9911796707
TMI Blog1987 (7) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 tolas each and one piece of 10 tolas with number 9990 kept concealed in a black coloured bag made of cotton and placed in the specially designed cavity on the body of the said car below the Dash Board. The personal search of the occupants were also taken and articles besides currency notes of various denomination were taken into possession. In the meantime, the Customs Officers reached there and the Officer-in-charge, Habra Police Station handed over twenty pieces of gold biscuits alongwith other recovered articles to them. In turn, the Customs Officers of the Preventive Unit seized the Ambassador car under Section 110 of the Customs Act, and on reasonable belief that the 20 pcs. of primary gold and two wrist watches all of foreign origin were illicitly imported into India were also taken into possession. All the four occupants of the car were arrested there and then. 2. In his statement under Section 108 of the Customs Act, Shri Dinbabandhu Mondal, claimed the ownership of all the twenty pieces of gold biscuits of foreign origin and, inter alia, stated that he had started smuggling foreign gold since December 1985 and from then he brought at least 107 pcs. of gold biscuits. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned order of detention and order his release forthwith. 4. The first and foremost contention of the learned counsel for the petitioner is that there is a complete non application of mind by the detaining authority as it did not taken into consideration the bail applications and the conditional order of release of the petitioner by the High Court at Calcutta. This fact even though has come into existance much prior to the order of detention, but it did not find mention or taken note of in the impugned order. According to the learned counsel, a reasonable restriction has been placed on the detenu by the order in his bail application, which sufficiently prevented him to indulge in the activities, sought to be prevented by the impugned order. Had this fact been placed before the detaining authority, there was every likelihood of the change of mind. This ground by itself is fatal to the order of detention. The stand of the respondents is that it does not sound to reason that the detaining authority should take note of the fact that the person is on bail, as the intention of the impugned order is to restrict the movement of the person in order to prevent him from engaging in smuggling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o what are the relevant circumstances and then to form his opinion thereon. But once an order of detention is challenged in a Court then the Court certainly has the jurisdiction to go into the question and to decide as to whether all the relevant circumstances have been considered by the detaining authority or not. In the present case, admittedly, the most material documents which have not been considered by the detaining authority are the bail applications and the orders passed thereon. Absence of consideration of these documents, to my mind, amounts to non application of mind on the part of the detaining authority rendering the detention order invalid. If the detaining authority had considered these documents, one cannot state with definiteness which way, the subjective satisfaction of the detaining authority would have reacted. The conditional bail order of the High Court could have persuaded the detaining authority to desist from passing the order of detention since the restriction on the freedom of movement was sufficient to prevent him from indulging in the smuggling activities. On this aspect, the Supreme Court in the latest decision reported as Anant Sakharam Raut v. State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be executed immediately as the detenu could not be traced. In that behalf action under Section 7(l)(b) of the COFEPOSA Act was taken on 15th September, 1986. Finally, the petitioner was detained on 22nd October, 1986. Therefore, the delay in execution of the detention order has been caused by the petitioner himself. 12. The question that requires going into at this stage is as to whether the explanation furnished by the respondents is satisfactory, bona fide and acceptable or not. In the case of Smt. Hemlata Kantilal Shah v. State of Maharashtra 1982 S.C. 08, the Court has laid down that delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person, for in certain cases delay may be un-avoidable. What is required by law is that the delay must be satisfactorily explained by the detaining authority. 13. It is no doubt true that where an unreasonable long period has elapsed between the date of the incident and the date of order of detention, an inference may legitimately be drawn that there is no nexus between the incident and the order of detention, and the cruder of detention may be liable to be struck down, as invalid, though the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1975 (4) S.C.C 114. Applying the said ratio to the facts of the case in hand, I have no hesitation to hold that the detaining authority has not acted swiftly in the matter and there was no proximity between the prejudicial activity and the detention order. There is no worthwhile explanation for the delayed action. On this ground alone the petition must succeed. 17. Then again, there is a delay of near about four months in the execution of the order of detention on the petitioner. It is urged that the order could not be served on the detenue as he was not traceable. Here also the respondents loose sight of the material fact that the release of the petitioner on bail was a conditional one. He was required to report/ meet the Investigating Officer on every Monday and Friday for a period of one month from the date of his release which in this case is 18th April, 1986. Thereafter the case of the petitioner is that he has been attending the Court of the Magistrate regularly on every date of hearing. To this there is no denial. It is not explained as to how the detenue could not be traced when he has been attending the Court and meeting the Investigating Officer as directed by the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
