TMI Blog2006 (7) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... lly in the adjudication proceedings, then there was no necessity of passing detention order and, this aspect of exoneration of the detenu in the adjudication proceedings should have been taken note of by the Detaining Authority. The facts on the basis of this submission is made are as under :- The Enforcement Directorate, Mumbai carried out certain search of the residential premises of one Pravin Popatlal Shah under section 37 of the FERA. On 16.1.1997 the residence of detenu was searched by the same office or by the same Directorate. Then Detention order dated 27.8.1998 was passed. Then a show cause notice was given to the detenu on 18.1.1999 for contravention of the provisions of section 9(1)(a) of the FERA. The detenu submitted his written explanation on 30.3.1999 and adjudication order came to be passed on 29.11.1999 by the Special Director of Enforcement. Copy of the said order is annexed at Exhibit D to the petition. 3. Mr. Kantawalla, the Counsel for the petitioner relied upon the judgment of the Supreme Court reported in 1975(1) S.C.C. 660 (Sadhu Roy v. State Of West Bengal.)1. In that case, detention order came to be passed on 2nd February 1972. The incident occurred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all, the jurisprudence of detention without trial is not the vanishing point of judicial review. The area and depth of the probe, of course, is conditioned by the particular law, its purpose and language. But our freedoms are not wholly free unless the judiciary have a minimal look at their executive deprivation, even though under exceptional situations. Then in para 8 the Supreme Court, formulated following question :- What is the impact of a discharge of the accused by the Criminal Court based on police reports on the validity of the detention order against the same person based on the same charge in the context of a contention of a non-application of the authoritys mind? Then the answer of the Supreme Court was:- The two jurisdictions are different, the jurisprudential principles diverge, the objects of enquiry and nature of mental search and satisfaction in the two processes vary. The argument that detention without trial, for long spells as in this instance, is undemocratic has its limitations in modern times when criminal individuals hold the community to ransom, although vigilant check of executive abuse becomes a paramount judicial necessity. We, as Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rderly development and maintenance of foreign exchange market in India. Preventive detention law is for effectively keeping out of circulation the detenu during a prescribed period by means of preventive detention (Re. Poonam Lata v. M.L. Wadhawan ors.)4, (1987)3 S.C.C. 347. The power of detention is clearly a preventive measure. It does not partake in any manner of the nature of punishment. It is taken by way of precaution to prevent mischief to the community. (Re. Khudiram Das v. The State of West Bengal Ors.)5, (1975)2 S.C.C. 81. The Constitution Bench while dealing with the constitutional validity of the Maintenance of Internal Security Act, 1971(MISA), In (Haradnan Saha v. The State of West Bengal Ors.)6, (1975)3 S.C.C. 198 held:- 32. The power of preventive detention is qualitatively different from punishment detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceedings. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etenu on 19.9.1998; 6.10.98; 30.10.98; 6.1.99; 25.1.99; 15.2.99; 12.3.99; 20.10.2000; 15.6.2002; 13.4.2003; 2.2.2004; 3.8.2005. Similarly the police had also made attempts to apprehend the detenu from 19th September, 1998 to 20th April, 1999. About 15 attempts were made continuously to apprehend the detenu. 6. An affidavit of Maruti G. Telang, Inspector of Police attached to PCB CID, Mumbai. has been filed by the respondents. He has stated therein that detention order was issued by the Government and sent to their office for execution on 19.9.96. It appears that there is a typing mistake in the affidavit and, the date should be 19.9.98. Then as per this affidavit the Police Inspector was immediately deputed at the residential address of the detenu. He was not found there. Attempts were made to trace him at the second address. There also the detenu was not found. Then different Police Stations were informed about the detenu being wanted for the execution of detention order and attempts were made on 14 occasion from 3.10.1998 to 20.4.1999 to execute the detention order. 7. The police officer has further stated in his affidavit that there after a proclamation was issued against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n burden shifted upon the detenu to satisfy and prove that it was not possible for him to comply with the requirement of attendance within the stipulated period. We accepted this contention so also the contention of Mr. Agrawal that non-appearance of the present detenu even after notification under section 7(1)(b) is a clear intention and proof that he was absconding. We had quoted a case of the Supreme Court reported in A.I.R. 1979 S.C. 541 [Bhawarlal Ganeshmalji v. The State of Tamil Nadu and another]8, wherein the Supreme Court has held that the delay is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the link not snapped but strengthened. 10. In the instant case, the proclamation under section 7(1)(b) of the COFEPOSA Act was issued on 29th October, 1998, but for six long years thereafter the detenu had not appeared of his own accord and had to be arrested, as stated above in the affidavit of the Police Inspector, referred to above. No doubt there is a delay in executing the detention order but the delay is on account of abscontion of the detenu and he cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the detention order was due to absconsion of the detenu for a considerable period in spite of the proclamation under section 7(1)(b) of the COFEPOSA Act. 13. The next judgment relied upon by the Counsel for the petitioner is of Gauhati High Court reported in 1985 Cri.L.J. 390 (Prabin Kumar Gogoi v. Deputy Secy. to the Govt. of Assam and ors.)11. In that case, detention order was passed on 18-7-83 and detenu was apprehended on 8-11-83 and there was no explanation of delay. This case also does not apply to the facts of the present case. So far as judgment of the Supreme Court in the case of Sadhu Roy is concerned, we have already considered that issue. 14. Mr. Kantawalla also relied upon another judgment of the Supreme Court reported in 1986(4) S.C.C. 416 (Binod Singh v. District Magistrate, Dhanbad, Bihar and ors.)12. The detenu had surrender after the detention order and, therefore, the Court held that the order of detention was justified when it was passed but at the time of the service of the order there was no proper consideration of the fact that the detenu was in custody or that there was any real danger of his release. This case is also not applicable to the facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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