2009 ALL MR (Cri) 1070
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BILAL NAZKI AND A.A. KUMBHAKONI, JJ.
B. M. Abdul Rahiman @ Bachu Vs. Anna Dani & Ors.
Criminal Writ Petition No.554 of 2008
14th August, 2008
Petitioner Counsel: Shri. V. V. GANGARDE
Respondent Counsel: Mrs. S. D. SHINDE
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (1974), S.3(1) - Order of detention - Delay in execution of order - Consequence - Petitioner detained with a view to prevent him in future from smuggling goods - Detention order served upon the petitioner only after about two months - Petitioner already in custody when detention order was issued - Explanation offered by respondents in regard to delay caused in executing detention order, not satisfactory - Held, there was gross and inordinate delay in executing the order of detention - Order of detention, hence, liable to be quashed and set aside. (Paras 6, 13, 14)
A. A. KUMBHAKONI, J.:- This Habeas Corpus petition is filed challenging a detention order issued under section 3(1) of the Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "the said Act" for the sake of brevity). The order of detention directs that the detenu-petitioner be detained under the said Act with a view to prevent him in future from smuggling the goods. The order of detention is dated 29th August, 2007 and has admittedly been served on the detenu only on 15th November, 2007 i.e. after a period of about two and a half months.
3. The order of detention is impugned only on two grounds. The first ground is obviously that a gross and inordinate delay has been caused in executing the order of detention and the second ground is that there is non-application of mind on the part of the detaining authority in issuing the detention order, inasmuch as, there is sharp discrepancy between the grounds of detention accompanying the detention order and the reasons set out in the detention order for detaining the detenu.
4. In view of the nature of challenge and the aforesaid only two grounds of attack, we refrain ourselves from detailing out herein the facts of this case and the grounds of detention, the same being totally irrelevant and inconsequential for delivering this judgment.
5. In the beginning we take up for our consideration the aforesaid first ground whereby it is contended by the petitioner that gross and inordinate delay has been caused in execution of the detention order which, by itself, is fatal requiring us to quash and set aside the detention order. It will be beneficial to set out hereunder the relevant chronology of events which is not in dispute.
|6-1-2007 ||: || |
The detenu was arrested in connection with an alleged offense committed by the detenu of smuggling into our country ‘fake Indian Currency’;
|16-4-2007 ||: || |
Bail was granted to the detenu subject to certain terms and conditions, including that the detenu should report to the office of the sponsoring authority i.e. Director of Revenue Intelligence (DIR);
The impugned order of detention was issued;
|13-11-2007 ||: || |
For the first time the detenu availed of the bail which was granted to the detenu on 16th April, 2007;
|14/15-11-2007 ||: || |
In terms of one of the conditions of bail, the detenu reported to the office of the sponsoring authority i.e. DIR, when the detention order was executed.
6. The aforesaid chronology of events demonstrates that the detenu was arrested and was in custody from 6th January, 2007 to 13th November, 2007. Though the detenu was granted bail, in the mean while, as far back as on 16th April, 2007, for whatever reasons that are not relevant for our purpose, the detenu did not or could not avail of the bail till 13th November, 2007. In the mean time, the impugned order of detention was issued on 29th August, 2007.
Thus, it is crystal clear that when the detention order was issued by the detaining authority on 29th August, 2007, the detenu was very much in the custody. It is most crucial and pertinent to note that even after the issuance of detention order dated 29th August, 2007, the detenu continued to be in the custody till 13th November, 2007. It obviously goes without saying that even after issuance of detention order for two and a half months the detenu remained readily available for service of detention order for a continuous period of one and a half month i.e. till 13th November, 2007 when the detenu availed of the bail and was consequently released from the custody. It was, thus, very much possible for the detaining authority and/or executing authority to execute the detention order dated 29th August, 2007 at any moment/time on the detenu till 13th November, 2007. It could have been executed even immediately on its issuance. However, the detention order was executed only on the very next day i.e. 14th November, 2007 when the detenu availed of the bail and was released from the custody.
7. Three affidavits-in-reply have been filed on behalf of the respondents. Only two affidavits are relevant inasmuch as the aforesaid first ground of attack tried to be made out by the petitioner is concerned, as these two affidavits try to explain the delay that has been caused in the execution of the detention order. These affidavits are of the detaining authority dated 21st July, 2008 and of the sponsoring authority dated 25th July, 2008.
8. The petitioner has tried to make out the aforesaid first ground in paragraph no.7(ii) of the writ petition. The reply of the detaining authority to the aforesaid ground can be found in paragraph 7 of its affidavit, the relevant portion whereof reads thus :-
"7. ... ... ... ... I state that I had issued the order of detention on 29.8.2007 and while issuing the order of detention, I was aware that the detenu was though granted bail he did not avail the same and as such he was in judicial custody. I say that since the detenu was ordinary resident of Kerala, therefore, the order of detention was sent on the address as mentioned in the grounds of detention as that of Kerala. I state that therefore, the order of detention was sent to the Commissioner of Police Ernakulam District, Kerala. I state that after the detenu availed the bail and he reported the office of the Sponsoring Authority i.e. DRI, pursuant to the conditions imposed while granting bail, thereafter, the intimation of the same was given to my office, therefore, the Commissioner of Police, Ernakulam, District Kerala was asked to execute the order of detention and accordingly the same was executed on 15.11.2007 upon the detenu, by the Kerala Police, hence, it is denied that there is a delay in executing the order of detention upon the detenu."
"6. With reference to para 7(ii) of the petition, I state that the Sponsoring Authority had informed the Detaining Authority that the detenu was in judicial custody and he did not avail of the bail. The awareness is very much reflected in the grounds of detention. However, since the detenu was already resident of Kerala, the order of detention, grounds of detention and other documents were sent for service on the address of the detenu that of his native place. I state that the order of detention, therefore, could not be executed. However, ultimately, when the detenu became free citizen, the sponsoring authority informed the Detaining Authority that the detenu had availed the bail and he was in the office of the Sponsoring Authority. Thereafter, the order of detention was executed upon him."
10. Thus, the explanation offered by the respondents in regard to the delay caused in executing the detention order, is that the detenu is a permanent resident of State of Kerala and that therefore, the order of detention in issue in this petition was sent for execution to the Commissioner of Police from the State of Kerala within whose jurisdiction the detenu permanently resides.
"B. M. Abdul Rahiman @ Bachu, Plot No.99, Khairna, Mavelipuram, Kakkanad, PO Ernakulum, Kerala-682 030."
This fact is also not disputed by the Petitioner. However, the aforesaid explanation given by these affidavits does not appeal to us as legal/valid and justifiable. In our view, only because the detenu is a permanent resident of State of Kerala, it cannot be said that the detenu could be served with the detention order only through the Police in-charge of the area where the detenu permanently resides. It is certainly not the requirement of law that a detenu to be detained under the law of preventive detention can be served with the order of detention only and only by or through the police having jurisdiction over the place of permanent residence of the detenu. In our view it was certainly open, nay, the detaining/executing authority was duty bound in law in executing the order of detention i.e. effect the service of the order of detention on the detenu at the earliest possible opportunity whenever and wherever the detenu is available. The contents of the aforesaid two affidavits (especially the one extracted hereinabove) clearly demonstrate that the detaining authority and the executing authority were fully aware of the fact that for the service of the detention order the detenu was very much available in the State of Maharashtra itself being in the custody. In our view nothing could have prevented the detaining and/or executing authority in serving the order of detention directly on the detenu while the detenu was in the custody in the State of Maharashtra without the intervention of or involving the police of the State of Kerala.
12. From the aforesaid extracted portion of both the affidavits in reply filed by the respondents, it is very clear that when the detenu reported the office of the DRI, in compliance with the conditions imposed by the order granting bail to the detenu, an intimation was issued by the office of the DRI to the Commissioner of Police, Ernakulum (Kerala) to execute the order of detention. Thus admittedly, ultimately, the order of detention has been executed i.e. served on the detenu in the State of Maharashtra only, though through the Police of the State of Kerala.
13. It is very difficult to believe that it was a great coincidence that on the very first day when the detenu was set free from the custody that he was again required to be detained on account of the order of detention in issue. Obviously, the aforesaid chronology of events set out at the threshold of this judgment does give an impression as if the detaining/executing authority was anxiously waiting for the actual release of the detenu from the custody for execution of the detention order and that if the detenu was not to avail of the bail granted to him for some more time/period the order of detention would not have been executed on the detenu on the day on which it has been in fact served on the detenu.
14. Therefore the inordinate and gross delay that has been 'caused' (and not just 'occurred') in execution of the order of detention solely on account of the aforesaid course of action undertaken by the detaining authority and/or executing authority cannot be acceptable as a valid, legal and justifiable explanation/reason. We, therefore, hereby reject the explanation offered by the respondents for the delay caused by them in executing the order of detention. In absence of any other reason/ground we, therefore, hold that the respondents have caused an inordinate and unjustifiable delay in executing the order of detention in issue and that the respondents have miserably failed to offer any legal, valid and justifiable explanation for such a delay caused by them in execution of the order of detention. Consequently, we hold that the order of detention is liable to be quashed and set aside on this ground alone viz. that the same is executed with inordinate and unjustifiable delay.
15. The other ground tried to be made out by the petitioner is that the order of detention has been issued without application of mind, inasmuch as there is sharp variance between the order of detention and the ground of detention given in support of such an order. This ground is tried to be made out by pointing out to us that the order of detention reads thus:-
"... ... that with a view to preventing him in future from smuggling goods, it is necessary to make the following order................"
"9. The said S/Shri. Mohammed Rasheed Kunju, Abdul Rahman Kunju @ Bina Varghese, Andumai Velikoth and you have actively engaged in the smuggling activities by transporting, dealing and importing the said counterfeit Indian currencies by concealment and misdeclaring the details. The attempted smuggling of these goods and your acts and omissions have rendered the goods liable for confiscation under Section 111(d) of the Customs Act, 1962 and therefore you have thus, engaged yourself in the activity of smuggling.........."
16. Particularly on the basis of the aforesaid extracted portions, it is contended on behalf of the Petitioner that though the order of detention speaks about "smuggling", the grounds of detention attribute a specific role to the detenu viz. that of "transporting, dealing and importing". The ground of detention does not attribute any role to the detenu of "smuggling" which is the only reason why the order of detention has been issued. The learned counsel appearing on behalf of the petitioner in support of his contention relied on the judgment delivered by a Division Bench of this Court dated 15th April, 2008 in Writ Petition No.2425 of 2007. In his submission that was a case of co-detenu and that in that case the Division Bench of this Court has accepted an identical contention raised on behalf of the petitioner therein, as has been raised in the present case also.
17. The learned APP contested the aforesaid ground by contending that the ground of detention, if read as a whole, clearly make out a case that the detenu was part and parcel of an entire operation which amounts to "smuggling" of 'fake Indian Currency'. In her submission, the aforesaid judgment delivered by the Division Bench of this Court in Writ Petition No.2425 of 2007 in regard to a co-detenu will not apply to the present case, inasmuch according to her the role of the detenu in that case and the role of the detenu in this case in regard to the entire illegal operation (which is subject matter of the detention order), are different.
18. In our view, it will not be necessary for us to deal with and decide the correctness of this second ground of attack. We have already accepted the first ground raised by the petitioner hereinabove and we are satisfied, therefore, that the detention order cannot be sustained and is liable to be quashed and set aside on the aforesaid first ground itself.
19. We, therefore, hereby allow the writ petition and quash and set aside the order of detention dated 29th August, 2007 bearing No.PSA-1207/CR-126(4)/SPL-3(A), which is Exhibit-A to this petition. The detenu shall be set at liberty forthwith, if not required in any other case.