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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