Bombay High Court
Anil Kesarinath Patil vs The State Of Maharashtra & Others on 30 June, 1997
Equivalent citations: 1998BOMCR(CRI)~
Author: S.S. Parkar
Bench: D.K. Trivedi, S.S. Parkar
ORDER S.S. Parkar, J.
1. By this petition the petitioner has challenged the detention of his cousin by name Sandeep P. Patil under the provisions of the COFEPOSA Act. The impugned order of detention annexed as Annexure 'A' to the petition was issued by the respondent No. 2 on 2nd March 1996 under section 3(1) of the COFEPOSA Act. The said order was served on the detenu on 27th August 1996. The respondent No. 2, the Detaining Authority had also recorded the grounds of detention dated 2nd March 1996 which are annexed as Annexure 'B' to the petition and were served on the detenu along with the order of detention on 27th August 1996.
2. The brief facts leading to the issue of the order of detention are as follows : On 27th September 1995 the Officers of the Air Intelligence Unit, Sahar International Airport, Mumbai intercepted the detenu in Module I in the arrival hall after he had cleared the customs. The detenu had arrived from Hongkong on Cathey Pacific flight. When the detenu was questioned whether he was carrying any gold or other contraband, he replied in the negative. On the personal search of the detenu a zipper pouch was found in the right side watch pocket of his trousers. From the said pouch 20 gold bars of 10 tolas each with foreign markings were recovered which were valued at Rs. 9,33,120/- I.M.V. and Rs. 11,33,040/- L.M.V. They were seized under a panchanama. On further search there was recovery of US $ 2500 and miscellaneous goods valued at Rs. 5,100/- which were returned to the detenu. The statements of the detenu were recorded on the same date i.e. 27-9-1995 and also subsequently on 9-10-1995. In his statement the detenu stated that he was a jewellery designer and a pattern maker by profession and he used to travel to Dubai, Bangkok, Hongkong and Singapore for promoting his business. He admitted that the gold bars were his own and he had purchased the jewellery from Dubai and carried the same to Hongkong where he sold the jewellery and purchased the gold bars. On 28th September 1995 the residence of the detenu's parents was searched but nothing incriminating was found. On the search of the detenu's residence on 28th September 1995 also there was nothing incriminating found. The detenu was arrested on 28th September 1995 and was ordered to be released on bail on certain conditions by the Chief Metropolitan Magistrate at Esplanade Court, Mumbai. The detenu availed of the bail on 29th September 1995. On 23-12-1995 the detenu addressed a letter to the Collector of Customs stating that he was falsely implicated in the case and that he had brought the gold within the permissible limits and was prepared to pay the customs duty. The said letter was replied to by the Customs Authorities on 13-12-1995 denying the statements made in his letter. The list of documents relied on by the Detaining Authority is annexed as Annexure 'C' to the petition.
3. On 17th November 1995 the detenu had applied to the Court of Additional Chief Metropolitan Magistrate, 3rd Court at Esplanade, Bombay for return of the passport in order to enable him to travel abroad to Dubai, Hongkong and Bangkok for business purpose. The said application was granted by the order dated 19th December 1995 on certain conditions directing the detenu to execute a fresh bond in the sum of Rs.
1,00,000/- with one surety in the like amount or cash deposit of Rs. 1,00,000/- in lieu of surety by way of additional security and on the condition that he should not visit any place except Dubai, Hongkong. Bangkok and Singapore. He was also directed to give previous notice in writing to the Customs Department about his flight details and his address abroad. He was directed to surrender his passport on his return to India. He was directed to return to India on or before 16th January 1996 and appear before the said Court on 16th January 1996. Although he was permitted to go abroad the detenu does not seem to have availed of the said permission. The said application for return of the passport and the permission to go abroad dated 17th November 1995 is annexed as Annexure 'D' to the petition along with the order thereon. The petitioner has also annexed the letters/representations made by the detenu on 4-1-1996 and 29-1-1996 addressed to the Home Minister, Government of Maharashtra with a copy to the respondent No. 2 as Annexures 'E' and 'F' respectively pointing out therein that he had not contravened the provisions of the Customs Act and that there was no reason to take any steps against him for his detention under the provisions of COFEPOSA Act.
4. Several grounds have been taken in the petition out of which Mr. Karmali, the learned Counsel appearing on behalf of the petitioner argued following four grounds. Firstly, he argued that the vital documents like his application to the learned Additional Metropolitan Magistrate's Court dated 17-11-1995 for return of the passport and permission to go abroad and the order passed by the said Court on 19th December 1995 allowing the said application permitting the return of the passport and allowing the detenu to go abroad annexed as Annexure 'D' to the petition were not placed before the Detaining Authority which being relevant documents could have influenced the mind of the Detaining Authority one way or the other in issuing the impugned order of detention. Secondly, Mr. Karmali contended that there had been an inordinate and unexplained delay of more than five months in issuing the order of detention from the date of the seizure which took place on 27-9-1995 and therefore the live-link between the prejudicial activity and the order of detention was snapped as a result of which the detention order became void. Thirdly, Mr. Karmali argued that there was unexplained and inordinate delay of six months in execution of the order of detention since the order of detention was issued on 2nd March 1996 but the same came to be served on the detenu on 27th August 1996. Fourthly, Mr. Karmali argued that there was non-application of mind by the Detaining Authority. In support of this contention Mr. Karmali took us through the grounds of detention where the Detaining Authority had arrived at certain conclusions which are obviously not justified inasmuch as the Detaining Authority had wrongly read the statements of the detenu and obviously drawn wrong conclusions. Although after hearing both the sides and going through the record of the case and the affidavits-in-reply filed by the respondents and particularly the affidavit filed on behalf of respondent No. 2 - Detaining Authority dated 22-11-1996 by Shri N.K. Mada, the Joint Secretary to the Government of Maharashtra, Home Department and the affidavit filed by J.M. George, Assistant Commissioner of Customs attached to COFEPOSA Cell, Air Intelligence Unit, Sahar Air Port i.e. the Sponsoring Authority on 29th January 1997 we are satisfied that the order of detention is liable to be quashed on either of the aforesaid four grounds and in particular the first three grounds taken up on behalf of the detenu in challenging the order of detention, however, it would be desirable to take up the first point on which ground alone the impugned order of detention is liable to be set aside. Para 4(vii) of the grounds is as follows :
"The petitioner says and submits that on or about 17-11-1995, the detenu had submitted an application before Addl. C.M.M.'s Court; whereby he had applied for the return of his passport in order to enable him to travel abroad for the purpose of his business. On or about 19-12-95, after hearing the parties, an order was passed by the Court granting the permission to the detenu to visit Dubai, Hongkong, Bangkok and Singapore; on certain conditions set out in the said order. Hereto annexed and marked Annexure 'D' is a copy of the said application along with the order of the Court passed thereon. The petitioner says and submits that he however did not avail of the said order. The petitioner says and submits that it was enjoined upon the sponsoring authorities to have placed before the detaining authority the said application along with the said order passed by the Court thereon; as it was a document of vital nature which was likely to influence the mind of the detaining authority one way or the other. The petitioner further says and submits that it was not only enjoined upon the detaining authority to have considered the said application along with the said order passed by the Court thereon but also to have furnished its copy to the detenu along with the grounds of detention. The petitioner says and submits that the non-placement of the said vital document before the detaining authority and the consequent non-consideration of the same by the detaining authority impaired the satisfaction arrived at by the detaining authority vitiating the impugned order of detention and the non-furnishing a copy of the same to the detenu along with the grounds of detention disabled the detenu from making an effective representation at the earliest opportunity against the impugned order of detention. The impugned order of detention is thus, violative of Article 22(5) of the Constitution and as such it is mala fide, null and void."
5. Both the detaining authority in para 11 and the sponsoring authority in para 7 of their reply affidavits respectively have admitted that the aforesaid documents were not placed by the sponsoring authority before the detaining authority. White the detaining authority states that since the said documents were not placed before him the question of considering the said documents by the detaining authority and furnishing a copy thereof to the detenu did not arise, the sponsoring authority has averred that since the detenu did not avail of the said order directing the return of the passport to him and allowing him to go abroad and that as the said document was not vital the same was not placed before the detaining authority. The sponsoring authority also denied that non-consideration of the said document by the detaining authority impaired the satisfaction arrived at by the detaining authority vitiating the order of detention. Both the authorities denied that there was any violation of Article 22(5) of the Constitution of India.
6. In the case of Abdul Sathar Ibrahim Manik v. Union of India, the Supreme Court has held that the order granting bail to the detenu is a vital document which ought to be placed before the detaining authority and non-placement of such vital material documents before the detaining authority would vitiate the order of detention because such material fact is bound to weigh with the satisfaction to be arrived at by the detaining authority one way or the other. In the said decision the Supreme Court after considering various decisions on the point set down six conclusions in para 12 of the judgment. The sixth conclusion arrived at by the Supreme Court is as under :
"(6) In a case where detenu is released on bail and is at liberty at the time of passing the order of detention, then the detaining authority has to necessarily rely upon them as that would be a vita! ground for ordering detention. In such a case the bail application and the order granting bail should necessarily be placed before the authority and the copies should also be supplied to the detenu."
7. From the list of documents annexed as Annexure 'C' at Serial No. 12 we find that the bail particulars with regard to the detenu were placed before the detaining authority which appear at page 87 of the paper book containing the set of documents served on the detenu. If the application for bail and the order granting bail has necessarily to be placed before the detaining authority and the copies thereof are required to be supplied to the detenu, the application for return of the passport for the purpose of going abroad and the order of the Court directing the return of the passport and permitting the detenu to go abroad are, in our view, relevant material which would be vital for consideration by the detaining authority before arriving at the subjective satisfaction one way or the other whether to clamp down the order of detention on the detenu or not. The order for return of the passport and granting permission for going abroad would amount to the relaxation of the conditions of the original order of release of the detenu on bail as passport was lying with the authorities which had curbed the freedom of the detenu to go abroad. There is a vital difference when the detenu is released on bail on his passport having been surrendered to the authorities, from the situation when the Court directs the return of the passport and permits the detenu to leave the country and go abroad. Like the order granting bail, the permission to go abroad pending prosecution would certainly be required to be considered by the detaining authority before issuing the order of detention. The order of detention in this case was issued much after the said application dated 17th November 1995 was made and the Court allowing the said application on 19th December 1995 as the detention order was passed on 2nd March 1996.
8. The view which we are taking finds support from the unreported judgment of the Karnataka High Court in the case of Noshina G. Bachooali v. State of Karnataka, in Writ Petition No. 133 of 1984 decided on 20th December 1984 by the Division Bench consisting of VS. Malimath, C.J. and R.S. Mahendra, J. In that case the, detenu who was charged with criminal offence was already granted bail. He thereafter moved the Sessions Court for permitting him to go to certain foreign countries during the months of August, September and October 1984 for the purpose of his business and for obtaining treatment. The Sessions Court after hearing both the sides permitted the detenu to go abroad during the said period by its order of 23rd July 1984. The only question for consideration was as to whether the order of the learned Sessions Judge granting permission to go abroad could be recorded as vital material which could have influenced the mind of the detaining authority in the matter of its arriving at its subjective satisfaction required under section 3(1) of the Act. The said order had not been placed before the detaining authority. It was argued on behalf of the State by the learned Advocate General that since the detenu was already on bail and was free to move about, the permission to go abroad was only relaxation of one of the conditions of bail and, therefore, the order of the Sessions Judge granting such permission cannot be said to have any bearing on the subjective satisfaction of the detaining authority.
Meeting the argument of the learned Advocate General the Court observed as follows in para 3 of the judgment :
".....So far as the first statement of the learned Advocate General is concerned, it has to be pointed out that granting bail to the detenu so long as he remains within India, stands on a different footing from granting permission to the detenu lo go abroad. As long as the detenu is in India, if the detaining authority was of the opinion that it is necessary to prevent him from resorting to activities specified in section 3(1) of the Act, it could make such an order. But, on the other hand, the detenu is permitted to go abroad for such a long period as three months viz., August, September and October 1984, it is obvious that the detaining authority would not be in a position to effectively curtail the freedom of the detenu by executing the order of detention to be made by it....."
9. In that case of course the Court also considered the fact that the Counsel for the department had no objection for such permission being granted on certain conditions, but that would not affect the ratio of the decision of the case. In this case from the perusal of the order dated 19th December 1995 permitting the detenu to go abroad it appears that no serious objection was raised on behalf of the department to oppose the application for permission to go abroad as the learned Advocate for the department only contended that the applicant had merely sought return o! the passport without seeking permission from the Court to go abroad, which did not appear to be correct from the application as observed by the learned Additional Chief Metropolitan Magistrate in his order of 19th December 1995.
10. In our opinion the subjective satisfaction of the detaining authority is vitiated as the vital material viz. the application dated 17th November 1995 made by the detenu and order thereon passed by the learned Additional Chief Metropolitan Magistrate dated 19th December 1995, being Annexure 'D' to the petition was not placed before the detaining authority. Hence the order of detention is liable to be quashed and set aside.
11. In our view, apart from the aforesaid ground, the impugned order of detention is also liable to be set aside on the grounds of inordinate and unexplained delay in issuing the order of detention and in executing the said order pf detention.
12. The seizure of contraband goods had taken place on 27-9-95 and the statements of the detenu were recorded on 27-9-95 and 9th October 1995. The detenu was arrested on 28th September 1995 on which day he was granted bail. The investigation had commenced on the date of seizure i.e. 27th September 1995 and the material investigation was over by next day. In any event, as per the reply affidavit dated 22nd November 1996 filed by Shri N.K. Mada, the Joint Secretary, the proposal for issuing the order of detention was received by the Home Department on 20th of November 1995 and yet the order of detention came to be issued after a lapse of about more than three months. The reason for this delay is mentioned in paragraph 5 of the reply affidavit filed by the Joint Secretary in which it is stated that after the receipt of the proposal on 20th November 1995, the additional documents were received on 27-11-95. Thereafter the Government called for the proceedings of show cause notice by letter dated 21st November 1995 which were received on 26-12-1995. tHE further additional information and copies of the passport seized on the very first day were called for on 29th January 1996 and the details regarding boarding pass was asked for on 15-2-96 which was already seized on the day of seizure and these documents were received by the detaining authority on 22-2-96. We see no justification for whiling away time in calling for those documents so belatedly and furnishing the same so late to the detaining authority when they were already with the investigating agency from the very first day. This was nothing but whitewash or the pretext given for issuing the impugned order belatedly. We had occasion to consider the various authorities on the point of delay in issuing the order in our judgment delivered on 17th June 1997 in Criminal Writ Petition No. 429 of 1996. We are of the opinion that the authorities have not explained adequately the inordinate delay in issuing the order of detention by the detaining authority when the proposal was placed before him on 22nd November 1995. The delay of more than three months at the level of the detaining authority is not adequately explained. The live-link therefore between the prejudicial activity and the order of detention stood snapped and, therefore, the order of detention is liable to be set aside.
13. We are also satisfied that there has been inordinate delay of six months in execution of the order of detention inasmuch as the order of detention dated 2nd March 1996 was served on the detenu on 27th August 1996, after about more than six months. The said delay was sought to be explained in para 8 of the affidavit of Joint Secretary by referring to the affidavit dated 17th January 1997 filed by Shri R.B. Dange, Senior Police Inspector attached to P.C.B. C.I.D. In the said affidavit it has been stated that the attempts were made to serve the detenu at his residence on 3rd March 1996, 16th March, 26th March 1996 and thereafter on 5th June, and 17th July 1996. Firstly the attempts made are not sufficient. In fact there was absolute lull in the months of April and May 1996 when no attempts were made. Secondly though so much time had elapsed no application was made for cancellation of bail nor action was taken under section 7 of the COFEPOSA Act to declare the detenu absconding. The Supreme Court in the case of S.K. Nizamuddia v. State of West Bengal, has held that the livelink stands snapped between the prejudicial activities of the detenu and the order of detention when there is unexplained delay even in serving the detenu with the detention order. There are catena of Supreme Court decisions on the point which were considered at length by the Division Bench of this Court to which one of us (Parkar, J.) was a party in Writ Petition No. 1320 of 1996 decided on 14th January 1997. The aforesaid order of detention is, therefore, liable to be set aside even on the ground of inordinate and unexplained delay in serving the order of detention.
14. We therefore allow the writ petition and quash and set aside the impugned order of detention dated 2nd March 1996 issued by respondent No. 2 and make the rule absolute in terms of prayer (a) of the petition. The detenu is, therefore, directed to be released from the custody forthwith unless required in any other case.
15. Petition allowed.