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2016 (2) TMI 203 - BOMBAY HIGH COURT

2016 (2) TMI 203 - BOMBAY HIGH COURT - TMI - Validity of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (“COFEPOSA" for short) - delay in passing the detention order - Held that:- On the ground of delay, we are satisfied that the order of detention is vitiated by an enormous and unexplained delay. This Court and the Hon’ble Supreme Court on a number of occasions have criticized the approach of the Sponsoring Authorities and especially of the .....

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ve link to be snapped, the credible chain broken and the very purpose of the detention proposed itself defeated. After the detenu was enlarged on bail on 1st April 2015, if the detaining authority on receipt of the proposal on 15th April 2015 does not issue the detention order till 17th July 2015, then we have no alternative but to record our satisfaction that there is indeed a long and unexplained delay sufficient to conclude that the live link is snapped.

Court will examine the typ .....

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the credible chain not broken. It is in these circumstances, while reminding the Detaining Authority as also the Sponsoring Authority of their duties and responsibilities, we have no other alternative but to quash and set aside the detention order as admittedly it is vitiated by a delay of three months and four days. Thus The detention order is quashed and set aside. - Writ Petition No. 3258 of 2015 - Dated:- 27-1-2016 - S. C. Dhamadhikari And G. S. Patel, JJ. For the Appellant : Mr. A M Z Ansa .....

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ferred for appreciating the ground of challenge, viz., delay in passing the detention order. The grounds of detention in support of the order of detention recite the dates. By Air India Flight AI-964, the detenu arrived in Mumbai from Hyderabad on 23rd September 2014. After clearing immigration, one Ms. Shahin Farooq Patel was intercepted by the Officers of the Air Intelligence Unit. She was subjected to a personal search in the presence of a gazetted officer and two independent panchas. The sea .....

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an early morning Jet Airways flight along with the detenu and his wife Farida (the present Petitioner) and a co-passenger, one Ms. Shabana Habib Shaikh. On their return on the same day by the Air India flight, the packet was handed over to her by an unknown person in the flight who was already seated as a transit passenger from Jeddah to Mumbai via Hyderabad. She received the packet on the detenu s instructions. The monetary consideration and other matters are then detailed in the grounds of det .....

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us, was recorded on 19th February 2015. In the Petition the ground of delay taken as one of the challenges to the preventive detention order is summarized at pages 8, 9 and 10 as under: (i) The Petitioner says and submits that on or about 23.09.2014, the gold were seized from two ladies Shahin Patel and Shabana Shaikh. The detenu was arrested by the officer A.I.U. on 13.02.2015 and was granted bail on 01.04.2015. The statement of the detenu were recorded on 13.02.2015. The Petitioner says and su .....

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n the detenu has given inculpatory statement. The Petitioner says and submits that it is pertinent to note that the detaining authority while issuing the detention order has considered only 250 pages documents. The Petitioner says and submits that the impugned order of detention issued after 10 months is after inordinate and inexcusable delay. The Petitioner says and submits that the detenu not having come to the adverse notice of the officer of A.I.O. or any other authorities during the said in .....

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ragraph 4, the Sponsoring Authority states that there is absolutely no delay on its part. The case was booked on 23rd September 2014 and on the basis of the statements recorded of Ms. Shahin Farooq Patel and Ms. Shabana Habib Shaikh and further investigation in the matter, the detenu was apprehended on 13th February 2015. His statement was recorded and he was arrested on that very day. He was produced before the Additional Chief Metropolitan Magistrate, Mumbai on 14th February 2015. He retracted .....

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It was rejected on 18th March 2015. Thereafter, the detenu approached this Court and it enlarged him on bail on 1st April 2015. It is stated that after completion of a preliminary investigation, the file was forwarded to the COFEPOSA cell for drawing up a proposal on 4th March 2015. The proposal was prepared on 12th March 2015 and placed before the Chief Commissioner of Customs on 13th March 2015. Approval was obtained on 26th March 2015 and there were further steps taken of forwarding it to th .....

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hat once the proposal was received prompt action was taken by the Detaining Authority. The Detaining Authority tries to explain the steps taken by inviting our attention to the role of several officers and subordinates through whose hands such files pass. The Affidavit makes interesting reading and, therefore, we reproduce paragraph 6 thereof: 6. With reference to paragraph No. 5(i), (vii) and (viii) of the petition, I say that the after getting approval of the Screening Committee in its meeting .....

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ing in detail the proposal as well as the documents which were received by me. The time taken for coming to the decision of subjective satisfaction by me has been explained here in below. The proposal for Prevention detention received from Sponsoring Authority under COFEPOSA Act, 1974 is to be scrutinized by me as the Detaining Authority according to the safeguards and the procedural guidelines received by me time to time from Department of Revenue, Ministry of Finance, Government of India. For .....

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the Scrutiny Note was submitted by concerned Assistant on 18.04.2015. The Section Officer endorsed it on 18.04.2015 and the Deputy Secretary endorsed it on 20.04.2015 (19.04.2015 was Sunday). I as the Detaining Authority approved the Scrutiny Note on 21.04.2015. The additional information on some points raised in the Scrutiny Note were called by letter dated 21.04.2015. The Sponsoring Authority forwarded the additional information by letter dated 06.05.2015 which was received in this Department .....

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d to get some details of the case from the Sponsoring Authority. The letter was sent to the Sponsoring Authority on 03.06.2015. The Sponsoring Authority forwarded the information by letter dated 10.06.2015 which was received in this Department on 24.06.2015. After scrutinizing the information forwarded by the Sponsoring Authority, the same was submitted by the section officer on 26.06.2015. There were holidays on 27.06.2015 and 28.06.2015 on account of Fourth Saturday and Sunday. This note was e .....

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detenu and after my subjective satisfaction, the Detention Order was issued. Hence, the same cannot be casted upon the authority as a fault on my part." 7. After hearing Ms. Ansari and Mr. Yagnik on this limited point, i.e., the ground of delay, we are satisfied that the order of detention is vitiated by an enormous and unexplained delay. This Court and the Hon ble Supreme Court on a number of occasions have criticized the approach of the Sponsoring Authorities and especially of the Detain .....

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to be snapped, the credible chain broken and the very purpose of the detention proposed itself defeated. After the detenu was enlarged on bail on 1st April 2015, if the detaining authority on receipt of the proposal on 15th April 2015 does not issue the detention order till 17th July 2015, then we have no alternative but to record our satisfaction that there is indeed a long and unexplained delay sufficient to conclude that the live link is snapped. 8. We find that the scrutiny note was submitt .....

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erned with 9th and 10th of May because on that day the additional information was not received at all. The additional information was received on 11th May 2015; yet nothing was done till 17th/18th May 2015. This additional information was scrutinized for the first time after 17th May 2015 and another note was submitted by the assistant concerned on 18th May 2015. The Section Officer and the Deputy Secretary endorsed it on 19th May 2015. The explanation then is that there were holidays on 23rd, 2 .....

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eceived in the Department on 24th June 2015. After scrutiny of this information by the Sponsoring Authority, it was submitted by the Section Officer on 26th June 2015. Then again holidays on 27th and 28th June 2015 are said to have presented difficulty. The Deputy Secretary endorsed this note on 29th June 2015 and, thereafter, the Detaining Authority satisfied himself on 1st July 2015 and directed dictation to be taken. The Detention Order was finalised on 17th July 2015. We do not believe these .....

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or tardiness. The public at large expects from these officers that they will control and some day would be able to totally stop the smuggling activities. 9. Although the following two decisions of the Supreme Court have been cited innumerable times in our orders, and although each is today a locus classicus, we find they bear reiteration and repetition if only because our State-level functionnaries appear to have entirely lost sight of them. We must insist that the Respondents heed the words of .....

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ds in Article 22 in the Constitution so as to limit the power of the State to detain a person without trial, which may otherwise pass the test of Article 21, by humanizing the harsh authority over individual liberty. Since preventive detention is a form of precautionary State action, intended to prevent a person from indulging in a conduct, injurious to the society or the security of the State or public order, it has been recognised as a necessary evil" and is tolerated in a free society in .....

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an, has zealously attempted to preserve and protect the liberty of a citizen. However, where individual liberty comes into conflict with an interest of the security of the State or public order, then the liberty of the individual must give way to the larger interest of the nation". (Emphasis added) 10. In Dropti Devi, the Supreme Court also noted the minority open, though dissenting on the question of law (Dropti Devi, supra, para 45.1 of the AIR report; per G.T. Nanavati J.) : 45.1. In the .....

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spicion and its justification is necessity. The basis of a sentence is the verdict of the court after a regular trial. When a person is preventively detained his detention can be justified only so long as it is found necessary". (Emphasis added) 11. In Dropti Devi, (Dropti Devi, paras 46 and 58 to 60 of the AIR Report.) the Supreme Court also referenced the decision of the 9-Judge bench in Attorney General for India v Amratlal Prajivndas & Ors. AIR 1994 SC 2179 : (1994) 5 SCC 54. uphold .....

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CC 233 on the question of delay in passing the detention orders under challenge. The Court cited a previous decision in Lakshman Khatik v State of West Bengal (1974) 4 SCC 1, under the Maintenance of Internal Security Act, 1971. The principle enunciated in Lakshman Khatik and carried forward four decades later in Saeed Zakir Hussain Malik was this: that mere delay, i.e., delay per se, in passing a detention order is inconclusive. A Court will examine the types of grounds given for detention and .....

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