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2015 (8) TMI 697 - BOMBAY HIGH COURT

2015 (8) TMI 697 - BOMBAY HIGH COURT - TMI - Delay in issuance the detention orders Validity of proceedings under COFEPOSA Act Petitioner was detained on grounds of possessing 12 gold bars without declaration All goods were confiscated and detenu was taken into arrest It was alleged by petitioner that inordinate delay of seven months in issuing detention order was not satisfactorily explained by respondent Held that:- After considering facts, it was evident that delay in issuing detent .....

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. 11th May, 2014 and detention order dated 16th December, 2014 which came to be executed on 8th January, 2015 was snapped For said reasons detention order was vitiated on point of delay and therefore, deserves to be quashed and set aside Decided in favour of Petitioner. - WRIT PETITION NO.231 OF 2015 - Dated:- 19-3-2015 - B.R. GAVAI & A.S. GADKARI, JJ. Mrs. Aisha Z. Ansari for the Appellant. JUDGMENT (PER A.S. GADKARI, J.) : The present Petition under Article 226 of the Constitution of I .....

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ervation Of Foreign Exchange and Prevention Of Smuggling Activities Act, 1974 (for brevity 'the COFEPOSA Act'). By the impugned order it has been further directed that the detenu shall be detained in the Nashik Road Central Prison. 2. Heard Mrs.Ansari, learned counsel appearing for the Petitioner and Mr. Yagnik, learned APP appearing for the Respondents. We have also minutely perused the entire record produced by the learned APP including the various notings made by the concerned authori .....

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uestion was dated 11 th May, 2014, the detention order was issued on 16 th December, 2014 and the detention order was executed on the detenu on 8 th January, 2015 at Kannur District, State of Kerala. She further submitted that the said point of delay in issuing the detention order goes to the root of the matter and which according to her is fatal, vitiates the impugned order dated 16 th December 2014, in pursuance of which the detenu has been detained by the Respondents. The learned counsel appe .....

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h December, 2014 can briefly be summarised as under. It is stated that based on intelligence, the detenu was intercepted by the Air Intelligence Officers of Customs, C.S.I. Airport, Mumbai on 11 th May, 2014 at 08.15 hours. The detenu was holding an Indian Passport and on his arrival from Dubai he had cleared himself through the green channel of Chhatrapati Shivaji International Airport, Terminal-2, Sahar, Mumbai. The detenu was coming out by talking over phone and carrying only a shoulder bag. .....

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procedure, the said hand bag was opened in the presence of the detenu, independent panch witnesses and AIU officers. In the said hand bag 7 packets wrapped with cream coloured cellophane tape were found. On removing the wrapped tape, 6 packets were found to contain 12 gold bars each weighing 1 kg. i.e. 2 gold bars in each packet, totally weighing 12000 grams and one packet contained 2 gold bars of 10 tolas each totally weighing 233.2 grams and collectively weighing 12233.2 grams valued at ₹ .....

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before confiscation of goods was issued on 5 th November, 2014 and after the detenu answered to the said show cause notice, the impugned detention order dated 16 th December, 2014 came to be issued which was executed on the detenue on 8th January, 2015 as stated herein above. 5. After service of notice Dr. Kiran Kumar Karlapu, Assistant Commissioner of Customs, COFEPOSA Cell (AIU), CSI Airport, Mumbai on behalf of the Respondent No.3, the Sponsoring Authority has filed a detailed affidavit date .....

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that there is an inordinate delay of about seven months in issuing the detention order. She further submitted that the Respondent Nos.2 and 3 have failed to satisfactorily explain the delay in issuing the detention order even in the affidavits filed by them. She, therefore, submitted that the impugned detention order dated 16 th December, 2014 stands vitiated. She has taken a specific ground in the memo of Petition as ground No.5(i) to that effect. In the said ground, it has been contended that .....

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. It has been further contended that because of the inordinate delay on the part of the Respondent authorities, the live link having been snapped and the credible chain has been broken and on that ground also the detention order stands vitiated. In support of her contention, she relied upon a decision of the Supreme Court in the case of T.A. Abdul Rahman v. State of Kerala and others reported in AIR 1990 SC 225 and in particular, paragraph Nos.11 and 12 thereof, which read as under : "11. T .....

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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 calle .....

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uinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner." 7. The second decision relied upon by the learned counsel appearing for the Petitioner is a decision of the Supreme Court in the case of Adishwar Jain v. Union of India and another reported in (2006) 11 SCC 339 and in particular, relied upon paragraph Nos.8, 11, 12 and 15 thereof. In paragraph Nos.8, 11, 12 and 15 the Supreme Court held thus : "8. Indis .....

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Limited and M/s. Siri Amar Exports, only in respect of the pending application, if any, filed by these parties up to the date of action i.e. 11.10.2003 as the past exports were under scrutiny being doubtful as per the intelligence received in this office. This office never intended to stop the export incentives occurring to the parties, after the date of action i.e. 11.10.2003. In the civil (sic), your office letter No. B.L.-2/Misc. Am-2003/Ldh dated 17.05.2004 is being referred to, which is no .....

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FEPOSA, but as in this case a major part of delay remains unexplained." "15. Delay, as is well known, at both stages has to be explained. The court is required to consider the question having regard to the overall picture. We may notice that in Sk. Serajul v. State o W.B.1 this Court opined : (SCC p. 80, para ) "There was thus delay at both stages and this delay, unless satisfactorily explained, would throw considerable doubt on the genuineness of the subjective satisfaction of th .....

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ner wold not have been allowed to remain at large for such a long period of time to carry on his nefarious activities." 1 (1975) 2 SCC 78 The learned counsel appearing for the Petitioner, therefore, urged before us that taking into consideration the delay occurred in the present case, while issuing the detention order, the same is fatal and vitiates the issuance of detention order. She, therefore, submitted that the Petition may be allowed and the detention order be quashed and set aside. 8 .....

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the same has been properly and satisfactorily explained in the said replies. It is to be noted here that in response to the Petition Dr. Kiran Kumar Karlapu, Assistant Commissioner of Customs, COFEPOSA Cell (AIU), CSI Airport, Mumbai has filed an affidavit in reply dated 3rd March, 2015 thereby explaining the alleged delay at the behest of the Respondent No.3. The said authority in paragraph 4 of its affidavit has stated as under : "4. With reference to paragraphs 5(i) of the Petition, I sa .....

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t on the same date while making application for bail. The Hon'ble CMM, Court remanded him to Judicial Custody upto 23.05.2014, further extended upto 03.06.2014, again extended upto 17.06.2014, further extended upto 27.06.2014 and again extended till 01.07.2014. Meanwhile, Department filed rebuttal to his retraction on 21.05.2014. Bail was granted to the detenue by the Hon'ble CMM Court on 01.07.2014. After completion of the preliminary investigation, file was forwarded to COFEPOSA cell f .....

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POSA Screening Committee meeting was issued on 18.06.2014 wherein the Screening Committee approved our proposal and was received in Cofeposa Section on 20.06.2014. After getting approval of the Screening Committee, we have submitted 4 sets of the proposal, brief facts and indexed relied upon documents in the office of the Detaining Authority i.e. Principal Secretary (appeals & security), Home 26.06.2014." ig Department, Govt. of Maharashtra on It is thus, to be noted here that the Respo .....

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e of the detaining authority and the detention order was issued on 16 th December, 2014 by the detaining authority after carefully perusing all the documents including the further generated documents and after arriving at the conclusion that the detention order was necessary in view of the possibility of the detenu to involve himself in the smuggling activities and in view of his frequent visits abroad and strong possibility of being habitual offender. It has been stated in said paragraph No.5 t .....

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f the Petition, in paragraph No.6 of the said affidavit dated 16th March, 2015 has stated as under : "I say that the seizure was affected on 11.05.2014. The proposal for detention of the detenu was placed before the Screening Committee on 17.06.2014. The proposal along with the relied upon documents running into page no.1 to 97 forwarded vide letter dated 26.06.2014 were received by the Detaining Authority on 30.06.2014. Scrutiny Note was submitted by concerned Assistant on 24.07.2014. The .....

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ters were sent to the Sponsoring Authority on 20.09.2014 and 17.10.2014. The Sponsoring Authority vide letter dated 07.10.2014 informed that they had already communicated the information to the office of the Detaining Authority vide their letters dated 30.07.2014 and 18.08.2014. But since this information was not the information called by the office of the Detaining Authority, hence the Sponsoring Authority was once again informed by letter dated 20.10.2014 to send the information asked vide let .....

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nds to order the preventive detention in this case. Accordingly, the Detaining Authority prepared and dictated the Detention Order, Grounds of Detention and the Annexures till 12.12.2014 and the same were issued on 16.12.2014. In fact, the time which has been spent by the Detaining Authority shows the sincere efforts on its part to satisfy itself as to the need of detaining the detenu and after his subjective satisfaction the Detention Order was issued. Hence the same cannot be casted upon the D .....

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s that a distinction must be drawn between the delay in making of an order of detention under a law relating to preventive detention like the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 and the delay in complying with the procedural safeguards of Art. 22(5) of the Constitution. It has been laid down by this Court in a series of decisions that the rule as to unexplained delay in taking action is not inflexible. Quite obviously, in cases of mere delay in mak .....

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f not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. Taking of such a view would not be warranted unless the Court finds that the grounds are 'stale' or illusory or that there is no real nexus between the grounds and the impugned order of detention. The decisions to the contrary by the Delhi High Court in An .....

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though there was no explanation for the delay between February 2 and May 28, 1987 it could not give rise to a legitimate inference that the subjective satisfaction arrived at by the District Magistrate was not 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. There is a plethora of decisions of this Court as to the effect of unexplained delay in taking actions. These are admirably dealt with in Dur .....

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rict Magistrate could have been well satisfied, even after the lapse of five months that it was necessary to pass the detention order to prevent him from acting in a manner prejudicial to the maintenance of the supply of electricity. In Golam Hussain @ Gama v. The Commissioner of Police, Calcutta & Ors., [1974] 3 SCR 613, it was held that the credible chain between the grounds of criminal activity alleged by the detaining authority and the purpose of detention, is snapped if there is too lon .....

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e casual connection has been broken in the circumstances of each case. In Odut Ali Miah v. State of West Bengal, [1974] 4 SCC 129 where the decision of the detaining authority was reached after about five months, Krishna Iyer, J. repelled the contention based on the ground of delay as a mere 'weed of straw' and it was held that the 'time-lag' between the dates of the alleged incidents and the making of the order of detention was not so large that it could be said that no reasonab .....

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ds of detention being non-existent or irrelevant or too remote in point of time to furnish a rational nexus for the subjective satisfaction of the detaining authority. It is usually from prior events showing tendencies or inclinations of a man that an inference can be drawn whether he is likely, in the future, to act in a manner prejudicial to the maintenance of public order." See also: Gora v. State of West Bengal, [1975] 2 SCR 996; Raj Kumar Singh v. State of Bihar & Ors., [1986] 4 SC .....

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COFEPOSA intends to deal with persons engaged in smuggling activities who pose a serious threat to the economy and thereby security of the nation. Such persons by virtue of their large resources and influence cause delay in making of an order of detention. While dealing with the question of delay in making an order of detention, the court is required to be circumspect and has to take a pragmatic view. No hard and fast formula is possible to be laid or has been laid in this regard. However, one t .....

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ash the order of detention. No rule with precision has been formulated in this regard. The test of proximity is not a rigid or a mechanical test. In case of undue and long delay the court has to investigate whether the link has been broken in the circumstances of each case." 12. There cannot be any quarrel about the ratio laid down by the Supreme Court in the present case. However, it is to be noted here that in paragraph 9 of the said decision in the case of Licil Antony (supra), the Supre .....

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ision has sufficiently been explained. After the decision to detain the detenu and two others was taken, draft grounds were prepared and approved on 19th of April, 2013. As one of the detenue was a Tamilian, the grounds of detention were translated in Malyalam and Tamil which took some time and ultimately sufficient number of copies and the documents relied on were prepared by 3rd of May, 2013. Thereafter, the order of detention was passed on 6th of May, 2013." 13. Thus, in the case of Lici .....

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oner in response to the arguments advanced by the learned APP and the affidavits filed by the concerned authorities relied upon a judgment of the Division Bench of this Court in the case of Keshav Jaru Salian v. Union of India reported in 1991 (54) E.L.T. 55 (Bom.) and in particular, paragraph 5 of the said judgment, which reads as under : "5. The detaining authority has filed its affidavit in reply to this petition. The reply to this averment contains in paragraphs 5, 6 and 7 of the said a .....

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ing that the detaining authority was subjectively satisfied that the detenu is likely to indulge in prejudicial activities under the COFEPOSA Act and with a view to preventing him the detention order must be issued. In our opinion the delay in issuing the detention order in the present case must vitiate the subjective satisfaction of the detaining authority as regards the preventive action sought to be taken against the detenu." The learned counsel appearing for the Petitioner submitted tha .....

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ove in paragraph 6 of the said affidavit has tried to explain the delay on its part. The affiant of the said affidavit has stated that the proposal sent by the sponsoring authority along with 97 pages dated 26 th June, 2014 was received by the detaining authority on 30th June, 2014. A scrutiny note was submitted by the concerned assistant on 24 th July, 2014. Here the delay of about 24 days has not at all been explained by the said deponent. It has further been stated that the detaining authorit .....

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stage also the delay of about 15 days has not at all been explained as to what prevented the detaining authority from processing the file between the aforesaid total period of 57 days and the said delay has not at all been explained by the Respondent Nos.1 and 2 least to say properly explained. It has further been mentioned in the said affidavit that reminder letters were sent to the sponsoring authority on 9 th September, 2014, 20 th September, 2014 and 17th October, 2014. Here also the delay b .....

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f the detaining authority vide their letters dated 30th July, 2014 and 18th August, 2014. The detaining authority has failed to explain as to what prevented them from 7th October, 2014 to take expeditious steps in issuing the detention order despite the communication from the sponsoring authority. The affidavit further discloses that the sponsoring authority vide its letter dated 5 th November, 2014 forwarded the information which was submitted for consideration and appropriate orders to the det .....

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2 days between 20 th November, 2014 to 12th December, 2014 for dictation and preparation of the detention order. Further the Respondent Nos.1 and 2 have also failed to explain the delay of about four days from 12th December, 2014 to 16 th December, 2014 for issuing the said order. Thus, it is clear that the detaining authority has clearly failed to explain the delay on its part properly and satisfactorily. 16. After taking into consideration the aforesaid facts that the delay in issuing the dete .....

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the Respondent Nos.1 and 2 in paragraph No.6 it has been stated that the sponsoring authority forwarded information by its letter dated 18th August, 2014 and the same was submitted by the concerned assistant on 2nd September, 2014. The detaining authority thereafter directed to discuss the matter and after discussion, it was directed to get additional information on some point and accordingly a letter was sent to the sponsoring authority on 9th September, 2014 and reminder letters were sent on .....

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s office that they had already communicated the information to the detaining authority vide their letters dated 30 th July, 2014 and 18th August, 2014 as stated in the earlier part of this paragraph. The record further reveals that to a questionnaire ig sent to the sponsoring authority by the detaining authority, a specific question was asked as to whether, after forwarding the proposal to the detaining authority till that date, the proposed detenue was found to be involved in smuggling / advers .....

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