Delhi High Court has refused to entertain a writ petition filed by an absconding proposed detenue seeking quashing of a detention order issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act).
The case arose out of allegations that export incentive scrips issued by the Director General of Foreign Trade (DGFT) were fraudulently manipulated through unauthorised access to the Customs Electronic Data Interchange (EDI) system, causing an estimated loss of approximately ₹73.55 crores to the exchequer. The petitioner was alleged to have been part of a larger conspiracy involving tampering with licence values and routing funds through shell entities.
Despite multiple show-cause notices, summons, and even criminal proceedings for non-compliance, the petitioner repeatedly failed to respond or appear before the authorities. Subsequently, a look-out circular and a red alert were issued against the petitioner, and he was declared a proclaimed offender. The petitioner challenged a detention order dated 02 January 2018 issued under the COFEPOSHA Act, as well as a subsequent order declaring him a Proclaimed Offender. Notably, the challenge was mounted at the pre-execution stage, as the petitioner had not been taken into custody pursuant to the detention order.
The respondents opposed the petition on maintainability, arguing that a person evading execution of a detention order cannot invoke Article 226 jurisdiction as a matter of right.
On the issue of maintainability, the Bench of Justice Navin Chawla and Justice Ravinder Dudeja observed that while courts do possess jurisdiction to entertain pre-execution challenges, such power is governed by self-imposed restraints. Referring to Additional Secretary to the Govt. of India & Ors. v. Smt. Alka Subhash Gadia & Anr., 1992 SUPP (1) SCC 496, Subhash Popatlal Dave v. Union of India, (2012) 7 SCC 533, Pawan Gupta v. Union of India & Anr., 2024:DHC:7969: DB, and Mohd. Nashruddin Khan v. Union of India & Ors., 2020: DHC:2742:DB, the Court noted:
“while an order of preventive detention can be challenged at a pre-execution stage, the Court in its discretion can refuse to exercise its jurisdiction under Article 226 of the Constitution of India in favour of a detenue who is absconding from law.”
On facts, the Bench recorded that the petitioner had been declared a Proclaimed Offender in criminal proceedings, a Look Out Circular had been issued, and even proceedings under Section 7(1)(a) of the COFEPOSA Act had been initiated. Despite this, the petitioner had neither surrendered nor been traced.
The Court rejected the petitioner’s reliance on a prior judgment quashing a similar detention order against a co-accused, holding that the earlier case turned on its own facts and did not assist an absconding petitioner.
The writ petition was accordingly dismissed, with liberty granted to the petitioner to challenge the detention order in accordance with law after surrendering to it.
Appearances
Petitioner- Mr. Arvind Kumar Sharma, Sr. Adv. with Mr.Aniteja Sharma and Mr. Arijit Singh, Advs.
Respondents- Mr. Amit Tiwari, CGSC with Mr. Ayush Tanwar, Ms. Ayushi Srivastava and Mr. Arpan Narwal, Advs. for UOI. Mr. Aditya Singla, SSC, CBIC with Mr. Shreya Lamba, Adv. for R-2.
