No one can take advantage of his own wrongful conduct: Delhi HC dismisses petition seeking quashing of detention order filed by deceased detenu's wife in COFEPOSA case involving smuggling of diesel oil
Justices Suresh Kumar Kait & Manoj Jain [23-04-2024]

Read Order: FAZILA SAYYED v. UNION OF INDIA & ORS [DELHI HC- W.P.(CRL) 889/2023]

LE Correspondent

New Delhi, April 26, 2024: The Delhi High Court has dismissed a petition seeking quashing of a detention order passed under COFEPOSA Act filed by the deceased detenu's wife. The High Court observed that there was no material to portray that the time lapse, between the detention order and its execution, would lead to the inference that the live-link between the prejudicial activity of the detenu and the object of detention stood snapped.

The incident is of the year 2004 when the Directorate of Revenue Intelligence (DRI) had information that one sea-faring vessel would be entering into Indian customs waters carrying approximately 700 metric tonnes of smuggled diesel oil of foreign origin, which would be offloaded in several barges and then would be carried to the coast. Pursuant thereto, the DRI officials spotted a vessel by the name of M.T. AL SHAHABA which was found carrying High Speed Diesel (HSD)/Marine Gas Oil being brought from Muscat, Sultanate of Oman into Indian waters, illegally. Sayyed Hussain Madar @ Chand (Detenu) was also found present on said vessel. It was learnt that he was the one who had also arranged for the barges and tow boats for the purposes of smuggling of said oil. Thus, it came to fore that a huge quantity of the diesel oil was being smuggled with no import documents.

The quantity of diesel totalling 770.00 C.MTR weighing 635.556 metric tonnes, valued at more than Rs. 2.30 crores, was seized on 21.12.2004 under the provision of Customs Act 1962.

Statement of detenu was also recorded under Section 108. All the crew members of the barges and two tow boats and officers/crew members of said Vessel AI Shahaba, in their voluntary statements also confirmed the activity of unloading the diesel oil from the mother vessel AI Shahaba into the barges. In connection with the aforesaid seizure, residential premises of one Bobby Chully as well as of detenu were raided. On the basis of said seizure and the material collected during the investigation, it came to fore that the detenu was involved in activities which amounted to smuggling as defined under Section 2(39) of the Customs Act, 1962. Detenu was arrested under Section 104.A Detention order under Section 3(1) of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act 1974 (COFEPOSA) was passed against him. Detenu, unfortunately, expired on 16.09.2010 i.e. during the pendency of his writ petition.

The Division Bench of Justice Suresh Kumar Kait and Justice Manoj Jain was considering a writ petition filed by the detenue's widow praying that such detention order be quashed.

After going through the facts of the case, the Bench noted that 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 COFEPOSA which was placed before the Court of Chief Metropolitan Magistrate, Mumbai with request that Court may initiate further proceedings against him under Section 82 to 85 Cr.P.C.

One more factor which persuaded the Bench to hold that the detenu was in the thick of the things was that the sponsoring authority and executing authority made constant efforts to serve and execute the detention order but detenu, very conveniently, avoided the same. “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”, it said.

Moreover, there was nothing on record which might have indicated that activity of the detenu did not fall under 3(1)(i) of COFEPOSA. As per the investigation conducted by DRI, detenu was found to be the person who was directly involved in the smuggling and for organizing the finances as well as logistic and, therefore, detention order passed under Section 3(1)(i) of COFEPOSA was fully justified. 

“We may also reiterate that detenu, when he was alive, could have easily prayed this Court for disposal of his writ petition on merit but he himself submitted that it be dismissed as withdrawn with liberty to raise all the issues in case of initiation of any proceedings under SAFEMA. Petitioner is not justified in asserting that the earlier writ petition was withdrawn on 16.08.2007, with liberty as sought for, as it could not reach for final hearing”, the Bench added.

The orders available on website rather indicated that at one earlier point of time the final arguments were heard on merits and the matter was even reserved for judgment. There was also nothing on record to infer that the detenu had withdrawn the petition as it could not reach final hearing. On the contrary, he himself had sought withdrawal.

“Indubitably, no one can be permitted to take advantage of his own wrongful conduct”, the Bench said.

Furthermore, on account of issuance of notice dated 01.01.2009, detenu was compelled to file Criminal Writ Petition before the Bombay High Court which was disposed of as the counsel for respondents had submitted that petitioner had merely been called upon to furnish certain information and no proceedings had been initiated under Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976.

After the demise of detenu, fresh summons and Notice in connection with proceedings under SAFEMA had been issued to his legal heirs where detenu has been referred as affected person no. 1 (AP-1) and his wife as affected person no. 2 (AP-2) and according to such notice, there are two immovable properties in possession of AP-2. His wife has, merely, been called upon to indicate the source of income or the means through which said two properties had been acquired. “In case, affected person is in a position to satisfactorily explain about 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”, it said.

There was there was no material which would portray that the time lapse, between detention order and its execution, was as such as would lead to the inference that the live-link between the prejudicial activity of the detenu and the object of detention, namely, to prevent him from indulging in such prejudicial activity, stood snapped.

“Before parting, we may sate that SAFEMA was enacted to provide for the forfeiture of illegally acquired properties of smugglers and foreign exchange manipulators and for matters connected therewith or incidental thereto…The petitioner herein is always at liberty to agitate all contentions in such proceedings under SAFEMA and she would also be at liberty to agitate about the delay in initiation of such proceedings. We, however, wish to clarify that it may not be understood as if we have expressed any opinion, either way, on said aspect”, the Bench held while dismissing the petition.