TMI Blog2005 (2) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... sonal search resulted in recovery of Indian Currency worth Rs.14,650/- and Foreign Currency equivalent to Rs.6,94,500/-, besides, travelers cheques totally worth Rs.12,87,252/- and the same were seized under Panchanama and he was arrested by the Custom Authorities. The foreign currency worth Rs.3,16,505/- is stated to have concealed in the bag, which was carried by the detenu and there was no declaration made in relation to the said foreign currency by the detenu before the Customs Authorities before boarding the air craft. The arrest of the detenu was followed by the investigation, which included the recording of his statement under Section 108 of the Customs Act, 1962, followed by retraction of statement and thereafter by Order dated 28.2.2002. The Detaining Authority issued the said impugned Detention Order and the same was served upon the detenu along with the grounds in support thereto on 21.9.2004. It is also to be noted that pursuant to the arrest of the detenu, an application for bail came to be filed before the concerned Magistrate, which was allowed on 18.9.2001 and the detenu was released on bail on 29.10.2001. 3. As regards the first ground of challenge it is the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities under Section 124 of the Customs Act almost during the same time when the Order was issued had returned unserved with the postal remarks Left . He has further submitted that it is also not the case of the detenu either in the Petition or otherwise that the detenu was staying at Mumbai during the relevant time. Besides, in an application filed by the detenu before the Magistrate on 30.12.2001 he had disclosed his address of Kerala and it was not revealed that he had been residing at Mumbai at that time. As far as action under Section 7(1) of the COFEPOSA Act is concerned the same was taken after receipt of inability of the Kerala Police to execute the detention order on account of non availability of the detenu at Kerala and therefore, there was no delay as such in taking the action under Section 7(1) of the COFEPOSA Act. Even otherwise, according to the learned APP, the detenu himself having avoided the service of detention order by absconding himself, he cannot be allowed to take benefit of his own wrong to defeat the detention order. The reliance is sought to be placed in the matter of Shaikh Mohammad Saeed Karamatullah v. State of Maharashtra and Ors. reported in 2004 ALL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing taken under Section 7(1) of COFEPOSA Act the order remained to be executed for considerable time as the detenu was absconding. Thereafter the detenu surrendered before the Metropolitan Magistrate, 3rd Court, Mumbai, and an intimation thereof was received by the Government on 15.9.2004. The detention order was then given effect to by executing the same on 21.9.2004. It is the case of the respondents that all these time the detenu himself was absconding and was deliberately avoiding the execution of the detention order. 6. The above explanation given by the respondents regarding the delay in giving effect to the detention order apparently discloses that the respondents did make efforts to execute the said detention order at the place of ordinary residence of the detenu in Kerala immediately after issuance of the order. Undoubtedly the statement recorded under section 108 of the Customs Act of the detenu by the Customs Authorities on 6.9.2001 disclosed the permanent address of the detenu to be at Kerala and the detention order was issued on the same address and was also sent to be executed at the same place. The materials on record also reveal that the said statement the deten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the application filed by the detenu. It nowhere records the presence of the detenu before the court on the said day. The fact that the matter was not fixed for hearing before the Magistrate on 8.7.2004, is also revealed from the Roznama dated 17.6.2004 wherein it is recorded that the matter was adjourned to 3.8.2004. Undoubtedly the entries relating to the dates of 3.8.2004, 11.8.2004 and 25.8.2004 disclose presence of the accused before the Magistrate. At the same time the affidavit in reply also discloses that pursuant to the information received by the Government about the appearance of the accused before the Magistrate in August 2004, the authorities took necessary steps to serve the detention order and it was accordingly served on 21.9.2004. Being so, the contention that the detenu had appeared as many as on five occasions before the Magistrate during the relevant period is incorrect and totally devoid of substance. In fact Roznama entry dated 8.7.2004 itself discloses that the matter was taken up on board in order to direct the appearance of the detenu on the next date of hearing and which apparently discloses that prior to the said date the detenu had not appeared before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities complaining about the non receipt of the show cause notice under Section 124 of the Customs Act and there being presumption about the knowledge to the detenu of the detention order in view of direction under Section 7(1)(b) having been published in Official Gazette, it was necessary for the detenu himself to disclose the reason for not being possible for him to appear before the authority and his whereabouts and having failed to do so, the detenu cannot take benefit of his own wrong. Being so, mere failure on the part of the authorities to inform to his advocate about the necessity of presence of the detenu to serve the order cannot endure to the benefit that the detenu who was apparently shown to be absconding at the relevant time. Besides, admittedly the advocate's notice was in relation to the grievance pertaining to the non receipt of the show cause notice under Section 124 of the Customs Act. Merely because the authorities dealing with adjudication proceeding under the Customs Act had not informed about the requirement of the detenu for the purpose of service of the detention order, it cannot be said that there is unexplained delay in giving effect to the detent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the efforts on the part of the respondents to serve the detention order discloses his non availability in Mumbai as well as in Kerala and the fact that he was absconding during the said period. 11. The Division Bench of this Court in Shaikh Mohammad Saeed Karamatullah's case (supra) while dealing with the issue relating to delay in giving effect to the service to the detention order and after taking note of the decision of the Apex Court in T.A. Abdul Rehman v. State of Kerala reported in 1990CriLJ578 as well as Pradeep Nilkanth Paturkar v. S. Ramamurthi, reported in 1994CriLJ620 has clearly held that the Court has to ascertain whether the detaining authority had satisfactorily examined such a delay and afforded the tenable and reasonable explanations. Considering the facts stated above and the explanation given by the respondents for inability to give effect to the detention order dated 28.2.2002 till 21.9.2004, certainly the same discloses the detaining authority having satisfactorily examined the delay and has forwarded satisfactorily explanation for such delay and therefore, the contention on behalf of the detenu that the delay has rendered the detention order to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the representation on 25.11.2004. Considering the fact that the representation was dated 2.11.2004, the contention of the learned advocate for the detenu is that there is no satisfactory explanation for such delay in considering the representation. The learned advocate for the respondents on the other hand referring to the affidavit filed by the Commissioner of Customs has submitted that pursuant to the representation dated 2.11.2004 the comments of Sponsoring Authority by letter dated 5.11.2004 were called for and the said letter was received by the said authority on 9.11.2004 and parawise comments were submitted on 17.11.2004. He has also brought to our notice that the 6th and 7th of November, 2004 being Saturday and Sunday were non working days for the Customs and from 10th to 13th November 2004 there were Diwali Holidays followed by 14th and 15th being Sunday and Ramzan-Id holiday respectively. Considering the same it is sought to be contended that there was no delay as such and the period taken for disposing of the representation has been well explained. It is also the contention on behalf of the respondents that the Government has independently considered the representation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period between 25.8.1989 to 11.9.1989, except stating that the representation received from the detenu was forwarded to the concerned Sponsoring Authority on 21.8.1989 and the same was received by the department on 11.9.1989 and those circumstances, it was observed that there was undue as well as unexplained delay which amounted to violation of the provisions of Article 22(5) of the Constitution of India rendering the detention order to be invalid. 16. In Mrs. Venmathi Selvam's case (supra) the Apex Court has ruled that though the delay was not long it had remained unexplained. That was a case wherein representation dated 7.10.1997 was received on 14.10.1997. The representation was rejected by the Government on 10.11.1997. The Government was required to explain as to how it dealt with the representation between 15.10.1997 and 10.11.1997, except stating that the remarks were called from the Detaining Authority on 17.10.1997, there was no explanation whatsoever, even after specific opportunity being given by the Court to the Respondents to file the affidavit. Inspite of opportunity being given and as the same was not availed of, nor any explanation was submitted by the Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een referred to in support of such submission. The very fact that the relevant files were in possession of the different department at the relevant time, itself would disclose the justification for the decision by the Government subsequent to the decision by the said authority. There is no record which can even remotely suggest that the decision of the Government was influenced by the decision of the said authority. 19. The third and the last ground of challenge is that considering the materials placed before the detaining authority, same would reveal acts of smuggling on the part of the detenu, as there was no case for issuance of the order on the ground that the activities of the detenu were prejudicial to the augmentation of the foreign exchange. It is the contention of the detenu that there was no material placed before the detaining authority sufficient to arrive at the conclusion that the activities of the detenu were in any manner prejudicial to the augmentation of the foreign exchange and therefore, the impugned order is bad in law. The respondents on the other hand have submitted that the detenu was intercepted on 6.9.2001 while he was travelling to Dubai by Gulf Air Fl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
