TMI Blog1995 (9) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... appearing for the petitioner canvassed three grounds in support of the petition. He first contended that the unreasonable and unexplained delay of about four years in executing the order of detention clearly demonstrated that the detaining authority had not properly applied his mind and arrived at a real and genuine satisfaction about the necessity of detaining the petitioner. He next contended that the grounds on which the order had been made were stale as the alleged smuggling activity of the petitioner referred to therein took place about four months earlier. He lastly submitted that the declaration made under Section 9 of the Act was also bad as it does not indicate that the declaring authority was aware of the unusual delay in serving the order of detention and, for that matter, was satisfied that notwithstanding such lapse of time, the petitioner was required to be kept in continued detention, solely for the smuggling activity alleged in the grounds of detention. As in our opinion the first contention of Mr. Sibal has got to be accepted it will be redundant to deal with the other two. For a proper appreciation of that contention it will be necessary to refer to certain re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ief Judicial Magistrate (Economic Offences) Ernakulam against the petitioner and two others for smuggling the silver ingots referred in the grounds of detention, being Case No. C.C.M. 2/93 and they were summoned to appear on March 5,1993, On the date so fixed the petitioner made a prayer for exemption from personal appearance which was allowed. As the correct addresses of the other two accused were not furnished by the prosecution the case was adjourned from time to time. The petitioner however did not appear on any of the adjourned dates and his application for exemption from appearance on each such occasion was allowed. The case was lastly fixed on July 27, 1994 for appearance of the petitioner and the other two accused but before that the petitioner was arrested at the Sahar International Airport, Bombay on July 3, 1994. To explain away the delay in serving the order of detention Mr. Tulsi, the learned Additional Solicitor General,, took us through the counter affidavits filed on behalf of the detaining authority and the Commissioner of Police, Trivandrum, who was entrusted with the duty of serving the order of detention, and contended that all possible steps were taken to ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehend the petitioner and serve the order of detention during the period of four years. The only question therefore, that falls for our determination is whether the explanation of the respondents that they made sincere at-tempts and took all effective steps to apprehend the petitioner but failed as he was absconding is satisfactory or not. In dealing with the delay in execution of the order the detaining authority has stated, inter alia, in the counter affidavit (paragraph 3) as under: He did not appear before the investigating officers as directed by Additional Chief Judicial Magistrate Court in Eranakulam in the Order dated 7.3.1990 in Crl. M.P. NO. 692/90 in SD/INTL2/90. He was not available in his residence; communication sent to his residence was returned undelivered. He did not appear for personal hearing nor did he appear in person before the additional Chief Judicial Magistrate, Eranakulam in CC 2/1993. (emphasis supplied) In reiteration of his above statement, he has further stated therein: It is submitted that all possible steps have been taken to apprehend the detenu. The delay in executing the detention order occurred solely due to the recalcitrant and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Police on 12.7.1990. It is submitted that various enquiries were made during the period between 12.7.1990 and 30.7.1990 regarding the whereabouts of the warrantee. The police has visited the residence of the detenu, native place and neighbouring places in search of the detenu. Several persons were contacted for getting the whereabouts of the detenu but he was found absconding. The persons contacted by the police as well as the informants set up for this purpose informed police that he had gone to Gulf countries and he was not available in his native place. Accordingly a Report No. 589/GI/90-C dated 30.7.1990 was sent to the State Government. It is interesting to note that though the names and addresses of several persons whom the police is supposed to have contacted for ascertaining the whereabouts of the petitioner have been given in the affidavit, the places where they actually searched for him had not been disclosed. As regards the proceeding initiated and steps taken by the Chief Judicial Magistrate, Trivendrun under Section 7(l)(a) of the Act, the detaining authority has filed a supplementary affidavit in obedience to a direction of this Court. To indicate the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the warrantee did not possess any properties liable to be attached. The report dt. 23.10,90 send by the police is incorporated on the reverse page of Annexure VI. 6. In this context, it is submitted that the Government have obtained a report from the Chief Judicial Magistrate Court, Trivandrum explaining the various steps taken against the warranted (detenu), pursuant to the receipt of the report under Section 7(1) (a) of the COFEPOSA Act. A true copy of the said report dated 16.8.95 of the Chief Judicial Magistrate, Trivandrum is produced herewith and marked as Annexure VII. Tims it mod respectfully submitted that all the steps contemplated under law were taken to execute the detention order. [emphasis supplied] From the annexures referred to in the above quoted passages we find that on one and the same day i.e. August 8, 1990 non-bailable warrant and written proclamation under Section 82 of the Cr. P.C. were issued and order of attachment under section 83 Cr. P.C. made. The manner in which the executing authority dealt with the above three orders of the Magistrate as can be culled from the above quoted passages of the affidavit also makes an interesting reading. Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prior to and in course of the proceeding initiated under Section 7 of the Act it will be necessary to advert to the steps taken by them subsequent thereto. In their affidavits the respondents have asserted that in regular and frequent intervals the police officers had gone to the residence of the petitioner and nearby places to apprehend the petitioner. The date of such visits-till the date the Civil Court passed the order of stems quo - have all been detailed therein. It has then been averred by the Executing authority in its affidavit that the enquiries held by the police officers who had gone to apprehend him revealed that the petitioner who had gone to apprehend him revealed that the petitioner had gone to Gulf countries and he was absconding throughout the entire period. Similar averments have been made in respect of the period following the dismissal of the suit till the execution of the order. If the enquiries had revealed that the detenu had already left for the Gulf countries, the attempt to arrest the petitioner from his house in regular intervals must be said to be an empty formality to which, as it appears, recourse was taken only to keep the record straight and for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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