9911796707
TMI Blog2011 (7) TMI 1232X X X X Extracts X X X X X X X X Extracts X X X X ..... transit lounge on his arrival from Hongkong by Jet Airways Flight No.9W 0075 while he was found surreptitiously exchanging his hand bag and baggage with another passenger by name Shri Mohd. Shaikh Parvez Ali who was travelling to Delhi as a domestic passenger by Air India Flight No.AI 143 on the very same day. Both of them were brought to the office of the AIU with the baggages and in the presence of two independent panchas, baggages were examined. The hand bag passed on to Shri Mohd. Shaikh Parvez Ali was found to have 88,878 pieces of assorted Memory cards of foreign origin totally valued at ₹ 2,23,28,250/- (CIF) and ₹ 3,34,92,375/- (LMV). 129 pieces of sticker sheets each having 160 stickers with a description "Micro SD 2GB" were also recovered from the said bag. The recovered articles were seized and the bag passed to the detenu did not contain anything except the personal effects. However, the personal search of the detenu resulted in the recovery of Indian currency of ₹ 32,500/-. 3. On the same day, the statement of Shri Mohd. Shaikh Parvez Ali (resident of Mira Road (E), Dist. Thane) was recorded and he stated that he was to catch the Air India Flight sche ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of his employer Shri Shaikh Abdullah Zayed and the payment was made directly by telex transfer of money. The detenu was a frequent traveller between Hongkong and Mumbai and had made 20 trips during the last one and half year. The detenu was taken in custody on 25/3/2010 but came to be released on bail on 23/4/2010. The order further stated that considering the nature and gravity of the offence and the well organized manner in which the detenu had engaged in such prejudicial activities, it was imperative that he should be detained under the Act with a view to prevent him from indulging in smuggling activities in future. The copies of the document relied upon and referred to while passing the detention order were also made available to the detenu as stated in the order. 4. Mrs. Ansari, the learned counsel for the petitioner, who is the father of detenu, has challenged the detention order mainly on the following grounds:- (A) There was inordinate delay in submission of the proposal by the Sponsoring Authority on 15/9/2010 with reference to the date of arrest of the petitioner (25/3/2010) or the date of his release on bail (23/4/2010) and this delay has not been explained sati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed affidavit-in-reply and similarly Shri M. K. Shrivastava, Assistant Commissioner of Customs has filed affidavit and additional affidavit on behalf of the Sponsoring Authority i.e. the Commissioner of Customs, Mumbai. The petition has been opposed and it has been submitted that there was no delay caused in passing the detention order and the time taken at every steps has been properly explained. 6. It is well settled that the procedure as laid down under Article 22 of the Constitution must be strictly observed in the cases of preventive detention and the scope of judicial review in matters of preventive detention is practically limited to an enquiry as to whether there has been a strict compliance with the requirements of law. The Supreme Court in the case of Makhan Singh Vs. State of Punjab [AIR 1952 SC 27] held that before a person is deprived of his personal liberty the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person affected. The onus to show that the liberty of the detenu has been taken away in accordance with the procedure established by law is on the State i.e. the Detaining Authority who must show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 upon to answer and further the Court has to investigate whether the casual connection has been broken in the circumstances of each case. Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the 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." 8. In the case of Deepak Bajaj Vs. State of Maharashtra [(2008) 16 SCC 14] by following the earlier decision in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), Home Department, Government of Maharashtra states that the proposal submitted by the Additional Commissioner of Customs was received on 12/10/2010. It was scrutinized on 15/11/2010 and the Under Secretary endorsed it on 16/11/2010. It is not known as to why the scrutiny was delayed for more than a month i.e. from 12/10/2010 to 15/11/2010. This delay of more than a month has not been explained, leave alone a satisfactory explanation. Further it is stated that after the Joint Secretary endorsed the proposal on 18/11/2010 information was called from the Sponsoring Authority by letter dated 23/11/2010. The Sponsoring Authority forwarded the said information by its letter dated 14/12/2010 and it was received by the Detaining Authority on 20/12/2010. This delay in receiving the information from the Sponsoring Authority from 23/11/2010 to 14/12/2010 has not been explained properly by the Sponsoring Authority. In addition, the delay caused from 21/12/2010 onwards has also not been explained satisfactorily. It is stated that on 31/12/2010 the Sponsoring Authority forwarded three sets but the Detaining Authority i.e. Principal Secretary (Appeal and Security) had proceeded on sanctioned le ..... 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