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TMI Blog2020 (10) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, it is not possible for us to accept the bare and vague contention of the executing authority that the detenu had absconded in the absence of bringing materials on record about efforts made to trace out the detenu during the period from March 3, 2020 to May 28, 2020. For the period from March 3, 2020 upto May 28, 2020, we find no serious efforts were made by the police authorities to apprehend the detenu and no materials are placed on record to indicate the steps taken. It is not stated where they looked for him and what inquiries were made by the police authorities to find his whereabouts. No materials are produced on the basis of which it can be said that the police authorities had made reasonable efforts to locate the petitioner and apprehend him and yet they were not successful in finding him out. Thus, this delay in execution of the detention order remains unexplained. The unreasonable delay in executing the order creates a serious doubt regarding the genuineness of the Detaining Authority as regards the immediate necessity of detaining the petitioner in order to prevent him from carrying on the prejudicial activity referred to in the grounds of detention. Hence, the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were recovered was carrier for three occasions in the past. The petitioner along with others were produced before the Jurisdictional Magistrate on September 9, 2019 and was remanded to judicial custody upto September 23, 2019 which was further extended from time to time. The petitioner was released on bail by the Chief Metropolitan Magistrate, Patialia House Courts, New Delhi vide order dated November 6, 2019 observing that the complaint in the present case has already been filed after conclusion of investigation and custodial interrogation of the petitioner is no more required. According to the Detaining Authority, the petitioner s statement dated November 21, 2019 recorded under Section 108 of the Customs Act, 1962, re-admitted the facts mentioned in his previous statement dated September 5, 2019. Before the Chief Metropolitan Magistrate the petitioner stated that his statement was obtained under pressure, threat and force. 4. The Detaining Authority was of the view that the investigations revealed that all three passengers were involved in smuggling of commercial goods in a repeated and systematic manner. All the three passengers formed a cartel adopting the modus operandi b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the petitioner from smuggling goods, abetting the smuggling of goods and engaging in transporting or concealing or keeping smuggled goods in future. The petitioner was provided details of the documents relied upon and also informed he has right to represent against his detention to the Detaining Authority i.e. to the Central Government as well as to the Advisory Board. SUBMISSIONS OF THE LEARNED COUNSEL FOR THE PETITIONER :- 5. The detention order is challenged on various grounds mentioned in the Petition. The learned counsel appearing on behalf of the petitioner has however during the course of the hearing restricted his challenge to ground (I) and (k) in the Petition. According to him, there is inordinate delay in passing impugned order of detention by the Detaining Authority. He submits that though the petitioner was released on bail by an order dated November 6, 2019, but the detention order was made on February 14, 2020 and same was executed on July 2, 2020 i.e. almost 8 months after the petitioner was released on bail. The learned counsel would submit that there is no explanation of the undue delay in passing the detention order as well as its execution till July ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... according to the respondent No.1 the delay in passing the order of detention is satisfactorily explained. 8. Even in so far as the delay in execution of the detention order is concerned, the Detaining Authority says that the petitioner was absconding and all possible steps were being taken by the executing authority i.e. the respondent No.2 to execute the order. It is further stated in the affidavit that the detention order is passed after the Detaining Authority has arrived at his subjective satisfaction based on material submitted before it and after careful consideration of all the material placed before it. 9. An affidavit has also been filed by Shri Shrimant Bacharam Shinde, Police Inspector, Preventive Crime Branch, Mumbai. The affidavit records the efforts made by the executing authority to execute the order of detention. 10. The learned counsel Ms. P.H. Kantharia appearing on behalf of the Detaining Authority invited our attention to the affidavit-in-reply filed on behalf of the respondent No.1. She would submit that subjective satisfaction of the Detaining Authority is based on the material submitted before it and after careful consideration of all the material p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2020. She would thus submit that it is the petitioner who was absconding and the petitioner cannot take advantage of his own wrong by contending that there is a delay in execution of the order of detention. She would submit that merely because there is a delay in execution of the detention order will not vitiate the detention order as the Detaining Authority has given satisfactory and reasonable explanation about the delay in execution of the order of detention. According to her, if at all anybody is responsible, it is the petitioner who should be held so as he was absconding and evading the execution of the order. In support of her submissions she placed reliance on the decisions of the Apex Court in the case of (1) Union of India and others vs. Muneesh Suneja (2001) 3 SCC 92, (2) Licil Antony vs. State of Kerala anr. (2014) 11 SCC 326, (3) T.A. Abdul Rahman vs. State of Kerala and others and (2014) 11 SCC 326 (4) Subhash Popatlal Dave vs. Union of India and another (2014) 1 SCC 280. 12. On the earlier occasion, learned counsel Shri Aggarwala appeared on behalf of the Sponsoring Authority. The learned counsel for the petitioner cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the whereabouts of the petitioner but it is the petitioner who avoided execution of the detention order. He would thus submit that it is the petitioner having avoided the execution, now cannot contend that the detention order is vitiated on the ground of delay in execution. 14. We have heard learned counsel at length. We have perused copy of the Petition, impugned order of detention, the grounds of detention relied, affidavit s filed and the relevant documents. CONSIDERATION :- 15. The petitioner was intercepted on September 5, 2019 by Air Customs with smuggled electronic goods worth ₹ 4,03,00,000/-. His statement was recorded on September 5, 2019 under Section 108 of the Customs Act. He was released on bail on November 6, 2019. His further statement under Section 108 of the Customs Act was recorded on November 21, 2019. The proposal dated January 23, 2020 for preventive detention of the detenu and two other was received on January 24, 2020. On January 30, 2020, notice was issued for holding meeting of CSC on February 4, 2020 for considering the proposal of the Sponsoring Authority. On February 4, 2020 revised notice for holding meeting of CSC on February 5, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l nexus between the grounds and the impugned order of detention. 18. Before we discuss the ground regarding delay in execution of the detention order, we would deal with the submission of the learned counsel for the petitioner that the live nexus between the incident and need for detaining the petitioner has snapped in view of the Covid-19 pandemic. According to him, the international commercial passenger services through and from India are not operational and therefore purpose of detaining the petitioner is lost. We may refer to the Circular dated August 31, 2020 issued by the office of the Director General of Civil Aviation which has been placed on record to show that the international scheduled flights may be allowed on selected routes by the competent authority on case to case basis. We are not impressed with this submission of learned counsel for the petitioner. The order of detention was passed in February 14, 2020 which ultimately came to be executed on June 29, 2020. It may be that there are restrictions on operations of international commercial passenger flights through and from India till September 30, 2020. However, the circular clearly provides that international sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med the police that the detenu did not return home so far since the case was registered against him at Delhi. An entry to that effect has been made in the station diary on 25/02/2020. On 03/03/2020 the team of police again visited the address of the detenu and his brother s mobile shop which was closed. The police could not get any reliable information for effecting execution of the order of the detenu. In the affidavit it is stated that with the help of secret informant through technical investigation, police were taking sincere efforts to trace the detenu. It is then stated that a detailed report was forwarded to the Respondent No.1 on 28/05/2020. Accordingly, proclamation under section 7(1)(b) of the COFEPOSA Act was issued. On 08/06/2020, a notification was published in the gazette of India. On 29/06/2020 the team of Mumbai police nabbed and traced the detenu and the order of the detention came to be executed. 21. The Apex Court in paragraph 4 in the case of Kadhar Naina Ushman Vs. Union of India and ors. (2008) 17 SCC 725 in the context of the submission that there was delay in executing the detention order has held thus : 4. In the present case, as already noticed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Incidentally, it may be mentioned that though the two gold pellets (the contrabands) were seized from the appellant on November 12, 1990 the authorities concerned passed these orders only on January 7, 1991, i.e. nearly after two months. 11. Under these circumstances, we are of the view that the order of detention cannot be sustained since the `live and proximate link' between the grounds of detention and the purpose of detention is snapped on account of the undue and unreasonable delay in securing the appellant/detenu and detaining him. As we have now come to the conclusion that the order of detention is liable to be set aside on this ground alone we are not dealing with other contentions raised in the Memorandum of Appeal as well as in the Writ Petition. 23. It would be profitable to refer to the decision of the Apex Court in the case of SMF Sultan Vs. Joint Secretary to Government of India (supra). Paragraph 2 of the said decision which reads thus : 2. It is not necessary to state the facts leading to the passing of the detention order as we are inclined to allow this petition on the second ground raised by Mr. K.K. Mani, learned counsel for the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nreasonable delay in executing the order creates a serious doubt regarding the genuineness of the detaining authority as regards the immediate necessity of detaining the petitioner in order to prevent him from carrying on the prejudicial activity referred to in the grounds of detention. We are of the opinion that the order of detention was passed by the detaining authority not in lawful exercise of the power vested in him. We, therefore, allow this petition, set aside and quash the order of detention and direct that the petitioner be set at liberty forthwith unless his presence is required in jail in connection with any other case. 24. It is necessary to refer to the observations made by the Apex Court in paragraph 9 in the case of Licil Antony Vs. State of Kerala anr. (supra) that COFEPOSA intends to deal with persons engaged in smuggling activities who pose a serious threat to the economy and thereby security of the nation. Such persons by virtue of their large resources and infuence cause delay in making of an order of detention. While dealing with the question of delay in making an order of detention, the court is required to be circumspect and has to take a pragmat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r recording their statements on November 11, 2019, November 21, 2019 and December 7, 2019. It is not the case of the respondents that the detenu did not appear for recording of the statement and in fact it is the case of the respondent No.1 that the detenu s further statement was recorded under Section 108 of the Customs Act on November 21, 2019. We find from the record that the respondent No.1 did not apply for cancellation of bail. No doubt that merely because the Detaining Authority has not applied for cancellation of bail, would by itself be a ground to vitiate the order of detention if otherwise the delay is satisfactorily explained. 27. There is nothing on record to indicate the steps taken or the efforts made by the executing authority to execute the order of detention between the period from March 3, 2020 to June 8, 2020. The executing authority has only stated that they visited the address mentioned in the detention order on February 25, 2020 and March 3, 2020 when they found the premises have been demolished for construction of SRA project. Further, they stated that they visited the mobile shop of the petitioner s brother on these two dates viz. February 25, 2020 and M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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