Karnataka High Court
A.K. Mohammed Rafeek Son Of Abdul Kareem ... vs Sri Adhip Chauduri Addl. Chief ... on 7 July, 2006
Equivalent citations: 2006CRILJ3751, ILR2006KAR2945, 2006(5)KARLJ151, 2006 CRI. L. J. 3751, (2006) 47 ALLINDCAS 254 (KAR), 2006 (5) AIR KANT HCR 146, 2006 (47) ALLINDCAS 254, (2006) ILR (KANT) 2945, (2007) 1 ALLCRILR 141, (2007) 2 EFR 264, (2006) 5 KANT LJ 151, (2007) 1 CURCRIR 307
Author: R. Gururajan
Bench: R. Gururajan, S. Abdul Nazeer
ORDER R. Gururajan, J.
Page 0681
1. Petitioner Mohammed Rafeek is seeking for a writ of habeas corpus or any other writ or order calling for the records for the records connected with the order bearing No. HTD/08/2003 dated 21.8.2003, issued by the first respondent as specially empowered officer under the provisions of the COFEPOSA and to quash the said order, and set the detenu at liberty in the case on hand.
2. Petitioner states that his brother, detenu in this case, has studied upto X standard in a Government School in Tamil Nadu. He hardly knows Kannada Page 0682 or English. It is stated in the grounds of detention that the detenu had arrived from Singapore as passenger and landed at Bangalore International Airport on 13.6.2003. Detenu was carrying only one bag and he had left the said bag in 3rd cubicle in the toilet area of the International Airport and went out of the airport.
3. Senior Intelligence Officers along with Mahazar witnesses kept a watch on the front exit gate of Arrival Hall of Bangalore International Airport on the reasonable belief that the contraband goods liable to confiscation under the Customs Act, 1962, would be smuggled into India. A person wearing striped shirt and gray pant and slippers with slight gray hair and medium built pushing a trolley on which brown coloured cardboard carton bearing markings "Samsung Samtron" was kept. The person was intercepted and revealed his name as Y. Raju employed as a contingent worker in the Customs Department. He was carrying two bags one to be handed over to K. Abdul Khader and the other blue bag to one Shafi who would be waiting with Deepak Ganeyan a Departmental Officer and the bags were got because of his understanding with Deepak Ganeyan for which he was paid some consideration. Abdul Khadeer was intercepted. On enquiry he identified the bag to be received by him. According to him, the bag contained 100 numbers of mobile phones and it was carried by the Detenu. Same was valued at Rs. 6,50,000/- by the officers of the DRI. The officers of the DRI came to the lodge where the detenue was staying. He was taken to the office of the DRI. He admitted in his statement that a person with black and white hair who smiled at him helped him in the clandestine removal of the bags containing the cell phones. In the said statement the detenu has stated that he studied upto plus I at Adhi Dravidar Higher Secondary School, Kattur, Trichy and that one Seeni Mohammed of Singapore was indulging in carrying of goods to local dealers and that he had travelled to Singapore about forty times and that the said Seeni made all the travel arrangements. On arrival from Singapore, the detenu on seeing the person with black and grey hair went to the toilet and left the bag in the third cubicle of the toilet area of the airport. The said person had facilitated him the previous month. On the previous trip on 13.5.2006 the person identified the said Y. Raju by his gray hairs. Second statement of the detenu was recorded on 14.06.2003. He could not identify the person produced before him. One Abdul Khader in his statement has identified the said person as Deepak Ganeyan, the Customs Officer. Abdul Khader, Y. Raju and Deepak Ganeyan and the detenue were arrested under arrest memos under Section 104 of the Customs Act and produced before the Special Court for Economic Offences. Bail applications were filed on their behalf. They were remanded to judicial custody. They were released on bail 16.6.2003. On 16.3.2003 house of the detenu was searched. Thereafter, on 19.6.2003 a letter was sent to M/s BSNL to furnish call details of Deepak Ganeyan, Y. Raju, Abdul Khader and Shafi. Deepak Ganeyan had requested B.M. Veeresh on 20.6.2003 to obtain a sim-card in his name for use by Deepak. On 24.6.2003 call details furnished revealed that the call contacts were made between the said Deepak Ganeyan and others. On 21.8.2003 orders Page 0683 of detention was passed by the first respondent authorising detention of the detenu. It is stated in the grounds of detention that the detenue had travelled 38 times to Singapore. It is also stated that the detenu is likely to continue to engage in smuggling activities in future, and that therefore, it was necessary to detain him with a view to prevent him in future smuggling of goods.
4. Thereafter, the detenu was arrested and detained in Bangalore Central Prison in terms of the detention order. A representation was made by the first respondent. Same is served and the same is returned. Postal endorsement would show that the detaining authority had refused the representation. With these facts, the detenu is before this Court by challenging the detention order on various grounds. The essential ground is that the detention of the petitioner is sustainable in terms of the law governing detention. It is further stated that the detention order suffers on account of delay in arresting or in executing the order of detention. Such prolonged delay has rendered the order ineffective and the execution order punitive. It is further stated that the representation of the detenu was refused thereby there is violation of Article 22 of the Constitution.
5. Notice was issued. Respondent has chosen to enter appearance.
6. A detailed statement is filed by the State. In the objection it is stated that the detenu has travelled to Singapore about 40 years in the past carrying contraband goods into India without declaring the same to the Customs. The detenu was engaged in organised smuggling of contraband goods which proved to be detrimental to the security of the country. He has devised ingenious method to place the smuggled goods in the toilet and walk through the green channel. He was involved in smuggling activity. Detenu absconded from his known place of residence to escape from the clutches of law, and therefore, delay has occurred in the matter of service. In so far as representation is concerned, it is stated that the Department has not refused to give endorsement. In fact, subsequently, the Advisory Board has chosen to hold that there exists sufficient cause for detaining the detenu under the Act. State justifies it action.
7. Matter is heard for final disposal.
8. Sri B. Kumar, learned Senior Counsel appears for the petitioner. He took us through material records to say that the order at Annexure-A suffers from errors of law, inasmuch as, according to him, the said order is executed in the year 2006. There is enormous delay in the execution, according to the learned Counsel, it is fatal to the case of the respondent. He would also say that the very object of detention is frustrated in the light of long delay in service. Sufficient explanation is not forthcoming. Even otherwise, learned Counsel would say that in the light of refusal of representation, his case is to be considered favourably in terms of laws governing detention. Learned Counsel further elaborates by saying that the theory of absconding is factually unsustainable in the given circumstances. Learned Counsel would say that in case of absconding, the Act itself provides for a procedure in terms of Section 7 of the said Act. Respondents have failed to follow the said procedure in the light of absconding and that therefore the entire action is vitiated according to him.
Page 0684
9. Per contra, Sri Belliappa, learned Counsel for the respondents would argue that the delay is on account of absconding of the detenu. He would place before us a bunch of papers in support of his submission with regard to absconding and the efforts undertaken by the respondents in the matter of service on the detenu. He would justify that the delay is unintentional, and it is on account of absconding act on the part of the detenu himself. He would say that the delay has to be considered in favour of the respondents.
10. In so far as representation is concerned, he would say that same has been considered, and the Advisory Board has chosen to accept the case of the Department. He would say that the procedure is not mandatory. He would justify the order.
11. After hearing, we have carefully seen the material on record.
12. It is no doubt true that in terms of detention, the detenu seems to be frequently going to Singapore and seems to be involved in smuggling activities. It is seen from the grounds of detention that the detenu has been branded as a regular smuggler, and, it is for this reason, the detaining authority thought it fit to invoke power of detention with a view to prevent him in future from smuggling of goods. Order is dated 21.8.2003. It is admitted before us that the said order was given effect to only on 27.1.2006. There is a delay of more than 2 1/2 years. Section 3 no doubt provides for detention in certain circumstances. Detention is in public interest with a view to prevent a person from indulging in such smuggling activity in terms of the said Act.
13. Courts have considered the effect of implementation of the order under Section 3 by way of judicial pronouncements. In the case of Manju Ramesh Nahar, Etc. v. Union of India and Ors. . The Supreme Court considered the execution of the detention order after more than a year without there being any explanation for the delay. Supreme Court ruled in para-7 reading as under:
7. The Act provides for preventive detention. Section 3 gives power to the Central Govt. or the State Govt. or any officer of the Central or the State Government of the specified status, to pass, with respect to any person with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from smuggling activities specified therein or harbouring persons engaged in smuggling activities, an order directing that such person be detained. The action under this section can be taken only on 'satisfaction'. The further requirement is that the order should have been passed for preventing that person from carrying on the prejudicial activities. This implies that as soon Page 0685 as the Govt. or its officer feels satisfied that an order under this section is necessary, it has to be passed and implemented forthwith so that the prejudicial activities carried on by the person against whom the order has been passed, may be stopped immediately or at the earliest.
The Supreme Court again in the case of Rajammal v. State of Tamil Nadu and Anr. , has chosen to consider the delay in paragraphs 8, 9 and 10, reading as follows:
8. It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation the words "as soon as may be" in Clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest. But that does not mean that the authority is pre-empted from explaining any delay which would have occasioned in the disposal of the representation. The Court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes. This position has been well delineated by the Constitution Bench of this Court in K.M. Abdulla Kunhi and B.L. Abdul Khadar v. Union of India . The following observations of the Bench can profitably be extracted here (Para 12 of AIR):
It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words "as soon as may be" occurring in Clause (5) of Article 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement however, is that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal.
Page 0686
9. The position, therefore, now is that if delay was caused on account of any indifference or lapse in considering the representation such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the delay, if any, in disposing the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned.
10. What happened in this case was that the Government which received remarks from different authorities submitted the relevant files before the Under Secretary for processing it on the next day. The Under Secretary forwarded it to the Deputy Secretary on the next working day. Thus there is some explanation for the delay till 9.2.1998. Thereafter the file was submitted before the Minister who received it while he was on tour. The Minister passed the order only on 14.2.1998. Though there is explanation for the delay till 9.2.1998, we are unable to find out any explanation whatsoever as for the delay which occurred thereafter. Merely stating that the Minister was on tour and hence he could pass orders only on 14.2.1998 is not a justifiable explanation, when the liberty of a citizen guaranteed under Article 21 of the Constitution is involved. Absence of the Minister at the Headquarters is not sufficient to justify the delay, since the file could be reached the Minister with utmost promptitude in cases involving the vitally important fundamental right of a citizen.
Again in A. Mohammed Farook v. Jt.Secretary to G.O.I. and Ors. 2000 SCC (Crl.) 411, the court has chosen to consider the delay of 40 days in executing the detention order.
13. In all these cases the court has categorically ruled that the delay by itself is not fatal. However, delay has to be explained to the satisfaction of the court. In the case on hand, explanation offered by the Department is one of absconding of the Detenu. Let us see, as to whether absconding explanation would come to the rescue of the respondents. At the time of arguments, a bundle of papers are placed before us. We have carefully seen the material made available to us. From the material made available, it is seen that on 22.9.2003 an endorsement is made to the effect that the detention order could not be served on the detenu. Same is reiterated in subsequent correspondence. Thereafter, it is seen that some investigation seems to have been made in the matter of finding out the detenu for the purpose of detention in terms of the order. From the papers made available to us, we see a letter dated 25.8.2004 issued by the Additional Director, DRI, Bangalore. The said letter has been addressed to the detaining authority and a copy has been marked to the IGP (COD), COFEPOSA, Bangalore. In the said letter, it is categorically stated that the said detention order has not been served on the detenu as he is absconding. Page 0687 Hence, it is suggested that the procedure under Section 7(a) and 7(b) of the Act is followed. It is on record that no further proceedings took place in terms of Sections 7(a) and 7(b) of the COFEPOSA Act. Instead, respondents have chosen to make enquiries to find out the availability of the detenu. On 16.9.2005, a complaint is lodged by the Department. This explanation in our view is not satisfactory for the purpose of consideration of this case. Enormous delay in serving the detention order on the detenu virtually is more than 2 1/2 years. 2 1/2 years delay has to be explained satisfactorily in a manner known law and in accordance with law. Acceptable explanation is not forthcoming. Despite advice from Additional Director way back in the year 2004, respondents have not chosen to initiate proceedings under Sections 7(a) and 7(b) of the Act. Sections 7(a) and 7(b) of the Act are available only to solve such absconding problems. That solution has not been availed of by the respondents for the reasons best known to them. In fact, the Supreme Court has considered the explanation theory of absconding in a judgment , reading as follows:
13. Except making a vague allegation that the appellant detenu was absconding and was apprehended on 23.4.1998 when the order was executed against him, the respondents have not given details of any steps that might have been taken in the meantime to execute the order against Ramesh Nahar. They could have taken appropriate steps under Section 7 of the Act or even under the provisions of Criminal Procedure Code for securing the arrest of the husband of the appellant.
(underlining is supplied by us).
After noticing delay and after noticing not taking appropriate steps under Section 7, the Supreme Court in the above case ruled reading as under:
14. The detention order was passed on 3.2.1997 but it was executed on 23.4.1998. Obviously, the effect of non-execution of the order was that the authorities themselves gave liberty to the detenu to carry on his earlier activities giving rise, in that process, to a question whether the activities complained of were really prejudicial activities within the meaning of Section 3 of the Act. As pointed out above, the execution of the order of detention long after it was passed would have the effect of vitiating the order as also the "satisfaction" of the authorities who passed that order.
14. The said finding of the Apex Court is equally applicable to the facts of this case in the absence of any effective steps despite advice to the respondent. We are satisfied that the execution of order of detention long after it was passed has vitiated the order resulting in our setting aside the detention order. Repeatedly we have held that the detention without trial is effected in the Page 0688 larger interest of public so as to maintain orderly society. That has to be done immediately. It is a prohibitive measure. Delay in executing the order would show that there is no immediate threat at least in terms of the proceedings made available to us. We accept the argument of Sri Kumar, learned Senior Counsel that the non-acceptable explanation of delay would come to the rescue of the petitioner in setting aside the impugned order.
Accepting the argument of the learned Counsel for the petitioner, we deem it proper to set aside the detention order on the peculiar facts of this case.
15. In so far as grounds with regard to the representation and with regard to other grounds made by the petitioner, we deem it proper not to express any opinion in the light of non-acceptable explanation for the delay in the case on hand. These arguments are left open without any finding in this petition.
16. At the time of arguments, we are told that criminal proceedings are pending against the detenu. We see from the material records that the detenu seems to be visiting Singapore on several occasions, and, in terms of the grounds of detention, he is involved in smuggling activities. We therefore deem it proper to direct the third respondent Union of India to issue appropriate directions to the Passport Authorities to impound the passport of the petitioner on the peculiar facts of this case to arrest his further going abroad in the larger interest of stopping smuggling activities in the country. The said impounding would operate till a final order is passed by the appropriate criminal court in the pending criminal proceedings against the Detenu.
17. Ordered accordingly. No costs.