2002 ALL MR (Cri) 1158
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

R.K. BATTA AND R.S. MOHITE, JJ.

Vishnu Agarwal Vs. The State Of Maharashtra & Ors.

Criminal Writ Petition No.301 of 2001

6th December, 2001

Petitioner Counsel: Shri. V. R. MANOHAR, S/Shri. MASOOD KHAN, HABIBUDDIN AHMAD, JUNAID AHMAD
Respondent Counsel: Shri. S. G. LONEY

(A) Constitution of India, Art.226 - Petition challenging order of detention - Authority must file affidavit.

Save in the most exceptional cases, the Detaining Authority should file an affidavit in a Petition against detention. The underlying principle as to why the Detaining Authority should file an affidavit, save in a most exceptional circumstance is that the said authority can shed the best light on the facts which occurred when the proposal was being dealt with by him. [Para 11]

(B) Constitution of India, Art.226 - Petition challenging order of detention - Delay caused in passing order of detention - Authorities must explain delay if any, through affidavit verified in accordance with O. 19, R. 3 Civil P.C.

Civil P.C. (1908), O.19, R.3.

(C) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (1974), S.3(1) - Order of detention - Delay in considering proposal and passing order - Callous attitude of persons responsible - Order of detention is vitiated - Directions issued by HC to Govt. to take action against erring officers.

There was no plausible explanation for delay in considering the proposal to detain the person. It is difficult to believe that the matter pertaining to such a serious economic offence should have been treated so lightly. The utter inaction on the part of the then Detaining Authority to exercise their powers of supervision over the further processing of the proposal is a cause of great distress because the serious efforts and the hard word put in by the officers of the DRI are brought to naught by their indifferent attitude. [Para 39,40]

The principle enunciated by the Supreme Court relating to holding persons or officers Concerned / associated with the preparation of grounds of detention and whose actions or omissions result in release of a detenu against whom there is voluminous material, must also extend to other officers whose acts and omissions are of such a callous or negligent nature or suffer from such infirmity. It matters little whether such actions or omissions are at the pre-detention or at the post-detention stage. [Para 42]

Cases Cited:
T.D.Abdul Rahman Vs. State of Kerala, AIR 1990 SC 225 [Para 17]
Pradeep Nilkanth Paturkar Vs. S.Ramamurthi, AIR 1994 SC 656 [Para 18,43]
Kamla Kanhaiyalal Khushalani Vs. State of Maharashtra, AIR 1981 SC 814 [Para 42]
Rabindra Kumar Ghoshel Vs. State of West Bengal, AIR 1975 SC 1408 [Para 43]


JUDGMENT

R. S. MOHITE, J. :- This is a Criminal Writ Petition filed by the nephew of the detenu Shri Bajrang Prasad Agarwal, seeking to quash an impugned order of detention dated 18.9.2001, issued by Respondent No.2 and further seeking the release of the detenu from detention.

2. We have heard both the sides and perused the averments made in the petition as well as in the several affidavits filed in this case. At the very outset, even before narrating the facts, we wish to observe that in the course of hearing of this petition, there was a dispute raised relating to the correctness of certain factual aspects as mentioned in some of the affidavits filed by the respondents. There was also a grievance that certain relevant dates had not been disclosed by the respondents. In view of such grievances, we had asked the Additional Public Prosecutor to show us the original files so that such disputes and controversies could be resolved from the record. In the circumstances, from the averments before us as well as from the files, which we have perused, the relevant chronological set of events are as under :

a) A Company by name M/s. Sapna Syntex Private Limited was incorporated under the Companies Act. The said company was a 100% Export Oriented Unit situated at Survey No.1704, Nandigaon Village, Kathur Mandal, Mehboob Nagar, Andhra Pradesh. The detenu Bajrang Prasad Agarwal was one of the Directors of the aforesaid Company.

b) It is alleged that from April 2000 to August 2000, the said company imported 23 consignments of fabrics from out of India. The import was made under a Scheme known as 100% Export Oriented Unit Scheme which required that the goods imported were required to be processed and the processed goods were then required to be fully exported within the stipulated period. Under the Scheme, the import of the goods was duty free as after processing, the processed goods were required to be exported, thus fetching valuable foreign exchange.

c) Acting on the information received from the Directorate of Revenue Intelligence, Mumbai, on 13.10.2000, the officers of the D.R.I., Hyderabad, searched the factory and office premises of the Company and recovered several documents under a panchanama.

d) On 20.10.2000, a statement of the detenu was recorded under Section 108 of the Customs Act.

e) On 27.10.2000, a second statement of the detenu was recorded under Section 108 of the Customs Act.

f) On 20.11.2000, the detenu Bajrang Prasad Agarwal came to be arrested under Section 104 of the Customs Act.

g) By 15.12.2000, the Directorate of Revenue Intelligence, Mumbai Zone Unit had prepared a proposal for detention of this detenu and one another and the proposal so prepared was forwarded to the Screening Committee constituted to look into such proposals under COFEPOSA Act 1974 under a covering letter dated 15.12.2000 signed by Shri V.K.Singh, Deputy Director, D.R.I., Mumbai.

h) It appears from the record that the proposal was initially scheduled to be considered by the Screening Committee on 20.12.2000, but was not considered on that day and was ultimately perused by the Screening Committee in their meeting held on 27.12.2000.

i) By a letter dated 30.12.2000 signed by one of the members of the Screening Committee, the recommendations of the Screening Committee were forwarded to the Additional Chief Secretary, Government of India, Home Department at Mantralaya and it appears that the same was received in the D.R.I. office where on 3.1.2001, the DD(D/Cell) made a note thereon to the effect that the proposals had to be moved urgently for orders by the State Government. One Sheikh has signed below this noting on 4.1.2001 and one more signature has been appended below this note on 5.1.2001.

j) On 1.2.2001, Shri. B.H.Gawade, Senior Intelligence Officer, D.R.I. Mumbai addressed a letter to the Section Officer, Home Department (Special), Government of Maharashtra, Mantralaya, 5th Floor, Mumbai, enclosing 5 sets of documents from page Nos.1 to 1779, along with proposals for issue of detention orders against the persons whose names had been cleared by the Screening Committee in the meeting held on 27.12.2000. In all there were 59 documents which were sent along with this letter dated 1.2.2001.

k) We find that there is a noting on record of the Desk Officer dated 8.2.2001, which recorded the fact that the proposal was received on 1.2.2001 from D.R.I. The said nothing was in the following terms : "The proposal is received on 1.2.2001 from D.R.I. Submitted for information, in post." Below this endorsement of the Desk Officer dated 8.2.2001, the Deputy Secretary put his signature on 8.2.2001 and the then Principal Secretary (Preventive Detention and Detaining Authority) Smt. Joyce Shankaran put her signature on 8.2.2001. All that aforesaid noting and signatures thereunder indicate was that the proposal was infact received on 1.2.2001.

l) On 12.2.2001, one Shri S.H.Bhogle, Desk Officer, Home Department (Special), Government of Maharashtra, addressed a letter to the Assistant Director, D.R.I. stating that he had been directed to refer to the letter dated 1.2.2001 and requesting him to furnish to the Government five copies of each of the following documents/information immediately as they were required to the detaining authority for consideration of the above mentioned proposal under the COFEPOSA Act, 1974. The documents which were sought were :

i) Copy of adjudication order, if adjudication proceeding had been held.

ii) Copy of show cause notice if issued and reply thereto if received from accused person;

iii) Legible copies of several pages mentioned in the letter.

m) On 4.5.2001, Shri. V.K.Singh, Deputy Director, D.R.I. Mumbai addressed a letter to the Section Officer, Home Department (Special), Government of Maharashtra, giving a point-wise information / clarification to the above referred letter dated 12.2.2001. As regards the documents sought at Serial Nos.(i) & (ii) he indicated that the show cause notice had not been issued in the case. As regards item No.(iii), he sent five sets of legible documents. He also sent 5 pages of additional documents bearing page Nos.1780 to 1815. The record indicates that this letter dated 4.5.2001 was received by the Home Department under acknowledgment dated 8.5.2001.

n) On 11.6.2001, the detaining authority Smt. Joyce Shankaran relinquished her charge as she was transferred and one Smt. Ranjana Sinha took charge of her post on 11.6.2001.

o) On 26.6.2001, the new incumbent Smt. Ranjana Sinha was empowered under Section 3(1) of the COFEPOSA Act, 1974. On 26.7.2001 i.e. one month after Smt. Ranjana Sinha was empowered as aforesaid, one Mr. V.L.Lahane, Section Officer, Home Department (Special), Government of Maharashtra, issued a letter to the Assistant Director, D.R.I. Mumbai, drawing his attention to the earlier letter dated 12.2.2001, and enclosing a copy of the said letter and requesting that the requisite information be forwarded by return of post.

p) On 31.7.2001, Shri. D.H.Gawade, Senior Intelligence Officer, D.R.I., Mumbai, addressed a letter to the Section Officer, Home Department (Special), Government of Maharashtra, indicating that the required information had already been forwarded to their officer vide office letter dated 4.5.2001 and enclosing a copy of the said letter dated 4.5.2001 along with its acknowledgment dated 8.5.2001.

q) On 13.8.2001, the detaining authority Smt. Ranjana Sinha went on leave and on the said day Shri. Satish Tripathi assumed charge of the post. On 24.8.2001, Shri. Satish Tripathi was empowered under Section 3(1) of the COFEPOSA Act, 1974.

r) On 5.9.2001, the Desk Officer of the Home Department prepared a noting based on the original proposal submitted by the Senior Intelligence Officer, DRI, Mumbai, dated 1.2.2001, in which he narrated the brief facts of the case and stated that the proposal for preventive detention under COFEPOSA Act, 1974, in respect of the detenu and his son was fully justified and the same may be concurred with. He put up this nothing for approval. The same was signed by the Deputy Secretary on 5.9.2001 and by the Principal Secretary and Detaining Authority Shri. Satish Tripathi on 6.9.2001.

s) After approval was granted by the Detaining Authority on 6.9.2001, on 12.9.2001, Shri. V.K.Singh, Deputy Director, DRI, Mumbai, addressed a letter to the Under Secretary, Home Department (Special), referring to the earlier correspondence dated 1.2.2001, 4.5.2001 and 31.7.2001. The letter enclosed five sets of additional documents bearing page Nos.1816 to 2060 and a request was made to enclose these documents to the sets of documents forwarded earlier. The said letter contained the further request to issue detention order at the earliest against the proposed detenu.

t) On 14.9.2001, the draft detention order, grounds of detention and the list of documents relied upon were put up for approval before the detaining authority and these drafts were approved by the Detaining Authority.

u) On 17.9.2001, the fair copies of the detention order, grounds of detention and annexures were put up for the signature of the Detaining Authority.

v) On 18.9.2001, the detention order as well as the communication containing the grounds of detention were issued by the Detaining Authority and the same were served on the detenu on 18.9.2001 itself, on which date the detenu came to be detained under the COFEPOSA Act.

3. The present writ petition, challenging the detention order and his continued detention, came to be filed in this Court on 28.9.2001 as the detaining authority had passed an order directing that the detenu be detained in Nagpur Prison after the initial term of one week.

4. By way of reply to the petition, the following affidavits came to be filed;

a) An affidavit dated 31.10.2001 verified by Shri. R.D.Shinde, Deputy Secretary, Government of Maharashtra, Home Department (Special).

b) An affidavit dated 3.12.2001 affirmed by Manohar Sajandas Mansharamani, Intelligence Officer, DRI, Zonal Unit, Mumbai.

c) An affidavit verified on 29.11.2001 by Shri. Satish Tripathi, Principal Secretary (Appeal & Security), who was the Detaining Authority in the present case.

5. The first ground pressed on behalf of the petitioner pertains to pre detention delay. The said ground was elucidated in paragraphs 4(1), 4(2), 4(3) and 4(4) of the petition. For the sake of convenience, the averments of the petitioner pertaining to this ground are reproduced below in verbatim.

4(i). The petitioner says and submits that on the basis of an intelligence received by the officers of the DRI, Mumbai, Zonal Office, the Officer of the DRI, Hyderabad searched the factory and office premises of M/s. Sapna Syntex Pvt. Ltd. at Mehboob Nagar, Hyderabad on 13.10.2000 and many documents including all the records maintained by the said M/s. Sapna Syntex Pvt. Ltd. were recovered and taken over under Panchanama dated 13.10.2000. The petitioner says and submits that the statements of the detenu were recorded by the DRI Officers under Section 108 of the Customs Act on 20.11.2000 and 27.12.2000. The petitioner says and submits that the detenu was arrested on 20th November 2000 and was released on bail on 16.12.2000 and as per the Hon'ble Bombay High Court's order, the detenu availed the bail on 2.1.2001. The petitioner says and submits that in the meanwhile during the course of investigation the DRI officers recorded the statements of Deepak Laxmichand Shah, Mohammed Abdul Basit, Kamlesh R. Lohia, Sanjay Balaram Agarwal, Imtiyaz Ahmed, Suresh Kumar Agarwal, Shakeel Javed, Reddem Bala Anju Reddy, Mohamed Riyazuddin, Mohammed Zakki, Pravinbhai Chewatia, Pinkesh Parasmal Jain. The Petitioner says and submits that all the court proceedings in respect of the detenu were concluded by 2nd of January, 2001 when the detenu availed of the bail order and was physically out. The Petitioner says and submits that by 2nd of January 2001 the crucial and substantial part of the investigation was over and the alleged role played by the detenu had emerged by the said date. The Petitioner says and submits that, thus, the investigation which commenced on 13.10.2000 had practically ended on 2.1.2001 and thereafter no investigation bringing anything new to light which would reflect on the alleged role of the detenu as it has emerged by them was carried out by the DRI officers. WHEREAS, the said order of detention (Annex. A) was issued against the detenu belatedly as late as on 18.9.2001 i.e. after a lapse of eight and a half months thereafter, the detention order, assuming whilst denying that it was warranted to be issued, the same ought not to have been deferred and held back in abeyance at all. The impugned order of detention, issued, is thus so issued after an inordinate and inexcusable delay. The Petitioner says and submits that the detenu not having indulged in any prejudicial activities and since the detenu had no scope to do so because of expiry of his bonded warehousing permission on 31st December, 2000 and also because the original E.O.U. permission being in the custody and possession of the DRI, during January 2001 till 18.9.2001 i.e. for more than 09 months. The live link having been broken, the detaining authority ought to have refrained from issuing the impugned order of detention against the detenu. The Petitioner says and submits that the impugned order of detention as issued is based on a very stale ground and is in colourable exercise of power and is also punitive in character. The Petitioner therefore says and submits that the impugned order of detention as issued is malafide, null and void ab initio.

(ii). The Petitioner says and submits that though the detaining authority in para 36 of the grounds of detention has stated that the nexus between the date of the incident and the passing of the said order of detention as well as the object of the Detenu's detention had failed to examine the said vital aspect of delay in its proper perspective and in the light of the inability of the detenu to import goods under E.O.U. because of expiry of warehousing permission and also because of the original E.O.U. being in the possession of DRI authorities, and has failed to have considered the depth as to whether the impugned order of detention was warranted to be issued despite such delay and despite the inability of the detenu to indulge in the alleged prejudicial activities. The impugned order of detention as a result suffers from the vice of non-application of mind by the detaining authority qua the said crucial issues. The impugned order of detention is issued in a casual and cavalier exercise of the statutory power by the detaining authority. The impugned order of detention, as a result is malafide, null and void.

(iii). The Petitioner says and submits that, the last document on which the detaining authority has placed reliance is the statement of one Sharad Rajaram Desai dated 30th of August, 2001. The said statement has been specifically referred to and relied upon by the detaining authority in para 19 of the impugned grounds of detention. Under the circumstances, it is enjoined upon the detaining authority to disclose to this Hon'ble Court as to when the proposal for the detention of the detenu was received by the detaining authority and the time taken by the detaining authority for scanning the material and formulating the grounds of detention. The Petitioner says and submits that the detaining authority ought to have acted promptly and vigilantly, if at all, the impugned order of detention was warranted to be issued. The Petitioner says and submits that if the impugned order of detention was issued belatedly after the detaining authority had received the proposal on account of any inaction, inertia on indolence on the part of the detaining authority, then in that case, the satisfaction arrived at by the detaining authority is rendered sham and not genuine. In that case, the impugned order of detention, on account of the aforesaid reason, by itself, is rendered ipso facto malafide, null and void.

(iv). The Petitioner says and submits that it is enjoined upon the detaining authority to disclose to this Hon'ble Court, the date on which the detaining authority received the proposal for the detention of the Petitioner and which documents he received along with the proposal. The Petitioner says and submits that it is further enjoined upon the detaining authority to disclose to this Hon'ble Court as to when the detaining authority formulated the grounds of detention. The Petitioner says and submits that it is further enjoined upon the detaining authority to disclose to this Hon'ble Court as to whether the detaining authority had received any further documents thereafter and if so, when and which documents he had received at a later date after he had drafted the grounds of detention. The Petitioner says and submits that if the detaining authority had received any further grounds of detention, then it is further enjoined upon the detaining authority to disclose to this Hon'ble Court as to whether the detaining authority had rescinded the grounds already drafted by him and as to whether he had reconsidered afresh the documents earlier received along with the proposal and the documents received at a later date together, all at a time, and whether he had reformulated the grounds of detention all over again before issuing the impugned order of detention. The Petitioner says and submits that if the detaining authority had received any additional documents after he had drafted the grounds on the basis of the documents earlier received along with the proposal, then in that case, unless the detaining authority had rescinded the grounds already formulated and had reconsidered the matter afresh and had reformulated the grounds as stated above, the impugned order of detention is per se malafide and ab initio null and void.

6. The sum and substance of the first contention of the petitioner on the aspect of pre detention delay is that by 2.1.2001, i.e., the day on which the petitioner had availed the bail, the crucial and substantial part of the investigation was over and the alleged role played by the detenu had emerged by the said date and investigation which had commenced on 13.10.2000 had practically ended on 2.1.2001. Notwithstanding the fact that the investigation had practically ended on 2.1.2001, the order of detention was issued belatedly as late as on 18.9.2001 and that there was a lapse of eight and half months in issuance of the detention order. Due to this delay, the live link between the grounds on which the detention order was issued and the reason for the issuance of the detention order had been snapped and thus the Detaining Authority ought to have refrained from issuing the impugned order of detention and that the impugned order of detention was issued and based on very stale ground.

7. The reply of the Respondents to this first contention of the Petitioner was given by Shri. R.D.Shinde and Shri. Satish Tripathi in their respective affidavits. The explanation given by Shri. Shinde is to be found in para 7, relevant part of which is in following terms;

"It is further submitted that the proposal for detaining the detenu under COFEPOSA Act, 1974 by the Sponsoring Authority i.e. Assistant Director, DRI, Mumbai Zonal Unit, dated 1.2.2001 was received in the Home Department of the Government of Maharashtra along with the documents as mentioned in the list of the documents on 2.2.2001. It is submitted that thereafter, the concerned Assistant after scrutinizing the proposal, prepared scrutiny statement and submitted it to the Desk Officer on 7.2.2001. The Desk Officer after carefully going through the said proposal, considered the same on 8.2.2001 and submitted to the Deputy Secretary on 8.2.2001. It is further submitted that the Deputy Secretary after considering and carefully going through the said proposal, submitted the same to the Detaining Authority on 8.2.2001. It is submitted that the then Detaining Authority considered the said proposal carefully and after going through the said proposal, submitted the same to the Detaining Authority on 8.2.2001. It is submitted that the then Detaining Authority considered the said proposal carefully and after going through the said proposal asked for some additional information vide Govt. letter dated 12.2.2001. It is further submitted that the Sponsoring Authority vide their letter dated 4.5.2001 furnished certain legible copies which were called upon vide Government Letter dated 12.2.2001 alongwith 5 sets of additional documents. However, other information so called for vide letter dated 12.2.2001 was not furnished by the Sponsoring Authority, thereafter on 26.7.2001 the Sponsoring Authority was again reminded to furnish requisite information. I further say that the Sponsoring Authority vide their letter dated 31.7.2001 & 12.9.2001 furnished additional information / documents alongwith updated brief facts incorporating the position of further investigation. I further say that the original proposal for detention under COFEPOSA Act 1974 in the respect of the detenu was primarily considered and approved by the then Principal Secretary (Preventive Detention) and Detaining Authority (Smt. Joyce Shankaran) on 8.2.2001 on her transfer Smt. Ranjana Sinha was appointed as Secretary (Preventive Detention) & Detaining Authority and subsequently empowered u/s. 3(1) of the COFEPOSA Act 1974 on 26.6.2001. However, since Smt. Sinha went on long leave, the additional charge of the post of Secretary (Preventive Detention) was handed over to Shri. Satish Tripathi, Principal Secretary (Appeal & Security), Home Department. He was duly empowered under COFEPOSA Act 1974 vide order dated 24.8.2001. In view of the above change in the incumbency, the proposal was once again required to be submitted to the new incumbent for his fresh consideration and approval. As such, an office note in the above matter was prepared by the concerned Assistant once again on 5.9.2001. The Desk Officer after carefully going through the said proposal once again considered the same on 5.9.2001. It is further submitted that the Deputy Secretary after considering and carefully going through the said proposal submitted the same to the Detaining authority on 5.9.2001. It is further submitted that the proposal was re-submitted to the present Detaining authority to re-examine the entire proposal as approved by the predecessor and therefore, the Detaining Authority i.e. the Principal Secretary (Appeal & Security) & Detaining authority re-examined the proposal and approved the same on 6.9.2001. Subsequently, the detention orders, grounds of detention, etc. were formulated on 14.9.2001 and thereafter the Detaining authority again after carefully going through the said proposal issued the detention order, grounds of detention and annexure on 18.9.2001. It is further submitted that considering the propensity and potentiality of the detenu in indulging in the smuggling activities, the then Detaining Authority was satisfied that the nexus between the date of the incident and passing of the Detention Order as well as the object of the detention had been maintained and therefore, after having subjectively satisfied that the detenu is likely to engage in prejudicial activities in further and with a view to prevent him from indulging in prejudicial activities, it was necessary to issue the detention order. It is therefore submitted that there is no delay in issuing the Detention Order and in view of the facts considering the propensity and the potentiality activities, the live link was very much in existence and therefore, it is denied that due to the period required till the passing of the order of detention, the live link between the prejudicial activities and rationale for clamping the Detention Order, did get snapped."

8. The corresponding explanation given in the affidavit of Detaining Authority Shri. Satish Tripathi is to be found in para 7, the relevant portion of which is reproduced as under :

"It is further submitted that the proposal for detaining the detenu under COFEPOSA Act, 1974 by the Sponsoring Authority i.e. Assistant Director, DRI, Mumbai Zonal Unit, dated 1.2.2001 was received in the Home Department of the Government of Maharashtra along with the documents as mentioned in the list of the documents on 2.2.2001. It is submitted that thereafter, the concerned Assistant after scrutinizing the proposal, prepared scrutiny statement and submitted it to the Desk Officer on 7.2.2001. The Desk Officer after carefully going through the said proposal, considered the same on 8.2.2001 and submitted to the Deputy Secretary on 8.2.2001. It is further submitted that the Deputy Secretary after considering and carefully going through the said proposal, submitted the same to the then Detaining Authority on 8.2.2001. It is submitted that the then Detaining Authority considered the said proposal carefully and after going through the said proposal asked for some additional information vide Govt. letter dated 12.2.2001. It is further submitted that the Sponsoring Authority vide their letter dated 4.5.2001 furnished certain legible copies which were called for vide Government Letter dated 12.2.2001 alongwith 5 sets of additional documents. However, other information called for vide letter dated 12.2.2001 was not furnished by the Sponsoring Authority, thereafter on 26.7.2001 the sponsoring Authority was again reminded to furnish requisite information. I further say that the Sponsoring Authority vide their letters dated 31.7.2001 & 12.9.2001 furnished additional information / documents alongwith updated facts incorporating the position of further investigation. I further say that the original proposal for detention under COFEPOSA Act 1974 in respect of the detenu was considered and approved by the then Principal Secretary (Preventive Detention) and Detaining Authority (Smt. Joyce Shankaran) on 8.2.2001 on her transfer Smt. Ranjana Sinha was appointed as Secretary (Preventive Detention) & Detaining Authority and subsequently empowered u/s. 3(1) of the COFEPOSA Act 1974 on 26.6.2001. However, since Smt. Sinha went on long leave, the additional charge of the post of Secretary (Preventive Detention) was handed over to me. I was duly empowered under COFEPOSA Act 1974 vide order dated 24.8.2001. In view of the above change in the incumbency, the proposal was once again required to be submitted to the new incumbent i.e. myself for fresh consideration and approval. As such, an office note in the above matter was prepared by the concerned Assistant once again on 5.9.2001. The Desk Officer after carefully going through the said proposal once again considered the same on 5.9.2001. It is further submitted that the Deputy Secretary after considering and carefully going through the said proposal submitted the same to the Detaining Authority i.e. me on 5.9.2001. It is further submitted that the proposal was re-submitted to me to re-examine the entire proposal as approval by the predecessor and therefore, as a Detaining Authority I re-examined the proposal and approved the same on 6.9.2001. Subsequently, the detention orders, grounds of detention, etc. were formulated on 14.9.2001 and thereafter again after carefully going through the said proposal issued the detention order, grounds of detention and annexure on 18.9.2001. It is further submitted that considering the propensity and potentiality of the detenu in indulging in the smuggling activities, I was satisfied that the nexus between the date of the incident and passing of the Detention Order as well as the object of the detention had been maintained and therefore, after having subjectively satisfied that the detenu is likely to engage in prejudicial activities in further and with a view to prevent him from indulging in prejudicial activities, it was necessary to issue the detention order. It is therefore submitted that there is no delay in issuing the Detention Order and in view of the facts considering the propensity and the potentiality of the detenu in indulging in prejudicial activities, the live link was very much in existence and therefore, it is denied that due to the period required till the passing of the order of detention, the live link between the prejudicial activities and rationale for clamping the Detention Order, did get snapped."

9. On reading the two explanations, it becomes evident that Shri Satish Tripathi, who is one of the Senior most Officers of the State of Maharashtra, being the Principal Secretary (Appeal & Security), has merely chosen to reproduce almost word by word the earlier explanation given by Shri. R.D.Shinde in his own affidavit. We will presently point out that the affidavit of Shri. Shinde was not only lacking in material particulars, which ought to have been placed before us but contains atleast two averments which were against the record and were misleading. These averments were as under :

(a) I further say that the Sponsoring Authority vide their letters dated 31.7.2001 and 12.9.2001 furnished additional information/ documents alongwith updated brief facts incorporating the position of further investigation.

(b) I further say that the original proposal for detention under COFEPOSA Act, 1974 in respect of the detenu was primarily considered and approved by the then Principal Secretary (Preventive Detention) and Detaining Authority (Smt. Joyce Shankaran) on 8.2.2001.

In the affidavit of Shri. Tripathi, these two misleading averments made by Shri. Shinde are reproduced verbatim, as under :

(a) I further say that the Sponsoring Authority vide their letters dated 31.7.2001 and 12.9.2001 furnished additional information/documents alongwith updated facts incorporating the position of further investigation.

(b) I further say that the original proposal for detention under COFEPOSA Act, 1974 in respect of the detenu was considered and approved by the then Principal Secretary (Preventive Detention) and Detaining Authority (Smt. Joyce Shankaran) of 8.2.2001.

10. Both these statements appear to have been made in these two affidavits in order to create an impression that the proposal which was received on 1.2.2001 was dealt with by the then Detaining Authority Smt. Joyce Shankaran and she had applied her mind to the proposal and passed an order of approval. Prima facie, while the former statement relating to grant of approval is not supported by the record, the latter statement is incorrect to the extent that no additional information/ documents were sent along with the letter dated 31.7.2001.

11. The Courts have repeatedly held that save in the most exceptional cases, the Detaining Authority should file an affidavit in a Petition against detention. The underlying principle as to why the Detaining Authority should file an affidavit, save in a most exceptional circumstance is that the said authority can shed the best light on the facts which occurred when the proposal was being dealt with by him. This underlying principle would also apply with equal force for the periods when other incumbents were Detaining Authorities. We feel that the respondents ought to have made attempts to procure the affidavits of Smt. Joyce Shankaran and Smt. Ranjana Sinha to explain the delay in dealing with the proposal during their tenure as a detaining authority. However, since this exercise was unfortunately not done by the prosecution, we have a second-hand explanation, atleast in respect of tenures of Smt. Joyce Shankaran and Smt. Ranjana Sinha. We felt it prudent to look carefully through the files. We have satisfied ourselves from the record that in fact the proposal which was received by the then Detaining Authority Smt. Joyce Shankaran was just left idling and never approved of by her at any stage till 11.6.2001, when she relinquished charge of the post. We will be giving our detailed reasons for coming to such a conclusion.

12. Before we deal with this issue of pre detention delay raised by the petitioner and the explanation thereof by the Respondents, we would like to first enunciate the various stages at which such pre detention delay can be caused. The need to categorise these stages has arisen because different officer / officers is/are responsible for the delay, if any, during some of these stages. The cause of delay during these different stage is thus within the personal knowledge of these different officer / officers and therefore, these officer / officers are in the best position to explain the delay, if any, caused during the stage that the matter is within their control and domain. To our mind, in matters where the pre detention proposal is considered by the Screening Committee, the seven different stages in which delay can be caused are as under :

a) STAGE-1 : Between the last prejudicial act and commencement of investigation, the best person to explain delay if any during this stage being the first Investigating Officer, since such delay in commencing investigation unless explained would contribute to the staleness of the grounds.

b) STAGE-2 : Between the commencement of investigation and the signing of a detention proposal by the Sponsoring Authority, the best person to explain delay if any during this stage being the Investigating Officer / officers concerned since such delay in conducting investigation, if any unless explained would also contribute to the staleness of the grounds.

c) STAGE-3 : Between the signing of the detention proposal and the sending of the same to the Screening Committee, the best person to explain delay if any during this stage being the concerned officer from the office of the Sponsoring Authority.

d) STAGE - 4 : Between the dates when the detention proposal is submitted to the Screening Committee and is received back in the office of the Sponsoring Authority, the best person to explain the delay if any during the stage being the concerned officer from the office of the Screening Committee.

e) STAGE - 5 : Between the receiving of the proposal from the Screening Committee & its submission to the office of the Detaining Authority, the best person to explain the delay if any during this stage being the concerned officer from the office of the Sponsoring Authority.

f) STAGE - 6 : Between the dates that the proposal was received in the office of the Detaining Authority and the date of the passing of the Detention order, the best person to explain the delay if any during this stage being the Detaining Authority or their earlier incumbents.

g) STAGE - 7 : Between the date when the detention order is passed and the same is executed, the best person to explain the delay if any during this stage being the concerned executing officer / officers.

13. While fixing the aforesaid stages, we had the benefit of a judgment delivered by the Division Bench of the Gujarat High Court in Special Criminal Application No.174 of 1975 and followed in a subsequent Division Bench judgment of the said High Court delivered in Special Criminal Application Nos.32 of 1980, 33 of 1980 and 37 of 1980. The relevant observations in the subsequent judgment of the Division Bench of the High Court are in the following terms :

"As pointed out by this Court in Special Criminal Application No.174 of 1975 decided by a Division Bench consisting of A.D.Desai and S.H.Bhatt, JJ. on November 17, 1975 in cases of detention delay may occur at three stages. Delay may occur between the prejudicial activities of an individual and submission of the papers by the relevant authorities to the detaining authority; this is the first stage. Delay may result between the receipt of papers by the detaining authority and passing of the detention order; this is second stage; and delay may take place between the impugned order and the arrest of the detenu in pursuance of the order; this is the third stage. The Division Bench in that case has further observed;

"Whenever there is a delay at any of the stages the detaining authority has to explain the same and if the delay remains unexplained, the Court may come to the conclusion that the detaining authority has not applied its mind."

14. However, in the present case, we are concerned with matter under COFEPOSA Act which involves a proposal being put up and considered by the Screening Committee at the pre detention stage and in these circumstances, we have, after rationalisation, recategorised the three stages referred to in the judgment of the Gujarat High Court into more precise and distinct seven pre detention stages as aforesaid.

15. Having outlined the stages, we would like to lay down some guidelines as to how such delay, if any, should be dealt with.

a) The Sponsoring Authority must investigate into the causes of the delay if any caused in stages 1 to 5, from the officer / officers who would be the best person / persons to explain such delay as aforesaid and peruse the concerned files. If he/ they come across documents which explain the causes of delay in any such stage then a copy of the same should be obtained. The information / documents pertaining to the delay caused in such stages and its explanation must be forwarded by the Sponsoring Authority to the Detaining Authority to aid him in considering the same while arriving at his subjective satisfaction and should be considered by the Detaining Authority which consideration, should find place in the document communicating the grounds of detention. This would not only ensure that the constitutional right of representation would be rendered more meaningful and effective but will aid authorities like the Advisory body and the Courts to conclude that the delay was infact considered and taken into account by the Detaining Authority while forming his subjective satisfaction.

b) If a Petition challenging the detention follows, the Respondents must explain the delay, if any, caused in each of the seven stages, through an affidavit, verified in accordance with Order 19 Rule 3 of the Code of Civil Procedure, 1908, as far as possible by the office / officers who are in the best position to explain the delay in each of the stages as specified hereinabove. However, if in extra-ordinary circumstances which must be placed on record such officer /officers are not available then the delay in stages 1 to 5 may be explained by a Senior and responsible officer / officers from the office of the Sponsoring Authority, who has / have personally ascertained the cause of delay caused during each of these stages. Delay in stage 6 should be explained by the detaining authority or its incumbents. However, in extra-ordinary circumstances only, the delay, if any, may be explained by a senior and responsible officer / officers attached to the office of the Detaining Authority, who has personally ascertained the cause of the same and delay in the seventh stage should be explained by a senior and responsible officer / officers attached to the office of the agency executing the detention order.

16. The purpose of these guidelines is to ensure better assistance to the Detaining Authority in arriving at his subjective satisfaction, a more effective right of representation and better aid to constitutional authorities which are charged with overlooking the process of the passing of a detention order.

17. We now come to the law relating to pre detention delay. In T.D.Abdul Rahman Vs. State of Kerala, reported in AIR 1990 SC 225, the law relating to pre detention delay and its effect on detention order was laid down in following terms in paragraph Nos.11 & 12.

"11. The conspectus of the above decisions can be summarised thus : The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the Court has to investigate whether the causal connection has been broken in the circumstances of each case.

12. Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him form acting in a prejudicial manner."

18. In Pradeep Nilkanth Paturkar Vs. S.Ramamurthi, reported in AIR 1994 SC 656. The law relating to the subject was enunciated by the Supreme Court in paragraph Nos.13 and 14 in the following terms :

"13. Coming to the case on hand, detention order was passed after 5 months and 8 days from the date of the registration of the last case and more than 4 months from submission of the proposal. What disturbs our mind is that the statements from the witnesses A to E were obtained only after the detenu became successful in getting bail in the prohibition cases registered against him that too in the later part of March, 1991. These statements are very much referred to in the grounds of detention and relied upon by the detaining authority along with the registration of the cases under the Act.

14. Under the above circumstances, taking into consideration of the unexplained delay whether short or long especially when the appellant has taken a specific plea of delay, we are constrained to quash the detention order. Accordingly, we allow the appeal, set aside the judgment of the High Court and quash the impugned detention order. The detenu is directed to be set at liberty forthwith."

19. In the aforesaid background, our finding as regards the delay in the aforesaid seven stages is as under -

As regards stages 1 & 2, we find that there is no delay as after the last import in August 2000, a complicated investigation was commenced and proceeded with briskly. It is evident from the record that after conducting of the search on 13.10.2000, the statements of the detenu were promptly recorded on 20.10.2000 and 27.10.2000. The detenu was arrested on 20.11.2000 and by 15.12.2000 it was decided to clip the wings of the detenu by proposing his detention under COFEPOSA Act. All these facts are admitted facts on record.

20. As regards stage 3, which commenced from 15.12.2000, when the proposal for detaining the detenu was signed and ended on 18.12.2000. There is virtually no delay. It appears from the record that the proposal which was prepared on 15.12.2000 was immediately sent to the Screening Committee as there is a note on record dated 18.12.2000 which indicates that the proposal was first to be put up before the Screening Committee on 20.12.2000 but was ultimately put up on 27.12.2000.

21. There is also no unreasonable delay in the fourth stage, which appears to have commenced on 18.12.2000 and ended on 3.1.2001, when the recommendation of the Screening Committee was received by the office of the Sponsoring Authority. During this period, the Screening Committee was to meet on 20.12.2000 but it appears that as the Screening Committee Meeting was postponed to 27.12.2000, the consideration of the proposal was also postponed to 27.12.2000 when it was considered and favourably recommended immediately thereafter on 30.12.2000. A note containing the recommendations was addressed to the office of the sponsoring authority and was received by the office of the Sponsoring Authority on 3.1.2001.

22. We, however, hasten to add that the facts and dates pertaining to stages 1, 2, 3 & 4 were once again neither dealt with nor mentioned in the affidavit of the Sponsoring Authority or any other affidavit filed on behalf of the respondents and we were left to discover these facts from the original file. In fact the Respondents should have given all the dates in chronological order. We ought to have been informed as to when the proposal was formulated and put up before the Screening Committee and when it was returned back by the Screening Committee. It is unfortunate that the affidavit in question does not deal with the period contained in the first four stages at all.

23. As regards fifth stage which commenced on 3.1.2001 and ended on 1.2.2001, when the sponsoring authority forwarded the proposal to the Detaining Authority, which period is of 27 days, we regret to find that there is no acceptable explanation whatsoever in the affidavit of the sponsoring authority. The learned A.P.P. made a valiant attempt to rely upon the averments in para 3 of the said affidavit which were in the following terms.

"In fact due to non cooperation of the detenu and due to continuous litigations made by him in High Court of Andhra Pradesh, Sessions Court of Bombay and at the Additional Chief Metropolitan Magistrate, 3rd Court, Esplanade, Mumbai, the detenu made every attempt to scuttle the investigation of the case. During the period from 13.10.2000 to 2.1.2001 the officers of the DRI had to practically attend the above Courts on as may as 16 occasions as brought forth in the impugned grounds of detention."

24. The argument was that since the officers of the DRI had to attend on 16 occasions, therefore, there was a delay between 3.1.2001 and 1.2.2001. We had pointed out to learned APP that this explanation of DRI officers attending the Courts on 16 occasions was a vague averment. Firstly, merely because some officers of the DRI were required to attend the Court proceedings that by itself did not mean that the proposal received with the recommendation of the Screening Committee should have been made to sit idle without immediately forwarding the same to the Detaining Authority. It is not their case that all officers of the DRI were made to run to Courts. We also pointed out that the averments did not indicate the dates on which these Court cases were fixed. Even the starting date of 13.10.2000 was much prior to the date when the proposal was received back from the Screening Committee. The learned APP then sought to rely upon the record to indicate the activity in the office of the Sponsoring Authority during the aforesaid stage commencing on 3.1.2001 and ending on 1.2.2001. He pointed out three documents from the list of documents which are as under:

a) Item No.56, in the list of documents which indicated that the accused had made an application on 9.1.2001 for permission to go to Hyderabad, on which the Additional Chief Metropolitan Magistrate had passed an order on 11.1.2001.

b) Item No.113 in the list of documents indicating that summons were issued on 29.1.2001 to Shri. Satyanarayan.

c) Item No.114 which indicated summons dated 29.1.2001 were issued to Shri. Ramkumar.

25. We find that these three incidents shown to us merely relate to routine work in the office of the DRI. Merely because there was one court date during the stage under discussion and two summons issued, that can be no ground for not sending the proposal to the Detaining Authority for a period of 27 days.

26. Be that as it may, this explanation given across bar finds no specific mention in the affidavit of the sponsoring authority or any other affidavit filed on behalf of the respondents and thus the delay of 27 days remains completely unexplained.

27. We then come to the sixth stage for the period between 1.2.2001 till 18.9.2001, which is a period of 7 months and 16 days. The delay of 7 months and 16 days was sought to be explained in two affidavits, first being the affidavit by Shri. R.D.Shinde, Deputy Secretary to the Government of Maharashtra dated 31.10.2001 and the second being an affidavit of the Detaining Authority Shri. Satish Tripathi dated 29.11.2001. As regards the delay caused during this period, we wish to place on record that the principal officers holding charge in the Home Department and who were from time to time empowered under Section 3(1) of the COFEPOSA Act, 1974, were as under :

(a) From 1.2.2001 till 11.6.2001 Smt. Joyce Shankaran (empowered earlier on 23.1.2001).

(b) From 11.6.2001 till 13.8.2001 Smt. Ranjana Sinha (empowered on 26.6.2001).

(c) From 13.8.2001 to 18.9.2001 Shri. Satish Tripathi (empowered on 24.8.2001).

28. These dates, which have some relevance, were furnished to us by the learned Additional Public Prosecutor by placing on record a letter dated 4.12.2001, addressed to him, at our request, since we felt that the names and periods for which the Detaining Authorities were holding charge, would have relevance as they would be the best persons to explain the delay caused during their tenure. Of these three incumbents, as aforesaid, no attempt has been made by the Respondents to obtain the affidavits of Smt. Joyce Shankaran and Smt. Ranjana Sinha. The delay during their tenures is sought to be explained through the affidavit of a comparatively junior officer Shri. Shinde in an unsatisfactory manner as outlines, forcing us to rely on the files.

29. We now advert to the factual situation as emerges from the files pertaining to the events that occurred in the sixth stage. We find that the proposal was received by the Detaining Authority from the office of the Sponsoring Authority on 1.2.2001. It was put up before the Detaining Authority with the noting which we have perused and which was in the following terms :

"The proposal is received on 1.2.2001 from DRI. Submitted for information, in post."

'This noting made by the Desk Officer is dated 8.2.2001. It is signed by the Deputy Secretary on 8.2.2001 and the Principal Secretary (Preventive Detention & Detaining Authority) Smt. Joyce Shankaran, on 8.2.2001. The noting was not for grant of approval and the signature of the Detaining Authority below the same was only in confirmation of the fact that the proposal was received. Her signature below this noting does not indicate that she applied her mind for grant of approval of the proposal or for any other purpose on 8.2.2001 as is wrongly suggested in two affidavits referred to hereinabove. The noting also does not indicate that she asked any subordinate officer to call for any additional information or papers. In this context the affidavits of Shri. Shinde and Shri. Tripathi also contained identical statements to the following effect:

"It is submitted that the then Detaining Authority considered the proposal carefully and after going through the said proposal, asked for some additional information vide Government Letter dated 12.2.2001."

30. These averments firstly seems to be contrary to subsequent averments in both these affidavits to the fact that she had granted approval on 8.2.2001. The contradiction between these two averments struck us because if Smt. Joyce Shankaran has indeed given her approval on 8.2.2001, then why would she ask for additional information vide Government Letter dated 12.2.2001. The averment was further worded in such a manner as to create an impression that the then Detaining Authority Smt. Joyce Shankaran has herself called for additional information. We, therefore, went through the contents of the letter dated 12.2.2001 ourselves. Since this letter is not on record, we find it necessary to reproduce the contents of this letter, from the original file, which are as under :

SECRET / IMMEDIATE

GOVERNMENT OF MAHARASHTRA,

 

.

 

NO.PSA 1101/3&4/SPL.3(A),
HOME DEPARTMENT (SPECIAL),
MANTRALAYA, MUMBAI 400032.
Dated the 12th Feb.2001

To,
The Assistant Director,
Directorate of Revenue Intelligence,
1st Floor, Construction House,
Walchand Hirachand Marg,
Ballard Estate, Mumbai 400038.

 

Subject : COFEPOSA ACT, 1974
 

Proposal for detention of
(1) Shri Bajarang Prasad Agarwal &
(2) Shri Suresh Kumar Agarwal.

 

Sir,

 

           “I am directed to refer to your letter No.DRI/MZU/D/PSA/13/2000/545, dated the 1st February 2001, and to request you to furnish Government with the five copies of each of the following documents / information immediately as they are required to the detaining authority for consideration of the above mentioned proposal under the COFEPOSA Act, 1974.

 

          1. Copy of adjudication order if adjudication proceeding is held.

           2. Copy of show cause notice if issued and reply thereto if received from accused person.

           3. Legible copies of page No.77, 81, 110, 181, 338, 339, 341 to 347, 721, 817, 818, 839, 854, 881, 915, 968, 986, 1097, 1098, 1106, 1107, 1132, 1138, 1139, 1172, 1189, 1198, 1217, 1231, 1250, 1259, 1371 to 1398, 1421 to 1430, 1450, 1489, 1490, 1495 to 1497, 1593, 1599, 1615, 1617, 1623, 1624, 1627 to 1630, 1670, 1682, 1700, 1772.”
 
Sd/-
(S.H.Bhogle)
Desk Officer, Home Department(Spl)
Govt. of Maharashtra.

31. It is clear from the contents of this letter that the said letter is not written by the Detaining Authority. It is written by the Desk Officer who is a Subordinate Officer. Though he says that he is directed to refer to the letter dated 1.2.2001, there is no indication as to who has directed him to make this reference. There is a further mention that the documents are required to the Detaining Authority for consideration of the above mentioned proposal under the COFEPOSA Act, 1974. This averment by itself does not indicate that the then Detaining Authority Smt. Joyce Shankaran had herself felt the need of perusing the documents / legible copies in question. There is nothing either by way of noting or correspondence on record to indicate that the Detaining Authority Smt. Joyce Shankaran had asked the Desk Officer to call for the documents mentioned in the letter dated 12.2.2001. The action of the then Detaining Authority Smt. Joyce Shankaran merely rests with the putting of her signature below the noting dated 8.2.2001 pertaining to receipt of the proposal. The letter dated 12.2.2001, however, clearly indicates that there was no approval of the proposal by the Detaining Authority Smt. Joyce Shankaran on 8.2.2001. The averment of Shri. Shinde, in his affidavit that the approval to the proposal was granted on 8.2.2001 appears to us to be prima facie incorrect, untrue, not in accordance with record and misleading. As stated above, the same averment unfortunately is reproduced verbatim in the affidavit of Shri. Satish Tripathi and would, therefore, suffer from the same defect and vice.

32. In any case from 12.2.2001 to 4.5.2001, nothing further seems to have been done by the office of the Detaining Authority to secure the documents called for in the letter dated 12.2.2001. There is no nothing of any sort in the file and there is no letter of reminder. It would have been a simple matter to depute somebody to the office of the DRI which is situated at the short distance at Ballard Estate. On 4.5.2001, a letter is sent by the Deputy Director, DRI to the Section Officer of the Home Department by way of reply and enclosing not only the documents sought but five sets of additional documents bearing page Nos.1780 to 1815. Since this letter dated 4.5.2001 is not part of record, the contents of this letter without its enclosures is reproduced hereinbelow, from the original file :

SECRET / IMMEDIATE
BY HAND
DIRECTORATE OF REVENUE INTELLIGENCE
ZONAL UNIT; 1ST FLOOR; CONSTRUCTION HOUSE
WALCHAND HIRACHAND MARG
BALLARD ESTATE; MUMBAI - 38
F.No.DRI/MZU/D/PSA-13/2000/2431

 

DATE : 4.05.2001.

 

To,
The Section Officer,
Home Department (Spl.),
Government of Maharashtra,
Mantralaya, 5th Floor,
MUMBAI 400 032.

 

Subject :COFEPOSA ACT, 1974
 

Proposals for detention of
(1) Shri. Bajrang Prasad Agarwal
(2) Shri. Suresh Kumar AgarwalRegarding.
——

 

——

        “Please refer to your letter No.PSA-1101/3 & 4/SPL-3(A) dated 12.2.2001, on the above subject.

        2. The point-wise information / clarification are as under :

        (1) & (2) show Cause Notice is not yet issued in this case.

        (3) 5 sets of legible copies of the documents mentioned in the aforesaid letter at Para 1(3) together with a copy of updated Annexure, are enclosed.

         3. 5 sets of additional documents bearing Page Nos.1780 to 1815 are also enclosed which may please be included in the sets of documents forwarded earlier.”

 

ENCL : As above.
Yours faithfully,
   
 
Sd/-
(V.K.SINGH)
DEPUTY DIRECTOR
DRI : MUMBAI.

33. We notice that this letter dated 4.5.2001 alongwith its enclosures ought to have been immediately placed before the then Detaining Authority Smt. Joyce Shankaran. Smt. Joyce Shankaran in fact being the Detaining Authority ought to have made some enquiry as to what had happened to proposal but there is nothing on record to show that she has concerned herself with the proposal after 8.2.2001. There is nothing on record to show that the letter dated 4.5.2001 was placed before the Detaining Authority or that the said letter or its enclosures were considered by her. This assumes significance because Smt. Joyce Shankaran was the Detaining Authority for about 1 month and 7 days after the receipt of the letter dated 4.5.2001. In fact, as stated above, all the affidavits conceal the fact that Smt. Joyce Shankaran continued as Detaining Authority till 11.6.2001. Had this fact been disclosed, it would have been apparent that Smt. Joyce Shankaran had done nothing about the proposal from 8.2.2001 till she relinquished charge on 11.6.2001. In fact the disclosure of the date when her tenure came to an end was made only after we made a specific request in this regard to the learned A.P.P.

34. Again from 4.5.2001 till 26.7.2001, there seems to be no progress relating to the aforesaid proposal. On 26.7.2001, the Section Officer again wrote a letter to the Assistant Director, DRI, requesting him to forward the requisite information sought in the letter dated 12.2.2001. This letter dated 26.7.2001 also does not indicate that the request is made at the behest of the Detaining Authority. Since this letter dated 26.7.2001 is also not part of the record, the contents of the same are reproduced hereinbelow, from the original file:

SECRET / IMMEDIATE
GOVERNMENT OF MAHARASHTRA,
NO.PSA 1001/3&4/SPL.3(A),
HOME DEPARTMENT (SPECIAL),
MANTRALAYA, MUMBAI 400032.

 

Dated the 26th July 2001.

 

To,
The Assistant Director,
Directorate of Revenue Intelligence,
1st Floor, Construction House,
Walchand Hirachand Marg,
Ballard Estate, Mumbai 400038.

 

Subject : COFEPOSA ACT, 1974
 

Proposal for detention of
(1) Shri Bajarang Prasad Agarwal &
(2) Shri Suresh Kumar Agarwal.

 

Reference : Your letter No.DRI/MZU/D/ PSA 13/2000/545, dated 1.2.2001.

 

Sir,

 

         “Your attention is invited to State Government, Home Department’s letter of even No. dated 12.2.2001, on the subject noted above (copy enclosed) .


         2. I am to request you kindly to forward requisite information by return post.”

 

 
 
Yours faithfully,
Sd/-
(V.L.LAHANE)
Section Officer, Home Department
(Special) Govt. of Maharashtra.

35. It must be noted that on 26.6.2001 i.e. one month before this letter was written, Smt. Ranjana Sinha had been empowered as the new Detaining Authority. It appears that Smt. Ranjana Sinha also did not apply her mind to the proposal for one month after her empowerment as Detaining Authority. There is nothing on record to indicate that the aforesaid letter dated 26.7.2001 was on the directions of the Detaining Authority. In fact the letter dated 26.7.2001 is a sad commentary on the fact that the Government was not aware of the fact that the documents now sought had already been furnished as far back as on 4.5.2001 i.e. about 1 month and 21 days earlier. It is in this context that the office of the DRI immediately wrote back on 31.7.2001 pointing out that the information sought vide letter dated 26.7.2001 had already been furnished by an earlier letter dated 4.5.2001 which was acknowledged on 8.5.2001. Since this letter dated 31.7.2001 is not part of the record, the contents of the same are reproduced below from the original file.

DIRECTORATE OF REVENUE INTELLIGENCE
ZONAL UNIT : 1ST FLOOR; CONSTRUCTION HOUSE
WALCHAND HIRACHAND MARG,
BALLARD ESTATE; MUMBAI - 38
F.No.DRI/MZU/D/PSA-13/2000/4643

 

DATE : 31.07.2001

 

To,
The Section Officer,
Home Department (Spl.)
Government of Maharashtra
Mantralaya, 5th Floor,
MUMBAI 400032.

 

Sir,

 

Subject : COFEPOSA ACT, 1974
 

Proposal for detention of
(1) Shri Bajarang Prasad Agarwal &
(2) Shri Suresh Kumar Agarwal.

 

         “Please refer to your letter No.PSA.1100/3&4/SPL.3(A) dated 26.7.2001, on the above subject.

         2. This is to inform that the required information have already been forwarded to your office vide this office letter of even number/2431 dated 4.5.2001. A copy of the said letter together with its acknowledgment dated 8.5.2001 is enclosed herewith for your ready reference.”

 

Encl : As above.
 
Yours faithfully,
Sd/-
(D.H.GAWADE)
SENIOR INTELLIGENCE OFFICER
DRI; MUMBAI.

36. That thereafter on 13.8.2001, the tenure of the second Detaining Authority Smt. Ranjana Sinha also came to an end by her going on leave, without any further action on the proposal dated 1.2.2001. Shri. Satish Tripathi, then took the charge on 13.8.2001 and was empowered on 24.8.2001. It appears that after Shri. Satish Tripathi has took charge as the Detaining Authority, the office woke up from its long slumber and for the first time on 5.9.2001, a note was put up by the Desk Officer, stating the brief facts of the case and seeking the approval of the proposed detenus. This not was signed by the Deputy Secretary on 5.9.2001 and approved by the Detaining Authority on 6.9.2001.

37. After the grant of approval by the Detaining Authority, it appears that the Sponsoring Authority vide its letter dated 12.9.2001 sent a further batch of documents. The said letter dated 12.9.2001 is not part of the record and, therefore, its contents reproduced from the original file, are as under:

DIRECTORATE OF REVENUE INTELLIGENCE
ZONAL UNIT; 1ST FLOOR; CONSTRUCTION HOUSE
WALCHAND HIRACHAND MARG,
BALLARD ESTATE; MUMBAI - 38.

F.No.DRI/MZU/D/PSA-13/2000/2000

DATE : 12.09.2001.

 

To,
The Under Secretary,
Home Department (Spl.),
Government of Maharashtra,
Mantralaya, 5th Floor,
MUMBAI - 400032.

 

Sir,

 

Subject : COFEPOSA ACT, 1974
 

Proposal for detention of
(1) Shri Bajarang Prasad Agarwal &
(2) Shri Suresh Kumar Agarwal.

 

          “Please refer to this office letters of even number dated 1.2.2001, 4.5.2001 and 31.7.2001, on the above subject.


          2. Updated brief facts incorporating the position of further investigation are enclosed herewith, 5 sets of additional documents bearing page Nos.1816 to 2060 are also enclosed which may please be included in the sets of documents forwarded earlier.


          3. You are requested to issue detention orders at the earliest against the subject proposed detenus.”

 

Encl :
 
Yours faithfully,
Sd/-
(V.K.SINGH)
DEPUTY DIRECTOR
DRI; MUMBAI.

38. This letter dated 12.9.2001 is addressed by the Deputy Director, DRI, Mumbai to the Under Secretary, Home Department (Special), Government of Maharashtra. It refers to the correspondence dated 1.2.2001, 4.5.2001 and 31.7.2001 and encloses five sets of additional documents bearing page Nos.1816 to 2060. The letter does not by itself indicate the significance of the additional documents. It is clear that when the proposal was prepared as far back as on 15.12.2000 and in any case by the time the same was submitted to the Detaining Authority on 1.2.2001, the Sponsoring Authorities had come to a firm conclusion that the detenu, on the basis of the existing record at that point of time, needed to be detained under COFEPOSA Act. The letter dated 12.9.2001 appears to have been sent by the office of the DRI without any specific additional request. There is nothing on record to show that the letter dated 12.9.2001 and its enclosures were specifically placed before the Detaining Authority who had by that time granted his approval. It appears that the method followed had been to forward all the documents along with draft proposal, which draft proposal was submitted on 14.9.2001. The fair copy of the detention order, grounds of detention and annexures were then placed before the Detaining Authority on 17.9.2001 and the impugned detention order and the communication relating to the grounds of detention came to be ultimately issued on 18.9.2001.

39. In this background in the light of what is discussed hereinabove, we must conclude as under :

(a) There is no explanation, in any case, no acceptable explanation for the delay of 27 days between 3.1.2001 and 1.2.2001 during which period, the proposal for detention was kept idling with the Sponsoring authority.

(b) There is no explanation whatsoever for the delay of 7 days i.e. from 1.2.2001 till 8.2.2001 i.e. the period from which the said proposal was sent in the office of the Detaining Authority and the date on which the papers were placed before the Detaining Authority for her signature below the noting indicating the receipt of the proposal.

(c) The record does not indicate that Smt. Joyce Shankaran, the Detaining Authority and the then Principal Secretary, Home Department, did anything except to put her signature on a noting dated 8.2.2001, which noting pertains to the receipt of the proposal. This delay from 8.2.2001 till 11.6.2001, when Smt. Joyce Shankaran relinquished her charge, is a period during which the said Detaining Authority Joyce Shankaran, seems to have completely abdicated her responsibility towards processing this proposal.

(d) The next period is the period of delay between 11.6.2001 and 13.8.2001 when Smt. Ranjana Sinha was the incharge. We have noted that Smt. Ranjana Sinha was not empowered from 11.6.2001 and 26.6.2001, however, from 26.6.2001 till 13.8.2001, i.e. the period of about one and half months she has done absolutely nothing. It was her duty to find out as to what were the pending proposals when she took charge as the Detaining Authority. This Court has laid down the principle that the earlier pending proposals must be given precedence over the subsequent proposals. Her first duty on taking charge ought to have been to find out which were the earlier proposals which were pending. Needless to say that prima facie her complete inaction for a period of one and half month, in relation to proposal against the detenu appears to be a serious act of omission.

(e) As regards the tenure of Shri. Satish Tripathi, he took charge on 13.8.2001 but was empowered on 24.8.2001. The proposal seems to be put up on 5.9.2001 and he has dealt with it promptly by approving the same on 6.9.2001. His further actions till the issuance of detention order on 18.9.2001 do not suffer from the vice of any unreasonable delay, specially considering the fact that he had only recently taken over the said post.

40. It is difficult for us to believe that the matter pertaining to such a serious economic offence should have been treated so lightly. The utter inaction on the part of the then Detaining Authority Smt. Joyce Shankaran and Smt. Ranjana Sinha to exercise their powers of supervision over the further processing of the proposal is a cause of great distress because the serious efforts and the hard work put in by the officers of the DRI are brought to naught by their indifferent attitude.

41. We have taken a very serious note on the inaction on the part of Smt. Joyce Shankaran and Smt. Ranjana Sinha but refrain from saying anything further in the matter at the moment, since we do not have their explanations before us and since they will be entitled to give their explanation at the appropriate stage to the appropriate authority.

42. In this connection it is pertinent to note that as far s back as in 1981, in the case of Kamla Kanhaiyalal Khushalani Vs. State of Maharashtra, reported in AIR 1981 SC 814, which pertains to detention order, in which the Court was required to hold that the continued detention of the detenu was void. The Supreme Court made observations as under :

"We feel that it is a high time that the Government should impress on the detaining authority the desirability of complying with the constitutional safeguards as adumbrated by the principles laid down in this regard. We would like to suggest that whenever a detention is struck down by the High Court or the Supreme Court, the detaining authority or the officers concerned who are associated with the preparation of the grounds of detention, must be held personally responsible and action should be taken against them for not complying with the constitutional requirements and safeguards (viz. delay in disposing of the representation, not supplying the documents and materials relied upon in the order of detention pari passu the order of detention, etc. etc.) or, at any rate, an explanation from the authorities concerned must be called for by the Central Government so that in future persons against whom serious acts of smuggling are alleged, do not go scot free.

In the instant case, where not only the documents and materials were not supplied along with the order of detention, but there has been a delay of 25 days in disposing of the representation of the detenu and no explanation for the same has been given. These are matters which must be closely examined by the Government."

The principle enunciated by the Supreme Court relating to holding persons or officers Concerned / associated with the preparation of grounds of detention and whose actions or omissions result in release of a detenu against whom there is voluminous material, must also extend to other officers whose acts and omissions are of such a callous or negligent nature or suffer from such infirmity. It matters little whether such actions or omissions are at the pre-detention or at the post-detention stage.

43. As a net result, we find that there is no plausible or proper explanation for the delay caused from 1.2.2001 till 5.9.2001 i.e. period of about 7 months and 4 days during stage six. We reject the explanation sought to be given to explain the delay during this period. If we add the period of 27 days, relating to stage No.5, the total amount of explained / unexplained delay comes to little over 8 months. We find that the delay of 8 months for which there is no explanation or explanation which is not acceptable, would snap the live link between the activities of the detenu and the object of passing of the detention order. Such length of unexplained pre detention delay has been held to be fatal by the apex Court. In Rabindra Kumar Ghoshel Vs. State of West Bengal, reported in AIR 1975 SC 1408, an unexplained delay of three months was held to be fatal to the detention order. In the case of Pradeep Nilkanth Paturkar Vs. S.Ramamurty, reported in AIR 1994 SC 656 an unexplained delay of 5 months and 8 days was found fatal. Since the law is not to count the months of delay in each case, we do not wish to multiply references to such individual cases, save and except to observe that in most cases, an unexplained or improperly explained delay of over six months has led to a finding that the live link has snapped. On this ground alone, the impugned detention order will thus be required to be quashed.

44. Since the writ petition is being allowed by us on the aforesaid ground, we have not found it necessary to refer to in detail, all the allegations / contents of the grounds of detention as also to several other grounds which are raised in this petition.

45. Before we part with this judgment, in view of the observations made hereinabove, we propose to issue two directions. We firstly issue a direction to Respondent no.1 to immediately, within two weeks from the date of receipt of this judgment, call for the written explanation from Smt. Joyce Shankaran and Smt. Ranjana Sinha regarding their inaction relating to the proposal to detain the present detenu during the periods from 1.2.2001 till 11.6.2001 and 26.6.2001 till 13.8.2001 respectively. We direct that a report relating to the action taken or proposed to be taken in this regard and enclosing the copy of the reply given by these officers be sent to this Court within a period of six weeks.

46. We direct that the notice be issued by the office to Shri. R.D.Shinde, Deputy Secretary, Government of Maharashtra and Shri. Satish Tripathi, Principal Secretary (Appeal and Security), Government of Maharashtra to explain as to why and on what basis the two identical averments earlier referred to by us and specified in para 9, which prima facie do not appear to be correct, were made in their respective affidavits filed in this writ petition. The said explanation should be furnished to this Court within a period of three weeks from the date of receipt of such notice by them. The office is directed to retain on record a xerox copy of all notings and documents referred to in this judgment and the notings from the file of the Sponsoring Authority before returning the files.

47. In the result, by a writ of Certiorari, the impugned order of detention passed by Respondent No.2 dated 18.9.2001 is hereby quashed and set aside. The detenu is directed to be released from detention forthwith, if not required in any other case. The directions given to Respondent No.1 be complied with and notices be issued as directed in the body of the judgment. Office to issue writ on the basis of the operative part of the order. A copy of the judgment and order be sent to the Chief Secretary, Government of Maharashtra for compliance.

48. Subject to these directions, the aforesaid Criminal Writ Petition stands disposed of and rule is made absolute in above terms.

Petition allowed.