Bombay High Court
Nafis Ahmed Ansari vs The State Of Maharashtra, Through ... on 2 July, 2003
Equivalent citations: 2003BOMCR(CRI)~, 2003(4)MHLJ845
Author: S.B. Mhase
Bench: S.B. Mhase, J.A. Patil
JUDGMENT S.B. Mhase, J.
1. This petition is directed against the order of detention dated 30th April 2002 issued by Satish Tripathi, the Principal Secretary to the Government of Maharashtra, Home Department (Preventive Detention), Mantralaya, Mumbai-32 under Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter for the sake of bravity, in short referred to as "COFEPOSA"). The Petitioner is brother-in-law of detenu - Mehboob Ahmedali Darshi.
2. The order of detention was passed on 30th April 2002. However, it was served on the detenu on 4th September 2002. Even though several grounds have been incorporated in the petition, at the time of final hearing, learned counsel for the petitioner relied upon only one ground for quashing the detention order. Learned counsel submitted that the detention order was served on the petitioner-detenu when he was in judicial custody of Additional Chief Metropolitan Magistrates, Esplanade, Mumbai, in Case No. 11/RA/2002. Therefore, it was obligatory on the part of the detaining authority to show awareness of such judicial custody and therefore, it was necessary to explain the compelling necessity for passing the detention order. Reliance was placed on the decision in the matter of Bind Singh v. District Magistrate, Dhanbad, Bihar and decision reported in 1998 Cri. L. J. 4310 in the matter of Satish Ratilal Rawal v. Union of India and Ors.
3. The Directorate of Revenue Intelligence (DRI) Mumbai Zonal Unit had information that the detenu was travelling by business class by Emirate Flight No. EK-503 to Dubai from Mumbai, scheduled on 19.00 hours on 4.1.2002 and that the detenu would be carrying assorted foreign currency concealed in abdomen and rectum for delivery of the same at Dubai. Accordingly, the sleuths of the DRI intercepted the detenu, while on his completing the check in, immigration and customs formalities, when the detenu was proceeding towards Security Checks to board on flight and enquired with him whether he was carrying foreign currency. Ultimately the detenu had accepted and disclosed that he was carrying the foreign currency. The next day the detenu ejected the capsules from his abdomen and rectum which contained foreign currency equivalent to 25,10,431/- in Indian currency. Accordingly the panchnamas were drawn. On 5.1.2002 and 17.1.2002 the statements of the detenu were recorded under Section 108 of the Customs Act, 1962. Therefore the detenu was produced before the Chief Metropolitan magistrate by DRI in case bearing No. RA/11/2002 on 6.1.2002. The petitioner sought for bail, which was granted by the Court and which was availed by the detenu. The detenu retracted from his statements recorded on 5.1.2002 and 17.1.2002. Thereafter the order was passed on 30.4.2002 and the said order received by the Executing Authority, namely, P.C.B., C.I.O., for execution on the same day. The detenu was not found on the address mentioned in the said order. In spite of the several attempts made by the Executing Authority the detenu was not found on the given address. Therefore, on 10.6.2002 notification under Section 7(1)(b) of the COFEPOSA Act was issued by the State Government. Equally, the declaration under Section 7(1)(a) was issued by the Chief Metropolitan Magistrate. By these two documents, namely, the notification and declaration, the petitioner-detenu was directed to remain present before the Commissioner of Police within a stipulated period. The said declaration was pasted on the door of the detenu on 1.9.2002. On 3.9.2002 the detenu preferred an application before the Additional Chief Metropolitan Magistrate, Esplanade, Mumbai and surrendered before the Magistrate in Case No. 11/RA of 2002. In this application the detenu submitted before the Metropolitan Magistrate that he was released on bail of Rs. 2,50,000/- and that subsequently the detention order has been passed against him by the government and the declaration and the proclamation was pasted on his door to that effect. Therefore, the detenu prayed that he should be taken in custody. The Additional Chief Metropolitan Magistrate on 3.9.2002 passed the order that the accused be taken in judicial custody and thus the detenu came in the judicial custody in Case No. 11/RA of 2002. It is pertinent to note that thereafter the Advocate for the detenu by his letter dated 3.9.2002 addressed to the Inspector of Police, PCB, CID informed that the petitioner-detenu has surrendered before the court in the abovereferred case and that he is in judicial custody and that the authority was requested to serve the detention order on the detenu in jail. Thereafter, on 4.9.2002, the application was submitted to the Chief Metropolitan Magistrate seeking permission to serve the order of detention on the detenu in jail. After taking permission, the PCB, CID informed the sponsoring authority and the sponsoring authority deputed one Vinod Pisharody, intelligence officer attached to DRI, Mumbai to identity the detenu so as to serve the order. On 4.9.2002 accordingly said Vinod Pisharody officer of the DRI identified the detenu and then the Police Sub Inspector, PCB, CID served the detention order on detenu. Thus, while the detenu was in judicial custody the detention order and the grounds of detention were served on the Petitioner - detenu.
4. In view of these facts, the ground is raised on behalf of the petitioner - detenu that it was obligatory on the part of the detaining authority to show awareness of the fact that the detenu was in judicial custody and there were compelling necessities for passing the order and executing the same. Learned counsel for the petitioner submitted that the detention of the petitioner is illegal, because the detaining authority has failed to take into account a vital fact that before the order of detention was served on him, he was already in judicial custody and there was no satisfaction recorded by the detaining authority to the effect that there was possibility of his being released and that on being so released, the detenu would in all probabilities indulge in prejudicial activities.
5. In reply to this ground, the detaining authority has filed an affidavit to the following effect:
That, the detenu had surrendered on 3.9.2003 and he was served with the order of detention and documents on 4.9.2002. That, the detaining authority, while issuing the order of detention was aware of the fact that the detenu was released on bail and this has been reflected in the grounds of detention. That, the order of detention and the documents were served upon the detenu by the executing authority, i.e. PCB, CID Mumbai, hence there is no question of showing awareness by the detaining authority to the effect that the detenu is in judicial custody while executing the order of detention. That, he issued the order of detention as he was subjectively satisfied that the activities of the detenu were prejudicial to the conservation of foreign exchange. It was denied that the order of detention is vitiated.
6. The sponsoring authority in its reply, in paragraph No. 9 states that so far as ground No. 4(vii) is concerned the same pertains to the detaining authority, hence the affidavit filed by the detaining authority may kindly be referred to.
7. Thus, it has become clear that the detaining authority has not considered and/or shown awareness in respect of the fact that the detenu is in judicial custody and there is nothing to show that there was compelling necessity or reason to issue and/or execute the order of detention.
8. The facts involved in the present case are akin to the facts of reported judgment of the Delhi High Court in the matter of Kuldeep Singh v. Union of India, 1995 Cri. L. J. 3737. In the said case, the order of detention was passed on 12th January 1993 by the Lt. Governor of National Capital Territory of Delhi in exercise of powers conferred by Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. After pre-detention litigation, on 26.8.1994 the accused surrendered before the Judicial Magistrate and thereafter on 30.8.1994 the order was served upon him. In paragraph 15 of the said judgment, after relying on Binod Singh's case (supra) as also relying on in the matter of Abdul Sathar Ibrahimm Manik v. Union of India and in the matter of Veeramani v. State of Tamil Nadu, it is concluded that if the detention is taken into custody between the date of passing the order of detention and the date on which the order is served on him, it is necessary for the detaining authority to reconsider the fact that the detenu is in detention in the case in a criminal court and whether his detention under the COFEPOSA would still be necessary. If that was not done, the earlier detention order could not be enforced against the detenu.
8. This court has approved this case in the matter of Satish Rawal v. Union of India and Ors. [1995 (5) Bom.C.R. 61] After making reference to Binod Sing's (supra) and the other cases of the Hon'ble Supreme Court and the Delhi High Court and also unreported judgments of this court in Criminal W.P. 1235 of 1987, Mrs. Rukhsana Abdul Majeed v. Tarun Roy and Ors. Cri.W.P. 26 of 1990, Chemmala Mohammad Mustafa v. L. Hmingliana and Ors., this court has finally upheld the contention that although the detenu at the time of passing the detention order was on bail but since at the time of its execution was in judicial custody having surrendered two days earlier to the service of the said order, and as also the awareness of the fact that the real danger of his being released in near future has not been shown by the detaining authority and hence the detention order stands vitiated in law. In the instant case also even though the bail was granted to the petitioner - detenu in case No. RA/11 of 2002, still the petitioner had surrendered before the Magistrate on 3.9.2002 and thereafter the PCB, CID, Mumbai on information to the Sponsoring Authority has executed the order on 4.9.2002 on the detenu in jail, on his being identified by the Sponsoring authority. However, the detention order served under these circumstances does not show awareness of the said fact by the detaining authority and the satisfaction of the detaining authority that there were compelling necessities to execute the order of detention. Therefore, as per the ratio referred to above, the order stands vitiated and the detenu has to be released.
9. Before parting with the judgment, this court has to take notice of the facts involved in this case. This court noticed that the law has been laid down by the Supreme Court in Binod sing's case (supra) and thereafter also in several matters the Supreme court has expressed what is the obligation of the detaining authority in case the detenu is in a judicial custody at the time of the execution of the detention order. Thereafter this court, following that judgment of the Apex Court has quashed the several detention orders for non compliance of the law laid down by the Apex Court. In the decision of this Court in the matter of Satish Rawal v. Union of India has taken a review of all these cases and thereafter has quashed the detention order. Thus in several cases this court has observed what is the legal obligation of the detaining authority if the detenu is found to be in judicial custody. However, those ratios and the law laid down by the Supreme Court and by this court are nor meticulously observed by the authorities of the State Government, namely, the detaining authorities, executing authorities and sponsoring authorities of the State Government.
10. In the present matter, it appears that, in fact the detenu with as intention to take benefit of the law laid down by the Apex Court and this Court, purposely surrendered to judicial custody on 3.9.2002 on surrendering before the Magistrate even though he was on bail. Thereafter his Advocate informed the executing agency that the detenu was in judicial custody and the order of detention could be served on him in jail. Executing Authority, accordingly,on identification by the Sponsoring authority served the order on the detenu - petitioner in jail, knowing fully well that if under the circumstances order is served on the detenu the order will stand vitiated. Thus, even though the officers were aware of the legal position which will render the detention order as one vitiated one, and it was obligatory on those officers of the Executing Branch and Sponsoring Branch to bring to the notice the aid fact to the detaining authority before execution of the order on the detenu, these officers have failed in their duty and in discharging their legal obligation. In fact, in the present case the detenu has arranged a trap so as to vitiate the order, calling the executing authority to serve the order while he is in judicial custody and these officers have fallen pray to the said trap and, therefore, there is no alternative left with this court to hold that the order of detention is vitiated because of non application of the law laid down by the Apex Court and this court in the above referred cases. Therefore, according to us, either the executing agency or the sponsoring agency are in connivance with the detenu and/or they are negligent in discharge of their duties. Which of the fact is correct one, is a matter of investigation by the appropriate authority of the State. However, having noticed this aspect we called upon those officers to file the affidavit as to why they have not discharged their duties in accordance with the settled legal position. In consonance with those queries, Vinod Pisharody, Intelligence Officer attached to DRI, Mumbai has filed his affidavit on behalf of the sponsoring authority to the effect that he was under the impression that the PCB, CID, Mumbai has taken all necessary steps prior to execution of the order of detention and hence he or his department has not informed the detaining authority about the detenu having surrendered before the court before executing the same. Thus, he has tried to pass on the bug on executing authority.
On behalf of the executing authority, Mr. A.S. Nemane., P.S.I., attached to PCB, CID, Mumbai has filed affidavit stating that on 3.9.2002 he received the letter from the Advocate Suresh K. Punwani that the detenu has surrendered before the court and he is in judicial custody and requested to serve the detention order on him in custody. He further stated that since the action under Section 7 of the COFEPOSA Act was already against the detenu and the detenu surrendered only for facilitating the execution of the detention order, therefore, he has executed the order of detention immediately without informing the detaining authority so as to avoid any delay in executing the order of detention. He further stated that on perusal of the application filed by the detenu before the learned Metropolitan Magistrate, it clearly suggests that the detenu wanted to surrender only because the order of detention was passed against him and the bail granted to him was not cancelled. He relied upon the application submitted by the detenu.
11. We must clarify that those explanations offered by the officers of the Executing Authority are incorrect. No doubt, the detenu in his application, before the Metropolitan magistrate has stated that the detention order has been passed against him and that he wants to surrender before the Magistrate. However, he specifically surrendered himself in Case No. 11/RA of 2002 which was a case initiated against the detenu by the authorities of DRI. This was not a surrender in accordance with the notification and declaration made under Section 7 of the COFEPOSA Act. We make it clear that by the declaration issued by the Chief Metropolitan Magistrate No. 68 of 2002 in C.C.No. 4/RA of 2002, the detenu was required to appear before the Commissioner of Police, Greater, Bombay. By the notification under Section 7(b), the detenu was also directed to appear before the Commissioner of Police. Therefore, the presence of the detenu, in consonance with the declaration and notification under Section 7(1)(a) & (b) was expected to be before the Commissioner of Police, Greater Bombay and therefore, had the detenu appeared before the Commissioner of Police, Greater Bombay then without being in a judicial custody or in any custody, the order of detention could have been served on the detenu and thereafter the detenu could have been taken in custody in view of the detention order.
The executing authority and the sponsoring authority are aware of the contents of the declaration and notification and the presence of the detenu was expected to be before the commissioner of police and, therefore, it was not in contemplation that for execution of the detention order the detenu shall surrender before the Chief Metropolitan Magistrate and/or for that matter before any other Magistrate. Thus, the surrender of the petitioner - detenu before the Metropolitan Magistrate was not a surrender in consonance with the declaration under Section 7 of the COFEPOSA Act. We are, therefore, of the opinion that the explanation offered is incorrect one and is without any merit. We reject the said explanation.
12. What is further pertinent to be noted is that in the later affidavit filed by Mr. Vinod Pisharody he has accepted his responsibility. He has stated that he has identified the said detenu before the executing authority, i.e. PCB, CID, Mumbai. It is stated in his earlier affidavit that he was under the bonafide impression that the PCB, CID, Mumbai has taken all necessary steps. But in this affidavit he has stated that he was not aware of the fact that the intimation of the detenu having surrendered before the Magistrate was not given to the detaining authority. He states that he has realised that the detenu having surrendered before the Magistrate and the said fact having not been informed to the detaining authority atleast by him has inadvertently violated the provisions of law for which he tendered sincere apology. Thus he has accepted his legal responsibility to inform the fact that the detenu is in judicial custody to the detaining authority and submitted that he is tendering sincere apology for the same.
Mr. Nemane also by filing the later affidavit submitted his unconditional apology for lapses on his part. This, what we have noticed is that ultimately these officers have accepted their responsibility and they have undertaken to this court that in these situations henceforth they will take precaution to inform the fact to the detaining authority if the detenu is in a judicial custody before executing the orders and will appraise the detaining authority of the fact that the detenu is in judicial custody so as to satisfy the said authority as desired by the Apex Court in Binod Sing's case (supra).
13. Under these circumstances, we are inclined to accept their apologies and we do not propose any action against the concerned officers in the present matter. However, we make it abundantly clear that if in future this court notices that in spite of the fact that the executing authority or the sponsoring authority comes to know that the detention order was passed while the detenu was not in judicial custody but however at the time of executing the said order he is found to be in judicial custody they will take appropriate steps with immediate effect to inform the detaining authority and will obtain further orders from the detaining authority. If they fail to take such actions, there will be no other alternative left with this court but to direct the appropriate departmental enquiry against the said officers for the dereliction of their duties, namely, the negligence in discharge of their duties. As we have accepted the apologies of the officers concerned in this case, we do not propose any action in the present matter.
14. The sponsoring authority's affidavit is filed on record and it is noticed that the sponsoring authority is not maintaining any record in respect of the telephone calls received in control room. In fact appropriate Register is required to be maintained by the sponsoring authority, namely, DRI, in the control room so that the messages can be recorded in that Register and the copy of the message received on telephone can be transmitted to the concerned officers of the DRI for further action. This is necessary because in a case where executing, authority, namely, PCB, CID, Mumbai informs the sponsoring authority DRI to identify the detenu, it will be within the knowledge of the DRI that the detenu is in judicial custody and DRI being the sponsoring authority will be under obligation to take appropriate steps and guide the executing authority / agency. We find that there is no coordination in between the offices of the DRI, detaining authority and the executing authority-PCB, CID. Even though for the sake of convenience these are the separate branches, however, for a detention purpose they are one and the same and they cannot pass on the responsibility to the other. They are all under the obligation to see that the law laid down by this court and the Apex Court is properly followed. We hope that all these authorities will take a note of these observations and will develope a procedure which will coordinate three branches, namely, Sponsoring Authority, DRI, Detaining Authority-PCB, CID and the State is hereby directed to take appropriate step for the co-ordination of these authorities.
15. We hereby direct that the Detaining authority, sponsoring authority and the Executing authority in all detention matters shall coordinate amongst themselves and correct their working system so as to make the detaining authority aware of the fact that the detenu is in judicial custody at the time of the execution of the order, whenever it is noticed that the detention order has been passed when the detenu was not in a judicial custody, however, subsequently at the time of execution, the detenu is in judicial custody.
16. We further direct the State Government to send the copies of this judgment to all the authorities of the State of Maharashtra who are empowered with the power of detention either under COFEPOSA Act or any other Act, which permits detention by the said authority and State shall direct all those authorities to follow the observations in this judgment meticulously, otherwise those authorities will invite the appropriate action by the State, as it is the duty of those authorities to further the cause of the State and not to sabotage it by negligence on their part.
17. In view of this, the detention order No. PSA-1102/16/SPL-3(A) dated 30.4.2002 is hereby quashed. The petitioner - detenu be released forthwith if not required in any other crime.
18. Rule made absolute accordingly.
Judgment was declared in chamber in the presence of counsel for both the sides. At this stage, Mr. Mhaispurkar learned APP appearing for the State made a request to stay the judgment for the period of two weeks. However, that request is not supported with any reason. Hence, that prayer is rejected.