Delhi High Court
Mohd. Shahid vs Union Of India And Ors. on 19 July, 1994
Equivalent citations: 1994IIIAD(DELHI)744, 1994CRILJ388, 1994(3)CRIMES161, 55(1994)DLT308, 1994(30)DRJ356
Author: Dalveer Bhandari
Bench: Dalveer Bhandari
JUDGMENT Dalveer Bhandari, J.
(1) This petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure has been filed for quashing the detention order dated 24th February, 1993 passed against the petitioner by the Lt. Governor, Government, National Capital Territory of Delhi, under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
(2) The petitioner, on arrival on 20.11.92 from Dubai, at Indira Gandhi International Airport, New Delhi, crossed the Green channel along with a blue zipper bag. The petitioner's movements appeared to. be suspicious and he was intercepted near the exit gate of the arrival hall and was questioned as to whether he was carrying any dutiable goods to which he replied in the negative. Two independent witnesses were called on the spot and in their presence, the petitioner disclosed his identity as Mohd. Shahid, and he was holding an Indian Passport. The petitioner denied carrying any gold, silver or watches or any other contra- band items with him in the presence of both the witnesses. When the baggage was X-rayed, 16 gold pieces were recovered which collectively weighed at 586 grams. Those 16 pieces consisted of 8 solid pieces and 8 thin pieces, valued at Rs.2,34,400.00 .
(3) On demand, the petitioner could not produce any documentary evidence to show the lawful import for his possession of the said recovered gold. The same was, therefore, seized u/s 110 of the Customs Act, 1962.
(4) On 20th November, 1992, the petitioner's statement u/s 108 of the Customs Act was recorded in which he admitted the recovery and seizure of the recovered gold in the manner stated above. The petitioner admitted that he had brought the gold for his sister's marriage. The petitioner was arrested on 20.11.92 under Section 104(1) of the Customs Act, 1962 and produced before the A.C.M.M. New Delhi. The petitioner retracted his statement by sending an application on 20.11.92 to the Collector of Customs, New Delhi. On scrutiny of his passport, it was revealed that the petitioner had gone abroad on the following dates: S.No. Date of Departure Date of Arrival Country Visited 1. 13.03.89 31.03.92 , Lahore 2. 17.04.92 26.04.92 Bangkok 3. 09.05.92 10.05.92 Bangkok 4. 15.05.92 15.05.92 Bangkok 5. 16.06.92 - Singapore, Bangkok, Kathmandu, Delhi 6. 10.10.92 16.10.92 7. 16/17.10.92 22.10.92 Dubai 8. 29.10.92 30.10.92 Dubai 9. 01.11.92 04.11.92 Dubai 10. 17.11.92 20.11.92 Dubai (5) On the basis of the foregoing facts and circumstarces, the Lt. Governor of the National Capital Territory of Delhi came to the conclusion that the petitioner had the inclination and propensity for indulging in smuggling activities in an organized and clandestine manner and unless prevented, the petitioner was likely to indulge in the smuggling activities in future.
(6) Prosecution and adjudication proceedings under the Customs Act, 1962 have already been initiated separately, the petitioner was also de tained under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The petitioner has challenged his detention on various grounds.
(7) The detention order has been challenged by the petitioner mainly on the ground that the impugned detention order was passed on 14.2.93, yet the same has not been served on the petitioner till 27.10.93.
(8) It is further submitted by the petitioner that though for the entire period, the petitioner was available in Delhi and he had been all ending and prosecuting the proceedings pending in the court of A.C.M.M. New Delhi, but the detention order was not served on the petitioner and there has been a long and undue delay in execution of the impugned order.
(9) The petitioner also challenged the detention order on the ground that his detention is based on one solitary incident and there is no material to suggest that the petitioner has such inclination, tendencies or potentialities or propensity which can give rise to reasonable apprehension of the pii.'judicial activity being repeated by the petitioner in future. Therefore, subjective satisfaction of the detaining authority that the detenu, unless prevented will continue to engage himself in smuggling activities is vitiated and has therefore rendered the impugned order illegal and void.
(10) The detention order has also been challenged on the ground of non-supply of legible copies of relied upon documents parri passu the grounds of detention which amounts to non-supply of documents.
(11) The detention order has also been challenged on the ground that Hindi translation of the order of detention and grounds of detention as supplied to the pelilioner, is not a true and correct translation, which amounts to non-supply of material rendering the detention order illegal and void.
(12) This court issued notice to the respondents in the writ petition. In pursuance of the notice affidavit of Mr. M.U. Siddiqui, Deputy Secretary (Home) has been filed on behalf of the Government of National Capital Territory of Delhi, and affidavit of Mr. Jamna Das, Under secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi, has not been filed on behalf of UOI.
(13) In reply to the principal ground, relating to delay in execution of the detention order, Mr. Siddiqui in his affidavit in para 2 has stated that efforts were made by the police turn execution of the detention order but the petitioner was not available at his disclosed place of residence. On 3.6.93, Aco (Preventive) had gone to the Court of Additional Metropolitan Magistrate and made efforts to serve the detention order to apprehend the pelilioner. But the petitioner with the help and assistance of his companion managed to escape.
(14) The petitioner has filed rejoinder to the counter-affidavit and in the rejoinder, it is clearly mentioned that the petitioner was regularly appearing before the learned trial court on each and every date of hearing. He has further mentioned that in case he had been absconding, he would nol have appeared on the next date j.e. 27.10.93 (15) He further mentioned that it is rather strange, that such an incident took place in the court premises in the presence of the learned Judge and till date no action has been taken by any law enforcing authority despite the so called complaint having been lodged in this regard. It is mentioned in the rejoinder that counter-affidavit was silent to the effect as to how many attempts were made by the detaining authority to serve the detention order. No affidavit of living such details has been filed by the respondents.
(16) I have heard learned counsel for the parties at length. There is no explanation of delay of more than eight months in execution of the detention (24.2.93 to 27.10.93). The respondents have failed to file any affidavit or place any document on record by which it can be established that even serious efforts were made by them to serve the detention order during the said period.
(17) Learned counsel for the petitioner has placed reliance on number of judgments of the Supreme Court in support of his contention. He relied on Sk. Nizmuddin Vs. State of West Bengal, . In this case, there has been a delay of two and a half months in arresting the detenu pursuant to detention order. be cause of unexplained delay, the detention order has been quashed; The court has held that, "It would be reasonable to assume that if the.District Magistrate was really and genuinely satisfied after proper application of .mind to the material before him that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner, he would have acted with greater promptitude in securing the arrest of the petitioner immediately after making of the order of detention, and the petitioner would not have been allowed to remain at large for such a long period of time to carry on his nefarious activities. The Court further observed that when we say this we must not be understood to mean that whenever there is delay in arresting the detenu pursuant to the order of detention, the subjective satisfaction of the detaining authority must be held to be not genuine or colourable. Each case must depend on Us own peculiar facts and circumstances.
(18) The learned counsel has also placed reliance on another judgment of the Supreme Court in K.P.M. Basheer vs. State of Karnataka, 1992 Crl. 1.1.1927. In this case, the detention order has been quashed on the ground that because no serious efforts were made to arrest the detenu. Live and proximate link between grounds of detention and purpose of detention snapped by delay in execution of the detention order and the detention order is liable to be set aside.
(19) Learned counsel also cited Thailanmal and ors. vs.janardhan Raju and ors, 1991{2.) Scale. In this case, the detenu was quashed on the ground of delay.
(20) This court also in judgment delivered in Crl.W.111/88, Yogesh Chopra vs. Administrator of Delhi and Others, on 19.4.1988, has quashed the detention on the ground that unexplained delay of one month and 24 days in serving the order of detention clearly goes to show that the detaining authority was not genuinely satisfied as to the necessity of passing the order of detention and the order of detention was made without proper application of mind.
(21) I have heard learned counsel for the parties and perused the various judgments cited at the bar by the learned counsel for the Petitioner.
(22) The legal position has now been fully crystallized by the catena of Supreme Court judgments that is where there is undue and long unexplained delay in execution of the detention order, the detention order is liable to quashed.
(23) Preventive detention is serious invasion on the personal liberty of the individual. The State under the provisions of Cofeposa Act can circumscribed or take away individual's liberty for the time being only in extremely exceptional case, where in the larger public interest it becomes imperative to do so otherwise the individual would continue his nefarious activities in future. When the State decides to dispense with the personal liberty of the individual then it becomes the bounden duty and obligation of the State to serve the detention order with the greatest promptitude. A: 'least, all possible efforts must be made by the Stale to serve the detention older. 'The entire purpose of issuing the detention orders is totally frustrated or defeated when it is not served with promptitude. Delay in execution of the detention order would obviously cause serious reflection on the credibility and genuineness of the subjective satisfaction of the detaining authority responsible for passing such a detention order. Detention order cannot be permitted to be used as a liver to keep individuals under great mantle agony and pressure for extraneous onsiderations.
(24) Since the petitioner's detention order is liable to be quashed only on this ground, therefore, I do not think it necessary to examine other grounds on which the detention order has been challenged. Undoubtedly, there is unreasonably long, undue and unexplained delay of more than eight months in execution of the detention order in this case which renders the detention order bad in law. Cones quently, the impugned detention order dated 24th February, 1993, is hereby quashed.
(25) The petitioner shall be set at liberty forthwith unless required to be detain in some other case.
(26) Petition is accordingly disposed of.