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TMI Blog2023 (10) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 24th May 2023, passed by respondent no. 2-The Under Secretary to the Government of India, Ministry of Finance, Department of Revenue, in the exercise of the powers conferred by section 8(f) of the COFEPOSA Act for confirming the detention order dated 17th May 1993 and directing detention of the petitioner for one year from the date of his detention, i.e. 28th February 2023. 2. Perusal of the detention order indicates that the detaining authority has relied upon the search and seizure proceedings under section 34 of the Foreign Exchange Act 1973 ("FERA") and the statements recorded under section 40 of FERA after one Umar Ibrahim Mohamad alias Mohd. Sharif Hasan was apprehended at Mumbai airport on 20th November 1992, when he was leaving for Dubai with substantial amount of foreign currencies concealed by him. By referring to the said proceedings, the detaining authority had arrived at a subjective satisfaction that there was reason to believe that the petitioner was engaged in unauthorised acquisition of foreign exchange and transferring the same surreptitiously out of India in violation of the provisions of FERA. The detaining authority has further recorded a subjectiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eless. The learned counsel submitted that the petitioner was very much available in the State of Kerala and that during the hearings before the Advisory Board on 2nd May 2023 and 3rd May 2023, respondent no. 1 produced certain documents which indicate that respondent no. 1 was aware of the whereabouts of the petitioner in 1993 itself. The learned counsel submitted that though the detaining authority was aware of the petitioner's whereabouts, the detention order was never served upon the petitioner. The learned counsel submitted that the petitioner shifted to Kerala and started his business of wholesale of vegetables at Cochin. He submitted that for the last thirty years, the petitioner is not involved in any act under the COFEPOSA Act. 6. The learned counsel, thus, submitted that the detention order passed in the year 1993 could not have been served upon the petitioner in the year 2023 on the ground that the petitioner was absconding. The learned counsel submitted that no material is on record to show that any attempt was made on behalf of the detaining authority to serve the detention order on the petitioner. He, therefore, submitted that, in the absence of knowledge of the deten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndicating publication of the order dated 9th February 1994 on 5th March 1994. The learned counsel, therefore, submitted that there is a presumption that the petitioner had knowledge of the detention order, and the burden shifted on him to justify his absence. The learned counsel further submitted that since the petitioner was not traceable, the detention order was ultimately executed on 28th February 2023, and he was detained. The learned counsel submitted that thereafter, the same was forwarded before the Central Advisory Board, and the petitioner was given hearing on 3rd May 2023 and 4th May 2023. After the hearing, the opinion of the Central Advisory Board was submitted in support of the detention order. Hence, thereafter, the order dated 24th May 2023 was issued, confirming the detention order dated 17th May 1993. The respondent No. 1 relied upon the following decisions in support of his submissions: i. Kasim Kadar Kunhi Vs The State of Maharashtra and others WP (Cri.) 2198/2004 dated 2.2.2005, Bombay High Court ii. Subhash Popatlal Dave Vs Union of India and another (2014) 1 SCC 280 iii. Rudra Pratap Singh Vs Union of India & Ors WP(Cri.) 1326/2002, dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances of the case, we examined whether all possible steps were taken to serve the detention order on the petitioner. The learned counsel for respondent no. 1- Sponsoring Authority relied upon the attempts made to serve the detention order. Respondent no. 1 has relied upon a report dated 15th December 1993 submitted by the Assistant Commissioner of Police (Crime) Branch (PREV) CID, HQ, Bombay. The said report indicates that visits were made on 8th August 1993, 31st October 1993 and 17th November 1993 by the officers and staff of PCB, FIP, to trace the petitioner; however, the house of the petitioner was found locked. The said report further indicates that in such circumstances, the detention order was returned unexecuted, and thus, it was 'recommended to issue a proclamation'. The learned counsel for respondent no. 1 also relied upon an enquiry report dated 5th August 1993 by the Assistant Enforcement Officer, which indicates that the petitioner was not available at the given address and that the flat was locked. 11. The order dated 9th February 1994 indicates that the Under Secretary to the Government of India, in the exercise of the power conferred by clause(b) sub-section (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner's whereabouts. In the absence of all the possible steps taken to serve the detention order upon the petitioner, the detaining authority is not justified in executing the detention order after thirty years on the ground that the petitioner was absconding. The detaining authority gives no satisfactory explanation for not executing the order of detention passed in the year 1993 for a period of thirty years. 14. Regarding the aforesaid decisions relied upon by the learned counsel for respondent no. 1, the same are of no assistance to respondent no. 1 to justify the execution of the detention order after a period of thirty years. In the decision of this Court in the case of Kasim Kunhi, the authorities had duly complied with the procedure under section 7(1) (a) and (b) of the COFEPOSA Act. This court, in the facts of that case, accepted the contention of the authorities explaining the delay of two years and seven months in executing the detention order. 15. In the decision of Delhi High Court in the case of Rudra Singh the detention order dated 11th April 2002 was served upon the detenu on 10th June 2002 i.e. within a period of two months. In the decision of Delhi Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Hon'ble Supreme Court, while examining the challenge to the detention order on the ground of delay in execution of the detention order, held in paragraph 5 as under: "5. ........................................ Whether there has been unreasonable delay, depends upon the facts and the circumstances of a particular situation. Preventive detention is a serious inroad into the freedom of individuals. Reasons, purposes and the manner of such detention must, therefore, be subject to closest scrutiny and examination by the courts. In the interest of public order, for the greater good of the community, it becomes imperative for the society to detain a person in order to prevent him and not merely to punish him from the threatened or contemplated or anticipated course of action. Satisfaction of the authorities based on conduct must precede action for prevention. Satisfaction entails belief. Satisfaction and belief are subjective. Actions based on subjective satisfaction are objective indication of the existence of the subjective satisfaction. Action based on satisfaction should be with speed commensurate with the situation. Counsel for the petitioner submitted that in this case ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shafiq Ahmad is squarely applicable. In the present case, except for explaining the steps taken to serve the petitioner with the detention order at the available address of the petitioner, there is no other explanation forthcoming. It is not even the respondents' case that any enquiry was made to find out the whereabouts of the petitioner. There is no affidavit filed on behalf of the State Government explaining the steps taken to find out the petitioner's whereabouts and serve the detention order. Infact, the report relied upon by Mr. Shirsat, of the Assistant Commissioner of Police, shows that it was recommended that proclamation be issued, since the petitioner was not found to be staying at the given address. 21. The issue to be decided in the present case is whether there is a delay in the execution of the detention order and whether the inordinate delay of thirty years in the execution of the detention order is explained by the concerned authorities. The detention under the COFEPOSA Act is for the purpose of preventing persons from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or preventing from smuggling goods, or abetting sm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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