TMI Blog2023 (10) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... action, which is prejudicial to make an order for detaining him. The unexplained and inordinate delay of thirty years in the present case does not justify the preventive custody of the petitioner. As held in the case of Shafiq Ahmad [ 1989 (9) TMI 381 - SUPREME COURT] the satisfaction of the authorities based on conduct must precede action for prevention based on subjective satisfaction. In the present case, the action based on satisfaction is not commensurate with the situation after thirty years of the detention order. It is not even the case of the authorities that in the last thirty years, the petitioner was engaged in any prejudicial activity or has indulged in any objectionable activity. Petitioner is right in submitting that there was no material adduced indicating that the petitioner was absconding or that the petitioner was evading arrest. Thus, by relying on the principle of law laid down by the Hon ble Supreme Court in the case of Shafiq Ahmad, we find that the action under Section 7 of the COFEPOSA Act would not be decisive or determinative of the question of whether there was undue delay in serving the order of detention in the present case. In the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed at a subjective satisfaction that there was reason to believe that the petitioner was engaged in unauthorised acquisition of foreign exchange and transferring the same surreptitiously out of India in violation of the provisions of FERA. The detaining authority has further recorded a subjective satisfaction that the petitioner has carried out unauthorised transactions and has adversely affected the foreign exchange resources of the country. The detaining authority has further recorded that though prosecution under the provisions of FERA is likely to be initiated against the petitioner, the detaining authority was satisfied that unless detained, the petitioner was likely to continue to engage in the activities in future prejudicial to the augmentation of the country s foreign exchange resources. 3. The aforesaid detention order dated 17th May 1993 is served upon the petitioner on 28th February 2023. Pursuant to the opinion of the Central Advisory Board as per the hearings conducted on 2nd May 2023 and 3rd May 2023, respondent no. 2, in the exercise of the powers conferred by section 8(f) of the COFEPOSA Act, confirmed the detention order dated 17th May 1993 and directed the det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 2023 on the ground that the petitioner was absconding. The learned counsel submitted that no material is on record to show that any attempt was made on behalf of the detaining authority to serve the detention order on the petitioner. He, therefore, submitted that, in the absence of knowledge of the detention order to the petitioner, he could not have been said to have absconded. The learned counsel submitted that, thus, the detention order could not have been executed after a period of 30 years. Hence, the petitioner submitted that the detention of the petitioner in the year 2023, based on the detention order issued in the year 1993, is illegal and impermissible. Hence, the learned counsel submitted that the detention order deserves to be quashed and set aside being illegal and impermissible and petitioner be released forthwith. 7. The learned counsel appearing for respondent no. 1 - the Enforcement Directorate - the Sponsoring Authority, has relied upon an affidavit dated 25th August 2023 of Shri. Vineet Rathi, Assistant Director, Directorate of Enforcement, Government of India, Ministry of Finance, in support of the detention order. The learned counsel submitted that all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... support of his submissions: i. Kasim Kadar Kunhi Vs The State of Maharashtra and others WP (Cri.) 2198/2004 dated 2.2.2005, Bombay High Court ii. Subhash Popatlal Dave Vs Union of India and another (2014) 1 SCC 280 iii. Rudra Pratap Singh Vs Union of India Ors WP(Cri.) 1326/2002, dated 23.1.2008, Delhi High Court iv. Pankaj Kumar Sharma Vs Union of India and Ors. (2019) 262 DLT 481 (DB) v. Mohd Nashruddin Khan Vs Union of India Ors, Gopal Gupta v Union of India Ors and Amit Pal Singh Vs Union of India WP (CRL) 786/2020 CRI.M.A.5862/2020, WP(CRL) 1009/2020 CRL.M.A.8726/2020 WP(CRL) 1019/2020 CRL.M.A. 8743/2020 vi. Bherchand Tikaji Bora Vs The Union of India Ors WP(Cri.) No. 2930, dated 6.7.2006, Bombay High Court vii. Shabna Abdulla Vs the Union of India and Ors WP(CRI.) 596/2022, dated 24.1.2023, Kerala High Court. 9. The learned counsel appearing for respondent no. 2- the detaining authority, also supported the detention order by relying upon the affidavit dated 9th August 2023 of P.K. Mittal, Director (COFEPOSA Wing), Government of India, Ministry of Finance, Department of Revenue, Central Econo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... August 1993 by the Assistant Enforcement Officer, which indicates that the petitioner was not available at the given address and that the flat was locked. 11. The order dated 9th February 1994 indicates that the Under Secretary to the Government of India, in the exercise of the power conferred by clause(b) sub-section (1) of section 7 of the COFEPOSA Act, directed the petitioner to appear before the Commissioner of Police, Bombay within a period of 7 days of the publication of the said order in the official gazette. The learned counsel for respondent no. 1 has relied upon the publication of the said order in the official gazette to support the contention that there is due compliance of service of the detention order upon the petitioner. 12. We do not find any substance in the submissions made on behalf of respondent no. 1 that publication of the order under clause(b) of sub-section (1) of section 7 of the COFEPOSA Act would amount to sufficient compliance of the service of the detention order upon the petitioner. It is not the case of respondent no. 1 that any attempts were made to serve the detention order as required under clause (a) of sub-section (1) of section 7 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontention of the authorities explaining the delay of two years and seven months in executing the detention order. 15. In the decision of Delhi High Court in the case of Rudra Singh the detention order dated 11th April 2002 was served upon the detenu on 10th June 2002 i.e. within a period of two months. In the decision of Delhi High Court in the case of Pankaj Sharma the contention of authorities was accepted that the local police had taken effective steps to serve the detention order, including conducting raids at different locations; however, the detenu was not found, and the detention order was served upon the mother of the detenu. Thus, in both these cases, in view of the facts of the case and the explanation of the authorities, it was held that on publication of order under section 7(1)(b) of the COFEPOSA Act, the detenu s knowledge of the existence of the detention order will have to be presumed. 16. In the decision of this Court in the case of Bherchand Bora, the explanation for the delay of more than five years in executing the detention order was accepted as the proclamation issued under section 7 (1) (b) of the COFEPOSA Act was pasted on the residential address of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isfaction entails belief. Satisfaction and belief are subjective. Actions based on subjective satisfaction are objective indication of the existence of the subjective satisfaction. Action based on satisfaction should be with speed commensurate with the situation. Counsel for the petitioner submitted that in this case there was no material adduced on behalf of the Government indicating that the petitioner was absconding . It was urged that there are no material at all to indicate that the petitioner was evading arrest or was absconding. It was submitted that Section 7 of the Act gave power to the authorities to take action in case the persons were absconding and in case the order of detention cannot be executed. It is stated that in this case no warrant under Section 7 of the Act has been issued in respect of his property or persons. Hence, it was contended that the respondent was not justified in raising the plea that the petitioner was absconding. We are, however, unable to accept this contention. If in a situation the persons concerned is not available or cannot be served then the mere fact that the action under Section 7 of the Act has not been taken, would not be a groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nordinate delay of thirty years in the execution of the detention order is explained by the concerned authorities. The detention under the COFEPOSA Act is for the purpose of preventing persons from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or preventing from smuggling goods, or abetting smuggling goods, or engaging in transporting or concealing or keeping smuggled goods or dealing with the same or harbouring person engaged in such activities. Hence, there must be conduct relevant to the formation of the satisfaction having reasonable nexus with the petitioner's action, which is prejudicial to make an order for detaining him. The unexplained and inordinate delay of thirty years in the present case does not justify the preventive custody of the petitioner. As held by the Hon ble Supreme Court in the case of Shafiq Ahmad, the satisfaction of the authorities based on conduct must precede action for prevention based on subjective satisfaction. In the present case, the action based on satisfaction is not commensurate with the situation after thirty years of the detention order. It is not even the case of the authorities that in the last ..... X X X X Extracts X X X X X X X X Extracts X X X X
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