Abdul Rasheed Alias Basheer S/O ... vs Enforcement Directorate And Ors
2023 Latest Caselaw 9973 Bom

2023:BHC-AS:28400-DB




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 varsha                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL WRIT PETITION NO. 2429 OF 2023

                   Abdul Rasheed alias Basheer
                   s/o. Mohiddin Sahib arrested in the name
                   of Rasheed Hussian Shirazi alias Basheer
                   Indian Inhabitant, Aged about 62 years,
                   Having his address at Kottamala House,
                   Perumkulam Post, Vellappara Village,
                   Palakkad.                                      ... Petitioner

                               vs.

                   1. Enforcement Directorate
                       Zonal Office-I, Kaiser-I, Hind Building,
                       Ballard Estate, Mumbai - 400 001.
                   2. Under Secretary to the Government of
                       India Ministry of Finance Department
                       of Revenue Central Economic
                       Intelligence Bureau COFEPOSA Wing,
                       New Delhi.
                   3. Union of India
                       Aayakar Bhavan, Mumbai.
                   4. State of Maharashtra
                       Through the Principal Secretary,
                       Mantralaya, Mumbai - 400 032.              ... Respondents




                                                   1
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Mr. Yadunath Bargavan a/w Ms. Ratna Bhargavan, Mr Rahul
Yadav i/b. R Bhargavan for Petitioner.
Mrs. M.H. Mhatre, APP for the State.
Mr. Shreeram Shirsat a/w. Ms. Adithi Rao, Mr. Tanveer Khan,
Mr. Shekhar Mane for Respondent No.1(ED).
Mr. Alkileshwar Sharma for Respondent Nos. 2 and 3.


                  CORAM : REVATI MOHITE DERE &
                              GAURI GODSE, JJ.

RESERVED ON : 15st SEPTEMBER 2023 PRONOUNCED ON : 27th SEPTEMBER 2023

JUDGMENT (PER: GAURI GODSE, J.) :-

1. This petition is filed challenging the detention order dated

17th May 1993 passed by the Joint Secretary to the Government

of India, Ministry of Finance, Department of Revenue, in the

exercise of powers conferred under sub-section (1) of section 3

of the Conservation of Foreign Exchange and Prevention Of

Smuggling Activities Act, 1974 (' COFEPOSA Act' ) for detaining

the petitioner. The petitioner has also challenged the order dated

24th May 2023, passed by respondent no.2-The Under Secretary

to the Government of India, Ministry of Finance, Department of

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Revenue, in the exercise of the powers conferred by section 8(f)

of the COFEPOSA Act for confirming the detention order dated

17th May 1993 and directing detention of the petitioner for one

year from the date of his detention, i.e. 28th February 2023.

2. Perusal of the detention order indicates that the detaining

authority has relied upon the search and seizure proceedings

under section 34 of the Foreign Exchange Act 1973 ("FERA")

and the statements recorded under section 40 of FERA after one

Umar Ibrahim Mohamad alias Mohd. Sharif Hasan was

apprehended at Mumbai airport on 20 th November 1992, when

he was leaving for Dubai with substantial amount of foreign

currencies concealed by him. By referring to the said

proceedings, the detaining authority had arrived at a subjective

satisfaction that there was reason to believe that the petitioner

was engaged in unauthorised acquisition of foreign exchange and

transferring the same surreptitiously out of India in violation of

the provisions of FERA. The detaining authority has further

recorded a subjective satisfaction that the petitioner has carried

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out unauthorised transactions and has adversely affected the

foreign exchange resources of the country. The detaining

authority has further recorded that though prosecution under the

provisions of FERA is likely to be initiated against the petitioner,

the detaining authority was satisfied that unless detained, the

petitioner was likely to continue to engage in the activities in

future prejudicial to the augmentation of the country's foreign

exchange resources.

3. The aforesaid detention order dated 17 th May 1993 is

served upon the petitioner on 28 th February 2023. Pursuant to

the opinion of the Central Advisory Board as per the hearings

conducted on 2nd May 2023 and 3rd May 2023, respondent no.

2, in the exercise of the powers conferred by section 8(f) of the

COFEPOSA Act, confirmed the detention order dated 17 th May

1993 and directed the detention of the petitioner for one year

from the date of his detention, i.e. 28 th February 2023. A perusal

of the said order dated 24 th May 2023 indicates that the

petitioner's case was placed before the Central Advisory Board,

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High Court of Delhi, who was of the opinion that the subjective

satisfaction arrived at by the detaining authority does not call for

any interference.

4. The learned counsel for the petitioner has raised various

grounds to challenge the detention order. However, all the

grounds are not required to be examined in as much as the

petition ought to be allowed on the ground raised in clause (I) of

paragraph 19 of the petition, which reads as under:

"(I) The law permitting preventive detention must be meticulously followed, both substantively and procedurally by the detaining authority. The detention order dated 17th May 1993 has become invalid by the passage of time as it was not followed substantively and procedurally. The board on hearing the Petitioner should not have advised for continuing the detention for a year".

5. The learned counsel for the petitioner submitted that no

efforts were made by the detaining authority to serve the

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detention order by following the procedure prescribed under the

COFEPOSA Act. He submitted that the record would show that

the petitioner was never absconding, and the case of the

detaining authority that as the petitioner was absconding, the

detention order of the year 1993 could not be served upon the

petitioner is baseless. The learned counsel submitted that the

petitioner was very much available in the State of Kerala and that

during the hearings before the Advisory Board on 2 nd May 2023

and 3rd May 2023, respondent no.1 produced certain documents

which indicate that respondent no.1 was aware of the

whereabouts of the petitioner in 1993 itself. The learned counsel

submitted that though the detaining authority was aware of the

petitioner's whereabouts, the detention order was never served

upon the petitioner. The learned counsel submitted that the

petitioner shifted to Kerala and started his business of wholesale

of vegetables at Cochin. He submitted that for the last thirty

years, the petitioner is not involved in any act under the

COFEPOSA Act.

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6. The learned counsel, thus, submitted that the detention

order passed in the year 1993 could not have been served upon

the petitioner in the year 2023 on the ground that the petitioner

was absconding. The learned counsel submitted that no material

is on record to show that any attempt was made on behalf of the

detaining authority to serve the detention order on the

petitioner. He, therefore, submitted that, in the absence of

knowledge of the detention order to the petitioner, he could not

have been said to have absconded. The learned counsel submitted

that, thus, the detention order could not have been executed

after a period of 30 years. Hence, the petitioner submitted that

the detention of the petitioner in the year 2023, based on the

detention order issued in the year 1993, is illegal and

impermissible. Hence, the learned counsel submitted that the

detention order deserves to be quashed and set aside being illegal

and impermissible and petitioner be released forthwith.

7. The learned counsel appearing for respondent no.1 - the

Enforcement Directorate - the Sponsoring Authority, has relied

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upon an affidavit dated 25th August 2023 of Shri. Vineet Rathi,

Assistant Director, Directorate of Enforcement, Government of

India, Ministry of Finance, in support of the detention order.

The learned counsel submitted that all the efforts were made

right from the year 1993 to serve the detention order upon the

petitioner. He submitted that on 8 th August 1993, 31st October

1993 and 17th November 1993, attempts were made by the

police authorities (PCB-CID) to serve the detention order at the

last known address of the petitioner. The learned counsel relied

upon the report dated 15th December 1993 of the police

authorities to support the submission that attempts were made to

serve the petitioner. The learned counsel further submitted that

inspite of making all possible efforts, the petitioner remained

untraceable; therefore, an order dated 9th February 1994 was

passed invoking the provision of section 7(1)(b) of the

COFEPOSA Act because there was a valid reason to believe that

the petitioner absconded and had concealed himself so that the

detention order could not be served. The learned counsel

submitted that the order dated 9th February 1994 was published

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in the official gazette of India on 5th March 1994, directing the

petitioner to appear before the Commissioner of Police, Bombay,

within 7 days.

8. The learned counsel submitted that the provisions of

sections 7(1)(b) of the COFEPOSA Act indicate that such

publication in the Government Gazette is a sufficient compliance

of service of the detention order upon the petitioner. The learned

counsel, therefore, submitted that there is no substance in the

ground of challenge raised by the petitioner. The learned counsel

relied upon the copy of the Government Gazette indicating

publication of the order dated 9th February 1994 on 5th March

1994. The learned counsel, therefore, submitted that there is a

presumption that the petitioner had knowledge of the detention

order, and the burden shifted on him to justify his absence. The

learned counsel further submitted that since the petitioner was

not traceable, the detention order was ultimately executed on

28th February 2023, and he was detained. The learned counsel

submitted that thereafter, the same was forwarded before the

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Central Advisory Board, and the petitioner was given hearing on

3rd May 2023 and 4th May 2023. After the hearing, the opinion

of the Central Advisory Board was submitted in support of the

detention order. Hence, thereafter, the order dated 24 th May

2023 was issued, confirming the detention order dated 17 th May

1993. The respondent No.1 relied upon the following decisions

in support of his submissions:

i. Kasim Kadar Kunhi Vs The State of Maharashtra and others1

ii. Subhash Popatlal Dave Vs Union of India and another 2

iii. Rudra Pratap Singh Vs Union of India & Ors3

iv. Pankaj Kumar Sharma Vs Union of India and Ors 4

v. Mohd Nashruddin Khan Vs Union of India & Ors,

Gopal Gupta v Union of India & Ors and Amit Pal

Singh Vs Union of India5

vi. Bherchand Tikaji Bora Vs The Union of India & Ors6

1 WP (Cri.) 2198/2004 dated 2.2.2005, Bombay High Court 2 (2014) 1 SCC 280 3 WP(Cri.) 1326/2002, dated 23.1.2008, Delhi High Court 4 (2019) 262 DLT 481 (DB) 5 WP (CRL) 786/2020 & CRI.M.A.5862/2020, WP(CRL) 1009/2020 & CRL.M.A.8726/2020 & WP(CRL) 1019/2020 & CRL.M.A. 8743/2020 6 WP(Cri.) No. 2930, dated 6.7.2006, Bombay High Court

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vii. Shabna Abdulla Vs the Union of India and Ors 7

9. The learned counsel appearing for respondent no.2- the

detaining authority, also supported the detention order by relying

upon the affidavit dated 9 th August 2023 of P.K. Mittal, Director

(COFEPOSA Wing), Government of India, Ministry of Finance,

Department of Revenue, Central Economic Intelligence Bureau

COFEPOSA wing, New Delhi. The learned counsel for

respondent no.2 submitted that based on the statements referred

to and relied upon by the detaining authority, the petitioner was

directed to be detained as he has been actively involved in the

unauthorised acquisition of foreign exchange and transferring the

same surreptitiously outside India in violation of the provisions

of FERA thereby adversely affecting the foreign exchange

resources of our country. The learned counsel submitted that

there is no illegality in the detention order, and the confirmation

of the detention order passed based on the opinion of the

Central Advisory Board. With respect to the ground of challenge

7 WP(CRI.) 596/2022, dated 24.1.2023, Kerala High Court.

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raised on behalf of the petitioner is concerned, the learned

counsel submitted that the petitioner had absconded and, thus,

by taking advantage of his act, he cannot seek to quash the

detention order by contending that the detention order cannot

be served upon him after a period of 30 years. The learned

counsel submitted that only as the petitioner was evading due

process of law the detention order could not be served upon the

petitioner immediately after the passing of the detention order.

The learned counsel submitted that all necessary steps were taken

to serve the detention order in time. However, only as the

petitioner absconded, the detention order could not be served

immediately.

10. We have considered the submissions. We have perused the

record. In view of the aforesaid peculiar facts and circumstances

of the case, we examined whether all possible steps were taken to

serve the detention order on the petitioner. The learned counsel

for respondent no.1- Sponsoring Authority relied upon the

attempts made to serve the detention order. Respondent no.1 has

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relied upon a report dated 15th December 1993 submitted by the

Assistant Commissioner of Police (Crime) Branch (PREV) CID,

HQ, Bombay. The said report indicates that visits were made on

8th August 1993, 31st October 1993 and 17th November 1993 by

the officers and staff of PCB, FIP, to trace the petitioner;

however, the house of the petitioner was found locked. The said

report further indicates that in such circumstances, the detention

order was returned unexecuted, and thus, it was 'recommended

to issue a proclamation'. The learned counsel for respondent no.

1 also relied upon an enquiry report dated 5 th August 1993 by

the Assistant Enforcement Officer, which indicates that the

petitioner was not available at the given address and that the flat

was locked.

11. The order dated 9th February 1994 indicates that the Under

Secretary to the Government of India, in the exercise of the

power conferred by clause(b) sub-section (1) of section 7 of the

COFEPOSA Act, directed the petitioner to appear before the

Commissioner of Police, Bombay within a period of 7 days of the

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publication of the said order in the official gazette. The learned

counsel for respondent no. 1 has relied upon the publication of

the said order in the official gazette to support the contention

that there is due compliance of service of the detention order

upon the petitioner.

12. We do not find any substance in the submissions made on

behalf of respondent no.1 that publication of the order under

clause(b) of sub-section (1) of section 7 of the COFEPOSA Act

would amount to sufficient compliance of the service of the

detention order upon the petitioner. It is not the case of

respondent no.1 that any attempts were made to serve the

detention order as required under clause (a) of sub-section (1) of

section 7 of the COFEPOSA Act. It is not even the case of

respondent no.1 that pursuant to the letter dated 15 th December

1993, issued by the Assistant Commissioner of Police, Mumbai,

any steps were taken to issue the proclamation. No affidavit is

filed on behalf of respondent no.3-State of Maharashtra, to

support all the possible steps taken to serve the detention order

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upon the petitioner.

13. It is not even the case of the detaining authority that any

efforts were made to trace the whereabouts of the petitioner.

Except for visiting the available address in Mumbai, no efforts

were made to trace any other address of the petitioner. The

record does not reveal that any enquiry was made to find out the

whereabouts of the petitioner. After the publication of the order

dated 9th February 1994 in the official gazette, no steps were

taken to execute the detention order. The affidavit filed on

behalf of respondent no. 1 states that a show cause notice dated

5th November 1993 was issued to the petitioner and his

accomplices for contravention of the provisions of section 8(1)

read with section 64(2) of FERA and the case was finally

adjudicated on 31st January 2002 and a penalty was imposed

upon the petitioner. Respondent no. 1 has further relied upon

reports dated 12th February 2020 and 18th January 2023 for the

execution of a warrant against petitioner in Case No.

1562/CS/2002, pending before the Court of Addl Chief

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Metropolitan Magistrate, Mumbai. However, even the same does

not indicate that any efforts were made to trace the petitioner's

whereabouts. In the absence of all the possible steps taken to

serve the detention order upon the petitioner, the detaining

authority is not justified in executing the detention order after

thirty years on the ground that the petitioner was absconding.

The detaining authority gives no satisfactory explanation for not

executing the order of detention passed in the year 1993 for a

period of thirty years.

14. Regarding the aforesaid decisions relied upon by the

learned counsel for respondent no. 1, the same are of no

assistance to respondent no. 1 to justify the execution of the

detention order after a period of thirty years. In the decision of

this Court in the case of Kasim Kunhi, the authorities had duly

complied with the procedure under section 7(1) (a) and (b) of the

COFEPOSA Act. This court, in the facts of that case, accepted

the contention of the authorities explaining the delay of two

years and seven months in executing the detention order.

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15. In the decision of Delhi High Court in the case of Rudra

Singh the detention order dated 11 th April 2002 was served

upon the detenu on 10th June 2002 i.e. within a period of two

months. In the decision of Delhi High Court in the case of

Pankaj Sharma the contention of authorities was accepted that

the local police had taken effective steps to serve the detention

order, including conducting raids at different locations; however,

the detenu was not found, and the detention order was served

upon the mother of the detenu. Thus, in both these cases, in view

of the facts of the case and the explanation of the authorities, it

was held that on publication of order under section 7(1)(b) of the

COFEPOSA Act, the detenu's knowledge of the existence of the

detention order will have to be presumed.

16. In the decision of this Court in the case of Bherchand Bora,

the explanation for the delay of more than five years in executing

the detention order was accepted as the proclamation issued

under section 7 (1) (b) of the COFEPOSA Act was pasted on the

residential address of the detenu and was also published in local

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newspapers; similarly, the police had also continuously made

attempts to apprehend the detenu.

17. So far as the decision of the Hon'ble Supreme Court in the

case of Subhash Popatlal Dave and the decision of Delhi High

Court in the case of Mohd Nashruddin Khan is concerned, the

same is regarding the challenge to the detention order at the pre-

execution stage. The reliance on paragraph 34 of the decision of

Kerala High Court in the case of Shabna Abdulla is not relevant

as the same is regarding the detenu's contention of being not

aware of the gazette notification, even though served with show

cause notices and summons and being aware of the detention of

his father and brother in the same case.

18. Hence, the aforesaid decisions relied upon by the learned

counsel for respondent no. 1 are of no assistance to the

submissions made on behalf of respondent no.1 to support the

detention order.

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19. In view of the contention of respondent no. 1 that the

publication of gazette notification under section 7(1) (b) of the

COFEPOSA Act is sufficient to presume that the petitioner had

knowledge of the detention order, and as the petitioner has not

justified his absence, the detention order is correctly executed

after thirty years, we find it necessary to refer to the decision of

the Hon'ble Supreme Court in the case of Shafiq Ahmad Vs

District Magistrate and others8. In the said case, the detention

order was issued under section 3(2) of the National Security Act

1980. The Hon'ble Supreme Court, while examining the

challenge to the detention order on the ground of delay in

execution of the detention order, held in paragraph 5 as under:

"5. ........................................ Whether there has been unreasonable delay, depends upon the facts and the circumstances of a particular situation.

Preventive detention is a serious inroad into the freedom of individuals. Reasons, purposes and the manner of such detention must, therefore, be subject

8 (1989) 4 SCC 556

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to closest scrutiny and examination by the courts. In the interest of public order, for the greater good of the community, it becomes imperative for the society to detain a person in order to prevent him and not merely to punish him from the threatened or contemplated or anticipated course of action. Satisfaction of the authorities based on conduct must precede action for prevention. Satisfaction entails belief. Satisfaction and belief are subjective. Actions based on subjective satisfaction are objective indication of the existence of the subjective satisfaction. Action based on satisfaction should be with speed commensurate with the situation. Counsel for the petitioner submitted that in this case there was no material adduced on behalf of the Government indicating that the petitioner was "absconding". It was urged that there are no material at all to indicate that the petitioner was evading arrest or was absconding. It was submitted that Section 7 of the Act gave power to the authorities to take action in case the persons were absconding and in case the order of detention cannot be executed. It is stated that in this case no warrant under Section 7 of the Act has been issued in respect of his property or persons. Hence, it was

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contended that the respondent was not justified in raising the plea that the petitioner was absconding. We are, however, unable to accept this contention. If in a situation the persons concerned is not available or cannot be served then the mere fact that the action under Section 7 of the Act has not been taken, would not be a ground to say that the detention order was bad. Failure to take action, even if there was no scope for action under Section 7 of the Act, would not be decisive or determinative of the question whether there was undue delay in serving the order of detention. Furthermore, in the facts of this case, as has been contended by the Government, the petitioner has no property, no property could be attached and as the Government's case in that he was not available for arrest, no order under Section 7 could have been possibly made. This, however, does not salvage the situation. The fact is that from 15-4-1988 to 12-5-1988 no attempt had been made to contact or arrest the petitioner. No explanation has been given for this. There is also no explanation why from 29-9-1988 to 2-10-1988 no attempt had been made. It is, however, stated that from May to September 1988 the "entire police force" was extremely busy in

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controlling the situation. Hence, if the law and order was threatened and prejudiced, it was not the conduct of the petitioner but because of "the inadequacy" or "inability" of the police force of Meerut city to control the situation. Therefore, the fact is that there was delay. The further fact is that the delay is unexplained or not warranted by the fact situation".

Emphasis Applied

20. Section 7 of the National Security Act 1980 is pari materia

to section 7 of the COFEPOSA Act. In the facts of the present

case, we find that the principle of law laid down by the Hon'ble

Supreme Court in the case of Shafiq Ahmad is squarely

applicable. In the present case, except for explaining the steps

taken to serve the petitioner with the detention order at the

available address of the petitioner, there is no other explanation

forthcoming. It is not even the respondents' case that any enquiry

was made to find out the whereabouts of the petitioner. There is

no affidavit filed on behalf of the State Government explaining

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the steps taken to find out the petitioner's whereabouts and serve

the detention order. Infact, the report relied upon by Mr. Shirsat,

of the Assistant Commissioner of Police, shows that it was

recommended that proclamation be issued, since the petitioner

was not found to be staying at the given address.

21. The issue to be decided in the present case is whether there

is a delay in the execution of the detention order and whether

the inordinate delay of thirty years in the execution of the

detention order is explained by the concerned authorities. The

detention under the COFEPOSA Act is for the purpose of

preventing persons from acting in any manner prejudicial to the

conservation or augmentation of foreign exchange or preventing

from smuggling goods, or abetting smuggling goods, or engaging

in transporting or concealing or keeping smuggled goods or

dealing with the same or harbouring person engaged in such

activities. Hence, there must be conduct relevant to the

formation of the satisfaction having reasonable nexus with the

petitioner's action, which is prejudicial to make an order for

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detaining him. The unexplained and inordinate delay of thirty

years in the present case does not justify the preventive custody

of the petitioner. As held by the Hon'ble Supreme Court in the

case of Shafiq Ahmad, the satisfaction of the authorities based on

conduct must precede action for prevention based on subjective

satisfaction. In the present case, the action based on satisfaction

is not commensurate with the situation after thirty years of the

detention order. It is not even the case of the authorities that in

the last thirty years, the petitioner was engaged in any prejudicial

activity or has indulged in any objectionable activity.

22. The learned counsel for the petitioner is right in submitting

that there was no material adduced indicating that the petitioner

was "absconding" or that the petitioner was evading arrest. Thus,

by relying on the principle of law laid down by the Hon'ble

Supreme Court in the case of Shafiq Ahmad, we find that the

action under Section 7 of the COFEPOSA Act would not be

decisive or determinative of the question of whether there was

undue delay in serving the order of detention in the present case.

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In the facts of this case, no attempts had been made to contact or

arrest the petitioner. There is no explanation forthcoming for

not taking any action to trace the whereabouts of the petitioner,

and also, after the gazette publication in the year 1995 under

section 7(1)(b) of the COFEPOSA Act, there is no action taken to

serve the detention order.

23. Thus, there is no merit in the submissions supporting the

detention order. We find substance in the ground of challenge

raised on behalf of the petitioner that the detaining authority has

not meticulously followed the procedure to serve the detention

order, making it invalid due to the passage of time. Hence, for

the reasons stated above writ petition is allowed by passing the

following order:

ORDER

I. The petition is allowed, and Rule is made absolute in

terms of prayer clause 'a', which reads as under:

"a. This Hon'ble Court be pleased to issue a

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Writ of mandamus or any appropriate Writ, order or direction quashing and setting aside the impugned order of detention passed by the detaining authority on 17th May 1993, served on 28th February 2023 and the order of the Government dated 24 th May 1993 pursuant to the hearing conducted before the Board on 2nd and 3rd May 2023".

II. The Orders dated 17th May 1993 and 24th May 2023

(wrongly typed as 24th May 1993 in the prayer clause 'a') are

quashed and set aside, and the petitioner is set at liberty

forthwith, if not required in any other case.

24. All concerned to act on the authenticated copy of this

order.

(GAURI GODSE, J.) (REVATI MOHITE DERE, J.)

25. After the order was pronounced, learned Counsel

appearing for the respondent nos. 2 and 3 seeks stay of the said

order as they intend to challenge the said order before the Apex

Court. Accordingly, the order is stayed for a period of two weeks

from today.

                                (GAURI GODSE, J.)                     (REVATI MOHITE DERE, J.)


Designation: PA To Honourable Judge
Date: 27/09/2023 15:13:34