Dinesh Kumar Jain vs Union Of India & Anr.
1999 Latest Caselaw 114 Del

ORDER

D.K. Jain, J.

1. Rule D.B.

2. By this petition under Article 226 of the Constitution of India, for a writ of Habeas Corpus, the petitioner challenges the detention of Dinesh Kumar Jain on 11 August, 1998, pursuant to the order passed on 20 May, 1998 by the Lt. Governor of National Capital Territory of Delhi in exercise of powers conferred under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short the COFEPOSA Act).

3. The order of detention is based on the subjective satisfaction of the detaining authority that it was necessary to detain the said detenu with a view to preventing him from smuggling goods and also preventing him from engaging in transporting, concealing and keeping smuggled goods, in future. According to the grounds of detention, on 20 January, 1997, the detenu, identifying himself as Rajendra Kumar, holding Indian Passport in that name, got himself cleaned through immigration and customs in the departure hall of the Indira Gandhi International Airport, New Delhi for going to Sharjah when, on suspicion, he was intercepted by the Air Customs Officer (Preventive) and was asked as to whether he was carrying any foreign currency, narcotic drugs etc. to which he replied in the negative. After serving a notice under Section 102 of the Customs Act, 1962, in the presence of two independent witnesses, his personal search was conducted, which resulted in the recovery of substantial amount of foreign currency from his belt and locket. Further search of his handbag also resulted in recovery of foreign currency meticulously concealed in its handles. The total foreign and Indian currency so recovered was equivalent to Rs. 4,20,230/, which was seized. In his voluntary statement tendered under Section 108 of the Customs Act the detenu, while admitting the recovery of the said currency, stated that it was given to him by a person in Muzaffar Nagar U.P. for carrying it to Sharjah for which he was to get Rs. 5,000/ besides to and for ticket to Sharjah. The detenu was arrested on 21 January, 1997 and was produced before the Additional Chief Metropolitan Magistrate, New Delhi, who, after remanding him to judicial custody till 3 February, 1997, admitted him to bail on 4 February, 1997. The detenu retracted his statement on 6 April, 1997. Further investigations revealed that the detenu had visited abroad a number of times under the fake name as well as his real name.

4. It was on these facts that the detaining authority came to the aforenoted conclusion.

5. In opposition to the writ petition, reply affidavit has been filed on behalf of the detaining authority.

6. We have heard Mr. Ashutosh, learned counsel for the petitioner and Mr. S.K. Aggarwal, Standing Counsel (Criminal) for the detaining authority.

7. Although in the writ petition the validity of the order of detention has been challenged on several grounds but before us Mr. Ashutosh has urged only three grounds, namely : (i) there is an inordinate, unexplained long delay of more than 21/2 months in the execution of the detention order and, therefore, the live proximate link between the grounds of detention and the purpose of detention stands snapped, (ii) the detaining authority has failed to take into consideration a vital fact that before the order of detention was served on the detenu, he was already in judicial custody and there was no fresh satisfaction recorded by the detention authority to the effect that there was compelling reasons justifying such detention despite the fact that the detenu was already in custody and in the alternative if such a satisfaction was recorded, it should have been communicated to the detenu along with grounds of detention because it by itself constituted a fresh ground and (iii) there was delay in passing the detention order.

8. It is well settled that if there is an unreasonable delay between the date of the order of detention and the date of arrest of the detenu, such delay, unless satisfactorily explained throws a considerable doubt on the genuineness of the requisite subjective satisfaction of the detaining authority in passing the detention order and consequently renders the detention order bad and invalid because the 'live and proximate link' between the grounds of detention and the purpose of detention is snapped in arresting the detenu. (see : P.V. Iqbal Vs. Union of India and Others 1992 (1) Crimes 166 and K.P.M. Basheer Vs. State of Karnataka & Ors. [1992 (1) Crimes 996].

9. The object of preventive detention being to intercept a person before he does something and to prevent him from doing and not to punish him for having done something, it is imperative on the part of the detaining authority as well as the executing authorities to be vigilant in securing the detenu and executing the detention order at the earliest. An indifferent attitude on the part of the authorities defeats the very purpose of the preventive action, which otherwise has serious consequences from the stand point of the person detained for it deprives him of his personal liberty, which is impermissible except in accordance with the procedure established by law.

10. Keeping in view the above broad principles of law and the settled legal position we revert to the facts in hand. As noted above, the order of detention was passed on 20 May, 1998 and the petitioner was detained on 11 August, 1998. In reply to the point of delay in executing the order of detention, specifically raised in the petition, what has been stated in the reply affidavit on behalf of the detaining authority reads as under : "It is submitted that the detention order dated 20 May, 1998 was set to the Home Secretary to the Government of U.P., Lucknow as the petitioner is the resident of Muzaffar Nagar, U.P. The U.P. Government, the same sent to D.M. Muzaffar Nagar vide letter dated 28 May 1998 for execution. The order could not be executed and the petitioner evaded the execution of the same. It is denied that he was available at home during this period. On 5 August, 1998, petitioner made an application in the court of ACMM, New Delhi and surrendered Judicial custody by withdrawing his person al bond executed by him in the said case. The changed circum stances were brought to the notice of the Detaining Authority for independent consideration and as such the detention order could be served on 11 August, 1998. It is denied that there was a delay in execution of the order."

11. We are constrained to observe that the explanation offered is not worth its name, what to talk of satisfactory explanation for the delay. The reply is not only vague, it does not even indicate as to what and when, attempts were made by the executing agency to apprehend the detenu and what action was taken by the detaining authority to ensure that its order was executed expeditiously and with promptitude. It is not stated what inquiries and efforts were made to find out the whereabouts of the detenu. No material has been produced before us on the basis whereof it could be said that the police authorities had made reasonable efforts to locate the detenu and apprehend him and yet they failed in tracing him out. It is not shown whether any notification was issued by the Government under Section 7(1)(b) of the COFEPOSA Act and a request was made to the court to take action under Section 7(1)(a) of the said Act. It needs little emphasis that the job of the detaining authority, where it has felt the necessity of detaining a person with a view to prevent him from indulging in nefarious activities, does not come to an end with the passing of an order. It is equally imperative that the detaining authority must pursue with full vigour and promptitude all avenues open to it to secure the detenu and have him detained to achieve the object for which the order has been passed.

12. In the present case it is evident from the reply affidavit that after passing the order, the detaining authority was indifferent in securing the detenu by taking proper actions with promptitude. Even executing agency seems to have treated the order of detention in a casual and cavalier manner. It has again been recently observed by the Supreme Court in S.M.F. Sultan Abdul Kader Vs. Joint Secretary to Government of India & Ors., that the unreasonable delay in executing the order creates a serious doubt regarding the genuineness of the detaining authority as regards immediate necessity of detaining the detenu in order to prevent him from carrying on the prejudicial activity referred to in the grounds of detention.

13. For all these reasons, we are of the view that the detaining authority has failed to explain the delay in execution of order of detention and thus, the order cannot be sustained on this short ground alone since the live and proximate link between the grounds of detention and the purpose of detention has been snapped on account of the undue and unreasonable delay in securing the detenu and detaining him.

14. Since we have accepted the first contention of learned counsel for the petitioner, it is unnecessary to deal with the other contentions urged by him, though, prima facie, we find substance in the second contention, noted above, as well.

15. Consequently, we allow the writ petition; make the rule absolute and quash further detention of the detenu under order dated 20 May, 1998 and direct that he shall be released forthwith unless required to be detained in any other case.

16. The operative part of this order will be communicated to the Jail authorities forthwith for compliance.