2003 ALL MR (Cri) 1217
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.P. DESAI AND S.K. SHAH, JJ.

Rajinder Singh Gaba Vs. State Of Maharashtra & Ors.

Criminal Writ Petition No.1390 of 2002

16th April, 2003

Petitioner Counsel: Ms. A.M.Z. Ansari
Respondent Counsel: Mrs. A.S. Pai

(A) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (1974), S.3 - Detention under - Delay in issuance of detention order - Delay from 28-3-2001 to 11-8-2001 - Delay explained by stating that there were nine representations and 38 proposals were pending during this period - Held, rejecting the explanation that if there were large number of proposals pending it was incumbent on Government to have appointed more than one officer to attend to the proposals.

If there are more proposals, the State must appoint more persons to deal with them. If the anxiety of the State to take preventive steps to check smuggling is genuine it must make necessary arrangement for expeditious issuance of orders. Otherwise the very purpose of such orders is frustrated. The State cannot raise its hands and say that there was imminent possibility of a person indulging in prejudicial activities but the proposal was shelved for a considerable time because of pressure of work. The number of proposals itself should prompt the State Government to make more persons available for this important task. In view of this the explanation offered by the detaining authority for the period 28-3-2001 to 1o-8-2001 is not explained. [Para 15]

(B) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (1974), S.3 - Delay in execution of order - Order issued on 10-8-2001 - Detenu was to return to India on 22-11-2001 - He did not return and applied for permission to stay abroad on ground that he had lost his passport - Application moved by his advocate was granted on 3-12-2001 in absence of any objection by custom's counsel - On 22-2-2002 he made another application to extend stay abroad on ground that he met with accident and needed treatment - Court granted permission to stay abroad for six months as no reply was filed by customs department - Government for first time on 28-8-2002 applied for cancellation of bail - Bail was cancelled and on 25-9-2002 detenue surrendered and order was executed on him - Held, knowing full well importance of the task Government dealt with the matter in a slipshod manner making everything suspect - Delay in execution of order has resulted in snapping the live link and order was liable to be quashed. AIR 1996 SC 70 - Rel. on. (Paras 23, 24)

Cases Cited:
T.A. Abdul Rahman Vs. State of Kerala, AIR 1990 SC 225 [Para 11,16]
Ravinder Pal Singh Washor Vs. State of Maharashtra, Cri. Writ Petition No.1087/1993, Dt.:- 11-10-1993 [Para 11,15]
P.M. Hari Kumar Vs. Union of India, AIR 1996 SC 70 [Para 24]


JUDGMENT

Smt. RANJANA DESAI, J.:- The petitioner is a friend of one Rahul Rameshchandra Vyas. By order dated 10-3-2001, issued by respondent 2 under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act ("COFEPOSA" for short), the said Rahul Rameshchandra Vyas (the detenu) was ordered to be detained with a view to preventing him, in future, from smuggling goods. The order of detention along with grounds of detention was served on the detenu on 25-9-2002 and he was detained thereunder. In the present petition there is a challenge to the said order of detention.

2. The grounds of detention indicate that one Mohanlal Mishraj Purohit and Sadanand Sambhaji Rasam were intercepted and searched on 29-7-2000 along with two vehicles outside the exit of parking lot of the Module I Chhatrapati Shivaji Terminus, on the basis of specific information recorded by the office of Customs (Preventive). The search resulted into recovery of 830 Digital Video Discs of various English movies valued at Rs.83,000/- and 7105 assorted wrist watches valued at Rs.9,50,575/-. Both the vehicles were seized under panchanama. The statements of Mohanlal Purohit and Sadanand Rasam were recorded under section 108 of the Customs Act.

3. The statement of Mohanlal indicated that he was working in the firm Rian Communication and the owner of the said firm was one Noor Mohammed Siddiquie Lakhani alias Bababhai; that Bababhai had asked him to visit Dubai/Hongkong on number of occasions in relation to getting the watches smuggled into India for which all expenses were borne by the said Bababhai. On specific questioning he confirmed that he along with S.S. Rasam had visited the airport for receiving the consignment smuggled into India by two carriers namely Sanjay Chabria and the detenu, both N.R.Is, at the instance of Bababhai and from their possession the above mentioned goods were recovered.

4. In the follow up, the residential premises and the shop premises of the said Noor Mohammed Siddiquie Lakhani alias Bababhai were searched on 31-7-2000 and his statements were recorded. He stated that he knows Harbans Singh through Mohanlal as he used to supply the watches, however, he was not aware as to from where these watches were produced by Harbans Singh.

5. Harbans Singh alias Harjeev Singh Gaba in his statement admitted that on 29-7-2000 he had accompanied the detenu and Sanjay from Hongkong to Mumbai; that at Hongkong Sanjay and the detenu purchased the watches and DVDs; that Mohanlal and Rasam had asked him to buy watches and DVDs and the payment for the same was to be made at Mumbai by them; that Sanjay and he had purchased watches and DVDs using his own savings as he was working in Hongkong and that he was promised by Mohanlal Purohit and Rasam that they will pay him for his role in the transaction.

6. Immediately after the seizure the detenu and Sanjay were not available. Inquiry was made at Chindwada at the detenu's residence, however, the detenu was not available. The detenu was intercepted on 16-12-2000 and his statement was recorded on 16-12-2000 wherein he admitted that he along with Sanjay Chabria and Harbans Singh travelled to Mumbai on 29-7-2000 from Hongkong and brought 10 bags containing wrist watches and DVDs which were cleared without declaring to Customs and without payment of Customs duty and handed over to Mohanlal Purohit and S.S. Rasam and the finance was arranged by Harbans Singh alias Harjeev Singh Gaba. The detenu has further stated that immediately on handing over the smuggled goods outside the exit gate he and his associates left the place. The detenu left India on 14-8-2000 for Hongkong from Calcutta airport and returned to India only on 15-12-2000 and was intercepted at airport while departing on 16-12-2000. The detenu identified Mohanlal Purohit, S.S. Rasam and Harbans Singh when produced before him. He was arrested on 18-12-2000 and on 29-12-2000 he was released on bail.

7. On the basis of the detenu's statements and other evidence collected, the order of detention dated 10-8-2001 came to be issued by the detaining authority by recording that it was apparent that the detenu had knowingly acted in a manner prejudicial to the Conservation of Foreign Exchange and that it was necessary to detain him under the provisions of COFEPOSA with a view to preventing him in future, from acting in any manner prejudicial to the Conservation of Foreign Exchange.

8. We have heard at some length Ms. Ansari, the learned counsel appearing for the petitioner and Mrs. Pai, APP for the respondents.

9. Ms. Ansari has assailed the impugned order of detention basically on two counts i.e. delay in issuing the order of detention and delay in executing the order of detention. The learned counsel submitted that the inordinate delay in issuing the order of detention and execution of order of detention has resulted in snapping the live link and hence the order of detention deserves to be set aside.

10. So far as the delay in issuing the detention order is concerned it was pointed out that the seizure was effected on 29-7-2000. The detenu was arrested on 13-12-2000 and was released on bail on 29-12-2000 and the order of detention came to be issued on 10th August, 2001, i.e. after lapse of more than one year. The crucial part of investigation was over by 27-12-2000 and in any case after lapse of seven months from the issuance of show cause notice. Therefore, the credible chain or the live link was broken and there was no justification for issuing the detention order.

11. In support of her submission that the delay in issuing the order of detention has resulted in snapping the live link and hence the order of detention deserves to be set aside, the learned counsel has relied on T.A. Abdul Rahman Vs. State of Kerala & Ors., AIR 1990 SC 225. The learned counsel has also relied on an unreported decision of this Court in Ravinder Pal Singh Washor Vs. State of Maharashtra & Anr., Criminal Writ Petition No.1087 of 1993 decided by M.L. Pendse & M.F. Saldhanha, JJ. dated 11th October, 1993.

12. The learned A.P.P. on the other hand submitted that the alleged delay in issuing the order of detention has been explained by the State. She submitted that the delay by itself does not vitiate the order of detention if there is explanation forthcoming from the detaining authority and the Sponsoring Authority for the delay and, if the explanation offered in this case is considered it is apparent that there is no snapping of live link.

13. The learned A.P.P. has drawn our attention to the affidavit in reply of Ranjana Sinha the detaining authority and also that of the sponsoring authority. We are not happy with the slow speed at which the matter has moved. We are particularly dissatisfied about the explanation offered for the period between 28-3-2001 to the date of issuance of order i.e. 10-8-2001. We may quote the relevant paragraph from the detaining authority's affidavit:

"It is stated that the period between 28-3-2001 to 11-6-2001 there were large number of detention matters, which were pending before the then Detaining Authority, the said were received prior to this matter. It is stated that there were 9 representations which were pending and which were received prior to the present matter. It is stated that in addition to this the then Detaining Authority, also dealt with 34 proposals during the said period. It is stated that on 17-5-2001 the detenu preferred an application seeking permission from the Hon'ble Magistrate Court to go abroad, on 22-5-2001 the Hon'ble Magistrate Court permitted the detenu to go abroad. It is submitted that the Sponsoring Authority forwarded the further generated documents on 5-7-2001. It is stated that in the meantime there was change in incumbency of the Detaining Authority. I took charge as the Detaining Authority. On 12-7-2001 the papers were placed before me, I say that on 18-7-2001 I called upon my subordinate to submit the note about the documents and details pertaining to the proposal. I say that on 3-8-2001 the notes along with all the papers were forwarded to me. Thereafter on the same day I scrutinized the papers and called upon for submitting the draft order of detention. I say that on 9-8-2001 I approved the draft and grounds pertaining to the Order of Detention and on 10-8-2001 I contemporaneously issued the Order of Detention."

14. The learned A.P.P. urged that this is an acceptable explanation. Drawing our attention to the grounds of detention, the learned A.P.P. contended that looking to the prejudicial activities in which the detenu is involved, and his propensity to indulge in similar prejudicial activities in future, this Court should hold that this is not a case where the live link could be said to have been snapped. We are unable to agree with the learned A.P.P.

15. In our opinion explanation offered by the authorities is not at all satisfactory. The period between 28-3-2001 to 10-8-2001 i.e. the date of issuance of the detention order is sought to be explained on the ground that nine representations were pending with the detaining authority. Moreover 38 proposals were also pending during this period. Our attention is drawn by Mrs. Ansari to the decision in Ravinder Wausher's case (supra) where a somewhat similar explanation was offered by the detaining authority. It was contended in that case that the proposal was submitted to the detaining authority therein on November 25, 1992. The excuse given for not processing the proposal till January 28, 1993 was that 60 proposals were pending and, therefore, it was not possible to examine the proposal till 1st January, 1993. The Division Bench observed that the excuse was clearly unsustainable and if there are large number of proposals pending then it is necessary that the Government should appoint more than one officer to attend to the proposals. We have a similar situation here. If there are more proposals, the State must appoint more persons to deal with them. If the anxiety of the State to take preventive steps to check smuggling is genuine it must make necessary arrangement for expeditious issuance of orders. Otherwise the very purpose of such orders is frustrated. The State cannot raise its hands and say that there was imminent possibility of a person indulging in prejudicial activities but the proposal was shelved for a considerable time because of pressure of work. The number of proposals itself should prompt the State Government to make more persons available for this important task. In view of this we are unable to accept the explanation offered by the detaining authority for the period 28-3-2001 to 10-8-2001. This delay is not explained.

16. In this connection we may refer to the following observations of the Supreme Court in T.A. Abdul Rahman's case :

"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. It 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 scrutinize 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."

17. In our opinion, if the present case is examined in the light of the observations of the Supreme Court quoted hereinabove it must be concluded that on account of the delay which is not properly explained causal connection has been broken.

18. We have also found substance in Ms. Ansari's contention that there is delay in executing the order of detention. The detention order was executed after a period of one year and one month. In this connection the learned APP has taken us through the affidavits of detaining authority and the sponsoring authority. She submitted that the said explanation should meet with our approval. We are unable to agree with her.

19. In our opinion, the approach of the detaining authority and the sponsoring authority is extremely casual. This is evident from the grounds of detention and the affidavits of the respondents. In the grounds of detention, the detaining authority has stated that immediately after the seizure which took place on 29-7-2000, the detenu was not available. Inquiry had to be made at the detenu's residence at Chindwada. He was not traced there. The immigration authority intercepted him on 16-12-2000. This itself should have put the sponsoring authority on guard. But the manner in which this case is handled by it shows total inaction and intertia on its part. The detenu was ultimately arrested on 18-12-2000. He was released on bail on 29-12-2000. It is significant to note that on 8-1-2001, the seizing unit had forwarded the proposal to the COFEPOSA Cell. The affidavit of the sponsoring authority indicates that on 24-1-2001, the detenu preferred an application for permission to go abroad for three months. On 8-2-2001, the detenu was permitted to go abroad for three months. The order of the learned Magistrate permitting the detenu to go abroad indicates that the counsel for the customs remained absent. If proposal was already sent to COFEPOSA Cell on 8-1-2001, considering the fact that after the seizure the detenu was absconding this application of the detenu ought to have been strongly opposed. But none remained present in the court. This is a total callous approach.

20. Thereafter it appears that the detenu came back to India and again made an application on 17-5-2001 for permission to go abroad. The said application also came to be granted. Our attention has been drawn to the order dated 22-5-2001, passed by the learned Magistrate, wherein the learned Magistrate has clearly noted that the customs department had no objection to allow the detenu to go abroad.

21. On 10-8-2001 the detention order came to be issued. The detenu was to return to India on 22-11-2001. He did not return. It is significant to note that the detenu made yet another application for permission to stay abroad on the ground that he had lost his passport. The detenu presented this application through his advocate. That application came to be granted by the Court on 3-12-2001 as there was no opposition from the customs's counsel. The matter does not end here. The detenu was to remain present in the court on 22-2-2002. However, he made yet another application praying that he may be permitted to stay in Hongkong for a further period of four months because he had met with an accident and he needed treatment. That application was granted on 2-4-2002. The order passed by the learned Magistrate indicates that no reply was filed by the customs department. In the circumstances the court granted permission to the detenu to stay abroad for a period of six months.

22. The detenu was to return on 2-8-2002. He did not return. It is only then that it dawned upon the sponsoring authority that it should get his bail cancelled. On 28-8-2002 an application for cancellation was moved. The bail was cancelled. The detenu was ordered to remain present in the court on 25-9-2002. On 28-8-2002 notice was issued to the Deputy Commissioner of Customs Chindwada for executing the detention order. Father of the detenu refused to accept the court's notice. On 25-9-2002 the detenu surrendered and the detention order was executed on him.

23. All this shows that the sponsoring authority as well as the detaining authority were not really serious about the need of issuing detention order and it's immediate execution. They were aware that after the seizure the detenu was absconding yet even after the proposal was initiated, he was allowed to go abroad. Custom's counsel did not even remain present in the court. Even after the proposal reached the State Government the detenu was allowed to go abroad. His extension application was granted. No replies were filed. Application was not resisted. The detaining authority also did not pull up the sponsoring authority. Even after the issuance of the detention order, the detenu was permitted to stay abroad. What claims can such careless authorities make about the need of detaining the detenu to prevent him from smuggling or about the urgency of the execution of the order. It is not possible to say that they are not aware of the heavy responsibility which lies on their shoulders. It is unfortunate that, knowing full well the importance of the task, they should handle this matter in such a slipshod manner making everything suspect. If this is not a case where live link could be said to be snapped in which other case can one draw such a conclusion.

24. In this connection Ms. Ansari has relied on P.M. Hari Kumar Vs. Union of India & Ors., AIR 1996 SC 70. In that case the Supreme Court was dealing with a somewhat similar fact situation. The Sponsoring Authority had taken no steps to get the bail order passed against the absconding detenu cancelled. The Supreme Court observed that if the customs department was really sincere and anxious to serve the order of detention without any delay, it was expected of them, in the fitness of things, to approach the High Court, or at least, the Court which initially granted the bail for its cancellation. The Supreme observed that the detenu there was allowed to remain absent, which necessarily raises the inference that the Customs Authorities did not oppose his prayer, much less bring to the notice of the Court about the order of detention passed against the detenu. In that view of the matter on the ground of delay in executing the order of detention, the order of detention was set aside. In our opinion the ratio of this judgment is squarely attracted to the facts of this case. The delay in execution of the detention order has resulted in snapping the live link.

25. In view of the above, we are of the opinion that the impugned order of detention is vitiated on account of delay in it's issuance and also on account of delay in it's execution. Hence the detention order impugned in this petition is quashed and set aside. Detenu Rahul Rameshchandra Vyas is released from detention unless he is otherwise required in some other case.

Petition is disposed of.

Petition dismissed.