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TMI Blog2003 (7) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... was obligatory on the part of the detaining authority to show awareness of such judicial custody and therefore, it was necessary to explain the compelling necessity for passing the detention order. Reliance was placed on the decision in the matter of Bind Singh v. District Magistrate, Dhanbad, Bihar and decision reported in 1998 Cri. L. J. 4310 in the matter of Satish Ratilal Rawal v. Union of India and Ors. 3. The Directorate of Revenue Intelligence (DRI) Mumbai Zonal Unit had information that the detenu was travelling by business class by Emirate Flight No. EK-503 to Dubai from Mumbai, scheduled on 19.00 hours on 4.1.2002 and that the detenu would be carrying assorted foreign currency concealed in abdomen and rectum for delivery of the same at Dubai. Accordingly, the sleuths of the DRI intercepted the detenu, while on his completing the check in, immigration and customs formalities, when the detenu was proceeding towards Security Checks to board on flight and enquired with him whether he was carrying foreign currency. Ultimately the detenu had accepted and disclosed that he was carrying the foreign currency. The next day the detenu ejected the capsules from his abdomen and re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he detention order on the detenu in jail. Thereafter, on 4.9.2002, the application was submitted to the Chief Metropolitan Magistrate seeking permission to serve the order of detention on the detenu in jail. After taking permission, the PCB, CID informed the sponsoring authority and the sponsoring authority deputed one Vinod Pisharody, intelligence officer attached to DRI, Mumbai to identity the detenu so as to serve the order. On 4.9.2002 accordingly said Vinod Pisharody officer of the DRI identified the detenu and then the Police Sub Inspector, PCB, CID served the detention order on detenu. Thus, while the detenu was in judicial custody the detention order and the grounds of detention were served on the Petitioner - detenu. 4. In view of these facts, the ground is raised on behalf of the petitioner - detenu that it was obligatory on the part of the detaining authority to show awareness of the fact that the detenu was in judicial custody and there were compelling necessities for passing the order and executing the same. Learned counsel for the petitioner submitted that the detention of the petitioner is illegal, because the detaining authority has failed to take into account a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paragraph 15 of the said judgment, after relying on Binod Singh's case (supra) as also relying on in the matter of Abdul Sathar Ibrahimm Manik v. Union of India and in the matter of Veeramani v. State of Tamil Nadu, it is concluded that if the detention is taken into custody between the date of passing the order of detention and the date on which the order is served on him, it is necessary for the detaining authority to reconsider the fact that the detenu is in detention in the case in a criminal court and whether his detention under the COFEPOSA would still be necessary. If that was not done, the earlier detention order could not be enforced against the detenu. 8. This court has approved this case in the matter of Satish Rawal v. Union of India and Ors. [1995 (5) Bom.C.R. 61] After making reference to Binod Sing's (supra) and the other cases of the Hon'ble Supreme Court and the Delhi High Court and also unreported judgments of this court in Criminal W.P. 1235 of 1987, Mrs. Rukhsana Abdul Majeed v. Tarun Roy and Ors. Cri.W.P. 26 of 1990, Chemmala Mohammad Mustafa v. L. Hmingliana and Ors., this court has finally upheld the contention that although the detenu at the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down by the Apex Court and this Court, purposely surrendered to judicial custody on 3.9.2002 on surrendering before the Magistrate even though he was on bail. Thereafter his Advocate informed the executing agency that the detenu was in judicial custody and the order of detention could be served on him in jail. Executing Authority, accordingly,on identification by the Sponsoring authority served the order on the detenu - petitioner in jail, knowing fully well that if under the circumstances order is served on the detenu the order will stand vitiated. Thus, even though the officers were aware of the legal position which will render the detention order as one vitiated one, and it was obligatory on those officers of the Executing Branch and Sponsoring Branch to bring to the notice the aid fact to the detaining authority before execution of the order on the detenu, these officers have failed in their duty and in discharging their legal obligation. In fact, in the present case the detenu has arranged a trap so as to vitiate the order, calling the executing authority to serve the order while he is in judicial custody and these officers have fallen pray to the said trap and, therefore, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trate has stated that the detention order has been passed against him and that he wants to surrender before the Magistrate. However, he specifically surrendered himself in Case No. 11/RA of 2002 which was a case initiated against the detenu by the authorities of DRI. This was not a surrender in accordance with the notification and declaration made under Section 7 of the COFEPOSA Act. We make it clear that by the declaration issued by the Chief Metropolitan Magistrate No. 68 of 2002 in C.C.No. 4/RA of 2002, the detenu was required to appear before the Commissioner of Police, Greater, Bombay. By the notification under Section 7(b), the detenu was also directed to appear before the Commissioner of Police. Therefore, the presence of the detenu, in consonance with the declaration and notification under Section 7(1)(a) (b) was expected to be before the Commissioner of Police, Greater Bombay and therefore, had the detenu appeared before the Commissioner of Police, Greater Bombay then without being in a judicial custody or in any custody, the order of detention could have been served on the detenu and thereafter the detenu could have been taken in custody in view of the detention order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e inclined to accept their apologies and we do not propose any action against the concerned officers in the present matter. However, we make it abundantly clear that if in future this court notices that in spite of the fact that the executing authority or the sponsoring authority comes to know that the detention order was passed while the detenu was not in judicial custody but however at the time of executing the said order he is found to be in judicial custody they will take appropriate steps with immediate effect to inform the detaining authority and will obtain further orders from the detaining authority. If they fail to take such actions, there will be no other alternative left with this court but to direct the appropriate departmental enquiry against the said officers for the dereliction of their duties, namely, the negligence in discharge of their duties. As we have accepted the apologies of the officers concerned in this case, we do not propose any action in the present matter. 14. The sponsoring authority's affidavit is filed on record and it is noticed that the sponsoring authority is not maintaining any record in respect of the telephone calls received in control r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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