to the lapse of more than 12 -1/2 years in its execution, the order has been rendered stale and no live and proximate link is left between the alleged prejudicial activities and the necessity for detention. The Detaining Authority was required to apply its mind fresh as to whether there is still any necessity to execute the same and also to conclude whether the detenue was still indulging in any such activities warranting its prevention by way of execution of the impugned order of detention. Reference in this regard has been made to the judgment delivered by the Apex Court in case Sunil Funchand Shah v. Union of India, A.I.R. 2000 S.C. 1024. He has also referred to the judgments delivered in case P.M. Harikumar v. Union of India and Ors. ; A Mohammed Farook, 2000 5 S.C.C. 411; Manju Ramesh Nahar, 1999 6 S.C.C. 498 and S.M.F. Abdul Kadar,, 7 1998 S.C.C. 1534. 3. The material and relevant documents have been withheld by the sponsoring authority from the gaze of scrutiny of the detaining authority. Non placement of these documents by the Sponsoring Authority resulting into non -consideration thereof by the detaining authority have impaired the subjective satisfaction of the detaining authority resulting in vitiation of the impugned detention order. Besides others the following documents have not been placed before the Detaining Authority: 1. Copy of the Fax message dated 7.12.1994, whereby M/s Donald Mcarthy Private Limited requested for reshipment of the entire consignment. 2. Copy of the order dated 15.3.1995 passed by the CEGAT regarding transfer of appeals at New Delhi, wherein, categoric observations were made pertaining to the word "Smuggling" vis -a -vis the facts of the present case. 3. Learned Counsel has further stressed that if the vital piece of evidence which is likely to infringe the subjective satisfaction if not placed before the detaining authority, then the detention order would be vitiated, on the view of non application of mind. In this regard he has cited Asha Devi v. K. Shivraj, A.I.R. 1979 S.C. 447 and State of UP. v. : AIR1988SC208 .
(3.) THE detention order has been passed in haste without awaiting the result of the appeal filed in the CEGAT.;