Criminal Writ Petition No.1211 of 2003

11th March, 2004

Petitioner Counsel: Mr. MAQSOOD KHAN
Respondent Counsel: Mr. R. M. AGRAWAL, Mr. D. S. MHAISPURKAR

Cases Cited:
Ashadevi Vs. K. Shivraj, AIR 1979 SC 447 [Para 4]
Citanjali Ravi Sambhwani Vs. Union of India, 1991 (54) E.L.T. 169 (Bom). [Para 5]
Madan Lal Anand Vs. Union of India, AIR 1990 SC 176 [Para 9]
Mrs. Meena Mahendra Vakharia Vs. K.L. Verma, 1997 ALL MR (Cri) 1172 [Para 10]
Manohar Gopaldas Sawlani Vs. State of Maharashtra, Cri. W. P. No.490/1983, Dt. 02.12.1983 [Para 12]
SMF Sultan Abdul Kader Vs. Jt. Secretary to Govt. of India, 1998 SCC (Cri) 1534 [Para 15]
P. M. Hari Kumar Vs. Union of India, AIR 1996 SC 70 [Para 15]
N. P. Shah Vs. Union of India, 1994(2) SCALE 112 [Para 16]
T. A. Abdul Rahman Vs. State of Kerala, AIR 1990 SC 225 [Para 16]
P. U. Iqbal Vs. Union of India, AIR 1992 SC 1900 [Para 17]
Arvind Sudkoji Mohite Vs. State of Maharashtra, Cri. W.P. No.747/1985, dt.8.1.1986 [Para 18]
Smt. Neeta Nitin Bhanushalli Vs. State of Maharashtra, Cri. W.P. No.1485/1990 dt: 10/7/1991 [Para 18]
Bhavarlal Ganeshmalji Vs. State of T. N., AIR 1979 SC 541 [Para 23]
Shaikh Mohammed Saeed Karamtullah Vs. State of Maharashtra, Cri.W.P. No.481/2003 dt.28/29.11.2003 [Para 24]
Subhash Muljimal Gandhi Vs. L. Himingliana, (1994)6 SCC 14 [Para 24]

JUDGMENT

S. S. PARKAR, J.:- This petition is filed challenging the order of detention dated 18th August, 1997 issued under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 detaining Ghanshyam Kalyandas Bhavsar. This petition has been filed by the nephew of the detenu. The said order of detention was served on the detenu and he was taken into custody, pursuant to the said order, on 8th July, 2003. The order of detention was passed with a view to prevent the detenu in future from acting in any manner prejudicial to the conservation of foreign exchange. The allegations against the detenu are that he was showing import of rough diamonds under bogus documents and making remittances through the bank against the bogus import documents and, therefore, necessity was felt to detain the detenu from indulging in any unauthorised transactions which had adversely affected the foreign exchange resources of the country.

2. On behalf of the petitioner five contentions were raised before us challenging the order of detention. Firstly, it was contended that material change in the procedure of import of goods was not brought to the notice of detaining authority before passing of the order and, therefore, the same was not considered by the detaining authority before issuing the order nor before the service of the detention order on the detenu. The next contention was that there was undue and unexplained delay in service of the order of detention on the detenu. It was next contended that the detaining authority did not consider whether the detention of the detenu was necessary after a gap of almost six years. Lastly, it was contended that detaining authority ought to have considered wether the execution of the detention order after a lapse of almost six years was necessary especially when no material is brought on record to show that in the meantime the detenu was indulging in such activities.

3. As regards the first contention, Mr. Khan contended that by Circular issued by the Reserve Bank of India on 27th February, 1996, guide-lines were issued to the authorised dealers putting stringent conditions to ensure curbing illegal imports and remittances. He brought to our notice the said circular dated 27th February, 1996 issued by the Reserve Bank of India, Exchange Control Department, Central Office, Mumbai. The said circular was issued to all authorised dealers in foreign exchange, which lays down the precautions for handling import documents. The said precautions were issued as the incidents of frauds were found to be on increase in import transaction as the authorised dealers had not observed prudent banking practice of knowing the customer while handling the import transactions. The said Circular was issued under Section 73(3) of the Foreign Exchange Regulation Act. One of the conditions in the said circular is that the authorised dealers should not accept import bills received directly by the Importers from the overseas seller. It is argued by Mr. Khan that in view of the said circular issued in February, 1996, it was not possible for the detenu and his associates to indulge in practice of making remittances on the basis of bogus import documents and if the said circular had been placed before the detaining authority and considered by him, he might not have felt necessity of issuing the order of detention.

4. In this respect, Mr. Khan placed reliance on some decisions of the Supreme Court as well as of this Court. Firstly, he relied on the judgment of the Supreme Court in the case of Ashadevi Vs. K. Shivraj and anr. reported in AIR 1979 SC 447, in which it was observed that if material or vital facts which would influence the mind of the detaining authority one way or other on the question whether or not to make the detention order are not placed before or are not considered by the detaining authority, it would vitiate the requisite subjective satisfaction of the detaining authority rendering the detention order illegal. In that case three facts were not placed before the detaining authority before passing of the impugned order. Firstly, during interrogation of the detenu inspite of request, neither the presence nor the consultation of the Advocate was permitted. Secondly, inspite of intimation to the Advocate in that behalf the detenu was not produced before the Magistrate on a particular date and thirdly the confessional statements were retracted by the detenu at the first available opportunity while he was in judicial custody. Since the first two facts had a bearing on the question whether the confessional statements had been extorted under duress from the detenu or not, and third was in relation to the confessional statements, which were the basis of the impugned order, they were considered to be vital facts for the purpose of issuing detention order. The court held that the order was vitiated. So far as this case is concerned there is no grievance that any material fact was not considered by the detaining authority. The order of detention was passed on 18th August, 1997 on the basis of transactions of bogus imports and large remittances made, in respect of 500 transactions, extending over the period between the years 1992 and 1997.

5. The second judgment on which reliance is placed by Mr. Khan is the unreported judgment of the Division Bench of this Court in the case of Citanjali Ravi Sambhwani Vs. Union of India, 1991 (54) E.L.T. 169 (Bom.). That was a case where the detention order was passed on 15th May, 1990 under COFEPOSA Act. The detenu in that case was in the business of import of cars for a period of 6 to 7 months. He used to purchase cars abroad in the name of Non-Resident Indians (NRIs) returning to India on the basis of transfer of residence. He used to arrange for foreign exchange for purchase of cars abroad and also about the customs clearance permit (CCP) facilities and thereafter he used to sell the car in India at a premium and used to pay Rs.60,000/- to Rs.1,50,000/- to those NRIs in whose names cars were imported. By the public notice issued on 27th February, 1990 vital changes were effected in the law relating to import of cars and with those changes it was not possible for the detenu to indulge in similar activities in future and the detaining authority had not considered the vital changes in the import policy and, therefore, the order was held to be vitiated. It was found that under the new provisions, there was change in vital conditions. The NRI has to stay abroad continuously at least for a period of two years and the vehicle must have been used by him for a minimum period of one year prior to his return to India. Those conditions were not applicable before 27th February, 1990 and the modus adopted by the detenu could not have been available to him in view of the new conditions adopted for import of cars.

6. So far as the detenu in this case is concerned, it is evident from the grounds of detention that remittances were made to Hongkong by the detenu in conspiracy with his own brother Harish, who is absconding, to the extent of crores of rupees in the name of the firm which was run by the nominee of the detenu and his brother. As per the information received by Deputy Director foreign exchange, about Rs.128.84 crores were remitted out of India since 1992 till March, 1996 through Bank of Baroda, Bhagatalao Branch, Surat. The said remittances were made against the bogus import documents in respect of rough diamonds without actually importing any diamonds. The documents were found showing the bogus bills for sale of diamonds without any sale actually taking place. The search of the premises of the detenu resulted in finding of bogus documents. The detenu was found to have used his telephone for calls made to Hongkong to the person to whom the payments were made through authorised bank for imports of diamonds. The detenu was operating in the name of five firms, out of which two firms by name M/s. Sharada Diamond and M/s. Sharad Enterprises were found to have dealings with their counterparts at Hongkong. The inquiry revealed that the firms of the detenu were purchasing diamonds from local market and exporting the same to companies at Hongkong, namely, M/s. Stone Enterprises and M/s. Dimentina which were being looked after by one Kartik Bhavsar, the cousin of the detenu and the detenu and his wife had received gifts in the sums of US $ 50,000, 45,000 and 40,000 from his cousin Kartik Bhavsar, who was resident of Hongkong. The illegal transactions of bogus imports and the remittances made to Hongkong through bank were also revealed through the statement of Deepak Shah who was personal friend of detenu and was getting salary of Rs.10,000/- from the detenu. In the statement of one Prakash Shah it is stated that he had been sent to Hongkong on forged passport where he opened two bank accounts in the name of M/s.Meeyang Trading Co. and Mumbai Export and was directed to act as per the instructions of Kartik Bhavsar, the cousin of the detenu. Blank cheque books were signed by Prakash Shah and handed over to Kartik Bhavsar. The said Prakash Shah was paid a sum of Rs.5 lacs to purchase the flat in Mumbai suburb. The said two companies were shown to be dealing in export of rough diamonds and electrical goods but nothing was exported and no permission was obtained from the Reserve Bank of India for carrying on business in Hongkong. He admitted in his statement that export documents of the two firms were forged and Kartik Bhavsar was sending blank "Certificate of Origin Re-export" to Harish, brother of the detenu and he was sending all the forged documents like invoices, H.A. Bills and field certificates of origin to Kartik Bhavsar in Hongkong from India. The investigation revealed that all the bills of entries etc. were forged. The statement of the Ratibhai Patel dealing on behalf of the Angadia Service shows that his company had received Rs.14,93,12,000/- from parties in Mumbai in cash and the same were sent to N. C. Shah at Surat. As per his diary he had received cash to the extent of Rs.33,29,50,700/-, most of it from A. Baker which was sent to N. C. Shah in Surat. He has further stated that his company had received Rs.23,13,75,000/- on different dates from different parties in Mumbai and the same was sent to Narendra in Surat. The said amount in crores was sent for being deposited in the Bank of Baroda, Bhagatalao Branch, Surat through which the amount was remitted to Hongkong on the basis of bogus documents for the import of rough diamonds.

7. In the grounds of detention reliance is also placed on the statement dated 7/3/1997 of R. P. Patel who was also acting as Angadia in which he has admitted having sent large amount of cash to Narendra and A. M. Patel. Similarly there are statements of other Angadias. The detenu along with his brother and associates, who are made accused in the prosecution lodged in the Magistrate's Court for offences under Section 8(1)(2)(3) and (4) and Section 9(1)(b) of FERA and for offences under Sections 14, 21(1), 49, 56 of the FERA, had indulged in remitting foreign exchange abroad against the bogus import documents. The investigation revealed that apart from the violation of the FERA transaction by remitting foreign exchange against the bogus documents in respect of import of rough diamonds, the detenu was also indulging in Hawala transaction. Large amount of cash was sent from Bombay to Surat for being deposited in the Bank of Baroda, Bhagatalao Branch at Surat which was used for making remittances in foreign exchange to the detenu's own persons in Hongkong against the bogus bills of import of rough diamonds.

8. Mr. Agrawal has pointed out that the detenu is being prosecuted for offences under Sections 8(1), 8(2), 8(3) read with Sections 8(4), 9(1)(b), 9(1)(d), 14, 27(1) read with Section 56(1) of FERA 1973 read with Sections 49(3) & 49(4) of FERA, 1999. Section 9(1)(b) of the FERA pertains to receiving otherwise than through an authorised dealer, any payment by order or on behalf of any person resident outside India and the offence under Section 9(1)(d) pertains to making any payment to, or for the credit of, any person by order or on behalf of any person resident outside India, which offences are dehors the illegal transactions of import and remittances made abroad through authorised agent like bank towards the bogus bills of import of rough diamonds. Surely, the circular of 27th February, 1996 does not pertain to the contravention of Section 9(1)(b) and 9(1)(d) of FERA. It is relevant to point out that the grounds of detention show that M/s. Sharda Diamonds, admittedly owned by the detenu, had exported diamonds worth Rs.10 to 12 crores. It has also come in evidence that detenu and his brother Harish, who is still absconding, had jointly owned one Locker No.2127-F with Indian Safety Deposit Vault Ltd. which was sealed on 26/11/1996 and in search several documents and five diaries were found, which threw light on the illegal activities and hawala transactions carried on by the detenu and his brother jointly.

9. Mr. Agrawal, therefore, submitted that apart from the violation of FERA, the detenu was indulging in Hawala transactions, to which circular of 27th February, 1996 was not at all applicable. He submitted that the order of detention was passed against the detenu not only for FERA violation but also for dealing in Hawala transactions in which the detenu was indulging. He placed reliance on the decision of the Supreme Court in the case of Madan Lal Anand Vs. Union of India and ors. reported in AIR 1990 SC 176. That was a case where it was contended that since the abeyance order was passed on 27/3/1985 i.e. before the expiry of six months from the date of first clearance of the goods imported on December, 6, 1984 the condition of advance licence was not capable of being complied with. As per the grounds of detention, the firms of the detenu were not in existence and they did not have any factory or any manufacturing device for the purpose of manufacturing ready-made garments and, therefore, there was no question of the firm of the detenu being prevented from manufacturing the ready-made garments and exporting the same within six months from the date of the first clearance as per the abeyance order. Similarly, in this case it is not in dispute that the detenu was not a licenced dealer. He was not authorised importer and when the detenu was dealing illegally on the basis of forged and bogus documents, there is no question of applicability of conditions of imports or remittances as laid down in the circular of 27th February, 1996. Thus there being two separate grounds which are severable provisions of Section 5A of the COFEPOSA Act would be applicable.

10. Secondly this question was also dealt with by the Division Bench of this Court, to which one of us (Parkar, J.) was party, in the case of Mrs. Meena Mahendra Vakharia Vs. K. L. Verma and ors. reported in 1997 ALL MR (Cri) 1172. That was a case where the detenu was indulging in FERA violation in large number of cases, as in the present case, and the argument was advanced that in view of the circular dated 27/2/1996, wherein stringent conditions have been laid down, it would not be possible for the detenu to indulge in similar activities in future, and the said fact not having been considered, the detention order was invalid. That contention was negatived by observing as follows :

"..... The manner in which the detenu has prevailed upon the bank officials to make the 144 remittances abroad, leaves no doubt in our mind that the concern expressed by the Chief General Manager of R.B.I. was justified. We do not think that this subsequent development not being placed before the Advisory Board when it considered the representation on 12th April, 1996, has in any manner vitiated the detention or continued detention of the detenu."

11. The aforesaid observations are equally applicable to this case. Moreover, it is pertinent to point out that in this case it is not the contention of the learned Advocate for the petitioner that the detention order was passed on the basis of previous circular ignoring the circular dated 27th February, 1996 issued by the Reserve Bank of India by way of precautionary measure. If the Sponsoring Authority and the Detaining Authority were to act on the basis of earlier circular or with reference to any earlier circular and without making any reference to the circular dated 27th February, 1996, then there would have been some force in the argument of the learned Advocate. Secondly, as per the grounds of detention the activities of the detenu spread over a period from 1992 to the year 1997 i.e. post circular period have also been considered when the circular of 27th February, 1996 was in operation. It, therefore, cannot be assumed that the order of detention was passed without taking into consideration the precautions laid down in circular dated 27th February, 1996. As per the statement of Deepak D. Shah dated 12/6/1997, who was the Managing Director of the group of companies run by the detenu, the illegal activities of the detenu were still continuing and the detenu and his brother were still receiving money from Baker and others from Hongkong through Angadias in Mumbai. This is reflected in para 44 of the grounds of detention. The said statement was recorded in June, 1997 i.e. after a period of about one year and four months since the issue of circular dated 27/2/1996. As stated earlier, the allegations against the detenu are about receipt of large amount of Indian currency in Bombay in cash which was sent to Surat through angadias for being deposited in the Bank of Baroda at Surat and remitted to Hongkong against the bogus documents of import of rough diamonds. Lastly, the precautions which are required to be observed as laid down in the circular of 27th February, 1996 are meant for being observed in order to curb irregularities in the transactions and operations conducted by the persons authorised to import the goods. The entire transactions which were carried on by the detenu and his brother were illegal, without any permission and licence in that behalf, entered into on the basis of forged and bogus documents. The precautions which are laid down in the aforesaid circular cannot have the effect of preventing illegal activities indulged into by the detenu, as the ingenuity of the person indulging in illegal activities has no limits and cannot be curbed by imposing the conditions laid down in the aforesaid circular.

12. One more unreported judgment relied on by Mr. Khan in this connection in the case of Manohar Gopaldas Sawlani Vs. The State of Maharashtra and ors. in Criminal Writ Petition No.490 of 1983 decided by the Division Bench (Kurdukar and Khatri, JJ.) of this court on December, 2, 1983 is also of no assistance to the petitioner. In that case it was found that the impugned order of detention was based on the law which was non-existent on the date of the order of detention and, therefore, it was held that the order suffered from vice of non application of mind.

13. For the aforesaid reasons even the second submission made on behalf of the petitioner that the material change in procedure by virtue of circular dated 27th February, 1996 was not brought to the notice of the detaining authority before execution or service of the order of detention on the detenu is also without substance and is liable to be rejected.

14. The next contention raised on behalf of the petitioner is that there is considerable delay in execution of the order of detention and, therefore, the nexus between the passing of the order and the object of preventing the detenu from indulging in similar illegal activities is snapped. According to the learned Advocate the very fact that the detaining authority took almost about six years for service of the detention order shows that respondents were not serious about the matter and, therefore, did not take immediate steps to serve the order of detention on the detenu. The order of detention is dated 18th August, 1997 and it was served on the detenu on 8th July, 2003.

15. In this respect Mr. Khan placed reliance on some judgments of the Supreme Court and of this court. The law is well settled in this respect that if there is unexplained delay in execution of the order of detention the link between issuing of the order of detention and the object of preventive detention gets snapped. Reliance was placed on the judgment of the Supreme Court in the case of SMF Sultan Abdul Kader Vs. Jt. Secretary to Govt. of India and Ors. reported in 1998 SCC (Cri) 1534, in which apex court found that the Joint Secretary did not explain why no attempt was made from 14th March, 1996 to 25th April, 1996 and the police had tried to find out the detenu only once in a month and, therefore, the order of detention was quashed. Secondly, reliance is placed on the judgment of the Supreme Court in the case of P. M. Hari Kumar Vs. Union of India and ors. reported in AIR 1996 SC 70. In that case the detenu was absconding. The detention order was issued on 11th July, 1990 and it was served on the detenu on 3rd July, 1994. The action was taken under Section 7 of the COFEPOSA Act and efforts were made to trace the detenu and proclamation was also issued but the contemporaneous record in support thereof had not been produced before the Court. It was the case of the detaining authority that during the entire period in question the detenu was staying abroad but the passport of the detenu was not produced to substantiate the said plea nor any affidavit was filed to that effect. In that context, the Supreme Court observed that the attempt to arrest the detenu from his house in regular interval was an empty formality resorted to by the authority but no genuine efforts were made and, therefore, the order of detention was quashed.

16. In the case of N. P. Shah Vs. Union of India reported in 1994(2) SCALE 112 there was delay of one year in serving the order of detention. The order of the detention was quashed on the ground that no adequate explanation was given for not serving the detenu in a period of one year, except that an application for cancellation of bail was made, which did not show that the detenu was absconding in that case. Mr. Khan also relied on the judgment of the Supreme Court in the case of T. A. Abdul Rahman Vs. State of Kerala reported in AIR 1990 SC 225. In that case it was held that when there is unsatisfactory and unexplained delay between the date of the order of detention and the date of securing the arrest of the detenu, such 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 from acting in prejudicial manner.

17. The next judgment of the Supreme Court relied on behalf of the petitioner is in the case of P. U. Iqbal Vs. Union of India reported in AIR 1992 SC 1900. In that case it was found by the apex court that no prompt and continuous effort or serious attempt was made to secure the detenu and serve the impugned order on him between 24/11/1989 and 23/4/1990. It was observed that the Circle Inspector of Police to whom the warrant had been sent for execution of the order of detention, had shown absolute callousness and did not seem to have made any sincere effort in executing the warrant and, therefore, the order of detention was quashed, as according to the Supreme Court the detaining authority after passing detention order was indifferent in arresting the detenu by not taking proper action with greater promptitude.

18. Reference was also made to two unreported judgments of this court, one in the case of Arvind Sudkoji Mohite Vs. The State of Maharashtra and ors. in Criminal Writ Petition No.747 of 1985 decided on 8th January, 1986 by the Division Bench of R. A. Jahagirdar and A. D. Tated, JJ. and another in the case of Smt. Neeta Nitin Bhanushalli Vs. The State of Maharashtra and ors. in Criminal Writ Petition No.1485 of 1990 decided on 10th July, 1991 by the Division Bench of (Mrs.) Sujata Manohar and B. N. Shrikrishna, JJ. In these two cases on the facts the Benches had found that no serious efforts were made to trace the detnues but the manner in which the order of detention was sought to be served was cavalier and the officers had behaved as if they were paying some social visits and social call to the detenues and no watch was kept at the residence of the detenues to secure their arrest.

19. From the aforesaid decision, it is clear that what is required is that the respondent authorities have to make genuine and serious efforts to secure the arrest of the detenu and if inspite of the serious efforts made continuously and also action taken under the law for securing the arrest of the detenu, the non-service of the order of detention would not ipso facto snap the link between the order of detention and the object of preventing the detenu from carrying on his illegal activities. Paragraph 8 of the reply affidavit dated 6th January, 2004 filed by the Joint Secretary to the Government of India, Revenue Department, Ministry of Finance mentions the efforts made by respondents to serve the detention order on the detenu. The relevant portion of the said paragraph 8 is as follows :

"In fact, the petitioner was not available for the service/execution of the Detention Order on him and was avoiding the same. The delay in service of the Detention Order can be attributed to his non-availability to the authorities. In this case, action under Section 7(1)(b) and (a) of the COFEPOSA Act, 1974 were duly taken on 04/02/1998 and 14/07/1998 respectively and it was proclaimed on 25/07/1998 vide Proclamation No.34/98. Besides, there have been periodical attempts at the known addresses of the petitioner to execute/serve the Detention Order on him by the PCB authorities (Executing Authorities) on 10/09/1997, 19/09/1997, 03/10/1997, 04/10/1997, 20/11/1997 and by the officers of this Directorate on 10/09/1997, 03/10/1997, 12/11/1997, 14/11/1997, 19/11/1997, 31/12/1997, 06/02/1998, 17/03/1998, 15/05/1998, 17/06/1998, 28/07/1998, 02/09/1998, 14/10/1998, 07/01/1998, 10/02/1999, 20/01/2000, 30/10/2000, 14/05/2001, 05/02/2002 and 12/04/2003. Even the SAFEMA authorities have initiated proceedings in the issue of attaching his known properties. Hence, it is denied that the satisfaction of the Detaining Authority in issuing the Detention Order is rendered malafide, null and void."

20. There is another affidavit dated 3rd March, 2004 filed by the Assistant Police Inspector, attached to M.O.B. Crime Branch, C.I.D.,Mumbai. Paragraph 2 of the said affidavit mentions the efforts made to serve the order of detention on the detenu. The relevant portion of the said paragraph 2 is reproduced hereinbelow :

".... However, the detenu was not found at his residence and upon making enquiry it was revealed from the servant of the detenu viz. Hirendra Bharati that the detenu has not visited his residence since last 9 months. Thereafter, a message was given to the Gamdevi Police Station, Azadmaidan Police Station, Senior Inspector, Special Branch-II, L.O.C. Sahar Airport, Mumbai in writing for tracing the detenu in order to execute the Order of Detention. I state that the Officer of the P.C.B. C.I.D. Mumbai has also visited the residence of the detenu on 10/9/1997, 19/9/1997, 02/10/1997, 02/11/1997, 20/11/1997, 27/11/1997, 29/01/1998, 06/08/1998, 18/08/1998, 26/08/1998, 30/12/1998, 10/11/2000, 11/07/2002, 02/08/2002, 19/10/2002 and 21/01/2003. However, the detenu was not available. I state that in respect of the said attempts in the Station Diary entry was made on each occasion. I crave leave to refer to and rely upon the copy of the same as and when produced before this Hon'ble Court. I state that similar attempts were also made by the Gamdevi Police Station, Mumbai, on 03/10/1997, 04/10/1997, 19/11/1997, 21/11/1997 and 14/03/1998.

I state that thereafter on 7/2/1998, we have received a copy of the notification issued under section 7(1) (b) of the Cofeposa Act and, thereafter, the said notification was pasted on the residence of the detenu and accordingly the panchanama of the same was prepared and the statements of the witnesses were recorded and the report was submitted to the concerned authorities on 13/5/1999.

I state that thereafter also the detenu could not be traced and it is only on 8/7/2003 when the staff of the office of the P.C.B. C.I.D. Mumbai including myself visited the residence of the detenu, at that time the detenu had found himself concealing in a grill of the balcony, by making small door from the bed room. I state that thereafter the officer of the Enforcement Directorate, Mumbai, was called for the identification of the detenu and thereafter, the order of detention was served on the detenu on 8/7/2003. I state that thus the detenu was himself absconding and was not available for the execution of the order of detention inspite of the due efforts made by us and also after the publication of the notification under section 7(1)(b) of the Cofeposa Act, hence, the detenu cannot take advantage of his own wrong."

21. Thus after the order of detention was passed on 18th August, 1997, the same was sent to the office of C.I.D. on 10th September, 1997 for its execution. Number of attempts were made by going to the residence of the detenu for effecting service of the order on the detenu. Every month two to three visits were made at the address of the detenu beginning from 10th September, 1997 till April, 2003. In the meantime action was taken under Section 7(1)(b) and (a) of the COFEPOSA Act in February, 1998 and proclamation was issued on 27th July, 1998. Thereafter the SAFEMA proceedings were also adopted for the attachment of the property of the detenu. Summons in respect of SAFEMA proceedings were issued in November, 1997 i.e. within a period of three months from the date of the order of detention in August, 1997. After the inquiries were made, the properties of the detenu were located and thereafter the show-cause notices were issued in September, 1999 and the order of confiscation was passed. It is pointed out by Mr. Agrawal appearing for Respondent Nos.1 and 2 that 40 appeals are filed challenging the order of confiscation of the property of the detenu by various persons which are still pending for hearing. There is no denial of the fact, on behalf of the petitioner, that action under Section 7(1)(b) of COFEPOSA Act was initiated against the detenu since November, 1998 and SAFEMA proceedings were initiated since November, 1997. What is pertinent to note is that inspite of the fact that the order for confiscation of the property of the detenu was passed in March, 2001, the detenu did not choose to surrender though the orders of confiscation were challenged in appeals by various persons including the detenu. The detenu was being represented by a Lawyer before the competent Authority for contesting the SAFEMA proceedings for the attachment of his properties and he has also filed appeal challenging the order of confiscation of his property since the year 1999, yet the detenu did not surrender and the efforts had been continued to trace him. As per the reply affidavit dated 3rd March, 2004 filed by the Assistant Police Inspector, when the staff of the office of P.C.B. C.I.D. Mumbai visited the residence of the detenu on 8th July, 2003 he was found hiding himself in the balcony by making small door from the bed room.

22. From the various steps taken by the Authorities to secure the arrest of the detenu, as mentioned above, it cannot be said that the respondents were not serious in serving the order of detention on the detenu. The aforesaid facts do show that the detenu was absconding throughout this long period and inspite of the aforesaid efforts made by the officers it cannot be said that the authorities were not serious enough in securing the arrest of the detenu. When the period required to secure the arrest of the detenu was as long as six years, large number of officers of the Department and the Police cannot be expected to leave other work and all the time occupy themselves searching this detenu. The activities of the detenu were such that it cannot be said that the link or nexus between the order of detention and the object of preventing the detenu from carrying on his illegal activities was snapped, specially when he was absconding for such a long period.

23. Reference may be made in this connection to some of the decisions of the Supreme Court and of this court. In the case of Bhavarlal Ganeshmalji Vs. The State of T. N. reported in AIR 1979 SC 541 it was held in para 6 of the judgment that where the delay is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider a live and proximate link between the grounds of detention alleged by the detaining authority and the avowed purpose of detention i.e. the prevention of smuggling activities not snapped but strengthened. In that case the order of detention was passed on 19th December, 1974 and the detenu was found to be absconding and pursuant to the various steps taken under Section 7 of the COFEPOSA Act and the proclamation made, the detenu had surrendered on 1st February, 1978. The Supreme Court held that the delay in the execution of the order of detention was due to the detenu as the detenu was absconding and, therefore, the link was not snapped.

24. Mr. Agrawal also placed reliance on the unreported judgment of the Division Bench of this Court in the case of Shaikh Mohammed Saeed Karamtullah Vs. The State of Maharashtra and ors. in Criminal Writ Petition No.481 of 2003 decided on 28th & 29th November, 2003 by the Division Bench, to which one of us (Parkar, J.) was party. In the said judgment it was pointed out that approach of the apex court in Bhawarlal's case was approved in the subsequent judgment of the Supreme Court in the case of Subhash Muljimal Gandhi Vs. L. Himingliana reported in (1994)6 SCC 14, wherein it was held that where the detenu himself had delayed the detention, the detention order can not be said to have been vitiated.

25. On the basis of the explanation given in the two affidavits filed on behalf of the respondents, we are satisfied that the authorities had taken adequate steps to serve the order of detention on the detenu but the same could not be executed because the detenu was absconding. The detenu cannot be allowed to take advantage of his own wrong. As pointed out earlier the detenu was appearing through his advocate in the SAFEMA proceedings before the Competent Authority and has filed appeal also against the order of the Competent Authority confiscating his property but he was not available for arrest. There is no material to show that when he was contesting the SAFEMA proceedings through his advocate, he could be arrested. On the contrary, it is evident that the detenu was hiding all throughout. He had not even responded to the proclamation issued against him. Though the steps under Section 7 of COFEPOSA Act and the proceedings under SAFEMA were adopted, the respondents authorities had continued their efforts to arrest the detenu by visiting his place of residence and that is how ultimately he was arrested in July, 2003 when he was found hiding in the balcony of his residential house by making small door from the bed room. In these circumstances, it cannot be said that the live link between the grounds of detention and the object of preventing the detenu from indulging in illegal activities was snapped.

26. The next point argued on behalf of the petitioner is that in the grounds of detention reliance was placed on the remittances made in foreign exchange worth about Rs.128.84 crores since the year 1992 to March, 1996 in approximately 500 transactions relating to import of rough diamonds from five current accounts held in the Bank of Baroda, Bhagatalao Branch, Surat in the names of five firms with which the detenu was not concerned. In para 4(i) of the petition it is stated that detenu was concerned with following five firms or companies :

1. M/s. Sharda Diamonds.

2. M/s. Bhavsar Construction Co. Pvt. Ltd.

3. Integrated Lense Incorporation.

4. M/s. Kaushik Builders Pvt. Ltd. and

5. Sharda Enterprises.

The submission is that none of the aforesaid companies were involved in any unauthorised transaction. However, from the statement of Deepak Shah, who was the Managing Director of the two firms of the detenu, namely, M/s. Sharda Diamonds and Sharda Enterprises, it is clear that the five firms, in whose name the account was opened in the Bank of Baroda, Bhagatalao Branch, Surat, were floated by the detenu and his brother Harish and were operated by them through Narendra Shah. The telephone bills of the detenu go to show that calls were made from the detenu's office in Bombay to the aforesaid companies in Surat giving instructions regarding cash amount having been sent from Mumbai for depositing in the bank and for making remittances to Hongkong. The statements of the Angadias show that they were entrusted the cash amount by the detenu's firm for being paid to the aforesaid companies in Surat. There is also evidence about the detenu having visited Surat, and receiving telephone calls from Narendra C. Shah from Surat. Apart from that there is also evidence to show that the detenu and his brother used to have talk on telephone about transfer of funds with Baker, regarding receipt of money from Kartik Bhavsar at Hongkong and about arranging funds in India and receiving funds through Angadias.

27. From the lengthy grounds of detention served on the detenu, it is evident that detenu and his brother Harish were working in concert with each other through some persons like Deepak Shah, Narendra Shah based in Surat and Baker and Kartik Bhavsar based in Hongkong and were sending large amount of Indian currency from Mumbai to Surat for being deposited in Bank of Baroda, Bhagatalao Branch, Surat in the accounts of five firms for making remittances to Hongkong against the bogus documents for import of rough diamonds. The grounds of detention also mention about the receipt of gifts in the amount of 40,000, and 50,000 US $ by the detenu and his wife from Hongkong. In view of the above, this argument of Mr. Khan is also without substance.

28. Lastly, Mr. Khan submitted that the detaining authority ought to have considered whether the execution of the detention order after a lapse of almost six years was necessary especially when no material is brought on record to show that in the meantime the detenu was indulging in such activities. He placed reliance on the judgment of the Supreme Court in Bhawarlal's case (Supra) and in particular on the observations made by the Supreme Court in para 6 of the judgment. It was observed therein as follows :

".... We may in appropriate cases assume that the link is 'snapped' if there is a long and unexplained delay between the date of the order of detention and the arrest of the detenu. In such a case we may strike down an order of detention unless the grounds indicate a fresh application of the mind of the detaining authority to the new situation and the changed circumstances."

However, the Supreme Court has further observed in para 6 of the judgment as follows:

"..... But where the delay is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the 'link' not snapped but strengthened."

29. Thus, answer to the said contention of Mr. Khan is provided by the Supreme Court in the words immediately following the observations on which the reliance is placed by Mr. Khan. We have already found, as a matter of fact, that the respondents have given adequate explanation for delay in the service of the detention order on the detenu. We have found that the delay has occurred as result of recalcitrant and refractory conduct of the detenu in evading arrest inspite of the steps taken under Section 7 of the COFEPOSA Act and the proceedings adopted under the provisions of SAFEMA Act and, therefore, there was warrant to assume the link not having snapped but on the contrary strengthened. Thus we do not find any substance even in the last submission advanced by Mr. Khan.

30. In view of the aforesaid discussion, we find no substance in this petition. Consequently, the petition is dismissed and rule is discharged.

31. On the application of Mr. Khan a copy of this order duly authenticated by the Personal Secretary of this Court is permitted to be given to the parties.

Petition dismissed.