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15. W.P (Crl) No.255 of 2020 arises out of an order of detention issued on 31-03-2017 having regard to certain incidents relating to smuggling of cigarettes while W.P (Crl) Nos.279 & 280 of 2020 are connected, and relate to orders of detention issued against two individuals who are brothers, on 18-07-2019 in relation to certain incidents of smuggling of gold. Since several of the legal issues raised are common to all three cases, we deem it appropriate to dispose these cases by this common judgment.

17. The basic facts & the submissions of the learned counsel for the parties in each of the Writ Petitions, the contentions raised, the precedents relied upon and our findings on each of the contentions are as follows:

W.P.(Crl.) 255 of 2020:

18. The petitioner is the mother of one Mohammed Mahasin who has been detained pursuant to Ext.P1 order of detention issued by the 2 nd respondent on 31-03-2017. Though the detention order was issued on 31-03- 2017, the aforesaid Mohammed Mahasin (hereinafter referred to as 'detenue') was arrested and detained under that order only on 12/13-07-2020. On 15-02- 2016 the detenue was apprehended at Bangalore with about 45 cartons of imported cigarettes having a market value of Rs.40,50,000/- and an international price/value of Rs.19,44,000/-. The statement recorded from the detenue at that time revealed that the said consignment of cigarettes had been imported through Cochin Port after concealing the same in a consignment of gypsum powder. The detenue was granted bail on 16-02-2016, which came to be cancelled on 19-02-2016 on account of non-compliance of bail conditions. On being further remanded, the detenue remained in custody till 01-06-2016, on which date he was again granted bail by the competent Court. About 6 months later, 06-09-2016 the officers of the Directorate of Revenue Intelligence intercepted a cargo of about 672 pieces of gypsum board, and on examination it was revealed that 6560 cartons of cigarettes having a market value of 2,20,41,600/-, and an international price/value of 94,46,400/-, was concealed amongst the imported items. The statement recorded from various persons associated with the aforesaid import of gypsum boards revealed the role of the detenue in the smuggling activity. It may not be out of place to mention here that the modus operandi, and the item smuggled (foreign cigarettes bearing the brand name 'Gudang-Garam') were identical in respect of the smuggling incident which was detected on 15-02-2016 at Bangalore and that which was detected on 06-09-2016 at Vallarpadam, Kochi.

201979 Crl. LJ 462

26. On a consideration of the rival submissions, the first question that we deem it apposite to consider is whether there was any delay in either issuing the order of detention or executing it? The sequence of events noticed above would reveal that the alleged second prejudicial activity was detected on 6-9-2016. In the month of February 2017, a proposal for preventive detention was initiated by the DRI. The proposal was received by the detaining authority on 7-2-2017, and it was considered by the screening committee on 22-2-2017. On 31-3-2017, the order of detention was issued. It is pertinent that insofar as the second prejudicial activity is concerned, the detenue was neither apprehended nor was there any material, other than the uncorroborated statements of those apprehended, to establish his direct involvement in the transaction. However, the statements recorded from those directly involved with that transaction, and the investigations carried out by the DRI revealed that the detenue was part of an organized smuggling racket involved in the smuggling of cigarettes into India. As already noticed, the modus operandi and the smuggled goods were almost identical to that in the earlier incident at Bangalore where the direct involvement of the detenue was established. We are also persuaded to accept the submission of the learned counsel for the DRI that, in some instances, a detailed investigation may be required before even a proposal is put up for the preventive detention of a person involved in smuggling activity. We therefore hold that there is no culpable delay between the alleged prejudicial activities and the date of issuance of the order of detention as would vitiate the order of detention. The question then arises as to whether there was a substantial delay between the date of the order of detention and the date of execution of the order that would suggest that the live link between the prejudicial activity and the purpose of detention had been snapped. The decisions referred to by the learned counsel for the petitioner no doubt holds that any unexplained and unjustified delay between the order of detention and its execution would in certain cases demonstrate that there was no live link between the alleged prejudicial activity and the requirement of keeping someone in preventive detention to prevent him from engaging in similar prejudicial activity. Our reading of the precedent suggests that this is an aspect that has to be determined on the facts of each case. In the facts of the present case, it is not disputed that for the entire period from the date of the detention order, until and up to the date of execution of the detention order, the detenue was abroad. It is clear from the affidavits filed by the respondents that efforts were taken to execute the order of detention and that steps as contemplated under Section 7(1)(b) of the COFEPOSA Act were initiated. Under such circumstances, we fail to see how there was any unexplained delay in the execution of the detention order in the instant case. Further, it is trite that an absconding detenue cannot cite a delay in the execution of the order to contend that the detention order must be quashed on that ground.

W.P.(Crl.) Nos. 279 & 280 of 2020:

35. The facts relevant for a disposal of both the above writ petitions are that, on 25-12-2018, one Muhammed Shan arrived at Kannur International airport from Abu Dhabi. It was found that he had smuggled gold by concealing the same inside some electrical appliances. It is stated that, together with another person named Bhakthavalsalan, one Abdussameem was waiting outside to receive the aforesaid Muhammed Shan and that Abdussameem had, on coming to know that the aforesaid Muhammed Shan had been intercepted by the officers of the Directorate of Revenue Intelligence [DRI], fled that spot. Muhammed Shan and Bhakthavalsalan were taken into custody on the same day. On the basis of further investigation and intelligence inputs, it was learnt that the aforesaid Abdussameem and his brother one Faisal were part of a gang of smugglers who were regularly engaged in the smuggling of gold into India. On the basis of a lookout notice, Abdussameem was arrested on 4-3-2019 while attempting to fly out of Bangalore Airport. A raid carried out at the residential premises of Abdussameem resulted in the recovery of certain documents/diaries that contained details of gold smuggled into India from 25- 12-2018. The diary/records were apparently maintained by Faisal, brother of Abdussameem. Both Abdussameem and Faisal were questioned on 4-3-2019/5- 3-2019 and their statements were recorded. Their arrest was recorded on the evening of 5-3-2019, and they were produced before the competent Magistrate at Thalassery, on 6-3-2019. On 23-3-2019, they were released on bail by the Additional Chief Judicial Magistrate (Economic Officers), Ernakulam. For the purposes of this case it would be relevant to note that in July, 2019, applications were filed by both Abdussameem and Faisal for modification of the bail conditions. On 18-7-2019, orders of detention under the COFEPOSA Act were issued against both Abdussameem and Faisal. It is stated that, though a counter affidavit was filed by the DRI officials on 23-7-2019, resisting the application filed for modification of the bail conditions, no mention was made in the said affidavit of the issuance of the orders of detention. Pursuant to the detention order dated 18-7-2019, Abdussameem was detained on 29-5-2020 and Faisal was detained on 1-7-2020.