2010 ALL MR (Cri) 3043
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

B.H. MARLAPALLE AND A.V. MOHTA, JJ.

Shri. Mohamed Saliah Vs. Anna Dan I & Ors.

Criminal Writ Petition No.419 of 2010

9th August, 2010

Petitioner Counsel: Mr. U. N. TRIPATHI
Respondent Counsel: Mrs. S. D. SHINDE,Mr. M. M. GOSWAMI,Mr. Y. M. NAKHAWA

(A) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (1974), Ss.3(1), 7(1) - Order of detention - Delay in execution of order - Delay caused in executing the detention order itself is not fatal, but unexplained delay would vitiate the order of detention. 1992 Cri.L.J. 2363 - Rel. on. (Para 8)

(B) Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (1974), Ss.3(1), 7(1) - Order of detention - Delay in execution of order - Unexplained delay would vitiate the detention order - Merely saying that the detenu was absconding is not sufficient to uphold the validity of the detention order. JT 1998(4) SC 457 - Ref. to. (Para 9)

Cases Cited:
T.A. Abdul Rahman Vs. State of Kerala, AIR 1990 SC 225 [Para 7]
S.M.F. Sultan Abdul Kader Vs. Jt. Secy. To Govt. of India, JT 1998(4) SC 457 [Para 7,9]
Shri. Netaji Narayan Lotlikar Vs. State of Goa, 1992 Cri.L.J. 2363 [Para 8]
Shashikant Ramjidas Chawla Vs. State of Maharashtra, 2008 ALL MR (Cri) 3147 [Para 8]


JUDGMENT

B. H. MARLAPALLE, J.:- This petition filed under Article 226 of the Constitution prays for a writ of habeas corpus so as to quash and set aside the order of detention dated 2/8/2008 passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short "the COFEPOSA Act") issued against the petitioner's son - Shri. Mohideen Abdul Khader Mohamed Saliah, a resident of 82, Asadh Nagar, Aminjikarai, Chennai - 600 029.

2. The said detention order was served on the detenu on 20/10/2009 and the detention period of one year would expire on 19/10/2010. Thus the detenu has been under detention for more than nine months. The detenu had submitted his representations to the competent authorities on 6/11/2009, 16/11/2009 and 21/11/2009. The Advisory Board heard the detenu on 21/11/2009 and the confirmation order was issued by the State Government on 21/12/2009. This petition has been filed on or about 1/2/2010.

3. Though various grounds have been raised so as to challenge the detention order, only ground (c), which reads as under, has been pressed for by the learned counsel for the petitioner :-

"(c) The petitioner says and submits that there is a gross delay of nearly 14 months in executing the detention order and serving the same upon the detenu. Even though the order came to be issued on 02.08.2008, the said impugned order came to be executed and served upon the detenu belatedly on 20/10/2009. This is an inordinate delay which throws doubt in the genuineness of the satisfaction of the detaining authority. The detaining authority as well as the executing authorities have not taken any prompt, effective and immediate steps to execute the detention order. The detenu was every well available in his native place and doing his business. That both the abovesaid authorities have not taken any action to immediately execute the order as required by concerned law i.e. COFEPOSA Act. The authorities are required to disclose and explain what are the necessary steps taken for execution of the order to the satisfaction of this Hon'ble Court. The Sponsoring Authority has not even moved for cancellation of bail. No other steps under Section 7 of COFEPOSA Act, 1974 is taken. If any steps taken by authorities may be disclosed to this Hon'ble Court failing which the order vitiates. The order of detention is illegal and bad in law on the count of inordinate delay. The order of detention is liable to be quashed and set aside."

4. The detaining authority i.e. the Principal Secretary (Appeals & Security), Government of Maharashtra, Home Department, has filed affidavit-in-reply and in addition, the Joint Secretary, Home Department, Government of Maharashtra as well as the Assistant Commissioner of Customs (COFEPOSA Cell), Mumbai has filed the affidavit-in-reply. The Union of India has not filed any affidavit, nor the Executing Authority i.e. the Commissioner of Police, Chennai, has filed return.

5. The sole ground of delay (for more than fourteen months), which has been pressed for by the learned counsel for the petitioner, has been dealt with by the detaining authority in her reply in the following words,

"......It is stated that since the detenu was absconding hence, there was delay in executing the order of detention against the detenu. Hence, the detenu cannot take advantage of his own wrong. It is stated that all due and diligent efforts have been made by the Sponsoring Authority and the Executing Authority for executing the order of detention against the detenu. It is stated that action under Section 7(1)(b) was initiated against the detenu vide order dated 25/9/2008 and the action under Section 7(1)(a) was also taken on 16/1/2009. Hence, after due and diligent search the detenu was apprehended and arrested at Chennai on 20/10/2009. Hence, the detenu cannot take advantage of his own wrong......"

The Sponsoring Authority in its affidavit-in-reply, while dealing with the sole ground of attack to the order of detention, has only referred to the correspondence between the Joint Commissioner of Customs and Central Excise (P), Chennai, the Commissioner of Police, Chennai, Air Customs Superintendent (COFEPOSA Cell), Adjudication Cell and Air Customs Superintendent (Prosecution Cell). It has been further stated that on 24/12/2008, a letter was forwarded from Air Customs Superintendent (COFEPOSA Cell) to the Prosecution Cell for making an application for cancellation of bail. On 15/1/2009, a letter was addressed to the Assistant Commissioner of Customs (R & I), Chennai Customs for serving notice in the application for cancellation of bail passed by the learned Additional Chief Metropolitan Magistrate, 3rd Court, Esplanade, Mumbai on 3/1/2009. Admittedly, no such application was submitted for cancellation of bail before the learned Additional Chief Metropolitan Magistrate, 3rd Court, Esplanade, Mumbai, till the impugned order was executed on 20/10/2009.

It has been further stated that a letter dated 29/1/2009 was received from the father of the detenu i.e. the present petitioner to the Superintendent of Customs, Chennai which was translated in English and the petitioner had allegedly stated that he did not know the whereabouts of the detenu.

6. In the grounds of detention set out in support of the detention order, it is stated that at the Mumbai International Airport the detenu had arrived on 12/2/2008 by Thai Airways TG-317 and when all the passengers had cleared through customs, two trolleys with 8 pieces of baggage were lying abandoned near the conveyor belt and a discreet watch was kept over the said baggage. However, no passenger came forward and the custom officers tried to trace the owners of the said baggage, but could not find anybody. Suspecting that there could be some contraband in the baggage, the same was thereafter screened and having confirmed that there were some contraband items in the baggage, search was made of the persons and the detenu was found hiding in the toilet situated near the conveyor belt. On interrogation, he and Shri. Mohamed Firthows Ahamad Saheed identified four pieces of baggage each from the two trolleys earlier found abandoned. The detailed examination of checked-in and hand baggage resulted in the recovery of 400 mobile phones and accessories collectively valued at Rs.26,49,050/- (CIF) and Rs.39,37,800/- (LMV). The 400 mobile phones were seized. The detenu was arrested and released on bail 14/02/2008.

7. In the case of T.A. Abdul Rahman Vs. State of Kerala and ors. [AIR 1990 SC 225], the order of detention was set aside on the ground that the detaining authority had failed to explain the long delay in securing the arrest of the detenu after three months from the date of the passing of the detention order and the non explanation threw a considerable doubt on the genuineness of the subjective satisfaction of the detaining authority, thereby vitiating the validity of the order of detention. In the case of S.M.F. Sultan Abdul Kader Vs. Jt. Secy. To Govt. of India and ors. [JT 1998(4) SC 457], the detention order was passed under Section 3(1) of the COFEPOSA Act on 14/3/1996 and it was served on 7/8/1997. The Supreme Court considered the issue of delay in serving the detention order and noted that the Joint Secretary did not explain why no attempt was made from 14/3/1996 to 25/4/1996 to apprehend the detenu and put him under detention. It further noted that no attempt was made to see that the detenu was immediately apprehended and only once in a month the police had tried to find out the petitioner. It was also not stated where they looked for him and what inquiries were made to find out his whereabouts. The Joint Secretary himself had not made any efforts to find out from the police authority as to why they were not able to apprehend the petitioner and no material was produced on the basis of which it could be said that the police authorities had made reasonable efforts to locate the detenu and apprehend him and yet they were not successful in finding him out. There was also no material to show that the detaining authority had made any serious attempt during the entire period of delay to find out that the detention order was executed or not. For all these reasons, it was held that the delay in execution of the detention order remained unexplained and, therefore, the detention order was set aside.

8. It is thus clear from a catena of decisions of the Supreme Court that the delay caused in executing the detention order by itself is not fatal, but unexplained delay would vitiate the order of detention and the same was the view taken by this court in the case of Shri. Netaji Narayan Lotlikar Vs. State of Goa and anr. [1992 Cri.L.J. 2363] and Shashikant Ramjidas Chawla Vs. The State of Maharashtra and ors. [Criminal Writ Petition No.349 of 2008 unreported decided on 4/8/2008 (since reported in 2008 ALL MR (Cri) 3147)].

9. In the instant case, as noted earlier, there is no record from the Chennai Police Commissioner that any attempt was made in the presence of the panchas to serve the detention order and such a report was not received either by the Sponsoring Authority or the Detaining Authority. At no point of time an application was submitted before the learned Additional Chief Metropolitan Magistrate to get the detenu's bail cancelled. Though action under Section 7(1)(b) as well as Section 7(1)(a) of the COFEPOSA Act was taken by the detaining authority, as is clear from the record, no attempt was made, worth the name, to show that the said action was intimated to the detenu or sought to be intimated either by publication in local newspaper or by pasting a copy of the orders passed by the detaining authority in that regard on the house of the detenu. The purported letter dated 29/1/2009 claimed to have been addressed by the present petitioner to the Chennai Police appears to be merely his statement recorded by the police when they claimed to have visited him to serve the detention order and that such a statement is not supported by any witnesses' presence at the spot or any panchanama was drawn. Merely saying that the detenu was absconding is not sufficient to uphold the validity of the detention order. The law laid down by the Apex Court in the case of S.M.F. Sultan Abdul Kader (Supra) is squarely applicable to the facts of the present case. We have gone through the entire file placed before us and we are satisfied that there is no material to explain the delay caused in execution of the impugned detention order and it is seen from the record that on 21/2/2009 the Under Secretary to the Government of Maharashtra, Home Department, addressed a letter to the Additional Commissioner of Customs (COFEPOSA Cell), Mumbai, pointing out that the detention order was not served, no intimation was submitted to the detaining authority as to whether an application for cancellation of bail granted to the detenu was submitted before the concerned court and no details were provided as to whether the detenu was absconding. It appears that only after this letter followed by another letter dated 2/3/2009, the Sponsoring Authority approached the Commissioner of Police, Chennai, who sent the letter dated 22/4/2009. We are, therefore, satisfied that the detention order is unsustainable and it deserves to be quashed and set aside solely on the ground of unexplained delay of more than fourteen months in executing the detention order.

10. Hence, the petition succeeds and the same is hereby allowed. The impugned order of detention dated 2/8/2008 is quashed and set aside. It is directed that the detenu - Shri. Mohideen Abdul Khader Mohamed Saliah be released forthwith unless required in connection with any other criminal case. Rule is made absolute accordingly.

Petition allowed.