TMI Blog2017 (3) TMI 1070X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation - decided in favor of petitioner. - W.P. (Crl.) 3105/2016 - - - Dated:- 21-3-2017 - MR. G.S. SISTANI MR. VINOD GOEL JJ. Petitioner Through: Mr. Pradeep Jain, Mr. Shubhankar Jha, Mr. Tarun Chawla, Mr. Rahul Raheja, Mr. Ashish Bansal and Mr. Vikas Sarin, Advs. Respondents Through: Mr. Sanjay Jain, ASG with Mr. Ajay Digpaul, CGSC, Ms. Mohita, Ms. Karnika Singh and Mr. Vignaraj Pasayat, Advs. G.S. SISTANI, J. 1. Pleadings in this matter are complete. With the consent of the parties, the writ petition is set down for final hearing and disposal. 2. Present petition has been instituted under Article 226 of the Constitution of India read with Section 482 Cr.P.C. for issuance of a writ, order or direction in the nature of Certiorari for quashing the detention order bearing F. No.673/03/2016-CUS.VIII dated 20.05.2016 passed under Section 3(1)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA Act ) against Ibrahim Ateef Damda Fakki ( detenue ). The present petition has been filed by the brother of the detenue. 3. The necessary facts to be noticed for disposal of the writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely handed over a parcel to a person. During the investigation, he was confronted with Smt.Shehnaz Laiq Ahmed Ansari. The detenue admitted that she was the lady to whom he had supplied the said bag. Statement of Smt.Shehnaz was also recorded wherein she also identified the detenue as the person who gave her the gold jewellery at Doha Airport. At the time of recording of his statement, detenue was asked to submit his passport which was handed over to DRI Officers on 18.12.2015. The detenue and the said woman were arrested by the DRI under Section 135 of the Customs Act, 1962. The detenue was released on bail on 19.12.2015 by the CJM, Goa on certain terms and conditions which the detenue claims to have complied with, including that he would not leave the country without prior permission of the Court. 7. Statements of the detenue were recorded on 09.02.2016 and 08.03.2016. On 31.03.2016 the detenue moved an application under Section 457 Cr.P.C. for release of his passport. However, the said application was opposed by the DRI and the Customs Department. The detenue continued to stay at his native place at Bhatkal, Karnataka when he learnt about an Official Gazette publication in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cket to Smt. Shehnaz Laiq Ahmed Ansari on 2.11.2015, there is nothing on record to show that the detenue was, in any way, concerned or connected with any alleged offence ever. Mr. Pradeep Jain contends that the detenue was not known to the woman nor the detenue was aware about the alleged smuggling of gold, as detenue was not at all concerned with the same. It is contended that the detenue is a poor person who had gone to Dubai in search of his livelihood and to earn his livelihood, he was engaged with the business of trading of garments and electronic items which he used to buy at Dubai and sell at Bahrain. The detenue was working in a Company at Dubai and in order to supplement his income, the detenue was also engaged in booking of online air tickets against some commission. 10. It is also the case of the petitioner that due to his business of garments and electronics, the detenue used to travel between Dubai-Doha Bahrain on regular basis. Mr. Pradeep Jain contends that the invocation of preventive detention measures by way of detention order based on the said solitary incident under the facts and circumstances of the present case is not justified and time and again, the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was necessary to detain him. This Court further observed: 39. If there is no adequate material for arriving at such a conclusion based on solitary incident the court is required and is bound to protect him in view of the personal liberty which is guaranteed under the Constitution of India. 40. Further, subjective satisfaction of the authority under the law is not absolute and should not be unreasonable. In the matter of preventive detention, what is required to be seen is that it could reasonably be said to indicate any organised act or manifestation of organised activity or give room for an inference that the detenu would continue to indulge in similar prejudicial activity warranting or necessitating the detention of the person to ensure that he does not repeat this activity in future. 41. In other words, while a single act of smuggling can also constitute the basis for issuing an order of detention under the COFEPOSA, highest standards of proof are required to exist. In the absence of any specific and authenticated material to indicate that he had the propensity and potentiality to continue to indulge in such activities in future, the mere fact that on one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adeep Jain for quashing of the detention order is that subjective satisfaction has been wrongly arrived at by the Detaining Authority. It is contended that the Detaining Authority has failed to consider the vital fact that the detenue had voluntarily, on the basis of the request made by the DRI, submitted his passport with the DRI and the said passport was never returned back to the detenue. In the absence of the passport, the detenue cannot travel abroad, hence, the alleged belief that the detenue will indulge in any prejudicial activity has no basis. 15. It is submitted that even otherwise, the act of the detenue of handing over the parcel to said Smt. Shehnaz Laiq Ahmed Ansari was in a foreign land i.e. Dubai where the act in question is not an offence, hence, the invocation of COFEPOSA Act in consequence of alleged violation of Customs Act, 1962 is unjustified and illegal. Mr. Pradeep Jain contends that handing over the said packet at Duabi is not an offence punishable under the Indian Customs Act, as the Customs Act, 1962 has been extended to whole of India and not outside India. 16. Reliance is placed on the decision rendered in the case of Moulana Shamshunnisa and ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard of proof required in these circumstances involving the life and liberty of a person. The material provided by the respondents is not enough to justify the curtailment of the liberty of the appellant under an order of preventive detention in the facts and circumstances of the case. (Emphasis Supplied) 17. In view of the judgment, as in the present also, the passport of the detenue was with the department, there cannot be any justified basis to arrive at the conclusion that the detenue may indulge in the prejudicial activity further. NON-PLACEMENT OF VITAL DOCUMENTS 18. Learned counsel next contends that the impugned order is liable to be quashed as the Detaining Authority has failed to consider the vital document i.e. application filed by the department for the cancellation of bail granted to the detenue by the CJM, Goa vide order dated 19.12.2015 which has a bearing on the facts of the matter. The said document has neither been made a relied upon document nor any consideration has been made qua the same in the grounds of detention. It is the case of the petitioner that the aforesaid document is extremely vital and relevant for the purpose of the case which, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India read with section 3(3) of COFEPOSA Act. 22. However, we may note that this ground raised was not pressed at the time of hearing. WHEN ORDINARY LAW OF THE LAND IS SUFFICIENT TO DEAL WITH THE SITUATION, THE INVOCATION OF PREVENTIVE DETENTION LAW IS BAD IN LAW 23. Without prejudice to the other contentions of the petitioner, it is submitted by Mr.Pradeep Jain that the Detaining Authority has failed to show and explain the reasons as to how and why the ordinary law of the country is not sufficient to deal with the present situation and why the need has arisen to invoke the preventive detention law which is also considered to be a draconian law and especially, in view of the fact that the present case is based on a solitary incident. As no sufficient reason has been recorded in the impugned detention order/grounds of detention, the order under challenge is liable to be set aside. DELAY IN EXECUTION OF DETENTION ORDER 24. Learned counsel also contends that in the present case, there is a delay of about 3 months in execution of the detention order. No efforts or steps have been taken by the Detaining Authority for execution of the detention order, whereas th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same day and the other from Dubai to Bahrain (via Doha) for the following day i.e. 02.11.2015. On 02.11.2015, Mrs. Ansari was already in Dubai and had a direct ticket from Dubai to Mumbai for 15.11.2015. However, the detenue who had reached Dubai on 01.11.2015, in the early hours of 02.11.2015 booked a new ticket for Mrs. Ansari, from Dubai to Doha for her return journey for the same day, i.e., 02.11.2015 from Dubai to Goa, via Doha. The flight was booked keeping in mind that Mrs. Ansari reaches Doha one hour before him to enable him to meet her within the airport at Doha. 29. It is further contended that on 02.11.2015 itself, the detenue acting as a carrier picked up 10 kgs of gold from Abdul Rehman; collected separate considerations for booking tickets (on actuals) and acting as a carrier (1000 Dirhams). Upon reaching Doha, he contacted Mrs. Ansari on her mobile number and delivered the gold to her with an assurance/ promise that she would be paid ₹ 5000/- upon reaching at Goa. 30. The above sequence of events amply demonstrates that the detenue had complete knowledge required to act as a carrier in a proficient manner; that he knew the flight sector of Bahrai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trains. Therefore, it is obvious that though the incident referred to in the communication served on the petitioner is a single solitary incident, it cannot be looked upon as an isolated act. It necessarily connotes a course of previous conduct of such or similar activities where specialised experience has been acquired and specialised kind of mischief has been planned to be perpetrated. The allegation that the petitioner was one of the notorious anti-social elements indulging in committing theft of copper feeder wires from railway tractions is, therefore, really nothing but an elaboration of what is already implied in the apparently single solitary incident communicated to the petitioner. To quote the words of one of us in Anil Dey v. State of West Bengal [(1974) 4 SCC 514 : 1974 SCC (Cri) 550] the very proficiency and daring displayed by the petitioner, with his associates, in doing what he did, amounts to the attribution of a series of activities more fully put down in para 7 of the affidavit of the District Magistrate. It is, therefore, not possible to say that in arriving at the requisite satisfaction the District Magistrate relied on any ground not communicated to the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s brother Ajmal Sheikh. 34. As far as the subjective satisfaction of the Detaining Authority is concerned, Mr. Sanjay Jain submits that on 18.12.2015, the detenue submitted his passport to the Commissioner of Customs. Subsequently, the detenue was arrested on 19.12.2015 and was released on bail, subject to certain conditions, which inter alia included the condition that the detenue shall not leave the Country without prior permission of the Court. The detenue thereafter on 31.03.2016 moved an application under Section 457 Cr.P.C. for release of his passport before the Court of Chief Judicial Magistrate, Goa, which was subsequently dismissed as withdrawn. 35. In response to the contention that the acts committed by the detenue were on foreign land, where the said acts were not an offence, it is submitted that the detenue facilitated the commission of offences under the Customs Act and though the acts were committed in a foreign land, the detenue can be subjected to strictures for those acts in India by the application of Section 3 of the Indian Penal Code read with Section 188 of the Code of Criminal Procedure, 1973 ( Cr.P.C. ). Learned counsel has relied upon Maqsood Yusuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Detention and the relied upon documents. The relied upon documents contained, inter alia, at Serial No.91 of the Index and page 773 of the relied upon documents the File Noting submitted by the Legal Cell Officer to his superiors, indicating that the matter pertaining to the cancellation of bail has been listed for next date of hearing that had been scheduled for 01.06.2016. 40. The aforementioned noting was not only within the custody of the Detaining Authority, but the same has also been taken into consideration, which is manifested from the fact that in para 73 of the Grounds of Detention, the Detaining Authority held as follows: While passing the Detention Order under the provisions of the Conservation of the Foreign Exchange and Prevention of Smuggling Activities Act, 1974 I have referred to and relied upon the documents mentioned in the enclosed list, which are also being served to you along with the grounds of detention. 41. From the above, it can clearly be seen that the Detaining Authority was privy to the fact that an application for cancellation of bail had been moved by the respondents. Thereafter, the passing of the Detention Order, being aware of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct that the Department has filed a Criminal Misc Application No.66/2016/A for the cancellation of bail of Ibrahim Ateef Damda Fakki and that his lawyer has prayed for some more time to make his arguments and that the next date of hearing is fixed on 01.06.2016. 43. Without prejudice to the above argument, it is submitted that an application for cancellation of bail is not a vital document in any event, considering the fact that the detenue is anyhow proposed to be detained. The grounds of cancellation of bail are not relevant to be considered by the Detaining Authority. The respondents have to submit vital documents and not all documents. In Mohammed Sultan (Supra), the Apex Court observed as follows: 6. The first contention that has been urged by Shri Karthikeyan, the Learned Counsel for the Petitioner, is that the Detaining Authority, while passing the order of detention, has failed to consider material documents, namely the application submitted by the Petitioner before the Additional Chief Metropolitan Magistrate for relaxation of the conditions for his release on bail and the order dated October 31, 1989 passed by the Additional Chief Metropolitan Magistrate relaxing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout them the grounds themselves could not be said to have been complete. The decision in Haridas Amarchand Shah v. K.L. Verma AIR 1989 SC 497 was noticed by this Court and it was distinguished on the ground that in that case the application for bail and the order passed by the Metropolitan Magistrate varying the condition of bail were not vital and material documents inasmuch as the granting of bail by the Magistrate enabled the detenue to come out and carry on his business as before and variation of the conditions were not considered vital for the satisfaction as to need for detention. In the instant case the Petitioner cannot derive any assistance from M. Ahamedkutty's case because the order dated October 6,1989 with regard to grant of bail subject to conditions has been duly considered by the Detaining Authority, as would be evident from the grounds of detention. The application for relaxation of the conditions of bail submitted by the Petitioner and the order dated October 31, 1989 relaxing the conditions of bail passed by the Additional Chief Metropolitan Magistrate on the said application were not material documents and were not required to be considered by the Detai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a criminal offence, yet it is an illegal activity jeopardising the very economic fabric of the country. For violation of foreign exchange regulations, penalty can be levied and its noncompliance results in civil imprisonment of the defaulter. The whole intent and idea behind COFEPOSA is to prevent violation of foreign exchange regulations or smuggling activities which have serious and deleterious effect on national economy. 68. In today s world physical and geographical invasion may be difficult but it is easy to imperil the security of a State by disturbing its economy. Smugglers and foreign exchange manipulators by flouting the regulations and restrictions imposed by FEMA-by their misdeeds and mis-demeanours- directly affect the national economy and thereby endanger the security of the country. In this situation, the distinction between acts where punishments are provided and the acts where arrest and prosecution are not contemplated pales into insignificance. We must remember: the person who violates foreign exchange regulations or indulges in smuggling activities succeeds in frustrating the development and growth of the country. His acts and omissions seriously affect nati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n addition to the general law, in this case the Customs Act, 1962. 47. With regard to the ground of delay in execution of the detention order, it is submitted by the learned ASG that unlike the procedure for serving the summons/warrants issued by the Courts which are directly sent by the Issuing Court to the Administrative Judge or the Chief Metropolitan Magistrate or the District and Sessions Judge of the place of execution, the Detention Order is served through the Executing Authority; in the case of Detention Orders, there are three authorities traditionally recognized by Courts, who have a role to play in the above process. These are the Sponsoring Authority, Detaining Authority and Executing Authority. Usually, a proposal is mooted by the Investigating Agency, which as per internal guidelines, submits the proposal to the concerned officer of the rank of Chief Commissioner or Director General. Once, the officer of the rank of Chief Commissioner or Director General, after applying his mind, comes to the conclusion that the material gathered should be sent for the consideration of the Detaining Authority, the head of department of the investigating agency becomes the Sponsorin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is insufficient to sustain an order of preventive detention. The stand of the State remains that the detenue had indulged into numerous acts in furtherance of the smuggling activity which would clearly show his expertise in the matter and that the same were executed in furtherance of a premeditated plan and conspiracy. Mr. Sanjay Jain has submitted that all these acts clearly establish propensity and potentiality of the detenue to indulge in similar smuggling activities in the future. 52. It is settled law that one single act may constitute the basis of passing of a preventive detention order provided the same could reasonably be said to indicate an organized act or manifestation of an organized activity or leaves room for an inference that the detenue will indulge in such activities in the future. [Attorney General for India v. Amratlal Prajivandas, (1994) 5 SCC 54 (paragraph 48); and Pooja Batra v. Union of India, (2009) 5 SCC 296 (paragraph 40)]. The deciding factor remains as to whether the single incident is enough to prove the propensity and potentiality of the detenue to justify the order of preventive detention [Gimik Piotr (Supra) (paragraph 24)]. In order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09:40 PM Detenue boards flight QR 1106 to Bahrain 09:55 PM Smt.Ansari boards flight QR 522 and proceeds to Goa, India On 03.11.2015 (Tuesday) 03:50 AM Smt.Ansari reaches Goa, leaves the packet under her seat and exits the airport. She is searched by the customs authority, but they do not find anything on her. Time Act About 03:50 AM The package is found by the authorities while searching the flight in question. 54. The aforegoing clearly shows that the incident involved extensive planning, expertise in flight timings and coordination. It cannot be said that the incident was an isolated one but infact constituted a series of acts which culminated qua the detenue with the handing over of the packet. 55. It reveals an interesting modus operandi, the detenue used to book tickets without any ticketing licence. The detenue travelled between countries in the Middle East (Dubai, UAE - Doha, Qatar - Bahrain), knowing fully well that there is no limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... likely to travel clandestinely for the purpose of smuggling. The relevant portion of the detaining order reads as: On the basis of the foregoing facts and circumstances the Lt. Governor of the National Capital Territory of Delhi has no hesitation in arriving at the conclusion that you have the inclination and propensity for indulging in smuggling activities in an organised and clandestine manner and unless prevented you are likely to indulge in the smuggling activities in future. The Lt. Governor is aware that the prosecution proceedings have already been initiated against you under the Customs Act, 1962 and adjudication proceedings under the Customs Act, 1962 are likely to be initiated against you. Your passport is with the Customs Department but you are likely to travel clandestinely for the purpose of smuggling, hence the Lt. Governor of the National Capital Territory of Delhi is satisfied that it is necessary to detain you under the provisions of the Conservation of the Foreign Exchange and Prevention of Smuggling Activities Act, 1974 with a view to preventing you from smuggling goods in future. (Emphasis Supplied) 60. This did not find favour with the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure of the judgments in Rajesh Gulati (Supra), Gimik Piotr (Supra) and Moulana Shamshunnia (Supra) is that in all the cases, the detention orders were passed to prevent smuggling of goods and not its abetment. COFEPOSA Act provides for circumstances under which the detaining authority may pass an order. Section 3 (1) of the Act reads as under: 3. Power to make orders detaining certain persons.-( 1) The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of the State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from- (i) smuggling goods, or (ii) abetting the smuggling of goods, or (iii) engaging in transporting or concealing or keeping smuggled goods, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforegoing, it becomes necessary to scrutinize the role of the detenue in smuggling of the contraband into India. His role has been extensively dealt with in paragraphs 53 to 56 aforegoing and we do not deem it necessary to reiterate the same to avoid prolixity. Briefly stated the role of the detenue was of planning and coordination in addition to acting as a carrier. He was the one that ensured the presence of the carrier/Smt.Ansari at the transit point and that too with efficiency and speed to avoid easy detection by the authorities. We are of the opinion that though the detenue might not be the king of the organized smuggling racket, but he surely was playing a greater role than a pawn or mere carrier. He, in all probability, was equivalent to a wazir or bishop in a game of chess. 68. Further his expertise seems to be having in-depth knowledge of flight timings and how to coordinate the handing over the contraband to the carrier without detection. Such logistical support can easily be provided whilst sitting in India and there is no need for a passport. Thus, he can continue to abet smuggling activities. Accordingly, the subjective satisfaction having been arrived at by the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iolation of the Customs Act has been perpetrated in India, persons who have abetted in the perpetration of this violation would justifiably be charged as abettors. A distinction has to be drawn between the commission of an offence, or the perpetration of a violation of the Customs Act beyond the territory of India, and the abettment of this species of offences committed outside India. Once abettment is proved, the law would take its course even with respect to persons who were at the material time outside Indian boundaries. In our own research we have come across the decision of the Supreme Court in Union of India v. Sampat Raj Duggar, (1992) 2 SCC 66 . Duggar, an Indian national resident and transacting business at Hong Kong, had dispatched a consignment of silk to India in the name of Respondent No. 1 who was doing business at Delhi. The consignment was confiscated because the import licence had been cancelled after the goods had been imported into India. Cancellation was based on violations by Respondent No. 2 of the terms of previous import licences. The Supreme Court upheld the decision of the Single Judge of the Bombay High Court to the effect that title in the goods had not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mscribed in its application only to offences dealt with in the IPC. Any doubt on this score would stand dispelled on a reading of Section 4, Cr.P.C. The first sub-section declares that any offence under the IPC shall be investigated, inquired into, tried and otherwise dealt with according to the Cr.P.C; and the second subsection makes the Cr.P.C. applicable to all other offences. Ergo Section 188, Cr.P.C. will regulate the prosecution of any violation of the Customs Act. There are several provisions of the Customs Act which moderate or exempt the applicability of the Cr.P.C; however Section 188 thereof is not so dealt with. It is important to draw a distinction between an inquiry and trial under the Cr.P.C, and preventive detention under the COFEPOSA or any other law. However, since Detention Orders have been passed by the Central Government, the proviso to Section 188 would stand impliedly complied with, assuming its applies. Thus, the impugned Orders are impervious to the challenge laid out in this petition. (Emphasis Supplied) 71. From the aforegoing, it is clear that the detention order cannot be found fault with on the ground that the act perpetrated by the detenue w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of section 33 or section 34; (i) any dutiable or prohibited goods found concealed in any manner in any package either before or after the unloading thereof; (j) any dutiable or prohibited goods removed or attempted to be removed from a customs area or a warehouse without the permission of the proper officer or contrary to the terms of such permission; (k) any dutiable or prohibited goods imported by land in respect of which the order permitting clearance of the goods required to be produced under section 109 is not produced or which do not correspond in any material particular with the specification contained therein; (l) any dutiable or prohibited goods which are not included or are in excess of those included in the entry made under this Act, or in the case of baggage in the declaration made under section 77; (m) any goods which do not correspond in respect of value or in any other particular with the entry made under this Act or in the case of baggage with the declaration made under section 77 in respect thereof or in the case of goods under transhipment, with the declaration for transhipment referred to in the proviso to sub-section (1) of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, any document which may tilt the view of the authority to make or not to make the detention order should be placed by the Sponsoring Authority before the Detaining Authority [ See Ashadevi v. K. Shivraj, Addl. Chief Secy. to the Govt. of Gujarat, (1979) 1 SCC 222 (paragraph 6); and Smitha Gireesh v. UOI and Ors., MANU/DE/1440/2016: 2016 SCC OnLine Del 3697 (paragraph 21)]. 76. We may notice the observations of a coordinate bench of this Court, of which one of us (G.S. Sistani, J.) was a member, in Sahil Jain v. UOI Ors, (2014) 140 DRJ 319, wherein a previous bail order imposing stringent conditions upon the detenue was not placed before the Detaining Authority. Such order was held to be a vital document, nonplacement of which vitiated the detention order. The relevant portion reads as under: 29. It is well settled that the subjective satisfaction requisite on the part of the Detaining Authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the Detaining Authority one way or the other are ignored or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case, it must be ascertained as to whether the application for cancellation of bail filed before the CJM, Margao, Goa can be said to be a vital document which goes to the root of the decision of the Detaining Authority. We may notice that the Supreme Court in Haridas Amarchand Shah v. K.L. Verma, (1989) 1 SCC 250 held that the application for variation of condition of bail and the order thereon varying the condition of appearing before the Enforcement Department were not vital and material documents inasmuch as the granting of bail by the Magistrate enabled the detenu to come out and carry on his business activities as before , while that was not the case with an order merely varying the conditions of bail. Later in M. Ahamedkutty v. Union of India, (1990) 2 SCC 1 it has been held that the bail application and the bail order were vital documents and non consideration thereof had impaired the ability of the Detaining Authority to reach a decision. In A. Mohammed Farook (Supra), the application seeking relaxation of the conditions of bail and the subsequent order were not considered vital or material documents by the Supreme Court. 78. From the aforegoing, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. 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, made before or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution. 33. Article 14 is inapplicable because preventive detention and prosecution are not synonymous. The purposes are different. The authorities are different. The nature of proceedings is different. In a prosecution an accused is sought to be punished for a past act. In preventive detention, the past act is merely the material for inference about the future course of probable conduct on the part of the detenu. (Emphasis Supplied ) 84. At the same time, the law of preventive detention cannot be abused to fail the paramount right recognised by the Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of the Penal Code, 1860 as well as under the Drugs and Cosmetics Act, 1940 and if he is found guilty, he will be convicted and given appropriate sentence. In our opinion, the ordinary law of the land was sufficient to deal with this situation, and hence, recourse to the preventive detention law was illegal. 29. Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cannot hold it illegal but we must confine the power of preventive detention within very narrow limits, otherwise we will be taking away the great right to liberty guaranteed by Article 21 of the Constitution of India which was won after long, arduous and historic struggles. It follows, therefore, that if the ordinary law of the land (the Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal. 30. Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enting the detenue from indulging in further prejudicial activities. The Apex Court allowed the appeal and quashed the detention order relying upon the decision in Rekha (Supra) holding as under: 9. No doubt, the offences alleged to have been committed by the appellant are such as to attract punishment under the Andhra Pradesh Prohibition Act, but that in our view has to be done under the said laws and taking recourse to preventive detention laws would not be warranted. Preventive detention involves detaining of a person without trial in order to prevent him/her from committing certain types of offences. But such detention cannot be made a substitute for the ordinary law and absolve the investigating authorities of their normal functions of investigating crimes which the detenu may have committed. After all, preventive detention in most cases is for a year only and cannot be used as an instrument to keep a person in perpetual custody without trial. Accordingly, while following the three-Judge Bench decision in Rekha case we allow the appeal and set aside the order passed by the High Court dated 20-7-2011 and also quash the detention order dated 15-22011, issued by the Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the inordinate delay in executing the detention order otherwise the subjective satisfaction gets vitiated. Since the law is well settled in this behalf we do not propose to refer to other judgments which were brought to our notice. 10. As indicated earlier the only explanation given by the detaining authority as regards the delay of 40 days in executing the detention order is that despite their efforts the petitioner could not be located at his residence or in his office and therefore the order could not be executed immediately. No report from the executing agency was filed before us to indicate as to what steps were taken by the executing agency to serve the detention order. In the absence of any satisfactory explanation explaining the delay of 40 days, we are of the opinion that the detention order must stand vitiated by reason of non-execution thereof within a reasonable time. From Annexure P-2 (the proceeding-sheet of the Metropolitan Magistrate's Court, Madras) it appears that the petitioner (accused) was present in the Court of the Additional Chief Metropolitan Magistrate on 25-2-1999 as well as on 25-31999. Despite such opportunities neither the detaining authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lains the steps taken by the Department to serve the petitioner. As the petitioner could not be served in the ordinary way a look out circular was issued on 28.3.2014. The Department took steps under Section 7(1)(b) of the COFEPOSA Act. A copy of the order dated 31.3.2014 was published in the official gazette. A publication was carried out in the local newspaper and a report was also sent to the ADG, DRI, for filing the same before the concerned Chief Judicial Magistrate. 32. In our view, the Department has been able to satisfactorily explain the steps taken by them to serve the petitioner and, thus, the submission of learned counsel for the petitioner is rejected. (Emphasis Supplied) 93. The detenue in Manish Gadodia (Supra) was continuously residing at his residence and attending court proceedings, yet there was a delay in the execution of the detention order of about 19 days. Quashing the detention order, a coordinate bench of this Court observed as under: 28. It is no more res integra that the Detaining Authority must explain satisfactorily the inordinate delay in executing the detention order, otherwise the subjective satisfaction gets vitiated. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 94. A reference to the Letters bearing No. F.No.671/6/2001-Cus.VIII dated 12.07.2001 and bearing No. F.No. 702/MAD/S/33/2006-Cus.IX dated 21.02.2007 mentioned in Smitha Dey Bhattacharya (Supra) and Manish Gadodia (Supra) respectively issued by the Ministry of Finance, Government of India shows that the Government itself has directed prompt communication of the detention order. Our attention is directed towards another Letter bearing No. F.No.671/12/2009Cus.VIII dated 03.08.2009 which reiterates the directions. 95. We may also notice the decision of a coordinate bench of this Court, wherein one of us (G.S. Sistani, J.) was a member, in Smitha Gireesh v. UOI Ors., 2016 SCC OnLine Del 3697: MANU/DE/1440/2016. The detention order therein was passed on 31.03.2015 and the detenue was, even thereafter, working as ACIO-I at Bhubaneswar, Odisha, yet there was a delay of about 9 months in execution of the detention order. This Court found that the authorities were all along aware about the whereabouts of the detenue while futile efforts to serve him were made in his home state, i.e. Kerala. In view thereof, the order of detention was quashed by this Court. The relevant porti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g seized in the matter. As per procedure, the order was sent by the Sponsoring Authority to the Executing Authority, being the senior-most police officer of the State where the proposed detenue was to be detained, i.e. Goa. 97. In the Counter Affidavit, the State has detailed the steps taken by it in a chronochological manner. We deem it appropriate to reproduce it in its entirety below: GROUND F: Copy of the Chronological Chart showing the steps taken pursuant to the issuance of the Detention Order is given hereunder:- SN Date Event 01 20.05.2016 COFEPOSA Detention Orders in respect of Shri Ibrahim Ateef Damda Fakki and Smt Shehnaz Laiq Ahmed Ansari were signed by the Competent Authority. 02 23.05.2016 Detention Orders along with GOD, Index and RUD were handed over to Department s Officer at New Delhi. 03 24.05.2016 Detention Orders along with Ground of Detention, photographs of detenue and SOPs were handed over to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fixed on 13.07.2016 14 22.06.2016 27.06.2016 30.06.2016 Calls were made to the Office of the SP (North Goa) to enquire about the status of execution. 15 06.07.2016 Ministry asked for the Action Taken Report both from the Sponsoring Authority as well as from the Executing Authority 16 14.07.2016 Comprehensive Action taken Report sent to the Director (COFEPOSA) CEIB New Delhi, marked as Annexure D-4 17 25.04.2015 Apart from these, the department had already filed Criminal Misc Application before Hon‟ble Chief Judicial Magistrate, Margao for the cancellation of bail granted to the accused on 25.04.2016, on the request of the defense advocate next date of hearing was fixed on 05.05.2016. 18 05.05.2016 On the request of the defense advocate next date of hearing was fixed on 01.06.2016. 19 01.06.2016. Case was adjourned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Address A Present House No 765/2A, DF House Bunder Road, IInd Cross Muscat Colony, Kokti Nagar, Bhatkal, Uttara kannada, Karnataka 581320, (New Address) House No 29 DF House Kokti Nagar, I Cross Uttar Kannada, Karnataka-581320 (Old Address) Flat No 2 Khayal Al-Watani (National Tailor) Building, Alras Deira Dubai B Permanent House No 765/2A, DF House Bunder Road, IInd Cross Muscat Colony, Kokti Nagar, Bhatkal, Uttara kannada, Karnataka 581320, C Native Place Bhatkal, Karnataka 100. From the aforegoing, it is manifest that the authorities were all along aware of the residential address of the detenue, where the detenue alleges to have resided whilst in India. It has been specifically averred in the writ petition that the detenue was staying at his native place at Bhatkal, Karnataka and came to know of the detention order only after its publication in a national newspaper on 05.08.2016. There is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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