JUDGMENT
N. Arumugham, J.
1. By filing this writ of habeas corpus petition, the detenu by name Raju Ghanasekaran who was detained by an order of detention passed by the 1st respondent vide detention order No. SPL. 3(A)/PSA 1296/90, dated 13-11-1996 detaining him by virtue of Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSA) has challenged the detention order along with the grounds of detention which was contemporaneously served on the detenu on the date of his arrest i.e. on 1-7-1997, and prayed for quashing and setting aside the same.
2. On 15-12-1995 the officers of the Kalamboli Police Station interrogated five persons namely, (1) Kamaluddin Kikan Shaikh, (2) Nazir Abdul Hamid Tungekar, (3) Pappu alias Jethanand Lekhmichand Tolani, (4) Shabbir Ahmed Mohammed Akbar Qureshi, and (5) Nasim Khan Nasir Khan on suspicion at Panvel Thane Road, near the Kalamboli Fire Brigade. It was also stated that some persons among the above had attempted to tamper with the seal of a container of the truck trailer bearing No. MH-04-C4807 and container No. IPEL-200057-7. When the police opened the container under a panchanama dated 17-12-1995 a large quantity of Russian ball bearings and heavy metal scraps were found in it which were seized by the police believing that the container had been pilfered from the Jawaharlal Nehru Port. On investigation 13 persons referred in para 3 of the grounds of detention were arrested for having conspired to remove the container from the port unauthorisedly which include the name of detenu, and they were produced before the Judicial Magistrate, First Class, Uran who remanded all of them to police custody and latter released on bail on 28-12-1995. However, the seized goods including the vehicles were taken in custody by the Customs authorities, Jawahar Customs House under a panchanama on 31-12-1995.
3. The container was found with 1,12,267 Russian made ball bearings and 4770 Kgs. of heavy metal scrap totally valued at Rs. 11,61,1457- (FOB) and Rs. 82,89,622/- according to the prevailing market value. The said goods were seized under the Customs Act under the reasonable belief that they were smuggled and were imported without documents to evade Customs duty. The truck trailer used to transport the smuggled goods, the container which carried the said goods and the Maruti van bearing No. BLL-209 which had earlier been found on the site at Kalamboli by the police were all seized by the Customs authorities under the relevant provisions of the Customs Act. On further investigations it was also learned that the said container had been brought by the ship M.V. Susak from Dubai on 3-12-1995 vide voyage No. 79/95, and bill of lading No. NHA/4839 dated 27-12-1995 consigned in the name of M/s. Fatima International, 32, Abhinandan, 306, L.B.S. Marg, Kurla (West), Mumbai 400 070. The Customs found subsequently that nobody came to claim the said goods. The statement of all the above 13 persons were recorded which showed that in substratum a conspiracy between Kokkadan Ibrahim and others were hatched out to smuggle the goods from Dubai and the said persons were to be paid by Mohammed Asharaf Rs. 5.5 lakhs as consideration as charges for the illegal clearance of the said goods. In order to execute the plan Mr. Z.A. Mohd. and Kokkadan approached Kamaluddin who further obtained the services of Nazir Tungekar through Bhuvan alias Mohan P. Koli. K. K. Shaikh obtained Maruti Van above referred from Pappu Tolani for use in the removal of the container from J. N. Port. Mr. Tolani sought the assistance of the detenu and the driver of the van Manoharan who was also working with J. N. Port. It also appears that they had also chalked out a series of meetings at Ashoka Hotel, Uran. Kamaluddin Shaikh who was conversant with the formalities for movement of the containers and who had worked with a Stevedores Company hired a truck trailer from M/s. Prakash Goods Carrier, Mumbai to remove the containes clandestinely from J. N. Port. He had also instructed Koli to collect the relevant documents of import like bill of lading, certificate of origin, commercial invoices etc. The said truck trailer driven by Nasim Khan was brought outside the container gate of J. N. Port on 15-12-95 with the connivance of CISF Constable P.V. Sreekumar and the truck trailer entered the port without a gate pass. CISF Constable Sayed Beer Mohammed who was on gate duty allowed the entry and the truck trailer was parked near the canteen where he met driver Manoharan, the detenu and P.V. Sreekumar who instructed Nasim Khan to park the truck trailer alongside a container. In the presence of the detenu as also Constable Sreekumar crane operator Shashikant Mhatre, who loaded the container, was paid by driver Nasim Khan on the directions of Manoharan who drove the truck trailer without connivance of Nasim Khan who followed on foot and was trying to stop the trailer before the container gate. Nasim Khan left the J. N. Port without a gate pass after Manoharan spoke to CISF Constable Perumal A. Gandhi. Nasim Khan brought the truck trailer to Jasai on the instructions of Shabbir Qureshi at about 8.30 p.m. on 15-12-95.
4. Kamaluddin Shaikh, Pappu Tolani, Nazir Tungekar and Bhuvan Koli learned of the removal of the container from the J. N. Port by a telephone call from the detenu at the shop of one L. K. Jain at Uran. Kamaluddin informed Z. A. Mohd. in Mumbai on the removal of the container. All of them arrived at Jasai from Uran in a Maruti Van provided by Pappu Tolani and proceeded to Kalamboli where Nasirn Khan had parked the truck trailer near the Kalamboli Fire Brigade on the highway. While Kamaluddin Shaikh, Nazir Tungekar and Pappu Tolani got hacksaw and locks from Uran and were attempting to break open the seal of the container with Shabbir Ahmed they were caught by the police. Subsequently Z. A. Mohd. was arrested and his statements dated 13-12-1995 and 1 -1 -1996 were recorded under Section 108 of the Customs Act. So also the statements of Shashikant Mhatre was also recorded all of which corroborates the above fact, among whom five persons have retracted their own statements which were duly repudiated.
5. The detenu, C.I.S.F. constable P.V. Sreekumar, Shashikant Mhatre and Shabbir Ahmed Qureshi were also arrested and remanded and the detenu was later on released by this Court on bail on 2-3-1996 and subsequently the conditions imposed by this Court were modified on 23-3-1996 and thus the detenu availed of the bail granted by this Court. A show cause notice was also issued to all the accused including the detenu whose names were mentioned in para 3 which was replied to. Having thus projected several persons hatched out a conspiracy and indulged in the prejudicial activities of smuggling the foreign goods by illegal and unlawful means, contrary to the provisions of the Customs Act and having applied its mind as sponsored by the Customs authorities the 1st respondent being the detaining authority, after having recorded its subjective satisfaction that the detenu is likely to indulge in further prejudicial activities in future passed the impugned order of detention above referred to on 13-11 -1996 and aggrieved by this the present writ petition challenging the same has been filed.
6. We have heard learned counsel on both the sides and their respective contentions regarding their respective cases.
7. Mr. Tripathi, learned counsel for the petitioner has mainly dealt with his attack upon the impugned order in the grounds referred to in para 11(b) of the writ petition which in substratum goes to show that the impugned order of detention passed against the detenu has become vitiated, mainly because the live link between the prejudicial activities of the detenu, committed as early as 17-12-1996 and the order of detention passed on 13-11 -1997 has been snapped and the very proximity between the two has been broken and therefore on this ground alone the impugned order has become vitiated.
8. Mr. Tripathi, learned counsel for the petitioner next contended that there was an inordinate and unexplained delay in executing the order of detention upon the detenu which also goes to the root of the case and that thereby the impugned order of detention suffers very much and has become vitiated. He further contended that the order of detention was passed on 13-11 -1996 and was executed admittedly upon the detenu only on 1-7-1997, that is, nearly after 7, 1/2 months. The learned counsel has thus projected his contention to the effect that not only there was inordinate and unexplained delay in execution of the order of detention as stated above, but the detaining authority was also totally inactive and kept silent upon their imperative duties in taking action as provided by the law, namely, under Section 7(1)(a) and (b) of the COFEPOSA, as well as proclamation and the other activities provided by the provisions of law.
9. We have heard Mr. Bagwe, the learned APP who on the contrast mainly based on the contentions referred to in the returns filed by respondents in the instant case.
10. Mr. M.M. Kamble, Joint Secretary to the Government of Maharashtra, in his sworn affidavit at page 77 (para 6) inter alia contended that after having received the grounds of detention, annexure and relevant documents vide Government letter Home dated 13-11-1996 the same were sent to the Assistant Commissioner of Police, Fort Area, Sheva, Navi Mumbai, Uran for execution and requested him vide letter dated 21-3-1997 to intimate the efforts made to apprehend the detenu, which letter was endorsed to the Assistant Commissioner of Customs, Mumbai, with a request to send the requisite proposal under Section 7(1)(a) and (b) of the COFEPOSA Act, 1974. He stated further that the Assistant Commissioner of Customs, Mumbai, vide letter dated 9-4-97 had informed that the detenu availed of the bail on 18-4-1996 and when the detenu’s last addresses were visited he was not available and that the detenu was evading the detention order which letter was received in the Home Department on 11 -4-1996. According to him the Assistant Commissioner of Police, Port Area Uran was again reminded vide Government letter of Home Department dated 28-4-1997. The Assistant Commissioner of Customs, (P), Mumbai, was requested vide Government letter dated 3-5-1997 to intimate the latest position of cancellation of bail and forfeiture of bail bonds, who in turn vide his letter dated 9-5-97 informed that minimum three efforts to trace the person outside the working hours were required by the Court for cancellation of bail bond and in that regard required information had been called from the Executing Authority and that the same is yet to be received. He contended in the said letter that it was also requested to proceed with issuance of necessary order under Section 7(1)(a) and 7(1)(b) of the said Act. According to him the said letter was received in the Home Department on 9-5-1997 and that the proposal under Section 7(1)(a) and 7(1)(b) of the said act against the detenu was processed through the Deputy Secretary on 31-5-97 and the detaining authority on 2-6-97 and the same was submitted to the Deputy Chief Minister (Home) who in turn considered the proposal and approved the same on 5-6-97 and the order under Section 7(1)(b) of the COFEPOSA Act, 1974 was issued by Government on 12-6-97, directing the detenu to appear before the Commissioner of Police Bombay within 30 days of the publication of the order in the Maharashtra Government Gazette. However, he stated that the detenu was detained on 1-7-97 and the detention order along with the grounds of detention and annexures and relevant documents were served upon him.
The above is the explanation” provided by the detaining authority through the returns filed in the instant case.
11. The Sponsoring authority has also attempted to explain the delay of 1/2 year by filing a sworn return and affidavit at para 3 in the following words :
3. With reference to paragraph 11 (B) of the petition, I say that, the claim of the petitioner that there is a delay in serving the Detention order is denied. A Telex message was sent to the Assistant Commissioner of Jawahar Custom House, Nhava Sheva and Asst. Commissioner of Customs, Madras, on 18-11-96 to make discreet enquiries on the whereabouts of the petitioner. The officers of the Sponsoring authority and/or Executing Authority had visited the known address at Mumbai on 19-11-96. Asstt. Commissioner Trichy, vide telex dated 22-11-96, informed that the detenu is not available at his native place. A letter to Dy. Commandant, CISF, Nhava Sheva, was sent on 26-11 -1996, requesting him to intimate the sponsoring authority’s office in case the detenu visited his office for salary etc. Another telex to Asstt. Commissioner of Customs, Trichy, was sent on 11-12-96 once again for making discreet enquiries regarding the whereabouts of the detenu. In the meanwhile proposal for action under Section 7(1) was initiated on 9-4-97, for declaring the petitioner as an absconder. An application for cancellation of bail bond was filed in the Court of Uran on 9-5-97. While granting bail, the Court of Uran had not ordered the accused to attend the Court. There had been no remand dates between the date of issue of order and the date of serving the Detention order on the petition. Hence the contention of the Detenu is not tenable.
12. Mr. V.S. Shete, Assistant Commissioner of Police, attached to Nhava Sheva Port Division, New Bombay, has also filed a sworn affidavit wherein he has explained the delay in paragraphs 2, 3 and 4 in the following terms :
2. I say that the order of Detention against the Detenu was issued on 13th November, 1996. The same was received by my office i.e. in the Office of Nhava Sheva Port Division on 20th November, 1996, by post from the Office of Desk Officer, Home Department (Special), Government of Maharashtra, Mantralaya, Mumbai. I say that after receipt of the order of Detention on 22nd November 1996,1 had written a letter to the Deputy Commandant, C.I.S.F. JNPT Sheva. The detenu was working as Constable in C.I.S.F. JNPT Sheva. I say that I requested the Deputy Commandant, C.I.S.F. JNPT to assist me to locate the detenu and supply permanent and local addresses of the places of the Detenu, where the Detenu was likely to visit.
3. I say that by letter dated 23rd November, 1996, Shri P. K. Panda, the Deputy Commandant in C.I.S.F. JNPT Sheva informed me that the detenu is dismissed from service on 17-11-1996 and on 17-11-1996 the Detenu has vacated his residential premises. I say that he further informed that he is not having local address of the Detenu. The permanent address of the Detenu was furnished, which is situated in village Pagattivan Patti, Post : Mahanoor, Taluka Gandarvakkottai, District Pudukkottai, Tamil Nadu State.
4. I say that on 20th June 1997.1 addressed a letter to the Superintendent of Police, District: Pudukkottai, requesting him to apprehend the detenu and intimate my Office. I say that on 1st July 1997, after receipt of reliable information that the detenu is present in Uran City, he was apprehended on 1st July 1997 near S.T. Stand and after identifying him, the Order of Detention was served upon him on 1-7-1997.
13. Having looked into the relevant contentions of the learned counsel for the petitioner with reference to the contents of the affidavit filed by the writ petitioner and on behalf of the respondents it is noticed that there is no controversy or dispute among the parties herein that the offending act of the detenu viz. the prejudicial activities are alleged to have been committed during the month of December 1995. The order of detention was passed by the 1st respondent, detaining authority on 13-11-1996. The detenu was arrested on 1 -7-1997, nearly after 7l/2 months. By way of reply or offering an explanation in the reply affidavits filed and referred to above, it clinches the fact that there was only some exchange of correspondence between the Sponsoring authority and the detaining authority with regard to the execution of the order of detention to the detenu. It is the admitted fact that the detenu was in judicial custody immediately after his arrest and till he was released on bail on 8-4-1996 by the High Court on certain conditions which were removed subsequently, as can be seen from the roznama forming part of the compilation filed by the petitioner at pages 53 and 54, and he was attending the three hearings before the Court concerned. It is also clear that the detenu was dismissed from service and that consequent to the dismissal he has vacated his residential quarters on 17-11-1996. The copy of the roznama appended by the learned counsel further shows that the detenu had attended the Court proceedings subsequent thereto. There was no evidence or piece of documents or any material placed before us to show that there was any attempt or effort taken by the detaining authority to apprehend the accused in order to arrest him and serve him the order of detention till he was arrested on 1-7-1997. Some letter correspondence are claimed to have been initiated between the Home Department and the Assistant Commissioner of Customs and the police, apparently without any effective steps being taken as provided by law.
14. Having considered the contents provided in the reply affidavit filed on behalf of the respondents we are totally unable to accept any iota of the material which is in the pretext of explanation given by the detaining authority or any other officers concerned on behalf of the respondents. The resultant position of the above circumstances is that the delay existed between the passing of the detention order viz. 13-11-1996 and the order of detention executed on arresting the detenu on 1 -7-1997. Practically there was no effort or direct action or attempts taken by either of the respondents in the instant case. The so called explanation offered by and on behalf of the respondents in the reply affidavits cannot at all be sustained for any reason. If this is so we have no hesitation to accept the delay on 7’/2 months in executing the order of detention passed on 13-11-1996 because it goes to the root of the case and as such the live link between the alleged prejudicial activities of the detenu herein and the execution of the order of detention has been completely severed and there was no proximity either between the two and hence on this ground alone we are constrained to say that the impugned order of detention has become vitiated.
15. Coming to the next contention made by the learned counsel for the petitioner we may straight away observe that there was some force in the said contention that the detaining authorities viz. the respondents had conscientiously not taken any steps concretely as provided by the law particularly under Section 7(1)(a) and 7(1)(b) of the COFEPOSA, nor under the relevant provisions of Code of Civil Procedure nor by declaring the abscondency of the detenu whatsoever in any manner. A close scrutiny of the record and the affidavits clearly demonstrate the fact that there was total indifference, laxity and inaction on the part of the respondents herein against the detenu for the purpose of arresting and serving the detention order along with the grounds. This would go to the root of the case in our view.
16. In a case between K.P.M. Basheer v. State of Maharashtra 1992 Cr LJ 1927 at page 1929, paras 8, 9 and 10 observed as follows :
8. Of course, this contention has not been specifically taken in the Memorandum of Appeal, but there can be no bar to advance a legal argument in a case of this nature and especially when such a contention has been raised before the High Court. We went through the explanation given in para 9 of the counter-affidavit filed on behalf of the first respondent by the then Commissioner and Secretary to Government, Home Department. It is not denied that the detention order was executed after a period of 5 months and 11 days. What the first respondent states is that various efforts were taken to trace the detenu at Tellicherry at the address given in the grounds of detention as well as in the Bombay address, but he could not be secured. Further it has been stated that though the arresting officers attempted to secure him at the Court of Chief Judicial Magistrate at Belgaum on 6-3-91, 28-3-91 and 14-5-1991 on which dates the criminal case as against him stood posted before that Court, the officers could not do so as the appellant did not appear before the Court for hearing. Further it is mentioned that though COFEPOSA Section in the office of the Collectorate of Customs requested the State Government on 19-4-91 to initiate action under Section 7(1)(b) of the Act it was not done so because the seizing unit was asked to make one more attempt to trace out and detain the appellant. This explanation is not a satisfactory and reasonable one for the following reasons :
(1) No sufficient cause is shown for not taking any action under Section 7 of the Act.
(2) It appears from the paragraph 9 of the counter-affidavit that the officers came to know of the correct address of the appellant Bombay, but they could not trace him. It may be pointed out that the Bombay address at which place the appellant-detenu was attempted to be secured is not given in the counter. Had it been given, the Court would have been in a position to verify the averments made in the grounds of detention stating that the address at Bombay given by the appellant was a fictitious one.
9. In paragraph 17 of the writ petition filed before the High Court, the appellant has asserted that he appeared before the Asstt. Collector of Customs, Marine Lines, Bombay on 6-2-91 and 20-2-1991 but no attempt was made to arrest and detain him. This specific averment has not at all been denied in the counter. This indicates that the arresting officers did not take any real and genuine effort to secure and detain the appellant. The explanation now offered stating that the appellant was fugitive, eluding the drag-net of the detention order cannot be accepted, because during the alleged period of search he has appeared before the Assistant Collector of Customs, Bombay on two occasions during Feb., 1991, that is after passing of the detention order.
17. In the case between Shri Netaji Narayan Lotlikar v. State of Goa in 1992 Cri. J 2363 at page 2365 in para 7 the Court observed as follows :
No doubt, this Court has observed in the case (cited supra) that in case of a detenu who is absconding action Under Section 7 of the COFEPOSA Act should be taken immediately. However, after going through the various decisions which Mr. Karmali and Mr. Bhobe have relied in this regard, as we have already observed above, the ratio seems to be that if there is a delay in resorting to Section 7 of the COFEPOSA Act to cause the arrest of the detenu then the delay should be satisfactorily explained. Failure to do that would be fatal. We have already pointed out above that in this case there is no explanation for the delay and, therefore, the consequences must result in the release of the detenu. Having regard to these facts, we allow the petition and quash and set aside the impugned order dated 3rd May 1990. The detenu is directed to be released forthwith, unless he is required in any other case. Rule made absolute in the above terms.
In a case between P.U. Iqbal v. Union of India in JT 1991 (6) SCC 496 : 1992 Cri LJ 2924 the Apex Court, had the occasion to hold in paragraphs 8 and 9 as follows at page 2926 & 2927 (of Cri LJ) :
8. There is indeed a plethora of authorities explaining the purpose and avowed object of preventive detention in express and explicit language. We think that all those decisions of this Court on this aspect need not be recapitulated and recited. But it would be suffice to refer to the decision of this Court in Ashok Kumar v. Delhi Administration wherein the following observation is made (at page 1195 (of Cri LJ):
Preventive detention is devised to afford protection to society. The object is not to punish a man of having done something but to intercept before he does it and to prevent him from doing.
9. In view of the above object of the preventive detention, it becomes very imperative on the part of the detaining authority as well as the executing authorities to be very vigilant and keep their eyes skinned but not to turn a blind eye in securing the detenu and executing the detention order because any indifferent attitude on the part of the detaining authority or executing authority will defeat the very purpose of the preventive action and turn the detention order as a dead letter and frustrate the entire proceedings.
18. Importing the legal pronouncement held by the Courts in hierarchy of our land to the facts of the instant one are constrained to hold that the live link, the proximity and the nexus to be prevailed and existed between the prejudicial activities of the detenu herein and execution of the detention order has been totally snapped in the instant case and therefore it has broken out by the very laxity and inaction on the part of the respondents on their part and in not taking any efforts or steps to apprehend and secure the detenu for the purpose of detention and the impugned order in our considered view has become wholly vitiated.
19. Since no other substantive point has been raised before us on behalf of either of the parties we are confined with our observations to this extent only.
20. In the result for all the reasonings and observations given above this writ petition succeeds and accordingly it is allowed. Consequently the impugned order of detention passed bearing No. SPL 3(A)/PSA 1296/90, dated 13-11-1996 by the respondent No. 1, against the detenu Raju Gnanasekaran is hereby quashed and he is set at liberty forthwith unless he is wanted in some other provisions of law.