Manjit Singh vs Union Of India & Ors.
2000 Latest Caselaw 546 Del

ORDER

Usha Mehra, J.

1. Manjit Singh, petitioner has challenged his detention order dated 28th February,1990 passed by Shri Mahendra Prasad, Joint Secretary to the Government of India under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (as amended), 1974 (hereinafter called COFEPOSA).

2. Petitioner has assailed the impugned order of detention passed on 28th February,1990, primarily on three counts namely: (1) That the detention order passed on 28th February, 1990 remained unexecuted for a period of more than 10 years, thus the basis of preventive detention has been defeated by not serving the order of detention for such a long time; (2) The Foreign Exchange Regulatory Authorities (in short FERA) failed to file the challan till date which shows that there was no material available involving the petitioner; and finally (3) Whether the grounds which were available as on 28th February,1990, are still available to the Government of India when the order of arresting the petitioner dated 28th March,2000 was passed? It is the case of the petitioner that long delay in serving the detention order makes the order without any legal authority. It further show that the same has been passed in a mechanical way.

3. Brief facts of the case which led to the passing of the impugned order can be summarised as under.

4. The business premises of the petitioner was raided by the official of the FERA on 15th January,1990 because the authorities felt that he had been indulging in unauthorised transactions which were in violation of the provisions of Foreign Exchange Regulation Authority Act,1973 and were prejudicial to the augmentation of the country's foreign exchange resources.

5. Petitioner had been dealing under the name and style of M/s. Fair Deal Travel Agency. He had been engaged in receipt and distribution of Hawala Payments on large scale. Petitioner was formally arrested under FERA violation on 16th January,1990. He made a statement to the officials of FERA on 15th and 16th January,1990 confessing his guilt. He, however, on the next date i.e. 17th January,1990 retracted his confessional statement. He was released on bail on 15th February,1990 and bail order was confirmed in March/April,1991. Petitioner filed a writ petition in the High Court of Calcutta seeking restraining order against respondent from serving the order of detention under the provisions of COFEPOSA. On the application filed by the respondent, the stay granted in favour of petitioner stood vacated on 9th November,1990. The writ petition of the petitioner including the application seeking the interim stay was dismissed on 24th April,1991. Application filed for restoration of the said writ petition was also dismissed and the interim order passed against the service of detention order was vacated. However, the detention order passed on 28th February,1990 had not been served on the petitioner till 28th March, 2000 even though the petitioner remained in Delhi through out this period.

6. Mr. O.P. Saxena, learned counsel for the petitioner, therefore, contended that though the impugned order has been assailed on various grounds but the petitioner in this writ petition is restricting his argument on ground No.1 and the writ can be disposed of on the short question of delay in executing the order of detention. There has been undue delay of nearly 10 years which clearly indicates that there was no genuine satisfaction on the part of the detaining authority regarding the necessity of immediate detention of the petitioner in order to prevent him from committing and continue to commit prejudicial activities alleged against him. So much so no action under Section 7(1)(a) of the COFEPOSA was initiated for proceedings under Section 82/83 of the Code of Criminal Procedure. Mr. Saxena further contended that the petitioner was available through out in Delhi and had been regularly attending his daily work. Whereas respondent in its counte affidavit took the plea that detention order could not be executed because the petitioner was absconding and avoiding service. In para 2 of the counter affidavit the respondent has taken the plea that periodic efforts were made from time to time i.e. 7.8.91 to execute the detention order at his residence, on 22.4.92 and 26.5.92 at his business premises, on 31.6.92 at his residential as well as business premises, again on 17.10.92 at his residential as well as business premises, on 21.12.92 at his business premises, on 2.3.93, 27.9.93 and 5.1.94 at his residential and business premises, on 12.6.95, 2.11.95, 7.3.96 and 21.5.96 at his residential premises. Enquiry report indicated that petitioner was constantly eluding the service of the detention order. On enquiry at his residential address made on 21.5.96 left an impression on the respondent that petitioner had shifted out of Delhi. Efforts spreading over almost five years failed to locate the petitioner. Therefore, no further progress could be made after 1996 in the absence of specific intelligence about his whereabouts. However, specific intelligence was received suddenly on 22.2.2000 when it was learnt from a reliable source that petitioner was operating from Palika Kendra, Panchkuian Road, New Delhi and doing business of arranging visa for persons going abroad. He, however, kept his movement secretive. Surveillance was maintained at his residence. A specific information was received on 27th March,2000 that petitioner would be available at his residence on 28th March, 2000 and accordingly on 28th March, 2000 the petitioner was apprehended at his residence. It was because the petitioner remained elusive that the order of detention could not be serve. Order under Section 7(1)(a) of COFEPOSA Act was issued by the detaining authority directing the petitioner to appear before the Commissioner of Police at New Delhi. But the same was not complied by the petitioner. Thus Mr. Sarabjit Sharma, counsel for the respondent tried to justify the delay in executing the warrants. According to him continuous efforts were made by the State Police but still the petitioner could not be apprehended.

7. Petitioner refuted this plea of the respondent by asserting in the petition by specifically mentioning that he was available at his residence at Delhi. He had been drawing his ration regularly at the given address. He has his Permanent Account Number of Income Tax Department from the same address. He has got credit card from Standard Chartered Bank and he had been operating the same. He has also been paying premium of LIC at the same address. His children are getting education from the Cambridge Foundation School, Janak Puri and have been residing at the given address alongwith the petitioner. Petitioner had been implicated in some criminal case. In those cases he had been appearing in the Court of Additional Chief Metropolitan Magistrate. Mr. Saxena contented that above facts would show that petitioner was present in Delhi through out at his residential address as given in the record of FERA and COFEPOSA authorities. In fact no steps were taken by the FERA and COFEPOSA authorities to serve the order of detention passed on 28th February, 2000 till 28th March,2000.

8. At the outset it must be stated that respondent did not initiate any action under Section 7(1)(a) of the COFEPOSA. When confronted with this aspect, Mr. Sarabjit Sharma fairly conceded that provisions of Section 7(1)(a) Cr.P.C. COFEPOSA were not invoked. He has placed on record a letter received by him from Deputy Secretary, Government of India. Perusal of this letter dated 2nd May,2000 show that no action under Section 7(1)(a) of the COFEPOSA was initiated for proceedings under Section 82/83 of the Cr.P.C.

against the petitioner/detenu. This admission on the part of the Deputy Secretary, Government of India is a clear pointer to the fact that no serious steps were initiated by the COFEPOSA Authorities to serve the detention order on the petitioner. Even otherwise there is no denial by the respondent in the counter affidavit to the facts pleaded in the petition that petitioner's children are going to school at Delhi. He has been drawing ration and has been operating bank ccount. He has been using his credit card and that he had been involved in criminal cases for which purpose he has been attending the Court of Additional Chief Metropolitan Magistrate, Delhi. Except a vague statement given by the Authority that petitioner could not be apprehended no details furnished as to why detention order could not be executed even though the detention order was passed on 28th February,1990.

9. The argument of Mr. Sarabjit Sharma that till 1991 order could not be served because of the stay obtained by the petitioner from the Calcutta High Court. This argument has no force because the stay stood vacated in April/May,1991. From April/May,1991 till March, 2000 no convincing explanation has been given for non service and/or executing the detention order. We also find no force in the submissions of counsel for respondent that petitioner had been underground and eluding the execution of the detention order. There is nothing on record wheefrom it could be inferred that petitioner had been avoiding service of the detention order, nor respondent made sincere efforts in this regard to serve the detention order on him. The Apex Court in similar circumstances in the case of S.M.F.Sultan Abdul Kader Vs. Jt. Secy. to Govt. of India & Ors., reported in 1998(2) Crimes 339 (SC) held that when the delay in execution of the detention order remained unexplained the said unreasonable delay creates serious doubt regarding genuineness of detaining authority as regards the immediate necessity of detaining the petitioner in order to prevent him from carrying out the prejudicial activity referred to in the ground of detention. Such order of according to Supreme Court was passed by the detaining authority not in lawful exercise of the power vested in him and, therefore, set aside the order.

10. In similar circumstances in the case of P.U. Iqbal, Vs. Union of India and Ors., the delay of one year in arresting the detenu due to indifferent attitude of authorities and police officials was considered to be prejudicial to the State and, therefore, the detention was rendered invalid. It was observed that :-

"....delay unless satisfactory explained throws a considerable doubt on the genuineness of the requisite subjective satisfaction of the detaining authority in passing the detention order and consequently render the detention order bad and invalid because the `live and proximate link' between the grounds of the deten-

tion and the purpose of detention is snapped in arresting the detenu. "

11. To the same effect are observations of Supreme Court in the case of Bhanwarlal Ganeshmalji Vs. State of Tamil Nadu & Ors., wherein the Apex Court observed:-

"It is true that the purpose of detention under the COFEPOSA is not punitive but preventive. The purpose is to prevent organized smuggling activities and to conserve and augment foreign exchange. It is also true that the maximum period for which a person may be detained under the COFEPOSA is one year. It is further true that there must be a `live and proximate link' between the grounds of detention alleged by the detaining author-

ity and the avowed purpose of detention namely the prevention of smuggling activities. The Court in appropriate cases may assume that the link is `snapped' if there is a long and unexplained delay between the date of the order of detention and the arrest of the detenu. In such a case the Court may strike down order of detention unless the grounds indicate a fresh application of the mind of the detaining authority to the new situation and the changed circumstances. But where the delay is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the `link' not snapped but strengthened."

12. Unfortunately for the respondent in the facts of this case the link stood snapped. As pointed out above, respondent has not been able to show any serious efforts made to serve the petitioner. Nor the respondent has been able to deny the fact that the petitioner was available in Delhi thereby operating his bank accounts, sending his children to school, drawing his ration etc. Even otherwise if petitioner was absconding or avoiding service, Authority ought to have initiated action under Section 7(1)(a) of the Act by declaring him proclaimed offender. But from the letter of the Deputy Secretary dated 2nd May, 2000 as pointed out above it is clear that no action under Section 7(1)(a) of the COFEPOSA was initiated against the petitioner. No reason has been assigned for not initiating such action. It is thus apparent that Authority took the matter casually which lead to unreasonable delay in executing the order. Therefore, it creates a serious doubt regarding the genuineness of the detaining authority as regards the immediate necessity to detain the petitioner in order to prevent him from carrying on prejudicial activities.

13. From the perusal of the impugned order of 28th March, 2000, it also cannot be said that there was a fresh application of mind of the detaining authority to the new situation and to the changed circumstances. Therefore, we are of the considered view that the link stood snapped because of this long and unexplained delay between the date of order of detention and the arrest of the petitioner.

14. For the reasons stated above, I allow this writ petition, set aside and quash the order of detention and direct that the petitioner be set at liberty forthwith unless his presence is required in Jail in connection with some other case.