9911796707
TMI Blog2007 (7) TMI 651X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of foreign exchange resources of the country in future and from acting in any manner prejudicial to the conservation of foreign exchange and prevention of smuggling activities, that necessary orders requires to be passed under Section 3(1) of the Act to detain the petitioner's husband, Sri.Jayaprakash and accordingly, in exercise of the powers under Section 3 (1) of the Act, the detaining authority has ordered for detention of the petitioner's husband Sri.Jayaprakash in custody in Central Jail, Thiruvananthapuram. In so far as the petitioner's husband is concerned, the detaining authority in the grounds of the detention order passed on 27.11.2003 supplied to the detenu has stated as under: During the course of investigations, the Direcorate further noticed that funds were transferred from Shri V.Abdul Kareem's account to your S.B.A/c. No.22055 with M/s. Lord Krishna Bank, Thrissur. Your address was given as Devaki Villa, Parlikkad P.O., Wadakkancherry. You were found to be maintaining the following bank accounts; Sl.No. Name of the Bank Current A/c.No. Amount (in Rs.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m over phone; and that you agreed to do so. It was subsequently found that in the A/c. No.1367 with South Indian Bank, Thrissur -1, you had received ₹ 1.93 crores by means of Telegraphic Transfers from the A/c. No.1723 of one Shri Jaison J.Alappat with South Indian Bank, Fort Branch, Mumbai, as per the arrangement of Shri V.Abdul Kareem. There was also an A/c. No.269 with Catholic Syrian Bank, Thrissur in the name of M/s.Anaswara Bullion showing yourself as its proprietor and you had signed as such in the bank documents. In your further statement dated 28.04.2003 with reference to the transaction in your Current A/c. No.698 with Akola Janata Commercial Co-operative Bank, Mumbai, inter alia admitted that you had opened the said account as per the instructions of Shri V.Abdul Kareem; that cash deposits totalling ₹ 71,02,000/- were made into the said by him during 17.12.1999 to 21.12.1999; that those amounts were given to you by Shri V.Abdul Kareem; that as directed by Shri V.Abdul Kareem you obtained pay orders for amounts of ₹ 25 Lakhs, ₹ 16 Lakhs and ₹ 30 Lakhs in favour of M/s.Lord Krishna Bank and handed over the same to Shri V.Abdul Kareem; tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l activities, all of which reflect your high potentiality and propensity to continue to engage in such prejudicial activities in future, I am satisfied that unless detained, you are likely to engage in the aforesaid prejudicial activities in future also and, therefore, it is necessary to detain you under the COFEPOSA Act, 1974, with a view to preventing you in future from acting in any manner prejudicial to the augmentation of country's foreign exchange resources. For the same reasons, and particularly having regard to the chronological sequence of events in this case, I am further satisfied that the nexus between the date of incident and passing of this Detention Order and the object of your detention have been well maintained. I am aware that adjudication proceedings under the Foreign Exchange Management Act, 1999 are likely to be initiated against you by the appropriate authority in due course to decide your penal liability. The above proceedings are punitive in nature but considering your past activities and your potentiality and propensity to indulge in such activities in future, I am satisfied that your detention under the COFEPOSA Act, 1974 is the only remedy at thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as no effort on the part of the detaining authority or any officer authorised to execute the same to serve the detention order on the detenu before the date of arrest. From November 2003 onwards, the detenu was very much present in his house at Parlikadu and also in his house at Cherlayam, Kunnamkulam. The address shown in the grounds of detention is sufficient enough to trace the detenu and he never absconded or evaded from the serving of any notice or summons on him during the interregnum. Whenever the summons or notices were issued to the detenu for his appearance before the departmental officials like Income Tax, Enforcement, etc., he has received the notices and appeared before them and gave statements. There was inordinate delay in execution of the detention order passed on 27.11.2003 and thereby the nexus between the alleged prejudicial activity and the detention order was snapped and thereby the order of detention is vitiated. It is submitted that the detenu was very much available in his residence and was doing all his routine works and responsibilities as the head of the family. The detenu received all notices, summons etc., issued to him by the statutory authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licit traffic in narcotic drugs and psychotropic substances. The basic principle in issuing a detention order is the urgency in preventing the person against whom the order is passed from indulging in any of the prejudicial activities without any delay. The delay in passing detention order from the date of prejudicial activity snaps the nexus of the order and the prejudicial activity. The same principle is applicable with regard to the delay in executing the detention order once passed. The inordinate delay, in the present case, it is more than 2 years, casts serious doubt on the genuinity of the subjective satisfaction of the detaining authority in passing the detention order. The long delay in executing the order snaps the nexus between the order and the very purpose of passing the same. There is inordinate delay in executing the order passed against the detenu. The order was passed on 27.11.2003. It was executed on 07.12.2006 alone. There is delay of more than 3 years in executing the detention order. There is no explanation forthcoming from the detaining authority regarding the delay in executing the order. The inordinate delay in executing the detention order vitiate the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion order within a reasonable time vitiate the detention order as there is no subjective satisfaction of the detaining authority in issuing the detention order. The Honourable Supreme Court in SMS Sultan Abdul Khader vs. Joint Secretary to Government of India and others, 1998 SCC (Crl) 1534 held that the unreasonable delay in executing the order of detention creates a serious doubt regarding the genuineness of the detaining authority as regards the immediate necessity of detaining the detenu in order to prevent him from carrying on the prejudicial activity referred to in the grounds of detention. The order of detention was passed by the detaining authority not in lawful exercise of the power vested on him. In another decision, the Honourable Supreme Court, held that the delay of about one year in arresting the detenu due to the indifferent attitude would render the detention order invalid. P.U.Iqbal vs. Union of India, 1992 Crl Law Journal 2924. The Honourable Supreme Court in M.P.M.Basheer vs. State of Karnataka, held that in the absence of any serious steps taken by the detaining authority to execute the order, the order of detention order cannot be sustained. It is submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Proceedings and Appeal) Rules 2000 on 12.8.2004. It also indicates that the Detenu was not available as claimed by Detenu and on the contrary was absconding to evade detention under the COFEPOSA Act. As already submitted, there was no delay in passing the Detention Order and hence the nexus between the alleged prejudicial activity and the Detention Order was not snapped. xxxx xxxx xxxx xxxx The real fact is that the SCN issued to the Detenu by post was returned undelivered since the Detenu was not available. In fact, when the Officer visited the Detenu's residence at Cherlayam, his wife Smt.Shoba, the petitioner herein was only available and in her presence only the Notice was affixed after she informed the Officer that her husband had gone to Delhi few months back and had not been visiting the house since then and his likely return was also not known. Petitioner herein has also signed all the said Mahazar. Enquiries were also made on 12.8.2006 at Devaki Villa, Parlikkad, where no one was available. It is also claimed on behalf of the Detenu that he Detenu conducted the marriage of his daughter at Sankarankulangara Temple Kalyana Mandapam on 23.01.2006 and in supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere made at Parlikkad and Wadakkanchery on 29.12.2003. In 2004, enquiries were made at Parlikkad, Kunnamkulam, Chazhoor etc. places on 14.01.2004, 28.01.2004, 12.02.2004, 27.02.2004, 15.03.2004, 31.03.2004, 16.04.2004, 01.5.2004, 16.05.,2004, 07.06.2004, 27.06.2004 07.07.2004, 17.07.2004, 13.09.2004, 23.09.2004, 12.10.2004, 26.10.2004, 04.11.2004, 20.11.2004, and 17.12.2004. During 2005, enquiries were made at Parlikkad, Kunnamkulam Chazhoor etc. places on 25.1.2005, 08.02.2005, 18.03.2005, 29.03.2005, 12.04.2005, 27,04.2005, 15.05.2005, 30.05.2005, 06.06.2005, 27.06.2005, 15.07.2005, 30.07.2005, 03.08.2005, 04.08.2005, 20.08/2005, 07.09.2005, 22.09.2005, 07.10.2005, 28.10.2005, 15.11.2005 and 02.12.2005. In 2006, enquiries were made at Parlikkad and Kunnamkulam on 12.01.2006, 26.01.2006, 11.02.2006, 02.03.2006, 20.03.2006, 07.04.2006, 26.04.2006, 24.05.2006, 13.06.2006, 06.07.2006, 22.07.2006 14.08.2006, 10.09.2006, 28.09.2006, 24.10.2006, 12.11.2006 and 29.11.2006. CI Wadakkanchery had also arranged reliable informants at Parlikkad and Kunnamkulam for collecting secret informations regarding the whereabouts of the detenue. As the detenue was absconding from hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive steps to execute the order and it is because of this delay that the apprehension entertained by the detaining authority as regards the likelihood of future activities of the petitioner being prejudicial under COFEPOSA Act was neither real nor genuine and therefore the impugned order is nothing but punitive. 11. Per contra, Sri.Parameswaran Nair, learned Assistant Solicitor General, appearing for the revenue would contend, that, the detaining authority and the executing agency could not serve the order of detention passed on the detenu, since the detenu was absconding. The learned counsel would further submit that every effort was made by the detaining authority and the executing agency to serve the order of detention on the detenu and the same could be done only on 7.12.2006. The detaining authority has further stated that the notice issued under FEMA is also returned 'unserved' since the detenu was not available in the address furnished at the time of his interrogation and therefore, it is stated that the petitioner's husband was absconding and could not be traced in spite of the best efforts made by the detaining authority and also the executing agency. In sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e taken only on satisfaction . The further requirement is that the order should have been passed for preventing that person from carrying on the prejudicial activities. This implies that as soon as the Government or its officer feels satisfied that an order this section is necessary, it has to be passed and implemented forthwith so that the prejudicial activities carried on by the person against whom the order has been passed, may be stopped immediately or at the earliest. This object can be achieved if the order is immediately executed. If, however, the authorities or those who are responsible for the execution of the order, sleep over the order and do not execute the order against the person against whom it has been issued, it would reflect upon the satisfaction of the detaining authority and would also be exhibitive of the fact that the immediate necessity of passing that order was wholly artificial or non-existent. . (underlining by us) 14. The Supreme Court in Naresh Kumar Goyal vs. Union of India, (2005) 8 SCC 276, has stated: It is trite law that an order of detention is not a curative or reformative or punitive action, but a preventive action, avowed object ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner, what can be easily seen is, that, as a ritual, once in 15 days they would prepare a report and whether that report is based on enquiries made or not is not supported by any material, such as statements recorded either of detenu's wife, children, relatives, neighbours and the persons of the locality. It looks to us that the entire report that is prepared and produced by the executing agency before this Court appears to be a report written while sitting in the office and not after any enquiries. We say so for the reason, at no point of time, the executing agency has even asked the police constable to furnish a report of enquiry made by him in any of the place/places, where they made enquiries about the whereabouts of the petitioner's husband. In fact, there are few instances where nearly for more than a month, no attempt was made by the executing agency to arrest the petitioner's husband pursuant to the order of detention passed, for instance between 17.7.2004 and 13.9.2004, nearly for 57 days, between 17.12.2004 and 25.1.2005, nearly for 39 days, no efforts seems to have been made either by the detaining authority or the executing agency to arrest petitioner' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrusted the job of service of order of detention and to arrest the detenu, at least they should have recorded the statements and should have drawn an appropriate mahazar with the help of some independent witnesses that in spite of the best efforts were being made by them, the petitioner's husband was not available in the address shown either in the order of detention passed or in any other place. The entire records would only show a formal opinion of the executing agency that an attempt was made by the police authorities but they were informed that the petitioner's husband is not available in the address. The sum and substance of their submission before the court that the petitioner's husband was absconding and therefore, the executing agency could not serve the order of detention on the detenu. The explanation offered by the executing agency and the detaining authority is wholly unsatisfactory and it is beyond anybody's comprehension also why despite a long passage of time, the respondents could not implement the orders passed by the detaining authority. Time and again, courts have observed that, delay in execution ipso facto may not vitiate the proceedings taken ..... X X X X Extracts X X X X X X X X Extracts X X X X
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