Delhi High Court

Ferdousi Rahman vs Union Of India & Anr on 4 May, 2011

Author: Badar Durrez Ahmed

       THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Judgment delivered on: 04.05.2011

+      W.P.(CRL) No.422/2011


FERDOUSI RAHMAN                                           ..... Petitioner

                        versus


UNION OF INDIA & ANR                                       ..... Respondents

Advocates who appeared in this case:-

For the Petitioner                :      Mr Pradeep Jain, Mr A. Samad,
                                         Mr Abhas Mishra, Mr Dveep Ahuja,
                                         Mr Michael and Mr S. Jha

For the Respondents               :      Mr A.S. Chandhiok, ASG with
                                         Mr Neeraj Chaudhari, CGSC,
                                         Mr Akshay Chandra and Mr Pratap
                                         Parmar

CORAM:-
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MS. JUSTICE VEENA BIRBAL

1. Whether reporters of local papers may be allowed to see the judgment? yes

2. To be referred to the Reporter or not? yes

3. Whether the judgment should be reported in the Digest? yes

BADAR DURREZ AHMED, J (ORAL)

1. This writ petition has been filed in respect of the detention of the

petitioner‟s husband Mosarraf Hossain (detenue) under Section 3(1) of

the Conservation of Foreign Exchange and Prevention of Smuggling

Activities Act, 1974 (hereinafter referred to as „the COFEPOSA Act‟) by

virtue of a detention order No. F 678/12/2010 - CUS/VIII dated

30.08.2010. Subsequent to the passing of the detention order, which was

served on the detenue on 01.11.2010, the detenue has been lodged in the

Presidency Jail (Correctional Home) Kolkata. His representation to the

detaining authority against the said detention which was dated 12.11.2010

had also been rejected by the detaining authority on 08.12.2010. Pursuant

to the Advisory Board opinion, the detention order has been confirmed

under Section 8(f) of the COFEPOSA Act by an order dated 20.01.2011

continuing the detention for a period of one year from the date of

detention.

2. Two grounds have been taken by the learned counsel appearing on

behalf of the petitioner by way of challenge to the detention order. The

first ground is of non-application of mind on the part of the detaining

authority. The second ground is that there was an inordinate and

unexplained delay in the execution of the detention order.

3. Insofar as the first ground is concerned, our attention was drawn

straightaway to Paragraph 19 of the grounds of detention which were

served upon the detenue. The said Paragraph 19 reads as under:-

"19. I am aware that Shri Mosarraf Hossain i.e. you have not sent any retraction in respect of your statement recorded by Directorate of Revenue Intelligence officials of Kolkata Zone."

4. A plain reading of the said Paragraph 19, according to the learned

counsel for the petitioner, indicates that the detaining authority has made

a categorical statement that she was aware that the detenue had not sent

any retraction in respect of his statement recorded by the Directorate of

Revenue Intelligence officials of Kolkata Zone. However, the learned

counsel for the petitioner points out that, as a matter of fact, no statement

of the detenue was recorded by the DRI officials under Section 108 of the

Customs Act, 1962 and, therefore, there was no question of retraction of

the same. The learned counsel also stated that in the representation made

to the detaining authority on 12.11.2010, the plea was specifically taken

that no statement under Section 108 of the Customs Act, 1962 of the

detenue had been recorded, so there was no question of any retraction.

However, the representation was rejected without any reference to this

plea, as noted above, by virtue of the communication dated 08.12.2010.

According to the learned counsel for the petitioner, this circumstance

clearly demonstrates the non-application of mind on the part of the

detaining authority and, therefore, on this ground alone the detention

order is liable to be set aside.

5. Coming to the second ground, the learned counsel for the petitioner

submitted that there has been a delay of 63 days in the execution of the

detention order. The detention order was issued on 30.08.2010 but was

served on the detenue on 01.11.2010. He submitted that a specific plea

was taken in the petition itself with regard to delay in execution of the

detention order despite the fact that throughout this period of 63 days the

detenue had been attending the office of the DRI regularly and

continuously from 25.08.2010 after the detenue‟s release on interim bail

till his detention on 01.11.2010. According to the learned counsel for the

petitioner, there is no explanation given as to why the detenue could not

have been served with the detention order when he was attending the

office of DRI, which is the sponsoring authority, on a regular basis as

would be apparent from Annexure-9 to the petition which are diary

entries indicating that the detenue had attended the office of Senior

Intelligence Officer, Directorate of Revenue Intelligence, Berhampore,

Sub-Zonal Unit, 3/20, K.K. Banerjee Road, Berhampore-742101 on the

following dates:- 25.08.2010, 01.09.2010, 06.09.2010, 14.09.2010,

21.09.2010, 26.09.2010, 05.10.2010, 13.10.2010 and 27.10.2010. The

learned counsel for the petitioner referred to the decision of this court in

the case of Saud Nihal Siddique v. Union of India & Anr.: 2011 (122)

DRJ 643 (DB) and a decision of the Supreme Court in the case of A.

Mohammad Farook v. Jt. Secy to G.O.I.: 2000 SCC (Cri) 411 in

support of the plea that an unexplained delay in the execution of a

detention order would be fatal to the detention order and the continued

detention of the detenue. In the case of A. Mohammad Farook (supra),

there was only a delay of 40 days in the execution of the detention order

whereas in the present case, according to the learned counsel for the

petitioner, there was an inordinate and unexplained delay of 63 days in

execution of the detention order.

6. For these reasons, the learned counsel for the petitioner submitted

that on both the grounds taken independently the detention order was

liable to be quashed and the petitioner was entitled to be set at liberty.

7. Mr A.S. Chandhiok, learned Addl Solicitor General, appearing on

behalf of the respondents submitted that insofar as the first ground was

concerned, i.e., of retraction having been mentioned by the detaining

authority when in fact there was no such retraction, it was merely a

typographical error as explained in the counter affidavit filed on behalf of

the respondents. He submitted that the statement that has been referred to

in the grounds of detention was that of one Mohibur Rehman who was

the co-detenue. Even the list of documents appended to the grounds of

reference had no referance to any statement made by the present detenue

i.e. Mosarraf Hossain. Therefore, it could be easily inferred that the

retraction which was being spoken of and the statement that was being

referred to in Paragraph 19 of the grounds of detention was not with

regard to the present detenue but in respect of the co-detenue Mohibur

Rehman. It was, therefore, contended that it was a mere typographical

error and did not, in any way, vitiate the detention order passed by the

detaining authority. Mr Chandhiok also referred to a decision of the

Supreme Court in the case of Kirti Kumar Nirula v. State of

Maharashtra and Others: (2005) 9 SCC 65 and, in particular, to

Paragraph 12 thereof to indicate that a minor typographical error which

did not enter in the formation of satisfaction by the detaining authority

ought to be ignored and cannot be regarded as an error which would

vitiate the detention order.

8. With regard to the plea that there was inordinate and unexplained

delay in executing the detention order, Mr Chandhiok, first of all,

submitted that the court must maintain a distinction between the detaining

authority and the sponsoring authority. While the sponsoring authority

(DRI) had knowledge of the fact that the detenue was attending their

office on a weekly basis pursuant to the interim bail order dated

18.08.2010, according to Mr Chandhiok, the detaining authority had no

such knowledge. It is in this backdrop that Mr Chandhiok sought to

distinguish the decisions cited by the learned counsel for the petitioner

both in the case of Saud Nihal Siddique (supra) and A. Mohammad

Farook (supra), because, in both those cases, according to Mr Chandhiok,

the whereabouts of the detenue were within the knowledge of the

detaining authority which, according to him, was not the case in the

present matter. Mr Chandhiok also referred to the decision of the

Supreme Court in the case of Vijay Kumar v. Union of India: (1988) 2

SCC 57 wherein the Supreme Court observed that the fact that the

detaining authority had mistaken a bailable offence for a non-bailable

offence had no bearing on the detaining authority making up its mind

with regard to detention and therefore such a slip up would not vitiate the

detention order. This decision was, of course, cited in the context of the

first plea taken by the learned counsel for the petitioner with regard to the

statement qua the fact that the detenue had not made any retraction.

9. After having gone through the record of this case and having heard

the arguments advanced by the counsel for the parties as noted above, we

are of the view that on both grounds the petitioner is entitled to succeed.

The first ground is that the detaining authority had not applied her mind

because she made a clear statement which was admittedly incorrect. The

detaining authority had made a positive statement in the grounds of

detention in Paragraph 19, which we have already extracted above, that

she was "aware" that Sh. Mosarraf Hossain had not sent any retraction in

respect of his statement recorded by the Directorate of Revenue

Intelligence officials of Kolkata Zone. When such a positive statement is

made by the detaining authority, it cannot be brushed aside as a mere

typographical error. What this statement indicates is that the detaining

authority was aware of two things. One, that a statement of the detenue

had been recorded by the DRI officials of Kolkata Zone and, two, that the

detenue had not sent any retraction in respect of the said statement. The

fact of the matter is that the detenue had not made any statement under

Section 108 of the Customs Act before the DRI and, consequently, there

was no question of any retraction of the same. The factum of making a

statement and of not retracting it is a very significant factor which goes

into the mind of the detaining authority while the detaining authority is

considering the question of detention. It is obvious that when a person

has made a statement and has not retracted the same, it is a very

significant circumstance which would entitle the detaining authority to

come to a conclusion that the detenue stands by that statement.

Consequently, the fact that the detaining authority after having positively

stated that the detenue has not made a retraction of a statement which was

allegedly recorded by the DRI, turns out to be false, the only inference

that can be drawn is that the detaining authority had not really applied her

mind to the facts of the case. For this reason, we are clearly of the view

that on this ground the detention order is liable to be set aside. The

decision cited by Mr Chandhiok in the case of Vijay Kumar (supra) is

clearly distinguishable because there the question was with regard to an

offence being bailable or non-bailable and that had no bearing on the

detaining authority‟s consideration of the question of detention. In the

present case, the fact that there was or was no retraction of an alleged

statement had a clear bearing on the decision making process leading to

the making of the detention order.

10. With regard to the second ground of there being an unexplained

delay in execution of the detention order, we find that in the case of A.

Mohammad Farook (supra), the Supreme Court in Paragraph 9 thereof

clearly held as under:-

"9. There is a catena of judgments on this topic rendered by this Court wherein this Court emphasized that the detaining authority must explain satisfactorily the inordinate delay in executing the detention order otherwise the subjective satisfaction gets vitiated. Since the law is well settled in this behalf we do not propose to refer to other judgments which were brought to our notice."

In the case before the Supreme Court, there was a delay of 40 days in

executing the detention order and even that period of delay, which went

unexplained on the circumstances of the case, was sufficient for the

Supreme Court to come to the conclusion that the detention order was bad

and the same was quashed and set aside. Other instances of detention

orders being quashed on the ground of unexplained delay in execution of

the same are set out in this court‟s decision in the case of Saud Nihal

Siddique (supra), which we need not repeat here.

11. Mr Chandhiok had submitted that a distinction has to be kept in

mind between the detaining authority and the sponsoring authority and

that what is known to be a sponsoring authority would not necessarily be

known to be the detaining authority. He also submitted that the detaining

authority had no knowledge of the order dated 18.08.2010 and the

condition of interim bail that the detenue was to report to the DRI

officials every week. This, unfortunately, is not borne out by the records.

The learned counsel for the petitioner had drawn our attention to

Paragraph 12 of the grounds of detention which reads as under:-

"12. Despite several summons issued to Shri Mosarraf Hossain i.e. you did not appear before the investigating agency i.e. DRI. Therefore DRI filed a petition before the court of Ld. CJM, Berhampore for issuance of warrant of arrest. You finally surrendered on 27.5.2010 and kept in Judicial Custody at Berhampore Correctional Home. The Honourable Court of Sessions Judge, Murshidabad vide its order dated 18.8.2010 granted interim bail."

(underlining added)

The said Paragraph clearly refers to the interim bail order dated

18.08.2010. The learned counsel for the petitioner had also drawn our

attention to Serial No. 15 of the relied upon documents, which is a copy

of the bail order dated 18.08.2010 with respect to the present detenue.

Therefore, the plea that the detaining authority was not aware of the

condition of interim bail that the detenue was to appear on a weekly basis

before the DRI officials, is untenable. Clearly, the sponsoring authority

as also the detaining authority, were aware of the fact that the detenue

was to report to the sponsoring authority every week as a condition of the

interim bail order dated 18.08.2010. We have also indicated above that

the detenue in compliance with the said condition had, in fact, appeared

before the Senior Intelligence Officer, DRI on the several dates referred

to above. This fact has not been explained satisfactorily by the

respondents. Therefore, in our view, there is a clear delay of 63 days,

which has gone unexplained, in executing the detention order. On this

ground also, following the decisions of the Supreme Court in A.