Delhi High Court
Shri Adil vs Union Of India (Uoi) And Ors. on 22 March, 2004
Equivalent citations: 2004CRILJ1986, 110(2004)DLT583, 2004(74)DRJ85, 2004 CRI. L. J. 1986, (2004) 19 ALLINDCAS 397 (DEL), (2004) 74 DRJ 85, (2005) 1 EFR 180, (2004) 3 RECCRIR 224, (2004) 2 CHANDCRIC 80, (2004) 110 DLT 583
Author: R.C. Jain
Bench: Dalveer Bhandari, R.C. Jain
JUDGMENT R.C. Jain, J.
1. Through this petition under Article 226 of the Constitution read with Section 482 of the Code of Criminal Procedure, the petitioner seeks the quashing of his detention order dated 13.2.2002 passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ( in short the "Act") and his release from the custody.
2. Shorn of unnecessary details, the germane facts and circumstances which led to the passing of the impugned detention order dated 13.2.2002 are that, acting on an information, a joint research operation was conducted by the Officers of the Enforcement Directorate and the Officers of Local Police on 24.2.2001 at the Corner Gali Kaptan Wali, Kucha Chelan, Daryaganj, Delhi, under warrant of authorisation of the even date issued under Section 37(3) of FEMA 1999 read with Section 132 of the Income Tax Act. Two persons namely Shri Imran and Shri Abid who were riding two wheeler scooter No. DL-2S-H 9071 were stopped and Abid who was on the pillion seat of the scooter was found to carry a raxine bag. Search of the bag and aforesaid persons, inter alia, resulted in the recovery of following foreign and Indian currency:-
" Foreign Currency - US $ 40,791/- DM 3210/- Saudi Riyal 1,71,691/-, Japanese Yen 3,21,000/-. Bahrain Dinar 44/-, Omani Riyal 197/-, Qatar Riyal 565/-, UAE Dirhams 21,450/- Kuwaiti Dinar 511.75/-, Singapore $ 55/- Canadian $ 10/-, Hongkong $ 500/- and Dutch Gilder 500/-.
Indian Currency - (i) Rs. 3,03,800/-
(ii) Rs. 24,850/- (Soiled/torn/appearing to be fake.)
3. Besides Imran and Abid, two more persons namely Shri Rabi Ahmed and Shri Alluddin were also apprehended at the spot but nothing incriminating was recovered or seized from them. In their statements under Section 37 of FEMA, 1999 read with Section 132(4) of the Income Tax Act, 1961, Shri Imran Ahmed disclosed that he was a scooter mechanic but for few days past he was working with his brother-in-law (the petitioner) who was doing the business of sale-purchase of foreign exchange in the black market and that the petitioner was residing at 2883, 3rd Floor, Gali Kaptan Wali, Kucha Chelan and a telephone (number 3257181) was installed at the said house; that the petitioner's shop was a part of 'CHICKEN PLAZA' at Gali GADHAIYA, Matia Mahal having a telephone. He further disclosed that the petitioner was engaged in the sale-purchase of foreign exchange besides selling 'Chicken Briyani' for past about eight years. Almost to the same effects were the statements of Abid, Rabi Ahmed and Allauddin. Summons were issued to the petitioner to appear before the Enforcement Directorate on repeated occasions between 7th March, 2001 to August 2001 but the petitioner was found absconding. In the meantime further investigation in the matter was taken up but statement of the petitioner could not be recorded and after about a year of the said incident, the Competent Authority passed the impugned detention order on 13.2.2002 recording his satisfaction that the petitioner had been engaging in activities which had adversely affected the foreign exchange resources of the country and considering the nature and gravity of the offence, the role of the petitioner therein and the potentiality and propensity to engage himself in such prejudicial activities in future also, it was necessary to detain the petitioner. The detention order was served on the petitioner only on 10.4.2003 and he has been detained in Tihar prison since then. Representation made by the petitioner through his wife was rejected.
4. The respondents being noticed, filed their counter in the shape of affidavits of Shri R. K. Gupta, Joint Secretary to the Government of India in the Ministry of Finance and Superintendent, Jail No.3. The record of the case was also submitted to the Court for its perusal.
5. We have heard Ms. Sangeeta Bhayana, learned counsel representing the petitioner-detenue and Mr. K. K. Sud, learned Additional Solicitor General on behalf of the respondents and have given our anxious consideration to their respective submissions.
6. Though in the petition several grounds were taken up in order to assail the impugned detention order but at the time of hearing of the petition, learned counsel for the petitioner has confined her attack primarily to only one ground viz. inordinate and unexplained delay of about one year in passing the impugned order after the alleged incident. It was also contended that there was also delay in execution of the impugned detention order and in consideration of the representation dated 29.5.2003 sent by the wife of the petitioner on behalf of the petitioner. Therefore, the only question which arises for decision in the present case is as to whether the impugned detention order is vitiated on account of undue and unexplained delay? The incident which largely formed the basis of making the impugned detention order was admittedly of 24.2.2001 and the impugned order was passed only on 13.2.2002 i.e. after 11 months and 19 days of the incident.
7. Before we dwell on the facts and circumstances of the case in hand and examine the question as to whether the delay in making the detention order has been satisfactorily explained by the respondent and if explained the said delay had snapped the nexus between the incident and passing of the order, it would be advantageous to have a quick look at the legal position on these aspects which have been settled through a catena of decisions of the Apex Court and various High Courts.
8. Ms. Sangeeta Bhayana, learned counsel representing the petitioner sought support from a Supreme Court decision in the case of S.K. Serajul Vs. State of West Bengal . In that case the Court has considered the impact of delay in passing the detention order and held as under:
" There was delay, both at the stage of passing the order of detention and in arresting him, and this delay, unless satisfactorily explained, would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining Magistrate recited in the order of detention. It would be reasonable to assume that if the detaining Magistrate was really and genuinely satisfied after proper application of mind to the materials before him that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner, he would have acted with greater promptitude both in making the order of detention as also in securing the arrest of the petitioner, and the petitioner would not have been allowed to remain at large for such a long period of time to carry on his nefarious activities.
But this must not be understood to mean that whenever there is delay in making an order of detention or in arresting the detenu 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.
It cannot be contended that the State was not expected to render any explanation in regard to delay in making the order of detention and arresting the petitioner because no such complaint was made in the petition.
The State when it is called upon to answer a rule issued on a petition for a writ of habeas corpus, is under the obligation in making its return to the rule in such a case to place all the relevant facts before the Court and if there is any delay in making the order of detention or in arresting the detenu, which is prima facie unreasonable, the State must give reasons explaining the delay.
On facts, in the absence of such explanation, the order of detention must be struck down."
9. Reliance is also placed on the case of Pradeep Nilkanth Paturkan Vs. Shri S. Ramamurthi & Ors. . In that case, Supreme Court held that unexplained delay of 5 months and 8 days in passing the detention order was fatal and the impugned order was set aside. Reliance is also placed in the case of Ahamed Mohaideen Zabbar Vs. State of Tamil Nadu and Ors. 1999 (2) JCC (SC) 292. On the facts and circumstances of the said case the Court held that the unexplained delay of 11 months in passing the detention order was fatal consequently the detention order was quashed. Ms. Sangeeta Bhayana, learned counsel for the petitioner has then referred to a division bench judgment of this Court in the case of Abdul Wahid Vs. Union of India & Ors. in Crl.W.P. No. 714/02 decided on 3.2.2003 to which one of us (R.C.Jain, J.) was a party. In that case the incident which formed the basis for passing of the detention order were of 26th and 27th September, 2001, when the contraband goods "Dexamethasone" was recovered from the baggage of the detenues. Though the statement of those witnesses were recorded under Section 108 of the Customs Act which disclosed the involvement of the detenu in smuggling activities, yet no order of detention was passed uptill 14th March, 2002. This delay was sought to be explained from the side of the detaining authority on the premises that the petitioner was not appearing before the custom authorities despite repeated summons issued to him and on his failure to appear, the proceedings under Section 172 and 174 IPC were initiated and, therefore, the detaining authority was handicapped in passing the impugned order. The Court rejected the explanation and held that there was unexplained delay in passing the impugned order which vitiated the detention order.
10. On the other hand Mr. K. K. Sud, learned Additional Solicitor General has vehemently urged that in the case in hand though the delay is of about one year in passing the impugned order but the same has been satisfactorily explained. He urged that it is not the delay per-se in passing the impugned order which can vitiate the detention order. In support of this submission, he heavily relied upon a division bench decision of this Court in the case of Dalbir Singh Vs. Union of India 1995 (1) AD Delhi 1169. In that case the Court has morefully examined the question and impact of delay in passing the impugned detention order with reference to various Supreme Court decisions on this aspect and on a survey of the same summed up the legal position as under:
" From the aforesaid rulings, the following principles can be summarised. Unexplained delay may vitiate an order of detention if the Court can infer that on account of that delay the nexus between the incident and the detention order has snapped. But there is no hard and fast rule regarding the length of time which can be regarded as sufficient to snap the nexus. The authorities may sometimes take time for a detailed investigation for action under Customs Act and also for a criminal prosecution. It may also happen that there is no apprehension as long as the person is in custody in the criminal case and only after he is released on bail, the customs authorities might consider preventive detention necessary and address the detaining authority. It may also be that the detaining authority may take time in calling for particulars from the sponsoring authority, consider the same, place it before the Screening committee and come to a conclusion later. One cannot say that investigation should have been hurried. The detaining authority is not obliged to explain the delay to the detenu but is obliged to explain the same to the Court. While delay in observing the time limits in regard to safeguards provided by Article 22(5) of the Constitution might vitiate detention, that principle does not apply to delay in passing the order of detention. The latter is a factor relevant only in the context of finding out whether, as a fact, the nexus between the incident and the detention has snapped. Unexplained delay does not also lead to the inference of absence of sufficient material or that the subjective satisfaction is not genuine. Explanation for delay may be found in the detention order or in the counter-affidavit."
11. The question of delay in execution of the detention order was also considered in this very decision in paragraph 12 by holding as under:
" Delay in executing a detention order if satisfactorily explained cannot vitiate the detention. If the detenue has been absconding or trying to evade arrest till he surrendered after initiation of procedure under Sections 82 and 83 Cr.P.C. the delay cannot be fatal."
12. Thus the legal position which stands crystalised from the aforesaid authorities is that the delay ipso facto in passing an order of detention is not fatal, for, under certain circumstances delay may be unavoidable and reasonable. What is required by law is that the delay must be satisfactorily explained by the detaining authority. The unexplained delay may vitiate an order of detention if the Court can infer that on account of that delay the nexus between the incident and the detention order has snapped. This question has to be considered on the facts and circumstances of each case.
13. Now reverting to the facts and circumstances of the present case, Mr. K. K. Sud, learned Additional Solicitor General has put in a great deal of effort in his attempt to show that the delay in passing the detention order has been satisfactorily explained. He submitted that after the incident of 24.2.2001, various time consuming investigations were conducted. Besides the petitioner had hampered the progress of investigation by absconding and not appearing before the Competent Authority despite various processes having been issued for his appearance and action resorted for initiating proceedings under Section 82, 83, 84 and 85 of the Criminal Procedure Code 1973, in accordance with the provisions of Section 7(i)(a) of the Act. A reference has been made to the counter affidavit of Mr.R.K.Gupta, Joint Secretary and more particularly those contained in para (A) of reply on merits and Annexure R-I, a chart indicating chronological sequence of events between the date of incident till the passing of the detention order. A perusal of the same would show that the statement of Shri Abid, Imran, Rabi Ahmed and Alluddin were recorded on 25.2.2001 and the petitioner was summoned for 7.3.2001. Efforts are stated to have been made to trace the petitioner between 7.3.2001 and 3.8.2001 but it was only on 8.8.2001 that the search of his residential premises was conducted. Again fresh summons were issued to the petitioner for 9.8.2001 but without any success. Some more efforts are stated to have been made to trace out the petitioner between 23.8.2001 and 30.10.2001. The proposal for detention of the petitioner was forwarded on 5.9.2001 which was considered by the Central Screening Committee on 18.10.2001 and the Committee recommended that further investigation should be carried out to fix the identity of the petitioner. Some discussions are stated to have taken place between the Sponsoring Authority and the Detaining Authority between 5.11.2001 to 15.1.2002. The petitioner was again summoned for 21.11.2001. A report was submitted about the efforts to trace Shri Adil on 26.12.2001. Again the petitioner was summoned for 11.1.2002 and the proposal for detention was approved by the Central Screening Committee on 23.1.2002 and the detention order was passed on 13.2.2002.
14. Taking the aforesaid chronological sequence on its face value, can it be said that the delay of about one year in making the impugned detention order has been satisfactorily explained, Our answer would be plainly in the negative. We say so because it appears to us that no substantial investigation was conducted by the authorities between 25.2.2001 uptil the making of the detention order. Rather it would appear that repeated summons were being issued for the appearance of the detenue as a matter of ritual between 7.3.2001 to 3.8.2001 and thereafter from 23.8.2001 to 30.10.2001. Meaning thereby losing more than seven months only on this count. The search of the residential premises of the petitioner was made on 8.8.2001 but nothing incriminating was recovered. No search of his business premises was conducted at any point of time. It is not easy to understand why the authorities chose to issue summons after summons to the petitioner. A prudent person would take a decision in the matter if one or two efforts in securing the presence of the petitioner has failed and this could not be made an endless exercise over a period of several months particularly in a case like the present one where the authorities had in mind the object of preventing the petitioner from acting in any manner prejudicial to the conservation of foreign exchange in future. We are, therefore, not prepared to accept the explanation of the respondent about the delay which has been occasioned due to the non-appearance of the petitioner before the Concerned Authorities despite repeated summons.
15. Even if the petitioner was absconding and was not available, the statements of all the above named four persons which implicated the petitioner were available to the authorities. Manifestly, it is these statements and no other material which has been relied upon by the Competent Authority in passing the detention order. Besides, we are at a loss to know as to what type of further investigation was carried out by the concerned authorities between 25.2.2001 to 13.2.2002, till the passing of the impugned order.
16. In our opinion there has been inordinate unexplained delay of more than eleven months in this case. Whether the said delay had the effect of snapping the nexus between the incident and the detention order is to be considered in the light of the fact that the solitary incident relied upon is of 24.2.2001. No incident thereafter has been reported. We are not oblivious of the object of preventive detention and the legal position that the action of Executive in detaining a person is based on its subjective satisfaction, and the court will not generally examine a detention order so as to scrutinize the same if the satisfaction so reached is justified or not but at the same time courts are duty bound to consider if the satisfaction so reached is without application of mind or the detention order passed after a long delay was really intended to achieve the object of preventing the detenue from indulging in prejudicial activities in future. In the case in hand it would appear to us that initially the Competent Authority had passed the detention order in respect of Imran and Abid but when their detention order was revoked pursuant to the recommendations of the Central COFEPOSA Advisory Board, the Sponsoring authority geared up its efforts to make a detention order in respect of the petitioner.
17. The question as to whether the nexus between the incident and order of detention was snapped in the case in hand has even agitated the mind of the detaining authority who dealt with the same in para 19 on the grounds of detention by observing as under:
" I have particularly given careful consideration to the nexus angle. Considering the nature and gravity of the offence, your role therein, your continuous avoidance of summons, and the consequential time that elapsed in the process of trying to make you join the investigation, as narrated above, the well-organized manner in which such prejudicial activities have been carried on and keeping in view the resultant chronological sequence of events, I am satisfied that your potentiality and propensity to indulge in such prejudicial activities have not diminished at all and hence the nexus between the date of incident and passing of this Detention Order as well as the object of your detention has been well maintained."
18. Having considered the facts and circumstances of the case in hand that the incident related to 24.2.2001 and the order came to be passed only on 13.2.2002 and the subjective satisfaction reached by the detaining authority was primarily based on the statements of the above named four persons namely Shri Abid, Imran, Rabi Ahmed and Alluddin which were available to the authorities as back as on 25.2.2001 and 26.2.2001 and no further incident involving the petitioner in a similar activity was reported, we are of the considered opinion that the nexus between the incident and order of detention had snapped in the case in hand and the impugned order is vitiated on that account.
19. Now, coming to the delay in serving the detention order, the order dated 13.2.2002 was served on the petitioner only on 10.4.2003. This is sought to be explained on the premises that the detention order could not be served upon the petitioner as he was absconding and, therefore, action under Section 7(i)(b) of the Act was taken on 21.5.2002 by directing the petitioner through Official Gazette to appear before the Commissioner of Police, Delhi, within a period of seven days from the publication of the order but he did not appear and thereafter action under Section 7(i)(a) of the Act was taken on 22.7.2002 by reporting the factum of absconding of the petitioner to the Learned Chief Metropolitan Magistrate and praying for initiating proceedings under Section 82, 83, 84 and 85 of the Code of Criminal Procedure 1973 but despite that the petitioner remained absconding and he surrendered only on 10.4.2003 before Ld. Addl. Chief Metropolitan Magistrate and detention order was served on him. It appears to us that even in the matter of effecting service of the detention order, the authorities have not shown due discharge and promptitude in serving the order by initiating various actions/proceedings as were expected of them under the provisions of the Act. The proceedings were resorted to more as a ritual then there being any serious and sincere effort on the part of the concerned authorities to execute the detention order. The order is vitiated on this score as well.
20. The petitioner has alleged delay in disposal of his representation dated 29.5.2003 sent through his wife Smt. Nuzahat. The same was disposed of and rejected and the decision communicated to the petitioner and his wife on 27.6.2003. We, therefore, do not see any unusual delay in the disposal of the representation.
21. In view of the aforegoing discussion, we hold that the impugned detention order dated 13.2.2002 is vitiated on account of undue and unexplained delay and also on account of undue delay in serving the same upon the petitioner. The detention order is liable to be quashed and is hereby quashed. Consequently the detention of the petitioner is illegal and he deserves to be released forthwith, if not required in connection with any other case or proceedings. We order accordingly.