Bombay High Court
Shri Netaji Narayan Lotlikar vs State Of Goa And Another on 25 September, 1991
Equivalent citations: 1992CRILJ2363
JUDGMENT M.M. Qazi, J.
1. Detenu Bhagwant Babul Lotlikar has been detained u/S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'the COFEPOSA Act') with a view to preventing him from engaging in transporting smuggled goods vide order dated 3rd May 1990 passed by the Under Secretary (Home), Government of Goa. The grounds of detention were simultaneously prepared on 3rd May 1990. However, the detention order could not be served on the detenu immediately because he was absconding. He was arrested on 18-6-1991 and immediately he was served with the order of detention and the grounds of detention.
2. On behalf of the detenu several challenges have been raised in the petition, but Mr. Karmali, the learned Advocate appearing for the detenu, essentially pressed the challenge raised in ground Nos. (iv) and (v). According to him, though the impugned order of detention was made on 3-5-1990, it was served on the detenu as late as on 19-6-1991, after a lapse of about 13 months. According to him, the order of detention has the validity of one year in normal course and in the present case the order of detention was served on the detenu after it had out-lived its life. He contended that there has been no serious efforts on the part of the Detaining Authority for several months take any effective measure to cause the arrest of the detenu. He further contended that it is the obligation on the Detaining Authority to satisfy the Court as to what steps it had taken to effect the service of the detention order on the detenu.
3. On behalf of the respondents, an affidavit had been filed by Mr. Ganesh P. Chimulkar, Under Secretary (Home) to the Government of Goa. The challenges made in ground Nos. (iv) and (v) have been replied to in para 8 of the affidavit, which is reproduced below :
"8. With reference to grounds (iv) and (v), I say and submit that as stated herein above that although the detention order was issued on 3-5-90, it could not be served till 18-6-91 as the detenu was absconding. It is submitted that the Police informed the Home Department vide their letter dated 20-11-90 that the detention order could not be served as the detenu is not available. The Collectorate of Customs, Panaji was informed about this fact by the Home Department. The Collectorate of Customs knew that the detenu was absconding and had issued a red alert to their field offices throughout India to keep a watch on the detenu and to report to the Assistant Collector, Marmagoa if they noticed him. A report was also made to the Judicial Magistrate First Class, Margao for invoking provisions of Ss. 82, 83, 84 and 85 of the Code of Criminal Procedure, whereupon the detenu surfaced and could be arrested and detained on 18-6-91."
From the above reply it would be seen that there is not even a whisper as to what the Detaining Authority did from 3-5-1990 to 20-11-1990. It is not in dispute that the Detaining Authority was aware even at the time of passing of the detention order that the detenu was absconding. However, Mr. Bhobe has vehemently argued before us and submitted that though the details are not mentioned in the affidavit, but still he could substantiate his argument that the Detaining Authority was quite alert and was taking every possible step ever-since the detention order was issue. Mr. Bhobe has produced before this Court several documents at this stage, which we have allowed in the interest of justice. The bunch of documents which he had produced consists of correspondences beginning from 24-7-1990 to 29-5-1991. Mr. Bhobe has taken us through all these documents. He has laid great stress, and in our view rightly on a letter dated 18-11-1990, which gives record of the action that was being taken by the police to arrest the detenu. This letter, in our view, is an important document, which explains practically the steps which were taken day-to-day by the police. The relevant portion of this letter is reproduced below :
"Surprise raids :-
Surprise raids were conducted at odd hours at their places of residence on the following dates :- On 5-5-90, 6-5-90, 9-5-90, 15-5-90, 19-5-90, 23-5-90, 25-5-90, 28-5-90, 3-6-90, 12-6-90, 18-6-90, 27-6-90, 3-7-90, 7-7-90 and 23-7-90. The inmates were found on all occasions but the detenus could not be traced and the inmates could not furnish any information regarding their whereabouts."
This document does show that up to the end of July 1990 the police were doing everything which could possibly be done to cause the arrest of the detenu, and therefore, the datewise record of the same has been furnished by the Police Inspector, Margaon, to the Superintendent of Police, South-Goa, Margao. This document further shows that the police were busy in taking steps right up to 18th November 1990. It is stated in this document that frequent raids were conducted on the residence of the other wanted detenu Bhagwant Babal Lotlikar at Aquem at regular intervals but all efforts proved futile. It is further stated that the sources were contacted and explained that the detenu was required, but they could not throw any light on his movements or whereabouts. Secret enquiries were conducted by the officers and men specially allocated for collection of intelligence on the movements and whereabouts of the wanted detenu Bhagwant Babul Lotlikar. Staff in Mufti were also deployed. We notice from this document that from 24th July 1990 up to 18th November 1990 a bald statement is made by the Police Inspector, and that too not on an affidavit, and therefore, we adjourned the case to enable Mr. Bhobe to produce before us the record to substantiate the statement made in the document dated 18-11-1990, demonstrating that the police were active even after 24-7-1990 up to 18th November 1990. Though Mr. Bhobe has produced some other documents regarding proclamation proceedings, but he has fairly admitted that he could not lay hands on any record to show that the police took steps from 24-7-1990 up to 18-11-1990, However, he vehemently argued that there is no reason to disbelieve this document written by the police Inspector, particularly when this information is further referred to in another letter dated 20-11-1990. Thus, he contended that the high officials have accepted the report of the Police Inspector and, therefore, there is no reason to doubt the same. In our view, it is not possible to accept this line of argument. We would have expected the Detaining Authority to produce some proof to substantiate the claim that the police were active even after 24-7-1990 and, in our view, there should not have been any difficulty, and it is only for that reason we have adjourned the case. In our view, it would not be safe to accept the vague and general statement made by the Police Inspector that he was taking every possible steps to cause the arrest of the detenu. Thus, the fact remains that there is no explanation coming forward from the police as to what they did for 3 1/2 months.
4. Mr. Karmali has relied on several decisions of this Court as well as the Supreme Court in support of his contention that if there is a delay in causing arrest of the detenu and if that delay is not explained, that by itself is enough to quash the detention order. He has further laid great emphasis that in this case no action was taken u/S. 7 of the COFEPOSA Act and at any rate clause (b) of S. 7(1) was never resorted to, he contended. According to him, clause (b) is a penal provision, the consequences of which are grave, and had the Detaining Authority resorted to this provision, then the arrest could have been caused much earlier. There is no dispute that for the first time action was taken u/S. 7(1)(a) of the COFEPOSA Act on 5-12-1990. To-day, another bunch of documents, has been produced by Mr. Bhobe, which shows that the police resorted to S. 7(1)(a) of the COFEPOSA Act.
5. Another limb of the argument of Mr. Karmali was that in the present case the Detaining Authority knew even at the time of passing of the detention order that the detenu was absconding and, therefore, it was incumbent on its part to resort to the penal action as provided in S. 7 of the COFEPOSA Act expeditiously. In this case the only provision resorted to is S. 7(1)(a) and not S. 7(1)(b), which is a more deterrent provision. No doubt on this point there are some conflicting decisions. The ratio of all the decisions seems to be that if action u/S. 7 of the COFEPOSA Act is delayed, then there has to be explanation for such delay. As we have already observed above, the counter affidavit is too vague and general, and the documents which have been produced at the stage of argument also do not show as to what the police were doing from July 24, 1990 to November 18, 1990. Thus, in this case, the petition has to be allowed on both the counts, viz., that no action for the explanation for the delay is forthcoming and that there is delay in resorting to S. 7 of the COFEPOSA Act.
6. Mr. Karmali has referred to the decision of this Court in Criminal Writ Petition No. 189 of 1990 Vithal Hari v. the Union of India decided on 11th April 1990, by Pendse and Moharir JJ. The relevant portion of this judgment on which great stress was laid by Mr. Karmali is reproduced below :
"We accept the affidavit made by the officer that attempts were made to trace the detenu on October 1, 1988. October 14, 1988 and January 5, 1989 and the detenu was not traceable, but we fail to appreciate why action as contemplated u/S. 7 of the COFEPOSA Act was not taken immediately after passing of the order of detention because the grounds of detention set out that the detenu is absconding from July 3, 1988. It is, therefore, obvious that on the date of issuance of the order of detention, i.e. August 30, 1988, the detenu was not traceable for a duration of about 2 months. Apart from this consideration, we fail to appreciate why the detaining authority did not take any steps when the officers could not trace the detenu till January 5, 1989. The action u/S. 7 of the COFEPOSA Act was initiated only on December 30, 1989."
7. No doubt, this Court has observed in the case (cited supra) that in case of a detenu who is absconding action u/S. 7 of the COFEPOSA Act should be taken immediately. However, after going through the various decisions which Mr. Karmali and Mr. Bhobe have relied in this regard, as we have already observed above, the ratio seems to be that if there is a delay in resorting to S. 7 of the COFEPOSA Act to cause the arrest of the detenu then the delay should be satisfactorily explained. Failure to do that would be fatal. We have already pointed out above that in this case there is no explanation for the delay and, therefore, the consequences must result in the release of the detenu. Having regard to these facts, we allow the petition and quash and set aside the impugned order dated 3rd May 1990. The detenu is directed to be released forthwith, unless he is required in any other case. Rule made absolute in the above terms.
8. Petition allowed.