Bombay High Court
Smt. Naseem Imran Mohammed Siddik vs State Of Maharashtra & Ors. on 8 December, 2000
Equivalent citations: 2001BOMCR(CRI)~, (2001)2BOMLR822, 2001CRILJ1619
Author: A. M. Khanwilkar
Bench: A.M. Khanwilkar
JUDGMENT A. M. Khanwilkar, J.
1. By this petition, the Petitioner-wife of one Imran Mohammed Siddik @ Samad Abdul Kassam Chapra (hereinafter referred to as the detenu), has challenged the order passed by Shri G. S. Sandhu, Secretary to the Government of Maharashtra. Home Department (Preventive Detention) Detaining Authority dated 16.9.1997 passed in exercise of powers under Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as COFEPOSA Act) whereby the abovenamed detenu was ordered to be placed under detention.
2. Although three gounds were pressed at the time of arguments, we would rest our judgement only on one ground, which, in our view, is good enough to quash and set aside the impugned detention order. The, impugned detention order has been assailed before us mainly on the following three grounds viz.. (i) that there is enormous and unexplained delay in execution of the detention order which has inevitably affected the genuineness of the detention order; (ii) that the detention order suffers from the vice of non-application of mind inasmuch as the residential address of the detenu mentioned in the impugned order is incorrect and contrary to the address furnished by the detenu in his statement recorded under Section 108 of the Customs Act. In this context it is submitted that in the detenu's statement dated 1.3.1997 he had clarified that the address mentioned in his passport as "Shrangila Apartment, 10th floor, Flat No. 102, Sassoon Dock Colaba 400005" was not his real address, but his real address was "50/52. Kambekar Street, 2nd floor, Hussaini Trust Building, Mumbai 400003". It was thus submitted that notwithstanding this unambiguous statement of the detenu, the Detaining Authority has recorded the incorrect address in the impugned order of detention which itself indicates that the Detaining Authority did not carefully examine the records particularly the said statement pertaining to the detenu's correct address; (iii) it was lastly contended that there is delay in passing the detention order inasmuch as the incidents on the basis of which the Detaining Authority thought it appropriate to detain the detenu related back to the period around February and March. 1997 whereas the impugned order of detention was passed only on 16.9.1997. In other words, it was contended that there was unexplained delay of about 6 1/2 months from the alleged seizure and in fact after period for more than 6 months from the date when detenu was released on bail on 11.3.1997 and after a period of 4 months from the issuance of the show cause notice dated 20.5.1997.
3. As mentioned above we think that the present petition should succeed on the first ground pressed before us and therefore we do not think it necessary to burden our judgment with the other two contentions raised before us.
4. Insofar as the contention of delay in execution is concerned, the Petitioner has articulated the same in ground No. V of the writ petition, which reads thus :-
"(v) The Petitioner says and submits that the impugned order of detention was not only belatedly issued but the same which was issued on 16.9.1997 was belatedly served on the detenu on 16.8.2000 i.e. after a period of almost 3 years. The Petitioner says and submits that assuming without admitting that the detenu was not available for effecting the service of the impugned order of detention against him, ought to have promptly made an application for cancellation of his bail and forfeiture of amount deposited by him. The Petitioner says and submits that if no such application was made by the Sponsoring Authority, then this action of the Sponsoring Authority by itself is ipso facto fatal to the impugned order of detention. The Petitioner says and submits that it is also enjoined upon the Detaining Authority to satisfy to this Hon'ble Court to whether any effective steps including an action under Section 7(1)(a) and 7(1)(b) of COFEPOSA Act were taken for execution of impugned order of detention on him and if such actions was not taken why they were not so taken. The Petitioner says and subnets that if such action was taken, when such action was taken.
Whether such action was so taken on the correct address of the detenu. The Petitioner says and submits that on the failure of the Detaining Authority in satisfying this Hon'ble Court on the aforesaid counts, the belated service of the impugned order of detention on the detenu be held to have rendered the satisfaction of the Detaining Authority not genuine and that impugned order of detention be accordingly held as mala fide, null and void."
In response to the said contention the Respondents first filed affidavit of Shri V. M. Lal. Principal Secretary to the Government of Maharashtra (Preventive Detention) Home Department (Special) and Detaining Authority, dated 29.11.2000, Para 9 of the said affidavit, which deals with the aforesaid ground, reads thus :
"Para 9. With reference to paragraph 4(v) and (vi) of the Writ Petition, it is denied that the impugned order of detention dated 16.9.1997 was belatedly served on the detenu. I say that the detenu was absconding and was not available for execution of the said order of detention. The order of detention was forwarded to the Assistant Commissioner of Police P. C.B., C.I.D., Mumbai for execution on 16.9.1997. While forwarding the proposal of detention of the detenu the Sponsoring Authority had supplied two addresses : (i) Sangrila Apartment, 10th floor, Flat No. 102. Sassoon Dock, Mumbai-5 and (2) Room No, 2 Hussaini Trust Building, 50-52 Kambekar Street, Mumbai-3. The first address is mentioned in the passport of the detenu and the second address was furnished by the detenu. The Executing Authority had visited the first address of the detenu on 17.9.1997, but it was found that there is no Plat No. 102 in the said apartment. Hence the Executing Authority visited the second address of the detenu which is the residence of detenu's father. The detenu was not found there. The mother of the detenu informed that the detenu had left the house three months back and his whereabouts are not known. It is submitted that the Executing Authority had visited the detenu's residence on number of occasions but the detenu was not found. I submit that though in the detention order the address given was not the correct address of the detenu however the Executing Authority were furnished with both the addresses i.e. one on the passport and the other which was given by the detenu in his statement. The Executing Authority therefore had visited on both the addresses in order to trace out the detenu and continuous efforts were made by the Executing Authority to trace out the whereabouts of the detenu. The said efforts are reflected from the affidavit of the Executing Authority. It is therefore denied that the then Detaining Authority has not at all considered the documents which were placed before the Detaining Authority. The Detaining Authority had read all the documents which were placed before him before arriving at his subjective satisfaction. I deny that the impugned order of detention which is based on the subjective satisfaction of the then Detaining Authority is sham and unreal. As the detenu was not traceable, proposal to declare the detenu abscoding was initiated by the Executing Authority and by the Sponsoring Authority on 29.11.1997 and 8.12.1997 respectively. The proposal was considered and action under Section 7(1)(b) of COFEPOSA Act, 1974 was taken against the detenu and order dated 26.12.1997 was issued in this respect. Since the detenu was not traceable hence action under Section 7(1)(a) was taken against him and order dated 2.3.1998 was issued in that respect. It is denied that the then Detaining Authority had not read the documents which were placed before him and if read had misread the same. It is denied that there is non-application of mind on the part of Detaining Authority and a casual and cavalier exercise of powers by the Aetaming Authority. It is denied that the impugned order of detention is mala fide, null and void. With respect to further comments pertaining to the details about tracing out the detenu, I crave leave to refer to and rely upon the affidavit of the Executing Authority and Sponsoring Authority as and when necessarily.
It is submitted that the cancellation of bail had its own parameters and is very lengthy and time consuming procedure. It is stated that when the detenu was granted bail no condition were imposed on him. Keeping all these facts in mind, the then Detaining Authority decided to issue the order of detention, looking to the propensity and potentiality of the detenu to indulge in similar prejudicial activities in future. It is denied that the order of detention is mala fide, null and void."
5. Besides the affidavit of the Detaining Authority, the Respondents filed affidavit of one Shri S. H. Bhogle, Desk Officer, Home Department (Special) Government of Maharashtra, dated 29.11.2000. However, this affidavit does not throw any light on the said ground as this Authority was not concerned with the issue of delay in execution.
6. Another affidavit of Shri Sanjay v. Parelkar, Deputy Commissioner of Customs (P) dated 27.11.2000 has been filed before us. It is common ground that para 5 of the said affidavit deals with explanation with regard to the delay in execution. Para 5 of the said affidavit is reproduced thus :-
"Para 5. With reference to paragraph 4(v) of the writ petition, it is denied that the order of detention was belatedly issued. I say that it is on 16.8.2000 the detenu was detained till then he was absconding. The detenu was not traceable till 16.8.2000 and was ,not attending the C.M.M. Court. In spite of summons being issued to him the detenu was absconding. Therefore proceedings under Section 7(1)(a) and (b) of COFEPOSA Act were initiated since the detenu was absconding. It is therefore denied that the detention order has been belatedly served on the detenu, the conduct of the detenu speaks for itself. It is submitted that the grounds or parameters for cancellation of bail are rather registered. Besides they are very lengthy and time consuming procedure. It is stated that when the detenu was granted bail coditlons were not imposed on him. With respect to the steps taken for tracing out the detenu I crave leave to refer to and rely upon the affidavits of other authorities as and when required. It is denied that the impugned order of detention is mala fide, null and void."
In another affidavit of Shri S. S. Pawar, Senior Inspector of Police dated 27.11.2000 an attempt has been made to explain the delay in execution. Relevant portion of the said affidavit can be found in para 4 which reproduced thus :
"Para 4. I say and submit that the Detention Order dated 16.9.1997 was received by us. Thereafter, since the detenu was not traceable, efforts were made by us to trace him out in order to serve the said order of detention. The efforts made by us are as follows :
On 17.9.1997 and on 18.9.1997, P.S.I. Mutkule and staff had visited at Sangrilla Apartment, 10th floor, Flat No. 102, Sassoon Dock, Mumbai - 5 and had enquired with the resident of Flat No. 101, Smt. Zinath Abdul Zumani. On enquiry it was learnt that the said building do not have Flat No. 102. Thereafter on the very day, we visited on his other address i.e. Room No. 9, Second floor, Husaini Trust Bldg. 50/51, Kambikar Street, Mumbai, wherein detenu's father Mohammed Siddik was not present, however, the detenu's mother Smt. Munira Mohammed Siddik who was present, informed that the detenu three months back had left for Madras. However, she was unable to give any further details.
On 19.9.1997. Custom Officer Shri Vadke. P. S. I. Mutkule and staff made enquiries to various places viz. the residence of the detenu. Sassoon Dock. Colaba and at various other places to trace out the detenu. However, the detenu was not traceable.
On 25.9.1997, 10.1.1997, 18.10.1997, 28.10.1997, 21.11.1997, 6.4.1998, 8.1.1998, 7.12.1998, 11.12.1998, continuous efforts were made to trace out the detenu. However, the detenu was not traceable.
On 27.10.1997 watch was maintained at Chief Metropolitan Magistrate Court, Mumbai but the detenu did not attend the Court and therefore, he was not traceable. Efforts were also made at Sahar International Air Port and at Sea Port. However, the detenu was not traceable.
On 29.11.1997, our office had forwarded a letter to Home Department. Mantralaya, Mumbai that since the detenu was not traceable notification may be issued under Section 7(1)(b) of the COFEPOSA Act as the detenu was deliberately avoiding execution of detention order.
On 19.1.1998, since the detenu was not traceable, Colaba Police Station was informed to paste the notification under Section 7(1)(b) of COFEPOSA Act at his residence.
Continuous efforts were made by us to trace out the detenu time and again in order to serve upon the detenu the order of detention. On 14.8.2000 information was received that the said wanted detenu was residing at 15-17. Banian Street, 3rd floor. Room No. 25, Pydhonie, Mumbai. This information was forwarded to Custom Preventive Officer Shri Kumar Singh (I.O.). On 16.8.2000 a trap was laid by the Pydhonie Police Station at the address mentioned above. The I.O. Shri Kumar Singh was present at the time of detaining the detenu and accordingly the detenu was detained on 16.8.2000. I crave leave to refer and rely upon the station diary entries and the other documents pertaining to the details as stated by me hereinabove."
7. At this stage we would like to place on record that this Court had granted Rule on writ petition on 29.8.2000 and made the same returnable within 6 weeks. However, affidavits in reply were tendered only when the matter was taken up for hearing on 29.11.2000. Till 23.11.2000, when the matter was first listed for final hearing, no affidavit was filed on behalf of the respondents although the Respondents had appeared through their counsel on 29.8.2000 itself. The matter was, however, adjourned to 27.11.2000. Even till 27.11.2000 no affidavit was filed on record opposing the writ petition. On this day we made it clear to the learned Counsel for the Respondents that since no affidavit was filed on record we would proceed to hear the writ petition on the assumption that the allegations/averments contained therein have remained uncontroverted, for personal liberty is one of the most cherished freedoms, perhaps more important than the other freedoms guaranteed under the Constitution and it is the duty of the Court to uphold it. The learned Counsel for the Respondents however persuaded us to give one more indulgence only for 2 days so that affidavit can be placed on record. While deprecating the slackness on the part of the Respondents we reluctantly acceded to the request made by the learned A.P.P. and adjourned the matter to 29.11.2000. It is in the above circumstances that the affidavits referred to above came to be filed before us on 29.11.2000. In the ultimate analysis what shocks our conscience is that the detenu had to unnecessarily languish in Jail/detention from 23.11.2000, till today sheerly because the pleadings were not complete when the matter was called out for hearing on 23.11.2000. This situation cannot be countenanced at all. In a given case we may consider of taking appropriate action against the person/authority/officer responsible for such a situation. The action can be in the nature of directing such person to pay compensation besides being made liable for disciplinary action or prosecution to take corrective action for the inaction and delay in responding to Court's notice in a Habeas Corpus Petition of this nature.
8. Be that as it may, the matter was called out on 29.11.2000 and remained part heard. The matter was heard on 30.11.2000, 6.12.2000 and 7.12.2000 when the Counsel for the Respondents was called upon to explain the delay particularly between the period 25.9.1997 - 10.10.1997; 22.10.1997- 21.11.1997; 21.11.1997 - 6.4.1998; 6.4.1998 - 8.10.1998, 8.10.1998 - 7.12.1998 and 11.12.1998 - 16.8.2000. During the course of hearing on the above dates we indicated that prima facie the affidavits filed did not offer satisfactory explanation in the context of the obligation of the authority to make sincere, continued and uninterrupted efforts to effect service at the earliest opportunity. The learned Counsel assured us that necessary information would be provided in the form of chronology of events which can be supported by contemporaneous record to be made available on the next hearing for the perusal of the Court. We thought it appropriate to give one more indulgence to the Respondents. The matter was eventually taken up for hearing on 8.12.2000, when the counsel for the Respondents instead of giving chronology of events wanted to place a further affidavit on record. We rejected the said request for taking a new affidavit on record as we had clearly indicated to the Counsel for the Respondents that explanation with regard to the aforesaid period be stated in chronological order to be supported by contemporaneous record and not by way of affidavit. Since no statement of chronology was prepared, we gave another indulgence to the Counsel for the Respondents by keeping the said matter at 2-45 p. m. on 8.12.2000. After 2-45 p. m. when the matter was called out, the learned Counsel placed on record a statement of chronology of events with regard to the periods indicated above. The said chronology of events placed on record is duly signed by S. S. Pawar, Senior Police Inspector, P. C. B., C. I. D., Bombay and R. S. Ajgaonkar, Superintendent of Customs (P) Mumbai, which reads thus:-
178178B 128B 138B 168B 179 179A 129A 139A 169 A 180 180B 130B 140A* 170B 181 181B 191B 121 A' 111B 182 182C I92C 122A' 112C 183 183B 193B 123B 113B 184 184C 194C 124D* 114C 185 185A 195A 125B* 115A 186 186A 196A 126C* 116A 187 187C 197C 127C 117C 188 188B 198B 128B 118B 189 189A 199A 129A 119A 190 190A 200A 130B* 120A [Note : Asterisk (*) Indicates incorrect option.]
1. Medu Wada 0.06 ps.
2. Idli 0.12 ps.
3. Jalebi 3 pc.
0.18 ps.
4. Upma 0.18 ps.
5. Poha 0.12 ps.
6. Un-limited Veg. Lunch 0.50 ps.
7.
Non-Veg items such as :
Mutton Curry with Rice, Chicken Curry with Rice, Fish Curry with Rice, each 0.50 ps
8.
Mutton Curry with Rice O.75 ps.
9. Spl. Thali 0.75ps
10. Banana 0.06 ps.
19. 20.1.1998 The C. F. U. Unit had visited the premises of the detenu where the detenu's parents were residing however, the premises were found to be locked.
20. 24.1.1998 The officers of custom preventive had visited at the correct address of the detenu to serve upon the detenu the summons issued by the C.M.M. Court, however the detenu was not traceable.
21. 2.3.1998 Order was passed under Section 7(1)(a) by ihe Detaining Authority.
22. 16.3.1998 The Officers of Custom Preventive had visited at the correct address of the detenu to serve upon the detenu the summons issued by the C. M. M. Court, however, the detenu was not traceable.
23. 17.3.1996 The C. F. U. Unit had visited the premises of the detenu where the detenu's parents were residing, the father of the detenu informed that he is unable to give any details pertaining to the whereabouts of the detenu.
2430.3.1998 The officers of custom preventive had visited at the correct address of the detenu to serve upon the detenu the summons issued by the C.M.M. Court.
25. 2.4.1998 The Officers of Custom Preventive had visited at the correct address of the detenu to serve upon the detenu the summons issued by the C. M. M. Court, however, the detenu was not traceable.
26. 6.4.1998 Executing Authority had visited the correct address of the detenu.
Vth Block 7.4.1998 to 11.12.1998
27. 8.10.1998 Executing Authority had visited the correct address of the detenu.
28. 16.10.1998 Summons were issued by the C. M. M. Court to the detenu at the correct address.
29. 7.12.1998 Executing Authority had visited the correct address of the detenu.
30. 11.12.1998 Executing Authority had visited the correct address of the detenu.
VIth Block 12.12.1998 to 14.1.2000 - Nil VIIth Block 15.1.2000 to 16.8.2000
31. 15.1.2000 Summons were issued by the C. M. M. Court to the detenu at the correct address.
32. 25.1.2000 The Officer from Preventive Customs Cell had visited the residence of the detenu's parents and enquiries were made to the detenu's family members and also at the neighbourhood. However, none were in a position to give details about the whereabouts of the detepu.
33. 1.2.2000 The Officer from Preventive Customs Cell had visited the residence of the detenu's parents and enquiries were made to the detenu's family members and also at the neighbour-hood. However, none were in a position to give details about the whereabouts of the detenu.
34. 7.2.2000 The Officer from Preventive Customs Cell had visited the residence of the detenu's parents and enquiries were madeto the detenu's family members and also at the nieghbourhood. However, none were in a position to give details about thewhereabouts of the detenu.
35. 14.8.2000 Information was received to the Excuting Authority thatthe detenu was residing at 15/17. Bania Street, 3rd floor. Room No. 25, Pydhonie. Mumbal. The said information was forwarded to the Custom Preventive Officer - Shri Kumar Singh (I.O.)
36. 16.8.2000 On the basis of the said information trap was led by the Phydhonie Police Station at the address mentioned above and the detenu was arrested and detained on the same day. On the very date the detenu was served with the order of detention."
9. We have no doubt that the delay in execution of the detention order ipso facto is not fatal, but in a given case if the delay is adequately explained; and explanation offered by the authorities is cogent, valid and reasonable, then the Court may negative the detenu's plea. The Court is obliged to examine that there must be a live and proximate link between the grounds of detention alleged by Detaining Authority and the avowed purpose of detention namely the prevention of smuggling activities. In a given case if there is long and unexplained delay between the date of detention order and arrest of the detenu, the Court would proceed to assume that the live link is snapped. In the present case, as we have seen that the detention order was passed on 16.9.1997, whereas the same was executed and the detenu came to be detained on 16.8.2000 - which is almost after lapse of 3 years. Respondents have made a feeble attempt in explaining the said delay by pointing out that they were making continued efforts but the detenu was absconding till he was trapped on 16.8.2000. The sheet anchor of the argument advanced on behalf of the Respondents was mainly on the basis of the decision of the Apex Court reported in Bhawarlal Ganeshmalji v. the State of Tamil Nadu and Anr.,. And Bhawarlal Geneshmalji v. State of Tamil Nadu, and Ors., which has taken the view that if the Respondents are able to point out from the record that the execution of the detention order was delayed on account of recalcitrant or refractory conduct of the detenu in evading arrest, then the Court shall presume that the live link has not snapped but strengthened. According to the Respondents it was not necessary to explain delay beyond pointing out the recalcitrant or refractory conduct of the detenu from the record. There is no doubt that the Apex Court in the aforesaid decision in Bhawarlal's case has taken this view. Besides the abovesaid judgment, the Respondents have also relied on another unreported judgment of this Court in Manoharlal Narang v. The Union of India and Ors., which merely follows the abovesaid decision of the Apex Court.
10. The substance of the stand taken by the Respondents, as can be seen from the affidavits and the chronology of events placed on record, that the detenu was absconding all throughout and because of his conduct the order could not be executed. However, on close examination of the explanation offered by the Respondents it would appear that the Police Officers ritually visited the known address of the detenu and returned back on every occasion since the detenu was not available on the said address. An attempt was however made to pursuade the Court to take notice of the fact that besides making several visits the Respondents took proceedings under Section 7(1)(a) and 7(1)(b) of the COFEPOSA Act after they found that the detenu did not. attend the date before the Metropolitan Magistrate, Mumbai on 27.10.1997 and was not traceable. However, the proposal for issuing notification under Section 7(1)(b) of the Act appears to have been initiated only on 29.11.1997 (i.e. 2 months and 13 days from the date of detention order and more than one month from 27.10.1997) pursuant to the recommendations made by office of the Inspector of Police. From the record it also appears that only on 2.3.1998 an order under Section 7(1)(a) of the Act was passed (i.e. after 5- 1/2 months from the date of the order). In the first place no explanation has been offered, much less satisfactory, as to the delay in taking this action with promptitude instead of wasting valuable time that too for period which was more proximate to the date of the order and the purpose of detention. (This assximes significance in the context of the fact situation that the detenu was released on bail as back as on 11.3.1997, whereas the detention order was clamped only on 16.9.1997). Further, what is intriguing to note here is that the notification/order under Section 7(1)(a) and 7(1)(b) were directed on the address which was admittedly a wrong address of the detenu. As such the Notification or order Issued in exercise of the said provisions were of no avail at all and will have to be thus ignored as if it were not issued against the detenu. No explanation whatsoever has been offered by the respondents as to why in spite of the correct residential address made known by the detenu, the proceedings were initiated on the wrong address? The only possible plea on behalf of the Respondents was that they were mislead because of the address on the pass-port, but that contention will have to be merely stated to be rejected because the detenu had made it abundantly clear in his statement under Section 108 of the Customs Act about his correct address. Therefore, there was no reason for the detaining and/or any other authority to assume otherwise. Be that as it may, from the narration of events what appears to us is that the Respondents have feebly asserted about the continued efforts made by them to trace the detenu. However, their assertions are belied by their own explanation. We would think that the Respondents ought to have observed more vigilance and acted with utmost despatch immediately after the detention order was passed, but what appears from the record is that after the detention order was passed on 16.9.1999, the first visit was made by the Executing Agency on the wrong address. Visits were made on the correct address on 17th, 18th and 19th September. 1997. Thereafter another attempt was made on the correct address of the detenu only on 25.9.1997. Having accepted the stand taken by the respondents that detenu was in the habit of engaging in illegal activities and likely to engage in future, it was imperative for the Respondents to take all possible steps to execute the detention order on the detenu with utmost dispatch. However, in the present case, this obviously did not happen, inasmuch as, during the period which was more proximate to the date of the order of detention, at the relevant time itself the machinery engaged in execution of the detention order was lax in its attitude. We observe this having regard to the fact that after 19.9.1997 no attempt was made till 25.9.1997 and no explanation has been offered for the inaction between the said period. Besides that after 25.9.1997 the only next date mentioned by the respondents is 10.10.1997. There is absolutely no explanation as to what transpired between this long period which was crucial from the context of the proximity. Same situation occurs with regard to the subsequent steps taken by the Executing Agency. Instead of dealing with each date and events, we would only observe that the Respondents have offered no explanation whatsoever for the periods which would be indicated a little later, which ipso facto would be sufficient to accept the stand taken by the detenu that this is a case of unexplained delay, sufficient to quash and set aside the detention order under challenge. Even if we were to ignore all other dates and events; and even if we were to accept the explanation offered with regard to other dates, even then the blocks which we would high light hereinafter would clearly Indicate that there is inexplicable delay at the instance of the Executing Agency. The Executing Agency, except making a vague allegation that the detenu was absconding, have not given any details of any steps that might have been taken in the meantime to execute the order against the detenu. Merely because steps under Section 7 of the Act were taken that by itself did not absolve the Respondents from their obligation to make continued efforts or serious attempt to serve the detention order. As mentioned earlier the steps under Section 7 of the Act taken in the present case were faulty and on wrong address. We have no hesitation in recording that the explanation offered by the authorities would only indicate that the Executing Ageney to whom the warrant had been sent for execution of the order to detain showed absolute callousness and they did not seem to have taken any sincere efforts with assiduity in executing the warrant. The major periods for which there Is absolutely no explanation offered, inter alia, can be stated thus.
Between 19.9.199 till 25.9.1997 (7 days) 25.9.1997 till 10.10.1997 (15 days) 28.10.1997 till 21 11.1997 (24 days) 21.11.1997 till 8.12.1997 (18 days) 8.12.1997 till 26.12.1997 (19 days) 26.12.1997 till 5.1.1998 (10 days) 5.1.1998 till 15.1.1998 (10 days) 24.1.1998 till 2.3.1998 (37 days) 2.3.1998 to 16.3.1998 (13 days) 17.3.1998 to 30.3.1998 (13 days) 6.4.1998 to 8.10.1998 (6 months) 8.10.1998 to 16.10.1998 (8 days) 16.10.1998 to 7.12.1998 (53 days) 7.12.1998 to 15.1.2000 (1 year 1 month) 7.2.2000 to 14.8.2000 (6 months 7 days)
12. On analyzing the explanation offered by the Respondents, the attempts undertaken by the executing machinery were only to visit the known address of the detenu and nothing more and that the inaction of the Authority for such long intervals remains unexplained. In other words the explanation, offered is totally vague and unsatisfactory. We, therefore, have no hesitation in concluding that the attempts of the Executing Agency were not sincere and anxious attempts to sarve the detention order without any delay which was expected of them in law.
12. The learned Counsel for the Petitioner has relied on the decision of the Manju Ramesh Nahar v. Union of India and Ors.,. In similar situation the Apex Court has taken the view that the detention order is passed by the authorities to prevent a person from acting in any manner prejudicial to the conservation or with a view to preventing him from smuggling activities specified therein. The action under this section can be taken only on "satisfaction" of the Detaining Authority in that behalf. The further requirement is that the order should have been passed for preventing that person from carrying on the prejudicial activities. This implies that as soon as the Government or its office, feels satisfied that an order under this section is necessary, it has to be passed and implemented forthwith so that the prejudicial activities carried on by the person against whom the order has been passed, may be stopped immediately or at the earliest. This object can be achieved if the order is immediately executed. If however, the authorities or those who are responsible for the execution of the order, sleep over the order and do not execute the order against the person against whom it has been issued, it would reflect upon the "satisfaction" of the Detaining Authority and would also be exhibitive of the fact that the immediate necessity of passing that order was wholly artificial or non-existent. Even in the said case the authorities had filed affidavit which took a similar stand that the detenu could not be apprehended as he was absconding almost for a period of one year. The Court discredited the said stand taken on behalf of the Respondents, for except making vague allegations that the detenu was absconding the Respondents therein did not give any other details of any steps that may have been taken in the meantime to execute the order against the detenu therein and accordingly quashed the order of detention. Similary view has been taken by the Apex Court in several other cases. It is not necessary to multiply the authorities on this proposition as the Apex Court even in the subsequent decisions in P. M. Hari Kumar v. Union of India, and Smt. Sultan Abdul Kadar v. Joint Secretary to Government of India, has reiterated this position. Another decision of the Apex Court reported in P. V. Iqbal v. Union of India, and of this Court in Ismail Shaikh Ali v. the State of Maharashtra and Ors., are also useful for this case and can be safely relied.
13. In the present case, no doubt it is stated that steps under Section 7(1)(a) and 7(1)(b) were initiated but as we have observed earlier that they were initiated at the address which was admittedly wrong and therefore the said proceedings would be of no avail. No explanation has been offered by the respodents as to the reason for pursuing the said remedy on a wrong address. Once we observe that the actions under Section 7(1)(a) and 7(1)(b) of the Act were illegal, for being directed on a wrong address, then it ts not open for the Respondents to rely on the same to justify its stand that the detenu was absconding. As a necessary corollary, the decision of the Apex Court, strongly relied upon by the Respondents, , will have to be distinguished, for the factum of detenu having evaded arrest or absconded becomes doubtful, in which case there is no other clinching circumstance to establish that fact so as to apply the principle enunciated by the Apex Court in the abovesaid decision. No other circumstance has been brought to our notice. Thus the only explanation which survivies is that the police ritually visited the correct address of the detenu but he was not available or found. The Apex Court has examined such pleas in various cases referred to above and preferred to discredit the same being vague allegations. Moreover, the decision of the Apex Court has been distinguished by the Apex Court in ; and as well as by this Court in 1988 All M. R. (Cri) 928. The present case would be covered by the principle enunciated in the latter cases having regard to the facts on hand. In the circumstances we have no other option but to follow the same suit in the facts of the present case.
14. For the aforesaid reasons we have no other option but to accept the plea of the Petitioner that there is inordinate delay of 3 years in execution of the impugned detention orer and in our view the delay is not satisfactorily explained. This delay inevitably affects the genuineness of the order of detention for which reason alone the impugned detention order deserves to be quashed.
15. Hence we pass the following order :
We allow the present petition and quash and set aside the order dated 16th September 1997 passed by Shri G. S. Sandhu, Secretary to Government of Maharashtra. Home Department (Preventive Detention) and Detaining Authority, in exercise of the powers under Section 3(1) of the COFEPOSA Act, 1974 detaining the Petitioner's husband Samad Abdul Kaasam Chapra @ Imran Mohammed Siddik. We further direct the Responents to set at liberty the Petitioner's husband - the detenu forthwith if not required in any other case.
Rule made absolute accordingly.