9911796707
TMI Blog1991 (12) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... ere inside the zipper bag in the form of spanners coated with metallic paint totally weighing 1160 gms. and one was in the form of metallic would inside an Electric iron. All these eight gold pieces were seized under panchnama dated 13-6-1990 under the provisions of Customs Act, 1962. 3. The statement of the petitioner was recorded on the same day i.e. 13-6-1990 under S. 108 of the Customs Act, 1962 and he was arrested on the same day for an offence of non-declaration of gold punishable under the Customs Act, 1962. He was also granted bail, but he did not avail of the same. 4. As regards the case under the Customs Act, the petitioner waived show cause notice and besides directing confiscation of the gold pieces, a personal penalty of ₹ 40,000/- was imposed upon the petitioner by the Additional Collector (A.P.). 5. The file of the petitioner was sent to the COFEPOSA Cell on 25-6-1990 where the proposal was initiated on 23-8-1990 by the Sponsoring Authority for detention of the petitioner. The said proposal was approved by the Screening Committee on 27-8-1990 and thereafter it was sent to the Detaining Authority on 17-10-1990. After the said proposal was received in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) of the COFEPOSA Act, the said ground is contained in paras (vi) and (viii) of the grounds raised in the instant writ petition. According to the learned Counsel for the petitioner, the State Government has not submitted the report about the detention of the petitioner to the Central Government within ten days of the issue of the detention order as required by Section 3(2) of the COFEPOSA Act. In para (viii) of the grounds in the writ petition, it is stated that the State Government should be directed to give strict proof of how the report was sent to the Central Government, if at all, it was sent. 9. In reply to the above ground, it is stated in para 3 of the affidavit filed on behalf of the State Government that it had forwarded to the Central Government the report under S. 3(2) of the COFEPOSA Act on 5-2-1991 under the signature of Shri A. G. Karnik, Under Secretary, Home Department concerned who was authorised under the rules of business of the State Government to do so. It is further stated in para 3 of its affidavit that the said report was accompanied by - (1) Letter dated 17-10-1990 along with its accompaniments, (2) Detention-cum-committal order, and (3) Notice of grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Central Government a report within ten days of the issue of the detention order. In fact, this difference in the language is noticed by the Division Bench itself in para 10 of its judgment in the above case. The obligation cast upon the State Government under S. 3(2) is that the report has to be sent by it to the Central Government within ten days, but it is not necessary that it should also see that it reaches the Central Government within the said period. As already pointed out above, the report is forwarded by the State Government to the Central Government on 5-2-1991 i.e. within ten days of the issue of the detention order and hence there is no non-compliance by it with the requirement of Section 3(2) of the COFEPOSA Act. The above contention raised on behalf of the petitioner therefore cannot be accepted. 12. The next contention urged before us is about the delay in passing the detention order in the instant case. The learned Counsel appearing for the petitioner has urged before us that the gold pieces were seized from the petitioner on 13-6-1990 after he alighted at Sahar Airport, Bombay from the plane from Dubai to Bombay, but the order of his detention was issued a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that such subjective satisfaction was not genuinely reached. It is then held that taking of such a view would not be warranted unless the Court finds that the grounds are stale or illusory or that there is no real nexus between the grounds and the impugned order of detention. The Supreme Court has followed the above view in its subsequent decisions under the COFEPOSA Act. See M. Ahamed Kutty v. Union of India , Abdul Salam v. Union of India , Syed Farooq Mohammed v. Union of India . see also T. Abdul Rahman v. State of Kerala, 15. It is thus clear that delay in passing of an order of detention is not ipso facto fatal to the detention of a person and the real test to judge whether an order of detention is vitiated by reason of delay in passing the same is whether the grounds are stale or illusory or that there is no real nexus between the grounds and the impugned order of detention, or in other words, the live-link between the same is snapped by reason of such delay. Examining the facts in the instant case in the light of the above decisions of the Supreme Court, it cannot be said that the delay in passing the order of detention is so unreasonable as to make the grounds stale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces in a case show that with a view to prevent the smuggling activity, it is necessary to issue the order of detention even in the case of a solitary incident, it is open to the detaining authority to do so. See Mrs. Saraswati Seshagiri v. State of Kerala, , M. Mohammed Sulthan v. The Joint Secretary to Govt. of India, Finance Deptt., and Abdul Sathar Ibrahim Manik v. Union of India . 19. In the present case, it is true that as urged on behalf of the petitioner, there are no antecedents of the petitioner about his smuggling activity. It is, however, material to see for the purpose of the instant case that in the judgment of the Supreme Court in Abdul Sathar's case cited supra, it is held that even a solitary incident may manifest the potentialities of a detenu in smuggling and an order of detention issued under S. 3(1) of the COFEPOSA Act cannot be quashed merely on the ground that there were no antecedents. 20. The learned Counsel for the State has urged before us that the petitioner has potentiality in smuggling activity because although in service in Dubai, he has his family in India and is therefore likely to come to Indian often. He has further urged before us that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
