Shafaat Ali vs Union Of India & Others
1999 Latest Caselaw 718 Del

ORDER

S.K. Mahajan, J.

1. The petitioner was detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short referred to as COFEPOSA) pursuant to an order of detention dated 3.2.1997. The grounds on which the order has been made against the petitioner under Section 3(1) of the COFEPOSA were :

2. That on 25.7.1996 one passenger Salahuddin Abdul Razak was going to Dubai from I.G.I. Airport. After clearance from immigration and customs while he was going towards the security check area he was intercepted on suspicion and on being searched foreign currency notes equivalent to Indian Rs. 13,48,979.80 were recovered from the briefcase being carried by him as his hand baggage. It is alleged that in his statement recorded under Section 108 of the Customs Act Salahuddin stated that on 1.6.1996 he came to Delhi and brought 5 kgms. of gold with him; the gold was given to him by one Mohammad Umar alongwith foreign currency to pay the customs duty; that he paid the customs duty for the said gold and thereafter the gold was delivered to the petitioner at his guest house near Jama Masjid, Delhi where the said Salahuddin Abdul Razak stayed for four days. It is further stated by him that he stayed with the petitioner at his guest house; the petitioner took his passport and air ticket and got a reservation for him for 25.7.1996; that on 24.7.1996 the petitioner gave a photoframe to Salahuddin and asked him to hand over the same to Mohammad Umar in Sharzah. It was on the opening of this photoframe found in the briefcase of Salahuddin Abdul Razak that the foreign currency was recovered.

3. Summons under Section 108 of the Customs Act were issued to the petitioner on 25.7.1996 and he appeared before the officers of the Customs Department on 20th and 24th August, 1996 and 17th September, 1996. The petitioner though admitted that he knew Mohammad Umar who was his younger brother and that Salahuddin Abdul Razak had stayed in his guest house, he pleaded ignorance of the knowledge of any gold having been imported by Salahuddin Abdul Razak or the same having been given to him by his younger brother Mohammad Umar. He denied having been handed over any gold by Salahuddin Abdul Razak or his having given foreign currency or the photoframe to Salahuddin for being given to Mohammad Umar. A Show Cause Notice dated 22.1.1997 was given to the petitioner in the adjudication proceedings and a complaint for offence punishable under Section 135(1)(a) of the Customs Act was also filed in the court of Additional Chief Metropolitan Magistrate, New Delhi on 22.1.1997. The court of Additional Chief Metropolitan Magistrate, New Delhi took cognizance of the complaint vide order dated 22.1.1997.

4. The statement made by Salahuddin Abdul Razak implicating the petitioner was later on retracted by him. Lt. Governor, Delhi, however, on 3.2.1997 issued the order of detention of the petitioner stating inter alia that on the basis of the facts and circumstances stated in the grounds of detention he had no hesitation in arriving at the conclusion that the petitioner had the inclination and propensity for indulging in smuggling activities in an organized and clandestine manner and unless prevented he was likely to indulge in the smuggling activities in future. It was further stated that although prosecution and adjudication proceedings under the Customs Act had already been initiated against the petitioner, still the Lt. Governor of Delhi was satisfied that it was necessary to detain the petitioner under the provisions of COFEPOSA with a view to preventing him from abetting the smuggling of goods and also preventing him from engaging in transporting, concealing and keeping smuggled goods in future.

5. This order of detention is challenged by the petitioner by way of the present writ petition. The order is challenged on the grounds, (1) that there was no material before the Detaining Authority to show that the petitioner had an inclination and propensity for indulging in smuggling activities inasmuch as while in the complaint filed by the Customs Department against the petitioner for his having committed an offence under Section 135 of the Customs Act it is alleged that the petitioner was guilty of attempting to send foreign currency out of India, the detention order states that he was being detained for his inclination and propensity for indulging in smuggling activities in an organized and clandestine manner and unless prevented he was likely to indulge in smuggling activities in future; and (2) There was no reason to detain the petitioner after the issue of show cause notice under Section 132 and after filing of the complaint against the petitioner in the Court of Additional Chief Metropolitan Magistrate for his having allegedly committed an offence under Section 135 of the Customs Act. For this, he relies upon the judgment of the Supreme Court reported as Kanchanlal Maneklal Chokshi Vs. State of Gujrat & Others,.

6. The next ground challenging the order of detention is that there was delay in execution of the detention order inasmuch as while the order was issued on February 3,1997, the petitioner was detained only on January 28.1999 and that there was unexplained delay in considering the representation of the petitioner and the same was in violation of the provisions of Article 22(5) of the Constitution of India read with the provisions of COFEPOSA. Certain other grounds of challenge have also been taken in the Petition.

7. After having heard learned counsel for the parties we are of the opinion that there may be force in the contention of the petitioner that his detention is illegal for the reasons stated in the petition, however, we did not consider it necessary to deal with each of the grounds taken by the petitioner challenging the order of detention inasmuch as we are of the view that this petition needs to be allowed on the ground that there was unexplained and inordinate delay in the execution of the detention order.

8. The order of detention in this case was passed of 3.2.1997. The petitioner was detained on 28.1.1999, almost after a period of two years from the date of the passing of the order of detention. The contention of the petitioner, therefore, is that there was undue delay in execution of the detention order and that clearly indicates that there was no genuine satisfaction on the part of the Detaining Authority regarding the necessity or immediate detention of the petitioner in order to prevent him from committing and continuing to commit the prejudicial activities alleged against him. In reply to this the Detaining Authority in counter affidavit has stated that the Department had taken necessary steps to execute the order of detention after the same was issued on 3.2.1997. The details of the steps allegedly taken by the Department to execute the order of detention have been mentioned in the counter affidavit. With a view to appreciate as to whether there was undue delay in the execution of the order of detention it will be useful to set out hereinbelow the steps stated to have been taken by Customs Department for executing the order of detention:

"A team of Customs Preventive officers was deputed to serve the detention order upon the petitioner at his residence-cum-gust House 3908, Jagat Cinema Street, Jama Masjid, Delhi on 04.2.97. He was not available and the Manager of the Guest House was unable to tell his whereabouts.

On 05.2.97 again a team of officers went to his residence-cum- Guest House but he was not available there. Manager of the Guest House informed that he was not there for the past 2 to 3 days.

Further attempts were made to serve the detention order upon him in court on six occasions i.e. 17.3.97, 07.4.97, 13.6.97. 18.10.97. 16.4.98 and 12.8.98 but he did not attend the court on these days. Apart from this several attempts were made by the Delhi police to serve the detention order upon the petitioner on several times but he had gone underground. As regards appearance of petitioner in the court of A. C. M.M, on 05.3.98, 11.3.98 and 12.3.98, it is mentioned that on 05.3.98 the petitioner moved an application for cancellation of nonbailable warrant issued against him, notice of which was ordered to be issued to the department for 11.3.98. This notice was not served either upon the department or the S. P. P. for the department. As such, Ld. Court of A. C. M. M., New Delhi issued another notice of the said application for 12.3.98 but the same was served upon the S. P. P. of the Customs department only on 12.3.98 and the same could not be served upon the department. The case on 12.3.98 was adjourned to 12.8.98 by the Ld. A. C. M. M., New Delhi. But again on 12.8.98 the petitioner failed to appear and an application was moved on his behalf by his counsel Shri R. K. Handoo for execution and the same was allowed. The case was then adjourned to 28.1.99, when the petitioner finally appeared and was detained. As such there was no delay in the execution of the detention order."

9. It is stated that the team of officers had gone at the residence of the petitioner near Jama Masjid on 4.2.1997 and again on 5.2.1997 but he was not available there. It was then said that there after attempts were made to serve to order of detention upon the petitioner in court on six occasions, namely, 17.3.1997, 7.4.1997, 13.6.1997, 18.10.1997, 16.4.1998 and 12.8.1998 but the petitioner did not attend the court on those dates. Detention order is alleged to have not been served because the petitioner had gone underground.

10. After the complaint under Section 135 of the Customs Act had been filed in the court of Additional Chief Metropolitan Magistrate. New Delhi, the petitioner through his counsel on 17.3.1997 had filed an application for exemption from personal appearance on the ground that the petitioner had gone to his native village Azamgarh and he had no knowledge about the date of hearing. This application having been filed, the court noted that the petitioner had gone to his native village Azamgarh and after granting exemption for that date directed him to appear in court on 7.4.1997. This order was passed in the presence of the Special Public Prosecutor. The petitioner having not appeared in court on 7.4.1997 non-bailable warrants were issued against him. On 11.3.1998 the petitioner moved an application for cancellation of the non-bailable warrants, notice of which was issued to the Customs Department for 12.3.1998. On 12.3.1998 Mr. G. S. Kanojia, Special public Prosecutor for the Customs Department was present in court as also the petitioner. Subject to payment of Rs. 2500/-, the warrants issued against the petitioner were cancelled and the case was directed to be fixed for complainant's evidence on 12.8.1998. The date of 16.4.1998 which was earlier fixed was cancelled by order dated 12.3.1998. In the counter-affidavit it is stated by the Detaining Authority that attempts were made to serve the detention order upon the petitioner in court on six occasions which also included 16.4.1998. Though in all the applications filed by the petitioner in court it is stated that he had gone to his native village in Azamgarh, no efforts were made by the Authorities to find out the petitioner in his native village. The fact that efforts were alleged to have been made on 16.4.1998 in court when the case was not fixed before the Additional Chief Metropolitan Magistrate, New Delhi clearly show the callous approach of the Authorities in detaining the petitioner. Had there been any seriousness on their part they would have made efforts to find out the petitioner at his native village.

11. It is not the case of the respondents that they were not aware that the petitioner was residing at Azamgarh. Not only in his statement before the Customs Authorities on 20.8.1998 but in his applications dated 17.3.1997 and 5.3.1998 also it is stated by him that he was residing at Azamgarh. Even the orders dated 17.3.1997 and 7.4.1997 state that the petitioner had gone to his native village Azamgarh. On both these occasions the special public prosecutor on behalf of the respondent was present in court. It is therefore, clear that the Authorities were aware of the fact that the petitioner had gone to his native village in Azamgarh still no efforts were made to apprehend the petitioner there. Except for what has been stated in the counter-affidavit that attempts were made to apprehend the petitioner in court on the dates when the case was fixed for hearing no serious attempt has been made during this whole period to execute the order of detention. It is not shown as to why no attempt was made between the dates when the case was not fixed for hearing.

12. In S.M.F. Sultan Abdul Kadar Vs. Jt. Secretary to Govt. of India & Others where there was a delay of almost one year in the execution of the order of detention and within that period 18 attempts were made to apprehend the detenu the court held that the Authorities had not explained as to why no attempt was made from 14.3.1996 to 25.4.1996 to apprehend the detenu to put him under detention even though the detention order was passed on 14.3.1996. It is further held that no serious efforts were made by the police authorities to apprehend the detenu. Only once in a month the police tried to find out the petitioner. It is also not stated where they were looking for him and what inquiries were made to find out his whereabouts. In these circumstances, the court held that there was unexplained and unreasonable delay in executing the order of detention and consequently the same was set aside.

13. In the present case as well, no serious efforts were made by the Authorities to apprehend the petitioner. It was only once in the 3 or 4 months, as stated in the affidavit, that the Authorities tried to apprehend the Petitioner on the dates when the matter was fixed in court, though it was clearly within their knowledge that he was in his native village at Azamgarh. There is thus unexplained and unreasonable delay in the execution of the order of detention and we feel that there was no genuineness on the part of the Detaining Authority regarding the immediate necessity of detaining the petitioner in order to prevent him from carrying on the prejudicial activities referred to in the grounds of detention.

14. In these circumstances, the petition succeeds and we set aside and quash the detention order dated 3.2.1997 and direct that the petitioner be set at liberty forthwith unless required in any other case.