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TMI Blog2008 (8) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts and circumstances of each case and in spite of various decisions of this court and the Supreme court in that regard it is not possible to have a straight-jacket formula for answering the aforesaid issues which are often raised by petitions questioning the detention orders. As we are required to answer these issues in the facts and circumstances of this case, we must set out few facts, relevant enough, to decide these issues and we do so hereunder. 3. The detention order is issued in exercise of powers conferred by Section 3(1) of The Conservation of Foreign Exchange and Prevention of Smuggling Activigties Act, 1974 (hereinafter referred to as "the said act" for the sake of brevity) whereby the petitioner Saeed Zakir Hussain Malik has been directed to be detained under the said Act. The detenu was arrested on 21st October 2005 and was enlarged on bail on 11th November 2005. The detention order is dated 14th November 2006 and has been admittedly served on the detenu only on 1st February 2008 i.e after a period of about 14 ½ months. 4. Along with the detention order, the detenu has been served with the grounds of detention and a list of documents accompanied by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the detaining authority but also by the executing authority explaining the efforts made in serving the order of detention on the detenu by giving graphical details about the efforts. It is contended that after realising that the detenu has absconded, an action was also taken under section 7(1)(b) and additionally under Section 7(1)(a) of the said Act and that the detenu did not comply with the same. It is submitted that on the receipt of secret inteligence, certain persons were apprehended and brought to the office of Directorate of Revenue Intelligence (DRI) and that on inquiry with them it revealed that one of those persons who were apprehended, was the detenu. 7. Learned APP relied on three decisions of three different Division Benches of this Court which are as under :- (i) Smt.Poonam Rajeev Pathak Vs. The Union of India and others reported in 2002-ALL MR (Cri).-2182; (ii) Bapu Shantaram Satam Vs. The Union of India and others - Criminal Writ Petition No.1909 of 2003 dated 29th March 2004 (Paragraph 9 onwards); and (iii) Kasim Kadar Kunhi Vs. State of Maharashtra & others reported in 2005-ALL MR (Cri)-1468 (paragraph 8 onwards). By relying on the aforesaid three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Act was taken; 1.2.2008 - On receipt of secret intelligence, certain persons were apprehended and brought to the office of DRI, when on enquiry it transpired that one of them was the detenu. The detention order with grounds and annextures served on the detenu. 3.3.2008 - The detenu submitted a representation against the order of detention; 14.3.2008 - The representation was rejected; 22.4.2008 - The Advisory Board confirmed the order of detention; 24.4.2008 - The order of confirmation issued and served on the detenu. 9. The legal issue argued at some length in this case was that according to the learned APP, once a notification is issued by taking appropriate steps u/s 7(1)(b) of the said Act, the detaining authority as also the executing authority will have to be presumed to have discharged their burden of proving that they have made all the efforts to execute the detention order. It is contended that thereafter i.e. after issuance of the aforesaid Notification u/s 7(1)(b) of the said Act, the burden shifts to the detenu to show that though the detenu was available for service of the detention order, these authorities have failed to effect the service re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a particular officer at a particular place and within a particular time, specified in the order so notified. The second part deals with the consequence of failure of the detenu to comply with the direction contained in the order so notified under the first part. This second part stipulates that on failure of such a detenu to comply with such Notified order, the detenu shall be punishable with imprisonment for a term which may extend to one year or with fine or with both. This second part further states that such detenu however will not be liable for such a consequence i.e. punishment, if the detenu proves the following, in the exact language of the said provision :- (a) that it was not possible for him to comply therewith and (b) that he had, within the period specified in the order, informed the officer mentioned in the order of the reason which rendered compliance therewith impossible and (c) of his whereabouts, It is pertinent to note that all these requirements are conjunctive and not disjunctive, in as much as, the provision uses the term "and" and not "or" therein. Thus the detenu is required to prove that it was not possible for him to comply with the N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emplates certain steps to be taken by the appropriate Government. One of the steps to be taken by the appropriate Government is to issue an order requiring the detenu to appear before a specified officer at a specified place and within a specified time. The order is required to be issued accordingly and is further required to be notified in the Official Gazette so that, in law, it can be presumed that the detenu has not only been informed but also has been made aware that the detenu is required to appear before a notified officer at a notified place within a notified time. Once the order requiring the detenu to appear in the notified manner within a notified time is Notified in the Official Gazette it is not open, in law, for the detenu to contend that the detenu was not aware of such an order. {For effect of notification in the Official Gazette - see (2005) 6 SCC 262 (Paragraph 13,14)}. This requirement of appearance of the detenu is obviously for the purpose that as and when the detenu so appears, the detention order can be executed i.e. the detention order can be served on such a detenu. However, if the detenu fails to comply with such a Notified order by failing to appear a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding that an order requiring the detenu to appear before a notified officer at a notified place within a notified time is to be issued and is also to be notified in the Official Gazette. Once such an order is notified the detenu is required to appear accordingly, which enables the authorities to execute the order of detention. If the detenu fails to appear and consequently the order of detention remains un-executed, the burden shifts to the detenu to prove that the detenu took all the steps as contemplated by the second part of Section 7(1)(b) of the said Act, including that the detenu has informed the notified officer of his whereabouts. Once the detenu proves that the detenu took all the steps as contemplated by the second part of the Section 7(1)(b) of the said Act, the burden again shifts back to the authorities to prove that even after the detenu has informed inter-alia of his whereabouts why the authorities have failed to execute the order. If the authorities fail to discharge this burden then obviously an irresistible conclusion will have to be drawn against the authorities of having failed to observe the mandate of Article 22(5) of the constitution, resulting into vitiating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the second part of the said provision, it will frustrate the very purpose and object of enacting section 7 of the said Act. 21. As observed by the Supreme Court in the case of Bhavarlal Ganeshmalji reported in AIR 1979 SC 541, if the delay that has occurred in serving the order of detention on the detenu, is found to be as a result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider that the "link" between the prejudicial activities of the detenu and the need of clamping the detention order on the detenu is not snapped but strengthened. As observed by the Division Bench in the case of Bapu Shantaram Satam's case (supra), slackness, inertia or indolence is to be attributed to the detaining and/or executing authority, if the detenu is available for service and yet the order is not promptly served. We are not hesitant in expressing our respectful agreement with the observations of the Division Bench, apart from the binding nature thereof, that if a person knowingly full well that the order of detention is issued against him makes himself scarce, neither the detaining authority nor the executing authority can be held respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te in two different fields, although the purpose of both these provisions is to secure the custody of the detenu against whom a detention order is passed. It also makes it clear that burden to show that the detenu was not an absconder but had reason not to comply with the order notified under section 7(1)(b) of the said Act, lies on the detenu and further that this burden also has a reference to the punishment to be imposed on the detenu under the said provisions. This judgement also clarifies that the detenu can "escape" the punishment prescribed under section 7(1)(b) of the said Act by discharging the burden so cast on the detenu on account of notified order under section 7(1)(b) r/w section 7(1)(a) of the said Act. The distinguishing features of the case dealt with by the Division Bench in aforesaid Criminal Writ Petition No.3 of 2008 and this case are that in that case, admittedly, nothing was done by the respondents therein in terms of section 7(1)(a) of the said Act, whereas, in our case, such step has been taken by the respondents herein, in addition to the steps taken under section 7(1)(b) of the said Act. While in that case, on facts, it was found that the delay was not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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