When Detenu Evades Arrest Concerned Authorities Cannot Be Blamed For The Delay: Delhi High Court

The Court was hearing a Writ Petition filed by the wife of the deceased Sayyed Hussain Madar @ Chand who was detained for smuggling high-quality diesel after they started receiving fresh summons and notices in connection with proceedings under Smugglers and Foreign Exchange Manipulators Act, 1976.

The bench of Justice Suresh Kumar Kait and Justice Manoj Jain observed, “We rather feel that detenu has acted smart and is trying to reap fruits of his own wrongs. If delay is attributed on account of the conduct of the detenu, concerned authorities cannot be blamed at all.”

Advocate Aisha Ansari appeared for the Appellant and CGSC Ajay Digpaul appeared for the Respondent.

Brief Facts-

The Directorate of Revenue Intelligence (DRI) received information that a sea-faring vessel, M.T. AL SHAHABA, was entering Indian waters carrying approximately 700 metric tonnes of smuggled diesel oil from Muscat, Sultanate of Oman. Sayyed Hussain Madar @ Chand, also present on the vessel, arranged barges and tow boats for smuggling purposes. The diesel, valued at over Rs. 2.30 crores, was seized under the Customs Act 1962. Later, Detenu was arrested and released on bail. Due to his potential involvement in future smuggling activities, a detention order was passed.

The detenu filed a writ petition which was dismissed. However, later an action under SAFEMA was initiated against him, but no proceedings were pursued. Detenu passed away, during the pendency of his writ petition challenging the SAFEMA action. The petition was dismissed as infructuous, as no proceedings were initiated against him under SAFEMA.

Legal heirs of Detenu received the summons in connection with proceedings under SAFEMA when the widow of Detenu took the liberty to approach the High Court again to assail the impugned order of detention.

The Court noted that the executing authorities i.e. PCB, CID Mumbai Police also attempted to serve the detention order upon detention by visiting his premises but to no avail as he was not found available at the said premises.

The Court further stated that the Central Government had reason to believe that Detenu had absconded or concealed himself to avoid execution of the detention order, the publication was directed to be carried out in a newspaper directing him to appear before the Commissioner of Police. Since despite repeated attempts made by the concerned agencies and despite publication, detenu did not come forward, the Central Government prepared a report under Section 7(1)(a) of Conservation of Foreign Exchange and Prevention of Sumggling Activites Act,1974 which was placed before the Chief Metropolitan Magistrate with a request that the Court may initiate further proceedings against him under Section 82 to 85 Cr.P.C.

However, the detenu was detained eventually but as per the Court, the sponsoring authority and the executing authority had to make constant efforts to serve and execute the detention order but detenu, very conveniently, avoided the same.

The Court relied on the decision of the Supreme Court in Vinod K Chawla Vs. Union of India & Ors. (2006) 7 SCC 337 where SC considered the effect of delay in execution of detention order and observed, “when the detenu had evaded arrest and absconded and in spite of best possible efforts made by the authorities to serve the order, order could not be executed, the delay in execution would not render detention invalid.”

The Court further observed that since the detenu was directly involved in the smuggling and in organising the finances as well the logistic detention order passed under Section 3(1)(i) of COFEPOSA was fully justified.

“In case, the affected person is in a position to satisfactorily explain the manner in which the properties were acquired, naturally, there might not be any adverse action of any kind under SAFEMA. Thus, the petitioner can always respond to such notice appropriately.” Court stated.

The Court further observed, “in many cases persons engaged in smuggling activities and foreign exchange manipulation have been holding properties acquired through ill-gotten wealth in the name of their relatives, associates and confidants and as these activities posed a serious threat to economy and as one of the steps taken by the Government for cleansing the social fabric and resuscitating the national economy, it became necessary to assume powers to deprive such persons of their illegally acquired properties so as to effectively prevent the smuggling and other clandestine operations.”

Consequently, the Court dismissed the Writ Petition.

Cause Title: Fazila Sayyed v. Union of India (Neutral Citation: 2024:DHC:3174-DB)

Appearance:

Appellant: Adv. Aisha Ansari, Adv. T. Archana

Respondent: CGSC Ajay Digpaul, Adv. Kamal R. Digpaul, Ishita Pathak, Sr. SC Satish Aggarwala, Adv. Gagan Vaswani

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