Ashok Kumar vs The State Of Maharashtra Through ...
2003 Latest Caselaw 453 Bom

JUDGMENT

D.G. Deshpande, J.

1. Heard Smt. Ansari for the petitioner and Mr. Mhaispurkar, APP, for the State.

2. The petition has been filed by the brother of detenu and the name of the detenu is Naresh Kumar Jagdish Lal. He has been detained by an order dated 19.9.2000 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (herein after referred to as "the COFEPOSA Act"]. The detention order was served upon him on 5.10.2002.

3. The detention has been challenged on number of grounds. However, Smt. Ansari restricted herself to Ground Nos. (v) and (vii) jointly as they lead to one aspect only; Ground No. (vi); Ground No. (ii) and Ground No. (xi).

4. Ground Nos. (v) and (vii), in short, are about delay in passing the detention order and serving the detention order. The detention order was issued on 19.9.2000. It was served on 5.10.2002 after a lapse of about two years. According to the petitioner, assuming without admitting that the detenu was not available for effecting the service of the detention order, the detaining authority should have applied for cancellation of bail and for forfeiture of the amount of bond etc. and, should have taken action under Section 7 of the COFEPOSA Act immediately without any delay. It was pointed out that the detenu, who was granted bail but was subsequently shown as absconding, surrendered before the Additional Chief Metropolitan Magistrate, 3rd Court, Esplanade on 20.8.20002. His bail was cancelled and he was taken into custody. But even then the order of detention was served upon him on 5.10.2002. Therefore, according to Smt. Ansari, firstly there is a delay in passing the detention order and, secondly, there is a delay in executing the detention order and serving it upon the detenu.

5. In order to appreciate this submission, it is necessary to go to certain aspects of the grounds of detention which is Annexure 'B' while detention order is Annexure 'A' of this petition. On 5.2.2000 the officers of Directorate of Revenue Intelligence (DRI), Mumbai got information that five passengers were likely to go Air India Flight for going to Dubai and they were carrying huge amount of foreign currency concealed in their person as well as in their baggage. Pursuant to this information, the detenu and his associates were intercepted. The search of their person and baggages was taken and all of them were found carrying foreign currency equivalent to Rs. 34,22,037/- all the particulars in this regard have been given in grounds of detention and, we are merely summarized them]. Their statements were recorded under Section 80 of the Customs Act. The detenu and others were arrested on 5.2.2000 itself. They applied for bail before the Magistrate who granted bail to them on 6.3.2000 by imposing condition that they should attend the office of DRI for a period of 15 working days. The detenu did not attend the said office as directed by the Magistrate in the bail order, and therefore, the application for cancellation of bail was filed against the detenu on 31.3.2000. Thereafter the detenu was continuously absconding. Since the detention order could not be served upon the detenu because he was absconding, the action under Section 7(i)(a)(b) of the COFEPOSA Act was initiated against him and was taken on 23.4.2001. But it was of no use and the detenu thereafter on his own accord surrender before the Additional Chief Metropolitan Magistrate on 20.8.2002 and then order was served upon him on 4.10.2002.

6. Smt. Ansari further contended that even though it is accepted for the sake of argument that the detenu was absconding and was not available, the detention order should have been passed without any delay and even action under Section 7(i)(a)(b) of the COFEPOSA Act should not have been delayed. Further, according to her, when the detenu surrendered himself before the Magistrate on 20.8.2002 then order should have been served upon him immediately without any delay, and therefore, according to her, the delay in issuing detention order, delay in taking steps under Section 7(i)(a)(b) of the COFEPOSA Act are vital and, the detention order is liable to be quashed.

7. As against this, it was contended by Mr. Mhaispurkar, the learned APP for the State, that as per the explanation given by the detaining authority in their affidavit, the incident of smuggling foreign currency took place on 5.2.2000; bail was granted to the detenu on 6.3.2000 and thereafter the detenu was absconding; the application for cancellation of bail was immediately moved on 31.3.2000 even before the detention order was passed. Mr. Mhaispurkar further pointed out from the said affidavit that from the date of application for cancellation of bail dated 31.3.2000 till 20.8.2002, when the detenu surrendered himself, the detenu was not available nor his whereabouts could be traced, even though the papers were sent to Punjab where the detenu had been residing as per the address given by him. According to Mr. Mhaispurkar, when the detenu himself was absconding right from the date of granting bail to him, when the detenu did not attend the office of DRI as per the condition imposed by the Magistrate, and, when the detenu could not be found at his place in Punjab for two years and could only be found after his surrender on 20.8.2002, then detenu cannot be permitted to make any grievance about the delay in passing detention order and in serving the same upon him. Further according to Mr. Mhaispurkar, the detaining authority in its affidavit dated 13.1.2003 has given satisfactory explanation about the delay in paras 11 and 13 regarding objections i.e. the grounds of detention (v) and (vii) and, therefore, considering the aforesaid facts and explanation, the contention of Smt. Ansari was liable to be rejected.

8. The second ground that was raised by Smt. Ansari was Ground No. (vi), according to which, it was incumbent upon the detaining authority to give to the detenu the copy of the bail application dated 21.2.2000 filed before the Additional Chief Metropolitan Magistrate on which bail order was passed. Smt. Ansari contended that the said bail application was a vital document which would have affected subjective satisfaction of the detaining authority and, therefore, the sponsoring authority should have furnished the copy of the bail application to detaining authority and, the detaining authority should have also furnished the copy of the same to the detenu and since this has not been done, the right of the detenu to make effective representation is affected because bail application dated 21.2.2000 is a vital document. She also contended that no consideration of the aforesaid vital document viz. bail application has impaired the subjective satisfaction of the detaining authority and it will also amount to non-application of mind thereby vitiating the detention order.

9. As against this, it was contended by Mr. Mhaispurkar that the detenu has filed two bail applications before the Additional Chief Metropolitan Magistrate. First bail application was filed by the detenu on 14.2.2000, but on that day nothing happened and the matter was adjourned and, it was on 21.2.2000 that the detenu filed second bail application upon which an order of bail came to be passed. Mr. Mhaispurkar pointed out that the copy of the first bail application was supplied to the detenu and, the second bail application dated 21.2.2000 was not at all vital document, that was not relied upon by the detaining authority and, therefore, question of supplying the same to the detenu never arose. Further according to him, the bail application dated 21.2.2000 is not a document which would have either may affect the subjective satisfaction of the detaining authority. Therefore, according to him, non-placement of the document i.e. bail application before the detaining authority and non supplying thereof to the detenu does not affect the detention order in any manner whatsoever.

10. Smt. Ansari further contended on the basis of Ground No. (ii). It is about the delay in issuing detention order by six months. According to her, the alleged incident of smuggling huge foreign currency out of India occurred on 5.2.2000. The crucial part of investigation was over on 6.3.2000 and detention order was came to be passed on 19.9.2000 and this delay of six months has snapped the live link between the activities of the detenu and the detention order. According to her, this delay is an inordinate, inexcusable and colossal delay and loss of time. The detention order is also stale and punitive in character rather than preventive in nature. She also contended that the explanation about the delay given by the detaining authority and sponsoring authority is not at all satisfactory.

11. As gainst this, it was contended by Mr. Mhaispurkar that firstly there is no delay; secondly the time taken in passing the detention order is properly explained in the affidavit; thirdly the live link between the activities of the detenu and the detention order is not snapped; fourthly the detenu was absconding and was not available for two years, therefore, he cannot be permitted to take advantage of his own wrong and; lastly the delay in issuing detention order under COFEPOSA was not fatal for which he relied upon the judgment the Division Bench of this Court to which we are referring the same hereinafter.

12. Lastly Smt. Ansari on the basis of Ground No. (xi) contended that when the representation, according to the detenu, was decided by the State Government, it was decided after rejection of representation by the detaining authority and, since the papers were processed to be through the detaining authority, the State Government's rejection was influenced by opinion of the detaining authority and, therefore, it was not an independent consideration by the State Government. The State Government was influenced by the rejection of representation by the detaining authority and this vitiates the detention order.

13. On the other hand it was contended by Mr. Mhaispurkar that the State Government has independently considered the representation and, merely because the rejection by State Government came after rejection by detaining authority, it cannot be said that the State Government was influenced by opinion of the detaining authority. He further contended that proper explanation in this regard is given in the affidavit para 6, page 90, wherein as per the procedure the papers were required to be placed through the detaining authority and therefore no fault could be found with the rejection by the State Government in that regard.

14. Smt. Ansari placed reliance on the following authorities in support of her contentions.

[1] 1992 Cri.L.J. 2363, Shri Netaji Narayan Lotlikar v. State of Goa and Anr.;

[2] 1998 All MR (Cri) 928, Ismail Shaikh Ali v. The State of Maharashtra and Ors.

[3] Abdul Sathar Ibrahim Manik v. Union of India and Ors.

[4] 1999 All MR (Cri) 1571, Smt. Zeenat Anjum Memon v. The State of Maharashtra;

[5] 2001 All MR (Cri) 502, Naseem Imran Mohammed Siddik v. The State of Maharashtra and Ors.;

15. As against this, Mr. Mhaispurkar has placed reliance on the following authorities:-

[1] Union of India v. Manish Bahal alias Nishu --

[2] Bhawarlal Ganeshmalji v. State of Tamil Nadu and Ors. It is followed in unreported judgment in W.P. 470 of 2002.

[3] 1998 (2) Mh.L.J. 496, Rafiq Abdul Karim v. Rajendra Singh, It is followed in Unreported Judgment in W.P. 464 of 2002.

16. In the judgment of this Court reported in 1992 Cri.L.J. 2363, Shri Netaji Narayan Lotlikar v. State of Goa and Anr. the detention order was made on 3.5.1990, it was served on the detenu on 19.6.1991 after a lapse of about 13 months; and this ground of delay was pressed into service. Similarly from para 5 of the said judgment it also appears that it was contended by the detenu that even if the detenu was absconding at the time of passing of detention order, the action under Section 7 of the COFEPOSA Act should have been taken without unnecessary delay for which there was no explanation. Both the contention were accepted by the Court and, the detention order was quashed. So far as second ground as stated above is concerned, the Court found that the counter affidavit is too vague and general and, the documents which were produced at the stage of arguments also did not show as to what the police were doing from July 24, 1990 to November 18, 1990. The petition was, therefore, allowed on both the counts viz. that no action for the explanation for the delay and, that there is delay in resorting to Section 7 of the COFEPOSA Act.

17. Smt. Ansari relied upon another judgment reported in 1998 All MR (Cri) 928, Ismail Shaikh Ali v. The State of Maharashtra and Ors. The ground raised in that petition was that the detention order was belatedly served upon the detenu i.e. after seven months after the offending seizure was made and, there was delay in initiating the proceedings under Section 7(1)(b) of the COFEPOSA Act. The Court considered the affidavit and particulars of the steps taken by the authorities in executing the detention order and, the Court found that there was an in action on the part of the detaining authority between the period 27.1.1997 and 30.4.1997 and no steps were taken for cancellation of bail or for action under Section 7(1)(a) of the COFEPOSA Act, and therefore, the Court upheld the contention and quashed the detention order.

18. Another Judgment relied upon by Smt. Ansari was of this Court reported in 2001 All MR (Cri) 502, Naseem Imran Mohammed Siddik v. The State of Maharashtra and Ors.; There was a delay of three years because the detention order was passed on 16.9.1997 and it was served upon the detenu on 16.8.2000 after a period of almost three years. In that case the detenu was not available. There also the Court considered different affidavits filed by different authorities and found that there were unexplained gaps during this period of three years for which there is no satisfactory explanation. This is to be found in para 8 of the said judgment. The gaps were found between 25.9.1997, 10.10.1997; 22.10.1997 to 21.11.1997; 21.11.1997 to 6.4.1998; 6.4.1998 to 8.10.1998; 8.10.1998 to 7.12.1998 and 11.12.1998 to 16.8.2000. In that case the steps under Section 7 of the COFEPOSA Act were taken, but the court was not satisfied about the explanation on both these objections and, therefore, quashed the detention order.

19. As against this the learned APP Mr. Mhaispurkar has relied upon the judgment of the Supreme Court Bhawarlal Ganeshmalji v. State of Tamil Nadu and Ors. it is followed in unreported judgment in W.P. 470 of 2002. In that case detention order was made on 19th December 1974. The order of detention could not be executed immediately as the detenu was absconding and could not be apprehended despite a proclamation made pursuant to Section 7 of the COFEPOSA Act. He surrendered before the Commissioner of Police on 1st February 1978 and, thereafter the order of detention was served upon him. The detenu-petitioner has challenged the detention order on the ground of delay. The Supreme Court while rejecting the said contention held in para-6 thus:-

"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."

In that case also the detention order was passed on 19-12-1974, the detenu was found absconding, action under Section 7 of the COFEPOSA Act was taken, he was proclaimed as a person absconding; and his photographs were published in English daily newspaper. But despite of all the necessary efforts the detenu could not be arrested until he surrendered on 1-2-1973 and, therefore, in that background of the matter the Supreme Court held that "We do not have any hesitation in overruling the submission of Shri Jethmalani based on the delay in execution of the order of detention."

20. In our opinion this judgment of the Supreme Court is absolutely clear and squarely applies to the facts of the present case. In the case before us also the detention order could not be served because of the recalcitrant and refractory conduct of the detenu in evading arrest. Here also he was absconding and application for cancellation of bail was made before the Magistrate even before issuance of detention order. Thereafter action under Section 7 of the COFEPOSA Act was taken. But even then the detenu could not be arrested till he surrendered himself. It is, therefore, a clear case of recalcitrant and refractory conduct of the detenu and he could not be permitted to take advantage of his own wrong. We therefore reject the contention of Smt. Ansari about the delay in execution of detention order. Similarly, her contention that the action under Section 7 of the COFEPOSA Act should have been taken at the earliest is of also devoid of any substance or merit. If right from granting of bail the detenu was absconding and he surrendered not immediately after the action under Section 7 of the COFEPOSA Act, but according to the date of his choice on 20.8.2002, then he could not make any grievance about the delay in taking action under Section 7 of the COFEPOSA Act. The action under Section 7 of the COFEPOSA Act is coercive measure of securing the attendance. But it is a detenu does not respond to the same and to remain absconding, then he cannot be permitted to make a grievance that action taken under Section 7 of the COFEPOSA Act should have been taken earlier. The action under Section 7 does not give him a right as such, which can be said to have been defeated on account of delay. But it is a last step taken by the police to secure attendance. Therefore, we also reject the contention raised by Smt. Ansari in this regard on the basis of judgment of the Supreme Court referred to above. So also the contentions of Smt. Ansari about the delay in serving the detention order, delay in taking the action under Section 7 and, delay in serving the order after surrender are required to be rejected outright.

21. This judgment of the Supreme Court was subsequently followed by this Court in Criminal Writ Petition No. 470 of 2002 which is an unreported judgment of the Division Bench where one of us was a party. In that case, the detention order was passed on 16.8.2000, but it was served on detenu on 12.3.2002 and there was delay of 19 months. There also the advocate for the petitioner has contended that if at all the detenu was absconding, the detaining authority should have applied for cancellation of bail. All these contentions were turned down by this Court because the proclamation under Section 7(1)(b) of the COFEPOSA Act was issued against the detenu and, once the proclamation was issued, the burden was shifted on the detenu to satisfy and prove that it was not possible for him to comply with the requirements of attendance within stipulated period and, if he failed to discharge that burden he was liable to be punished. This Court relied upon the judgment of the Supreme Court in Bhawarlal' case as referred to above and rejected the contention about the delay. In addition, we hold that the explanation given by the authorities in the affidavit is satisfactory, but we are rejecting the contention of the detenu about the delay in all respects on the basis of the Supreme Court judgment because of his recalcitrant and refractory conduct and on the principle that the detenu could not be permitted to take advantage of his own wrong.

22. So far as delay in issuance of detention order is concerned, there is a judgment of this Court reported in 1998 (2) Mh. L.J. 496, Rafiq Abdul Karim v. Rajendra Singh It is followed in Unreported Judgment in W.P. 464 of 2002. In that case there was a delay of 7 and 1/2 months in issuance of detention order. Therefore, it was held by the Court that delay simpliciter in the issuance of a detention order does not vitiate the same. The general rule is that it would be vitiated if there is no explanation for the same. In a case of preventive detention under the COFEPOSA or PITNDPS even unexplained delay in the issuance of the detention order, but itself would not vitiate the same. In such cases it will only be vitiated if on account of delay the live-link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him is snapped. For determining whether such a live link has been served or not, the propensity and potentiality of the detenu to commit prejudicial activities would be very material. If the aforesaid test, as laid down by this Court, is applied to the facts of the case we have no hesitation in concluding that firstly the delay itself would not vitiate the detention order because the live-link between the prejudicial activities of the detenu and the detention order is not snapped. The manner in which the huge amount of foreign exchange was tried to be smuggled out of the country by the detenu and his associates, it will clearly show that the propensity and potentiality of the detenu to commit prejudicial activities cannot be overlooked. Therefore, even if there is a delay and some of the delay is not explained, then following the aforesaid judgment, we are rejecting the contention of Smt. Ansari.

23. The second ground that was raised by Smt. Ansari is about non-furnishing the copy of the bail application dated 21.2.2000. According to her, this bail application was a vital document and non-supplying the same already to the detaining authority or to the detenu has affect the right of the detenu to make effective representation.

24. This contention is also required to be rejected. Admittedly the detenu had filed earlier bail application on 14.2.2000. That bail application was very exhaustive and lengthy. The copy of the same was given to the detenu but no order was passed on that application. Therefore on 21.2.2002 the detenu filed another application and, according to him, the copy of this application was not supplied to him. The test of prejudice arising out of non-supply of document is, whether the document is vital. A perusal of the bail application dated 21.2.2000 clearly shows that it is not at all a vital document. The copy of this application has been annexed by the petitioner at Annexure 'D'. It is only one page application and we are reproducing the contents of the same.

It is prayed on behalf of the all the above accused that on 5/2/2000 the Accused No. 1 & 2 were leaving for Dubai by morning flight at 7.30 a.m. They were found with the Foreign Currency concealed in their rectum and in Fry Pan. The total comes to Rs. 18 lacs.

2. Thereafter accused No. 3 and 4 were also intercepted and was found in the same manner, total comes to Rs. 34,22,037/-.

3. The DRI officer made them to write down the statement which they have retracted about the charge of conspiracy as well as the person of Jullender.

4. Now the houses of all the 4 accused have been searched and hence it is prayed that all the accused be released on reasonable bail amount with reasonable condition."

25. As against this, the copy of the bail application of the detenu filed by him earlier can be said to be a vital document because the detenu has raised number of contentions in that application. However, so far as Annexure "D" is concerned, it is not at all a vital document because this does not add anything new, nor does it say anything in defence, nor anything to against the prosecution case. It is a simple application for bail. Therefore, according to us, it is not at all the vital document and non-supply thereof to the detenu or to the detaining authority by the sponsoring authority does not affect the detention order. Smt. Ansari relied upon certain authorities. But a crucial test of those authorities was, whether the document is vital or not. Since in our considered opinion, the bail application is not at all the vital document, its non-supply does not affect the detention order.

26. Lastly, Smt. Ansari contended that the detenu was sent his representation to the State Government on 22.10.2002, but the State Government did not decide the representation independently and, according to her, there is material to show that the State Government was influenced by the opinion of the detaining authority. Smt. Ansari relied upon the affidavit in reply (page-90). It is stated in the said para as under:-

"It is submitted that alongwith the presentation addressed to the Detaining authority, another copy was received addressed to the Deputy "Chief Minister who was empowered to consider on behalf of the State of Maharashtra as per the appraisal given to the detenu, however, thereafter the powers of the State Government were delegated to the Additional Chief Secretary (Home). The representation was therefore forwarded to the Additional Chief Secretary who was empowered to consider the said representation on behalf of the State of Maharashtra and the representation was also addressed to the State of Maharashtra. It is submitted that the representation addressed to the Additional Chief Secretary has to be processed through the Detaining Authority and all other officers subordinate to the Detaining Authority, the copy of the representation alongwith the comments of the Detaining Authority were forwarded to the Additional Chief Secretary on 01.11.2002."

Smt. Ansari, therefore, contended that if the detaining authority had forwarded its comments then it should be inferred or concluded that the rejection of representation by the State Government was influenced by the detaining authority.

27. As against this, Mr. Mhaispurkar, APP, relied upon the judgment of the Supreme Court Union of India v. Manish Bahal alias Nishu. In para 22 of the said judgment while dealing with the reasoning of the High Court, the Supreme Court held and observed thus:-

"The specific question that arises for consideration is whether on the facts and circumstances of the case on hand the order passed by the Lt. Governor rejecting the representation of the detenu respondent can be held to have been vitiated on the ground that it was not passed on independent consideration. It is relevant to make it clear that the High Court has not recorded any finding that there was delay or callousness or bureaucratic lethargy on the part of the State Government in dealing with the representation of the respondent or that the Lt. Governor had kept the representation submitted before him awaiting the report of the Advisory Board. Not finding is also recorded by the High Court that the Lt. Governor solely depended on or relied upon the report of the Advisory Board for passing the order rejecting the representation. It has also not been found that the report of the Advisory Board was the only material placed before the Lt. Governor while submitting the representation for his consideration. In such circumstances, we are of the view that the High Court committed error in holding that the order of the Lt. Governor rejecting the representation of the detenu was not based on his independent consideration. At the cost of repetition we may state that the High Court drew such an inference solely on the ground that the report of the Advisory Board was also placed before the Lt. Governor while considering the representation of the respondent. It is relevant to note here that the observations made by the Constitution Bench in the Case of K.M. Abdulla Kunhi (Supra) and other decision notes earlier were made with a view to bring home the importance of expeditious consideration and disposal of representation of a detenu under the preventive detention laws in the light of the right vested in the detenu under Article 22(4) and (5) of the Constitution."

In the case in hand before us there is nothing to hold that the State Government solely depended on or relied upon the comments of the detaining authority. There is nothing to show that apart from the comments of the detaining authority, no other material was before the State Government and, therefore, merely because the comments of the detaining authority were there or the detaining authority had rejected the representation of the detenu by that time, it cannot be said that the decision of the State Government was not an independent decision or that it was influenced by the decision of the detaining authority.

28. For all these reasons we pass the following order:-

:ORDER:

Petition is dismissed. Rule is discharged. Certified copy expedited.