Of preventive detention and prejudicial activity: What the Delhi High Court held

The Delhi High Court recently held that preventive detention based only on suspicion stemming from a person’s past activity can be allowed only when there is a live link between the activity and the need for his detention [Naveen Kasera v. Union of India]..Justices Siddharth Mridul and Anup Jairam Bhambhani observed in this case that the detention order hadn’t answered the the requirements of the law. It thus set aside a preventive detention order passed against the petitioner under the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act (COFEPOSA), 1974.“Preventive detention being drastic State action based only upon suspicion arising from a person’s past activity, can be allowed, as the settled legal position mandates, only if there is a live, causal link between a person’s past activities and the need for passing of a preventive detention order. A preventive detention order is unsustainable on stale or illusory grounds, which have no real nexus with the past prejudicial activity,” the Bench held..Naveen Kasera, the petitioner before the High Court, had challenged an order of preventive detention issued on January 15, 2021. From the record, the Bench noted that Kasera’s last alleged act that could perhaps amount to a prejudicial activity was on December 11, 2018, but the detention order was passed more than two years later.“…it is evident that the live-link or causal connection between the petitioner’s preventive detention, meant to forestall the petitioner from indulging in any prejudicial activity, can surely be said to have snapped,” it stated.The Court further observed,“Delay in the passing and execution of a preventive detention order not only defeats the very purpose of such order, but more importantly, creates a doubt as to the necessity of adopting such a harsh measure against an individual, whereby the individual's liberty is curtailed on suspicion alone.”.According to the petitioner, he was detained for allegedly controlling a syndicate involved in effecting fraudulent exports and imports in order to evade customs duty and earn undue export benefits including Integrated Goods and Service Tax (IGST) refunds through 33 non-existent or dummy firms.Following his preventive detention at a Kolkata jail on January 20, 2021, the petitioner was stated to have unsuccessfully made representations to various authorities under the COFEPOSA.His challenge to the detention order was on the ground that the statements relied upon by the detaining authority did not show any basis to infer that he was involved in any prejudicial activity. Among other grounds, Kasera stressed on an “inordinate and unexplained” delay in the passing of the detention order, following a show cause notice issued on January 7, 2021..The respondent, the Union Ministry of Finance, contended that of the 33 dummy firms, 17 such firms purportedly exported goods worth ₹145 crore under 133 shipping bills, but no export remittances had been realised against these bills. The customs duty drawback in the sum of ₹3.02 crore and a benefit of ₹12.72 crore was availed under the IGST Act.According to the Ministry, details of the alleged forms were revealed during a search carried out at the premises of M/s Buller Trades, of which Kasera was stated to be the director. It was allegedly found that these firms were either registered in the petitioner's own name or in the names of his immediate relatives..A perusal of the time-chart revealed that the "actual activity" which the petitioner is alleged to have done was of having exported “certain goods only on-paper,” reflected from a shipping bill dated December 11, 2018.The bill allegedly revealed that the vehicle carrying goods was found to have been a tractor and no goods were in fact loaded for onward export, though duty drawback and benefit under the IGST Act are alleged to have been availed.“The other dates contained in the time-chart from 11.12.2018 all the way upto the passing of the impugned detention order dated 15.01.2021, which order was served upon the petitioner on 23.01.2021, do not disclose any other prejudicial activity which the petitioner can be said to have undertaken after 11.12.2018,” the Court observed.The Court also noted that though it was alleged that the petitioner was repeatedly involved in prejudicial activities by way of 133 shipping bills issued by various business entities connected with him, there was no reference in the time-chart to a single shipping bill other than the one on December 11, 2018.It therefore directed that the petitioner be released from custody forthwith, unless his custody is required in any other matter..Advocates Neeraj Jain along with Advocates UM Tripathi and Anupam Mishra represented the petitioner. Advocate Anurag Ahluwalia represented the Union of India..[Read Order]