PETITIONER:
K.P.M. BASHEER ETC.
Vs.
RESPONDENT:
STATE OF KARNATAKA AND ANR. ETC.
DATE OF JUDGMENT28/02/1992
BENCH:
PANDIAN, S.R. (J)
BENCH:
PANDIAN, S.R. (J)
KULDIP SINGH (J)
SAHAI, R.M. (J)
CITATION:
1992 AIR 1353 1992 SCR (1)1075
1992 SCC (2) 295 JT 1992 (3) 610
1992 SCALE (1)525
CITATOR INFO :
D 1992 SC1937 (6)
ACT:
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 :
Section 3(1)-Detention Order-Undue and unreasonable
delay in execution-Maintainability.
HEADNOTE:
The appellant, on 12.11.1990, was found carrying two
gold pellets with foreign markings each weighing ten tolas,
without any valid permit. The order of detention under
S.3(1) of the conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974 was passed on
7.1.1991. The detention order was served on him on
28.6.1991.
The Writ Petition challenging the detention order,
inter alia, on the ground of undue and reasonable delay in
its execution was dismissed by the High Court.
The detenu filed the appeal by special leave against
the High Court's order as also the writ petition under
Article 32 of the Constitution before this Court.
Allowing the appeal and disposing of the writ petition,
this Court,
HELD: 1.1 The order of detention cannot be sustained
since the `live and proximate link' between the ground of
detention and the purpose of detention is snapped on account
of the undue and unreasonable delay in securing the
appellant/detenu and detaining him. The order of detention
is liable to be set aside on this ground alone. [p. 1080A-B]
1.2 Though the two gold pellets (the contrabands) were
seized from the appellant on 12.11.1990, the order of
detention was passed on 7.1.1991, and the detention order
was executed after a period of 5 months and 11 days. {pp.
1078F; 1079G-H; 1080A]
1076
2.1 No sufficient cause is shown for not taking any
action under s.7 of the COFEPOSA Act. The explanation-that
though COFEPOSA section in the office of the Collectorate of
Customs requested the State Government on 19.4.1991 to
initiate action under s.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 the appellant-is not satisfactory and
reasonable one. [pp. 1078G-H; 1079A-B]
2.2 No serious and sincere effort was taken by the
arresting officers: There was only exchange of
correspondence between the Department and the arresting
officers. It is incomprehensible as to why no effort was
made to secure the appellant/detenu during the two days,
namely, on 6th and 20th Feb.91, when he appeared before the
Assistant Collector of Customs.
[pp. 1079F-G]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
144 of 1992.
From the Judgement and Order dated 27.9.1991 of the
Karnataka High Court in W.P. No. 113 of 1991.
WITH
Writ Petition (Crl.) No. 1394 of 1991.
C.S. Vaidyanathan and P.K. Manohar for the Appellant.
K.T.S. Tulsi, Addl. Solicitor General, P. Parmeswaran,
A.K. Srivastava, M. Veerappa and Kh. Nobin Singh (For the
State of Karnataka) for the Respondents.
The Judgment of the Court was delivered by
S. RATANAVEL PANDIAN, J. Leave granted.
The appellant/petitioner K.P.M. Basheer by the above
appeal is challenging the correctness and legality of the
order dated 27th September 1991 made by the High Court of
Karnataka dismissing the Writ Petition filed by the
appellant challenging the legality and validity of the order
of detention dated 7.1.1991 passed by the State of
Karnataka. The first respondent in the appeal, namely, the
State of Karnataka in exercise of the powers conferred by
the Section 3(1) of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act 1974 (hereinafter
1077
referred to as `the Act’) passed the impugned detention
order on 7th January 1991 with a view to preventing him from
engaging in keeping and transporting smuggled goods falling
within the mischief of Section 3(1)(iii) of the Act. The
appellant was directed to be detained and kept in the
custody of the central prison, Banglore.
The brief facts of the case which led to the passing of
the impugned order can be summarised as follows:
On 12.11.1990 the Superintendent of Central Excise on
information interrogated the appellant at the Balgaum bus
stand on his arrival from Bombay in the presence of some
panchas and recorved two gold pellets with foreign markings
each weighing ten tolas, wrapped in a paper packet from his
front side right watch pocket of his pant. The appellant
was not having any valid permit and also was not able to
give any satisfactory explanation for possessing the gold
pellets. Therefore, the Superintendent entertaining a
reasonable belief that they were smuggled gold pellets
recorded the statement of the appellant. The State
Government on the information passed on by the sponsoring
authority passed the impugned order on 7.1.1991 on being
subjectively satisfied of the necessity of passing the
impugned order on the materials placed before it. The
detention order was served on the detenu only on 28.6.1991
from which date onwards he has been detained. Challenging
the detention order, the petitioner filed a Writ Petition
No. 113/91 before the High Court of Karnataka and raised
several contentions; those being (1) the order of detention
is based on a solitary incident; (2) there has been an undue
and prolonged delay in serving the order on the detenu; and
(3) the materials placed before the detaining authority were
not sufficient for drawing the requisite satisfaction for
passing the impugned order. The High Court rejected all
those contentions and dismissed the Writ Petition. Hence
this appeal.
Before this Court the petitioner has filed a separate
Writ Petition under Article 32 of the Constitution of India
raising certain additional grounds. Those grounds are: (1)
The detenu made a request to the detaining authority to
forward a copy of his representation to the Central
Government and that the detaining authority has not
forwarded the same to the Central Government as requested by
him. Even assuming that it has been forwarded, his represe
tation has not been disposed of in time and as such there is
violation of Article 22(5) of the Constitution of India.
1078
(2) The normal criminal process which would be adequate to
take care of the possession of the gold has not been
followed; and (3) The first respondent in the Writ Petition
(Union of India) has failed in its duty to inform the
petitioner regarding the Government instruction issued to
the sponsoring agencies not to make an order of detention in
cases where the value of the smuggled goods is less than
Rs.1 lakh.
In the Writ Petition both the State Government as well
as the Central Government have filed their counter
affidavits refuting all the additional grounds.
Before scrutinising the additional grounds raised in
the Writ Petition, we shall now examine the contentions
raised in the appeal and find out whether the order of the
High Court warrants interference.
Mr. C.S. Vaidyanathan, the learned counsel appearing on
behalf of the appellant contends that the delay of more than
five months in executing the order of detention is not only
an inordinate and unreasonable one but also stands un-
explained and on that ground the High Court ought to have
set aside the order of detention. According to him, the
High Court has not gone deep into that question but
summarily disposed of the same holding “The explanation
offered by the 1st respondent, in para 9 of the statement of
objection is quite acceptable.”
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 want 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 14.5.91 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 Collec-
1079
torate 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
that the officers came to know of the correct
address of the appellant at 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.
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 20.2.91 but no attempt was made to
arrest and detain him. This specific averment is not all
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 dragnet
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.
All the above points show that no serious and sincere
effort appears to have been taken by the arresting officers
and that there was only exchange of correspondence between
the Department and the arresting officers. It is
incomprehensible as to why no effort has been made to secure
the appellant/detenu during the two days, namely, on 6th and
20th February when he appeared before the Assistant
Collector of Customs. No supporting affidavits or documents
are filed to substantiate the averments made in the counter.
Incidentally, it may be mentioned that though the two gold
pellets (the contrabans) were seized from the appellant on
1080
12.11.90 the authorities concerned passed these orders only
on 7.1.1991, i.e. nearly after two months.
Under these circumstances, we are of the view that the
order of detention cannot be sustained since the `live and
proximate link’ between the grounds of detention and the
purpose of detention is snapped on account of the undue and
unreasonable delay in securing the appellant/detenu and
detaining him. As we have now come to the conclusion that
the order of detention is liable to be set aside on this
ground alone we are not dealing with other contentions
raised in the Memorandum of Appeal as well as in the Writ
Petition.
Hence for the reasons stated above we allow the appeal,
set aside the order of the High Court and quash the impugned
detention order and direct the detenu to be set at liberty
forthwith. In view of the order in this present appeal, no
order is necessary in the Writ Petition.
R.P. Appeal allowed.
1
