Bombay High Court
Sayed Iqbal vs State Of Maharashtra on 1 January, 1800
Equivalent citations: 1988(18)ECC65, 1988(35)ELT456(BOM)
JUDGMENT
Daud. J.
1. This petition by the brother of a detenu designate is aimed against an order of detention made on 10th July 1987 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act).
2. The detenu-designate, hereinafter referred to as "Sayed Ahmed", is a person of Indian Origin, but later acquired British Nationality. He is residing abroad since 1974 and had come to India on 8th May, 1974 on learning of the registration of three offences falling under the Customs Act against him. These three cases may be labelled as, (i) Defence Stores case, (ii) Singapore Airlines case and (iii) Parker case. On applications moved by him for bail, the Chief Metropolitan Magistrate, Bombay, directed him to furnish security. The security having been furnished Sayed Ahmed was at liberty. He was permitted to go abroad and stay away from India, so that he could look after his interest elsewhere. Later on the trial of the Defence Stores case came to be stayed upon an application moved by an alleged co-accused of Sayed Ahmed. In the Singapore Airlines case Sayed Ahmed was discharged. The material collected in the Parker case was so scanty that authorities refrained from putting up a complaint. Being a British national, Sayed Ahmed was required to obtain a Visa to return and face trial, Sayed Ahmed moved this Court for extension of time. The last such extension applied for the obtained was on 8th July 1986 and the order passed thereon read thus :--
"Heard Counsels. Rule returnable forthwith. Time to return extended by 6 months with liberty to move afresh in case High Court's stay continues. Rule absolute as above".
The High Court stay referred to by the learned Judge was that pertaining to the Defence Stores case. Two days later i. e., on 10th July, 1986, the detention order impugned in this petition was passed.
3. Petitioner challenges the detention order on various grounds. All these need to be set out and appraised. This is because a ground or two will suffice to demonstrate the invalidity of the order. However, the respondents have raised a preliminary objection and it will be that objection which we shall consider first. The plea taken by the respondents is that the detenu-designate has stayed away from India and until he surrenders in responses to the Order of detention, the said order cannot be questioned in response to the Order of detention, the said order cannot be questioned by a petition under Article 226 of the Constitution. Mr. Canteenwala for the Petitioner impugned this objection by canvassing two grounds. First, learned Counsel submits that the tie of kinship between the petitioner and the detenu- designate gives the former the locus to challenge the detention order. The detenu-designate being a full brother of the petitioner the latter has a right to his company in this country which would be possible only if no impediment is placed in the path of Sayed Ahmed to come to and stay in India. Next, it is said that having regard to the issue of a proclamation under Section 7 of the COFEPOSA Act, the petitioner's personal interests are in jeopardy because of the draconian powers vested in the authorities by the Smugglers and Foreign Exchange Manipulators (Forefeiture of property) Act, 1976 (SAFEMA). Section 2 of the SAFEMA shows that the provisions thereto can be invoked even against the person who is the relative of a person in respect of whom an order of detention has been made under the COFEPOSA Act. Mr. Canteenwala submits that having regard to the proclamation under Section 7, the authorities are likely to take recourse to the SAFEMA in which case the petitioner would be in a trap. As a present, we do not think it necessary to go to the correctness or otherwise of the first plea canvassed by Counsel. Insofar as the possibility of the authorities taking recourse to SAFEMA is concerned, that, in our opinion, suffices to give cause to the petitioner to question the order of detention. The existence and subsistence of that order endangers the pecuniary and proprietorial interests of the petitioner. That suffices to uphold the locus of the petitioner to move this petition.
4. Insofar as the validity of the detention order is concerned, only on ground suffices to void the same. In the petition, there is a specific reference to the order passed on 8th July 1986 in Criminal Application No. 920 of 1986. As per the terms of that order, the detenu-designate had six months as from the date of the order to come to India. This fact wa obviously not taken into consideration by the detaining authority and he does not claim the contrary in the affidavit-in-reply submitted by him. If Sayed Ahmed had obtained leave from this Court to extend his stay, abroad by a period of six months as from 8th July 1986, there was hardly any propriety in passing an order of detention on 10th July 1986. This apart, when Sayed Ahmed was prevented from coming to India to stand trial by the Simple device of not being given a Visa, there was hardly any justification for making an order of detention. It is well settled that the object of an order of preventive detention is to prevent the intending detenu from indulging in prejudicial activities. The object is not to deter any one from coming to the country, so as to be in a position to indulge in prejudicial activities. Here the background was such that Sayed Ahmed was not likely to return to indulge in prejudicial activities. Therefore, there was no occasion for the making of an order of detention as on the date i. e. 10th July, 1986, on which it was made. Having regard to this patent flaw in the detention order, we need not go further in the matter.
5. Rule in terms of petition prayers (a) and (b) is hereby made absolute.