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27. Out of the 11 matters heard together, detention orders had been passed by the State of Maharashtra, under delegated powers, in six matters. Dealing with each case on its own merit, Mr. B.H. Marlapalle, learned Senior Advocate, who appeared on behalf of the State of Maharashtra in all the matters, submitted that in Nitish Prakashchand Kothari's case [W.P.(Crl) No. 138 of 2011], the detention order had been passed under Section 3(1) of the COFEPOSA Act, 1974, but the same was not executed till the Petitioner himself approached this Court. It was submitted that action under Section 7(1)(b) of the COFEPOSA Act was taken by the Detaining Authority on 27.1.2010, and an arrest warrant was also issued against him. Mr. Marlapalle submitted that the Petitioner had relied on the revocation of the detention order passed against co-accused, Shri Tarun Popatlal Kothari, against whom an order of detention was also passed simultaneously on 3.12.2009, on the basis of a common proposal. However, the said detention order was revoked on the views expressed by the Advisory Board. Mr. Marlapalle urged that the proposed detenue was claiming parity with the order passed in Shri Tarun Popatlal Kothari's case and that he had not been absconding, which caused the detention order to become stale. Mr. Marlapale submitted that the Petitioner had also claimed that he had not indulged in any prejudicial activity during the said intervening period. Furthermore, his case could not be placed before the Advisory Board and, there was no occasion, therefore, for the Board to record its opinion in this case. Despite the above, Mr. Marlapalle submitted that since the Petitioner did not choose to challenge the detention order for about two years, his Petition deserves to be dismissed.

28. With regard to Suresh Kumar Ukchand Jain's case [S.L.P. (Crl.) No. 1938 of 2011 (now Appeal)], the detention order was passed on 21.8.2006, under Section 3(1) of the COFEPOSA Act, and the said order could not also be executed. Mr. Marlapalle submitted that although the detention order had been passed in 2006, it came to be challenged for the first time before the Bombay High Court in Criminal Writ Petition No. 3233 of 2010, and was dismissed on 31.1.2011. Mr. Marlapalle submitted that in this matter the main ground of challenge to the detention order was the ground of delay, which caused the order of detention to become stale. Responding to Mr. Rohatgi's submissions, Mr. Marlapalle contended that the delay in execution of the detention order was partly on account of the authorities themselves, since in the affidavit filed by the Detaining Authority before the High Court, it was indicated that the detention order had been passed on 21.8.2006, but was received in the Office of the Commissioner of Police on 6.4.2007, and was received, in turn, by Vashi Police Station on 20.4.2007. Mr. Marlapalle submitted that when an attempt was made to serve the detention order on the Appellant at his permanent address on 30.5.2007, the Appellant was reported not to be living at the address given and the occupant of the room, one Neena Modi, informed the police officer concerned that the detenue was not staying at the said address and that the Appellant had given five different addresses, but the address at Vashi, Navi Mumbai had not been furnished. However, Mr. Marlapalle accepted the fact that there is no explanation provided as to why the detention order could not be executed by taking recourse to Section 7 of the COFEPOSA Act, 1974, or why steps were not taken to declare the Appellant as an absconder from 9.7.2007, till he approached the High Court in Writ Petition No. 3233 of 2010.

30. In W.P. (Crl.) No. 220 of 2011, filed by Kamlesh N. Shah, the detention order had been passed under Section 3(1) of the COFEPOSA Act, 1974, on 16.9.2011, in regard to Bhavik Shah, the proposed detenue. The proposed detenue, who is the son of the Petitioner, was alleged to be a havala operator, who had allegedly evaded customs duty to the tune of Rs. 3 crores. Mr. Marlapalle submitted that despite efforts to serve the detention order, the same could not be served as the proposed detenue remained untraceable. Summons to the detenue were also issued by the Sponsoring Authority and served on the family members of the detenue. On his failure to respond to the summons, an order was passed under Section 7(1)(b) of the COFEPOSA Act, on 7.12.2011. Mr. Marlapalle also submitted that as far as the retractions made by the purported detenue are concerned, the same were made after he had been granted bail and copies thereof were placed before the Additional Chief Metropolitan Magistrate on 31.5.2011, without copies of the same being served on the prosecutor of the departmental representative. Mr. Marlapalle submitted that it is obvious that the Petitioner had knowledge of the detention order before he applied for bail and the retractions were made thereafter. Mr. Marlapalle submitted that the retractions, which were sent by post, were only for the purposes of challenging the detention order, when it was passed.

31. W.P.(Crl.) No. 249 of 2011 has been filed by Manju R. Agarwal, the wife of the proposed detenue, Shri Rajesh Agarwal, against whom the detention order was passed under Section 3(1) of the COFEPOSA Act, on 23.10.2010. The detention order could not be executed, till 12.12.2011, when the Writ Petition came to be filed before this Court. Mr. Marlapalle submitted that this is one of those cases in which the proposed detenue had approached the Settlement Commission under Section 127H of the Customs Act, 1962 and a settlement had been arrived at and the Settlement Commission had granted immunity from prosecution under the Customs Act to the Petitioner and the co-accused. It is on that basis that a representation was made on 11.11.2011 for revocation of the detention order dated 23.12.2010. Mr. Marlapalle submitted that it is not known as to whether the said representation was decided or not. No submission was made by Mr. Marlapalle on the issue as to whether the detention order was sustainable after the Settlement Commission had granted immunity from prosecution under the Customs Act, 1962.