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2015 (8) TMI 675 - BOMBAY HIGH COURT

2015 (8) TMI 675 - BOMBAY HIGH COURT - TMI - Detention orders Inordinate delay Petitioner challenges impugned order 2nd respondent directing detenu to be preventively detained with view to prevent him in future from smuggling of goods as well as engaging in transporting and concealing and keeping smuggled goods Held that:- detention proposal was forwarded to detaining authority on 26th June 2014 and that further generated documents were sent to detaining authority on 14th August 2014 No .....

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arrest till date of passing of detention order which was not satisfactorily explained Explanation rendered by respondents was not satisfactory and authorities cannot play with liberty of citizen in such casual manner As principle of law, unexplained and inordinate delay in passing of detention order would vitiate detention order Thus, order of detention quashed Detenu to be released Decided in favour of petitioner. - Criminal Writ Petition No. 1929 of 2015 - Dated:- 9-7-2015 - S. C. D .....

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ct"). By the impugned order the 2nd respondent has directed that one Shri Mohammed Aboobaker shall be preventively detained with a view to prevent him in future from smuggling of goods as well as engaging in transporting and concealing and keeping smuggled goods and direct his detention in Nasik Road Central Prison subject to the conditions as laid down in COFEPOSA Act. The petitioner claims to be a friend of the detenu and as such interested in the life and personal liberty of the detenu. .....

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delay. 3. Learned counsel for the petitioner has drawn our attention to the grounds of detention to point out that the detenu was intercepted on 11th April 2014 by the Officers of the Customs at CSI Airport, Mumbai when the detenu had arrived from Dubai. The detenu was holding a Indian Passport issued at Dubai which was valid up to 9th March 2024. The detenu had cleared himself through the green channel and was intercepted by Customs Sepoy at the exit gate. The detenu was dressed in a uniform an .....

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oms Act, 1962 and he was arrested on the same day. He was released on bail on 1st July 2014. His statement given to the customs authorities was retracted on 12th May 2014 and a rebuttal was recorded on 5th June 2014 was filed by the Department. 4. Learned counsel for the petitioner has drawn our attention to the affidavit in reply filed on behalf of the sponsoring authority of Dr.Kiran Kumar Karlapu Assistant Commissioner of Customs, C.S.I. Airport, Mumbai. Our attention is drawn to the averment .....

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ai on 12th May 2014 when the detenu retracted his statement before the Court. The Additional Chief Metropolitan Magistrate remanded the detenu to judicial custody up to 23rd May 2014. A Bail Application came to be moved by the detenu on 16th May 2014 and to which a reply came to be filed on 21st May 2014. The judicial custody of the detenu was extended up to 3rd June 2014 and again was extended up to 17th June 2014 and thereafter further extension was granted up to 27th June 2014 and again exten .....

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Screening Committee for consideration on 17th June 2014 on which day a meeting of the Committee was fixed. Minutes of the COFEPOSA screening committee were issued on 18th June 2014 wherein the screening committee approved the proposal as received by the COFEPOSA section on 20th June 2014. After getting approval of the screening committee 4 sets of the proposal, brief facts and index of relied upon documents were prepared and the same were submitted on 26th June 2014, to the Principal Secretary .....

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nation for the delay between the period 26th June 2014 to 4th August 2014. Our attention is thereafter drawn to the explanation for the further delay as sought to be furnished in the affidavit-in-reply filed on behalf of the Detaining authority. This affidavit is of Shri Sanjay Dagadu Khedekar Deputy Secretary, (Home Department.) To counter the case of the petitioner on the issue of delay in passing the impugned detention order, our attention is drawn on the following statements as made in parag .....

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Assistant on 24.07.2014. The Section Officer and the then Joint Secretary endorsed it on 24.07.2014. The Detaining Authority directed to get additional information on certain points on 2.07.2014.The additional information were called by letter dated 23.07.2014. In the meanwhile, the Sponsoring Authority forwarded further generated documents from page no.8586 on 12.08.2014. The Sponsoring Authority again forwarded further generated documents from Page no,.8797 and additional information by letter .....

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formation was called by letter dated 09.09.2014. On not receiving the information, reminder letters were issued on 20.09.2014 and 17.10.2014. The Sponsoring Authority by letter dated 07.10.2014 has forwarded incorrect information. Hence, third reminder letter seeking comments on letter dated 09.09.2014 was issued on 20.10.2014. In reply to this letter, the Sponsoring Authority forwarded information by letter dated 05.11.2014. This letter was received in the office of the Detaining Authority on 1 .....

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d the Detention order along with grounds of detention and the Relied Upon Documents on 15.12.2014 which is after a span of almost 5 ½ months from the date of receipt of proposal. Thus the contention of the petitioner that the Detention order was issued after an inordinate and inexcusable delay of 7 months is not true." On the above averments, learned counsel for the petitioner contends that the manner in which the detaining authority has dealt with the proposal clearly show the lax a .....

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ter dated 7th October 2014 had forwarded incorrect information and thus a third reminder seeking comments on letter dated 9th September 2014 was issued on 20th October 2014 to which the sponsoring authority forwarded its reply dated 5th November 2014 which was received by the detaining authority on 17th November 2014. Learned counsel for the petitioner submits that these dates clearly show that the detaining authority was not subjectively satisfied with the proposal earlier submitted on 26th Jun .....

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lly stated in its reply affidavit that all the information was despatched on 4th August 2014 and 18th August 2014. It is therefore, urged that the version of both these authorities are completely different and that this entirely supports the case of the petitioner that delay in issuing the detention order is not only unexplained but, grossly inordinate warranting interference of this Court to quash and set aside the same. 6. In support of her submissions, learned counsel for the petitioner has r .....

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2015." 7. On the other hand, learned APP supported the impugned order of detention. The learned APP submits that the contention on behalf of the petitioner that there is an unexplained delay is not correct. Learned APP in supporting the case of the detaining authority that there is no delay in passing the detention order has drawn our attention to the grounds as contained in paragraph 14 appearing at page 43A of the Paper Book which reads thus: "14. Whatever time was required for scan .....

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plyaffidavit filed on behalf of the detaining authority to contend that utmost care has been taken by the detaining authority and which clearly shows that there was no undue delay in passing an order of detention and that the live link or nexus between the prejudicial activity had not been snapped. Learned APP has also drawn our attention to certain observations as made in the detention order to contend that even prior to this order of detention in the year 2013, a show cause notice dated 29th A .....

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order, grounds of detention and the pleadings as filed on behalf of the parties. 11. On examining the above facts, as referred by us, we may observe that the learned counsel for the petitioner is justified in her submission that the impugned order of detention is vitiated by an unexplained and inordinate delay in making the detention order. The detenu was apprehended on 11th May 2014 on which day he came to be arrested and was sent to judicial custody by an order passed by the Additional Chief .....

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generated documents were sent to the detaining authority from 14th August 2014 to 18th August 2014. There is no explanation in the reply affidavit filed on behalf of the sponsoring authority as regards the delay from 26th June 2014 to 4th August 2014 as also the affidavit is completely silent on the effect of these so called further generated documents being forwarded to the detaining authority. The detaining authority however, gives a completely different version to say that the assistant in t .....

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ber 2014 and 17th October 2014. The detaining authority has stated that the sponsoring authority further by its letter dated 7th October 2014 forwarded incorrect information and therefore, a third reminder was issued on 20th October 2014 to which the sponsoring authority forwarded information by a letter dated 5th November 2014 as received by the detaining authority on 17th November 2014. The Assistant in the Office of the detaining authority submitted information on 17th November 2014 to the Se .....

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ful analysis of the statements as made in the reply affidavit of the sponsoring authority as also the detaining authority show that this can hardly be an explanation much less reasonable and acceptable to justify the delay in passing the detention order. The manner in which the proposal was being handled in the Office of the detaining authority as also reasons as stated in the affidavit in reply do not inspire any confidence, so as not to accept the case of the petitioner that there is an unexpl .....

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the detaining authority. Thereafter, there is no explanation between the period 30th June 2014 the date on which the proposal is received by the sponsoring authority till 24th July 2014 on which date the Assistant in the Department of the detaining authority prepared the scrutiny note. Thus, the delay on the part of the authorities finds no explanation and much less an explanation that can be reasonably believed that the authorities were serious to expediently act on the proposal, in fact they w .....

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ing the sponsoring authority in the month of September 2014 and waiting till the reply of the sponsoring authority up to 5th November 2014 clearly indicates the casualness and show the absence of any live link or nexus between the prejudicial activity and the need for detention. These facts demonstrate that the live link between the prejudicial activity sought to be overcome and the purpose of detention is snapped. The COFEPOSA being held to be a valid piece of legislation by the highest Court d .....

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. That is to subserve larger public interest. All concerned should note that their lackadaisical attitude harms public good and is counter productive if such orders of detention are set aside. 13. We are of the clear opinion that the explanation which has been rendered by the respondents is not a satisfactory explanation. The authorities cannot play with the liberty of a citizen in such a casual manner. The authorities also have no 'carte blanche' to be not diligent and casual in dealing .....

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ason being an order of detention is required to be proximate to the time so that there is a live link between the prejudicial activities and the detention. 14. It is a settled principle of law that if there in an undue and long delay between the prejudicial activities and the passing of a detention order then in that case, the Court would undertake a scrutiny as to whether the detaining authority has satisfactorily examined such a delay and afforded a reasonable and acceptable explanation for th .....

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RajendraKumar Natvarlal Shah (supra) the direct and proximate cause for the order of detention was importation of bulk of Indian made foreign liquor by the appellant on the night between December 29th/30th, 1986 who was acting as a cross border broker. On 1st April 1986 the driver and cleaner of the truck made a statement implicating the appellant as the main person. The appellant thereupon absconded and had moved for an anticipatory bail on 21st April 1987 but, no orders were passed as the poli .....

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nsportation of foreign liquor on 29th/30th December 1986. In this case what weighed with the Supreme Court was that when the appellant moved an anticipatory bail application, there was no proposal to arrest the appellant. When the appellant was arrested on 2nd February 1987 and on the same day he made a statement admitting the facts. In the meanwhile, the proposal to detain the appellant was placed before the District Magistrate. The District Magistrate on a careful consideration of the material .....

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genuine or that the grounds were stale or illusory or that there was no rational connection between the grounds and the impugned order of detention. Moreover, in paragraph 12 of the decision the Supreme Court has clarified that there is no mechanical test "by counting the months of interval was sound" and that it all depends on the nature of the acts relied on, grave and determined or less serious and corrigible on the length of the gap, short or long, on the reason for the delay in t .....

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eriod 30th June 2014 to 15th December 2014. 16. The next decision as relied upon by the learned APP is the decision of the Supreme Court in case of Licel Antony vs State of Kerala (supra.) The facts of this case in no manner are comparable to the case in hand. In this decision, the Supreme Court has reiterated the position in law that if there is no explanation offered by the authorities concerned with detention as to why the order of detention has been issued after a long time, then in that cas .....

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g in smuggling of red sanders in India and abroad. It is only thereafter that on 17th December 2012 the sponsoring authority made recommendations for the detention of the detenu and two others under section 3 of the COFEPOSA Act. In the counter affidavit, it was stated by the respondents that the record of the sponsoring authority and the scrutiny committee and other material consisted of over 1000 pages. The proposal of the sponsoring authority was received in the Office of the detaining author .....

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re the screening committee it cannot be said in the facts of the case there is an inordinate delay. The meeting of the scrutiny committee had taken place on 1st February 2013 and final call was to be taken by the detaining authority, which was expected to scrutinise,evaluate and analyze all the material in detail and after the said process, the detaining authority decided on 15th April 2013 to detain the detenu. In these facts, the time taken for coming to the decision was held to have been suff .....

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e prejudicial activity and the purpose of detention is snapped depends on the facts and circumstances of each case. Even in a case of undue or long delay between the prejudicial activity and the passing of detention order, if the same is satisfactorily explained and a tenable and reasonable explanation is offered, the order of detention is not vitiated. We must bear in mind that distinction exists between the delay in making of an order of detention under a law relating to preventive detention l .....

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