Raj Kumar Mahajan vs Union Of India And Ors.
1992 Latest Caselaw 439 Del

JUDGMENT

Usha Mehra, J.

(1) The petitioner. Raj Kumar Mahajan has challenged the order of detention passed on 7th November, 1990 under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 hereinafter called as the 'COFEPOSA ACT') served on him on 5th September, 1991. The order of detention was issued by Mr. Mahendra Prashad, joint Secretary, to the Govt. of India. It is stated therein that with a view to preventing the petitioner from acting in any manner prejudicial to the augmentation of foreign exchange. It was also ordered that the petitioner be detained and kept in custody in the Central Jail, Tihar, New Delhi. The grounds of detention were served on the petitioner but on September 9, 1991.

(2) In nutshell, the case is that on 17th August, 1990, the information was received by the Delhi Zonal Office of the Enforcement Directorate that the petitioner Raj Kumar, resident of A.2\219,Paschim Vihar and having business premises at shop No.21, Nehru Bazar, is indulging in unauthorised purchase and sale of foreign exchange, gold and imported goods on a large scale. He also has hide outs at D-42 and D-44. West Patel Nagar, New Delhi. On search being conducted, at his residence documents were recovered. Similarly documents and the Indian currency worth Rs.13,000.00 were recovered from his business premises. From premises at D-42 and D-44, West Patel Nagar, foreign currency i.e. Us $152, Sing, $-12, Indian Rs.10,000.00 and documents were recovered. From his business premises at 21, Nehru Bazar. Pahar Ganj, personal search of the petitioner was conducted and a sum of Rs. 550.00 and documents were recovered. As a follow up, his room No. 21 of Hotel "Vishal, Main Bazar Pahar Ganj, New Delhi was also searched and Uss 850 and documents were recovered. It is further the case of the respondent that the petitioner made voluntary statement admitting the search and also the seizure of Indian currency and documents from his possession and also that he was making payments to the foreigners in foreign exchange for purchase of imported goods and gold. He further disclosed as to from where he was purchasing foreign exchange and that in the last four years he had purchased and sold foreign exchange worth Rs. 12 crores. It is on account of the recoveries effected from his residence and business premises coupled with the voluntary statement made by the petitioner that the detaining authority came to the conclusion that he was indulging in unauthorised purchase and sale of foreign exchange which was in violation of the Provision of F.E.R.A. 1973. He was also appraised of his right to make representation before the Central Government, detaining authority and Advisory Board, if he so wishes against his detention.

(3) The challenge to the detention order has been made in the instant writ petition primarily on two grounds namely:- 1)That there had been delay of Five months in the execution of the detention order. The detention order in this case was passed on 7th November, 1990 under Section 3 of the Cofeposa Act. The same has been served on the petitioner on 5th September 1991 and the grounds of detention were served upon him on 9th September, 1991. Hence the order of detention is liable to be quashed. 2) The representation of the petitioner was not disposed of for nearly one month. The representation was made on 24th September, 1991 asking for the supply of documents but the same was rejected on 24th October, 1991 almost after one month. There is no explanation for this delay. On account of this delay the detention is vitiated.

(4) As regard the first ground the counsel for the petitioner vehemently urged that the respondent miserably failed to produce on record any cogent and reliable evidence or explanation to prove the reason for the delay of five months in the execution of the detention order. As already observed above, the incident is of 17th August, 1990. The detention order was passed on7th November, 1990. Thereafter, merely for five months the detention order was not served on the petitioner. Mr. Malhotra, appearing for the petitioner contended that on 12th December, 1990, the petitioner had applied for the stay against the passing /implementing or executing the detention order at Calcutta High Court. The said stay was granted on 12th December, 1990. However, after the respondent put in appearance the said stay was vacated on 12th April 1991. Therefore Mr. Malhotra fairly conceded that the period when the stay was obtained and till the time it remained in operation, the delay stand explained. It is only after 12th April, 1991 till 4th September, 1991 which delay the respondent had to explain. He further urged that even for the sake of argument, if it is presumed that it took a week's time for the respondent/ authority to receive intimation of the vacation of the stay from Calcutta but that will take the respondent only up to 19th or 20th April 1991. But from 20th April, 1991 to 4th September 1991 it is almost five months, and there is in fact no explanation worth the name given for the delay in execution this order of detention on the petitioner. The petitioner had in para (h&i) in the grounds of his petition had taken a specific plea that since the detention order was executed on the petitioner after a considerable long period hence the link stood snapped.

(5) Grounds (h) and (i) of the petition are as under: "BECAUSE the petitioner submit that there must be a live and proximate link between the incident mentioned in the grounds of detention and the Avowed purpose of the detention namely the preventing of smuggling activities. The incident which have been mentioned in the grounds of detention is dated 17.8.90 and the order of detention was passed on 7th November, 1990 and the same was executed on time petitioner on 5.9.91. The link has already been snapped. There is no fresh application of mind of the detaining authority to the new situation and changed circumstances. The incident mentioned in the grounds of detail is stale. The delay in execution between 7th November, 1990 to 12.12.90 to and from 12.4.91 to 4.9.91 has not been explained inspite of this fact that the stay of Calcutta High Court from the serving the order of detention was vacated on 12.4.91 at the request and in the presence of the counsel of the Union of India and the petitioner was very well present in Delhi and was appearing before the Court. There is long delay in execution of the detention order in these circumstances the petitioner submit that the satisfaction of the detaining authority is bad in law and the order of detention is liable to be set aside on this ground alone. i) That the petitioner .submit that in the making of the detention order under Section 3 of the Cofeposa Act Section 4 envisage the execution of the detention in the same manner as provided for execution of warrants of arrest under the Code of Criminal Procedure 1973. In this case the incident took place on 17.8.90 and the order of detention was passed on 7th November 1990 and the petitioner was appearing before the Courts. No action having been taken by the Appropriate Government in Cofeposa shows the negligence and slip should manner in which liberty of the person have been treated by the detaining authority. The detention order, therefore, stands vitiated and the same has been passed and served upon the petitioner as a punitive measures makes the detention illegal."

(6) In reply in the counter affidavit it is stated by the respondent as under: "THAT the contents of the corresponding paras of the petition are wrong and baseless and, therefore, cannot be sustained. It is submitted that there is a live and proximate link between the incident dated 17.8.90 and the purpose of detention is mentioned in the grounds of detention dated 7.11.91. After the release of the petitioner on bail, the petitioner had gone underground and after a long surveillance and gathering of intelligence about the where about of the petitioner, the petitioner was finally apprehended and the order of detention was served on him on 5.9,91. It may also be mentioned that the petitioner had obtained a restraint order order from the Calcutta High Court on 12.12.91 and the said restraint order was vacated by the Hon'ble High Court of Calcutta on 12.4.91 From the above facts it is clear that there was no fresh application of mind of the detaining authority as there was no new situation nor the changed circumstances. The delay in execution between 7th November, 1991 to 12th December, 1991 and from 12th April, 1991 to 4th September, 1991 has not been explained inspite of the fact that the stay by the Calcutta High Court was vacated on 12th April 1991 and that too in the presence of counsel for Union of India. That the petitioner had been present in Delhi all along and had been appearing in the Court. The contention of the respondent that the petitioner had gone underground and it is only after a long surveillance and gathering of the intelligence of the whereabouts of the petitioner, the petitioner was finally arrested. Except this bald statement, there is nothing on the record to show that the petitioner had gone underground nor the respondent have placed the affidavits of those officials who kept the surveillance. It was for the respondent to place on record specifically as to what sort of intelligence report received about the petitioner. According to the petitioner he had all along been in Delhi and residing at the given address. Mr. Malhotra contended that surveillance is kept in order to find out the activities of a person but if the person is not available as is alleged by respondent then where was the question of keeping the surveillance? In order to resolve this controversy, the original record was called which showed that the first time report about keeping watch of the petitioner at his place if business was submitted on 30th May 1991. Second was submitted on 16th June, 1991 and the third report was submitted regarding petitioner qua his residence on 18th August, 1991. This by no stretch of imagination can be called surveillance. By calling a report and keeping it on record without any further action or directions could not amount to surveillance. Only thing which could be inferred from these reports was that somebody went to inquire about the petitioner from the nearby shopkeepers. Since he was not found at his shop nor at his premises hence no further action taken. These are the only three reports which were available on the record and this cannot be called a long surveillance and gathering of information by intelligence. Mr. Malhotra contended that if the petitioner had gone underground or was absconding the respondent/authority had power to invoke the provision of Section 82/83 Code of Criminal Procedure for getting the petitioner declared a proclaimed offender as well as issue notice under Section 7 of the Cofeposa ACT. But no such action was taken by the respondent. It shows that the respondent was neither interested nor apprehended any prejudicial activity on the part of the petitioner, hence did not take any prompt action in executing the detention order on him. If the detaining authority was really and genuinely satisfied after proper application of mind, on the basis of material before it that it was necessary to detain him from acting in a prejudicial manner, then it would have acted with great promptitude in securing the arrest of the petitioner and the petitioner would not have been allowed to remain at large for as much as five months. Since there is a delay of almost five months in executing the detention order. this is fatal to the case. It clearly establishes that there was no nexus or proximate link between the incident relied on and the satisfaction arrived at. Even otherwise on account of this delay the detention order is liable to the quashed. In regard, reliance can be placed on the decision of the Supreme Court in the case of K.P.M. Basheer Vs. State of Karnataka & others, reported in 1992 (1) Crimes page 996 where the Supreme Court was dealing with a case under the Cofeposa Act and the order of detention in that case was challenged on account of the delay of more then 5 months in executing the order. In that case neither sufficient cause was shown nor any satisfactory and reasonable explanation was rendered, therefore, Supreme Court held that in such an eventuality the "live and proximate link" between the grounds of detention and the purpose of detention stood snapped on account of the undue and unreasonable delay in securing the detenu and detaining him. S. Ratnavel Pandian, J. speaking for the Court in that case observed that: All the above points show that no serious and since efforts appears to have been taken by the arresting officers and that there was only exchange of correspondence between the Department and the arresting officers. It is incomprehensible as to why no efforts had been made to secure the appellant/detenu during the two days. namely, on 6th and 20th February when he appeared before the Assistant Collector of Customs. No supporting affidavits made in the counter. Incidentally, though the two gold pellets (the contrabands) were seized from the appellant on 12.11.1990 the authorities concerned passed these orders only on 7.1.1991, i.e. nearly after two months. Under these circumstances, we are of the view that the order of detention cannot sustained."

(7) In the present case also with the counter affidavit no affidavit or document has been field to indicate what steps were taken in executing the detention order. As already pointed out above, the persual of the departmental file showed that only three reports are available on record which indicated that some official of the department went to the shop of the petitioner for about two hours and inquired from the neighbourers about the petitioner. On finding that the petitioner was not there submitted the report. The interval between the first report dated 30th May, 1991 and the second report dated 16th June 1991 is more than about two weeks and from the second report to the third report dated 18th August, 1991, the intervening gap is almost about two months.This act of the respondent shows that the alleged surveillance was nothing but a force. No explanation given as to why so much time was taken to serve the petitioner.

(8) Mr. Jagdev Singh, Counsel for the respondent, contended that the petitioner was served with a notice under Section 40 of the Foreign Exchange Regulation Act, 1973 to appear for 5th December, 1990. In response to this summon, petitioners sent medical certificate seeking adjournment which was received in the office of the respondent on 6th December, 1990. Thereafter, the petitioner went to Calcutta and got the stay order on 12th December, 1990.So far this explanation given by the respondent is from the date of the passing of the detention order i.e. 17th November, 1990 to 12th December, 1990 and from 12th April, 1991 the stay was operating. From 12th April, 1991 to 4th September, 1991 the explanation is neither convincing nor reasonable. It cannot be called even satisfactory, merely saying that there was a surveillance is not sufficient.'Surveillance means-Supervision, close guard or watch as per the Oxford Dictionery'. But alleged watch which had been kept and which had been discussed above cannot be called surveillance I the eye of law nor can justify the delay in executing the detention order. In the facts and circumstances of this case the observation of the Supreme Court in the case of K.P.M. Basher Vs. State of Karnataka and others (Supra), are on all force applicable to the facts of this case. The conduct of the authorities referred to above shows that there was no real or genuine apprehension that the petitioner was likely to act in any manner prejudicial to the public order. There is no explanation why from 30th May to 16th June, 1991 no attempt had been made nor any explanation has been given an to what action was taken by respondent/authority from 16th June, to 18th August, 1991. Even these facts have not been mentioned in the counter affidavit. The details about the so called surveillance was looked into from the department file the perusal of which depicted that the delay has remained unexplained. This delay was not warranted in the facts -and circumstances of this case. The respondent/authority cannot shift the burden on the conduct of the petitioner that the burden on the conduct of the petitioner that he was absconding or he went underground, hence cannot take advantage of his own wrong. These observations of counsel for respondent are not substantiated from the. record. No foundation is laid to establish even prima facie that petitioner was underground. Going twice to the place of business of petitioner and once at his residence would not prove that the petitioner had gone underground. If that had been the case of the respondent, than what prevented the respondent from invoking the provisions of Section 82/83 Criminal Procedure Code . and got him declared proclaimed offender or notice under Section 7 of the Cofeposa Act.

(9) Counsel for the petitioner has cited catena of judgments of the Supreme Court to bring home the fact that in case there is a delay in arresting the detenu pursuance to the detention order and the delay remained unexplained then the detention order is liable to be quashed. In this regard reliance can be had to the cases of S.K. Nizammuddin Vs. State of west Bengal , T.A. Abdul Rehman Vs. State of Kerala and Ors. reported in judgments Today 1989(3) Sc 444, Shafig Ahmed Vs.District Magistrate, Meerut & Ors. reported in judgments Today 1989 (3) Sc 659, P.V. Iqbal Vs. Union of India & Ors, reported in Crimes 1992 (1) page 166, S.K. Serajul Vs. State of West Bengal and Julia Jose Mavely Vs. Union of India reported in 1992 Crl.L.J. page 109.

(10) Besides the judgments cited above, this Court has also taken the same view in number of cases namely Man Mohan Singh Vs. Union of India & Ors. reported in 1988(1) Delhi Lawyer 171. Brij Mohan Sethi Vs. Union of India , Lalit Patadi Vs. Union of India & Ors. reported in 41 (1990) Delhi Law Times, Subhash Chander Vs. Union of India & Ors. Yudhvir Chander Arora Vs. Union of India & Ors. and Puran Singh Vs. Union of India & Ors. reported in 1991(1) C.C. cases 332(HC). In all these cases the law has been well settled that if there is an unexplained delay in arresting or serving the order of detention on the detenu then detention is invalid. The Supreme Court has also taken the view that if detenu was absconding then duty is caste upon the authority to follow the statutory provision of Sections 4 and 7 of the Act. Where the authority chooses not to follow these steps or to follow the procedure, then mere assertion without proof that the detenu intentionally avoided service is not enough and the delay remains unexplained.

(11) Mr. Jagdev Singh, appearing for the State on the other hand contended that the Supreme Court has also taken the view in the cases of Sayed Farooq Mohammad Vs. Union of India and am. reported in Jt 1992 (3) Sc 102 and Abdu Salam Thiyyan Vs. Union of India and anr. that mere delay in arresting the detenu does not throw doubt on the genuineness of the subjective satisfaction of the detaining authority. The Court has to see whether the delay has been explained or not. In case of Sayed Farooq Mohammad and evaded arrest and therefore the detention order could not be served on him. The Supreme Court under these circumstances held that the link between the grounds of detention and purpose of detention was not snapped. Similarly, in the case in hand the petitioner evaded the arrest inspite of the hand the petitioner evaded the arrest inspite of the surveillance, therefore, the link did not snap nor the detention can be quashed. I am afraid this contention of the counsel for the respondent is not based on the facts which have come on record nor is borne out from his own file. In the cases cited by him referred to above, there was sufficient material on record to show that the detaining authority made all efforts to serve the detenu but could not do so. It was under these circumstances the Supreme Court came to the conclusion that the doubt can not be thrown on the genuineness of the subjective satisfaction of the detaining authority. In the cases cited by counsel for the respondent. Supreme Court observed that the Court has to see whether the delay has been explained reasonably or not. But in this case as already observed the delay has not been explained at all of five months, and therefore, I am of the view that there was no qenuine subjective satisfaction of the detaining authority when the detention order was served on the petitioner. The live and proximate link stood snapped. Neither the counter affidavit nor the respondent's file indicate fresh application of mind. On this ground alone, the detention order is liable to be quashed.

(12) In view of the fact that there was an unexplained delay in executing the detention order, I need not deal with the delay in disposal of the representation made by the petitioner under Article 22 of the Constitution of India. That being so, the order of detention and the continued detention of the petitioner is liable to be struck down. I accordingly accept the petition and quash the order of detention and the continued detention and direct that the petitioner be set at liberty forthwith if not required in any other case by any lawful order.