The Delhi High Court while quashing the detention order against Chartered Accountant ( CA ) noted that there has been an inordinate delay of 65 days by the Central Government in deciding representations filed CA alleged of illegal import of gold jewellery for evasion of customs duty.
The detenus, Amit Pal Singh and Gopal Gupta are statedly employees of a company namely, M/s. Its My Name Private Limited (IMNPL). The IMNPL is a government recognized three star export house, engaged in the business of manufacturing, import and export of gold jewellery and other allied bullion items.
The detenu Gopal Gupta, who is employed as a Chartered Accountant by IMNPL was also detained by the DRI.
The Detenu was Chartered Accountant in IMNPL and used to prepare Bill of Entry for import of gold and packing list & invoice for export, preparation/validation of documents pertaining to exhibition export and re-import of M/s Its My Name Pvt. Ltd, in addition to accountancy work and maintaining accounts for sale/purchase of gold in IMNPL.
The detenu Amit Pal Singh was entrusted with the work to hand-carry (personal carriage) the gold jewellery to UAE for the purpose of exhibition, in accordance with the permission granted and in compliance with the provisions applicable.
Detenu described the modus operandi vide his voluntary statement recorded under Section 108 Customs Act dated 25.04.2019, whereby the re- imported gold jewellery was mis-declared at the time of import, using improper documentation.
Mr. Akhil Sibal, Senior Counsel appearing on behalf of the petitioners vehemently assails the impugned orders of detention by first submitting that, the detaining Authority was predisposed and lacked independence.
Mr. Sibal argued that there was gross and unexplained delay in passing of detention orders dated January 21, 2020, viewed within the four corners of settled law that a detention orders stand vitiated, if on account of delay in passing the same, the live and proximate link and between the prejudicial activities of the detenu and the rationale of clamping a detention orders on the detenu is snapped.
This, it is canvassed, evidently reflects that there is inordinate delay of 272 days in passing of the impugned detention orders from the date of the alleged incident. Therefore, the live-link between the alleged prejudicial activities and the impugned detention orders stood snapped in the intervening 272 days. Moreover, when the Petitioners had already been released on bail on 03.06.2019, there is no justification for clamping a detention order after 232 days from such release, especially in the absence of any cogent material that indicates their involvement in the alleged prejudicial activities since their release on bail.
The division bench of Justice Siddharth Mridul held that the right of the detenus to make a representation and have it considered by the appropriate Government, with expedition, is a constitutional right under Article 22 (5) of the Constitution of India and any unreasonable and unexplained delay in considering the representation is fatal to the continued detention of the detenu.
The court set aside the detention orders passed against the detenus. The detenus are directed to be set at liberty forthwith unless their custody is required in connection with any other case.
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