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Saturday, August 11, 2012

a Detention Order was issued against him by the Principal Secretary (Appeals and Security) to the Government of Maharashtra, Home Department and Detaining Authority exercising powers under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short ‘COFEPOSA’) and on the same day, the detention order was received by the executing authority. (e) On 01.02.2008, i.e., after a delay of 14 ½ (fourteen and a half) months, the said Order was served upon the detenu. = the Detaining Authority must explain satisfactorily the inordinate delay in executing the detention order, otherwise the subjective satisfaction gets vitiated. In the case on hand, in the absence of any satisfactory explanation explaining the delay of 14 ½ months, we are of the opinion that the detention order must stand vitiated by reason of non-execution thereof within a reasonable time. in the absence of proper explanation for a period of 15 months in issuing the order of detention, the same has to be set aside. In the light of the above discussion and conclusion, we are unable to accept the reasoning of the High Court. Consequently, we set aside the judgment dated 14.08.2008 in Criminal Writ Petition No. 455 of 2008 and quash the detention order dated 14.11.2006. Inasmuch as the detention period has already expired, no further direction is required for his release. The appeal is allowed.


                                     REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION


                     1 CRIMINAL APPEAL NO. 1187 OF 2012

               (Arising out of S.L.P. (Crl.) No. 6985 of 2008)



Saeed Zakir Hussain Malik                                  ....
Appellant(s)

                 Versus

State of Maharashtra & Ors.                          .... Respondent(s)

                                      2





                               J U D G M E N T


P.Sathasivam,J.

1)       Leave granted.

2)       This appeal is directed against the final judgment and order  dated
14.08.2008 passed by the High Court of Bombay in Criminal Writ Petition  No.
455 of 2008 whereby the High Court  dismissed  the  petition  filed  by  the
appellant herein.



3)       Brief facts:
(a)      The appellant herein is the brother  of  the  detenu-Shahroz  Zakir
Hussain Malik.  According to  the  appellant,  the  Directorate  of  Revenue
Intelligence  (DRI),  Mumbai  Zonal  Unit,  on  the  basis  of  information,
initiated investigation into the claim of fraudulent exports allegedly  made
from Nhava Sheva Port under the Drawback Scheme of the Customs Act, 1962  by
a syndicate of persons in the name of fictitious firms.
(b)      During the course of investigation, several fictitious  firms  were
identified which had availed the drawback  allegedly  running  into  several
crores.   The  DRI,  Mumbai  arrested   about   10   persons   and   several
records/incriminating documents including copies of Shipping  bills,  Import
Export Codes (IEC) etc., were seized.
(c)      The role of the appellant’s brother-the detenu also came  to  light
as one of the racketeers who was  involved  in  using  fictitious  IECs  and
forged documents for fraudulent exports under the said  Scheme  and  he  was
arrested  on  21.10.2005.   All  the  abovesaid  persons  were  subsequently
released on bail and the detenu was also released  on  bail  on  11.11.2005.

(d)      While the detenu was on bail, on 14.11.2006, a Detention Order  was
issued against him by the Principal Secretary (Appeals and Security) to  the
Government  of  Maharashtra,  Home  Department   and   Detaining   Authority
exercising  powers  under  Section  3(1)  of  the  Conservation  of  Foreign
Exchange  and  Prevention  of  Smuggling  Activities  Act,  1974  (in  short
‘COFEPOSA’) and on the same day, the detention order  was  received  by  the
executing authority.
(e)      On 01.02.2008, i.e., after a delay of 14 ½ (fourteen  and  a  half)
months, the  said  Order  was  served  upon  the  detenu.   Challenging  the
detention order, the appellant herein-brother of the detenu  filed  Criminal
Writ Petition being No. 455 of 2008 before the High Court.  The High  Court,
by impugned judgment dated 14.08.2008, dismissed the said petition.
(f)      Aggrieved by the  said  judgment,  the  appellant  has  filed  this
appeal by way of special leave before this Court.

4)       Heard Mr. K.K. Mani, learned counsel  for  the  appellant  and  Ms.
Asha Gopalan Nair, learned counsel for the respondent-State.
Contentions of the appellant:
5)       a)      Though the detention order was  passed  on  14.11.2006  and
the detenu was available on  the  address  known  to  the  authorities,  the
authorities have chosen to execute the order only on  01.02.2008.   Pursuant
to the same, there was an inordinate and unreasonable delay of 14  ½  months
in executing the detention order which vitiates the detention itself;
b)       Though the DRI came to  know  of  the  incident  by  recording  the
statement of one Vijay Mehta on 03.08.2005 and the detenu was also  arrested
on 21.10.2005, the detention order was issued only on  14.11.2006  after  an
inordinate and unreasonable delay of 15 months which vitiates the  detention
itself.
Contentions of the respondent-State:
6)       a)      Since the detenu  was  absconding,  in  spite  of  repeated
attempts by the Executing Authority for executing the detention  order,  all
the efforts were in vain as the detenu had rendered  himself  non-traceable.

b)       The delay has been properly explained by filing  an  affidavit  not
only by the Detaining Authority but also by the Executing Authority.
c)       After realizing that the detenu has absconded an  action  was  also
taken under Section  7(1)(b)  and  additionally  under  Section  7(1)(a)  of
COFEPOSA that the detenu did not comply with the same.  It  is  pointed  out
that once appropriate action has been  taken  under  Section  7(1)(a)(b)  of
COFEPOSA, the burden shifts on the detenu.
7)       We have considered the rival contentions, perused  the  grounds  of
detention and all other connected materials.
Discussion:
8)       In order  to  consider  the  first  contention  raised  by  learned
counsel for the appellant, it is  useful  to  refer  Article  22(5)  of  the
Constitution of India which reads as under:-
      “(5) When any person is detained in pursuance of an order  made  under
      any law providing for preventive detention, the authority  making  the
      order shall, as soon as may be, communicate to such person the grounds
      on which the order has been made and shall  afford  him  the  earliest
      opportunity of making a representation against the order.”

The above provision mandates that in the case of  preventive  detention,  it
is incumbent on the authority  making  such  order  to  communicate  to  the
person concerned/detenu the grounds on which the order has  been  made.   It
is also clear that after proper  communication  without  delay,  the  detenu
shall be afforded the  earliest  opportunity  for  making  a  representation
against the said order. In the light of the above mandate, let  us  consider
the first submission with reference to  the  various  earlier  decisions  of
this Court.
9)       In P.M. Hari Kumar vs. Union of India  and  Others,  (1995)  5  SCC
691, which is almost similar to the case on hand, the only reason for  delay
in execution of the detention order was that the detenu was  absconding  and
they could not serve the detention order on him because of  his  own  fault.
Rejecting the said contention, this Court held:
      “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, at least, 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 sent to  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. Similarly inexplicable  is  the
      respondents' failure to insist  upon  the  personal  presence  of  the
      petitioner in the criminal case (CC  No.  2  of  1993)  filed  at  the
      instance of the Customs Authorities, more so when the carriage of  its
      proceeding was with them and the order  of  detention  was  passed  at
      their instance. On the contrary, he  was  allowed  to  remain  absent,
      which necessarily raises the inference that  the  Customs  Authorities
      did not oppose his prayer, much less bring to the notice of the  Court
      about the order of detention passed against the detenu.”


After finding that the  respondent-authorities  did  not  make  sincere  and
earnest efforts and take urgent and effective steps which were available  to
them to serve the order of detention on the petitioner therein,  this  Court
quashed the order of detention holding that the  unusual  delay  in  serving
the order of detention has not been properly and satisfactorily explained.
10)      In SMF Sultan Abdul Kader vs. Jt. Secy.,  to  Govt.  of  India  and
Others, (1998) 8 SCC 343, the order of detention was  passed  on  14.03.1996
but the detenu was detained only  on  07.08.1997.   After  finding  that  no
serious efforts were made by the police authorities to apprehend the  detenu
and the Joint Secretary himself had not made any efforts to  find  out  from
the police authorities as to  why  they  were  not  able  to  apprehend  the
detenu, quashed the order of detention.

11)      In A. Mohammed Farook vs. Jt. Secy. to G.O.I and Others,  (2000)  2
SCC 360, the  only  contention  before  the  Court  was  that  of  delay  in
executing the order of detention.  In that case,  the  detention  order  was
passed on  25.02.1999  but  the  authorities  have  chosen  to  execute  the
detention order only on 06.04.1999  after  an  inordinate  and  unreasonable
delay of nearly 40 days.  In the absence of proper  and  acceptable  reasons
for the delay of 40 days  in  executing  the  detention  order,  this  Court
concluded that the subjective satisfaction of  the  Detaining  Authority  in
issuing the detention order dated  25.02.1999  gets  vitiated  and  on  this
ground quashed the same.
12)      It is clear that in the light of sub-section (5) of Article 22,  it
is incumbent on the Detaining Authority as well as the  Executing  Authority
to serve the detention order at the earliest point of  time.   If  there  is
any delay, it  is  the  duty  of  the  said  authorities  to  afford  proper
explanation.
13)      Now, let us consider the delay in the case on hand in  serving  the
order of detention.  Though the detention order was  passed  on  14.11.2006,
the same was served only on 01.02.2008.   Ms.  Asha  Gopalan  Nair,  learned
counsel appearing for the State contended that since the detenu himself  was
absconding, in spite of repeated attempts made by the  Executing  Authority,
the same were  not  materialized.   She  also  brought  to  our  notice  the
affidavits filed by the concerned authorities explaining  the  efforts  made
in serving the order of detention.  By giving details about  their  efforts,
she pointed out that the detenu absconded after release from the  prison  on
11.11.2005 and actions were also taken under Sections 7(1)(b) and  7  (1)(a)
of COFEPOSA  and that the detenu did  not  comply  with  the  same.   It  is
pointed out from the other side that during  this  period,  the  bail  order
dated 11.11.2005 was not cancelled nor an attempt was made  to  forfeit  the
amount which was deposited by the detenu.  When this Court posed a  specific
question  to  the  learned  counsel  for  the   State   about   the   delay,
particularly, when the detenu was released on  bail  on  11.11.2005  and  no
proper steps have been taken for cancellation of the bail and forfeiture  of
the amount which was deposited by the detenu, it is not disputed  that  such
recourse has not been taken.  In such circumstances, the reasons  stated  in
the affidavit filed by the Detaining  and  Executing  Authorities  that,  on
several occasions, their officers visited the  residential  address  of  the
detenu and he could not be traced, are all unacceptable.  We hold  that  the
respondent-authorities did not make  any  sincere  and  earnest  efforts  in
taking urgent effective steps which were available  to  them,  particularly,
when the detenu was on bail by orders of the court.  We are  satisfied  that
the unusual delay in serving the order of detention has  not  been  properly
and satisfactorily explained.  In  view  of  the  same,  we  hold  that  the
authorities have not executed  the  detention  order  promptly  as  required
under Article 22(5) of the Constitution.
14)      Now, coming to the second contention, namely, delay in passing  the
Detention Order, it is the claim of the appellant that there was a delay  of
15 months in passing the order of detention.  It is pointed out that  though
the DRI came to know of the incident  by  recording  the  statement  of  one
Vijay Mehta on 03.08.2005 and the detenu was  also  arrested  on  21.10.2005
and all the documents had also come into existence including  the  documents
annexed with the grounds of detention, but still the authorities passed  the
order of detention only on 14.11.2006 after an unreasonable  and  inordinate
delay of 15 months. It is also  highlighted  that  during  this  period  the
detenu had not come into any adverse notice of the authorities and was  also
not  alleged  to  have  indulged  in   any   similar   illegal   activities.
Considering this, it is contended  that  the  alleged  incident  has  become
stale and it is too remote in point of time.  It is further  submitted  that
there is no  nexus  or  proximity  between  the  alleged  incident  and  the
detention order.  Finally, it is pointed out that the alleged  incident  has
become irrelevant due to long lapse of  time.   Hence,  the  inordinate  and
unreasonable delay  in  passing  the  detention  order  against  the  detenu
vitiates the detention itself.  These aspects have been highlighted by  this
Court in several decisions.
15)      In Lakshman Khatik vs. The State of West Bengal, (1974) 4 SCC 1,  a
three-Judge Bench of this  Court,  while  considering  the  detention  order
under the Maintenance of Internal Security  Act,  1971  has  concluded  that
prompt action in such matters should be taken as soon as the  incident  like
those which are referred to in the grounds have taken place.   In  the  said
decision, it was pointed out  that  all  the  three  grounds  on  which  the
District Magistrate purports to have reached the required  satisfaction  are
based on incidents which took place in rapid  succession  in  the  month  of
August, 1971.  The first incident of unloading five bags of rice took  place
in the afternoon of August 3, 1971.   The  second  incident  took  place  on
August 5, 1971 also in the afternoon practically at the same  place  as  the
first incident.  This time also  some  rice  was  removed  from  the  trucks
carrying rice.  The third incident took place in  the  afternoon  of  August
20, 1971 also at the same place.  That also related to the removal  of  some
rice from loaded trucks.  In this factual  scenario,  this  Court  concluded
that the District Magistrate could not have been  possibly  satisfied  about
the need for detention on March 22,  1972  having  regard  to  the  detenu’s
conduct some  seven  months  earlier.   The  following  conclusion  is  very
relevant.

      “5…..Indeed mere delay in passing a detention order is not conclusive,
      but we have to see the type of grounds given and consider whether such
      grounds could really weigh with an officer  some  7  months  later  in
      coming  to  the  conclusion  that  it  was  necessary  to  detain  the
      petitioner to prevent him from acting in a manner preiudicial  to  the
      maintenance of essential supplies of foodgrains. It is  not  explained
      why there was such a long delay in passing  the  order.  The  District
      Magistrate appears almost to have passed an order  of  conviction  and
      sentence  for  offences  committed  about  7   months   earlier.   The
      authorities concerned must have due regard to the  object  with  which
      the order is passed, and if the object was to  prevent  disruption  of
      supplies of foodgrains one should think that  prompt  action  in  such
      matters should be taken as soon as  incidents  like  those  which  are
      referred to in the grounds have taken place. In our opinion, the order
      of detention is invalid.”


16)      In T.V. Abdul Rahman vs. State of Kerala and Others, (1989)  4  SCC
741, in similar circumstance, this Court held:


      “10…...The question whether the prejudicial  activities  of  a  person
      necessitating to pass an order of detention is proximate to  the  time
      when the order is  made  or  the  live-link  between  the  prejudicial
      activities and the purpose of detention  is  snapped  depends  on  the
      facts and circumstances of each case. No hard and  fast  rule  can  be
      precisely formulated that would be applicable under all  circumstances
      and no exhaustive guidelines can be  laid  down  in  that  behalf.  It
      follows that the test of proximity is not a rigid or  mechanical  test
      by merely counting number of months between the offending acts and the
      order of detention. However,  when  there  is  undue  and  long  delay
      between the prejudicial activities and the passing of detention order,
      the court has  to  scrutinise  whether  the  detaining  authority  has
      satisfactorily examined such  a  delay  and  afforded  a  tenable  and
      reasonable explanation as to why such a  delay  has  occasioned,  when
      called upon to answer and further the court has to investigate whether
      the causal connection has been broken in  the  circumstances  of  each
      case.
                       11.  Similarly  when  there  is  unsatisfactory   and
      unexplained delay between the date of order of detention and the  date
      of securing the arrest  of  the  detenu,  such  a  delay  would  throw
      considerable doubt on the genuineness of the  subjective  satisfaction
      of the detaining authority leading to a legitimate inference that  the
      detaining authority was not really and genuinely satisfied as  regards
      the necessity for detaining the detenu with a view to  preventing  him
      from acting in a prejudicial manner.”


After holding so, this Court quashed the order of detention.
17)      In Pradeep Nilkanth Paturkar vs. S.  Ramamurthi  and  Others,  1993
Supp (2) SCC 61, the effect of delay in  passing  the  detention  order  has
been considered in detail.  After analyzing various earlier decisions,  this
Court held that delay ipso facto in passing an order of detention  after  an
incident is not fatal to the detention of a person, in certain  cases  delay
may be unavoidable and reasonable.  However, what  is  required  by  law  is
that the delay must be satisfactorily explained by the Detaining  Authority.

18)      In Manju Ramesh Nahar vs. Union of India and Others, (1999)  4  SCC
116, there was a delay of more than one year in arresting the detenu.   This
Court,  while  rejecting  the  vague  explanation  that   the   detenu   was
absconding, found that the detention order is vitiated.
19)      In Adishwar Jain vs. Union of India  and  Another,  (2006)  11  SCC
339, this Court held that delay must be  sufficiently  explained.   In  that
case, lapse of four months between  proposal  for  detention  and  order  of
detention  was  not  explained  properly,  hence,  this  Court  quashed  the
detention order.
20)      It is clear that if the delay is sufficiently explained,  the  same
would not be a ground for quashing an order  of  detention  under  COFEPOSA.
However, delay at both stages has to be explained and the Court is  required
to consider the question having regard to the overall picture.  In  Adishwar
Jain’s case (supra), since a major part of delay remains  unexplained,  this
Court quashed the detention order.
21)      In Rajinder Arora vs. Union of India and Others, (2006) 4 SCC  796,
this Court considered the effect of passing the detention order after  about
ten months of the alleged illegal act.  Basing reliance on the  decision  in
T.A. Abdul Rahman (supra), the detention order was quashed on the ground  of
delay in passing the same.
Summary:
22)      It is clear that if there is unreasonable  delay  in  execution  of
the detention order, the same vitiates the order of detention.  In the  case
on hand,  though  the  detenu  was  released  on  bail  on  11.11.2005,  the
detention order was passed only on 14.11.2006, actually, if the  detenu  was
absconding and was not available for the service  of  the  detention  order,
the authorities could have taken steps for cancellation of the bail and  for
forfeiture of the amount deposited.  Admittedly, no such recourse  has  been
taken.  If the respondents were really sincere  and  anxious  to  serve  the
order of detention without any delay, it was expected of  them  to  approach
the court concerned which granted bail for  its  cancellation,  by  pointing
out that the detenu had violated the conditions imposed and thereby  enforce
his appearance or production as the case may be.  Admittedly, no such  steps
were taken instead it was explained  that  several  attempts  were  made  to
serve copy by visiting his house on many occasions.
23)      Mr. K.K. Mani, learned counsel for the  appellant  has  brought  to
our notice a detailed representation in the form of a petition sent  to  the
Government of  Maharashtra,  Home  Department,  Detaining  Authority,  Fifth
Floor, Mantralaya, Mumbai on 07.08.2007.  It is also seen that the same  has
been acknowledged by them which is clear from the endorsement therein.   The
said representation contains the address of the detenu and his  whereabouts.
 There is no explanation about any attempt made to verify the  said  address
at least after 07.08.2007.  We are satisfied that the reasons stated in  the
affidavit of the respondents  explaining  the  delay  are  unacceptable  and
unsatisfactory.
24)      In this regard, we reiterate  that  the  Detaining  Authority  must
explain satisfactorily the  inordinate  delay  in  executing  the  detention
order, otherwise the subjective satisfaction gets vitiated.  In the case  on
hand, in the absence of any satisfactory explanation  explaining  the  delay
of 14 ½ months, we are of the opinion that the detention  order  must  stand
vitiated by reason of non-execution thereof within a reasonable time.
25)      We are also satisfied that no serious  efforts  were  made  by  the
Police Authorities to apprehend the detenu.  Hence  the  unreasonable  delay
in executing the order creates a serious doubt regarding the genuineness  of
the Detention Authority as regards the immediate necessity of detaining  the
detenu in order to prevent him from carrying  on  the  prejudicial  activity
referred to in the  grounds  of  detention.   We  hold  that  the  order  of
detention passed by the Detaining Authority was not in  lawful  exercise  of
power vested in it.
26)      As regards  the  second  contention,  as  rightly  pointed  out  by
learned counsel for the  appellant,  the  delay  in  passing  the  detention
order, namely, after 15 months vitiates the detention itself.  The  question
whether the prejudicial activities of a  person  necessitating  to  pass  an
order of detention is proximate to the time when the order is  made  or  the
live-link between the prejudicial activities and the  purpose  of  detention
is snapped depends on the facts and  circumstances  of  each  case.   Though
there is no hard and fast rule and no  exhaustive  guidelines  can  be  laid
down in that behalf, however, when there is undue  and  long  delay  between
the prejudicial activities  and  the  passing  of  detention  order,  it  is
incumbent on the part of the  court  to  scrutinize  whether  the  Detaining
Authority  has  satisfactorily  examined  such  a  delay  and   afforded   a
reasonable  and  acceptable  explanation  as  to  why  such  a   delay   has
occasioned.

27)      It is also the duty of the  court  to  investigate  whether  casual
connection has been broken  in  the  circumstance  of  each  case.   We  are
satisfied that in the absence of proper  explanation  for  a  period  of  15
months in issuing the order of detention, the same  has  to  be  set  aside.
Since, we are in  agreement  with  the  contentions  relating  to  delay  in
passing the Detention Order and serving the same  on  detenu,  there  is  no
need to go into the factual details.

28)      Though Ms. Asha Gopalan Nair has raised an objection  stating  that
the second contention, namely, delay in  passing  the  order  has  not  been
raised before the High Court,  since  it  goes  against  the  constitutional
mandate as provided in Article 22(5),  we  permitted  the  counsel  for  the
appellant and also discussed the same.

29)      In the light of the above discussion and conclusion, we are  unable
to accept the reasoning of the High Court.     Consequently,  we  set  aside
the judgment dated 14.08.2008 in Criminal Writ Petition No. 455 of 2008  and
quash the detention order  dated  14.11.2006.   Inasmuch  as  the  detention
period has already  expired,  no  further  direction  is  required  for  his
release.  The appeal is allowed.

































































                             ...…………….…………………………J.


                                 (P. SATHASIVAM)














                             ..…....…………………………………J.


                              (RANJAN GOGOI)


NEW DELHI;
AUGUST 09, 2012.







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