PPD
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WP.2188-11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2188 OF 2011
Shamsher Singh S/o. Balwinder ]
Singh, Age 18 years. ]
An Indian Inhabitant, ]
Residing at Vand PO ]
Lokha, The Patli, District Taran, ]
Taran (Punjab). ig ] Petitioner
[Son of detenu]
Balwinder Singh. ] Detenu
Versus
1. The State of Maharashtra, ]
through the Secretary to the ]
Government of Maharashtra, ]
Home Department (Special), ]
Mantralaya, Mumbai - 400 032. ]
2. Medha Gadgil, ]
the Principal Secretary ]
(Appeals and Security) to the ]
Government of Maharashtra, ]
Home Department and ]
Detaining Authority, Mantralaya,]
Mumbai - 400 032. ]
3. The Superintendent of Prison, ]
Nasik Road Central Prison, ]
Nasik Road, Maharashtra. ]
4. The Officers of Customs, ]
Air Intelligence Unit, ]
Mumbai. ] ..Respondents.
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..........
Smt. A.M.Z. Ansari, Advocate for the Petitioner.
Mrs. M.H. Mhatre, A.P.P. for the State.
..........
CORAM : A. M. KHANWILKAR AND
P. D. KODE, JJ.
DATE OF RESERVING THE
JUDGMENT: 03rd OCTOBER, 2011.
DATE OF PRONOUNCING THE
JUDGMENT:
ig 11th OCTOBER, 2011
ORAL JUDGMENT (PER A. M. KHANWILKAR, J.) :
1. This Writ Petition, under Article 226 of the
Constitution of India, takes exception to the detention order
passed by the Principal Secretary (Appeals and Security),
Government of Maharashtra, Home Department and
Detaining Authority dated 23rd December, 2010 against the
petitioner’s father Shri Balwinder Singh (the detenu) in
exercise of powers under Section 3(1) of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities
Act, 1974, (hereinafter referred to as “the COFEPOSA Act”),
with a view to prevent the detenu in future from smuggling
the goods.
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2. The detenu was arrested by the officials of the
Customs Department on 21st March, 2010 when he was found
to be in possession of 6000 Micro SD Memory cards of 2 GB
capacity. These foreign origin memory cards were valued at
Rs.12,00,000 (CIF) (provisionally) and Rs.18,60,000/- (LMV)
(provisionally). While he arrived by Air India Flight
No.AI-315 as domestic passenger from Delhi to Mumbai, the
goods were seized by the officers. The petitioner, however,
was granted bail by the Metropolitan Magistrate when he
was produced on the next date i.e. on 22nd March, 2010 in
connection with the said offence. The petitioner availed of the
bail on 29th March, 2010. While he was in police custody,
statement under Section 108 of the Customs Act was
recorded. Even after being released on bail, further
statement under Section 108 of the Customs Act of the
detenu as well as the co-accused came to be recorded by the
officials of the Customs Department.
3. It is, however, only on 14th June, 2010, proposal to
detain the said Shri Balwinder Singh (the detenu) was
forwarded by the Sponsoring Authority, which in the first
place, was placed for approval before the Commissioner (AP).
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The Commissioner (AP) approved the proposal on 22nd July,
2010. Thereafter the proposal was placed before the
Screening Committee on 28th July, 2010. The same was
approved by the Screening Committee on 11th August, 2011.
After approval of the Screening Committee, the proposal was
placed before the Detaining Authority for consideration on
27th August, 2010. The detention order, however, was passed
on 23rd December, 2010, which was eventually served on the
detenu. The detenu came to be arrested sometime in April,
2011 and was sent to Nasik Road Central Prison by the
Executing Authority.
4. The petitioner, being the son of the detenu, has
approached this Court by way of Writ Petition challenging the
said detention order.
5. The petition is resisted by the respondents by filing
affidavit of the Detaining Authority as well as the Sponsoring
Authority. We shall advert to the relevant facts stated in the
said affidavit at the appropriate stage.
6. During the course of arguments, the Counsel for the
petitioner has primarily raised five broad points to challenge
the impugned detention order. The first ground is that there
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is inordinate and unexplained delay in issuing the detention
order. So far as this ground is concerned, the argument is
threefold – firstly, there was inordinate and unexplained
delay in initiating proposal by the Sponsoring Authority;
secondly, there was inaction and callousness in processing
the file in the office of the Commissioner who was
responsible to grant approval to the said proposal; thirdly, the
Detaining Authority also dealt with the proposal in a casual
manner and there was inordinate and unexplained delay in
passing the order.
7. The second main contention is that the detention order
suffers from non-application of mind by the Detaining
Authority. This contention is twofold – firstly, going by the
reply filed by the Detaining Authority it appears that she
proceeded to examine the proposal and passed the detention
order on the very same day when the proposal was placed
before her along with all the relevant documents. The second
shade of the said ground is that the affidavit does not explain
as to whether the grounds were formulated by the Detaining
Authority herself or whether it was prepared by someone
else and more so whether the grounds were prepared,
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reviewed and updated by her after receipt of the further
documents.
8. The third contention is that since the detenu was
released on bail on 29th March, 2010 till the passing of the
detention order had not indulged in any prejudicial activity of
similar nature. Thus, the live-link had snapped when the
detention order was issued on 23rd December, 2010.
The
Detention Authority has failed to record its satisfaction in this
behalf.
9. The fourth ground on which the impugned detention
order is challenged is that there was inordinate and
unexplained delay of around four months in execution of the
detention order.
10. The fifth ground on which the detention order is
challenged is that the goods in question which have been
seized from possession of the detenu were not prohibited by
law. At best, it was a case of an attempt by detenu of causing
loss to public exchequer. That issue could have been
addressed by imposing penalty as a condition precedent for
return of the goods to the detenu. For that, the detention
order, by no standard, was just and appropriate action.
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11. On the above grounds, the validity and correctness of
the impugned detention order is put in issue.
12. We shall revert to the first contention of the
petitioner about the delay in issuance of the detention order.
From the pleadings on record, there is no difficulty in
accepting the grievance of the petitioner that although the
Sponsoring Authority has filed reply affidavit to oppose this
Petition, it has failed to indicate as to what prevented the
Sponsoring Authority to initiate the proposal immediately
after 29th March, 2010 when the detenu was released on bail
in connection with the arrest and seizure of memory cards
valued at Rs.52,00,000 (CIF) and Rs.68,60,000/- LMV from
Hongkong to Mumbai on 21st March, 2010. It is also noticed
that the statement of the detenu under Section 108 of the
Customs Act was recorded immediately after his arrest on
21st March, 2010. There is nothing in the affidavit of the
Sponsoring Authority to indicate as to whether the said
statement by itself was not sufficient to proceed against the
detenu under the provisions of the COFEPOSA Act. Further
more, the affidavit is also silent about the fact that although
the further statement of the detenu under Section 108 of the
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Customs Act was recorded on 8th April, 2010 and again on 9th
April, 2010 & 3rd June, 2010, in the successive statements,
until recording of the statement dated 3rd June, 2010, there
was no sufficient material before the Sponsoring Authority to
proceed against the detenu under the provisions of the
COFEPOSA Act. The proposal was admittedly initiated by the
Sponsoring Authority only on 14th June, 2010. Suffice it to
observe that there is no explanation, much less sufficient
explanation, given by the Sponsoring Authority as to why he
did not think it necessary to immediately initiate the proposal
as soon as the detenu was released on bail on 29th March,
2010 and more so on the basis of the successive statements
recorded by the Officials of the Customs Department under
Section 108 of the Customs Act firstly on 21st March, 2010
and thereafter again on 8th April, 2010 and on 9th April, 2010.
What was the necessity of waiting till recording of further
statement of the detenu on 3rd June, 2010, has not been
explained in the affidavit.
13. Similarly, we find that when the proposal was placed
before the Commissioner for grant of approval on 14th June,
2010, The Commissioner granted approval only on 22nd July,
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2010. No explanation has been given as to what prevented
the Commissioner to process the file with utmost dispatch
and to wait for a period of five weeks from the date of
receipt of the proposal. Similarly, it is noticed that even the
Detaining Authority has not acted with utmost dispatch.
Indeed, the Detaining Authority has offered explanation for
the period between 27th August, 2010 when the proposal was
received till 18th November, 2010. Time taken during this
period cannot be stated to be without sufficient cause.
However, no explanation whatsoever has been offered by the
Detaining Authority as to when the proposal was complete in
all respects on 18th November, 2010, why the decision was
taken only on 22nd December, 2010. That means the
Detaining Authority kept the file pending in her office which
was complete in all respects for a period of five weeks
without any sufficient cause.
14. Affidavit filed by the Detaining Authority does not
reveal that after 18th November, 2010 she was examining the
file on day to day basis, much less, at reasonable intervals
and what prevented her from taking decision before 22nd
December, 2010. On this finding, the petitioner may be
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justified in criticizing the action of the Sponsoring Authority
as well as the Sanctioning Authority and also that of the
Detaining Authority. However, the contention regarding delay
in issuance of the detention order will have to be answered
keeping in mind the principle enunciated by the Apex Court
in the case of Rajendrakumar Natvarlal Shah Vs. State of
Gujarat and others reported in (1988) 3 Supreme Court
Cases 153. It may be useful to refer to paragraph Nos.10 to
12 of the said decision, which read thus :
“10. Viewed from this perspective, we wish to
emphasise and make it clear for the guidance of the different
High Courts that a distinction must be drawn between the
delay in making of an order of detention under a law relatingto preventive detention like the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974and the delay in complying with the procedural safeguards of
Article 22(5) of the Constitution. It has been laid down by
this Court in a series of decisions that the rule as to
unexplained delay in taking action is not inflexible. Quiteobviously, in cases of mere delay in making of an order of
detention under a law like the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974
enacted for the purpose of dealing effectively with persons
engaged in smuggling and foreign exchange racketeeringwho, owing to their large resources and influence have been
posing a serious threat to the economy and thereby to the
security of the nation, the courts should not merely on
account of delay in making of an order of detention assume
that such delay, if not satisfactorily explained, must
necessarily give rise to an inference that there was no
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WP.2188-11not genuinely reached. Taking of such a view would not be
warranted unless the Court finds that the grounds are ‘stale’
or illusory or that there is no real nexus between the grounds
and the impugned order of detention. The decisions to thecontrary by the Delhi High Court in Anil Kumar Bhasin v.
Union of India & Ors., Crl. W. No.
410/86 dated 2.2.1987;
Bhupinder Singh v. Union of India & Ors., [1985] DLT 493;
Anwar Esmail Aibani v. Union of India & Ors., Crl. W. No.375/86 dated 11.12.1986; Surinder Pal Singh v. M.L.
Wadhawan and Ramesh Lal v. Delhi Administration, Crl. W.
No. 43/84 dated 16.4.1984 and other cases taking the same
view did not lay down good law and are accordinglyoverruled.
11. In the present case, the direct and proximate
cause for the impugned order of detention was the
importation in bulk of Indian made foreign liquor by the
appellant acting as a broker from across the border on thenight between December 29/30, 1986. The District
Magistrate in the counter- affidavit has averred that it was
revealed from the statements of the witnesses recorded on
January 4, 1987 that the appellant was the person actually
involved. Apprehending his arrest the appellant applied foranticipatory bail on January 21, 1987. It appears that on the
same day the appellant (sic police) appears to have made a
statement that there was no proposal at that stage to arrest
the appellant. However, later it was discovered that there
was no trace of the appellant. He was arrested on February 2,1987 and on the same day he made a statement admitting
these facts. Meanwhile, the proposal to detain the appellant
was placed before the District Magistrate. It is averred by the
District Magistrate that on a careful consideration of the
material on record he was satisfied that it was necessary to
make an order of detention of the appellant under Section3(2) of the Act and that accordingly on May 28, 1987 he
passed the order of detention. The appellant was taken into
custody on May 30, 1987. He had forwarded the report to
the State Government on the 28th and the government
accorded its approval on the 31st.12. Even though there was no explanation for the
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WP.2188-11delay between February 2, and May 28. 1987 it could not
give rise to a legitimate inference that the subjective
satisfaction arrived at by the District Magistrate was not
genuine or that the grounds were stale or illusory or thatthere was no rational connection between the grounds and
the impugned order of detention. There is a plethora of
decisions of this Court as to the effect of unexplained delay in
taking action. These are admirably dealt with in Durga DasBasu’s Shorter Constitution of India, 8th edn. at p. 154. We
will only notice to a few salient decisions. In Olia Mallick v.
State of West Bengal, (1974) 1 SCC 594 it was held that
mere delay in making the order was not sufficient to holdthat the District Magistrate must not have been satisfied
about the necessity of the detention order. Since the activitiesof the detenu marked him out as a member of a gang
indulging systematically in the cutting of aluminium electric
wire, the District Magistrate could have been well satisfied,even after the lapse of five months that it was necessary to
pass the detention order to prevent him from acting in a
manner prejudicial to the maintenance of the supply of
electricity. In Golam Hussain v. Commissioner of Police,
(1974) 3 SCR 613, it was held that the credible chainbetween the grounds of criminal activity alleged by the
detaining authority and the purpose of detention, is snappedif there is too long and unexplained an interval between the
offending acts and the order of detention. But no ‘mechanical
test by counting the months of the interval’ was sound. It all
depends on the nature of the acts relied on, grave anddetermined or less serious and corrigible, on the length of the
gap, short or long, on the reason for the delay in taking
preventive action, like information of participation being
available only in the course of an investigation. The Court
has to investigate whether the casual connection has beenbroken in the circumstances of each case. In Odut Ali Miah v.
State of West Bengal (1974) 4 SCC 129 where the decision of
the detaining authority was reached after about five months,
Krishna Iyer, J. repelled the contention based on the ground
of delay as a mere ‘weed of straw’ and it was held that the
‘time-lag’ between the dates of the alleged incidents and the
making of the order of detention was not so large that it
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WP.2188-11arrived at the satisfaction which the District Magistrate did
on the basis of the alleged incidents. It follows that the test of
proximity is not a rigid or mechanical test to be blindly
applied by merely counting the number of months betweenthe offending acts and the order of detention. In Vijay Narain
Singh v. State of Bihar, (1984) 3 SCC 14, one of us, Sen, J.
observed: [SCC p.18 : SCC (Cri) 365, headnote]
“On merits the impugned order cannot be said tobe vitiated because of some of the grounds of
detention being non-existent or irrelevant or too
remote in point of time to furnish a rational nexus
for the subjective satisfaction of the detainingauthority. It is usually from prior events showing
tendencies or inclinations of a man that aninference can be drawn whether he is likely, in the
future, to act in a manner prejudicial to the
maintenance of public order.”See also:Gora v. State of West Bengal (1975) 2
SCR 996; Raj Kumar Singh v. State of Bihar & Ors., (1986) 4
SCC 407 and Hemlata Kantilal Shah v. State of Maharashtra,
(1981) 4 SCC 647.” [Emphasis supplied]15. Even in the present case it is noticed from the
grounds of detention that the detenu was acting as a member
of a gang indulging systematically in the smuggling of
memory cards from Hongkong to Mumbai. In such cases, to
borrow the expression of the Apex Court even though there
was no explanation for the delay caused by the concerned
officials, it would not give rise to legitimate inference that the
subjective satisfaction arrived by the Detaining Authority was
not genuine or that the grounds were stale or illusory or that
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WP.2188-11there was no rational connection between the grounds and
the impugned order of detention.
16. The question is : whether the Detaining Authority has
recorded its satisfaction that the nexus between the date of
incident and passing of the detention order was still in
existence. For that, we may usefully refer to the grounds of
detention itself in addition to the reply affidavit filed by the
Detaining Authorityig before this Court. The Detaining
Authority after adverting to all the relevant documents
placed before her along with the proposal to detain Shri
Balwinder Singh (the detenu) in the concluding part of
grounds of detention has categorically mentioned that since
the detenu has engaged himself in such prejudicial activities,
it was imperative that Shri Balwinder Singh should be
detained under the COFEPOSA Act, 1974 with a view to
prevent him from indulging in smuggling activities in future.
The detaining authority has noted that the smuggling
activities in which the detenu indulged were covered by the
provisions of Section 111(l),(m) of the Customs Act, 1962. In
paragraph-15 of the grounds of detention, the Detaining
Authority has then noted that after receipt of the proposal
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WP.2188-11and after scanning the proposal and the documents appended
to the proposal, she had applied her mind and arrived at
subjective satisfaction and was satisfied with the nexus
between the date of incident and passing of the detention
order as well as the object of detention of Shri Balwinder
Singh has been maintained.
17. It is well established position that it is not open to the
Court to sit over the subjective satisfaction recorded by the
Detaining Authority as a Court of Appeal. Sufficiency or
adequacy of the material considered by the Detaining
Authority while recording such subjective satisfaction cannot
be the basis to set aside the detention order which is
otherwise valid in all respects. Moreover, once the subjective
satisfaction about the continuation of the nexus between
the date of incident and passing of the detention order
is recorded by the Detaining Authority, assuming that
there is some delay caused in anterior period, which is not
even explained – remained un-explained – that would not
make any difference. For, the delay in issuance of the
detention order, if any, would get subsumed in the subjective
satisfaction recorded by the Detaining Authority that the
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WP.2188-11nexus between the date of incident and passing of the
detention order as well as the object of detention has been
maintained. In our opinion, therefore, the argument under
consideration is untenable.
18. Learned APP had placed reliance on another decision
of the Division Bench of this Court in the case of Ashok
Kumar Vs. State of Maharashtra & Ors., reported in 2003
ALL MR (Cri) 1237. Even the said decision restates the
settled legal position that the general rule is that delay
simplicitor in issuance of the detention order does not vitiate
the order, whereas the order would be vitiated if live-link
between the prejudicial activity of the detenu and the
rationale of clamping a detention order on him is snapped.
19. As aforesaid, in the present case, the Detaining
Authority has categorically noted in the detention order that
the live-link has not snapped on the date of passing of the
order dated 23rd December, 2010. Accordingly, the first
ground of challenge will have to be rejected.
20. That takes us to the second ground urged before us
that the detention order suffers from non-application of mind
by the Detaining Authority. The first shade of this argument is
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WP.2188-11that the proposal was placed before the Detaining Authority,
which was complete in all respects, on 22nd December, 2010;
and on the same day the Detaining Authority proceeded to
pass the detention order. According to the petitioner it is
noticed from the record that besides the detention order
passed against the detenu in the present case, on the same
day the Detaining Authority passed order against co-accused
Shri Kuldeep Singh.
21. The argument proceeds that it was physically
impossible for the Detaining Authority to wade through the
entire proposal in respect of two separate cases on the same
day and also formulate grounds for detention and pass the
order of detention. The Counsel for the petitioner has placed
reliance on the unreported decision of the Apex Court in the
case of Shri Umesh Chandra Verma Vs. Union of India
and another in Criminal Appeal No.878 of 1985, decided
on December 20, 1985. In that case, the detenu was
interrogated on 13th June, 1985 for almost the whole day.
Thereafter, at 6:00 p.m. on that day he was formally arrested
under Section 104 of the Customs Act. On the same night,
detention order was made by the Joint Secretary of the
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WP.2188-11Government of India. The detention order so passed ran into
about 234 pages including the arrest memo prepared at 6:00
p.m. on the same day i.e. on 13th June, 1985. In the fact
situation of that case, the Court observed that the Detaining
Authority could not have possibly applied its mind to the
voluminous documentary evidence which was placed before
him and for that reason alone the order of detention was
quashed.
22. The next decision pressed into service by the Counsel
for the petitioner is a decision of the Division Bench of this
Court in the case of Smt. Kirti Sujit Satam Vs. State of
Maharashtra & Ors. reported in 2008 ALL MR (Cri) 774.
In that case, the Detaining Authority claimed to have perused
almost 1712 pages comprising of 154 documents in a short
time. In the context of that factual position, the Court
observed that it was not possible for the Detaining Authority
to go through the material and apply his mind in such a short
span.
23. In the present case, however, we find that the
proposal of the detenu – Shri Balwinder Singh was consisting
of only 147 pages. Besides, the affidavit of the Detaining
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WP.2188-11Authority does not in so many words state that she examined
those documents on the same day and proceeded to
formulate the grounds. The stand taken by the Detaining
Authority on affidavit reads thus :
“……… The Hindi translation of the said documents was sent
by the Sponsoring Authority vide its letter dated 18.11.2010.
Thereafter, I carefully considered the proposal of the
Sponsoring Authority and the relied upon documents and on22.12.2010, I directed to issue the order of detention against
the detenu by drafting the order of detention and the groundsof detention and also directed to submit fair copy of the same.
………. ”24. On bare reading of the above statement, it is not
possible to assume that the Detaining Authority examined
the proposal received on 18.11.2010, which was complete in
all respects, for the first time, only on 22nd December, 2010.
Assuming that the petitioner is justified in contending that
the proposal was considered by the Detaining Authority and
on the very day the Detaining Authority proceeded to
formulate the grounds and passed the detention order, we fail
to understand as to why it was not possible for the Detaining
Authority to wade through the compilation of only 147 pages
– consisting of only 36 documents – so as to formulate the
grounds on the same day and pass the detention order. The
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WP.2188-11abovesaid two decisions pressed into service by the
petitioner, therefore, are of no avail to the case on hand.
Even the argument that the Detaining Authority examined
two separate proposals on the same day, cannot be the basis
to doubt the subjective satisfaction of the Detaining
Authority. Firstly, the second proposal was of the co-accused.
Obviously, most of the documents in both the proposals would
be common. Secondly, we fail to understand as to why in the
facts of this case it must be inferred that the Detaining
Authority could not have considered the proposal of co-
accused together on one day.
25. Taking overall view of the matter, in our opinion,
therefore, it is not possible to doubt the subjective
satisfaction recorded by the Detaining Authority much less to
authoritatively hold that the detention order as passed
against Shri Balwinder Singh (the detenu) suffers from the
vice of non-application of mind.
26. That takes us to the other shade of the argument
regarding the ground of non-application of mind. It was
contended that the Detaining Authority has failed to disclose
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WP.2188-11in the reply affidavit as to whether the grounds of detention
were formulated by her or by some one else. Moreover,
whether the grounds were formulated before the receipt of
further documents and, if so after receipt of further
documents whether the grounds were revised and reviewed
by the Detaining Authority. The Counsel for the petitioner
placed reliance on the decision in the case of Rajesh
Vashdev Adnani Vs. State of Maharashtra and others.
reported in (2006) 1 Supreme Court Cases (Cri) 61, in
particular paragraphs-8 & 9 thereof which read thus :
“8. From a perusal of the records produced before us,
it appears that the second respondent directed obtaining ofsome documents when the proposal for detention of the
detenu was submitted. She also sought for the statementmade by the detenu before the Additional Chief
Metropolitan Magistrate. She further took note of a
purported pre-detention representation made by the detenu
on 18-4-2004. Detention order was passed upon discussionmade in that behalf by her with three officers including Shri
P.S. Goyal, Deputy Director. It further appears that the order
of detention as well as grounds therefor were formulated
and placed before her for approval. It appears that only
small changes were made by some officers.9. Perusal of the proposal made by the sponsoring
authority and the order of detention passed by the detaining
authority would show that except by substituting word “he”
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27. In the first place, no specific averment has been
made in the Writ Petition in this behalf. A vague and general
issue has been raised. The Counsel for the petitioner submits
that this contention became available to the petitioner only
after the Detaining Authority filed reply affidavit while
explaining the averments contained in the writ petition. Even
if this contention is to be taken forward, in our opinion, from
the reply affidavit of the Detaining Authority, as filed, it is
amply clear that the Detaining Authority after considering
the proposal of the Sponsoring Authority and examining all
the documents appended to the proposal, drafted the
grounds of detention and issued order of detention against
Shri Balwinder Singh (detenu). The Detaining Authority then
directed her subordinates to submit a fair copy of the
grounds and the detention order. The original file which was
produced before us does contain grounds of detention
formulated by the Detaining Authority. Suffice it to observe
that the argument under consideration canvassed on behalf
of the detenu is only in the nature of surmises and
conjectures. That does not take the matter any further for the
petitioner. Accordingly, the grievance of the petitioner that
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WP.2188-11the detention order suffers from non-application of mind by
the Detaining Authority, does not commend to us.
28. That takes us to the next argument of the petitioner
that the goods in question, which have already been seized
from the detenu, were not prohibited goods and, at best, it
would be a case of causing loss to the public exchequer
which can be duly compensated by imposing suitable penalty
on the detenu as precondition for returning the goods to the
detenu. For that, issuance of detention order was unjust and
inappropriate. This argument also does not commend to us.
For, once it is noticed that the Detaining Authority has
adverted to the infraction of Section 111(l),(m) of the
Customs Act on account of acts of commission and omission
of the detenu and recorded her subjective satisfaction that it
was necessary to detain the detenu to prevent him from
indulging in similar prejudicial activities in future, that
subjective satisfaction cannot be lightly brushed aside on the
plea under consideration. The fact remains that the detenu
indulged in smuggling activity which was covered by Section
111(l),(m) of the Act of 1962. Further, we find force in the
argument of the learned APP that even if it is a case of
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24
WP.2188-11solitary incident, it is open to the Detaining Authority to
proceed in the matter, if the Detaining Authority is satisfied
that the person is likely to indulge in similar prejudicial
activities in future. Reliance can be usefully placed on the
decision in the case of Kakkovayal Kuhbi Hamja vs. State
of Maharashtra and another, reported in 1993 CRI. L. J.
1078 (in particular paragraphs-18 to 22 thereof); and in the
case of Union of India and another vs. Smt. Chaya
Ghoshal and another, reported in (2005) 10 Supreme
Court Cases 97 (in particular paragraph-23 thereof). In this
view of the matter, the argument of the petitioner under
consideration will have to be stated to be rejected.
29. That takes us to the last contention of the petitioner
that there is unexplained and inordinate delay of about four
months in execution of the detention order. Admittedly, the
detention order was passed on 23rd December, 2010.
However, the detenu was placed under detention and sent to
Nasik Road Central Prison sometime on 23rd April, 2011. In
other words, almost four months time was spent in executing
the detention order against Shri Balwinder Singh.
30. The Sponsoring Authority has filed affidavit before
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25
WP.2188-11this Court, in which it has stated that it has no comments to
offer with regard to this ground. Insofar as the Detaining
Authority is concerned, reply can be traced to paragraph-8 of
the affidavit, which reads thus :
“8. With reference to para 5(v) of the petition, I say that
the Order of Detention was issued on 23.12.2010 and wassent for execution to the Superintendent of Police Taran
Taran, Punjab. Since the same was not executed, reminderswere sent to the Superintendent of Police, Taran Taran on
10.1.2011 and 1.4.2011. However, no reply was received
from the Executing Authority. Thereafter, by letter dated27.4.2011 the Superintendent of Prison, Nasik Road Central
Prison, Nasik intimated that the detenu was detained on
23.4.2011 and was admitted in the Nasik Road Central
Prison, Nasik on 27.4.2011.”31. Even if the explanation offered by the Detaining
Authority were to be accepted as it is, it is noticed that the
Detaining Authority after issuance of the detention order
immediately wrote to the Superintendent of Police Taran
Taran, Punjab. Thereafter, the Detaining Authority sent
reminder to the Executing Authority on 10th January, 2011
which was soon after sending the detention order / warrant
for execution. However, no explanation whatsoever is offered
as to what steps were taken by the Executing Authority or for
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26
WP.2188-11that matter the Detaining Authority between 10th January,
2011 till 1st April, 2011 and more particularly till 23rd April,
2011 when eventually the detenu came to be arrested. It is
not only a case of unsatisfactory explanation, but, in fact no
explanation whatsoever as to what steps were taken
between 10th January, 2011 till 23rd April, 2011 by the
Executing Authority. Notably, the Superintendent of Police
Taran Taran, Punjab has not filed any affidavit.
32. It is well established position that once the detention
order is passed, all authorities concerned with the execution
thereof have to act with promptness and make continuous
effort or serious attempts to secure the detenu and to serve
the detention order as early as possible. The Apex Court in
the case of P.U. Iqbal vs. Union of India and others,
reported in AIR 1992 SUPREME COURT 1900, in
paragraph-5, has observed thus:-
“5. Even assuming the entire facts as set out in the
counter affidavit are true, it is very clear on the face of this
subsequent affidavit that from 24-11-1989 to 23-4-1990, no
prompt and continuous effort or serious attempt was made
to secure the detenu and serve the impugned order. It is
apparent that the concerned officers particularly, the Circle
Inspector of Police to whom the warrant had been sent for
execution of the order of detention, had shown absolute
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27
WP.2188-11effort with assiduity in executing the warrant. The
Government has made a request to the Chief Judicial
Magistrate to take action u/S. 7(1)(a) only on 14-5-1990
that is after a period of 9 months from the date of thepassing of the detention order.”
It will be useful to also advert to the dictum in
paragraphs-8 & 9 of the same decision, which reads thus:-
“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 thosedecisions 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. DelhiAdministration, (1982) 2 SCC 403 : (AIR 1982 SC 1143,
para wherein the following observation is made:
“Preventive detention is devised to afford protection to
society. The object is not to punish a man for havingdone 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 toturn 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 frustratethe entire proceedings.”
33. Applying the abovesaid principle to the fact situation
of the present case, we have no hesitation in taking the view
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WP.2188-11that the executing authorities have failed to act with utmost
dispatch and promptness. It appears that there was absolute
callousness in execution of the detention order. Admittedly,
no steps were taken by the executing authorities or the
Sponsoring Authority to proceed against the detenu by
resorting to action under Section 7(1)(b) or 7(1)(a) of the Act,
assuming that the detenu was not traceable. As a matter of
fact, in the replies filed by the Sponsoring Authority or the
Detaining Authority it is not even remotely suggested that
the detention order could not be executed on the detenu
because he was not available and was absconding or avoiding
service thereof. It is not their case that the detenu did not
appear before the criminal court during this period or failed
to comply with any condition of bail. As aforesaid, even if the
detenu was absconding during the relevant period, nothing
prevented the executing authorities or the Sponsoring
Authority to resort to action under Section 7 of the Act to
secure the arrest of the detenu and to execute the detention
order. No steps were taken by the Sponsoring Authority to
cancel the bail operating in favour of the detenu from 22 nd
March, 2010 and more particularly after having found that
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WP.2188-11the detention order could not be executed by the executing
agency after January, 2011. In the circumstances, we are
inclined to allow this Writ Petition only on this count. On all
other counts, the Petition ought to fail.
34. Accordingly, Writ Petition is allowed. Rule made
absolute. The impugned detention order bearing
No.PSA-1210/CR-96/SPL-3(A) dated 23rd December, 2010 is
quashed and set aside and the Detaining Authority is directed
to set detenu – Shri Balwinder Singh, at liberty forthwith.
35. At this stage, request was made by the Counsel for
the petitioner to issue operative part of the order as
pronounced in open Court – as transcription of the entire
judgment may take so time – so that the detenu can avail of
the benefit thereof at the earliest. We accede to this request
and direct the Office to issue operative order to the petitioner
forthwith.
(P. D. KODE, J.) (A. M. KHANWILKAR, J.)
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