Bombay High Court
Gaurav Kanak Jain vs The State Of Maharashtra And Ors on 5 May, 2017
Bench: Ranjit More
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 123 OF 2017
Gaurav Kanak Jain ..Petitioner
v/s.
The State of Maharashtra .
Through Addl. Chief Secretary (Home)
Government of Maharashtra,
Home Department,
Mantralaya, Mumbai 400 032 & Ors. ..Respondents
Mr. Vikram Nankani, Senior Advocate with Mr. Sujay Kantawala, Mr.
Sanjay Agarwal, Mr. H.K.Sudhakar, Ms. Neha Ahuja, Mr. Yogesh
Rohira i/b. M/s. HKS Legal for the Petitioner.
Mr.S.K.Shinde, PP with Mr. J.P.Yagnik, APP for the Respondent/State.
Mr.R.K.Pathak for the Respondent No.3.
CORAM : RANJIT MORE &
SMT. ANUJA PRABHUDESSAI, JJ.
JUDGMENT RESERVED ON : 27TH MARCH 2017.
JUDGMENT PRONOUNCED ON: 5TH MAY, 2017.
JUDGMENT (PER ANUJA PRABHUDESSAI, J.)
1. Rule. Rule made returnable forthwith. With the consent of
parties taken for hearing.
2. The Petitioner has filed the present petition for issuance of writ
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or direction to quash and set aside the impugned order of detention
bearing No. PSA-1216/CR-6(1)/SPL-3(A) dated 21 st November, 2016
issued against him by the Respondent No.2 hereinabove.
3. The brief facts necessary to decide this petition are as under:
On 7th December, 2015 one Raj Vasant Jadhav was intercepted by the
officers of the Respondent No.3 while he was proceeding towards the
exit gate of customers arrival baggage hall at CSI Airport, Mumbai.
Undeclared 7 foreign origin gold bars of 1 kg each were recovered
from his possession under Section 77 of the Customs Act, 1962. Said
gold bars were seized by the Officers of the Respondent No.3 under a
reasonable belief that same were smuggled by him to India in
contravention of the provisions of the Customs Act.
4. In his statement dated 7th December, 2015 Mr. Jadhav claimed
that the smuggled gold bars belonged to one Atonu Kumar Ghosal
and were to be delivered to the Petitioner herein, who is the owner of
the jewelery shop. Said Jadhav had claimed that on earlier
occasions he had delivered about 30 to 35 kg of gold to the Petitioner
which was brought to him during last 8 to 10 visits on payment of his
commission/payment by said Ghosal.
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5. The Petitioner was arrested on 22nd December, 2015 and his
statement was recorded. He was remanded to judicial custody on
23.12.2015 and his custody was extended from time to time.
6. On 6th January, 2016 the Screening Committee recommended
the proposal sponsored by the Office of the Respondent No.3 to
detain the Petitioner. Since no criminal prosecution was filed, the
Petitioner was granted default bail on 22.2.2016 under Section 167
(2) of the Cr.P.C. On 1.6.2016, after completion of the investigation
show cause notice was issued to the Petitioner and on 21.11.2016 the
impugned detention order was passed purportedly under Section
3(1)(i) of Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1976 (for Short 'COFEPOSA' Act).
7. The Petitioner challenged the said order before the Apex Court
in Writ Petition (Cri.) 178 of 2016 and by Order dated 5.1.2017 the
Petitioner was allowed to withdraw the said petition with liberty to
approach the High Court. The Petitioner has thereafter filed the
present petition challenging the impugned Order of detention.
8. In response, Shri Shree Kant Singh, Principal Secretary
(Appeals and Security), Government of Maharashtra, Home
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Department has filed affidavit and additional affidavit. It is stated
that in view of the discussion of the Apex Court in Union of India &
Ors. v. Vidya Bagaria1 the petition is not maintainable at pre-
execution stage. The Detaining Authority has narrated the
chronology of events and has stated that there is no deliberate delay
in issuing the order. It is further stated that the Petitioner was
absconding and was not available even though the order under
Section 7(1)(b) of COFEPOSA was issued on 3.1.2007. The
Detaining Authority has stated that the Petitioner has not been able
to make out an exceptional ground to accept the petition at the pre-
detention stage.
9. Mr. Nankani, the learned Counsel for the petitioner has assailed
the impugned order mainly on the ground of delay in issuing the
detention order. He has submitted that there is gross, inordinate and
inexplicable delay in issuing the impugned order dated 21.11.2016.
He has submitted that the gold bars were allegedly seized on
7.12.2015. The proposal for preventive detention was sponsored
and approved on 6.1.2016, whereas the detention order was passed
1 (2004) 5 SCC 577
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on 21.11.2016. He has submitted that there is no reason to justify
the laxity in issuing detention order and there is no live and
proximate link between the alleged prejudicial activity and the
necessity to detain. He has submitted that the inordinate delay in
passing the order of detention vitiates the same and exposes the lack
of any real subjective satisfaction on necessity of detention. He has
relied upon the decision of the Apex Court in Addl. Secretary,
Government of India vs. Alka Subhash Gadia 2 , and the decision of
this Court in Farida Chamundi v. State of Maharashtra 3 and Shaikh
Khan vs. The State of Maharashtra & Anr. Criminal W.P. No. 208 of
2012.
10. The learned APP has submitted that the Petitioner was the
actual beneficiary of the illicit trade of gold, which was smuggled by
Mr. Jadhav from London. She has further submitted that the delay
in issuing the detention order has been explained in the additional
affidavit filed by Shri Shree Kant Singh, Principal Secretary (Appeals
and Security) Government of Maharashtra, Home Department,
Mantralaya. She has submitted that there was no delay on behalf of
2 1992 Supp (1)SCC 496
3 2016 ALL MR (Cri) 2285
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the Detaining Authority and that the alleged delay, if any, was caused
mainly because the Detaining Authority was required to obtain
additional information on several points from the Sanctioning
Authority. She has further stated that the Petitioner was absconding
and hence there was delay in executing the detention order.
11. We have perused the records and considered the submissions
advanced by the learned Counsel for the respective parties.
12. We shall first consider the issue of maintainability of the
criminal petition at the pre-execution stage. In this regard, it is
advantageous to refer to the decision of the full Bench of the Apex
Court in Addl. Secretary to the Government of India and Ors. vs.
Smt. Alka Subhash Gadia & Anr.4 wherein it has been held as
under:
"30. As regards his last contention, viz., that to deny a right
to the proposed detenu to challenge the order of detention
and the grounds on which it is made before he is taken in
custody is to deny him the remedy of judicial review of the
impugned order which right is a part of the basic structure
of the Constitution, we find that this argument is also not
well-merited based as it is on absolute assumptions. Firstly,
as pointed out by the authorities discussed above, there is a
difference between the existence of power and its exercise.
4 1992 Supp(!)SCC 496
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Neither the Constitution including the provisions of Article
22 thereof nor the Act in question places any restriction on
the powers of the High Court and this Court to review
judicially the order of detention. The powers under Articles
226 and 32 are wide, and are untrammelled by any
external restrictions, and can reach any executive order
resulting in civil on criminal consequences. However, the
Courts have over the years evolved certain self-restraints for
exercising these powers. They have done so in the interests
of the administration of justice and for better and more
efficient and informed exercise of the said powers. These
self-imposed restraints are not confined to the review of the
orders passed under detention law only. They extend to the
orders passed and decisions made under all laws It is in
pursuance of this self-evolved judicial policy and in
conformity with the self-imposed internal restrictions that
the Courts insist that the aggrieved person first allow the
due operation and implementation of the concerned law
and exhaust the remedies provided by it before approaching
the High Court and this Court to invoke their discretionary,
extraordinary, and equitable jurisdiction under Articles 226
and 32 respectively. That jurisdiction by its very nature is to
be used sparingly and in circumstances where no other
efficacious remedy is available. We have while discussing the
relevant authorities earlier dealt in detail with the
circumstances under which these extraordinary powers are
used and are declined to be used by the courts. To accept
Shri Jain's present contention would mean that the courts
should disregard all these time-honoured and well-tested
judicial self-restraints and norms and exercise their said
powers, in every case before the detention order is executed.
Secondly, as has been rightly pointed out by Shri Sibbal for
the appellants, as far as detention orders are concerned if in
every case a detenu is permitted to challenge and seek the
stay of the operation of the order before it is executed, the
very purpose of the order and of the law under which it is
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made will be frustrated since such orders are in operation
only for a limited period. Thirdly, and this is more
important, it is not correct to say that the courts have no
power to entertain grievances against any detention order
prior to its execution. The courts have the necessary power
and they have used it in proper cases as has been pointed
out above, although such cases have been few and the
grounds on which the courts have interfered with them at
the pre-execution stage are necessarily very limited in scope
and number, viz., where the courts are prima facie satisfied
(i) that the impugned order is not passed under the Act
under which it is purported to have been passed, (ii) that it
is sought to be executed against a wrong person, (iii) that it
is passed for a wrong purpose, (iv) that it is passed on
vague, extraneous and irrelevant grounds or (v) that the
authority which passed it had no authority to do so. The
refusal by the courts to use their extraordinary power of
judicial review to interfere with the detention orders prior
to their execution on any other grounds does not amount to
the abandonment of the said power or to their denial to the
proposed detenu, but prevents their abuse and the
perversion of the law in question.
31. Lastly, it is always open for the detenu or anyone on
his behalf to challenge the detention order by way of habeas
corpus petition on any ground available to him. It is not,
therefore, correct to say that no judicial review of the
detention order is available. In the view we are taking
which applies also to the cases under other laws, the stage
at which the judicial review is made by the Court only
stands deferred till after the order is executed. A ground on
which a detention order is challenged which requires
investigation and cannot be adjudicated without hearing
the other side and without proper material, has necessarily
to await decision till the final hearing. In such cases the
operation of the order of detention by its very nature cannot
be stayed pending the final outcome. The only proper course
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in such cases is to hear the petition as expeditiously as
possible."
13. In Deepak Bajaj v. State of Maharashtra and Anr.5, the
Supreme Court has held that the five grounds mentioned in the case
of Addl. Secretary to the Government of India and Ors (supra) on
which the Court can set aside the detention order at the pre-existing
stage are only illustrative and non-exhaustive. The Apex Court has
held that :-
9. If a person against whom a prevention detention order
has been passed can show to the Court that the said detention
order is clearly illegal why should he be compelled to go to
jail? To tell such a person that although such a detention order
is illegal he must yet go to jail though he will be released later
is a meaningless and futile exercise.
10. It must be remembered that every person has a
fundamental right of liberty vide Article 21 of the
Constitution. Article 21, which gives the right of life and
liberty, is the most fundamental of all the Fundamental Rights
in the Constitution. Though, no doubt, restrictions can be
placed on these rights in the interest of public order, security
of the State, etc. but they are not to be lightly transgressed.
11. In Ghani vs. Jones (1970)1 Q.B. 693 (709) Lord Denning
observed :
"A man's liberty of movement is regarded so highly by the law
of England that it is not to be hindered or prevented except on
the surest ground"
5 (2010) 4 SCC 122
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12. The above observation has been quoted with approval by
this Court in Govt. of Andhra Pradesh vs. P. Laxmi Devi J.T.
2008 (2) SC 639 (vide para 90).
13. If a person is sent to jail then even if he is subsequently
released, his reputation may be irreparably tarnished. As
observed by this Court in State of Maharashtra & Ors. vs.
Public Concern for Governance Trust & Ors. 2007 (3) SCC
587, the reputation of a person is a facet of his right to life
under Article 21 of the Constitution (vide paragraphs 39 and
40 of the said decision).
14. As observed by the three Judge bench of this Court in
Joginder Kumar vs. State of U.P. & Ors. AIR 1994 SC 1349
(vide para 24) :
"...........The existence of the power to arrest is one thing. The
justification for the exercise of it is quite another. The Police
Officer must be able to justify the arrest apart from his power
to do so. Arrest and detention in police lock-up of a person can
cause incalculable harm to the reputation and self-esteem of a
person."
(emphasis supplied)
15. ...
16. If a person against whom a preventive detention order has
been passed comes to Court at the pre execution stage and
satisfies the Court that the detention order is clearly illegal,
there is no reason why the Court should stay its hands and
compel the petitioner to go to jail even though he is bound to
be released subsequently (since the detention order was
illegal). As already mentioned above, the liberty of a person is
a precious fundamental right under Article 21 of the
Constitution and should not be likely transgressed. Hence in
our opinion Smt. Alka Subhash Gadia's case (supra) cannot be
construed to mean that the five grounds mentioned therein for
quashing the detention order at the pre execution stage are
exhaustive.
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14. The three Judges Bench of the Apex Court, in Subhash
Popatlal Dave v. Union of India & Anr.6 has reiterated that the
order of preventive detention can be challenged beyond five grounds
which have been enumerated in the case of Alka Subhash Gadia even
at the pre-execution stage. Thus the issue of maintainability of the
writ at pre-execution stage is no longer res-integra.
15. Now, coming to the ground of delay in issuing the order, before
adverting to the facts, it would be advantageous to refer to the
decision of the Apex Court in Rajendra Arora v. Union of India and
Ors.7 , wherein the Apex Court has held that:-
"The question as regard delay in issuing the order of
detention has been held to be a valid ground for quashing
an order of detention by this Court in T.D. Abdul Rahman
v. State of Kerala & Ors. [AIR 1990 SC 225] stating:-
The conspectus of the above decisions can be summarised
thus: The question whether the prejudicial activities of a
person necessitating to pass an order of detention is proximate
to the time when the order is made or the live-link between the
prejudicial activities and the purpose of detention is snapped
depends on the facts and circumstances of each case. No hard
and fast rule can be precisely formulated that would be
applicable under all circumstances and no exhaustive
guidelines can be laid down in that behalf. It follows that the
test of proximity is not a rigid or mechanical test by merely
6 (2014) 1 SCC 280
7 (2006)4 SCC 796
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counting number of months between the offending acts and the
order of detention. However, when there is undue and long
delay between the prejudicial activities and the passing of
detention order, the court has to scrutinise whether the
detaining authority has satisfactorily examined such a delay
and afforded a tenable and reasonable explanation as to why
such a delay has occasioned, when called upon to answer and
further the court has to investigate whether the causal
connection has been broken in the circumstances of each case.
Similarly when there is unsatisfactory and unexplained delay
between the date of order of detention and the date of securing
the arrest of the detenu, such a 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 a
prejudicial manner."
16. It would also be necessary to refer to the decision of the Apex
Court in Subhash Popatlal Dave vs. Union of India (supra) wherein
the Three Judges Bench of the Apex Court examined the legality of
the detention order on the ground of delay in passing the detention
order and has held that the delay by itself is not fatal and the same
can always be explained to the satisfaction of the Court.
17. Reverting to the facts of the present case, the records reveal
that 7 gold bars were seized from one Raj Vasant Jadhav on
7.12.2015. His statement was recorded on the same date wherein he
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had disclosed that the said gold bars were given by one Ghosal to be
delivered to the Petitioner herein. The Petitioner was thereafter
arrested on 12.12.2015 and his detention was sponsored by the
Screening Committee on 6.1.2016. It is to be noted that since no
charge sheet was filed against the Petitioner during the stipulated
period, he was granted default bail on 20.2.2016. The show cause
notice was issued to him on 1.6.2016 and the detention order was
passed on 21.11.2016. Thus, there is a time gap of 11 months and
14 days from the date of seizure and the detention order and 5
months and 20 days between the show cause notice and the
detention order.
18. In the affidavit in reply filed by Shri Shree Kant Singh, Principal
Secretary (Appeals and Security) the Respondents have sought to
explain the delay by stating that the delay was not deliberate. He
has stated that the loss of time was mainly because of the additional
information which was required to be called from the Sponsoring
Authority. In this regard, we have perused the records which were
placed before us. The records reveal that the Screening Committee
had approved the proposal on 6.1.2016. The Scrutiny note was
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submitted on 16.1.2016 and the Detaining Authority approved the
Scrutiny Note on 18.1.2016. The additional information which was
called for on 18.1.2016 was received in the Department of Home on
27.1.2016. The note on additional information was submitted by the
concerned Assistant Section Officer on 28.1.2016. Nothing was
done till 30.1.2016, on which date the Detaining Authority directed
to carry out scrutiny and verification of documents submitted by the
Sponsoring Authority. It is stated that 31 st January, 2016 was a
holiday. The additional information was scrutinized only on 2 nd
February, 2016 and further information was sought to be obtained
from the Sponsoring Authority. Two days later, i.e. on 4 th February
2016 the Detaining Authority approved the note and on the same day
called for additional information . The additional information was
received in the department on 9.2.2016 and on 10.2.2016 the
concerned Assistant Section Officer prepared a note in respect of the
said information and submitted the same for consideration of the
Detaining Authority. On 15.02.2016 the Detaining Authority
directed to get some details as regards CCTV Footage, whether there
was retraction of statement, and whether there was any seizure of
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gold in the past. By letter dated 18.02.2016 the details were called
for. Literally nothing happened between 19.2.2016 till 28.2.2016.
The explanation is that 19th, 21st, 27th and 28th were holidays being
Chatrapati Shivaji Maharaj Jayanti, Sunday, 4 th Saturday and Sunday.
The additional information was received on 1st March, 2016.
Nothing was done on 2nd and 3rd March, 2016. No explanation is
forthcoming as regards these two dates. On 4.3.2016 the
information was submitted by the concerned Assistant Section Officer
before the Detaining Authority. Again nothing transpired from
5.3.2016 till 13.3.2016. Out of these 7 days, 6 th and 7th March were
holidays. No satisfactory explanation is given about remaining five
days. On 14.3.2016 the Detaining Authority directed to get further
information from the Sponsoring Authority as regards the presence of
the Petitioner at the Airport at the time of the incident. Note was
prepared on 15.3.2016 and the letter in that regard was sent to the
Sponsoring Authority on 17.3.2016.
19. On 15.3.2016 the Petitioner made a representation and on
21.3.2016 the Detaining Authority called for parawise comments.
The letter to the Sponsoring Authority, calling for parawise remarks
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was sent only on 28.3.2016.
20. In response to letter dated 17.3.2016, the Sponsoring
Committee furnished the information vide its letter dated 21.3.2016.
The same was placed before the Detaining Authority on 28.3.2016.
Nothing transpired between 29.03.2016 till 6.4.2016. On 7.4.2016
the Detaining Authority directed to get remarks on the pre-detention
representation. Nothing transpired for the next ten days. The
explanation is that out of these 10 days, six days were holidays. Yet,
there is no explanation as regards the remaining four days.
Reminder was sent to the Sponsoring Authority on 18.4.2016 and
again on 6.5.2016. In between nothing transpired. Para-wise
comments were received from the Sponsoring Authority on 9.5.2016.
On 12.5.2016 the Detaining Authority directed to get status of the
show cause notice from the Sponsoring Authority. Letter calling for
such status report was sent only on 20.5.2016. Reply was received
from Sponsoring Authority on 27.5.2016. No further action was
taken till 2.6.2016. On 3.6.2016 the Sponsoring Authority
forwarded copy of the show cause notice and the note in respect of
the same was put before the concerned Assistant Section Officer on
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9.6.2016.
21. On 22.6.2016 the Detention Authority directed to verify if reply
to the show cause notice was given and whether he was involved in
any other offence of such nature. Letter to that effect was sent on
24.6.2016. Reminder was sent on 5.7.2016. On 20 th July, 2017 the
Sponsoring Authority replied that the Petitioner had not replied to
the show cause notice and further informed that he was not involved
in any other offence of similar nature after the case.
22. In the meantime, on 13.7.2016 the Petitioner filed another
representation. By letter dated 15.7.2016 para-wise comments were
called for from the Sponsoring Authority. Para-wise comments were
given by the Sponsoring Authority on 11.8.2016. Nothing transpired
till 28.8.2016. On 29.08.2016 the concerned Assistant Section
Officer submitted a note and on 2.9.2016 the Detaining Authority
directed to get classification whether the Petitioner was involved in
similar case prior to this case. Reminders were issued to the
Sponsoring Authority on 19.9.2016 and 14.10.2016. It is stated
that on 4.11.2016 information was put up as per the statement of
Jadhav, Ghosal and Murudkar and on 8.11.2016 Detaining Authority
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directed to take dictation and detention order was issued on
21.11.2016.
23. We have given the detail chronological events only to highlight
the time consumed by the Detaining Authority to issue the detention
order. As stated earlier, there is delay of about 11 months and 14
days from the date of seizure till the date of detention order and
delay of 5 months 20 days from the date of show cause notice and
the Detention order. The records reveal that seeking of piecemeal
information and bureaucratic red tapism was mainly the reason for
the delay in issuing the detention order. Suffice it to say that in a
matter of deprivation of personal liberty, the authority is under
obligation to act swiftly and deligently. In the instant case, we have
no doubt in our mind that the Authority did not discharge its duty
with diligence and commitment. As regards explanation, apart from
highlighting the holidays during this interregnum period, the
authority has not given reasonable and acceptable explanation for
the inordinate delay in issuing the detention order. The laxity of the
Authorities, which had resulted in inordinate and unexplained delay
in issuing the detention order, in our opinion, has snapped the live
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link between the prejudicial activities and purpose of detention.
We, therefore, have no other alternative but to quash the proceeding.
Hence, the petition is allowed. Rule is made absolute in terms of
prayer clause (a).
(ANUJA PRABHUDESSAI, J.) (RANJIT MORE, J.)
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