JUDGMENT
R.G. Vaidyanatha, J.
1. This is Habeas Corpus petition filed under Article 226 of the Constitution of India. Respondents have filed objections. Lengthy arguments were heard by spreading over about 9 days.
2. Relevant facts necessary for the disposal of this petition are as follows:
The detenu in this case is one Niranjan Jayantilal Shah. Petition is filed by detenu’s brother in law. It appears, on credible information, the Officers of Income Tax Department searched the premises of the detenu bearing flat Nos. 201, 202, 301 and 302 on 30th and 31st May, 1992 in the presence of the detenu. During this search huge foreign currency and some incriminating documents were seized. Statement of the detenu was recorded on 30-5-1992 and also on subsequent dates. The statement of the detenu disclosed that he had purchased foreign currency from unaccounted money and the detenu intended to import some machinery for his business. Seized foreign currency and copies of relevant documents were handed over to the Enforcement Directorate, Bombay for further investigation. Computer floppy and the print-out were also seized during the search which indicated that the detenu had transactions with many persons and firms and some of the entries were in Codes. Many witnesses were examined during investigation. It also transpired that the detenu had transactions with Harshad Mehta, who is the main accused in the stock scam case which shook the country. Investigation disclosed that the detenu has been engaged in unauthorised transactions in foreign exchange which is in violation of the provisions of the Foreign Exchange Regulation Act, 1973. These unauthorised transactions have affected foreign exchanges resources of the country adversely. If the detenu is allowed to continue his activities in future, then it will seriously affect augmentation of foreign exchange resources to the country. After giving details of the statements of number of witnesses recorded during the investigation, the Detaining Authority passed an order under section 3 of the COFEPOSA Act, 1974 in order to prevent the detenu from acting in any manner prejudicial to the augmentation of foreign exchange. The detention order is dated 9-3-1993.
According to the Detaining Authority the detenu had absconded from country sometime after 1-6-1992 after he was released on bail and went abroad. Number of notices were sent for his appearance and then a proclamation was issued that the detenu is absconding under the provisions of COFEPOSA Act.
The prosecution was also launched against detenu in Criminal Court for disobeying the statutory notice issued by the Enforcement Directorate. Then extradition proceeding were also initiated, with the foreign country where the detenu was staying and ultimately he was brought to India in pursuance of the arrest warrant issued by the special judge in SCAM case and while the detenu was in custody in SCAM case he was formally taken into custody under the detention order on 27-8-1993.
The detenu made representation to the Central Government and also to the advisory board against the order of detention. He was also heard in person by advisory board. Representation of the detenu came to be rejected by the Central Government and the order of detention was confirmed.
On behalf of the detenu, his brother in law filed the present petition and has challenged the order of detention on many grounds. Respondents have filed affidavits in reply opposing the petition and supporting the order of detention.
3. Shri V.R. Manohar, learned Senior Counsel appearing for the petitioner, raised following points in support of the petition.
i) Vital and relevant materials were not placed before the Advisory Board.
ii) Copies of the seized floppies and part of panchanama not supplied to the detenu.
iii) The Detaining Authority being not aware of the custody of the detenu in criminal case and executing the order while the detenu was in custody.
iv) delay in executing the order of detention.
v) passing the order of detention when defence was abroad.
vi) No communication by the Advisory Board about the result of the representation made by the defence to the Advisory Board.
vii) Unexplained delay in considering the representation by the Government.
On the basis of the above points learned Senior Counsel argued that the order of detention is illegal and liable to be set aside and at any rate continued detention of the detenu is bad in law and, therefore, he is entitled to be released forthwith.
On the other hand, learned Senior Counsel Shri Arvind Bobade appearing for Union Government and learned Prosecutor appearing for the State Government supported the order of detention and contended that none of the above points can be pressed into service to the peculiar facts and circumstances of the case.
We will consider all the points one by one in the light of the arguments addressed at the Bar.
4. The learned Counsel for the petitioner made a submission that notwithstanding the merits of the case regarding the allegations of smuggling made against the detenu, the detenu is entitled to be released if the safeguards provided under the law of preventive detention are violated. For this proposition he invited our attention to two decisions of the Supreme Court.
In Smt. Icchu Devi Choraria v. Union of India, , Supreme Court noticed that there was some violation of the safeguards provided in the law of preventive detention and therefore, the order of detention was set aside. Supreme Court observed that by its order a smuggler may have to be released but it could not be helped. Supreme Court explained that preventive detention is a draconian law to be justified only in the interest of public security and order and it is tolerated in a free society only as a necessary evil. It is the duty of the courts to upheld the personal liberty of the citizens, for it is one of the most cherished values of mankind. Supreme Court further added that a detenu must be set at liberty if there is violation of or breach of any provisions of law, however wicked or mischievous the detenu may be.
Similarly in Ratan Singh v. State of Punjab, A.I.R. 1982 S.C. 1, the Supreme Court took the same view with the following observations:
“…Maybe that the detenu is a smuggler whose tribe (and how their numbers increase) deserves no sympathy since its activities have paralysed the Indian Economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenu. Section 11(1) of COFEPOSA confers upon the Central Government the power to revoke an order of detention even if it is made by the State Government or its officer. That power, in order to be real and effective, must imply the right in a detenu to make a representation to the Central Government against the order of detention. The failure in this case on the part either of the Jail Superintendent or the State Government to forward the detenu’s representation to the Central Government has deprived the detenu of the valuable right to have his detention revoked by that Government. The continued detention must therefore be held illegal and the detenu set free..”
We are fully aware and conscious of the above verdict of the Apex Court and accordingly consider several contentions urged on behalf of detenu irrespective of the seriousness of the allegations of smuggling activity alleged against the detenu. In this connection we may also observe that in many of the reported decisions of the Supreme Court it has been clearly ruled that each case depends on its own facts and circumstances. There cannot be any rule of thumb. For instance, in one case delay of 15 days or a month in executing the order of detention or in communicating the decision of the Government may be fatal but in another case delay of three months may not be fatal if there is proper and sufficient explanation for the same. Hence in our view, we have to consider peculiar facts and circumstances of this case in the backdrop of the law declared by the Supreme Court on several legal points which were urged before us.
5. POINT NO. 1–The learned Counsel for the detenu contended that certain vital facts were not placed before the Advisory Board and thereby the continued detention of the detenu is bad in law. The necessary allegations in the petition on this point are found in para xii wherein it is alleged that certain documents were not placed before the Advisory Board. At the time of arguments, learned Counsel for the detenu fairly conceded that most of these documents were available to the detenu and he himself could have placed the same before the Advisory Board and, therefore he confined his attack on non-production of one material namely several subsequent statements of the detenu recorded by the Enforcement Directorate during the course of investigation. On the other hand, it is asserted by the Detaining Authority that the entire file which contained the entire statements of the detenu, were kept ready at the time of hearing before the Advisory Board and at that time there was no request on behalf of the detenu to produce these statements before the Advisory Board. Even in the petition, there is no allegation that the Detaining Authority was called upon to produce these statements before the Advisory Board. Of cource, the detenu had asked concerned authorities to give copies of his further statements but it was rejected since it was too premature a stage to give copies of those statements. Admittedly these further statements of the detenu came to be recorded in July/August, 1993, long after the detention order. These statements were not in existence when the detention order came to be passed. Now the question is whether there was any legal duty cast on the part of the Detaining Authority to produce these statements which have come into existence after the detention order before the Advisory Board and if so whether the non-production of the same vitiates the continued detention of the detenu.
6. The learned Counsel for the detenu has referred to some authorities. In an unreported decision of this Court dated 7-7-1987 in Criminal Writ Petition No. 173 of 1987 it was found that the order of detention was based upon confession of one Subhash Ghadia, who had subsequently retracted from the said confession. The retraction was subsequent to the detention order. Admittedly this retracted confession was not placed before the Advisory Board. It was in that context it was observed by this Court that non-placing of retracted confession of Subhash Ghadia before the Advisory Board vitiates the continued detention.
Same view is taken by the Madras High Court in, K.V. Jesudasan v. State of Tamil Nadu, 1989 Criminal Law Journal 637. Even in that case the order of detention was based on a statement of one Jahangir but, subsequent to the order of detention, in reply to a show cause notice, Jahangir had given a statement which was not placed before the Advisory Board. It was noticed by the High Court that a part of the subsequent statement of Jahangir was helpful to the detenu but it had not been placed before the Advisory Board.
In our view the above decision must be read having regard to the facts and circumstances of those cases. In both the cases subsequent or retracted confession had bearing on the detention of the detenu and, therefore, they were vital documents which ought to have been placed before the Advisory Board.
On the other hand we may make useful reference to a case reported in, Raverdy Marc Germain Tubes v. State of Maharashtra, , wherein it was found that detenu’s later retracted confession was not placed before the advisory Board. It was held by the Supreme Court that it will not vitiate the detention order particularly when the detenu was present before the Board and he himself could have informed the Board about the retraction. Even in the present case the detenu had appeared in person before the Board alongwith three advocates. If he had made such subsequent statement either in the form of the retraction or otherwise, he would have informed the Board about the same. It is interesting to notice that nowhere in the pleadings there is any mention as to how the subsequent statement would have improved detenu’s case. On the other hand, the statement has been made on behalf of the Detaining authority to say that all the subsequent statements of the detenu are in the same line as earlier statements. In fact the learned Counsel appearing for the Union of India offered to show the file containing further statements of the detenu and submitted that the statements are on the same line as earlier statements and, therefore, production of the subsequent statements of the detenu before the Advisory Board would not have improved the position of the detenu in any way unlike the two cases mentioned above where retracted confession or subsequent statements of the witnesses would have a bearing on the decision of the Advisory Board.
Even at the cost of repetition we have to mention that there is no mention any where in the voluminous pleadings in this case that detenu made any further statement which was favoruable to him and which had bearing on the decision to be taken by the Advisory Board. As already stated by us we have to be guided by peculiar facts and circumstances of this case. Further, statements of the detenu recorded after the detention order, are only in the same line as the original statements and, therefore, non production of these subsequent statements before the Advisory Board will not vitiate the continued detention of the detenu.
7. Point No. 2–The argument is that a floppy bas been seized from the house of the detenu but copies of the floppy are not given to the detenu but what was given to him was print-out of floppy. Further contention is that the panchanama with entire annexures was not given. It was, therefore, argued that order of detention is bad in law for non-supply of these documents. Some decisions were relied on this point by the learned Counsels appearing on both the sides.
Copy of the main panchanama is given but with only two annexures and other annexures are not given. Similarly print-outs of seized floppy are given but not separate copy of the floppy. In other words the point made out is that a floppy is in the form of disc or tape and similar tape or disc should have been given to the detenu and not a mere print-out. The learned Counsel for the Union of India has produced statement that of the detenu wherein he has clearly admitted that not only a floppy but his print-outs were also seized. Now what the department says is that the print-outs of the seized floppy and copies of seized print-outs were given to the detenu. The learned Counsel for the Union has also brought to the notice of the Court the pleadings and documents to show that there is no difference between the copies of the original floppy and print-outs that are given to the detenu. The detenu has no where alleged that the print-outs given to him are incorrect or they are not correct copies of the original floppy. On the other hand the Detaining Authority has asserted in the affidavit and a statement was made by the learned Counsel for union that there is no difference between the print-outs furnished to the detenu and the contents of the floppy that was seized from the house of the detenu. Hence, there is no question of any prejudice being caused to the detenu for not giving copy of the floppy or by furnishing a mere print-outs of the floppy. We must also bear in mind that print out is taken out from a floppy by mechanical process from a computer which ensures correctness of the copy. Even for a moment, if we concede that copy of the floppy has not been given, the question is whether it is fatal and vitiates the order of detention in the facts and circumstances of the case. As far as panchanama is concerned, grievance is that Annexure ‘O’ under which the floppy and print-outs/are seized, is not given to the detenu. The learned Counsel for the Union of India showed annexure ‘O’ of the panchanama to us which contains 3 to 4 sentences showing seizure of the floppy and print-outs and non-supply of the same cannot, in any way, cause prejudice to the detenu for making effective representation against the order of detention.
8. The learned Counsel for detenu has relied on, Moose Velliat v. The Asst. Secretary Govt. of Maharashtra, 1983 Criminal Law Journal 1246 (Bombay), Mohd. Zakir v. Delhi Administration, , Mehrunissa v. State of Maharashtra, , Narender Singh Savan Singh v. The State of Maharashtra, 1981 Criminal Law Journal 772 and some unreported decisions of this Court where it has been observed that if documents relied on in the grounds of detention are not supplied to the detenu or they were supplied after long delay then it vitiates the order of detention. There is absolutely no doubt about this principle of law.
We may also make useful reference to some of the decisions relied on by the learned counsel for the State namely, Shri Adbul Sattar Abdul Shaikh Kadar v. Union of India, , Madanlal Anand v. Union of India, , Sayed Farooq Mohammad v. Union of India, , wherein it has been pointed out that obligation on the part of the Detaining Authority is only to supply those documents which are relied on for passing order of detention and not other documents. Therefore, the test is whether the Detaining Authority has supplied all the documents which has been relied on while passing order of detention or not.
9. Admittedly copy of the detention order, grounds of detention and all the documents mentioned in the grounds of detention were supplied to the detenu on the same date. Perusal of the grounds of detention shows that in many places it has been mentioned that the Detaining Authority has referred to “print-outs of the floppy”. No where the Detaining Authority stated that he has himself perused the floppy. What the Detaining Authority through-out referred to in the grounds of detention is only “print-outs of the floppy”. Now admittedly “print-outs of the floppy” are given to the detenu. Similarly as far as panchanama is concerned, the Detaining Authority has referred to only relevant extract of panchanama given to him by the Income Tax Department. The Detaining Authority has not referred to the other annexures of the panchanama in their grounds of detention. He has not referred to floppy as such as in the grounds of detention. Whatever documents the Detaining Authority has relied on, are mentioned in the annexure to the grounds of detention. Admittedly all these documents which are mentioned in the annexure to the grounds of detention are given to the detenu.
In para 47 of the grounds of detention the Detaining Authority has stated as follows:
“while passing detention order under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, I have relied upon documents mentioned in the enclosed.”
It is, therefore, clear that the Detaining Authority has referred to only those documents which are mentioned in the enclosed list. In the enclosed list to the grounds of detention only panchanama and part of annexures are given which is shown as item No. 1. Thus, there is reference in the body of grounds of detention to the print-outs if the floppy in more than one place. Further Item No. 4 in annexure to the grounds of detention refers to the computer print-outs of the seized two floppy discs. Admittedly copies of the print-outs and the copies of Item No. 1 of annexure to the grounds of detention are given to the detenu. Therefore, we find that whatever documents that are relied on by the Detaining Authority are given to the detenu. The detenu cannot ask for some other document or documents in some other forms which are not relied on in the grounds of detention.
Hence, in our view, the detenu has been supplied with all the documents as per the annexures to the grounds of detention which are referred to and relied on by the Detaining Authority. Hence point No. 2 canvassed before us has no merit and is rejected.
10. Point No. 3–The contention on behalf of the petitioner is that on the date of the detention order was passed/executed, the detenu was in judicial custody and there is no conscious application of mind on the part of the Detaining Authority about the awareness of detenu being in judicial custody and the necessity to take him into custody for the purpose of preventive detention. It is no doubt true that the trend of judicial opinion is that if a detenu is in custody then there should be awareness on the part of Detaining Authority about the same and the detention order must indicate the same and the detention order must indicate the necessity of preventive detention when the detenu is already in custody. But in this case as on the date of order of detention namely 9th March, 1993 the detenu was not in custody and he was a free agent. But subsequent to the order of detention, the detenu came to be arrested in the famous scam case against Harshad Mehta and then when he had been remanded to judicial custody in that case, the order of detention came to be executed. Since the detenu was not in custody as on the order of detention, there was no scope for the Detaining Authority to mention any reason for preventive detention of the detenu on the ground that he was in custody. But we are concerned with subsequent event namely the detenu being in judicial custody on the date of the execution of the order of detention namely 27th August, 1993. Question is whether the continued detention of the detenu can be said to be bad on the ground that no fresh order is passed by the Detaining Authority giving reasons for taking the detenu to custody when he was in custody in some other case.
11. Learned Counsel for the detenu invited our attention to the decision reported in Abdul Razak Abdul Vvaheb Shaikh v. S.N. Sinha, Commr. of Police, Ahmadabad, A.I.R. 1989 S.C. 2265. That was also a case where detenu was in custody on the date of execution of the detention order. It was noticed that the detenu had been arrested in some other criminal case and the bail application had been rejected by the Court and there was no possibility of his being released in the near future. In that case, even on the date of detention order, the detenu was in jail. There was a mention in the order that there was a chance of the detenu moving for bail and coming out of jail but admittedly no application had been filed at that stage. In those circumstances it was held that it was a case of non-application of the mind on the part of Detaining Authority.
In Binod Singh v. District Magistrate, Dhanbad, Bihar, , the detenu was in custody when the order of detention came to be executed. It was observed that though the order of detention was justified when it was passed, it could not be sustained since there was no proper consideration of the fact that the detenu was in custody when the order came to be executed and there was no real danger of the detenu being released. Supreme Court observed as follows”
“In the facts and circumstances of this case, therefore, the continued detention of the detenu under the act is not justified.”
Supreme Court further pointed out that in the affidavit filed on behalf of the Detaining Authority there were no indications about the need to serve the detention order while detenu was in custody. In fact while setting aside the order of detention, the Supreme Court observed that if, however, the detenu is released on bail in criminal cases, it is open to the appropriate authority to reconsider and serve the order of detention.
12. In our view, the above observations of the Supreme Court are to be read in the peculiar facts and circumstances of the case which the Supreme Court itself has made it clear in para 6 of the reported judgement, which we have extracted above.
13. Reliance was also placed on an unreported judgement of this Court in Criminal Writ Petition No. 1223 of 1987 dated 9th March, 1988 where it was pointed out that the detenu was in custody when the order came to be executed and no material was placed before the Court about the possibility of the detenu coming out of jail which necessitated the execution of the order. That was a case where the detenu had been released on bail in criminal case and he himself surrendered before the Court and his bail was cancelled. Naturally the accused could not have come out on bail when bail had been cancelled at his request. Further in para 5 of the judgement this Court has observed as follows:
“The affidavit filed in this case throw no light that this aspect of the matter was considered by the Detaining Authority.”
Therefore, the question is always one of the fact, which has to be explained by the Detaining Authority or the competent authority by filing affidavit or otherwise about the necessity to execute the order of detention when the detenu was in custody on the date of the service of the order.
14. There is no dispute that there is no illegality if the order of detention is executed when the detenu is in custody; vide Kamarunissa v. Union of India, J.T. 1990 S.C. 7, the only requirement is that the Detaining Authority must be aware that the detenu is in jail and that there should be something on record to show the necessity of executing the order of detention on the detenu who is already in custody.
In the case mentioned above J.T. 1990 S.C. 7, the detenu was in custody on the date of the order of detention. In the grounds of detention it was clearly mentioned that the detenu was in custody but offences are bailable. But it was found that the offences alleged against the detenu were non-bailable. It was, therefore, argued before the Supreme Court that there was non-application of mind on the part of Detaining Authority since he has treated the offences as bailable though they were actually non-bailable. But the Supreme Court observed that at the time of arguments the learned Counsel appearing for the Government stated that word ‘bailable’ is used in a popular sense and not in a legal sense. In other words the submission was that even in non-bailable offences bails are granted and, therefore, the Detaining Authority has used the word `bailable offence’ with the impression that the accused may get bail in that case.
Similarly, in the present case, the affidavit of the Detaining Authority and the submissions of the learned Counsel for Union of India is that no charge sheet has been filed in the scam case in which the detenu had been arrested and, therefore, the maximum period for which the detenu could have been detained in that case was only 90 days and, therefore, the Detaining Authority felt necessity of executing the order. Admittedly the detenu was arrested in the scam case and was remanded to police custody and then to judicial custody. Under section 167 of Code of Criminal Procedure the maximum period of remand for judicial custody is only 90 days. If no charge sheet is filed within the said period of 90 days, then the accused is entitled to bail as of right, irrespective of the nature or gravity of the offence. That means the accused has a statutory right to get bail and come out of jail if charge sheet is not filed within 90 days. The Court can take judicial notice that the scam case of Harshad Mehta was in respect of thousands of crores of rupees and, therefore, required lot of investigation and examination of number of witnesses and documents and hence there was no possibility of charge sheet being filed within 90 days. If in those circumstances the Detaining Authority or executing authority felt that the detenu may be released on bail as of right by virtue of statutory right and felt the necessity of executing the order of detention, it cannot be said that the Detaining Authority has committed any illegality. We must also bear in mind that under the scheme of COFEPOSA Act, there is no provision for passing second order of detention. When once the order of detention is passed under section 3 of the Act, the only next stage is to execute the said order. In some of the decisions referred to by the learned Counsel for the petitioner which we have discussed above , there is clear indication in the reported decisions stating that no affidavit or other material is placed before the Court to explain the reason for executing the detention order when the detenu was in custody. Now in this case there is affidavit of Detaining Authority to say that he was aware that the detenu was in custody and since the maximum period of remand was 90 days only in law, he felt that the order should be executed. We are not sitting in appeal against the opinion formed by the Detaining Authority. We must only see whether the reasons given by the Detaining Authority are just and proper. Hence in the facts and circumstances of this case, it cannot be said that the Detaining Authority has committed any illegality in executing the order of detention when the detenu was in custody.
15. Then there is one more approach to the question involved. Supposing in a given case the detenu is absconding and for 3 to 4 months detention order could be executed, the detenu cannot be turn around and say that the detention order is bad since there is delay in executing the order. If the delay is caused due to his own absconding, the detenu cannot plead about the delay in arresting him. That means if a detenu by his conduct has prevented the execution of the order of detention by absconding, he cannot plead about delay in the execution of the order. Similarly if the detention order in this case has been executed due to the conduct of the detenu and on his own invitation and request, the detenu cannot turn around and say that his detention is bad. Few facts are necessary to explain this.
16. According to the Detaining authority, the detenu was absconding and could not be traced for quite sometime. Then it was found that the detenu was in Abudhabi. In the scam case CBI moved the Special Judge and got an order for arrest warrant against the detenu and took out extradition proceedings and the detenu was brought to India and was remanded to police custody and then to judicial custody. When he was in such remand to police custody or judicial custody, he himself made requests to the Detaining Authority for his arrest. In the detenu’s advocate’s letter dated 19th July, 1993, it is stated that the detenu has come to know of the order of detention who is now under remand to police custody. Then it is stated that if there is delay in arresting the detenu, the detention would become illegal as held by the Supreme Court and Bombay High Court. The request in the letter is found in the last sentence which reads as follows:
“As such may I request you to kindly give directions to your concerned officer to serve the impugned order of detention upon my client forthwith without any delay.”
Then detenu’s advocate Mr. Rizwan Merchant (who is still on record in this case as one of the advocates) wrote one more letter dated 3rd August, 1993 to the police to execute the order of detention. In this letter the learned advocate has referred to a decision of the Supreme Court by giving citation and stating that delay caused in executing the order may invalidate the detention itself. Then the prayer in the letter is as follows:
“May I, therefore, request you to kindly take all necessary steps for purpose of executing order of detention upon my client, without any further delay.”
Then we find that the detenu himself through his advocate filed an application in the Special Court of Hon’ble Mr. Justice S. N. Variava who is the Special Judge incharge of the scam case, dated 11-8-1993. In this application it is mentioned that there is an order of detention against the detenu and it is not yet executed and such order should be executed without further delay. Then the relevant portions in the application in paras 4, 5 and 6 are as follows:
“4. It is submitted that by holding back the service of the detention order, grave prejudice is being caused to the accused inasmuch as he is being deprived of an opportunity of making an effective representation against his detention. It is submitted that delay in service of detention order has caused to the accused a severe handicap in preferring a representation against his detention to the Detaining Authority, the Central Government and the Hon’ble Advisory Board.
5. The accused has not been served with the detention order although he has invited such services.
6. It is, therefore, prayed that this Hon’ble Court be pleased to give directions to the complainant to allow service of the detention order issued under the COFEPOSA Act, upon the accused.”
The above narration of facts show that the detenu’s advocate wrote two letters and also filed an application before the Special Judge requesting for directions for executing the detention order immediately and to take the detenu in custody under the order of preventive detention. Then the police also moved the Court and sought permission of the Court for taking the detenu to custody. Ultimately detenu came to be taken to custody by executing the order of detention on 27-8-1993.
17. When the detenu himself voluntarily requested the Detaining Authority and voluntarily requested the Special Court to execute order of detention to take him into custody, can he now turn around and say that the Detaining Authority should not have arrested him or that detention order should not be executed on him? A party cannot be permitted to blow hot and cold at the same time. When the detenu himself had almost surrendered to the detention order and invited arrest and detention, he cannot now turn around and complain that there was no necessity of arresting him when he was in custody in another case. In view of the peculiar facts and circumstances of the case and in view of conduct of detenu in inviting the order of detention, he cannot now be permitted to urge that the execution of the order was bad in law. Hence, after considering the peculiar facts and circumstances of the case, we are satisfied that the Detaining Authority or the concerned police have not committed any illegality in executing the order of detention while the detenu was in custody. Point No. 3 is, therefore, answered accordingly.
18. POINT NO. 4–The learned Counsel for the detenu contended that there is unexplained delay in executing the order of detention and thereby live-link is snapped between grounds of detention and the purpose of detention and thereby the continued detention of the detenu is bad in law. It may be noted that no time limit is prescribed in COFEPOSA Act for the arrest of the detenu after passing the order of detention. But, if there is delay in arresting the detenu by executing the order of detention, it may show that there was no urgency or necessity for the detention of the detenu and thereby it amounts to non-application of mind on the part of Detaining Authority. The other inference that could be drawn that in view of the delay the live-link is snapped between the grounds of detention and purpose of detention. The learned Counsel for the detenu invited our attention to some of the authorities where the question of delay has been considered and commented upon. He relied on K.P.M. Basheer v. State of Karnataka, , Hamek Singh v. State of Punjab, , Sk. Nizamuddin v. State of West Bangal, , unreported judgement of this Court in Criminal Writ Petition No. 869 of 1986 dated 14-1-1987 and Criminal Writ Petition No. 540 of 1992 dated 3-9-1992.
As already stated by us, the question of delay and the question of explanation for the delay are always questions of facts which are to be considered in the peculiar facts and circumstances of each case. Delay of few days may be fatal in one case but delay of few months may not be fatal in another case if there is proper explanation for such delay.
For instance in the case , there was delay of five months and 11 days in executing the order of detention. Stand taken by the concerned authority was that the detenu was absconding. Supreme Court pointed out that no action had been taken under section 7 of the COFEPOSA Act if really the detenu was absconding. Then it was noticed that during that period the detenu had appeared before the Customs Officer on two dates and this shows that he was not absconding. In those circumstances it was observed that no serious and sincere efforts appear to have been made to effect arrest of the detenu and no affidavits or documents are filed to properly explain the delay
19. Similarly in A.I.R. 1982 S.C. 662 there was delay of more than six months in executing the order of detention and there was no proper and sufficient explanation for the delay. It was found that the detenu was appearing before the Magistrate in criminal case on all the hearing dates during the period but no attempt was made to take him into custody. Hence on facts it was held that delay has not been properly explained and, therefore, the order of detention was held to be vitiated.
Similarly in it was held that there was delay of 21/2 months in the arrest of detenu but the delay was not explained and hence the order was set aside.
It is not necessary to refer to other citations referred to above. Since every case has been disposed of by examining facts of that case and then observing that delay is not properly explained. Now let us see whether in the present case delay in executing the order of detention has been properly explained.
20. The order of detention is dated 9th March, 1993. It was executed on 27th August, 1993. Hence there is delay of five months and few days in execution of the said order. Now the question is whether this delay has been properly explained to the satisfaction of the Court or not.
From the affidavit of the Detaining Authority and other materials on record it is seen that after initial arrest and interrogation of the detenu on 30th and 31st May, 1992 the detenu was released on bail by the Criminal Court. Then from the very next day namely 1st June, 1992 the detenu was not available to the investigating agency. He was absconding. Then notices were issued to the detenu to appear before the Enforcement Directorate. But the notices were not served and the detenu was not found at his address. Then the investigating agency filed a complaint before the learned Magistrate for taking action against the detenu for not complying with the notice under the provisions of Foreign Exchange Act. Then it also transpired from the statements of the mother of the detenu and others that the detenu had left India and had gone abroad. After passing order of detention attempts were made by the police by visiting his house but the detenu could not be traced. Then action was taken under section 7 of COFEPOSA Act. Since the detenu was abroad and he was involved in scam case of Harshad Mehta, the special Court dealing with that case, issued an arrest warrant against the detenu by treating him a proclaimed offender. Then we find from the materials on record that extradition proceedings were taken against the detenu with Director General of Security Forces, Interpls, Abudhabi. The detenu came to be apprehended at Abudhabi and handed over to C.B.I. on 17th July, 1993. H e was then formally arrested by C.B.I. on the mid-night of 17th and on the same day he was produced before the learned Special Judge who is trying the scam case in High Court, Bombay vide copy of the remand application filed by the C.B.I. in Case No. R.C.8/1992 of C.B.I.
Hence it is seen that right from 9-3-1993 till 18-7-1993 the detenu could not be apprehended since he was not in India and he was absconding and had gone abroad. The detenu nowhere says that he was in India and was available for arrest by the Detaining Authority. The materials on record clearly show that the detenu had gone abroad and had left the country and he could be arrested through Interpol at Abudhabi and then after extradition proceedings he came to be taken into custody by C.B.I. on the mid-night of 17/18 July, 1993. Hence there is no question of there being any delay from the date of detention order till 18-7-1993 since the accused was absconding and, therefore, he cannot be allowed now to contend that there was delay. He was not even in India to be available for being arrested by Detaining Authority. Now remains the question if there is any delay in execution of the detention order from 18-7-1993 to 27-8-1993.
21. Object of preventive detention is to see that the detenu should not be a free agent to continue the smuggling activities. When the detenu is already in custody in one case, there was no immediate urgency to arrest the detenu under the detention order. It is also seen from the materials on record that C.B.I. had moved the Court and took the detenu to police custody from time to time for interrogation in the scam case. Since the detenu had already been arrested and had been produced before the Special Court and remanded to police custody of C.B.I. for the purpose of interrogation, the Detaining Authority did not execute the order of detention. This is made clear in the affidavit of Detaining Authority and also in the affidavit of concerned police officer and other materials on record in the form of exchange of letters between several departments. For instance in the letter of the Deputy Director of Enforcement Directorate dated 21st July, 1993 addressed to the Deputy Inspector General of C.B.I. it is stated that the Special Court may be informed and approval may be obtained to the execution of order “after completion of C.B.I. remand of Shri Niranjan J. Shah”.
Similarly in another letter dated 28th July, 1993 Deputy Director writes to C.B.I. to inform him as to when their interrogation of detenu will be over so that they can execute the detention order.
In this connection we may also refer to the remand application filed by C.B.I. dated 2-8-1993 wherein it is clearly mentioned that there is an order of preventive detention against the accused and if it is executed he will not be available for interrogation by C.B.I. Hence a prayer was made to Special Judge to remand the detenu to police custody. It is, therefore, seen that from 18th July, 1993 till 27th August, 1993 the order of detention was not executed since the detenu had been remanded to the police custody from time to time by Special Judge for interrogation by C.B.I. in the scam case. Since the detenu was already in custody, there was no immediate urgency to take him into custody under detention order and as soon as the police custody expired and detenu was remanded to judicial custody, the detention order was executed on 27th August, 1993.
22. Hence, in our view, in this case the materials on record clearly show that in the beginning the detention order could not be executed since the detenu had gone underground by going abroad and after his arrest by C.B.I. order of detention was not executed immediately since the Special Judge had granted police custody to C.B.I. for interrogation in the scam case. Hence in the peculiar facts and circumstances of this case the delay in executing the order of detention has been satisfactorily and convincingly explained to the satisfaction of the Court. Hence, we do not find any merits in the contention of detenu about the delay in executing the order of detention. Point No. 4 is, therefore, answered accordingly.
23. Point No. 5 : It was argued on behalf of the detenu that it is a case of non-application of mind in passing the order of detention since the detenu was abroad and hence there was no necessity to pass an order of preventive detention against the detenu.
Persual of grounds of detention does not show anywhere that the Detaining Authority was convinced that the detenu was abroad. No doubt in the statement of the mother of the detenu it has come that she had gone to Abudhabi and met her son. But the Detaining Authority has not stated that what all the mother stated was correct. The mother has stated so many things in her statement and those things may or may not be true. As far as the Detaining Authority is concerned, he only knows that right from 1st June, 1992 the detenu was absconding and his whereabouts were not known. Merely because in one of the statements the mother has stated that she had gone abroad and met her son it cannot be taken that it was truthful statement. It may or may not be, there is no material to show as on what date the detenu had gone abroad. It could be in July, 1992 or December, 1992 or January, 1993 or even after the detention order. We have affidavit of police officer to say that after the detention order he had gone to the house of detenu at Bombay number of times but his whereabouts were not known. Hence it cannot be said that the Detaining Authority was aware as on the date of the detention order, detenu was abroad. Hundreds of statements of witnesses were placed before the Detaining Authority and it cannot be said that all the statements made by all the witnesses were true and correct.
24. Now let us for a moment concede that as on the date of detention order, the detenu was abroad. The question is whether in such a case order of detention can be said to be bad on the ground of non-application of mind about the necessity of passing an order of detention. The argument is that a person who has gone abroad cannot do smuggling activity in India and, therefore, there is no necessity to keep him in preventive detention to prevent him from acting prejudically to the interest of the government. We are not impressed by the submission. A free person who is sitting at Abudhabi can still associate himself with smuggling activities by having agents at Bombay or in other places in India and giving them instructions or directions on telephone etc. when easy and speedy tele-communication is available. It cannot be said that the detenu was in a foreign country and he could not have continued his smuggling activities or his dealing in foreign currency in India to the detriment of the economy of the Government of India.
25. Learned Counsel for the detenu invited our attention to three authorities on this point.
In Sayed Iqbal v. State of Maharashtra, 1988(1) Bom.C.R. 66, it was a case of detenu being a foreign citizen though originally he was of Indian origin. He was found to be residing abroad since 1974. It was noticed in that case that detenu could not have come to India for another six months in view of the order passed in another criminal case before this Court. Hence there was no chance or possibility of the detenu coming to India during that period of six months. Further, detenu had been prevented from coming to India by not giving him visa. In those circumstances this Court observed that there was no necessity for an order of preventive detention in that case. The circumstances that weighed with the Court in that case were that the detenu was a foreign citizen, that the detenu had been prevented from coming to India for about another six months and further detenu’s visa had not been given to enable him to come to India.
In Sh. Abdul Aziz Mohd. v. Union of India, 1984 Criminal Law Journal 1307 (Delhi) it was a case where the detenu, though an Indian, was residing at Dubai for last 15 years. The order of detention showed that the detenu was resident of Bombay which was incorrect. The allegation of the detenu that he had not visited India even once in the last 15 years was not denied by the respondents in that case. It was in those circumstances it was observed that the order of detention is bad due to non-application of mind. In fact the High Court had made it clear that there is no bar to pass an order of detention against a person who is not available in India at the time of order but the Detaining Authority must show awareness of the same.
In (1986 Criminal Law Journal 454), it was also a case of foreigner being involved in a stray case of smuggling. It was noticed that the detenu was not resident of India but he was a foreign national holding Zambian pass-port. If he had not been arrested under the detention order, he would have gone back to his country. The government could have taken necessary action to prevent the detenu from coming to India in future. Further there was no allegation that the detenu was frequently visiting India in the past. There can be no dispute that in the case of foreign national he can be prevented from entering the country by denying visa.
In our view, all the above decisions rest on the peculiar facts and circumstances of those cases.
26. As far as present case is concerned, the detenu is an Indian citizen. He has houses and relations at Bombay, in India. Further it is seen from the statements of some of the witnesses and other material available that the detenu has been frequently visiting India and going abroad. The Detaining Authority was not aware that the detenu had gone abroad on the date of the detention order, though it is transpired in the statement of mother that she had met the detenu at Dubai. Even at one point of time the detenu had gone abroad, he could have come back to India few days later or months later or so. But there is nothing to indicate that the Detaining Authority was aware that as on the date of the order of detention., the detenu was not in India. On the other hand, the detention order is issued showing the detenu’s address at Bombay and the detention order was sought to be executed in Bombay and when they came to know that the detenu had gone underground and was not available, it is only subsequently in the scam case arrest warrant was issued by the Special Judge and detenu came to be arrested through interpol and then brought to India by extradition proceedings. The detenu was released on bail after his arrest on 30-5-1992. Two days later he absconded. Therefore, the possibilities of detenu going abroad cladestinely or returned to India clandestinely cannot be ruled out in the facts and circumstances of this case. Hence in these circumstances, it cannot be said that there was no application of mind on the part of the Detaining Authority in issuing the impugned order of detention. Hence we do not find any merit in Point No. 5 urged before us. The same is answered accordingly.
27. Point No. 6–It was argued on behalf of the petitioner that the petitioner had given a representation to the Advisory Board, complaining about the order of detention and that till today the Advisory Board had not communicated its decision to the detenu. It was therefore submitted that there is violation of Article 22(5) of the Constitution of India and thereby the continued detention of the detenu is invalid. In our view, this argument has no merits.
Article 22(5) of the Constitution of India makes no reference to the Advisory Board at all. It only enables the detenu to make reprsentation to the Government. Once there is representation, there is corresponding obligation on the part of the Government to communicate its decision.
The role of Advisory Board appears in Article 22(4) of the Constitution of India. It only says that detention beyond 3 months shall not be made unless there is a report of the Advisory Board to say that such detention beyond 3 months is necessary.
Even under the provisions of COFEPOSA Act there is no scope for giving representation to the Advisory Board and no statutory duty on the Board to communicate its decision to the detenu.
In our view, the role of the Advisory Board is, as the name itself suggests is only advisory in nature. It has no judicial nor quasi-judicial powers. Further the proceedings before Advisory Board and its report to the Government are confidential in nature and are not subjected to the judicial scrutiny under Article 226 of the Constitution of India.
In fact, in this case the request is also made by filing an application to summon the records from the Advisory Board. In our considered view, such an action is not called for since the proceedings before the Advisory Board are confidential.
28. The learned Counsel for the petitioner had referred to some authorities viz. (1) Pankaj Kumar Chakraborthy v. State of West Bengal, , Wasi Uddin Ahmed v. The District Megistrate, Alligarah (U.P.), , Harbans Lal v. M.L. Wadhawan, and un-reported decisions of this Court dated 15th December, 1987 in Criminal Writ Petition No. 1164 of 1987. Though in all these decisions there is reference that the representations of the detenu must be considered by the Advisory board, there is no mention that the Advisory Board is either under a statutory or constitutional obligation to communicate its decisions to the detenu.
On the other hand, we have a direct authority of the Appex Authority reported in Ateshoy Honai v. State of W.B., , where a similiar contention was argued that Advisory Board should communicate its decisions to the detenu. Supreme Court rejected that contention by observing in para (5) of the reported judgement:
“5. The submission that the Advisory Board should have communicated its opinion to the petitioner so as to enable him to question its legality is also misconceived. In the first instance the Advisory Board constituted under section 9 of the Act, as its name connotes, is only required to function in an advisory capacity. Its opinion which is merely an advice is binding on the appropriate Government only if according to it there is no sufficient cause for the detention in question; in that eventuality the detenu cannot possibly have any grievance. When the Board reports that there is sufficient cause for the detention in question the appropriate Government is not bound under the law to confirm the order of detention. It may or may not do so. The advisory opinion of the Board is merely intended to assist the appropriate Government in determining the question of confirming the detention order and continuing the detention. It is binding on the appropriate Government only when it favours the detenu and not when it goes against him. Such advisory opinion can squarely be an appropriate subject matter of review or scrutiny by the judicial courts or tribunals. Secondly the proceedings of the Board and its report are expressly declared by section 11(4) of the Act to be confidential except that part of the report in which its opinion is specified. This provision clearly indicates that the advisory opinion is never intended to be open to challenge on the merits before any tribunal. So far as the final opinion of the Board is concerned the communication of the confirmation of the detention order by the State Government clearly informed the petitioner that the opinion of the Board was against him. ”
The above observation clearly shows that the proceedings before the Board are confidential in nature and are not subject to review by judicial Court. However, role of the board is only advisory in nature and not binding on the government except when its report is against the order of detention. Hence, our considered view is that there was no obligation either statutory or constitutional, on the part of Advisory Board to convey its decisions about the representation to the detenu. Hence, Point No. 6 is answered against the detenu.
29. Point No. 7. It is argued by the counsel for the detenu that there is long and undue delay in considering the reprsentation sent by the detenu and further there is a delay in communicating the decision and thereby the continued detention is bad in law. Reliance was placed on two unreported decision of this Court in Criminal Writ Petition No. 250 of 1987 and Criminal Writ Petition No. 338 of 1986, where in those cases, the detention was held bad in view of the delay in considering the representations of the detenu.
We may make reference to the latest decision of the Supreme Court on this point which is reported in Noor Salman Makani v. Union of India, . In that case the representation was dated 15-10-1992 and it was disposed of on 5-1-1992. The explanation given by the Government for the delay was found to be satisfactory and accordingly, the detention was upheld. The Supreme Court referred the earlier decision reported in Hama Dondu Borade v. V.K. Saraf, Commissioner of Police, wherein extracted a passage and relevant portion for our present purpose is as follows:-
“What is reasonable dispatch depends on the facts and circumstances of each case and no hard and fast rule can be laid down in that regard.”
The Supreme Court observed that if there is unreasonable delay and there is no satisfactory explanation for the same then it vitiates the order of detention. In that case, on facts it was found that the explanation offered was not satisfactory and accordingly, the detention order was set aside.
Therefore, the test is whether there is delay and if there is delay whether there is sufficient explanation for the delay. Obviously this has to be decided on the peculiar facts and circumstances of each case.
30. Now, coming to the facts of the present case, we find that detenu gave two representations. Now let us see how they have been dealt with by the concerned authorities. From the affidavit of the Detaining Authority Mr. Johnson K. George, Enforcement Officer, Government of India, Enforcement Directorate and other documents produced in this case, we get the following facts.
One representation was given by the detenu to the Government during the hearing before the Advisory Board on 18-10-1993. It was sent for comments by the Sponsoring Authority on 21-10-1993 at Bombay. 23rd and 24th October were Saturday and Sunday respectively. On 26-10-1993, the Sponsoring Authority sent its comments to the Central Government by post. In the meanwhile the report of the Advisory Board was also received by the Government on 28-10-1993. Then on 29-10-1993 the papers were received in the COFEPOSA cell. 30th and 31st October, 1993 were holidays. On 1-11-1993 the file was submitted to the Director General of Economic Intelligency Bureau. Then the papers were submitted to the Minister of State for Revenue on 2-11-1993 and then the papers were sent to the Finance Minister. The Minister of State considered the matter and sent the file to the Finance Minister on 5-11-1993. 6th and 7th November, 1993 were holidays being Saturday and Sunday. On 9-11-1993, the Finance Minister rejected the representation. The file was received back in the COFEPOSA Unit on 10-11-1993. On the same day memo of rejection was sent and it was served in the jail at Bombay on 13-11-1993. Now, the other representation was one sent by the detenu on 10-11-1993 which is identical to the earlier representation dated 10-10-1993. The Superintendent of Bombay Central Prison sent the representation dated 10-11-1993 by Registered Post A.D. from Bombay which was received by the COFEPOSA Unit at New Delhi on 22-11-1993. On the next day i.e. on 23-11-1993 remarks of the Sponsoring Authority was called for. The Sponsoring Authority at Bombay sent the remarks on 25-11-1993 by post and the same was received at Delhi by the concerned Ministry on 30-11-1993. 27th and 28th November, 1993 were again holidays. The papers were put up before the Joint Secretary on 3-12-1993 and the representation was rejected on 6-12-1993. It may also be noted that 4th and 5th December, 1993 were holidays being Saturday and Sunday. Then rejection memo was sent by post from Delhi to Jail on 6-12-1993. It was received in the Jail on 11-12-1993 and served on the detenu on the same day.
31. In our view, both the representations have been duly considered and rejected by the Government. They have been duly communicated to the detenu. If we exclude few holidays like Saturdays and Sundays and give some margin to delay due to post since there was correspondence between Bombay and New Delhi, we are satisfied that there is no delay and even if there is delay there is sufficient and proper explanation offered by the concerned authority. This is not a case where there is undue and unreasonable delay which vitiates the order of detention. After considering the facts and circumstances of this case we reject the contention of the detenu about delay in consideration of the representation. Point No. 7 is answered accordingly.
After giving our anxious and serious consideration we find that none of the 7 points argued before us merit acceptance, hence we are constrained to hold that the writ petition has no merit and is liable to be dismissed. We record our appreciation to the able assistance given by the learned Senior Counsel appearing on both the sides.
32. As already observed the record of the Advisory Board need not be called for since the role of the Advisory Board is advisory in nature and its proceedings are confidential. Hence the application filed by the petitioner in Criminal Application No. 885 of 1994 is liable to be rejected.
As far as Criminal Application No. 1024 of 1994 is concerned, the relief has already been granted and the application no longer survives for consideration.
33. In the result, the writ petition fails and is hereby dismissed.
Criminal Application No. 885 of 1994 is hereby rejected.
Criminal Application No. 1024 of 1994 no longer survives for consideration.
After pronouncement of the judgement, the learned Counsel for the petitioner sought a certificate for leave to appeal to the Supreme Court. Heard. Since we have decided the case basing our judgement on decisions of the Supreme Court, we do not think that this is a fit case to grant certificate for leave to appeal. Leave refused.