Kerala High Court
Amina Unno vs Joint Secretary To Government Of India, ... on 23 June, 1994
Equivalent citations: 1995CRILJ1199
JUDGMENT Pareed Pillay, J.
1. Petitioner has filed the Habeas Corpus petition for the release of her son Bappu Navas (detenu) and to set him at liberty. Prayer is also made to quash Exts. P-1 and P-3 orders of the first respondent.
2. Case of the petitioner, is that her son was apprehended at Thiruvananthapuram Air Port on 9-8-1990 on the alleged statement of Mathews Baby, that he was subjected to torture for extracting statements as dictated by the officers of the Enforcement Directorate, that he was produced before the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam and that he was enlarged on bail by the High Court. According to the petitioner, detenu's house was searched but no incriminating documents or evidence were detected.
3. Ext. P-1 order was passed on 26-2-1991 by the first respondent ordering the detention of the petitioner's son. Actual detention was effected only on 4-11-1993. main contention of the petitioner is that the wide gap between Ext. P-1 order of detention and actual detention has not been properly explained by the first respondent and on that sole score detenu is entitled to be released from jail.
4. The very purpose of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'the Act') is the prevention of smuggling activities which are highly prejudicial to the country's economy and national interests. For the conservation and augmentation of foreign exchange smuggling activities have to be nipped in the bud. The Act being enacted for that purpose the Court has always to see whether a "live and proximate link" is there between the grounds of detention stated by the detaining authority and the very purpose of detention. As the purpose of detention is the prevention of smuggling activities, "live and proximate link" must always be there in justification of the preventive detention. If there is no "live and proximate link" indisputably there is really no scope for preventive detention. Long and unexplained delay between the date of the order of detention and the actual apprehension of the detenu can very well lead to the inference that the link is snapped. As held in Bhawarlal v. State of Tamil Nadu, AIR 1979 SC 541 : (1979 Cri LJ 462), the Court in appropriate cases can assume that the link is snapped if there is a long and unexplained delay between the order of detention and arrest of the detenu. Adequate explanation of the dealy before the Court can probably salvage the position. When there is no proper explanation for the delay, preventive detention of the detenu cannot be countenanced any longer by the Court.
5. Contention of the petitioner is that no steps were taken to execute Ext. P-1 order and the first respondent allowed the matter to drift for 2 years and 8 months and decided to arrest the detenu only on 4-11-1993 and as the delay has not been properly explained the preventive detention cannot have any legal justification. Answer to the above contention by the first respondent is that the delay in serving the detention order on the detenu was occasioned due to his conduct alone and for reasons beyond the control of the concerned authorities. It is further stated that the detention order could not be executed solely because of the evasive tacties adopted by the detenu and also as he absconded. First respondent also contended that the detenu by giving false declaration and suppressing correct information clandestinely obtained another passport and left India and he was apprehended at Bombay on 18-10-1993. Thus, the first respondent attempts to explain the delay.
6. Though the apprehension at Bombay is stated to be on 18-10-1993, no data is furnished as to when the detenu left India on the strength of the new passport. This is a matter which could have been easily established before this Court. Detenu's leaving India is a crucial factor for the purpose of explanation of the delay in executing Ext. P-1 order. As there is no material as to when detenu left India with the new passport, contention of the first respondent that he has absconded himself and for that reason he could not be apprehended earlier cannot be accepted.
7. Section 7 of the Act gives power to the first respondent to take action if a person in respect of whom detention order has been made has absconded or is concealing himself to evade execution of the order. Section 7(a) postulates a report in writing to be given to the magistrate having jurisdiction in the place where the person against whom detention order has been issued ordinarily resides. On-such report Sections 82 to 85 of the Cr. PC shall apply in respect of the said person and his property as if the order directing that he be detained were a warrant issued by the magistrate. Section 7(b) contemplates notification in the official gazette directing the said person to appear before the officer at a specified place and time. If he failed to comply with such direction without sufficient cause, he is liable to be punished with imprisonment for a term which may extend to one year or with fine or with both. No such action as contemplated under Section 7 was taken against the detenu. Though Section 7 is not mandatory, the failure to take action under the section gives scope for doubt regarding the assertion that detenu had absconded or concealed himself to avoid the arrest. When the statute prescribes for such action against recalcitrant persons, the failure to have recourse to the same cannot be overlooked as a mere omission especially in a case where there is inordinate delay between the order of detention and its execution.
8. Learned Counsel for the first respondent relied on Indradeo v. State of West Bengal, AIR 1973 SC 1062 : (1973 Cri LJ 862). In the above case Supreme Court held that where detenu has absconded and he was arrested 10 months thereafter, mere omission to take necessary steps under Sections 82 and 83 Cr. PC in issuing proclamation etc. will not per so render the detention order either illegal or mala fide. But in subsequent rulings Supreme Court has disapproved such de-lays.
9. In P. U. Iqbal v. Union of India, AIR 1992 SC 1900: (1992 Cri LJ 2924) the Supreme Court had occasion to consider the impact of the delay between the date of order of detention and the date of arrest of the detenu. The Supreme Court said: (at p. 1904 of AIR and at p. 2928 of Cri LJ) If there is unreasonable delay between the date of the order of detention and the date of arrest of the detenu, such delay unless satisfactorily explained throws a considerable doubt on the. genuineness of the requisite subjective satisfaction of the detaining authority in passing the detention order and consequently renders the detention order bad and invalid because the "live and proximate link" between the grounds of the detention and the purpose of detention is snapped in arresting the detenu. A question whether the delay is unreasonable and stands unexplained depends on the facts and circumstances of each case.
10. After a survey of earlier decisions the Supreme Court held in T. D. Abdul Rahman v. State of Kerala, AIR 1990 SC 225 :(1990 Cri LJ 578) that when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has been occasioned. Supreme Court in para 12 held:
Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing his from acting in a prejudicial manner.
11. As the object of preventive detention under the Act is with a view to prevent anti-social and nefarious activities imperiling the economy of the country, imperative duty of the detaining authority as well as the executing authority is to be ever vigilant against the detenu and they should have seen to it that he is incorporated without any delay. The circumstances emerging from the case really reveal that the detaining authority after passing the detention order was thoroughly indifferent in arresting the detenu and no action was taken with promptitude. This alone is sufficient to hold that this is not a case in which preventive detention of the detenu is warranted.
12. When Section 7 of the Act enjoines necessary action in a case where the detenu keeps off from the clutches of the law and when such action is not taken for reasons; best known to the first respondent, one cannot jump to the conclusion; that the allegation of abscondence is well justified. Any action taken would have lend assurance to the allegation of abscondence. As no serious and sincere effort was taken to nab the detenu for fairly long period since Ext. P-1 order and as no attempt under Section 7 of the Act was pursued, the mere assertion that the detenu has eluded the dragnet of the detention order cannot be accepted.
13. As the inordinate delay has not been explained, that alone can be considered as a circumstance to hold that detaining authority did not evince any interest as regards the necessity for detaining the detenu with a view to prevent him from acting is highly prejudicial manner to the interests of the country. As our paramount consideration is to satisfy ourselves that all the safeguards under the Act have been meticulously adhered to and that the subject is not deprived of his personal liberty otherwise than in accordance with law, we cannot take a light hearted view when it is concerned with the explanation offered by the detaining authority. The explanation offered must stand scrutiny from every plausible angle and if it fails in that regard the only conclusion possible is that the detention of the detenu cannot be legally sustained.
14. Merely because the detenu has been apprehended subsequently for some other offence it cannot be considered as a circumstances to hold him under preventive detention for the past consideration. Of course the second incident may throw open sufficient cause for his detention under the Act. But this cannot be considered as an additional ground for detention pursuant to Ext. P-1 order. Moreover, the subsequent incident happened well-nigh after two and odd years. Subsequent conduct after lapse. of years cannot be taken into consideration in support of the preventive! detention based on earlier incident. The order of detention in this case cannot be sustained since the "live and proximate link" between the grounds of detention and the purpose of detention is snapped on account of the unexplained delay in tracing out the detenu and detaining him.
As the wide gap of 2 years and 8 months between the order of detention and the arrest really suggests that there is no real and genuine apprehension that the detenu is likely to continue in the smuggling activities, we hold that the original petition has to be allowed. We are not satisfied that this is a case where further detention of the detenu is warranted by law. Exts. P-1 and P-3 orders are quashed. Petitioner's son (detenu) is ordered to be released from custody forthwith unless required to be detained for any other cause. Petition stands allowed.