Ranjan Raghunath Belekar vs Union Of India (Uoi) And Ors.
2008 Latest Caselaw 238 Del

JUDGMENT

Vikramajit Sen, J.

1. The Petitioner prays for the quashing of the impugned Detention Order dated 14.2.1997 whereby, with a view to prevent him in future from acting in any manner prejudicial to the augmentation of foreign exchange, it was found necessary to direct him to be detained and kept in custody. The prayer to produce the Petitioner and set him at liberty has been rendered infructuous as the Detention Order has expired. The challenge is founded on the grounds of delay in passing the Detention Order; non-supply of copies of baggage tags and Search Warrants, thereby undermining the effective representation against the Detention Order; and that since the Passport of the Petitioner had been impounded, no further illegal activity was possible.

2. Arguments were heard in great detail on 9.1.2008 for over one hour. Regretfully, all that time only a proxy counsel for the Respondents was available, who was unable to assist us in the matter. We have deliberately delayed the pronouncement of this Judgment, but that notwithstanding, no appearance, request or representation has been made by the counsel on record. We have, therefore, carefully perused the Counter Affidavit in an effort to gather and understand the case of the Respondents. The facts of the case can be drawn from the grounds on which the impugned Detention Order has been issued, dated 14.2.1997. It recites that the Petitioner was arrested under Section 35 of the Foreign Exchange Regulation Act, 1973 (FERA for short) on 25.9.1996 by the officers of the Enforcement Directorate, Mumbai. One day earlier, on 24.9.1996, the Petitioner had been apprehended, his statement had been recorded, and his residence had been searched. On being produced before the Chief Metropolitan Magistrate, Mumbai, he was remanded to judicial custody till 30.9.1996 on which date he was enlarged on bail. As is evident, the Detention Order was passed almost after the passage of five months. There is no material on record, and certainly none has been brought to our notice, because of the non-representation of the Respondents, showing investigation of any sort was undertaken between September/October, 1996 and February, 1997. There is no gainsaying that Preventive Detention can be justified only if there is a clear and present possibility or danger of illegal activity (smuggling in this instance) being continued; wherever unexplained delay occurs this presumption no longer endures or exists.

3. Almost four decades ago it had been observed in Moti Lal Jain v. State of Bihar that the interest of society are no less important than that of an individual and that when these two rights collide with each other, the Court must bring in being a balance between them. A score years later, in T.A. Abdul Rahman v. State of Kerala the Supreme Court opined that "when there is unsatisfactory and unexplained delay between the date of detention and the date of securing arrest of the detenu such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner". These observations have been extracted and reiterated in Rajinder Arora v. Union of India . This kind of delay has been found to be fatal in P.M. Hari Kumar v. Union of India and SMF Sultan Abdul Kader v. Jt. Secy. to Govt. of India . A complete analysis of the law is available in the decision of the Division Bench of this Court in Dalbir Singh v. Union of India 1995 I AD (Delhi) 1169 which deals with the circumstances that can be considered as constituting delay both in the passing of the Detention Order as well as its execution. Dalbir Singh also discusses the facet of non-supply of documents. Therefore, it would apply on all fours to the case in hand unless, in the decade that has elapsed since its pronouncement, the Supreme Court has varied the law. It appears to us that the law has not been changed. This is evident from a reading of Rajinder Arora, Vinod K. Chawla v. Union of India and Sheetal Manoj Gore v. State of Maharashtra (2006) 7 SCC 560.

4. In Sk. Nizamuddin v. State of West Bengal it has been observed that the Detaining Authority is obliged "to place all relevant facts before the Court and if there is any delay in arresting the Detenu pursuant to the Order of Detention which is prima facie unreasonable, the State must give reasons explaining the delay". In that case no explanation had been tendered and the Detention Order was quashed. The facts in Issac Babu v. Union of India were that the Detenu was implicated by the main culprit in his statement under Section 108 of the Customs Act recorded on 30.11.1986. The Detention Order came to be passed only on 7.10.1987 and was executed on 23.5.1988. The delay was considered sufficient reason to quash the Detention Order. In A. Mohammed Farook v. Jt. Secy. to G.O.I. the Order was made on 25.2.1999 and executed on 5.4.1999. But in the interregnum the Detenu was available in Court proceedings on 25.2.1999 and 25.3.1999. Since no explanation was forthcoming as to why the Order was not executed at least on these dates, it was quashed. In Abdul Kader the Detention Order was passed on 14.3.1996 and executed on 7.8.1997 and the Court found that no explanation had been given for the period 14.3.1996 to 25.4.1996. In P.V. Iqbal v. Union of India 1992 (1) Crimes 166 the Detention Order was dated 21.8.1989, received by the Superintendent of Police on 1.9.1989 who further dispatched it to the Circle Inspector, Thrissur, who thrice reported that the Detenu was not available in his native place. The Government issued an Order under Section 7(1)(b) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) on 14.5.1990. Eventually, the Detenu was arrested on 9.8.1990 from his village. The Court was of the view that the Detaining Authority, after passing the Detention Order, was indifferent in securing the Detenu by not taking appropriate action with greater promptitude. The police officials have treated the Warrant of Arrest in a casual manner and unduly delayed its execution". The Order was quashed for this reason. In K.P.M. Basheer v. State of Karnataka the Detenu was, on 12.11.1990, found in possession of gold with foreign markings for which no valid explanation was forthcoming. The impugned Order was passed on 7.1.1991 and it was served on 28.6.1991. The Order could have been served on the Detenu as he had appeared before the Assistant Collector of Customs on 6.2.1991 and 20.2.1991. It was in these circumstances that the Court was unable to locate the live and proximate links between the grounds of detention, and took the view that the purpose of detention had snapped on account of undue and unreasonable delay. It should be noted that Section 7(1)(b) of the COFEPOSA Act had not been resorted to.

5. In Shafiq Ahmad v. District Magistrate Meerut it was noted that from 15.4.1998 to 12.5.1988 and thereafter from 29.9.1988 to 2.10.1988 no attempt had been made to contact or arrest the Detenu and no explanation had been offered for this inactivity. In Ahamed Mohaideen Zabbar v. State of Tamil Nadu a Show Cause Notice was issued to the Detenu under the Customs Act on 4.5.1998 and the adjudication proceedings were completed on 9.1.1998. The Detention Order was passed on 23.11.1998 and since no explanation was tendered for the delay, it was struck down. In S.K. Serajul v. State of West Bengal delay at the stage of passing of the Detention Order as well as its execution was found not to have been specifically explained. The Court clarified that they "must not be understood to mean that whenever there is delay in making an Order of Detention or in arresting the Detenu pursuant to the Order of Detention, the subjective satisfaction of the Detaining Authority must be held to be not genuine or colourable. Each case must depend on its peculiar facts and circumstances. The Detaining Authority must have a reasonable explanation for the delay and that might be seen to dispel the inference that its satisfaction was not genuine". In Manju Ramesh Nahar v. Union of India the Detention Order was passed on 3.2.1997 which was executed on 23.4.1998. The Court was not impressed with the vague allegation that the Detenu was absconding and was apprehended on 21.3.1998; it was found that the parties had not given details of any steps that might have been taken in the meantime to execute the Order.

6. From a distillation of these decisions it appears to us that if we are subjectively satisfied that unexplained and unjustified delay has occurred either in the passing of the Detention Order or in its execution, the assault on the liberty of an individual must be redressed forthwith. However, the jural assessment of such grounds is not akin to that prevailing in criminal matters. This distinction has been drawn in Union of India v. Amrit Lal Manchanda where their Lordships observed thus:

8. ...The satisfaction of the Detaining Authority, therefore, is considered to be of primary importance, with great latitude in the exercise of its discretion. The Detaining Authority may act on any material and on any information that it may have before it. Such material and information may merely afford basis for a sufficiently strong suspicion to take action, but may not satisfy the tests of legal proof on which alone a conviction for offence will be tenable. The compulsions of the primordial need to maintain order in society without which the enjoyment of all rights, including the right to personal liberty of citizens would loose all their meanings provide the justification for the laws of prevention detention. Laws that provide for preventive detention posit that an individual's conduct prejudicial to the maintenance of public order or to the security of State or corroding financial base provides grounds for satisfaction for a reasonable prognostication of possible future manifestations of similar propensities on the part of the offender. This jurisdiction has at times been even called a jurisdiction of suspicion. The compulsions of the very preservation of the values of freedom of democratic society and of social order might compel a curtailment for individual liberty. "To, lose our country by a scrupulous adherence to the written law" said Thomas Jefferson "would be to lose the law itself, with life, liberty and all those who are enjoying with us, thus absurdly sacrificing the end to the needs". This, no doubt, is the theoretical jurisdictional justification for the law enabling prevention detention. But the actual manner of administration of the law of preventive detention is of utmost importance. The law has to be justified by striking the right balance between individual liberty on the one hand and the needs of an orderly society on the other.

7. In Hemlata v. State of Maharashtra the Apex Court has clarified that the Constitution of India does not empower the writ Court or even the Supreme Court to function as an appellate forum on the merits of the Detention Order. Their duty is to ensure that all the formalities enjoined by Article 22(5) have been complied with by the Detaining Authority.

8. Reliance has been placed by Mr. Raju Ram Chandran, learned Senior Counsel for the Petitioner on Issac Babu (supra), Rajinder Arora(supra) and T.A. Abdul Rahman(supra).

9. It is in the conspectus of these cases that we have to test whether there is any delay, and if so, whether a valid explanation has been tendered in respect thereof. We have perused the Counter Affidavit filed by the Joint Secretary, COFEPOSA and find that no explanation is forthcoming as to why a delay of almost five months had occurred between the relevant incident in September/October, 1996 and the passing of the impugned Detention Order in February, 1997. We, therefore, are of the view that the impugned Detention Order must be quashed on this ground.

10. We are, however, not impressed with the contention that since the Petitioner's Passport had been impounded, any further illegal activity by him had become impossible. Smuggling or illegal transactions of foreign exchange are most often carried out through organized gangs. Even if the Petitioner had been disabled from traveling abroad because of the impounding of his Passport, his continued participation in these illegal activities cannot be ruled out. All that can be assumed is that the Petitioner would not be the person actually and physically carrying the foreign exchange or smuggled goods. There is every reason to assume, keeping the background of such person in perspective, that he would find a substitute. Therefore, confiscation of the Passport is not per se a ground for quashing the Detention Order.

11. A copy of the Detention Order and the grounds have been supplied to the Petitioner in English as well as in Hindi. His ipse dixit, totally unsubstantiated, that although he has studied up to SSC level, he could only read and write Marathi cannot be accepted by the Court. It has been pointed out in the Counter Affidavit that the Petitioner had given his statement, in his own handwriting, in Hindi. This ground is patently false and untenable.

12. It has next been contended by learned Senior Counsel for the Petitioner that several documents, relied upon by the Respondents, had not been supplied, thereby seriously handicapping the Petitioner's right to make a Representation. In the first place, it has been contended that copies of the baggage tags have not been supplied. According to the Respondents the impugned foreign currency was found in checked-in baggage allegedly belonging to the Petitioner. In our opinion, the case of the Respondents could not have been made good unless, but by reliance on the baggage tags/ticket jacket etc. The foreign currency could be traced back to the Petitioner only through these documents, which assume the nature of relied upon documents and therefore ought to have been supplied to the Petitioner. The rights of the Petitioner under Article 22(5) of the Constitution of India have been seriously compromised and the Detention Order is liable to be quashed on this ground. No meaningful asseverations on this point are available in the Counter Affidavit. The situation is similar in the case of Search Warrants and Summons. In the Counter Affidavit it has been stated that copies of the Search Warrants are not furnished as a practice. The practice adopted by the Respondents is wholly irrelevant if it does not meet with the requirements of law. This is especially so in those cases where these documents are relied upon or perforce must be relied upon by the Detaining Authority. As in the case of baggage tags we are of the view that non-supply of copies of the Summons and Statements recorded of the co-accused, the Detention Order is bad in law.

13. For the reasons sated above, firstly since there is an inordinate and unexplained delay between the incident and the issuance of the Detention Order and secondly because copies of all the documents relied upon by the Respondents had not been served on the Petitioner, the Detention Order is liable to be set aside. We accordingly quash and set aside the impugned Detention Order. Parties to bear their respective costs. Petition is disposed of.