Basheer A. Abdulla, An Indian ... vs The State Of Maharashtra Through ...
2002 Latest Caselaw 386 Bom

JUDGMENT

S.K. Shah, J.

1. The petitioner, who is the brother of detenu Shri Mohammed Kunhi Abdulla, has impugned the order dated 23.6.2000 passed by Respondent No.2, the Secretary to the Govt. ofMaharashtra, Home Dept. (Preventive Detention), and Detaining Authority, Mantralaya, Mumbai under subsection 1 of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "the COFEPOSA Act")

2. The incident on the basis of which the detention order was passed is, in short, as under :- On 12.01.2000 the officers of Air Intelligence Unit, Chhatrapati Shivaji International Airport, Mumbai intercepted the detenu, who, on arrival at the Air Port by Air Flight No.AI 772, had came to the counter and misdeclared the contents of his baggage and declared value of the goods worth Rs.7000/- only. His baggage were examined and he was found to be carrying 227 Panasonic Mobile phone, 227 batteries and 229 AC adaptors, totally valued Rs.13,63,000/-. The same were seized as they were illegally smuggling by the detenu. The detenu was arrested on 12.1.2000 and produced before the Magistrate on 13.1.2000. He came to be released on bail on 20.1.2000.

3. The order of detention along with the grounds of detention, which are annexures A and B respectively, were served on the detenu on 4.10.2001.

4. The detention order is challenged on various grounds pleaded in the petition in para 4(i) to 4(ix). Since the learned counsel appearing for the petitioner Mr.Maqsood Khan has pressed before us only one ground namely Ground No.4(iii), we are not adverting to other grounds.

5. Ground No.4(iii), in short, is as under:-

That not only there is a delay in issuing the impugned order of detention against the detenu, but there is further delay of 16 months in execution of the order of detention against the detenu; that it was incumbent on the part of the detaining authority to satisfy this Honble Court as to when and what steps were taken by the detaining authority to execute the impugned order of detention against the detenu at the earliest; that no efforts whatsoever were made by the detaining authority to expeditiously execute the impugned order of detention against the detenu; that no application for cancellation of bail of the detenu was made by the detaining authority or the sponsoring authority till the detenu voluntarily surrendered before the learned Additional Chief Metropolitan Magistrate, 3rd Court, Esplanade, Mumbai on 11.9.2001; that it is further incumbent on the part of the detaining authority to satisfy this Honble Court as to whether any action under Section 7(1)(a) and 7(1)(b) of the COFEPOSA Act was initiated against the detenu; that failure on the part of the detaining authority to so satisfy this Honble Court, the subjective satisfaction arrived at by the detaining authority be held to be not genuine and as a result thereof, the impugned order of detention be held to be vitiated.

6. This ground has been replied to in paragraph 7 of the Written of detaining authority. In substance the reply is as under :-

That the delay, if any, in executing the order of detention is due to non availability of the detenu; that the detenu cannot take advantage of his own wrong; that after the detention order was issued on 23.6.2000, on the same day, it was forwarded along with all the documents with its translation in Malayalam language, which is a language known to the detenu, to the Secretary to the Government of Kerala for execution as the detenu in his statement had stated that his permanent address was in Kerala; that a copy of letter dated 1.7.2000 was received from the Additional Chief Secretary to the Government of Kerala informing that the order of detention was forwarded to the Superintendent of Police, Kozikode who informed that there was no post office by name Alampadi in Calicut District and, therefore, the documents were returned. Subsequently, there was further correspondence between the detaining authority and the executing authority in Kerala indicating that the efforts were made to trace out the detenu on the given address where the father of the detenu informed that the detenu had visited the house 8 months back and presently the detenu was somewhere in Mumbai. A letter to that effect dated 26.12.2000 was received by the detaining authority. Thereafter on 16.3.2001 a letter was sent to the Home Department, Mantralaya, Mumbai, intimating the information received from Kozhikode. Thereafter on 20.7.2001 orders were passed under Section 7(1)(a) and (b) under the COFEPOSA Act against the detenu. The copies of the orders were forwarded to the sponsoring authority.

7. The reply filed by the Sponsoring authority contents Para-6 of their written, which in short is as under :-

That the delay in executing the detention order was due to non-availability of the detenu; that the detention order dated 23.6.2000 was sent to the Secretary, Government of Kerala as the permanent address of the detenu was in Kerala. The copy of the detention order was received by Cofeposa Cell on 3.7.2000; that thereafter on 6.7.2000 a telex was sent to Assistant Commissioner of Customs, Kozhikode, Kerala to make discreet enquiry for apprehending the detenu; that on 9.8.2000 a letter was addressed to the Superintendent of Customs, Prosecution Cell, Mumbai to intimate the Cofeposa Cell as to whether the detenu has complied with the conditional bail order, and whether an application for cancellation of bail and forfeiture of bail bond or cash deposit was done; that on 16.8.2000 a letter was received from the Home Department, Mantralaya, Mumbai intimating that there is change in the address of the detenu; that on 17.8.2000 a letter was addressed to the Assistant Commissioner of Customs, Kozhikode, Kerala intimating the change of address. It appears that subsequent thereto the correspondence was ensued between the Cofeposa Cell, Mumbai and the concerned Customs Office of Kerala wherein the Cofeposa Cell, Mumbai pursued their counter part in Kerala to trace out the detenu, but to no avail. Lastly a letter dated 19.9.2001 was received in the Cofeposa Cell on 21.9.2001 from the Senior P.I. PCB, CID intimating that on 11.9.2001 the detenu had surrendered before the Additional C.M.M. and by the order of the Court the detenu was detained in judicial custody. It is thereafter that the detention order came to be served on the detenu on 4.10.2001.

8. We have heard learned counsel Mr.Maqsood Khan appearing for the petitioner and learned APP Miss.A.R.Kamat appearing for the respondents.

9. Learned counsel Mr.Maqsood Khan, appearing for the petitioner, vehemently contended that the the Customs authorities had recorded the statement of the detenu on 9.2.2000 under Section 108 of the Customs Act wherein the detenu had given his temporary address of Mumbai being Safar Lodge, Room No.103, Zakaria Mogil Street, Mumbai along with permanent address of Kerala. He further pointed out that the address of Room No.165/5, Vallabhabhai Patel Nagar, B, Block, L.L. Marg, Mumbai which was given in the pass port the detenu had clearly stated that he was not staying on that address. Mr.Maqsood Khan has submitted that no efforts were made to search the detenu on the aforesaid addresses of Mumbai for the purpose of serving the detention order. He further submitted that it was to the knowledge of the detaining authority that the detenu was released by the order of the Magistrate dated 20.1.2000 on a conditional bail and the conditions were that the detenu shall not leave the jurisdiction of Mumbai and shall not also leave India without prior permission of the Court. He therefore contended that the detenu was very much in Mumbai in obedient to the conditions imposed on him. But neither the detaining authority nor the sponsoring authority had attempted to search the detenu on the known addressed in Mumbai and attempted to serve the detention order. He further submitted that the efforts of tracing the detenu on his permanent address in Kerala were not at all sincere and they were fruitless as to the knowledge of the detaining authority, the detenu was expected to be in Mumbai. He also submitted that the detenu was bound to be in Mumbai pursuant to the conditional bail order. Therefore, his submission is that the delay of 16 months in execution of the order was totally unexplained and, therefore, there is no satisfaction on the part of the detaining authority and thus, the detention order was bad in law and liable to be vitiated and set aside.

10. Learned APP Miss Kamat appearing for the respondents tried to explain as to how the detaining authority and sponsoring authority had explained the delay of 16 months.

11. At the out set we mention that the delay of 16 months is not at all satisfactorily explained either by the detaining authority or by the sponsoring authority. It is clear from the affidavit of detaining authority as also of the sponsoring authority that they had made no efforts to search the detenu in Mumbai on the two known addresses of the detenu. This was even after having known to the detaining authority two addresses and also having known that in all probabilities he was likely to be in Mumbai as he was released on bail by the learned Magistrate on the condition of not to leave the jurisdiction of Mumbai and, also India. This itself is sufficient to show non-application of mind on the part of the detaining authority. The delay of 16 months is, therefore, not at all explained and, therefore, there is non-application of mind on the part of the detaining authority. It vitiates the detention order. Hence the petition is allowed. The detention order passed on 23.6.2000 against the detenu is quashed and set aside. Detenu shall be set at liberty forthwith if not required in any other case. Rule made absolute in above terms.