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TMI Blog1985 (11) TMI 238X X X X Extracts X X X X X X X X Extracts X X X X ..... d and were made ready for being delivered to the detenu along with the order of detention. However, the detention order itself was ultimately executed on 11th January 1985. 2. In the meantime the detenu, namely the petitioner, was produced before the learned Metropolitan Magistrate at Bombay and was remanded from time to time into custody to be released on bail on 8th October 1985 in the sum of ₹ 30,000/-. After the petitioner was detained on 11th January 1985 pursuant to the order of detention passed on 2nd November 1984, a representation on his behalf was sent by an Advocate to the jail authorities, who received the same on 18th October (February ?) 1985. Thereafter the said representation was forwarded by the jail authorities on the very next day, namely on 19th February 1985. The representation made by the petitioner was rejected by the Central Government on 27th February 1985, while it was so rejected by the State Government on 6th March 1985. It has been stated before us by Mr. Gupte, the learned Advocate appearing for the petitioner, that on 20th October 1985 the petitioner has been ultimately convicted for the offence of having smuggled gold into India. 3. The o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws :- In case of smuggling where an act of smuggling consists of bringing contraband in concealed manner, the necessary inference will be that the person is indulging in a prohibited activity with full knowledge and open eyes of the prohibited nature of the act. If this is so, then that act though a single one detected by the authorities is indicative of the fact that he is capable of repeating the same in future ....... If an order of detention is passed for a single act which shows previous preparation and full knowledge on the part of the person indulging in an act of the prohibited nature it could be said that the order is passed on a reasonable prognosis of the future behaviour of such person. We must, therefore, reiterate that there is no judgment of this Court which is contrary to what is stated in Yahya Ali's case (1983-85 Bom LR 188) and it cannot be said that in all cases where the order of detention is based on a solitary or single incident no subjective satisfaction of the possibility of the repetition of the act involved can be arrived at. 4. Returning to the facts of the present case it is easily seen that in the statement recorded under S. 108, Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gupte on a judgment of Kurdukar J. (with Qazi J.) delivered on 14th September 1984 in Writ Petn. No. 241 of 1984 is misplaced. The facts of the case before that Division Bench were totally different. The facts of that case disclosed that the person who was carrying the contraband was carrying it almost openly without being aware of the nature of the contraband, except that he had agreed to carry the handbag in which the contraband was said to have been put for a consideration which was somewhat unusual. There was nothing to indicate that the detenu in that case had participated in any previous operation or had knowledge of the contraband which he was carrying. If anything, one notices from the facts of that case that he was carrying the contraband in a handbag which is an unusual method of carrying a contraband if the person doing it was aware of the nature of the goods which he was carrying. We are, therefore, of the opinion that on the facts of that case, with great respect, the judgment of that Division Bench may be correct, but that is not an authority for the proposition, especially in view of the law already laid down by another Division Bench in Yahya Ali's case, that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is concerned. It has been said, calling comments from other departments, seeking the opinion of Secretary after Secretary and allowing the representation to lie without being attended to is not the type of action which the State is expected to take in a matter of such vital import. Proceeding further the Supreme Court has pointed out that it is the duty of the State to proceed to determine representations with the utmost expedition, which means that the matter must be taken up for consideration as soon as such a representation is received and dealt with continuously (unless it is absolutely necessary to wait for some assistance in connection with it) until a final decision is taken and communicated to the detenu. 9. We have, with the assistance of Mr. Gupte, gone through the judgment in Harish Pahwa's case 1981CriLJ750 . From the facts of the said case it could be seen that there was some sort of dilly-dallying on the part of the State Government before a decision was taken on the representation made by the detenu. Mr. Gupte has particularly underlined certain observations of the Supreme Court in this judgment to contend that the State Government in the instant case was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e part of the detaining authority in passing the order of detention does not betray a proper appreciation of the factors involved which should go into the formation of the subjective satisfaction while passing an order of detention. The reply to this on behalf of the detaining authority is that after the incident in question had taken place on 28th July 1984, the proposal was placed before the Screening Committee and on its clearance on 21st August 1984 the same was sent to the Home Department which received it on 4th September 1984. The detaining authority has also explained that there were documents which were required to be translated into Gujarathi language and the translation dt. 12th October 1984 and 16th October 1984 were received in the Home Department on those respective dates. The translation of the detention order and the grounds of detention in Gujarathi were received in the Home Department on 30th October 1984 from the Customs Department and the detention order was then issued on 2nd November 1984. In our opinion, the facts so stated in the affidavit in reply fully explain the delay between the date of the incident and the date of the passing of the detention order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeded on the assumption that the criminal case had been dropped on or about 10th September 1973. Ultimately the petitioner was detained on 23rd November 1973. Looking to the facts of that case the Supreme Court held that the delay on the part of the detaining authority in getting its order of detention executed at the earliest showed that the detaining authority was not serious at all about the nature of the order that he proceeded to pass. It was also noticed that no explanation in regard to the delay in arresting the petitioner pursuant to the order of detention was given even before the Court. Proceeding further, the Supreme Court held that if there is any delay in arresting the detenu pursuant to the order of detention which is prima facie unreasonable, the State must give reasons explaining the delay. Since in the case before the Supreme Court no explanation of the delay was given in the affidavit in reply, the Supreme Court proceeded to conclude that the District Magistrate had not applied his mind and did not have genuine subjective satisfaction that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner. 13. Though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son is not always adequate to trace him, then the officers wait for him to come to the Court on a day on which he is required to attend the Court. All these procedures have been followed in the instant case. Therefore, it cannot be said that the subjective satisfaction which formed the basis of the order of detention passed on 2nd November 1984 was not genuine or real satisfaction. In parenthesis we may add that it is impossible to hold that by an event which is subsequent to the date of the order of detention the subjective satisfaction which is the basis of that order is vitiated. Only in a case like Sk. Nizamuddin 1975CriLJ12 (supra) the total apathy towards taking steps for executing the detention order passed by an authority may indicate that in fact the satisfaction forming the foundation of the said order is no satisfaction at all. In the case before us the authority passing the order of detention is not the same which is executing the said order. We have already briefly outlined the procedure which is followed here and it shows that there is no delay at all in the execution of the order in the instant case. 15. By an amendment, which was allowed by this Court and which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied out only on 31st October 1985 and between that date and today when the petition is being heard nearly ten days of holidays had intervened. Mr. Agarwal for the Union of India has, however, fairly told us that he will make available the information immediately by sending telex messages to Delhi and he has only requested that judgment on this aspect of the case may be delivered after he obtains the information in that regard. The case is, therefore, adjourned for decision on the aforesaid question till Friday, the 22nd November 1985. Final order will be passed on that day. 17. On the last date of hearing, namely on 22nd November 1985, we adjourned this matter in order to satisfy ourselves that the Central Government has exercised its power under S. 11 of the COFEPOSA Act within reasonable time. On that day Mr. Agarwal had produced for our perusal a telex message received from the Government mentioning the dates on which the report of the State Government was received by the Central Government and on which the Central Government took action. That telex message also mentioned that an affidavit was already on its way. Hence we adjourned the matter to this date. 18. An affidavit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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