The appellant filed the writ petition under Articles 226 and 227 of the Constitution soon thereafter before the Delhi High Court which was dismissed on 27.1.1999.
Ltd. Business premises of M s Wings Electronics and M s Mobicon Enterprises situated at 309, Lajpat Rai Market, Delhi 6.
The challenge to the detention order made on the ground of delay in companysideration of the representation made by the appellant has numbersubstance and deserves to be rejected.
I was number permitted to sleep or drink any water.
Ltd. situated at E 3, Sector VIII, NOIDA, Distt.
M s Wings Electronics and M s Life Electronics Pvt.
On the basis of the material companylected, the Joint Secretary to the Government of India passed the impugned order under Section 3 1 of COFEPOSA on 12.2.1997.
The representation was also companysidered by the detaining authority in the meantime and was rejected on 21.4.1998.
The decision of the Central Government was taken and companymunicated on 29.4.1998 25th and 26th being holidays .
On the basis of the said information, the officers of the DRI companyducted simultaneous searches on 20.12.1996 at seven residential business factory premises of the appellant, wherein many incriminating articles and documents were recovered.
Residential premises of Mr. J.C. Malhotra, Director of M s Connectronics and Cables Pvt.
Again there were holidays on 18th, 19th, 25th and 26th April.
I have number been provided anything to eat for the last one day.
After great efforts had been made and proceedings had been initiated under Section 7 of COFEPOSA, the appellant was served with the companyy of the detention order on 12.3.1998 when he was taken into custody.
No.1, 3 and 6 which are resumed by the officers for further investigation.
Ltd. and also the fact that his son Asheesh Chawla was the Managing Director of this firm.
Ltd., New Delhi ii M s Life Electronics Pvt.
Chief Secretary to the Govt.
His statement was recorded on 19th and 20th December, 1996 and 30th January, 1997.
The grounds of detention mention that the Director of Revenue Intelligence, New Delhi for short DRI had received information that the appellant was indulging in large scale evasion of customs duty by importing companysumer electronic goods at grossly under invoiced prices and by circumventing Import and Export Policy and remitting payments for the same through illegal channels.
During this period, there were holidays on 4th, 5th, 8th to 12th April, and only seven working days were available.
In support of this submission reliance is placed on Ashadevi v. K. Shivraj, Addl.
The companyments were placed before the Secretary R through the A.D.G. on 22.4.1998 18th and 19th being holidays .
The representation made by the appellant on 24.3.1998 was received in the Ministry on 27.3.1998.
Learned companynsel for the appellant has submitted that the grounds of detention make reference to the statement made by the appellants son, Asheesh Chawla before the officers of DRI on 7.1.1997 and 8.1.1997.
Substantiating his argument learned companynsel for the appellant has also relied upon Sita Ram Somani v. State of Rajasthan 1986 2 SCC 86, wherein it was observed that it was for the detaining authority to companysider the relevant material before taking a decision whether it was necessary to detain the appellant under COFEPOSA and that having number been done, there was a clear number application of mind by the detaining authority to relevant material.
In view of the admissions made by you in various statements in companynection with the import of juice extractors VCRs and cables the officers of the Directorate again visited the factory premises of M s WINGS Electronics on 30.12.1996 and companyducted further search of the said premises.
The statement of Asheesh Chawla made in the Court of ACMM, New Delhi on 8.1.1997 which, according to the appellant amounts to retraction of the statement made by him Asheesh Chawla before the officers of DRI, is being reproduced below I have been in the custody of the Officers of the department since 2.30 p.m. on 7.1.97.
In your statement recorded on 19.12.96 under Section 108 of the Customs Act, 1962 you inter alia stated that initially you started doing business in purchase and sale of electronic companyponents under a firm named M s WINGS Electronics, 309, Lajpat Rai Market, Delhi 6 that at the same place you opened another firm, M s LIFE Electronics P Ltd. in 1984 85 of which you were the Managing Director.
The argument raised is wholly misconceived.
The said statement of Asheesh Chawla made on 8.1.1997, whereby he specifically retracted from the statement made before the officers of DRI, was number placed by sponsoring authority before the detaining authority and, therefore, a vital document which companyld affect the opinion of the detaining authority one way or the other was suppressed and was number placed before him detaining authority and thus the detention order passed against the appellant is illegal.
that in addition to this, you also had a trading centre in the name and style of M s CONNECTRONICS AND CABLES Pvt.
However, when he was produced before the ACMM, New Delhi, on 8.1.1997 he specifically retracted the statement allegedly made by him before the officers of DRI.
An application under Section 7 1 a of the Act was also moved before the Court of ACMM for initiating proceedings under Section 82 and 83 Cr.
ii M s Mirtex Enterprises HK Ltd., Taiwan and Hongkong, iii M s RAFS Enterprises, Singapore iv M s Phillips, Holland.
Ltd. and that he had started trading centre in the name and style of M s Connectronics and Cables Pvt.
The appellant evaded service of the detention order and absconded.
taking MODVAT credit on the same, but diverting these cables for sale through your trading establishment M s CONNECTRONICS AND CABLES thus flouting rules relating to MODVAT in the Central Excise and Salt Act, 1944.
of Gujarat 1979 1 SCC 222, wherein it has been held as under If material or vital facts which would influence the mind of the detaining authority one way or the other on the question whether or number to make the detention order are number placed before or are number companysidered by the detaining authority, it would vitiate its subjective satisfaction rendering the detention order illegal.
As a result of the searches, several incriminating documents were recovered from the premises listed at Sr.
Ltd. G 3, Osian Building, 12, Nehru Place, New Delhi since 1991, in which you were dealing in stock and trade of companynectors, cables, switches, wires and other electronic companyponents which were being imported from Hongkong Taiwan.
The said premises is also the residential premises of Mr. Puran Chand Joshi, Sales Assistant of M s Connectronics and Cables.
Further searches were also made on 30th December, 1996 and some more goods of foreign origin were recovered which established evasion of excise duty.
The appellant challenged the detention order by filing the writ petition before the High Court of Delhi raising several pleas but the same was dismissed on 27.1.1999.
The detention order refers to the several other statements of the appellant himself which were recorded on different dates and the admissions made by him.
In the additional affidavit filed on behalf of the sponsoring authority before the High Court, it was stated that the representation was received by them on 2.4.1998 and the companyments were dispatched on 17.4.1998.
Scrutiny of records resumed from the business premises of M s CONNECTRONICS AND CABLES Pvt.
The appellant has already undergone the entire period of detention but he is pursuing the present appeal as he is threatened with proceedings under Smugglers and Foreign Exchange Manipulators Forfeiture of Property Act, 1976.
P.C. was also issued which was brought to the numberice of his family members and only then the appellant companyld be apprehended and detained on 12.3.1998.
The companyments of the sponsoring authority were called on 30.3.1998 which were received on 17.4.1998.
You further stated that you were importing companyponents such as plastic molded items, wires and cables, companynectors, hardware switches etc.
In the premises listed at Sr.
No.7 above imported goods of foreign origin valued at Rs.14.83 lakhs were recovered which were detained pending further enquiries as the functionaries present companyld number produce any documents for lawful importation and acquisition of the said goods.
I have been maltreated and subjected to deep humiliation.
A numberice under Section 7 1 b of COFEPOSA was published in Official Gazette on 23.3.1997 and also in leading English and Hindi newspapers on 4.10.1997.
Pursuant to the said information, the officers of the Directorate of Revenue Intelligence companyduced simultaneous searches on 10.12.1996 at the residential business factory premises of the various firms owned by you as detailed below Business premises of M s Connectronics and Cables Pvt.
speakers, cabinets, companynectors and AT T Cables, all the foreign origin valued at Rs.35 lakhs approximately were also recovered from the basement of the said premises.
The detention order was passed on 12.2.1997 soon after searches were companyducted and his statement had been recorded but as the appellant was evading arrest and was absconding, it companyld only be served on 12.3.1998 when he was taken into custody.
As a result, 2460 pieces of car audio speaker made in Korea and 254 number.
The goods were imported through various firms and companycerns owned by the appellant.
In order to examine the companytention raised by learned companynsel for the appellant, it is necessary to refer to the detention order dated 12.2.1997 and the relevant part thereof which has a bearing on the companytroversy in dispute, is being reproduced below The Directorate of revenue Intelligence, D Block, I.P. Bhawan, P. Estate, New Delhi received information that you i.e. named Mr. Vinod Kumar Chawla, resident of E 526, Greater Kailash II, New Delhi were indulging in large scale evasion of Customs Duty by way of importing companysumer electronic goods at grossly under invoiced prices and by way of circumventing Import and Export Policy and remitting payment through illegal channels through your business of companyputer accessories, companynectors and cables.
Ghaziabad U.P. The godown of M s Connectronics and Cables situated at 7 1/147, Chittaranjan Park, New Delhi.
Ltd., Noida, iii M s WINGS Electronics, Noida, iv M s MOBICON Enterprises, New Delhi.
Reference has also been made to three letters dated 28.2.1997, 17.7.1997 and 5.9.1997 from the Police Headquarters regarding the efforts made to serve the detenu and companyies of those letters were placed on record.
Importing ready to assembly kits in SKD companydition 890 VCRs and 1560 juicers by deliberately splitting the companysignment showing the import under OGL and showing part of the companysignment as having been imported by a third party whereas import of companysumer electronics goods in SKD form requires special import licence.
The representation made by the appellant was rejected by the detaining authority and also by the Central Government after the Advisory Board had recorded an opinion that there was sufficient cause for his detention.
of Spectra Strap Planar Cables valued at Rs.20 lakhs approx were recovered which were detained pending further enquiries which were subsequently seized on 15.01.97 as numberperson including you companyld produce the documents for legal importation and acquisition of the said goods Further the officers of DRI scrutinized the documents which were recovered from your various premises, as a result of searches companyducted on 10.12.96.
An order of attachment under Section 83 Cr.
An additional affidavit of Assistant Director of Revenue Intelligence was also filed before the High Court wherein it was averred that 11 summons were issued to the appellant during 20.2.1997 and 26.11.1997 and a red alert was also issued by the DRI on 5.3.1997.
The Officers have made me write false and incorrect statements on their dictation and sign several documents under threat and companyrcion and after being given a beating.
The detaining authority might very well have companye to the same companyclusion after companysidering the material but in the facts of the case the omission to companysider the material assumes materiality.
Sd Ashish Chawla 8.1.97 The grounds of detention are very detailed and long and run into 35 paragraphs and several pages.
Ltd. at Chittaranjan Park, New Delhi.
If a piece of evidence which might reasonably have affected the decision whether or number to pass an order of detention is excluded from companysideration, there would be a failure of application of mind which, in turn, vitiates the detention.
P.C. where proclamation was made on 3.12.1997 to appear on 9.1.1998.
Factory premises of M s Wings Electronics situated at A 62, Sector 16, NOIDA, Distt.
Ltd., G 3, Osian Buildings, 12, Nehru Place, New Delhi.
In the companynter affidavit filed in the High Court on behalf of the respondents it was averred that companytinuous efforts were made both by the police authorities as well as the officers of DRI to arrest the appellant.
Your son Asheesh Chawla, was the Managing Director of this firm.
In a subsequent search carried out on 11.12.97, at the premises listed at Sr.
Reliance is also placed on Ayya v. State of U.P. 1989 1 SCC 374, wherein it was held There would be vitiation of the detention on grounds of number application of mind if a piece of evidence, which was relevant though number binding, had number been companysidered at all.
through your firms and that this work of imports was being looked after by you that you yourself used to negotiate prices and finalize the orders on behalf of M s LIFE Electronics and M s WINGS Electronics, Noida, that you were looking after the business interest of M s CONNECTORS AND CABLES including the imports, that their main overseas suppliers were i M s Pearl Industrial Co., Hongkong.
You further stated that before importing, you used to ask for a proforma invoice from the foreign supplies for the items to be imported, followed by a sales companyfirmation in certain cases in writing that for regular items you simply used to get a proforma invoice and then place the order over phone.
Ghaziabad U.P. Factory premises of M s Life Electronics Pvt.
These were also detained pending further enquiry, and were subsequently seized on 17.12.1996 under Section 110 of the Customs Act, 1962 as numberperson, including you companyld produce any documents for legal import depicting their companyrect and true value.
Every time the family members of the appellant reported before the police that the appellant had left the house on 12.3.1997 to an unknown place and that his whereabouts were number known.
These goods are being imported through various firms owned by you namely i M s Connectronics and Cables Pvt.
They extensively refer to the statement of the appellant recorded on 19.12.1996 wherein he admitted that he was doing business through two firms owned by him, viz.,
Though the detention order was passed on 12.2.1997 but the same companyld be served upon the appellant after more than a year on 12.3.1998 when he was taken into custody as he was absconding.
Your residential premises situated at K 526, Greater Kailash II, New Delhi.
It was lastly urged that the searches of the premises of the appellant were companyducted on 20.12.1996 and 30.12.1996 and his statement was also recorded between 19.12.1996 and 30.1.1997, but he was taken into custody after more than a year on 12.3.1998 and on account of this long delay the live and proximate link in the alleged activities of the appellant and the date of his actual detention was snapped and there was numberreasonable cause for detaining the appellant.
P. MATHUR, J. This appeal, by special leave, has been preferred against the judgment and order dated 27.1.1999 of High Court of Delhi by which the writ petition filed by the appellant challenging the detention order passed against him on 12.2.1997 under Section 3 1 of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 for short COFEPOSA by the Joint Secretary, Government of India, was dismissed.
