Bombay High Court
Mahesh V. Amesur vs The State Of Maharashtra And Ors on 27 January, 2016
Author: G.S. Patel
Bench: S.C. Dharmadhikari, G.S.Patel
CRWP3150-15-CHHAPRU.DOC
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 3150 OF 2015
MAHESH V. AMESUR,
Age 34 Years, residing at 1501 c/2 Saphire Yogi
Dham, Kalyan (West) ...Petitioner
Versus
1 THE STATE OF MAHARASHTRA,
through the Additional Chief Secretary
to the Government of Maharashtra,
Home Department (Special),
Mantralaya, Mumbai - 400 032
2 V.S. SINGH,
The Principal Secretary to the
Government of Maharashtra,
Mantralaya, 2nd Floor, Madam Cama
Road, Mumbai - 400 032
3 THE COMMISSIONER OF
CUSTOMS, Air Intelligence Unit,
Chhatrapati Shivaji International Airport,
Sahar, Andheri (East), Mumbai.
4 THE SUPERINTENDENT OF
PRISON, Nasik Road Central Prison,
Nasik Road, Maharashtra.
5 THE UNION OF INDIA,
through Secretary Ministry of Finance,
Janpath Bhavan, 6th Floor, Janpath
Marg, New Delhi - 110 001 ...Respondents
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A PPEARANCES
Mrs. A.M.Z. Ansari, with Mrs. Nasreen
FOR THE PETITIONER
Ayubi, for the Petitioner.
FOR THE RESPONDENT Mr. J.P. Yagnik, APP, for Respondent Nos.
DEFENDANT 1 to 4-State.
CORAM : S.C. Dharmadhikari
& G.S.Patel, JJ.
DATED : 27th January 2016
JUDGMENT:(Per G.S. Patel, J.)
1. This Writ Petition No. 3150 of 2015 under Article 226 of the Constitution of India seeks a writ of Habeas Corpus in respect of one Jeetu Shankarlal Chhapru ("Chhapru"), the subject of an order of preventive detention dated 9th July 2015 issued by the 2nd Respondent, the Detaining Authority, under Section 3(1)(i) the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ("COFEPOSA"). The Petitioner is Chhapru's cousin.
2. The case against Chhapru is this. On 4th October 2014, acting on intelligence received, officers of the Air Intelligence Unit ("AIU") intercepted Chhapru, holding an Indian passport, on his arrival from Bangkok on Bangkok Airways Flight PG 733, after he cleared himself through the green channel at Customs in the arrival hall of Terminal T2 at the Chhatrapati Shivaji International ("CSI") Airport, Mumbai. On being questioned, Chhapru denied having any contraband goods or gold in his baggage or on his person.
2 of 20 ::: Uploaded on - 02/02/2016 ::: Downloaded on - 02/02/2016 23:58:52 ::: CRWP3150-15-CHHAPRU.DOC Dissatisfied with this reply, the authorities subjected Chhapru to a more thorough search, including being scanned with a handheld metal detector. This positively indicated that he had some metal concealed on his person. On further interrogation, Chhapru admitted that he had concealed some gold in his rectum. He was taken to a toilet facility at the airport. There, Chhapru excreted two bundles wrapped in black adhesive tape, containing two bars of gold. The bars were found to weigh a total of 288 grams, valued at Rs.7,10,519/-. Since Chhapru had failed to declare the gold and did not have any documents evidencing their purchase, the AIU officers seized the gold under the reasonable belief that the Chhapru had attempted to smuggle the gold into India in contravention of Section 135(1)(a) and Section 135(1)(b) read with Section 135(1)(i) of the Customs Act, 1962. However, in light of the Board Circular No.38/2013 CUS dated 9th September 2013 he was not arrested since the value of the gold was below Rs. 20 lakhs. Instead, he was summoned for further investigation on 7th October 2014 by the Investigation Cell of AIU. Chhapru was found to have attempted to smuggle gold in two other incidents. This is the ostensible justification for the order of preventive detention.
3. Mrs. Ansari, learned counsel appearing on behalf of the Petitioner, challenges the impugned order on several grounds set out in the petition. The principal ground is the question of delay. Her submission, briefly, is that there is an inordinate and unexplained delay of about nine months between the time of the incident in question on 4th October 2014 and the detention order of 9th July 2015. Between the time that the detenu was apprehended by the AIU officers at CSI Airport, Mumbai on 4th October 2014 and the 3 of 20 ::: Uploaded on - 02/02/2016 ::: Downloaded on - 02/02/2016 23:58:52 ::: CRWP3150-15-CHHAPRU.DOC service of the detention order on 9th July 2015, neither had the detenu been noticed adversely by the AIU officers, nor by any other authority. This is not, she says, a mere or inconsequential delay. It is sufficient to sever the live link that must be shown and to break the chain of credibility. Having heard Mrs. Ansari and Mr. Yagnik, learned APP on this point, we are of the view that the Petition can be disposed of on this point alone. We have, therefore, not considered the other grounds of challenge. We feel it unnecessary to do so.
4. In paragraph 8 of his Affidavit in Reply to the Petitions, the 2nd Respondent, the Detaining Authority, answers the grounds of delay thus:
"After the scrutiny of the proposal, I as the Detaining Authority issued the Detention Order on 09.07.2015, which is after a period of only 3 months and 9 days from the receipt of the proposal. The time consumed by me was for scrutinizing, evaluating and analyzing in detail the proposal as well as the documents, which were received by me being the Detaining Authority. The time taken for coming to the decision of subjective satisfaction by me has been explained herein below.
... When the current proposal was received, it was scrutinized and the Scrutiny Note was submitted by concerned Assistant on 29.04.2015. The Section Officer and the Deputy Secretary endorsed it on 30.04.2015.
There were holidays on 01.05.2015,
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03.05.2015 and 04.05.2015 on account of Maharashtra Din, Sunday and Buddha Purnima.
On 06.05.2015, I as the Detaining Authority directed to take clarification on some points raised in the Scrutiny Note. The file was received on 07.05.2015. The assistant submitted the draft letter to call for information on 08.05.2015. There were holidays on 09.05.2015 and 10.05.2015 on account of 2nd Saturday and Sunday. The Deputy Secretary was on leave from 11.05.2015 to 13.05.2105. The additional information on points, which were raised in the Scrutiny Note were called for by letter dated 13.05.2015. The Sponsoring Authority forwarded the additional information by letter dated 18.05.2015. After scrutinizing the information forwarded by the Sponsoring Authority, the scrutinized information was submitted by the concerned Assistant on 20.05.2015. The Section Officer and the Deputy Secretary endorsed it on 20.05.2015. On 21.05.2015, I directed to discuss the case with the help of Government of India Guidelines. After discussion, on 02.06.2015, I directed to get the details of the past cases mentioned in the information submitted by the Sponsoring Authority. The letter was sent to the Sponsoring Authority on 03.06.2016. The Sponsoring Authority by letter dated 16.06.2015 informed that two panchanamas (Mahazar) were drawn and two statements recorded of the Shri Jeetu Shankarlal Chhapru, pertaining to the case booked by
5 of 20 ::: Uploaded on - 02/02/2016 ::: Downloaded on - 02/02/2016 23:58:52 ::: CRWP3150-15-CHHAPRU.DOC DRI, Bangalore Zonal Unit. The copies of the same were enclosed as additional relied upon documents bearing sr.no.37 to 52. This information was submitted by the Section Officer on 22.06.2015 which was endorsed by Deputy Secretary on 22.06.2015. There were holidays on 27.06.2015 and 28.06.2015 on account of Fourth Saturday and Sunday.
After considering the proposal as well as the relied upon documents forwarded by the Sponsoring Authority and after being subjectively satisfied that there are sufficient grounds to issue the Detention Order, I as the Detaining Authority on 29.06.2015 directed to take the dictation. The Detention Order was finally issued on 09.07.2015.
The detention order was thus issued after a span of 3 months and 9 days from the date of receipt of proposal. In fact, the time which has been spent by me as the Detaining Authority shows the sincere efforts on my part to satisfy myself as to the need of detaining the detenu and after subjective satisfaction of the Detaining Authority, the Detention Order was issued. Hence the same cannot be casted upon me as the Detaining Authority as a fault on my part."
5. We find this explanation far from satisfactory. To begin with, there is an initial delay of about six months from 4th October 2014, when the detenu was apprehended and subsequently released, to 1st April 2015, when the Detaining Authority received the Sponsoring Authority's proposal. There is not even an attempt to explain this 6 of 20 ::: Uploaded on - 02/02/2016 ::: Downloaded on - 02/02/2016 23:58:52 ::: CRWP3150-15-CHHAPRU.DOC delay. What also emerges is that there is no material at all to show that in the six-month period from 4th October 2014 to 1st April 2015, no AIU officer, nor any other authority, took any adverse notice of the detenu. There was no apprehension noted during that period of the detenu engaging or being imminently likely to engage in any act covered by the COFEPOSA Act, 1974. Seven days are explained as having been lost due to various holidays, and an additional three days of delay have been explained on account of the Deputy Secretary's absence while on leave. While the assistant concerned, the Under Secretary and the Deputy Secretary all seemed to have discharged their respective functions promptly, this cannot be said of the Detaining Authority or the Sponsoring Authority.
6. We are not impressed with the argument canvassed on behalf of the Respondents, that in this case it was the occurrence of other cases that occurred in 23rd April 2014 and again in end-February 2015 in Bangalore in which Chhapru was found smuggling gold in the same that provided the impetus or rationale for the present detention order. In our view, Ms. Ansari is correct in saying that the reference to other cases involving Chhapru is not the cause for the detention order, but is merely a historical narrative. Those other cases are not part of the live link or the credible chain. Read as a whole, the detention order traces itself only to the incident of 4th October 2014 in Bangalore. The previous incident of 23rd April 2014 is surely irrelevant, and the subsequent incident of February 2015 could not have been the immediate or proximate cause for the present order. Indeed, this seems to us to indicate a fatal non- application of mind. If there were in fact three incidents, all of the 7 of 20 ::: Uploaded on - 02/02/2016 ::: Downloaded on - 02/02/2016 23:58:52 ::: CRWP3150-15-CHHAPRU.DOC same nature, all involving the very same detenu, then the 'springboard' for the current detention order should have been the last or latest of these, not one that occurred in between or was prior in point of time. Instead, we find that the detention order pins itself to the second of the three incidents. The fact, therefore, that there was thereafter another incident surely cannot be sufficient reason for the delay.
7. We must, in this context, make reference to a decision of a Division Bench of this Court in Anjana Rikabchand Mehta v State of Maharashtra and Ors.1 That decision also related to two COFEPOSA orders against detenu said to have smuggled gold. There, too, the question of delay was raised. The delay was of an entire year, between August 2012 and August 2013. The opening paragraph of the decision gives us the necessary particulars:
1. By these Petitions under Article 226 of the Constitution of India, the challenge is to the separate orders dated 22nd August 2013 passed in exercise of powers under Sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short "COFEPOSA"). Both the orders are the orders of preventive detention. The order, subject matter of challenge in Writ Petition No. 3436 of 2013, is in respect of Shri Jayant Rikhabchand Mehta (for short "Jayant"). The Writ Petition has been filed by the mother 1 2014 ALL MR (Cri) 1586 : 2014 (2) Bom CR (Cri) 397; AS Oka & SC Gupte, JJ, per AS Oka J.
8 of 20 ::: Uploaded on - 02/02/2016 ::: Downloaded on - 02/02/2016 23:58:52 ::: CRWP3150-15-CHHAPRU.DOC of the detenu. The order dated 22nd August 2013, subject matter of challenge in Writ Petition No. 3499 of 2013, is in relation to one Shri Sandeep Jayantilal Jain (for short "Sandeep"). The said Writ Petition has been filed, on behalf of Sandeep, by his wife. Both the impugned orders of detention have been passed with a view to prevent the detenu from abetting the smuggling of goods in future. The grounds of detention have been served upon the detenu which are based on the same set of facts. It is alleged in the grounds of detention that a specific intelligence was received that one Sagar Chheda, arriving from Dubai by flight at Chhatrapati Shivaji International Airport at Mumbai, would be carrying gold in his black coloured backpack bag and would exchange his bag containing the contraband in the toilet situated in corridor on the mezzanine floor of the said Airport with one Shri Uday Singh Meena, Sub-Inspector of CISF. It is alleged that the said Uday Singh Meena was apprehended along with the black coloured backpack bag which contained 5.804 kgs. of gold jewellery and gold bars having estimated value of Rs. 1.60 crores. The said goods were seized under the provisions of the Customs Act, 1962 (for short "the said Act of 1962"). The said Sagar Chheda was also apprehended at the Airport on the same day i.e. 10th August 2012 and he was found carrying an identical black coloured DELL backpack bag. It is alleged that the 9 of 20 ::: Uploaded on - 02/02/2016 ::: Downloaded on - 02/02/2016 23:58:52 ::: CRWP3150-15-CHHAPRU.DOC detenu Jayant arrived by the same flight who had purchased the seized contraband in Dubai and who had handed over the same to Sagar Chheda for brining the same to Mumbai. The detenu Jayant was also apprehended on the same date. It is alleged that one more passenger Atul Mangilal Bafna arrived from Dubai in the morning of 11th August 2012. He was carrying a black coloured (DELL backpack bag) from which recovery of 4.714 kgs of gold jewellery was made which was seized under the provisions of the said Act of 1962. It is alleged that the residential premises of Sandeep was searched and even his office premises was searched, but nothing incriminating was found. Reliance has been placed on the statement of Shri Uday Singh Meena recorded under Section 108 of the said Act of 1962.
Reliance is also placed on the various statements of both the Jayant and Sandeep recorded under Section 108 of the said Act of 1962. Reliance was also placed on the statements of Sagar Chheda recorded under Section 108 of the said Act of 1962.
Further, reliance was placed on the statements of one Pravin Popatlal Jain, Atul Bafna and Mandip Jain recorded under Section 108 of the said Act of 1962. Apart from these statements, the Detaining Authority referred to and relied upon the statements of Chirag Ramesh Vora, Rajesh Bhogilal Vora and Bhavesh Walchand Parmar which were also recorded under Section 108 of the said Act of 1962. The allegation 10 of 20 ::: Uploaded on - 02/02/2016 ::: Downloaded on - 02/02/2016 23:58:52 ::: CRWP3150-15-CHHAPRU.DOC made against Sandeep Jain is that he was a kingpin of the syndicate indulging in smuggling of gold bars and gold jewellery from Dubai who had entered into a conspiracy with said Jayant, Sagar Chheda, Mandip Jain, Pravin Jain, Murarilal Meena and Uday Singh for smuggling the gold jewellery and gold bars from Dubai. It is alleged that Sandeep was the financier of the smuggling activities. It is alleged that from April 2011 till July 2011 four to five consignments were brought by Sandeep. It is alleged that Jayant was apprehended at the Airport in July 2011 by the DRI, but nothing incriminating was found with him as he had already exchanged the bag with Murarilal Meena. It is alleged that during the period of six months, since February 2012, Sandeep smuggled 120 to 140 kgs of gold bars and gold jewellery. The allegation against Jayant is that he was a leading member of syndicate headed by Sandeep indulging in smuggling of gold bars and gold jewellery. It is alleged that he engaged in the smuggling activities since April 2011. It is alleged that initially he used to accompany Sandeep to Dubai for purchase of gold bars and while returning back, he used to deliver the bag containing gold bars and gold jewellery at various places. It is alleged that after July 2011 when he was once apprehended, though he did not carry contraband, he used to accompany the carriers to Dubai for purchasing and collecting goods. It is alleged that he was 11 of 20 ::: Uploaded on - 02/02/2016 ::: Downloaded on - 02/02/2016 23:58:52 ::: CRWP3150-15-CHHAPRU.DOC earning a sum of Rs. 25,000/- to Rs.
30,000/- per trip from the said Sandeep.
8. Before the Division Bench, the same argument of a delay vitiating the impugned orders was raised. The Division Bench noted the argument and the pleadings thus:
17. Now as regards the ground of delay in passing both the orders of detention is concerned, there is an explanation offered by the Detaining Authority. It is stated that the seizure of the goods was effected on 10th/11th August 2012. We find from the grounds of detention that from 10th August 2012 onwards till 1st November 2012, statements of the accused, co-accused and others were recorded under Section 108 of the said Act of 1962. On 19th November 2012, a proposal for detention was kept before the Screening Committee. Perusal of the affidavits of the Detaining Authority as well as Sponsoring Authority shows that the proposal was received by the Sponsoring Authority on 23rd November 2012. On 3rd December 2012, the proposal along with documents running into 292 pages was forwarded to the Detaining Authority. The Detaining Authority directed to call for additional information by order dated 15th December 2012. Additional information was called for by a letter dated 19th December 2012. The Sponsoring Authority forwarded information and further generated documents running into page nos. 293 to 330 along with a letter dated 24th December 2012. The 12 of 20 ::: Uploaded on - 02/02/2016 ::: Downloaded on - 02/02/2016 23:58:52 ::: CRWP3150-15-CHHAPRU.DOC said documents were submitted by the concerned Assistant before the Detaining Authority on 1st January 2013. The Detaining Authority directed to include further generated documents in relied upon documents. Further generated documents running into page Nos. 331 to 784 were again forwarded by the Sponsoring Authority on 12th February 2013 which were placed before the Detaining Authority on 15th February 2013. We must note that in the meanwhile, on 24th December 2012, 2nd January 2013 and on 11th January 2012 statements under section 108 of the said Act of 1962 of some other persons were recorded. On 18th February 2013, the Detaining Authority passed an order seeking clarification. A letter in this behalf was issued on 27th February 2013. The required information along with further generated documents from pages 785 to 795 were forwarded by the Sponsoring Authority on 4th March 2013 which were received by the Detaining Authority on 6th march 2013.
Thereafter, the Detaining Authority after perusing the further generated documents directed that the newly forwarded documents should be included in the relied upon documents. An order was passed by the Detaining Authority on 14th June 2013 for including further generated documents running into page Nos. 796 to 807. All further generated documents along with original documents were stamped and were submitted for consideration of the 13 of 20 ::: Uploaded on - 02/02/2016 ::: Downloaded on - 02/02/2016 23:58:52 ::: CRWP3150-15-CHHAPRU.DOC Detaining Authority. It is stated that the time was consumed by the Detaining Authority for better screening of the proposal and thereafter, the orders of detention were issued on 22nd August 2013. In support of the contention based on delay, the Petitioners have relied upon the decisions of the Apex Court in the cases of Issac Babu (supra) and Adishwar Jain (supra). They have also relied upon the decision of the Apex Court in the case of Saeed Zakir Hussain Malik (supra). On the aspect of delay, it will be necessary to make a reference to Paragraphs 27 and 28 of the decision of the Apex Court in the case of Saeed Zakir Hussain Malik (supra), which read thus:
27. As regards the second contention, as rightly pointed out by Learned Counsel for the Appellant, the delay in passing the detention order, namely, after 15 months vitiates the detention itself. 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.
Though there is no hard and fast rule and no exhaustive guidelines can be laid down in that behalf, however, when there is undue and long delay 14 of 20 ::: Uploaded on - 02/02/2016 ::: Downloaded on - 02/02/2016 23:58:52 ::: CRWP3150-15-CHHAPRU.DOC between the prejudicial activities and the passing of detention order, it is incumbent on the part of the court to scrutinize whether the Detaining Authority has satisfactorily examined such a delay and afforded a reasonable and acceptable explanation as to why such a delay has occasioned.
28. It is also the duty of the court to investigate whether casual connection has been broken in the circumstance of each case. We are satisfied that in the absence of proper explanation for a period of 15 months in issuing the order of detention, the same has to be set aside. Since, we are in agreement with the contentions relating to delay in passing the Detention Order and serving the same on detenu, there is no need to go into the factual details.
(emphasis added)
9. While finally upholding the order in challenge, and negativing the challenge on the ground of delay, the Division Bench said:
18. Thus, the law is that the delay by itself is not fatal. When there is undue and long delay between the prejudicial activities and passing of order of detention, it is incumbent on the part of the Court to scrutinize whether the Detaining Authority has satisfactorily 15 of 20 ::: Uploaded on - 02/02/2016 ::: Downloaded on - 02/02/2016 23:58:52 ::: CRWP3150-15-CHHAPRU.DOC examined such a delay and has afforded reasonable and acceptable explanation as to why such delay has occasioned. We find from the list of relied upon documents supplied to the detenu along with grounds of detention that the last relied upon statement under Section 108 of the Customs Act, 1962 was recorded on 11th January 2013. From time to time, additional generated documents were placed before the Detaining Authority. The total generated documents were running into 807 pages.
Considering theig nature of prejudicial activities alleged and the propensity of the detenu in both the cases in hand, it is not possible to conclude that the live-link was snapped due to time gap between the date of the alleged prejudicial activities and the orders of detention. In Criminal Writ Petition No. 3499 of 2013, it is alleged that the detenu Sandeep Jayantilal Jain is the kingpin of the syndicate indulging in smuggling of gold bars and gold jewellery from Dubai. It is alleged that during the period of six months since February 2012, the detenu Sandeep Jain had smuggled about 120 to 140 kgs of gold bars and gold jewellery. Even before 11th July 2012 on three to four occasions, he smuggled gold. The subjective satisfaction has been recorded that owing to his past conduct, rise in gold price and profits generated in the smuggling of gold, there is every propensity that the detenu will continue indulging in the activity of 16 of 20 ::: Uploaded on - 02/02/2016 ::: Downloaded on - 02/02/2016 23:58:52 ::: CRWP3150-15-CHHAPRU.DOC smuggling of gold which he has been carrying on in an organized manner. As regards the detenu Jayant Rikhabchand Mehta in Criminal Writ Petition No. 3436 of 2013 is concerned, the allegation against him is that he has been a leading member of syndicate indulging in smuggling of gold bars and gold jewellery from Dubai of which the kingpin is Sandeep Jain, who is a detenu in other Petition. It is alleged that even after he was apprehended in July 2011 in Mumbai, he continued to accompany the carrier to Dubai for purchasing the gold bars and gold jewellery. He used to earn Rs. 25,000/- to Rs. 30,000/- per trip from Dubai from the detenu Sandeep Jain.
Therefore, it is not possible to accept that the live link was snapped due to delay. Moreover, in the reply, the Detaining Authority has explained the delay. Therefore, we are unable to accept the submission that the impugned order is vitiated on the ground of delay in passing the order of detention.
10. In that case, therefore, the Detaining Authority correctly correlated its order to the last of several incidents in point of time. In addition, since this involved a smuggling ring or cartel, there was a complex of documents and illegal activities, all of which had to be correctly appreciated. There were, in fact, over 800 pages of documents. The past events had to be, and were, correctly marshalled. This is in very sharp contrast to the present case, where the incident in question at CSI Airport Mumbai was of 4th October 17 of 20 ::: Uploaded on - 02/02/2016 ::: Downloaded on - 02/02/2016 23:58:52 ::: CRWP3150-15-CHHAPRU.DOC 2014, but the proposal itself did not reach the Detaining Authority for another six months till April 2015. It then took three months and nine days for the order of detention. In the interregnum, there was another incident involving the same detenu in the same activity. But this is not the basis of the detention order at all, unlike the facts in Anjana Rikabchand Mehta.
11. We accept, as we must, that a mere delay in issuing the detention order is not necessarily fatal. If the delay is not unreasonable or unconscionable, and has been satisfactorily explained, the detention order will be upheld. 2 But where there is an inordinate delay and the explanation is unsatisfactory, the detention order cannot be sustained.3
12. In Manisha Sukhdev Gorde v State of Maharashtra & Ors.,4 we held that imminence is essential to the issuance and service of a detention order. Imminence does not mean immediacy. It speaks to the perception or the subjective satisfaction of the Detaining Authority that unless the person in question is detained in the near future, there is a strong likelihood of his involvement in a criminal activity under the governing law. In plain language, imminence is the quality or condition of something about to occur. It therefore postulates a temporal proximity between the Sponsoring Authority's proposal, the formulation of grounds by the Detaining Authority based on his or her subjective satisfaction, and the service 2 Hemlata Kantilal Shah v State of Maharashtra, AIR 1982 SC 8 3 Saeed Zakir Hussain Malik v State of Maharashtra, (2012) 8 SCC 233; A. Mohammed Farook v Government of India, (2000) 2 SCC 360.
4Criminal Writ Petition No. 1288 of 2013, decided on 28th June 2013.
18 of 20 ::: Uploaded on - 02/02/2016 ::: Downloaded on - 02/02/2016 23:58:52 ::: CRWP3150-15-CHHAPRU.DOC of that detention order. It is this imminence that we find lacking in this case.
13. The scope of judicial review in matters of preventive detention is limited. We cannot, in exercise of our jurisdiction under Article 226 of the Constitution of India, sit in appeal over the detention orders. We must only see if the detaining authority has complied with Article 22 (5); if it has, we cannot question the grounds of detention.5 Preventive detention laws like COFEPOSA have been held to serve a wide social objective. 6 Under our Constitutional jurisprudence, Articles 21 and 22 together constitute an integrated code in matters relating to personal liberty and preventive detention. It follows, therefore, that any action that curbs that fundamental right must conform, and conform exactly, to the contours of Article 22(5).
14. We see the dilemma of the authorities. They claim to have before them material to show that the detenu is an incorrigible recidivist. We do not judge the adequacy of this material or the correctness of the Detaining Authority's subjective satisfaction. We understand, too, the concerns of the administration in the maintenance of law and order, especially when confronted with repeat offenders. But that concern, in our view, must find expression 5 Hemlata Kantilal Shah v State of Maharashtra, (1981) 4 SCC 647; Government of India v Alka Subhash Gadia, (1992) Supp (1) SCC 496; Makarand Ashok Ghagre v State of Maharashtra, 2014 (2) BomCR (Cri) 713;
6Attorney General for India v Amratlal Prajivndas & Ors., AIR 1994 SC 2179 : (1994) 5 SCC 54; referred to in Dropti Devi & Anr. V. Union of India & Ors, (2012) 7 SCC 499.
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We are, as we have said, not moved by mere delay. We concern ourselves with issues of a delay that is inordinate and unsatisfactorily explained, one such as might break the essential requirement of a live link of causality, and sever a chain of credibility. We hesitate to lay down any guidelines. Each case must, of necessity, turn on its facts. This is why we have troubled ourselves to make a pointed reference to Anjana Rikabchand Mehta, a case where a year-long delay was held not to be fatal. We have done so to emphasize to the authorities concerned that they themselves have a record of successfully defending their preventive detention orders, and are in a position to do so yet again. We hasten to clarify that our observations are limited to the facts of this case. It is not our intention or desire to doubt the authorities' capabilities.
15. The present Petition succeeds on this limited aspect. Rule is made absolute in terms of prayer clause (a). The detenu shall be released, if his detention is not required in any other case. In the view that we have taken on the point of delay, we have not allowed Mrs. Ansari to urge other grounds on which the detention order has been challenged. No order as to costs.
(G. S. Patel, J.) (S. C. Dharmadhikari, J.) 20 of 20 ::: Uploaded on - 02/02/2016 ::: Downloaded on - 02/02/2016 23:58:52 :::