Delhi High Court
A. Mohammed Illyas vs Union Of India on 25 April, 1991
Equivalent citations: 1991CRILJ2425
ORDER
1. In this writ petition, the petitioner has challenged the order of detention passed under section 3(1) of the COFEPOSA Act (hereinafter referred to as the Act) by the Joint Secretary to the Govt. of India, Ministry of Finance, New Delhi. He has also challenged the order confirming the detention of the petitioner and directing that he will be detained for one year from 18-5-90.
2. In brief, the facts which are, apparent on the record are that Customs Intelligence & Investigation Unit, Kochin noticed the petitioner traveling on a scooter No. KEV 7589 near Chadayamangalam Quilon District. He was brought to CPI Unit, Trivandrum, on the belief that he was carrying gold and smuggled goods and foreign currencies. On search made by the customs officials, Rs. 88060/- were recovered from him. Besides the Indian Currency, foreign currencies were also found in his possession. On the search of the house of the petitioner, Rs. 55,000/- and a pocket diary were seized. In the statement made by the petitioner he deposed that he was indulging in unauthorised purchase and sale of foreign currencies and the amount seized from him was part of the sale proceeds of the foreign currencies.
3. The petitioner was arrested under section 35 of the Foreign Exchange Regulation Act, 1973 on 27-11-1989 by the enforcement officers of Trivendrum and was produced before ACJM Trivendrum, who passed the order releasing him on bail on executing a bond in the sum of Rs. 25,000/- with two solvent sureties in the like amount. Since no sureties were present at that time, he was remanded to judicial custody till 11-12-89 but before the expiry of that period, the petitioner arranged for the sureties and he was released from jail. On receipt of information about this case, the Joint Secretary to the Govt. of India, after examining the record received and the statements recorded in this behalf became satisfied that the petitioner has been indulging in unauthorised transactions in foreign exchange in violation of Foreign Exchange Regulation Act, 1973. He also became satisfied that these unauthorised transactions indulged in by the petitioner have affected country's resources and passed the detention order under COFEPOSA Act on 21-3-1990 in exercise of the powers under section 3(1) of the COFEPOSA Act as amended.
4. Against this detention order, the petitioner filed a representation before the Secretary to the Govt. of India, Ministry of Finance, Department of Revenue, New Delhi, which was duly considered and rejected by the Central Govt. and the order was conveyed to the petitioner on 20-7-90. On receipt of the report from the Advisory Board, the Govt. of India after considering the report of the Advisory Board and the materials on record, confirmed the detention order dated 21-3-1990 vide order dated 6-8-90 and directed that under section 10 of the said Act, the petitioner be detained for a period of one year from the date of detention i.e. from 18-5-90.
5. In the writ petition which has been filed challenging the aforesaid detention order, a number of contentions have been raised but for the view which I am taking, it is not necessary to discuss all of them.
6. Shri Setia, learned counsel for the petitioner, submitted that there is inordinate and unexplained delay in the matter of issuing the detention order as well as the actual arrest and detention of the petitioner and on this ground alone the petitioner is entitled to be released forthwith. The date of the order of detention is 21-3-1989. There is an inordinate delay of a period of six months from the date of the alleged knowledge on the part of the authorities regarding the alleged prejudicial activities of the petitioner and the date of issuance of the detention order. According to the learned counsel, during this period of six months, the petitioner was found leading a normal life. There was not even an iota of allegation against him having been indulged in any prejudicial activities. That being so, learned counsel submitted that there is total absence of any justification in issuing the order of detention against him at this belated stage. There is absolutely no proper explanation on the part of the authorities for inordinate delay occurred in issuing the order the of detention. It has been further submitted by the learned counsel that there is delay of two months in executing the detention order. The detention order was passed on 21-3-90 and the petitioner was arrested on 18-5-90. There is no satisfactory explanation regarding the delay occurred in execution of the order against the petitioner. The petitioner was scrupulously complying with the conditions of bail and was appearing on every Friday earlier and thereafter on every first Monday of the month before the Enforcement Officer in compliance with the directions of the court passed while releasing him on bail. The petitioner, admittedly, appeared before the Enforcement Officer on 2-4-90 and again on 7-5-90. If the respondents were really interested in detaining the petitioner they ought to have acted with promptitude in detaining the petitioner. According to the learned counsel, this action on the part of the respondent shows that there was no genuineness in passing the detention order and it was only punitive and not preventive. He further pointed out that the fact that in the petition filed on 27-11-89 the Enforcement Officer instead of asking for remand of the petitioner had prayed for release of the petitioner on bail, supports the contention of the petitioner. If there was genuineness in reality in keeping the petitioner in custody, they would have prayed for remand of the petitioner and if in spite of that bail was asked for by the petitioner they could have opposed the same and if the bail was granted they could have filed an appeal. According to the learned counsel, the respondent did not oppose the bail application filed on behalf of the petitioner. The petitioner was released on bail on 28-11-89 and even on that day, the detention order was not passed. It was passed on 21-3-90 without any further material on record. Even two months were taken to get the detention order executed and no satisfactory explanation has been given in the counter-affidavit. What attempts were made by the respondents to arrest the petitioner have not been disclosed. He relied upon the decisions of the Supreme Court in T. A. Abdul Rehaman v. State of Kerala and Shakil Ahmed v. District Magistrate Meerut in support of his contention that unexplained delay throws considerable doubt on the genuineness of the subjective satisfaction of the detaining authority and it vitiates the order of detention.
7. Mr. Jagdev Singh, learned counsel for the Union of India, countered the arguments of the counsel for the petitioner and drew my attention towards the contents of the counter-affidavit duly sworn by Mahinder Parshad, Joint Secretary, Union of India, on 14-2-91. In para 9 of this affidavit it has been admitted that after availing the bail, the detenu used to attend the Enforcement Office on Friday. The detention order was passed on 21-3-90 and the same was sent to the Enforcement Directorate, Trivandrum, which was received on 28-3-90. As the detention order as well as the other material was to be translated in the regional language, after translation the same was handed over to the Home Secretary, State of Kerala. These formalities were completed and detention order was handed over to the Home Secretary through the State Police on 11-4-90. After the detenu appeared in the office on 7-5-90 and on the same date attempt was made to execute the detention order through the local police, but the same could not be done since the Enforcement Directorate were not able to contact the concerned police officer. The police authorities failed to trace out the petitioner up to 17-5-90 and, therefore, a team of enforcement officers was sent to the house of the petitioner to pick him up and to hand him over to the police authorities, but it could not be done till 18-5-90. There has been no delay in detaining the petitioner. It has also been mentioned that after booking of the case by the Central Excise authority in September, 1989, Enforcement Directorate got the intimation of seizure on 23-11-89. The case record including seized currency and documents were received on 25-10-89 from the Central Excise and thereafter the case was processed for detention and the proposal was sent to the head-quarter of enforcement directorate on 20-1-90. After receipt of the proposal in the office of detaining authority, the same was examined and after going through the necessary formalities and procedure the detention order was passed on 21-3-90. According to the learned counsel for the respondent, there has been no delay in issuance of the detention order also.
8. Reliance has been placed on the Supreme Court decision in T. A. Abdul Rehaman v. State of Kerala, and Abdu Salam v. Union of India, and Sayed Farooq Mohd. v. Union of India, in support of his contention that delay in passing of detention order and arrest pursuant to that detention order does not invalidate the detention if reasonable explanation has been given regarding such delay. According to the learned counsel, mere delay in arresting the detenu does not throw doubt on the genuineness of the subjective satisfaction of the detaining authority. The court has to see if the delay is reasonably explained or not.
9. As far as the legal proposition is concerned, it is settled law that the delay, ipso facto, in passing an order of detention is not fatal to the detention of a person, for, in certain cases, dely may be unavoidable and reasonable. What is required by law is that the delay must be satisfactorily explained by the detaining authority. When there is unsatisfactorily explained delay between the date of the order of detention and the date securing arrest of the detenu such delay will throw considerable doubt on the genuine and 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 any prejudicial manner. In the light of the above proposition of law, it is to be seen whether the explanation offered by the respondent is genuine and acceptable. From the counter-affidavit, it appears that it took about three months i.e. from 25-10-89 to 20-1-90 in processing and formulating the detention order. It shows that the detaining authority was not genuinely interested in issuing the detention order which has taken five months from the date of completion of the investigation. Though the detention order was issued on 21-3-90, it was executed by the concerned authority on 18-5-90 i.e. two months after the issue of order. In the counter-affidavit, it has not been mentioned what attempts were made from 11-4-90 to 18-5-90 to arrest the petitioner. Even the persons to whom the work of execution was entrusted have not filed any affidavit to explain what steps were taken by them to detain the petitioner and what attempts were made by them to arrest him. It is not the case that the petitioner was absconding. As a matter of fact, the petitioner, admittedly, appeared before the officers of the enforcement directorate on 2-4-90 and 7-5-90 but his non-apprehension of these two dates indicates that the respondents were not interested in apprehending the petitioner. If he was absconding there is nothing in the counter-affidavit to show that any steps were taken to get him declared absconder. It is the admitted case of the respondent as put in the counter-affidavit that after availing the bail the petitioner used to attend the office on every first Friday of the month. There is no explanation in the counter-affidavit as to what steps were taken from 11-4-90 to 18-5-90 for apprehending the detenu pursuant to the order of detention. In this case, there is delay both at the stage of passing of detention order and in arresting him. In my view, this delay has not been satisfactorily explained. The delay if not satisfactorily explained throws considerable doubt on the genuineness of the subjective satisfaction of the detaining authority. The Supreme Court in Abdu Salam @ Thiyyan v. Union of India and others, while dealing with this aspect of the matter observed that delay in passing the detention order does not invalidate the detention and further delay in arresting the detenu pursuant to the order of detention does not by itself throw doubt on the genuineness of the subjective satisfaction of the detaining authority, but the court has to see whether the delay is explained reasonably or not. Each case depends on its own facts and circumstances. As there has not been any satisfactory explanation regarding the delay at the stage of passing of the detention order and at the stage of arresting him, so I have to set aside the detention order on this ground alone.
10. In the result, the petition is accepted and rule nisi is made absolute. The petitioner be set at liberty forthwith if not required in any other case.
11. Petition allowed.