Bombay High Court
Ismail Shaikh Ali vs State Of Maharashtra & Others on 24 February, 1998
Equivalent citations: 1998(5)BOMCR671, (1998)2BOMLR719, 1998(2)MHLJ727
Author: Vishnu Sahai
Bench: Vishnu Sahai
ORDER Vishnu Sahai, J.
1. Though this petition, preferred under Article 226 of the Constitution of India, the petitioner who is the next friend of the detenue Abdul Kadar Andunhi (a) Kamaruddin Puthu Parambi) Sayed Mohammed, hereinafter referred to as the detenue, has impugned the detention order dated 11th December, 1996, issued by the respondent No. 2, Shri P.M.A. Hakeem, the Secretary to the Government of Maharashtra, Home Department. (Transport), and the Detaining Authority, Mantralaya, Bombay, detaining the detenue under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974), hereinafter referred to as the COFEPOSA Act.
The detention order and the grounds of detention, which are also dated 11th December, 1996, and true copies of which are annexed as Annexures "A" and "B" respectively to the petition, were contemporaneously served on the detenue on 4th July, 1997.
2. The prejudicial activities of the detenue are contained in the grounds of detention. In brief the grounds of detention reads thus:
(2-a) On a prior intelligence tip-off, the officers of the Sahar Airport, Cargo, Preventive Unit, on 20-4-1996, intercepted the detenue, who was holding Indian P.P. No. A-0003603 dated 26-10-1995 and has just arrived from Dubai by Emirates Flight No. EK 502, outside Customs Arrival Hail, Sahar Airport, Mumbai and found him in possession of a cardboard box, wrapped in a bed sheet, one zipper hand bag and a plastic bag, which he claimed as his own. The bed sheet and zipper bag were bearing baggage tag Nos. EK 452950 and EK 452971 respectively. The officers enquired from the detenue about the contents of the baggage and his reply that the goods therein were within his free allowance, did not satisfy them. On examining the baggage before independent witnesses, they found 2654 pieces of wrist watches of foreign origin and other dutiable goods of foreign origin of the value of Rs. 5, 51, 220/- C.I.F., and Rs. 11-02-440/- of the local market value, concealed in it. They seized the said articles under a panchanama. From the personal search of the detenue which was also conducted in the presence of the panchas, a passport, bearing No. C 530843 issued at Cochin on 2-3-1988. In the name of Kamarudheen Puthuparambil was recovered.
2(b) The statement of the detenue was recorded under section 108 of the Customs Act, and therein he admitted the following facts
(i) that the goods were seized from his baggage;
(ii) that he had a passport bearing No. A 0003603 which he had obtained through an agent in Bombay:
(iii) that the address given in the passport was not correct;
(iv) that his agent had arranged his ticket to Dubai;
(v) that he had come to Bombay from Kerala with the intention to go to Dubai and to bring therefrom imported goods, including watches, and sell them in Crawford market and earn profit;
(vi) that on 17-4-1996 he had gone to Dubai by flight No. EK 503 and returned to Bombay on 20-4-1996 at which time the offending seizure was made;
(vii) that his actual name is Mohammed Sayed and his permanent address is Kunnilapadappu House, Kanhangad Taluka, Kanoor District, Kerala; and
(viii) that he had travelled to Dubai five times in the past but had never brought such goods before.
2(c) The detenue was arrested; produced before the Chief Metropolitan Magistrate on 22-4-96; remanded to judicial custody till 24-4-1996; released on bail on 25-4-96; and availed of the bail on 26-4-1996.
2(d) The detaining authority has recorded his subjective satisfaction in terms that he was satisfied that the detenue was engaged in committing prejudicial activities and to curb them it was imperative to detain him under the COFEPOSA Act.
2(e) The detenue was also appraised by the detaining authority about his right to make representations to the various authorities.
3. We have heard Mrs. A.M.Z. Ansari for petitioner, Mr. D.G. Bagwe, Additional Public Prosecutor for respondents 1 to 4 and Mr. R.M. Agarwal for respondents 5 and 6.
4. Although in the grounds of petition Mrs. A.M.Z. Ansari has pleaded a number of grounds but since in our judgment this petition should succeed on ground 5(v) we are not adverting to the other grounds.
The short and long of ground 5(v) is that the circumstance that the detention order was belatedly served upon the detenue, on 4-7-1996, i.e. about seven months after the offending seizure was made, shows that the satisfaction of the detaining authority to detain the detenue was not genuine and hence the detention order was vitiated in law and liable to be quashed and set aside.
It has also been urged in the said ground:-
(i) that the authorities were aware of the correct residential address of the detenue;
(ii) they should have taken steps to get the bail of the detenue cancelled:
(iii) On the converse they applied for extension of bail; and
(iv) there was delay in initiating proceedings under section 7(1)(b) of the COFE-
POSA Act and the nptice stipulated by the said provision was issued as late on 7-6-1997.
5. Ground No 5 (v) has been replied to in three returns viz.
(i) return dated 14th January, 1998 affirmed by Mr. P.M.A. Hakeern, Principal of Secretary to the Government of Maharashtra, (Home Department) (Transport), and the Detaining Authority, Mantralaya, Mumbai;
(ii) return dated 14-1-1998 sworn by B.S. Wankhade, Desk Officer; Government of Maharashtra, Home Department, (Special) Mantralaya, Mumbai; and
(iii) return dated 7th January, 1998 affirmed by Mr. M.K. Lalwani, Assistant Commissioner of Customs (Prev.), COFEPOSA Cell, Murnbai.
We now propose to examine the averments contained in each of the said returns vis-a-vis grounds 5(v).
5-A. In paragraph 9 of the return filed by Mr. P.M.A. Hakeem, the detaining authority, ground No. 5(v) has been replied to. It has been mentioned therein that the detention order dated 11-12-1996, along with the grounds of detention and the relevant documents were sent to the Secretary to the Government of Kerafa, Home (S.S.A.) for serving the same upon the detenue, vide letter dated 11-12-1996. The Additional Chief Secretary to the Government of Kerala, vide letters dated 17-12-1996 and 21-1-1997 forwarded the detention order and ground of detention to the Superintendent of Police, Kozhikode (Rural) with instructions to serve the same upon the detenue and the said letters were endorsed to the Home Department, Government of Maharashtra and were received in the Home Department on 21-12-1996 and 27-1-1997, respectively. Thereafter, the Government of Maharashtra, called for information about the efforts made by Government of Kerala, to apprehend the detenue vide Government letter dated 30-4-1997 and sent the copy of the said letter to the Assistant Commissioner of Customs (P) Murnbai, with a request to send the proposal under section 7(1)(a)(b) of the COFEPOSA Act. The Additional Chief Secretary, Kerala, made enquiries with the Superintendent of Police, Kasargod, Kerala, vide letter dated 7-5-1997, and sent its copy to the Government of Maharashtra, which was received by the letter on 13-5-1997, the Superintendent of Police, Kasargod informed the Government of Maharashtra that no useful information was received from the Deputy Superintendent of Police, D.C.R.B. Kasargod and that efforts were being made to trace the detenue. In the meantime the Assistant Commissioner of Police (P) COFEPOSA Cell, Murnbai, vide letter dated 15-5-1997 informed the Government of Maharashtra, inter alia, that the residential address of the detenue fell under the jurisdiction of Judicial Magistrate, First Class/Chief Metropolitan Magistrate, Kunnilapadappu, Calicut, Kerala. On receipt of the said information, as also the requisite information about the action under section 7(1)(b), the order under section 7(1)(b) of the COFEPOSA Act, was issued on 7-6-1997 by the Government of Maharashtra and the same was affixed on the residential address of the detenue at Kasargad. On 27-6-1997 the detenue surrendered in !he Court of the Chief Judicial Magistrate, Esplanade Court, Mumbai and was lodged in Mumbai Central Prison, Mumbai, where on 4-7-1997, the detention order and the grounds of detention were served upon him.
It has also been mentioned that considering the gravity of the incident, the nexus between the prejudicial activities of the detenues and the rationale of clamping a detention order on him was not snapped.
The detaining authority has also averred that there was no delay in the service of the detention order on the detenue and it was wrong to allege that the subjective satisfaction of the detaining authority was not genuine.
5-B. We now come to the return of Mr. B.S. Wankhade, where in paragraph 5 ground 5(v) has been replied to. It has been mentioned therein that the Assistant Commissioner of Customs (P) COFEPOSA Cell, Mumbai was requested to send the proposal under section 7(1)(a)(b) of the COFEPOSA Act, in respect of the detenue vide Government endorsement dated 30-4-1997 and vide letter dated 15-5-1997 he sent the requisite information. The action under section 7(1)(b) against the detenue was processed by the Under Secretary and the Deputy Secretary on 29-5-97, and the proposal was sent to the detaining authority which cleared the same on 31-5-97. On 2-6-1997 the Deputy Secretary and the detaining authority processed the same and submitted it to the Deputy Chief Minister (Home), who since the detenue was absconding or concealing himself, approved the action under section 7(1)(b) of the Act on 5-6-97 and the order under section 7(1)(b) was issued on 7-6-97.
5-C. We now turn to the return of Mr. K.M. Lalwani wherein in paragraph 4 ground No 5(v) has been dealt with. It has been stated therein that the order of detention was sent to the Government of Kerala for execution on 11-12-1996; vide autogram dated 2-1-1997 the Superintendent of S.C.P, Kozhikhode, called for the complete address of the detenue; the same was initimated on 24-1-1997; vide autogram dated 4-3-1997 the Superintendent informed that the detenue's address could not be located; On 7-3-1997 one more address which was gathered from the Central Excise Cochin, was intimated to the S.C.P. Calicut; the Superintendent, SCP, Manjeswar vide letter dated 25-3-1997 informed that the detenue was reportedly in Saudi Arabia; thereafter the proposal for action under section 7(1)(b) of the COFEPOSA Act were sent back to the detaining authority on 15-5-1997; and accordingly the order under section 7(1)(b) was issued on 7-6-1997.
It has also been averred in the said paragraph that the detenue was not found at his purported place of residence when the Customs Authorities of Kerala visited the said place and had concealed himself.
It has been stated that in the said circumstances there is no unexplained delay in the execution of the detention order.
Regarding the application for extension of bail what has been stated is that although the said application bore the caption of an application for extension of bail in substance it was an application for extension of time for filing the complaint, against the detenue.
6. In sum and substance the stand-point of the respondents is that they acted with diligence and promptitude in serving the detention order on the detenue; there were no laches or lethargy on their part in serving the same; the delay which occurred was occasioned by the detenues Act of absconsion or concealing himself; and the law will not permit him to take advantage of his own wrong.
7. It should be borne in mind that delay ipso facto in the execution/service of the detention order, does not vitiate it, for if that was so, the person sought to be preventively detained would either abscond or conceal himself/herself and thus frustrate the service of the detention order on him/her. A detention order is only vitiated in law on the ground of delay in its execution, If there is no plausible explanation for its belated service on the person sought to be detained and the most effective methods stipulated by law to have it executed are not taken recourse to.
What we have observed is founded on the principle that the law would not allow a person to take advantage of his/her wrong and on sound commonsense. Hence there is no need to take recourse to crutches of authorities, But since reference to and reverence of authorities, is the order of the day, we do not want to deviate. Authorities have a virtue about them. By citing them a legal proposition is accepted readily. They have a psychological value for they provide self-validation.
It is common knowledge that there is no dearth of authorities in support of the proposition mentioned above but to eschew prolixity we only propose referring to two of them viz. those reported in S.K. Serajul v. State of West Bengal and Abdul Salam v. Union of India .
In S.K. Serajul's case (supra) in paragraph 2 the Apex Court observed thus:
".....We must not be understood to mean that whenever there is delay in making an order of detention or in arresting the detenue pursuant to the order of detention; the subjective satisfaction of the detaining authority must be held to be not genuine or colourable. Each case must depend on its own peculiar facts and circumstances. The detaining authority may have a reasonable explanation for the delay and that might be sufficient to dispel the inference that its satisfaction was not genuine..."
In Abdul Salam v. Union of India (supra) in paragraph 15 the Supreme Court observed as follows:
".....It can therefore be seen that on the mere delay in arresting the detenue pursuant to the order of detention the subjective satisfaction of the detaining authority cannot be held to be not genuine. Each case depends on its own facts and circumstances. The Court has to see whether the delay is explained reasonably...."
8. That there has been delay in the execution of the detention order is not a greay area in this case, for though the detention order was issued on 11th December ,1996, it was only executed on the detenue on 4th July, 1997. The question is whether the delay has been satisfactorily explained and the authorities took steps stipulated by law, such as cancellation of detenues bail, action under section 7(1)(a) of the COFEPOSA Act and prompt initiation of proceedings under section 7(1)(b) of the COFEPOSA Act against him to facilitate expeditious execution of the detention order. To that our answer is in the negative.
9. In paragraph 5-A, 5-B and 5-C we have set out the explanation of the respondents vis-a-vis the delay in the execution of the order. In short it is two fold:
(a) some time was lost in ascertaining the correct address of the detenue;
and
(b) the detenue was avoiding service and had either absconded on concealed himself.
10. Mr. D.G. Bagwe learned Counsel for respondents 1 to 4 strenuously urged that the authorities were under the bona fide belief that the detenue was residing at Kunnila Padappu, Calicut, District, Kerala and therefore had taken all the efforts to trace him there. He urged that they were not initially aware of his Kasargod address and therefore lost precious time in executing the detention order on the detenue. We regret that we cannot accede to his contention for two reasons:-
Firstly the original file, which was made available for perusal by learned Counsel for respondent Nos. 1 to 4 shows that the letter dated 21-1-1997 were sent by the authorities to the Kasargod address of the detenue viz.
Baidya House, Chipper (P.O.) Via: Uppala, Kasargod, Kerala.
Secondly a perusal of the letter dated 26-2-1997 sent by the Adjudication Cell, Ballard Estate, New Custom House , Mumbai to the detenue, a true copy of which has been annexed as Exhibit "I" to the petition, also shows that it was sent on the Kasargod address and was received by the detenue. That being so it is implicitly clear that atleast by 21-2-1997. If not earlier, the authorities had become aware of the Kasargod address of the detenue.
11. We find that there is an ominous inaction on the part of the detaining authority to have the detention order executed between the period 27-1-1997 and 30-4-1.997. A perusal of para 9 of his return shows that the letters sent by Additional Chief Secretary, Government of Kerala, dated 17-12-1996 and 21-1-1997 to the Superintendent of Police Kozikode (Rural) with instructions to serve the same on the detenue were received in the Home Department on 21-12-1996 and 27-1-1997 respectively. But to our dismay it was only as late as 30-4-1997, as evident from a perusal of para 9 of the said return, that the Government of Maharashtra called for information about the efforts made by the Kerala Government to apprehend the detenue and copy of the said letter was sent to the Assistant Commissioner of Customs (P) Mumbai, requesting therein to send proposal under section 7(1)(a)(b) of the COFEPOSA Act.
12. In our judgment, if the subjective satisfaction of the detaining authority to detain the detenue was really genuine he would not have followed a policy of masterly inactivity for more than 3 months and this inaction on his part during the said period throws a cloud on the genuineness of his subjective satisfaction of clamping a detention order on the detenue.
13. Again we find that the detaining authority did not take recourse to the most effective methods enjoined by law, to have the detention order served on the detenue, namely, the cancellation of his bail, action under section 7(1)(a) of the COFEPOSA Act and prompt action under section 7(1)(b) of the COFEPOSA Act. On the converse it moved an application for extention of his bail.
14. The failure of the detaining authority to apply for cancellation of bail has been frowned upon by the courts and has been construed to mean that the authorities were not serious to serve the detention order on the detenue. There are no dearth of authorities to vindicate that view but again to eschew prolixity we are only referring to two of them viz., P.M. Harikumar v. Union of India & others and a Division Bench decision of this Court, Rameshkumar Balkrishna Cibal v. The State of Maharashtra & others, 1997 All Mah.L.R. (Cri.) 1810, to which one of us (A.V. Savant, J.,) was a party.
In P.M. Harikumar v. Union of India & others (supra) M.K. Mukherjee, J., speaking for the Division Bench, in paragraph 13, observed thus :
"13. If the respondents were really sincere and anxious to serve the order of detention without any delay it was expected of them, in the fitness of things, to approach the High Court or, atleast, the Court which initially granted the bail for its cancellation as, according to their own showing, the petitioner had violated the conditions imposed, and thereby enforce his appearance or production as the case might be. Surprisingly, however, no such steps were taken and instead thereof it is now claimed that a communication was sentto his residence which was returned undelivered. Apart from the fact that no such communication has been produced before us in support of such claim, it has not been stated that any follow up action was taken till 3-8-1990 when section 7 of the Act was invoked."
In Rameshkumar's case (supra), A.V. Savant, J., speaking for the Bench, in para 20, observed that where there is a delay in the execution of the detention order the correct course would be to apply for cancellation of bail.
15. Mr. D.G. Bagwe, learned Counsel for respondents 1 to 4, true to his customary fairness, conceeded that the inescapable position in the present case is that no steps were taken by the authorities to get the bail of the detenue cancelled but in his contention this lapse would not vitiate the genuineness of the subjective satisfaction of the detaining authority to detain the detenue under the COFEPOSA Act. In our judgment it would, in view of P.M. Harikumar's case (supra) and 1997 All Maharashtra Law Reporter (Criminal) Rameshkumar case (supra).
16. In the instant case we find that not only were no steps taken to move for cancellation of the detenue's bail but on the converse an application (Annexure J to the petition) was moved on 15-1-1997 for extention of his bail, in the Court of Chief Metropolitan Magistrate, Esplanade, Mumbai. The relevant part of the said application reads thus:
".....The bail period expired today and as the investigations are still in progress and the papers are being processed, I pray that the bail period may kindly be extended to 16-6-1997.
Solemnly affirmed the aforesaid at Bombay, this 15th day of Jan., 1997.
Applicant
Accused ordered to be
released on Bail of Rs. Bail period extended 16.6.1997.
With one surety in the like amount in
default remanded to Judicial Custody till:
Warrant not executed adjourned till:
Sd/-
Chief Metropolitan Magistrate,
Esplanade, Bombay.
15.1.1997."
In Rameshkumar's case (supra) to which one of us (A.V.Savant, J.) was a party, and wherein an identical application was moved, the Division Bench in para 10, has construed an application for extention of bail as being incongruous with the exercise of serving the detention order on the detenue promptly. We are also extracting the relevant part of the application made in Rameshkumar's case (supra) and the orders thereon which read thus:
"The bail period expired today and as the investigations are still in progress and the papers are being processed, pray that the bail period may kindly be extended to 29.8.1996. Solemnly affirmed the aforesaid at Bombay, This 18th day of June, 1996.
Applicant.
A.A. No. 1 pr.
Bail period extended till 29.8.1996.
Sd/-
Chief Metropolitan Magistrate.
Esplanade, Bombay."
17. Mr. Bagwe strenuously urged that in the instant case the caption of the application "For Extention of Bail/Remand period" was a misnomer. He urged that since the investigation was not complete in substance it was an application seeking extention of time to file the complaint. In this connection he invited our attention to paragraph 4 of the return of Mr. K.M. Lalwani, wherein also such an averment is made. We regret that we cannot accede to his submission in view of the categorical averment in the application to the effect that the bail period of the detenue be extended and the order passed thereon "Bail period extended till 16-6-1997".
In our view the respondents cannot be permitted to wriggle out of a document made by their officer. If there is carelessness from their side they must suffer the consequences. After all the principle that the law does not permit a person to take advantage of his own wrong is equally applicable to them.
It should always be remembered that in a preventive detention matter the benefit of any ambiguity has got to go to the detenue.
18. We also find that action under section 7(1)(b) of the COFEPOSA Act was initiated belatedly and no action was taken under section 7(1)(a) of the COFEPOSA Act.
The averments contained in paragraph 9 of the return of the detaining authority and those contained in para 5 of the return of Mr. B.S. Wankhade show that the detaining authority vide letter dated 30-4-1997 sent to the Assistant Commissioner of Customs (P) Mumbai, requested for sending the proposal under section 7(1)(b) of the COFEPOSA Act. Since the detention order was issued on 11-12-1996, it means that action under section 7 was only resorted to 41/2 months after its passing. Even if we accept the submission of Mr.D.G. Bagwe, that the authorities had become aware of the Kasargod address of the detenue only on 21-1-1997, the original file shows that the letter dated 21-1-1997 was sent on the Kasargod address of the detenue the painful truth is that the authorities took action under section 7(1)(b) 3 months and 9 days thereafter. The detaining authority showed complete inertia between 21-1-1997 and 30-4-1997.
In this connection it would be pertinent to refer to paragraph 4 of the return of Mr. K.M. Lalwani, Assistant Commissioner of Customs (P) COFEPOSA Cell, Mumbai, wherein he has stated that Superintendent S.C.P. Manjeshwar vide letter dated 25-3-1997 informed that the detenue was reportedly in Saudi Arabia. That being so the detaining authority immediately thereafter should have taken action under section 7(1)(b).
18-A. We also find that the respondents took no action under section 7(1)(a) of the COFEPOSA Act. In none of the three returns filed from their side is there an averment that a report was made to the concerned Magistrate for initiating proceedings under Section 82, 83, 84 and 85 of the Criminal Procedure Code, against the detenue. Failure to take recourse to section 7(1)(a) reflects adversely on their claim that they were anxious and sincere to have the detention order executed at the earliest.
19. We wish to emphasise that although the COFEPOSA Act does not prescribe of a time limit for commencing action under section 7, it is implicit that action under the said provision must be taken without much loss of time, for if taken belatedly it results in the detention order being belatedly executed on the detenue and this not only vitiates the genuineness of the subjective satisfaction of the detaining authority to preventively detain the detenue but also severes in live-link between the prejudicial activities of the detenue and the rationale of clamping a detention order on him. Coercive measures like those contained in section 7 are meant to be resorted to without undue delay.
In this connection we would like to refer to a decision of our Court reported in Shrl Netaji Narayan Lotlikar v. State of Goa & another, 1992 Cri.L.J. 2363, wherein the Divison Bench observed in paras 5 and 7 that if there is delayed action under section 7 of the COFEPOSA Act, the same has to be reasonably explained and failure to satisfactorily explain the same would be fatal.
In our view, coupled with other circumstances, since there is no reasonable explanation for not taking action under section 7 between 21.1.1997 and 30-4-1997 the detention order is vitiated.
20. We would be failing in our fairness if we do not refer to paragraph 5 of the authority of the Apex Court reported in Shafiq Ahmed v. Dist. Magistrate, Meerut . cited by Mr. Bagwe to drive home his point that the failure to take action under section 7 of the COFEPOSA Act by itself would not be fatal.
21. We have gone through Shafiq Ahmed's case (supra). In that authority the question of absence of action under section 7 of the National Security Act, which is analogus to section 7 of the COFEPOSA Act, was considered and on the peculiar facts of that case the Apex Court held that it was not imperative to take action under section 7.
22. We cannot construe that the authority as having laid down, as a general proposition of law, that it is not necessary to take recourse to provisions under section 7 of the National Security Act, for that would be rendering the rationale of having such a provision natatory. When the Legislature, in all its wisdom, enacts a provision, it is with the avowed object that it be acted upon and not that it should lie dormant and be a dead letter on the statute-book.
23. We also make no bones in observing that we are not prepared to accept the averments made in paragraphs 5 and 4 of the returns of Mr. B.S. Wankhade and Mr. K.M. Lalwani respectively, that inasmuch as the detenue was absconding or concealing himself, the detention order could not be served upon him. The said averments are blissfully vague.
A perusal of paragraph 5 of the return of Mr. B.S. Wankhade shows that he has simply raised the inference that the detenue had absconded or was concealing himself. He has not given any data justifying the raising of such an inference. To put it in the time honoured way he has put the cart before the horse.
24. We wish to emphasise that whenever an authority reaches a conclusion without setting out the data on which it is founded, it is no better than his ipse dixit and consequently the Court will have no compunction in rejecting it. Hence we reject the averment in paragraph 5 of the return of Mr. B.S. Wankhade that the detenue had either absconded or concealed himself.
25. The averments made in paragraph 4 of the return of Mr. Lalwani, though fractionally better than those contained in paragraph 5 of the affidavit of Mr.B.S. Wankhade, are also not sufficient to justify the inference that the detenue had either absconded or had concealed himself.
Although Mr. Lalwani has averred that when the custom authorities of Kerala visited the house of the detenue he was not found but that was insufficient. He should have furnished the time, dates, etc. on which the officers visited the house of the detenue and whether they made enquiry from neighbours of detenue about his whereabouts.
25-A. It is significant to point out that no action under section 7(a) of the COFEPOSA Act, was taken by the respondents. In their returns they have not stated that a report was made to the concerned Magistrate for initiating proceedings under sections 82, 83, 84 and 85 of Criminal Procedure Code, against the detenue. This in our view renders the claim of the respondents that the detenue was either absconding or concealing himself and was reportedly in Saudi Arabia, highly suspicious.
26. We wish to emphasise that the inference of absconsion" or of an accused concealing himself, with a view to avoid arrest, is a serious inference, having legal implications of a grave nature and should not be hastily reached in a caviliar fashion which to our regret has been the case here. It should only be reached if there is concrete data warranting it. A casual and a half-hearted averment in the return, as is the case here, without taking recourse to action under section 7(1)(a) and taking belated action under section 7(1)(b) of COFEPOSA Act only results in the Court straight-way rejecting it.
27. The Supreme Court, in a plethora of decisions has frowned upon the delay in the execution of the detention order but again to eschew prolixity we are only referring to one of them, namely, that reported in T.A. Abdul Rahaman v. State of Kerala & others, . wherein the detention order was issued on 7.10.1987 and the detenue was arrested on 18.1.1988 and since the said delay was not properly explained the Supreme Court quashed the detention order.
28. We would be failing in our fairness if we do not refer to the four decisions cited by Mr. Bagwe to drive home his point that on account of mere delay in execution of the detention order, the detention order would not be vitiated. The said decisions are:
1. Bhawar Lal v. State of T.N. .
2. Abdu! Salam v. Union of India (supra) .
3. M. Ahmed Kutty v. Union of India, 1990 S.C.C. (II) 1.
4. Kishore Sukan Raj Jain v. State of Rajasthan, 1995 S.C.C. (Cri.) 847.
29. We have perused them and find that they were arrived on their peculiar facts and the consideration that the delay in the execution of the detention order was satisfactorily explained, In our view they have no application on the facts of this case.
30. In this connection it should always be borne in mind that the answer to the question whether there has been delay in the execution of the detention order would depend on the facts and circumstances of a given case. Our said view is fortified by three decisions of the Apex Court enumerated below:-
(i) Abdul Salem v. Union of India (supra) (see para 15); (ii) Shafiq Ahmed v. District Magistrate, Meerut (supra) (see para 5) and (iii) S.K. Serajut v. State of West Bengal (supra) (see para 2). Since the facts in the cases cited by Mr. Bagwe were different from those involved in the present case and unlike the present case the delay in the execution of the detention order was satisfactorily explained in them, we have not thread-bare analysed them.
31. We wish to emphasise that in the final analysis it should always be remembered that the answer to the question whether in a given case on account of delay in the execution of the detention order, the genuineness of the subjective satisfaction of the detaining authority would stand vitiated will depend on the facts of the case and the credibility of the explanation offered therein regarding the delay in the execution of the detention order.
Thus there may be cases where the delay in the execution of the detention order is long but if the detaining authority explains it and satisfies the Court that it resorted to the most effective methods enjoined by law to serve the detention order, like cancellation of detenue's bail and prompt action under section 7 of the COFEPOSA Act, but still the order could not be executed on account of circumstances beyond its control, such as the detenue was absconding or concealing himself, the detention order would not be vitiated on the vice of delay in execution because the law does not compel the performance of the impossible.
On the converse, there may be cases where the delay in the execution of the detention order may not be very long but in the absence of credible explanation forth-corning, the genuineness of the subjective satisfaction of the detaining authority would become suspect and the detention order would be vitiated.
32. For the reasons mentioned in the proceeding paragraphs the delay in the execution of the detention order has not been plausibly explained. In our view the delayin the execution of the detention order shows that the subjective satisfaction of the detaining authority in detaining the detenue under the COFEPOSA Act was not genuine. We also feel that on account of it the live-link between the prejudicial activities of the detenue and the rationale of clamping a detention order on him was snapped.
33. We also examined the matter from the perspective of the propensity and potentiality of the detenue. Whether there was material on record to show that the propensity and potentiality of the detenue to commit prejudicial activities was so enormous that on account of mere delay in the execution of the order the live-link between his prejudicial activities and the rationale of clamping a detention order on him was not snapped. We went through the grounds of detention and the statement of the detenue recorded under section 108 of the Customs Act and found that there is nothing to indicate that his propensity and potentiality to commit prejudicial activity was so accute that inspite of the time-lag of nearly 6-1/2 months between the passing of the detention order and its execution on him, the live-link would not have snapped. It would be apposite to refer to the grounds of detention, wherein there is a mention that although the detenue had visited Dubai on five earlier occasions but he did not bring with him, on any of the earlier visits, any smuggled goods.
34. We would close this judgment after referring to a common submission canvassed by Mr. D.G. Bagwe, learned Counsel for respondents 1 to 4 and Mr. R.M. Agarwal learned Counsel for respondents 5 to 6. The submission is that a learned Single Judge of this Court (S.S. Parkar, J.,) in the decision reported in Mahendra C. Vakharia v. State of Maharashtra & another, 1998(1) L.J. 441, in para 9, has held that no application for cancellation of bail can be moved for the execution of a preventive detention order and the only remedy open is under section 7 of the COFEPOSA Act. The contention of Mr. Bagwe and Mr. Agarwal is that this decision is bad law in view of a Division Bench decision of this Court, Mrs. Meena Mahendra Vakharia v. K.L. Verma & others, 1997 All Mah. L.R. (Cri.) 1172, to which one of us (A.V. Savant, J.) was a party. In our view as the said point is not relevant for the disposal of this petition it would not be proper for us to express any opinion on it.
35. In the result this petition is allowed. The impugned detention order is quashed and set aside. The detenue Abdul Kadar Audunhi @ Kamaruddin Puthu Parambil Sayed Mohammed, who is in jail, is directed to be released forthwith unless wanted in some other case.
Rule is made absolute accordingly.
36. Petition allowed.