Bombay High Court
Mandakathingal Abdulla vs Joint Secretary To The Govt. Of India, ... on 11 July, 1989
Author: S.P. Kurdukar
Bench: S.P. Kurdukar
JUDGMENT Kurdukar, J.
1. The Court is constrained to quash and set aside the order of detention solely on the ground of negligence and indifference on the part of the Detaining Authority in this case. Despite an opportunity having been granted to respondents vide Order dated 20th June 1989 by this Court, the Detaining Authority has not come forward with any return nor the record was made available to the Court for its perusal to consider as to whether the delay occasioned in passing the impugned order of detention is justified.
2. The petitioner claims to be a next friend of one Mohamed Abas - the detenu (hereinafter referred to as 'the detenu'), who came to be detained pursuant to the order of detention dated 14th October 1988 under S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 passed by the 1st respondent. The order of detention and the grounds of detention were furnished to the detenu on 14th October 1988.
3. It is not necessary to set our in detail the grounds of detention. Suffice it to state few dates which will disclose how casually the order of detention has been passed in this case.
4. On 13th July 1988, Customs Intelligence Officer on suspicion interrogated the detenu in the presence of the panchas at Sahar Airport. The detenu had arrived from Jeddah by Air India Flight No. 806. The detenu had declared his dutiable goods to the tune of Rs. 3,050/-. The said declaration is signed by him. In the presence of the pancha witnesses the Customs Officers asked the detenu as to whether he was carrying any contraband goods such as gold, diamonds etc. either in his bag or on his person, to which he replied in the negative. The Customs Officers were not satisfied with the said explanation and on search being taken, of the detenu's baggage, they recovered 30 gold bars of 10 tolas each concealed inside the specially made metallic caps and fitted to the motor of his sharp washing machine. The said contraband gold weighed 3498 Grams valued at Rs. 10,66,690/- L.M.V. It was seized in the reasonable belief that the same was smuggled one and liable to confiscation under the provisions of the Customs Act, 1962. First statement of the detenu was recorded on 13th July 1988 under S. 108 of the Customs Act. The detenu was arrested on 15th July 1988 under S. 106 of the Customs Act. Thus, the investigation commenced in this case.
5. From the index of the documents supplied to the detenu it is clear that the investigation was completed on 16th July 1988. From 16th July 1988, at least from the record produced before us, it does not appear that any part of the investigation was continued by the Customs Officers. The impugned order of detention came to be passed on 14th October 1988. In view of these dates, Mr. Pradhan, learned counsel appearing in support of this petition urged that there is an unexplained delay in passing the order of detention and, therefore, this itself vitiates the order of detention. A specific ground to that effect is taken by the petitioner in Paragraph 6(b) of the petition and we may reproduce the said ground :
6(b) "The petitioner says and submits that the impugned order of detention dated 14th October 1988 is illegal and bad in law in view of the fact that the said impugned order of detention has been issued while the detenu was in judicial custody. The petitioner says and submits that the alleged incident took place on 15-7-1988 at Sahar International Airport. Statements of the detenu were recorded on the same day. The petitioner says and submits that a glance at the list of documents at Ex. 'C' would show that after 15-7-1988 no further investigation whatsoever were carried out by the Customs department in this case. The petitioner says and submits that the perusal of the list of documents would show that all investigations in this case came to an end on 15-7-1988. The petitioner says and submits there is yet a delay of 3 months in issuing the order of detention. The petitioner says and submits that the activities of detenu was so prejudicial that the order of Detention under the COFEPOSA was required to be issued, the detaining authority ought to have geared-up its machinery to prepare papers for detaining the detenu without any inordinate and inexcusable delay whatsoever. The petitioner says and submits that this gross delay of 3 months in issuing the order of detention, the accused being in judicial custody results in snapping the livelink and as such the impugned order of detention is rendered illegal and bad in law. The petitioner says and submits that on this ground alone the impugned order of detention deserves to be quashed and set aside as illegal in law. The petitioner submits that there is no proximity in time between the alleged incident of 15-7-1988 and order of detention dated 14th October 1988. The petitioner submits that the delay in making the order of detention renders the order illegal and as such the Detaining Authority is under the obligation to explain and to place all the relevant facts before this Hon'ble Court whether the delay is prima facie unreasonable and to satisfy that the delay which occurred in the said case is not inordinate and is explainable. The petitioner says and submits that the Detaining Authority is hereby called upon to satisfy this Court as to this unreasonable, inordinate and inexcusable delay cause in issuing the order of detention. The petitioner says and submits that the Detaining Authority is hereby called upon to furnish to the detenu the following details and particulars :
(i) The date on which the proposal was made for detaining the detenu under the provisions of the COFEPOSA 1974;
(ii) The date on which the proposal was forwarded to the Detaining Authority;
(iii) The date on which the proposal was received by the Detaining Authority;
(iv) The date on which the said proposal was considered by the Detaining Authority and decision taken to detain the detenu i.e. the date on which the detention order was passed."
In the context of these averments in the petition and grounds thereof it was expected on the part of the Detaining Authority to satisfy the Court that there was in fact no delay and they have taken steps expeditiously in passing the detention order without wasting any time. In this petition, Rule Nisi was issued on 1st March 1989 and made returnable on 19th June 1989. The matter appeared on board on 19th June 1989 but it was adjourned to 20th June 1989. The matter was heard on 20th June 1988 for sometime and came to be adjourned to 3rd July 1989, to enable the detenu's counsel to take up certain contentions and formulate the same properly. Consequently, the matter stood adjourned to 3rd July 1989 on the very same day i.e. on 20th June 1989 this Court (S. K. Desai and V. V. Kamat, JJ.) expressed deep concern as regards total unsatisfactory conduct on the part of the Detaining Authority in not filing the return. Reluctantly, the Court adjourned the matter. The only idea behind adjourning the matter was to enable the Detaining Authority and other respondents to this petition, to file proper return and assist the Court. The matter thereafter did not reach for fairly long time. It reached for hearing on 10th July 1989 and with great distress, we must record that there is no improvement whatsoever on the part of the respondents in conducting the present writ petition. Mr. Desai, learned counsel appearing for the respondents fairly stated that despite his communication neither the Detaining Authority has sent the return nor the record has been made available to him by the Detaining authority to be produced before the Court. As a result of this situation, it must follow that the delay in passing the impugned order between 16th July 1988 and 14th October 1988 remains unexplained. Mr. Pradhan appearing for the detenu rightly drew our attention to a judgment of the Supreme Court in the case of Rabindra Kumar Ghosel v. State of West Bengal, . It is a short judgment and we may reproduce the whole judgment which reads as under :
"The detention order of the detenu who has moved this petition of habeas corpus was passed on March 14, 1974. Certain grounds which induced the detaining authority were the subject-matter of two criminal cases which ended in discharge on December 5, 1973 and December 20, 1973 respectively. The Superintendent of Police, according to the counter-affidavit, placed the case for detention before the District Magistrate on November 3, 1973. We find that the actual order of detention was passed only around three months thereafter. The whole purpose and object of the Maintenance of Internal Security Act is that persons who are likely to imperil public order are not allowed to be free to indulge in this dangerous activity. We cannot understand the District Magistrate sleeping over the matter for well nigh three months and then claiming that there is a real and imminent danger of prejudicial activity affecting public order. The chain of connection between the dangerous activities relied upon and the detention order passed is snapped by this long and unexplained delay. If there were some tenable explanation for the gap we would have been reluctant to interfere with the detention order but none has been stated in the counter-affidavit filed today many months after time was taken for filing a return. In these circumstances, we are not satisfied that there is any justification for the claim of subjective satisfaction put forward by the District Magistrate. The petition is allowed, the rule nisi confirmed and the petitioner directed to be set at liberty."
In view of this settled position of law, in the detention matters as regards delay, we are constrained to hold that the subjective satisfaction of the Detaining Authority is vitiated by reason of passing the detention order after about three months.
6. In the result, the writ petition succeeds. The impugned order of detention is quashed and set aside and the detenu is directed to be released forthwith if not required in any other criminal case. Rule made absolute. No order as to costs.
7. Petition allowed.