Unsustainable preventive detention order due to expiration and illusion
On Naveen Kasera aka Naveen Agarwal v. Secretary of the Ministry of Finance of the Union of India WP (CRL), 630/2021 dated September 30, 2021] The current auto petition has been filed by Naveen Kasera aka Naveen Agarwal (“The petitioner”) challenging the arrest warrant with number F: PD-12001/03/2021 – COFEPOSA dated January 15, 2021, by which the petitioner was placed in preventive detention under article 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (“The COFEPOSA Law”).
It is alleged that the reason for the preventive detention is that the petitioner was controlling a union that was involved in carrying out fraudulent exports and imports in order to evade Customs tariffs and obtaining undue export benefits, including Integrated goods and services tax (“IGST“) refunds through 33 non-existent and / or fictitious signatures.
In a report dated March 26, 2021, the advisory board considered that there were sufficient grounds for the petitioner’s arrest, and it was based on that opinion and other facts that the contested arrest warrant was confirmed by the Ministry I saw your order of April 8, 2021.
The petitioner argued that there is no convincing material demonstrating any harmful activity prior to the approval of the contested arrest warrant, apart from a dispatch bill dated December 11, 2018 in which the petitioner has allegedly attempted to to export paper goods without exporting anything, with the intention of making illegal use of duty drawback. No procedure or notification of just cause (“SCN”) has been issued with respect to the shipping invoice dated December 11, 2018.
The petitioner further argued that there is no connection with the company that issued the shipping invoice, except that it acted as an intermediary, that also only during the course of its ordinary business activities. He also argued that there is an inexplicable delay in the approval of the arrest warrant, as well as the SNA dated January 7, 2021.
The honorable Delhi High Court noted that there are two issues related to the matter, that is, whether there is a “Live link” or “Casual connection” between the harmful activity in which the petitioner is alleged to have complied and, consequently, the approval of the arrest warrant and whether the grounds on which the arrest warrant is based are “Lasted” or “illusory” or have “No real nexus” with the need to place the petitioner in preventive detention.
It was observed by the Hon’ble Delhi High Court that the last act that the petitioner carried out and that may constitute a harmful activity was on December 11, 2018, while the arrest warrant was approved more than 2 years later, on January 12, 2021. It took note of “It is evident that the living link or the causal connection between the petitioner’s preventive detention, intended to prevent the petitioner from indulging in any harmful activity, has surely been broken.”
In addition, it was pointed out that the reason for the arrest based on the only activity derived from the shipping invoice dated December 11, 2018 is clearly obsolete, illusory and lacks a real link with the arrest warrant that was approved. more than 2 years later.
Additionally, it was observed that “the delay in the approval and execution of a preventive detention order not only frustrates the very purpose of said order, but, more importantly, creates a doubt about the need to adopt such a severe measure against a person, whereby the individual’s freedom is restricted only on suspicion. “
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