9911796707
TMI Blog2015 (8) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... orily explained – Explanation rendered by respondents was not satisfactory and authorities cannot play with liberty of citizen in such casual manner – As principle of law, unexplained and inordinate delay in passing of detention order would vitiate detention order – Thus, order of detention quashed – Detenu to be released – Decided in favour of petitioner. - Criminal Writ Petition No. 1929 of 2015 - - - Dated:- 9-7-2015 - S. C. Dharmadhikari And G. S. Kulkarni, JJ. For the Appellant : Mrs A M Z Ansari with Mrs Nasreen Ayubi For the Respondents : Mr Jayesh B Yagnik APP JUDGMENT ( Per G. S. Kulkarni, J ) 1. This writ petition under Article 226 of the Constitution of India challenges the order dated 15th December 2014 passed by the second respondent in exercise of the powers under subsection (1) of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short COFEPOSA Act ). By the impugned order the 2nd respondent has directed that one Shri Mohammed Aboobaker shall be preventively detained with a view to prevent him in future from smuggling of goods as well as engaging in transporting and concealing and keeping ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dealing with the case of the detenu. In paragraph 4 of the reply the sponsoring authority has stated that the case against the detenu was booked on 11th May 2014. Statement of the accused was recorded on 11th May 2014 and the detenu was arrested on the same date. The detenu was produced before the Additional Chief Metropolitan Magistrate, 8th Court, Mumbai on 12th May 2014 when the detenu retracted his statement before the Court. The Additional Chief Metropolitan Magistrate remanded the detenu to judicial custody up to 23rd May 2014. A Bail Application came to be moved by the detenu on 16th May 2014 and to which a reply came to be filed on 21st May 2014. The judicial custody of the detenu was extended up to 3rd June 2014 and again was extended up to 17th June 2014 and thereafter further extension was granted up to 27th June 2014 and again extended till 1st July 2014. Bail was granted to the detenu on 1st July 2014. It is further stated that on completion of the preliminary investigation, the file was forwarded to the COFEPOSA cell on 2nd June 2014 by making a proposal. The proposal was prepared on 3rd June 2014 and placed before the Chief Commissioner of Customs on 4th June 2014 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 23.07.2014. In the meanwhile, the Sponsoring Authority forwarded further generated documents from page no.8586 on 12.08.2014. The Sponsoring Authority again forwarded further generated documents from Page no,.8797 and additional information by letter dated 18.8.2014 which was received in the office of the Detaining Authority on 20.8.2014. This information along with the further generated documents were scrutinized till 01.09.2014 and accordingly the concerned Assistant submitted the scrutiny note on 02.09.2014. The Section Officer endorsed it on 02.09.2014 and the then Deputy Secretary endorsed it on 03.09.2014. The Detaining Authority approved the scrutiny note on 06.09.2014. As per the approval of the Detaining Authority the additional information was called by letter dated 09.09.2014. On not receiving the information, reminder letters were issued on 20.09.2014 and 17.10.2014. The Sponsoring Authority by letter dated 07.10.2014 has forwarded incorrect information. Hence, third reminder letter seeking comments on letter dated 09.09.2014 was issued on 20.10.2014. In reply to this letter, the Sponsoring Authority forwarded information by letter dated 05.11.2014. This letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld justify the delay. It is submitted that the version of the detaining authority also cannot be believed as the sponsoring authority has categorically stated in its reply affidavit that all the information was despatched on 4th August 2014 and 18th August 2014. It is therefore, urged that the version of both these authorities are completely different and that this entirely supports the case of the petitioner that delay in issuing the detention order is not only unexplained but, grossly inordinate warranting interference of this Court to quash and set aside the same. 6. In support of her submissions, learned counsel for the petitioner has relied on the following decisions: (i) Pradip Nilkanth Paturkar vs S.Ramamurthi AIR 1994 SUPREME COURT 656; (ii) Isaac Babu vs Union of India (1990) 4 Supreme Court Cases 135; (iii) Saeed Zakir Hussain Malik vs State of Maharashtra (2012) 8 Supreme Court Cases 233; (iv) Jehova Vision Uche Umecurike vs J.P.Dange Criminal Writ Petition No.1008 of 1992; (v) Keshav Jaru Salian vs Union of India 1991 (54) E.L.T. (55) Bombay, (vi) Niyaz Ahmed Ansari vs State of Maharashtra Writ Petition No.231 of 2015. 7. On the other hand, le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent to judicial custody by an order passed by the Additional Chief Metropolitan Magistrate, Mumbai and was granted bail by the said Court on 1th July 2014. A perusal of the affidavit-in-reply filed on behalf of the sponsoring authority shows that decision was taken by the COFEPOSA screening committee in its meeting held on 17th June 2014 approving the detention proposal to be forwarded to the detaining authority which ultimately came to be forwarded by the COFEPOSA section of the sponsoring authority to the detaining authority on 26th June 2014 and that further generated documents were sent to the detaining authority from 14th August 2014 to 18th August 2014. There is no explanation in the reply affidavit filed on behalf of the sponsoring authority as regards the delay from 26th June 2014 to 4th August 2014 as also the affidavit is completely silent on the effect of these so called further generated documents being forwarded to the detaining authority. The detaining authority however, gives a completely different version to say that the assistant in the office of the detaining authority submitted a scrutiny note on 2nd September 2014 which was endorsed by the Section Officer on 2n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eafter, there is no explanation between the period 30th June 2014 the date on which the proposal is received by the sponsoring authority till 24th July 2014 on which date the Assistant in the Department of the detaining authority prepared the scrutiny note. Thus, the delay on the part of the authorities finds no explanation and much less an explanation that can be reasonably believed that the authorities were serious to expediently act on the proposal, in fact they were acting at their leisure in deciding on an issue as serious as to preventively detain a citizen affecting his fundamental rights guaranteed by Article 21 of the Constitution of India. The manner in which the proposal was handled in the Office of the detaining authority namely the Assistant preparing the scrutiny note, the Section Officer endorsing it to the Deputy Secretary and the Joint Secretary endorsing the same to the detaining authority and further the detaining authority again approaching the sponsoring authority in the month of September 2014 and waiting till the reply of the sponsoring authority up to 5th November 2014 clearly indicates the casualness and show the absence of any live link or nexus between th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween the prejudicial activities and the purpose of detention is snapped on account of the long delay in passing the detention order. 15. The reliance as placed by the learned APP on the decisions of the Supreme Court in the case of Rajendrakumar Natvarlal Shah and Licil Antony vs State of Kerala (supra) would not assist the respondents in the facts of the present case. In RajendraKumar Natvarlal Shah (supra) the direct and proximate cause for the order of detention was importation of bulk of Indian made foreign liquor by the appellant on the night between December 29th/30th, 1986 who was acting as a cross border broker. On 1st April 1986 the driver and cleaner of the truck made a statement implicating the appellant as the main person. The appellant thereupon absconded and had moved for an anticipatory bail on 21st April 1987 but, no orders were passed as the police made a statement that there was no proposal at that stage to arrest him. The appellant was prosecuted for the offences under Bombay Prohibition Act. On 2nd February 1987 the appellant was arrested but later on released on bail. After a lapse of 5 months i.e. 28th May 1987 the District Magistrate, Godhra passed the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rable to the case in hand. In this decision, the Supreme Court has reiterated the position in law that if there is no explanation offered by the authorities concerned with detention as to why the order of detention has been issued after a long time, then in that case such unsatisfactory and unexplained delay would vitiate the detention order. The facts of the case with which the Supreme Court was dealing, were quite gross. The allegations related to export of red sanders through International Container Transhipment Terminal. The sponsoring authority took some time to determine whether the prejudicial activities of the detenu justified the detention. During the inquiry, it transpired that the detenu and two others were part of a well organised gang operating in smuggling of red sanders in India and abroad. It is only thereafter that on 17th December 2012 the sponsoring authority made recommendations for the detention of the detenu and two others under section 3 of the COFEPOSA Act. In the counter affidavit, it was stated by the respondents that the record of the sponsoring authority and the scrutiny committee and other material consisted of over 1000 pages. The proposal of the spons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ite distinct. The detenu was granted bail on 1st July 2014. Though the proposal for detention was initiated on 2 June 2014 and forwarded to the detaining authority on 26th June 2014 the order of detention was passed on 15th December 2014. As observed above, the respondents have failed to explain the delay satisfactorily. Apart from that what is more intriguing is that the delay occasioned in passing the detention order shows that the live nexus between the prejudicial activity has snapped, which would justify the exercise of powers by the authorities as envisaged under section 3 (1) of the COFEPOSA Act. 18. In view of the above discussion, we are of the clear opinion that the petition needs to succeed. We pass the following order: ORDER (i) Writ petition succeeds. The order of detention is quashed. The detenu shall be released forthwith, if not required in any other case. In the view that we have taken and finding substance in the ground raised by the detenu that the detention order is vitiated by unexplained and unreasonable delay, we deem it unnecessary to deal with the other grounds on which the detention order has been challenged. (ii) All concerned to act on the au ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
