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TMI Blog2015 (8) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... ention order was vitiated on point of delay and therefore, deserves to be quashed and set aside – Decided in favour of Petitioner. - WRIT PETITION NO.231 OF 2015 - - - Dated:- 19-3-2015 - B.R. GAVAI A.S. GADKARI, JJ. Mrs. Aisha Z. Ansari for the Appellant. JUDGMENT (PER A.S. GADKARI, J.) : The present Petition under Article 226 of the Constitution of India for a Writ of Habeas Corpus of one Mavin Keezhil Mohamed Aslam, the detenu, has been preferred by the Petitioner, the friend of the said detenu, for quashing and setting aside the order of detention bearing No.PSA-1214/CR-52/SPL-3(A) dated 16th December, 2014 and for a direction that the detenu may be set at liberty. By the impugned order dated 16 th December, 2014, the detenu was ordered to be preventively detained by the Respondent No.2 in exercise of powers under Section 3(1) of the Conservation Of Foreign Exchange and Prevention Of Smuggling Activities Act, 1974 (for brevity 'the COFEPOSA Act'). By the impugned order it has been further directed that the detenu shall be detained in the Nashik Road Central Prison. 2. Heard Mrs.Ansari, learned counsel appearing for the Petitioner and Mr. Yagn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 2013 till his interception. It is noticed that the detenu had short stay in abroad during each visit. The hand bag which the detenu was possessing was screened and a dark image appeared on the monitor indicating some heavy metal concealed in the said shoulder bag. After following due procedure, the said hand bag was opened in the presence of the detenu, independent panch witnesses and AIU officers. In the said hand bag 7 packets wrapped with cream coloured cellophane tape were found. On removing the wrapped tape, 6 packets were found to contain 12 gold bars each weighing 1 kg. i.e. 2 gold bars in each packet, totally weighing 12000 grams and one packet contained 2 gold bars of 10 tolas each totally weighing 233.2 grams and collectively weighing 12233.2 grams valued at ₹ 3,14,13,268/-. One cellular phone valued at ₹ 30,000/- was also found on the person of the detenu. The statement of the detenu as contemplated under Section 108 of the Customs Act, 1962 was recorded on 11 th May, 2014. The detenu was arrested on 11 th May, 2014. That the detenu was released on bail by the Court of competent jurisdiction on 1 st July, 2014. The learned counsel appearing for the Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Supreme Court in the case of T.A. Abdul Rahman v. State of Kerala and others reported in AIR 1990 SC 225 and in particular, paragraph Nos.11 and 12 thereof, which read as under : 11. The conspectus of the above decisions can be summarised thus: The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that ig would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplained, the same would not be a ground for quashing an order of detention under COFEPOSA, but as in this case a major part of delay remains unexplained. 15. Delay, as is well known, at both stages has to be explained. The court is required to consider the question having regard to the overall picture. We may notice that in Sk. Serajul v. State o W.B.1 this Court opined : (SCC p. 80, para ) There was thus delay at both stages and this delay, unless satisfactorily explained, would throw considerable doubt on the genuineness of the subjective satisfaction of the District Burdwan recited in the order of detention. Magistrate, It would be reasonable to assume that if the District Magistrate of Burdwan was really and genuinely satisfied after proper application of mind to the materials before him that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner, he would have acted with greater promptitude both in making the order of detention as also in securing the arrest of the petitioner, and the petitioner wold not have been allowed to remain at large for such a long period of time to carry on his nefarious activities. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al on 23.05.2014. The proposal was prepared on 28.05.2014 and placed before the Chief Commissioner of Customs on 04.06.2014, approval of the same was received on 12.06.2014 from the Chief Commissioner's office. Further, the proposal along with all relevant relied upon documents was forwarded to the chairman of the COFEPOSA Screening Committee for consideration on 17.06.2014. The date for meeting COFEPOSA Screening Committee was fixed on 17.06.2014. The minutes of the COFEPOSA Screening Committee meeting was issued on 18.06.2014 wherein the Screening Committee approved our proposal and was received in Cofeposa Section on 20.06.2014. After getting approval of the Screening Committee, we have submitted 4 sets of the proposal, brief facts and indexed relied upon documents in the office of the Detaining Authority i.e. Principal Secretary (appeals security), Home 26.06.2014. ig Department, Govt. of Maharashtra on It is thus, to be noted here that the Respondent No.3 has explained the delay on their behalf upto 26th June 2014. 9. Mr. Sanjay Dagadu Khedekar, Deputy Secretary, Home Department, Government of Maharashtra, Mantralaya, Mumbai, in his affidavit dated 16th March, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 07.10.2014 informed that they had already communicated the information to the office of the Detaining Authority vide their letters dated 30.07.2014 and 18.08.2014. But since this information was not the information called by the office of the Detaining Authority, hence the Sponsoring Authority was once again informed by letter dated 20.10.2014 to send the information asked vide letter dated 09.09.2014. Accordingly, Sponsoring Authority vide letter dated 05.11.2014 forwarded the information which was submitted for consideration and appropriate orders placed before the Detaining Authority on 20.11.2014 by the concerned Assistant. The Section Officer and the then Deputy Secretary endorsed the same on 20.11.2014. The Detaining Authority on 20.11.2014 after being subjectively satisfied with the information received from the Sponsoring Authority noted that there are enough grounds to order the preventive detention in this case. Accordingly, the Detaining Authority prepared and dictated the Detention Order, Grounds of Detention and the Annexures till 12.12.2014 and the same were issued on 16.12.2014. In fact, the time which has been spent by the Detaining Authority shows the sincere ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Pal Singh v. M.L. Wadhawan Ors., Cri. W. No. 444/86 dated 9.3.1987 and Ramesh Lal v. Delhi Administration, Cri. W. No. 43/84 dated 16.4.1984 and other cases taking the same view do not lay down good law and are accordingly overruled. 12. Even though there was no explanation for the delay between February 2 and May 28, 1987 it could not give rise to a legitimate inference that the subjective satisfaction arrived at by the District Magistrate was not genuine or that the grounds were stale or illusory or that there was no rational connection between the grounds and the impugned order of detention. There is a plethora of decisions of this Court as to the effect of unexplained delay in taking actions. These are admirably dealt with in Durga Das Basu's Shorter Constitution of India, 8th edn. at p. 154. We will only notice to a few salient decisions. In Olia Mallick v. State of West Bengal, [1974] 1 SCC 594 it was held that mere delay in making the order was not sufficient to hold that the District Magistrate must not have been satisfied about the necessity of the detention order. Since the activities of the detenu marked him out as a member of a gang indulging systematica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintenance of public order. See also: Gora v. State of West Bengal, [1975] 2 SCR 996; Raj Kumar Singh v. State of Bihar Ors., [1986] 4 SCC 407 and Hemlata Kantilal Shah v. State of Maharashtra, [1981] 4 SCC 647. The second decision relied upon by the learned APP is in the case of Licil Antony v. State of Kerala and another reported in 2014 STPL (Web) 266 SC and relied upon paragraph 7 of the said decision which reads as under : We have given our thoughtful consideration to the rival submissions and we have no doubt in our mind that there has to be live link between the prejudicial activity and the order of detention. COFEPOSA intends to deal with persons engaged in smuggling activities who pose a serious threat to the economy and thereby security of the nation. Such persons by virtue of their large resources and influence cause delay in making of an order of detention. While dealing with the question of delay in making an order of detention, the court is required to be circumspect and has to take a pragmatic view. No hard and fast formula is possible to be laid or has been laid in this regard. However, one thing is clear that in case of delay, that has to be satisf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. The learned counsel appearing for the Petitioner in response to the arguments advanced by the learned APP and the affidavits filed by the concerned authorities relied upon a judgment of the Division Bench of this Court in the case of Keshav Jaru Salian v. Union of India reported in 1991 (54) E.L.T. 55 (Bom.) and in particular, paragraph 5 of the said judgment, which reads as under : 5. The detaining authority has filed its affidavit in reply to this petition. The reply to this averment contains in paragraphs 5, 6 and 7 of the said affidavit. Reading of this reply is very much amusing inasmuch as except by repeating time and again, some additional documents were called for and, therefore, there has been delay. We have carefully gone through the affidavit in reply and in particular paragraphs 5, 6 and 7 and we are satisfied that the delay sought to be explained by the detaining authority is nothing but a whitewash and such explanation can hardly be accepted in cases where preventive orders are sought to be issued on the footing that the detaining authority was subjectively satisfied that the detenu is likely to indulge in prejudicial activities under the COFEPOSA Act and with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2014 of about 11 days and between 20th September, 2014 to 17th October, 2014 of about 27 days has not at all been explained so as to state what happened about the movement of the proposal for issuing the detention order between the said period of 38 days. It has further been mentioned in the said affidavit that the sponsoring authority vide its letter dated 7th October, 2014 informed that they had already communicated the information to the office of the detaining authority vide their letters dated 30th July, 2014 and 18th August, 2014. The detaining authority has failed to explain as to what prevented them from 7th October, 2014 to take expeditious steps in issuing the detention order despite the communication from the sponsoring authority. The affidavit further discloses that the sponsoring authority vide its letter dated 5 th November, 2014 forwarded the information which was submitted for consideration and appropriate orders to the detaining authority on 20 th November, 2014 and after being subjectively satisfied with the information received from the sponsoring authority, noted that there are enough grounds to order the preventive detention in the present case. The detaining a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust, 2014 as stated in the earlier part of this paragraph. The record further reveals that to a questionnaire ig sent to the sponsoring authority by the detaining authority, a specific question was asked as to whether, after forwarding the proposal to the detaining authority till that date, the proposed detenue was found to be involved in smuggling / adverse activities. The record further discloses that to the said query raised by the detaining authority the sponsoring authority has specifically and categorically submitted an answer stating therein that the proposed detenu was not involved in any smuggling / adverse activities subsequent to the sending of the proposal. It is to be noted here that the detaining authority in its affidavit dated 16 th March, 2015 in its paragraph 6 except making passing reference to the aforesaid communication addressed by the sponsoring authority, has nowhere explained as to what prevailed upon them for sending the letters to sponsoring authority again and again. The affidavit is also silent about the necessity of correspondence entered into by the detaining authority with the sponsoring authority despite the fact that the sponsoring authority ..... X X X X Extracts X X X X X X X X Extracts X X X X
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