TMI Blog1997 (5) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... enu, under the provisions of the Foreign Exchange Regulation Act. 2. The detenu gave a statement under Section 40 of the Foreign Exchange Regulation Act stating among other things that his brother Mohammed introduced him to one Babu-Bhai who promised to give ₹ 5,000/- for each trip if he smuggles foreign currencies out of India. The detenu was arrested on 21-11-1992 and he was remanded to judicial custody. Subsequently, the detenu was released on bail by the Cheif Metropolitan Magistrate, Bombay on 4-12-1992. On the basis of the above allegations, the first respondent, viz., Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi passed detention order under Section 3(1) of the COFEPOSA Act, on 17-5-1993. The detention order stated that Ummer Ibrahim, the detenu, be detained and kept in custody in the Central Prison, Trivandrum. Even though the detention order was passed on 17-5-1993, the detenu was arrested and detained in the Central Prison, Trivandrum only on 4-6-1996, three years after the order of detention was passed. The grounds of detention and documents were also served on the detenu. The case of the detenu was referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inable in this Court. 5. Regarding the contention of delay in executing the detention order, the counter-affidavit states as follows: The detention order was issued on 17-5-1993, but the same could not be executed as the detenu was absconding from his all known places till he was detained on 4-6-1996. The Enforcement Directorate, Calicut made enquiries at the detenu's residential premises as many as 14 times, viz., 12-9-1993, 15-12-1993, 10-2-1994, 15.4.1994, 12-8-1994, 11-11-1994, 3-1-1995, 6-4-1995, 8-7-1995, 11-10-1995, 9-1-1996, 12-4-1996, 15-5-1996 and 29-5-1996, which revealed that the detenu was not found available at the given addresses. The relevant enquiry reports submitted by the officers of Enforcement Directorate, Calicut in this regard are self-explanatory. Secondly, the order under Section 7(1)(b) of the COFEPOSA Act was issued against the detenu by the Central Government as per Order F. No. 673/48/93-CUS. VIII dated 28-4-1994. It is then submitted that in view of the above facts, it is clear that the detenu was absconding right from the beginning and hence the detention order in question could not be executed despite the concerted efforts made by the sponsori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod he had worked as an officer of the Chase Manhattan Bank, New York, proceedings have been initiated under the Extradition Act. In view of the letter of request received from the US Embassy in New Delhi for the extradition of the petitioner's-husband, the Central Government after being satisfied directed the Additional Chief Metropolitan Magistrate. Patiala House Courts, New Delhi to conduct an enquiry into the alleged offences. The Magistrate after enquiry submitted his report on 19-11-1993 to the Central Government reporting that a prima facie case existed against the petitioner' s-husband. That was done under Section 7(4) of the Extradition Act. In the counter-affidavit, the contention raised by the respondent was that the Original Petition was not maintainable in this Court. This contention was accepted by a Division Bench of this Court and Pareed Pillay, C.J., on behalf of the Bench, held as follows: Admittedly the order was passed by the Additional Chief Metropolitan Magistrate, New Delhi. As this Court has no jurisdiction over the Magistrate who submitted the report regarding the petitioner's-husband she can only approach that High Court having jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the detention order itself says that the detenu is to be detained in the Central Prison, Trivandrum. In pursuance of this, the detenu was arrested and was detained in the Central Prison, Trivandrum. In a petition for habeas corpus, detention is one of the important facts, which has to be established for securing the release of the detenu. Thus, the detention forms part of the cause of action to be proved in a petition for habeas corpus. In the Law of Extraordinary Legal Remedies by Forrest G. Ferris at page 58 dealing with the writ of habeas corpus, it is held as follows: Venue :- Application for the writ should, unless otherwise provided by statute, be made to the Court or Judge exercising jurisdiction over the place or territory where or within which the party in custody is held; the place of detention fixes the jurisdiction, without reference to the residence of the person detaining. 10. In Manjulaben v. C.T.A. Pillay 1976 Cri LJ 889, a similar question came up for consideration before the Gujarat High Court. There the detenus, who were ordinarily resident of the Gujarat State, were detained under orders passed under the Maintenance of Internal Security Act, 1971 and we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenu was deprived and the grounds of detention were served on him. Hence, according to the Court, the essential, act of detention physically happened in Tamil Nadu. Since part of the cause of action had arisen in the State of Tamil Nadu, it was held that that Court had jurisdiction. So far as the present case is concerned, the order of detention was served on the detenu in Kerala. He was arrested in Kerala and he was detained in the prison at Trivandrum in the State of Kerala. According to us, these are essential facts which form part of the cause of action. Hence, we hold that this Court has got jurisdiction and hence the Original Petition is maintainable in this Court. 12. Now we shall consider the contention raised by the petitioner that the detention of the detenu is illegal, since there was long delay in executing the order of detention. The order of detention was passed on 17-5-1993. The detenu was arrested only on 4-6-1996, after a delay of three years. In ground No. 2 of the Original Petition, it has been stated that the detenu had not absconded and that he was very much available in the places known to the authorities. According to the petitioner, the authorities had no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the detenu was not then residing in the above address and there is nobody in the locality to give his present whereabouts. It was in this context that we directed the respondents to file an additional affidavit. But the additional affidavit also does not improve the situation. It is not enough if the authorities report that the detenu was not available in the address and hence the warrant of arrest could not be executed. No details are given as to what steps were taken to trace out the detenu. The order of detention shows two addresses of the detenu. It is not clear from the reports whether enquiries were made in both the addresses. Further, the detenu had obtained bail from the Metropolitan Magistrate, Bombay. We are told that the bail was granted on the security of two sureties. No enquiries appear to have been made about the two sureties when the authorities found that the detenu could not be found in his address. Further, no action had been taken to move for canceling the bail order. These facts show that no bona fide attempt has been made by the authorities to trace out the detenu in order to execute the detention order. We are sorry to state that no bona fide attempts have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enuineness of the subjective satisfaction of the detaining authority vitiating the validity of the order of detention. 16. This Division Bench also dealt with the same question in O. P. No. 16273/96. In that case, there was a delay of 6Vi years in executing the detention order. This Court quashed the detention order on the ground of delay. In the course of the judgment, my Lord, the Chief Justice, said as follows: Therefore, although we have a bald statement that the Special Squad met these persons in Kerala of Ponnani and learnt and the warrantee was in Gulf Country, but that again was of no effect, because neither any effort was made by them to obtain the address of the detenu from those persons whom they met not any enquiry whatsoever was made to apprehend the alleged detenu at Abu Dhabi. There was absolutely no effort by these authorities on which we can place reliance. Even the respondents' counsel could not point out any averment to the effect that any such effort was made by the Investigating Authorities to apprehend the detenu at Abu Dhabi. 17. Thus, ongoing through the records and affidavit, we are satisfied that the authorities have not been able to explain t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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