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TMI Blog1988 (5) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... anj in the district of Muzaffarpur and the other as Prabhu Prasad son of Shri Jhakhar Sah of village Jamundhar, P.O. Oraiyan in the district of East Champaran. In course of checking, smuggled Chinese solid gold pieces were recovered from special cavities in the heels of the slippers of both the aforementioned apprehended persons and from the special cavities in the brief-case of the said Chandra Shekhar Choudhary. As it was very odd time (00.30 hours) and the place of detention was railway station, the party did not think it safe for detail search and as such the apprehended persons along with their belongings were brought to the Central Revenue Building, Patna where thorough search was made in presence of two independent witnesses. On detail search, in all 16 pieces of smuggled Chinese primary gold weighing 1498.5 grams valued at Rs. 2,67,730/- were recovered from their possession. No paper in support of illicit importation of foreign gold into India could be produced by the afore-mentioned persons. Hence the recovered gold was seized after observing all necessary formalities. The aforesaid apprehended persons after interrogation were produced before the Chief Judicial Magistrate, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y statement both dated 9-2-1984 that he is in the employment of the petitioner since August, 1983 on a monthly salary of Rs. 250/- and when he is sent outside for such type of mission, he is paid fooding charge in extra. According to his statement, on 9-1-1984 he carried 3 pieces of gold from the said shop of the petitioner and sold the same to one Sri Surendra Agarwal of Allahabad and the sale proceeds amounting to Rs. 90,000/- was handed over by him in cash to the petitioner. He further stated that again on 23-1-1984 he went to Delhi to sell 65 Kgs. silver given to him by the petitioner. 6. On the basis of the aforesaid statements and in connection with the aforesaid case, a raid was conducted in the house of the petitioner on 9-2-1984 and 15-2-1984 but no incriminating article was recovered. The petitioner was also interrogated on 19-3-1984 by the Assistant Collector of Customs (Preventive), Muzaffarpur who denied his complicity in the smuggling of gold seized on 8th/9th February, 1984 and also denied that the aforesaid apprehended persons were his employees. 7. Thereafter in course of investigation the statement of Smt. Maya Devi wife of aforesaid Chandra Shekhar Choudhary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on order was passed on 29-9-1984 but the petitioner was arrested after three years i.e. 21-11-1987 without any consideration of the fact whether it was necessary to detain the petitioner after expiry of more than three years. 11. Before dealing with these points, I may refer here the counter-affidavits filed on behalf of the State as well as on behalf of the Union of India through the Collector of Customs, Indo-Nepal Border, Central Revenue Building, Patna. 12. The State Government in its counter-affidavit has stated that the detention order and the grounds of detention were issued on 29-9-1984 against the petitioner. The grounds of detention is Annexure-2 appended to this application. In the counter-affidavit, it has been stated that the house of the petitioner was searched and interrogation was made by the Customs Department in view of the statements made by the afore-mentioned two apprehended persons. In para 17 of the counter-affidavit it has been stated that the petitioner was absconding and evading his detention. Therefore, the detention order could not be served earlier. The State Government was making every effort to trace him out. Since the petitioner was concealing hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1986 S.C. 1072 that the detenue is entitled to be released on the ground of non-application of mind to the relevant materials. In the aforesaid case, an order of detention was passed against the detenue under the COFEPOSA during the pendency of prosecution under the Act against him and another co-accused for illegal possession of foreign gold and foreign exchange. The documents revealing that they were granted bail and they had retracted. their confession were not placed before the detaining authority. It was held that since the relevant material was not placed before the detaining authority, and the same was not considered, thus there was non-application of mind by the authority to the relevant material and, therefore, the detention was illegal. Mr. Prasad on the basis of the said decision vehemently argued that it is true that no one can dispute the right of the detaining authority to make an order of detention if on a consideration of the relevant material, the detaining authority came to the conclusion that it was necessary to detain the petitioner. But, as certain vital facts were not brought to the notice of the detaining authority, and, therefore, those facts were not taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his release on anticipatory bail. It was submitted on behalf of the State that the State Government was making every effort to trace him out since he was concealing himself to avoid the service of detention order and as such made himself liable to certain proceedings under Sections 82, 83, 84 and 85 of the Code and then the matter was reported to the Chief Judicial Magistrate, Muzaffarpur vide letter No. 171 dated 24-1-1985 for necessary action. In that view of the facts, in my opinion the case of Sita Ram Somani v. The State of Rajasthan others (supra) is quite distinguishable and will not help the petitioner. 16. Mr. Prasad has also relied upon a decision in the case of Ram Chandra Mitruka v. The State of Bihar Another, 1986 B.B.C.J. 639: 1986 PLJR 942. In the aforesaid case S.B. Sanyal, J. has quashed the order of the petitioner of the said case on a finding that the said case was fully covered by the decision in the case of Sita Ram Somani v. The State of Rajasthan others (supra), but, as I have already held that the aforesaid Somani's case is quite distinguishable from the facts of this case. Therefore, this case will also not help the petitioner. 17. Mr. Prasad has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Sheetal Prasad Krishna Murari was the uncle of this petitioner. The statements of one Ranjit Kumar Sah, an owner of the restaurant of Saraiya Ganj, Muzaffarpur, who has no concern at all with the petitioner, has also stated that the said Chandra Shekhar Choudhary was an employee of the petitioner. In my opinion, there were ample materials before the detaining authority to be satisfied about the necessity of passing the impugned order. 19. Secondly it was argued that there has been a gap of 7½ months in passing the detention order from the date of incident which has not been properly explained. Therefore, the impugned order must be struck down. In support of his contention, Mr. Prasad has relied upon a decision in the case of S.K Serajul v. State of West Bengal, A.I.R. 1975 S.C. 1517. In the said case, the petitioner had challenged his detention order passed under Section 3 of the Maintenance of Internal Security Act, 1971. It was based on the subjective satisfaction of the District Magistrate where it was felt necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detention. 20. It is, no doubt, true that where a long period has elapsed between the date of incident and the date of order of detention, an inference can be drawn legitimately that there is no nexus between the incident and the order of detention and the order may be liable to be struck down as invalid but there is no hard and fast rule as to what is the length of time which could be recorded sufficient to snap the nexus between the order and the detention. In the instant case, in order to verify the genuineness of the statements of the two aforesaid persons, the customs officials had to go to Muzaffarpur, Allahabad and other towns. Therefore, it cannot be said that there has been long delay in passing the order of detention and where satisfactory explanation has been given, in my view, it would not invalidate the order of detention. I am of the view that here the lapse of time between the date of incident and the date of order of detention has been sufficiently explained by the detaining authority. Hence, in my opinion, the delay of 7½ months will not vitiate the detention order. 21. On this point, the learned Counsel appearing on behalf of the State has relied upon a decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and could not be apprehended despite of proclamation. In the counter-affidavit, filed on behalf of the State, it has been stated on oath that since the petitioner was evading detention and the Government was trying hard to trace him out and ultimately he could be detained on 21-11-1987 and forwarded to Special Central Jail, Bhagalpur the same day. In para 17 of the counter-affidavit filed on behalf of the State, it has been stated that the petitioner was absconding and evading his detention and the order of detention could not be served earlier. Since the petitioner was concealing himself to avoid the service of detention order, he made himself liable to proceeding under Sections 82, 83, 84 and 85 of the Code. The State Government also reported the fact to the Chief Judicial Magistrate, Muzaffarpur for necessary action. The State Government also issued notification under Section 7(l)(b) of the COFEPOSA Act directing the petitioner to appear before the Chief Judicial Magistrate, Muzaffarpur within 30 days from the date of publication of the notice failing which he shall be liable for punishment and after a great effort he was traced out. In these circumstances, it cannot be held th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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