Bombay High Court
Shri Harish Chawla vs The State Of Maharashtra And Ors. on 7 September, 1998
Equivalent citations: (1999)101BOMLR25
Author: T.K. Chandrashekhara Das
Bench: T.K. Chandrashekhara Das
JUDGMENT N. Arumugham, J.
1. By virtue of Article 226 of the Constitution of India, this Writ of Habeas Corpus is filed by the petitioner, who is the brother of detenu by name Anil Chawla @ Kamal Idnani, who is detained by order passed by the 2nd Respondent namely. The Secretary to the Government of Maharashtra, Home Department, the Detaining Authority, dated 8.10.1997 bearing No. PSA 1297/47 SPL 3(A), under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, impugning the said detention order on the grounds specified in the Writ Petition and prayed to quash and set aside the same.
2. The detenu Anil Chawla @ Kamal Idnani along with one Mr. Kishore B. Behrani were intercepted by the Narcotic Cell, Customs Preventive Functionary, just before 0100 hours on 12.12.1996 after getting the specific intelligence while both of them were in the process of boarding the flight No. AI-446 due for Bangalore at departure mode at Bombay on that day. On examination of the green coloured zipper bag of Mr. Kishore Behrani and his shoes, resulted in the seizure of foreign currency (pound sterling 10,700) equivalent Rs. 6,45,210/-. Shri Kishore Behrani was a domestic passenger and was about to alight at Bangalore and that he was about to hand over the foreign currency above referred, in the flight to another passenger namely the detenu in the instant case, who was having an Indian passport No. H-4040235 issued on 29.5.1990 at Bombay, travelling in the same flight to Singapore via Bangalore. Both were intercepted simultaneously and the currency above referred were recovered from the possession of Kishore Behrani and seized under the provisions of the Customs Act, 1973 read with FERA, 1973 immediately.
3. Statement of Shri Kishore Behrani @ Hero was recorded on the same day wherein he has admitted his guilt and that he agreed to carry some foreign currency concealed in his baggage and shoes and was to hand over the same to Anil Chawla in the flight for a monetary consideration of Rs. 2,000/- and the entire modus operandi to smuggle the foreign currency under seizure, out of India, was amounting to an offence and that they were aware of the selling of the foreign currency out of India.
4. Both of them were arrested on 12.12.1996 under the provisions of Customs Act, 1962 and read with FERA 1973 and produced before the Additional Chief Metropolitan Magistrate, Bombay on 13.12.1996, who remanded them to judicial custody till 18.12.1996. However, on 18.12.1996 an application made on behalf of both, and they were granted bail by the learned Chief Metropolitan Magistrate, on a sum of Rs. 30,000/- cash each or one surety of like amount, which were availed by both of them on 18.12.1996 on cash deposit.
5. The statement of the detenu by name Anil Chawla was recorded on 12.12.1996 under Section 106 of the Customs Act, 1962 and in which inter alia he has stated that he worked as a taxi driver for five years and along with another person by name Shyam Chug started a partnership business in garments; that both used to earn around Rs. 4,000/- per month each; that used to visit at Singapore for the purpose of purchasing cutlery and electronic goods; that used to sell the same in Ulhasnagar for a profit; that their visit to Singapore on the latest occasion was for the purpose of selling the designed punjabi suits; and to sell the same in Singapore at good price; and that however due to the changed policy of the Government there was not much profit to be earned by bringing foreign house hold goods into India; that they subsequently found that there was a good margin of profit in dealing in computer parts; and that during his last visit to Singapore, the detenu carried latest design of Punjabi suits and fresh vegetables which fetches a higher price; that he left for Singapore on 29.11.1996; that he sold the same to an old friend of his by name Gulu whom he had met many times on his earlier visits; and that he has also seen the said Gulu at Ulhasnagar. But however he did not know the residence of Gulu; that Gulu told him that he would sell all the goods and arrange for delivering the sale proceeds at his shop in Ulhasnagar; and that accordingly he left the goods with Gulu in Hotel room No. 304, Lodge No. 276, Surgoon Road, Singapore, and returned on the next day to Bombay on 30,11.1996; that on 6.12.1996 a person named Asif camp to his shop and handed over a sealed cover and told that the same was handed over to him on the direction of one Gulu; and that he opened the cover and found that it contained around 11,000 pound sterling; that thereafter he made plans to make a trip to Singapore for the purchase of computer parts; and that he was scared to carry currency by himself; that he recollected that he had met a boy named Hero Behrani, introduced to him by his brother Raj in the last week of November, 1996; that he had promised him a chance to make some money and that, he was willing to do any job; that he booked a ticket on a fictitious name i.e. Kishore D. for 11.12.1996 for sector Bombay-Bangalore on AI-446/12.12.1996/0100 hours; and that he met .Hero in the afternoon on 11.12.1996 and told him that Hero to accompany him from Bombay to Mangalore and that Hero shall hand over the foreign currency concealed in a pair of shoes and some other items inside the flight; that Hero would alight at Bangalore and return to Bombay by bus; that he would proceed to Singapore for the purchase of computer parts; and that he handed over Hero Rs. 2,000/- as monetary consideration in addition to other expenses for which Hero agreed; that he also told Hero that his ticket was purchased in the name of Kishore D.; that he met Hero around 1900 hours on U.12.1996 and went to the Airport and after reaching the Airport he bought his ticket for the same flight, that after checking in at the Airline counter, both proceeded to the parking lot outside and exchanged the shoes as both wore shoes of the same size; that the shoes he gave to Hero contained part of the foreign currency concealed in the sole of the shoes; that the said concealment of the foreign currency was done by him; that he also gave Hero a white towel with the rest of the currency concealed in its folds; that 10700 pounds sterling were totally concealed in the shoes and towel; that he requested for two seats in the same row at the airline counter at the time of checking in, so that there would not be any difficulty for handing over/exchanging the towel and shoes inside the flight; that his name and address shown in the passport are fictitious; that his real name is Anil Chawla; that he was aware that smuggling out foreign currency was an offence. He identified Hero and vice versa and both admitted the recovery of foreign currency of 10700 pound sterling.
6. The statement of Hero Behrani ® Kishore D. was also recorded on 12.12.1996 under Section 108 of Customs Act, 1962 wherein he has admitted every thing including the transactions and the modus operandi of the dealing which he had, like the statement of the detenu by name Anil Chawla. In short the statement of Hero Behrani @ Kishore D. recorded was in total corroboration of the statement made by the detenu in the instant case and further he has told that he was holding a duplicate passport in the name of Kamal Idnani and that he would purchase a ticket in the name of Kamal Idnani for Air India flight bound for Singapore via Bangalore; and that the ticket in some duplicate name was purchased for Bangalore. With regard to the overt acts of facts of the pair shoes concealed with foreign currency as well as the towel concealed with foreign currency and the tickets above referred for Singapore in the same flight and to get down at Bangalore and that he would come back to Bombay by bus, are all admitted.
7. The statements made were voluntary and recorded in the presence of witnesses by virtue of Section 108 of the Customs Act, 1962. Both of them have not retracted their statement so far.
8. A show cause notice under Section 124 of the Customs Act, 1962 have been issued against both on 3.3.1997 and no adjudication order has been passed on that so far.
9. The detenu was the sole operator in the said case and that he has planned the1 entire smuggling activity, arranged for the carrier, Hero Behrani, lured him with monetary benefits, arranged for the air tickets and concealment of the foreign currency and attempted to smuggle the foreign currency under seizure to Singapore. Though he has not admitted any previous offence, he made it clear that he had made six trips to Singapore on a bogus passport in the fictitious name and identity of Shri Kamal Idnani. The said activity points a finger of suspicion on him. However, he has admitted that he were fully aware that smuggling of foreign currency out of India is an offence punishable within the country.
10. Upon the above said facts, the Detaining Authority i.e. the 2nd respondent herein, after having carefully perused and subjectively satisfied that the detenu is likely to continue to engage in aforesaid prejudicial activities in future and in order to prevent him from undertaking such prejudicial activities in future, it has become necessary to detain him under the COFEPOSA Act. Therefore the Detaining Authority after having satisfied that the nexus between the date of incident and order of the detention as well as the object of his detention has been maintained, passed the impugned order of detention on 8.10.1996 with the above grounds formulated and that the statutory opportunities given to him to represent his case, served the detention order above referred on 27.10.1997 along with the grounds of detention. The Government of Maharashtra the first respondent forwarded to Central Government the report under Section 3 Clause (2) of the said Act on 9.10.1997 under the signature of Shri G.R. Rane under Secretary concerned who is authorized under the Maharashtra Government Rules of Business, to do so. The said report was accompanied by (1) a letter dated 7.4.1997 along with its accompaniments from the Assistant Commissioner of Customs (Preventive), COFEPOSA Cell, Bombay, (2) Detentional-cum-Committal Order and (3) notice of Grounds of detention under Sub-section (3) of Section 3 of the Act, all in English alongwith accompaniments. The committal order, that is the order regarding the place of detention was issued in accordance and consonance with the Government of Maharashtra Order No. SB. III/ISA-3974 (V), dated 18.12.1974 as authenticated.
12. Challenging the above detention order passed by the 2nd respondent herein, we have heard the strenuous argument of Mr. Maqsood Khan the learned Counsel appearing for the petitioner and the submission by Mrs. Tahilramani, the learned P. P. for the State.
13. In all the three grounds formulated in the writ petition, it is relevant at this stage first to make a note that Mr. Maqsood Khan the learned Counsel has persuaded the grounds Nos. 1 and 3 in full strength but he has given up the ground No. 2 which is apparently a consequential one to ground No. 1. Therefore, we have not dealt with ground No. 2 as it come unnecessary, in dwelling his attack upon the impugned order made by the 2nd respondent, detaining the detenu in the instant case, it was the contention of the learned Counsel Mr. Maqsood Khan that the alleged incident on the basis of which the impugned order of detention was issued as effected as far back as on 12.12.1996 and since the investigation commenced in this case on 12.12.1996 was ever effectively on 18.12.1996 and the impugned order of detention was issued much belatedly as late as on 8.10.1997, after a lapse of 9 months and 26 days between the offending activities and the alleged detention order the very nexus and proximity existing between the offending activities and the detention order has been snapped and thus the credible chain between the two aspects has been broken and the Detaining Authority ought to have refrained from issuing the impugned order of detention. The learned Counsel further submitted that the Sponsoring Authority having secured the detenu with another, on 12.12.1996 itself, according to the statements and text of the currency with the preparation of relevant bundles on the days itself and passing the detention order only on 18.10.1997, since there was no proximity and nexus, the detenu is not likely to be indulgence in further prejudicial activities and that therefore the laxity on the part of the Detaining Authority in passing the detention order snapped the very nexus between the offending activities and the prejudicial one, under the provisions of the relevant act arid therefore the detention order perse has become vitiated and that therefore liable to be set aside.
13A. The second ground the learned Counsel Shri Maqsood Khan attacked to quash the impugned order is that the written representation dated 12.12.1997 by the detenu himself has not at all been considered by the Detaining Authority uninfluenced by any of the extraneous matters, or the orders passed either by the Government of Maharashtra or the Advisory Board and that therefore on this ground also the impugned order has become vitiated.
14. Before proceeding further we have to see the important and significant aspects of this case that none of the statements recorded from the detenu as well as the co-accused namely Kishore Behrani has been retracted at any point of time as on today. Such statements were recorded under Section 108 of the Customs Act. That would mean the recovery of the foreign currency 10700 pound sterling from the custody of Kishore Behrani as well as the detenu before they were boarding the flight at Sahar Airport, Bombay under the relevant bundles were not disputed, as well as their statements recorded by the authorities under Section 108 of the Customs Act. If it is being the position, we do come across the fact that the detenu had along with Kishore Behrani i.e. Hero, have conspired together with one Asif whose particulars were not yet ascertained or known and that one Gulu, a person who also rendered the major over facts in this transaction in purchasing goods and cutleries and computer spare parts from Singapore and selling it in India and smuggling the foreign currency in contravention of the relevant provision of the Customs Act and the FERA Act. The investigation in this case appears to have been almost over on 18.12.1996. Most of the major activities of the Sponsoring Authorities in securing the major and vital materials were over on the same day. However, the investigation in the instant case has claimed to have been over on 18.12.1996. According to the Sponsoring Authority Assistant Collector of Customs has initiated the proposal of the detention of detenu on 25.12.1996 itself with regard to the above said facts and there seems to be no controversy or dispute whatsoever amongst the parties herein.
15. The sworn affidavit filed by Shri K.M. Lalwani, Assistant Commissioner of Customs (Prev.) COFEPOSA Cell, Bombay in para 3 would reveal that the seizure in the instant case was effected on 12.12.1996, and that on completing the preliminary investigations, the proposal for detention was initiated on 25.12.1996, and that this case was placed before the Screening Committee in the meeting held on 21.3.1997, which was the first Screening Committee Meeting held after the proposal was initiated, and that after receiving the approval from the Screening Committee on 30.3.1997, the proposal along with documents at serial Nos. 1 to 55 was sent to the Detaining Authority on 7.4.1997, and documents at serial Nos. 56 to 62 were sent to the Detaining Authority on 11.4.1997, and the reply to the Detaining Authority's letter dated 17.4.1997 calling for certain documents, was sent on 22.4.1997, and that the draft detention order, grounds of detention and the relied upon documents were received for transaction on 22.9.1997 vide Detaining Authority's letter dated 19.9.1997 and the same were got done on priority basis and the translations were forwarded to Detaining Authority on 6.10.1997 and the detention order was issued on 8.10.1997.
16. With regard to the above, Mr. G.S. Sandhu, the Secretary to the Government of Maharashtra, Home Department (Preventive Detention) and Detaining Authority, proved by his own affidavit, and has stated in para 5 of his affidavit that:
With reference to para 4(1) of the petition, I say that the Assistant Commissioner of Customs (P), COFEPOSA Cell, Bombay submitted the proposal in respect of the detenu along with concerned documents vide his letter dated 7.4.1997 which was received in the Home Department on 7.4.1997. Additional information about arrest memo, bail certificate etc. was received on 11.4.1997. The Government had called for additional information about copy of adjudication order etc. on 17.4.1997 and the same was received on 22.4.1997.
It is submitted that at that time some proposals for detention were already under consideration of the Detaining Authority. The detention orders in some of these matters were issued on 9.6.1997 (two orders), 14.7.1997, 16.7.1997 (two orders), 30.7.1997, 4.8.1997, 18.8.1997 (two orders). The proposals in the first three cases were received on 8.11.1996, the proposals in the next two cases were received on 20.2.1997. The proposals in the last 4 cases were received on 3.4.1997 (two proposals), 7.4.1997 and on 26.12.1997.
After preparing the file the Section Officer submitted the proposal to the Under Secretary on 31.5.1997. The Under Secretary after considering the proposal submitted it to the Deputy Secretary, and Secretary (Preventive Detention) i.e. to him on 5.6.1997. However, it was found that the date of incident in this case is 12.12.1996 and the proposal for detention of the detenu under the COFEPGSA Act, 1974 was received from the Customs Department on 7.4.1997 i.e. after a lapse of four months. Hence after obtaining his oral instructions the file was again submitted by the Section Officer to the Under Secretary on 21.7.1997. The Under Secretary considered the papers on 25.7.1997 and submitted the file to the Deputy Secretary. The Deputy Secretary further submitted the file to him on 24.7.1997. After considering the proposal along with the documents he found that this was a fit case for detention under the COFEPOSA Act, 1974 on 25.7.1997.1 prepared the draft grounds of detention. After this draft was typed and ready on 18.8.1997 the file was again submitted by the Section Officer on 18.8.1997 to the Under Secretary. The Under Secretary went through the same and submitted the file to the Deputy Secretary on 2.9.1997. It is submitted that there were closed holidays between 22 to 25th August, 1997 and also on 31.8.1997. The Deputy Secretary further submitted the file to me. I again considered the proposal alongwith all the documents and made some changes in the grounds of detention on 9.9.1997. I say that there were closed holidays on 6.9.1997 and 7.9.1997. After typing of the proposed detention order, grounds of detention etc. the same were submitted for my signature on 16.9.1997. I went through all the papers and put my signature thereon on 17.9.1997. Thereafter the proposed detention order, grounds of detention etc. were sent for translation in the language known to the detenu i.e. Sindhi vide Government letter. Home Department dated 19.9.1997. After receipt of the translation of the documents on 8.10.1997 the file along with the record/documents of this case was again submitted to me, and I after considering all the documents issued the detention order on 8.10.1997 and contemporaneously finalized the grounds of detention. The detention order, grounds of detention along with the sets of documents etc. was sent to the Commissioner of Police, Thane vide Government letter, Home Department dated 8.10.1997 and the detenu was detained by the Crime Branch, Thane on 27.10.1997, and the detention order, grounds of detention and other documents were served upon the detenu on the same day. Thus, according to the Detaining Authority, the documents generated during the course of investigation and relied upon subsequently that all the information obtained and materials collected and being forwarded by the Sponsoring Authority upto 24.12.1997 were considered and since he was able to identify the nexus and the proximity of the offending activities of the detenu to indulge in prejudicial activities in future, he has passed the impugned detention order and that as such the incident referred to above has not become stale or that the live link has been snapped in this case as claimed. In his affidavit he has also submitted that looking to the involvement of the detenu in the present case of smuggling of foreign currency and looking to the fact that the detenu was travelling on a bogus passport, using a fictitious name and the fact that on earlier six occasions he had travelled abroad on a fake passport, the Detaining Authority has arrived at the subjective satisfaction that the detenu would indulge again in such activities and therefore the impugned order of detention was passed.
17. Shri B.S. Wankhede, Desk Officer, Home Department (Special, Government of Maharashtra, had also filed and sworn in an affidavit, in which in paras 4 and 5 he has narrated all the details of the dates of the receipt of the documents, materials and the proposals to pass the detention order and the consideration by various stages by the officials concerned respectively, in fact, substantiating all the claim made by Shri Sandhu. the Secretary to the Government that there was no laxity on the part of either the special authority or the Detaining Authority and that the proximate and the nexus between the offending activities of detenu and the detention order has not been snapped at all and the live link has not at all been snapped.
18. Before proceeding further in the above factual matrix, we would like to emphasis the settled judicial pronouncements with regard to the concept of the delay in passing the detention order and if the delay has been explained or remained unexplained, whether the detention order would become vitiated in the context of the identifying of the propensity and potentiality of the detenu.
19. In Rajendrakumar Natvarlal Shah v. State of Gujarat and Ors. AIR 1988 1255 : 1988 Cr.L.J. 1775 and at page 1260 in para 9 the Apex Court has held the ration as under:
In the enforcement of a law relating to preventive detention like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 there is apt to be some delay, between the prejudicial activities complained of under Section 3(1) of the Act and the making of an order of detention. When a person is detected in the act of smuggling of foreign exchange racketeering, the Directorate of Enforcement has to make a thorough investigation into all the-facts with a view to determine the identity of the persons engaged in these operations which have a deleterious effect on the national economy. Quite often these activities are carried on by persons forming a syndicate or having a wide network and therefore this includes recording of statements of persons involved, examination of their books of accounts and other related documents. Effective administration arid realization of the purposes of the Act Is often rendered difficult by reason of the clandestine manner in which the persons engaged in such operations carry on their activities and the consequent difficulties in securing sufficient evidence to comply with the rigid standards, insisted upon by the Courts. Sometimes such investigation has to be carried on for months together due to the magnitude of the operations. Apart from taking various other measures i.e. launching of prosecution of the persons involved for contravention of the various provisions of the Acts in question and initiation of the adjudication proceedings, the Directorate has also to consider whether there was necessity in the public interest to direct the detention of such person or persons under Section 3(1) of the Act with a view to preventing them from acting in any manner prejudicial to the conservation and augmentation of foreign exchange or with a view to preventing them from engaging in smuggling of goods etc. The proposal has to be cleared at the highest quarter and is then placed before a Screening Committee. For ought we know the Screening Committee may meet once or twice a month. If the Screening Committee approves of the proposal, it would place the same before the Detaining Authority. Being conscious that the requirements of Article 22(5) would not be satisfied unless the basic facts and materials which weighed with him in reaching his subjective satisfaction, are communicated to the detenu and the likelihood that the Court would examine the grounds specified in the order of detention to see whether they were relevant to the circumstances under which the impugned order was passed, the Detaining Authority would necessarily insist upon sufficiency of die grounds which would justify the taking of the drastic measure of preventively detaining the person.
Para 10. Viewed from this perspective, we with to emphasis and make it clear for the guidance of the different High Courts that a distinction must be drawn between the delay in making of an order of detention under a law relating to preventive detention like the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 and the delay in complying with the procedural safeguards of Article 22(5) of the Constitution. It has been laid down by this Court in a series of decisions that the rule as to unexplained delay in taking action is not inflexible. Quite obviously in cases of mere delay in making of an order of detention under a law like the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence have been posing a serious threat to the economy and thereby to the security of the nation. Courts should not merely on account of delay in making of an order of detention assume that such delay if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the Detaining Authority or that such subjective satisfaction was not genuinely reached. Taking of such a view would not be warranted unless the Court finds that the grounds are stale or illusory or that there is no real nexus between the grounds and the dates of the alleged incidents and the making of the order of detention was not so large that it would be said that no reasonable person could possibly have arrived at the satisfaction which the District Magistrate did on the basis of the alleged incidents. It follows that the test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention.
In Vijay Narain Singh v. State of Bihar , one of us, Sen, J. observed:
On merits the impugned order cannot be said to be vitiated because of some of the grounds of detention being non-existent or irrelevant or too remote in point of time to furnish a rational nexus for the subjective satisfaction of the Detaining Authority. It is usually from prior events showing tendencies or inclinations of a man that an inference can be drawn whether he is likely, in the future to act in a manner prejudicial to the maintenance of public order.
20. In T.A. Abdul Rehman v. State of Kerala , the Supreme Court has held the legal ratio in page 229 as follows:
The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be Laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the pass of detention order, the Court has to scrutinize whether the Detaining Authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the Court has to investigate whether the casual connection has been broken in the circumstances of each case.
12. 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 him from acting in a prejudicial manner.
21. The above legal ratio pronounced by the Apex Court have been followed by various Courts including this Court in dealing with the delay in passing the detaining order in the COFEPOSA Act. One of such case is Zahoor Ahmed Peshiman v. Union of India and Ors. 1997 VI L.J. 257 and the relevant portion is at page 280. Similar one is the judgment of this Court rendered by Shri A.V. Savant and S. Radhakrishnan, JJ. in Criminal Writ Petitions Nos. 1212 of 1996 and 1385 of 1996 and the judgment dated 30th September, 1st, 3rd and 10th October, 1997.
22. Though a plethora of the case laws and judgments made by the Courts of higher hierarchy Is available in the context of the judicial pronouncement made by the Supreme Court as above referred, we feel it unnecessary to refer all the same, for the sake of brevity and that the above ratios have been followed by the several High Court under Article 141 of the Constitution of India.
23. Mrs. Tahilramani, the learned P.P. appearing for the respondent while strongly relying upon the above ration in the above referred cases by the Apex Court has brought to our notice that the delay of 9 months and 26 days to pass the order of detention in the instant case has been explained by filing the affidavit firstly by the Sponsoring Authority namely the Assistant Commissioner of Customs, Preventive, COFEPOSA Cell, Bombay to the effect that though the preliminary investigation in this case was said to be completed on 12.12.1996, the proposal for the detention order was initiated on 25.12.1996. The entire case records were placed before the Screening Committee and the Screening Committee considered the matter on 21.3.1997 in the meeting after the proposal was initiated. After the receipt of the approval from the Screening Committee on 30.3.1997 along with the documents and further documents which was sent to the Detaining Authority on 11.4.1997. Reply to the Detaining Authority's letter dated 17.4.1997 calling for certain records were sent on 22.4.1997. Then the documents were received for translation on 22.9.1997 as per the Detaining Authority's letter dated 19.9.1997 and the same were gone done on priority basis and the translation were forwarded to the Detaining Authority on 6.10.1997 and the detention order was received on 8.10.1997.
24. Mrs. Tahilramani, the learned P.P. would further point out the affidavit of Mr. D.S. Wankhede, the Desk Officer, Home Department, Mantralaya, Bombay to the effect that in pursuance of the Government order No. PSA 2096/35/SPL. 3(A), dated 19.12.1996 Shri G.S. Sandhu, Secretary to the Government of Maharashtra, Home Department (Preventive Detention), the said respondent herein, after considering the entire case records, received the detention order on 8.10.1997 on the basis of the grounds of detention formulated by them. She would further point out that the said order of detention dated 8.10.1997 was served on the detenu on 27.10.1997 along with the grounds of detention. The Government of Maharashtra forwarded their report under Section 3(2) of the said Act on 9.10.1997 under the signature of Under Secretary concerned, who is authorized by the State to do so. The said report was accompanied by the grounds of detention, letter dated 7.4.1997 and the detention-cum-committal order and so on. The committal order regarding the place of detention was issued in accordance with the consonance of the Government order authenticated by the rules concerned. It is admitted, according to the learned P.P. that the proposal in respect of the detenu along with the documents was received by the Detaining Authority on 7.4.1997 and that additional information about the arrest memo, certificate etc., were referred and received on 11.9.1997. The Government then called for additional information about the copy of adjudication order etc. on 17.12.1997 and the same was received on 22.4.1997.
25. The learned P.P. submitted further that in view of certain proposal for detention were pending at that time and were already under consideration of the Detaining Authority, the detention orders in some of these matters were issued on 9.6.1997 (two orders), on 14.7.1997, 16.9.1997 (two orders on 30.9.1997, 4.8.1997 and 18.8.1997 (two orders) and that the proposals in the first three cases were received on 11.9.1996, the proposals in the next two cases were received on 20.2.1997 and the proposals in the last four cases were received on 3.4.1997, 4.9.1997 and 16.11.1997 respectively. After preparing the file the Section Officer submitted the proposal to the Under Secretary on 31.9.1997 and after considering the proposal he submitted the same to the Deputy Secretary on 5.6.1997. However, it was found that the date of incident in this case was 12.12.1996 and the proposal for detention of the detenu under the Act was received from Customs Department on 7.4.1997 i.e. after a lapse of four months. Hence after obtaining oral instructions from the Detaining authority, the file was again submitted by the Section Officer to Under Secretary on 21.9.1997. The Under Secretary considered the papers on 23.9.1997 and submitted the file to the Deputy Secretary. The Deputy Secretary however submitted the file to the Detaining Authority on 24.7.1997. The Detaining Authority after considering the proposal along with the documents found that this was a case under COFEPOSA Act, 1974 and on 25.7.1997, the Detaining Authority prepared the draft grounds of detention. After this draft was typed and ready on 18.8.1997, the file was again submitted by the Section Officer on 18.9.1997 to the Under Secretary. The Under Secretary went through the same and submitted the same to Deputy Secretary on 2.9.1997 and that since there were closed holidays between 22nd to 25th August, 1997 and also on 31.8.1997 the Deputy Secretary submitted the file to the Detaining Authority. The Detaining Authority again considered the proposal along with all the documents and made some changes in the grounds of detention on 9.9.1997. After typing of the proposed detention order, grounds of detention etc. the same were submitted for the signature of the Detaining Authority on 16.9.1997. After obtaining the signature of the Detaining Authority on 17.9.1997 the proposed detention order, grounds of detention etc. were sent for translation in the language known to the detenu. After the receipt of the translation of the documents on 8.10.1997, the file along with the records, documents of the case was again submitted to the Detaining Authority, who after considering all the documents issued detention order on 8.10.1997. The detention order, grounds of detention along with the sets of documents were sent to the Commissioner of Police. Thane vide Government letter. Home Department dated 8.10.1997 and the detenu was detained by Crime Branch. Then on 29.7.1997 after serving the detention order, grounds of detention and other documents upon the detenu on the same day. The learned A.P.P. then brought to our notice, the facts claimed by the Detaining Authority, namely Shri G.S. Sandhu, in para 5 of his own affidavit, as has been referred already.
26. On a close perusal and scrutiny of various dates furnished by the respondents through their affidavits, we came to know that though the offending act in the instant case took place on 12.12.1996 and the preliminary investigation was almost over by 18.12.1996, the proposal to initiate the detention of the detenu was started on 25.12.1996. According to the Sponsoring Authority, the Assistant Commissioner of Customs, Preventive, COFEPOSA cell, the entire proposal and the case records has been placed before the Screening Committee for its approval amid that since the approval has completed on 21.3.1997 there was no delay on the part of the Sponsoring Authority. It is contended further that sifter getting approval from the Screening Committee on 30.3.1997 along with the documents it was sent to the Detaining Authority on 11.4.1997 and that thereafter in reply to the Detaining Authority's letter, further documents and materials were furnished to the Detaining Authority on 22.4.1997. It is thus seen from the above graphical picture all the events had taken place as submitted by the learned P.P. from 25.2.1996 till the date of passing the detention order. The authorities namely the respondents had a close watch and had come out with an identity of the nexus between the prejudicial activities committed by the detenu in the detention order.
27. Mr. Maqsood Khan, the learned Counsel appearing for the petitioner submitted that after initiating the proposal for passing the detention order on 25.12.1996, the consideration of waiting for the approval of the Screening Committee on 21.3.1997 even if it is agreed, without admitting, cannot be a ground at all to condone the delay or accepting as explanation for the delay as contemplated by law, for which the learned Counsel has relied upon unreported judgment held by the Division Bench of this Court in Criminal Writ Petition No. 80/81 dated 1st August, 1991.In the said judgment Her Lordship Smt. Sujata Manohar, (as she then was) at page 7 has observed as follows:
We are informed that this Screening Committee, though not a statutory body is a machinery brought into existence administratively for the purpose of screening action under the COFEPOSA Act. While this may be an admirable step taken by the Authorities, we cannot countenance delay on the ground that the Screening Committee had to scrutinize and approve of the proposal for detention. In any event, in the present case there has been delay even thereafter. Though the Screening Committee promptly cleared the proposal on 29th June, 1990, itself, the proposal was forwarded to the Detaining Authority by the Sponsoring Authority only on 16th October, 1990. This period of inaction is explained by saying that the show-cause notice under the Customs Act was issued on 17th September, 1990, and one last document was complied on 11th October, 1990. We cannot lost sight of fact that by this time the investigation were almost over.
28. As observed in the above case law, the functions and the duties of the Screening Committee whether it amounts to relevancy or irrelevancy, one of the necessary factor to be considered since it has been established, it is a machinery set in by the authorities and the Government to screen the actions under the COFEPOSA Act, it may convene its meeting once in a month or once in two months or so and that after the explanation given in this case, the Detaining Authority was already engaged with several proposals under the COFEPOSA Act to pass the detention order vide the affidavits filed by the respondents, and it cannot be described as the order of detention contains the very laxity on the part of either the Sponsoring Authority or the Detaining Authority. Then the learned Counsel Shri Maqsood Khan has brought to our notice the judgments rendered in Criminal Writ Petition No. 261/91 dated 22nd August, 1991 by the Division Bench of this Court as well as in Criminal Writ Petition No. 1364/89 dated 20th March, 1990 and also a case held in Kamruddin Abdul Aziz v. L. Hmingliana and 4 Ors. 1992 (1) Crimes 1.
It is true that in the above case laws the ratio held consistently by this Court that unexplained delay in passing the detention order would amount to the total violation of the detention order under Section 3(1) of the COFEPOSA, Act. But in the light of factual matrix pointed out above in the context of the judicial pronouncement made by the Apex Court in the cases supra and having regard to the facts and circumstances of this case, particularly the gravity and nature of the transactions had by the detenu with the secret conspiracy hatched out and continuously, with one Gulu from Singapore and that with the assistance of his brother and one Mr. Azad as evident from the statements recorded under Section 108 of the Customs Act, it would clearly reveal that the propensity and potentiality of the prejudicial activities committed by the detenu cannot be taken no lightly. As held by the Apex Court, if we consider the merits of the case on the established circumstances and the documents produced before us, we are not inclined to accept the very contentions raised by Shri Maqsood Khan the learned Counsel for the petitioner on the first ground, namely that the delay in passing the detention order on 8.10.1997 had snapped the very nexus and proximity between the offending activities of the detenu and of the passing of the detention order. After having kept in mind, the above ratios formulated by the Supreme Court and if we consider the factual matrix of the instant case, the first part of the delay namely the proposals for passing the detention order reached the Detaining Authority on 7.4.1997 in the first instant, and that on 25.7.1997 the date on which the Detaining Authority has found it that this is a fit case to pass the detention order, the delay in passing the detention order dt. 8.10.1997 there appear to have been explained properly by the respondents in this case. Of course it was true that the statement of the relevant persons were recorded and the investigation in this case was almost over by 18.12.1996 which was followed by the proposal being initiated by 25.12.1996. But the process has to be necessarily taken through the Screening Committee as it was formulated as a routine affair and that after approval it has to be sent to the Detaining Authority. It we consider these two aspects in the gravity and nature of the offending activities, smuggling of foreign currency out of India, the same is an offence under the Customs Act and FERA, then as laid down by the Apex Court, the delay of few months or few days may not tilt the balance in either way in favour of the detenu. Therefore it is for the said reasoning, we are not impressed by the contentions made by the learned Counsel Shri Maqsood Khan in this regard. On the other hand in the light of the above said circumstances, we are constrained to endorse our view as strenuously contended by the learned P.P.
29. Coming to the second ground, which Mr. Maqsood Khan the learned Counsel for the petitioner urged, we would like to point out at the out set that there is no force or merits in the same for the following reasons.
In the writ petition itself in ground No. 3 page 6 it has been stated as hereunder:
The petitioner says and submits that the detenu is submitting a representation addressed to the Detaining Authority and the State Government. The petitioner says and submits that on this petition being admitted and Rule Nisi being issued, it would be incumbent upon the Detaining Authority and the State Government to satisfy this Hon'ble Court as to whether the detenu's said representation was considered by the Detaining Authority and the State Government expeditiously and independently of each other and independently of the opinion of the Advisory Board and as to whether their replies were handed over to the detenu without any avoidable delay. The petitioner says and submits that on the Detaining Authority and the State Government failing to satisfy this Hon'ble Court on the aforesaid counts, the detention of the detenu would be violative of Article 22(5) of the Constitution rendering it mala fide, null and void.
30. While substantiating the above ground, it was endeavoured by the learned Counsel for the petitioner Shri Maqsood Khan that the Detaining Authority while rejecting the representation of the detenu dated 12.12.1997, was totally influenced by the order of rejection by the Advisory Board and that therefore the rejection of the representation by the Detaining Authority and the Government subsequently, was not in accordance with the legal ratio and the casual prognosis and that therefore the impugned order has become vitiated. Though he had placed reliances on two authorities, one held by the Apex Court and another by this Court, we do not find that the same are not applicable to the facts of the instant case, we find it difficult to refer the same for any reasons. In the grounds itself, it is noticed that the detenu has forwarded his representation to the State of Maharashtra and the Detaining Authority namely the State Government and the averments made in the ground itself shows that neither the State Government nor the Detaining Authority had considered the representation at all. It is the specific case of the respondent that either the Detaining Authority or the State Government had received any representation of any kind direct from the detenu and that therefore the question of considering the same at any point does not arise. In this context the learned Counsel for the petitioner had frankly admitted that the entire case records would show that no representation had been sent either to the Detaining Authority or to the State Government. But the representation was submitted in person by the detenu himself while he was interviewed by the Advisory Board on 12.12.1997 and perhaps this representation would have meant by the petitioner in the writ petition. It is not at all in controversy that the Advisory Board has rejected the personal hearings from the detenu on 12.12.1997 when the detenu was interviewed and the Advisory Board has approved the detention order dated 8.12.1997 in the instant case and that the Advisory Board has sent all the papers along with the representation of the detenu to the State Government.
31. In para 5 of the affidavit filed by Shri B.S. Wankhede, the Desk Officer of the Home Department has revealed that as required under Section 8(b) of the COFEPOSA Act, 1974 the State Government has referred the case of the detenu to the Advisory Board on 6.11.1997. The Advisory Board interviewed the detenu and after considering the case of the detenu found that there was sufficient cause for the detention of the detenu under the said Act. The report and the opinion of the Hon'ble Advisory Board accompanied by the representation of the detenu dated 12.12.1997 was received in the Home Department on 20.12.1997. On 21.12.1997 there was a holiday being Sunday.
32. The Advisory Board's report along with the representation dated 12.12.1997 along with the material on record was processed by the Under Secretary on 23.12.1997 and submitted to the Detaining Authority, who considered the representation dated 12.12.1997 and rejected it on 24.12.1997. The decision regarding the rejection of the representation of detenu by the Detaining Authority was communicated to the detenu vide Government letter dated H.D. dated 24.12.1997.
33. The Advisory Board's report along with the representation dated 12.12.1997 and the material on record was also processed through the Under Secretary and Deputy Secretary on 24.12.1997 and the file was submitted to the Additional Chief Secretary (Home). He considered the report of the Advisory Board along with the representation dated 12.12.1997 of the detenu and rejected the representation and confirmed the detention of the detenu on 26.12.1997. Since 25.12.1997 was happened to be a holiday, the Additional Chief Secretary, Home, considered the detention matters and after consideration rejected the representation of the detenu and confirmed the detention of the detenu, which was communicated to him as per the order dated 29.12.1997 since there was closed holidays on 27th and 28th December, 1997. In fact a definite stand has been taken by the respondent in his affidavit that no representation was directly addressed to the State Government or the Detaining Authority and nothing has been received by them from the detenu till today. The detenu submitted a representation to the Advisory Board and at the time of meeting on 12.12.1997 the same has been considered by the Detaining Authority and the State Government expeditiously. The same stand has been taken by the Detaining Authority and the State Government without any influence in their mind and rejected the same and it was duly intimated to the detenu.
34. In fact it was the contention of the learned Counsel for the petitioner that while considering the said representation of the detenu by the Detaining Authority and the State Government, it was so influenced by the rejection of the Advisory Board and that therefore the very contention of the respondent cannot at all be accepted. To accept the said contention we do not find any merits at all or any iota of material to presume even that the Detaining Authority and the State Government had so much so in their mind while considering and rejecting the representation of the detenu as alleged. It is well settled that the Courts of law are not to be carried away by mere conjectures and surmises and imaginary things but only borne in mind and proceed on the basis of the materials and the legal evidence. Therefore having considered the gamut of whole things in this context, we do not find any merit or grounds to accept the second ground also. As such it must fail.
35. No other substantial points or contention has been raised before us. In the result for all the foregoing reasonings, the writ petition fails and accordingly it is dismissed.
Rule issued already is thus discharged.