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1991 DIGILAW 546 (BOM)

Kamruddin Abdul Aziz v. L. Hmingliana

1991-11-19

D.J.MOHARIR, S.W.PURANIK

body1991
JUDGMENT (ORAL) The petitioner is the father of the detenue. His daughter Smt. Suhrabi Kamruddin Abdul Aziz was detained under Section 3(1) of the Conservation of Foreign Exchange and revention of Smuggling Activities Act, 1974 by an order dated 12.3.1991 which was served upon heron 7.5.1991 along with grounds of detention and list of documents and the documents. 2. The said order of detention is based on an incident dated 25.7.1990 at Sabar Airport when on arrival from abroad, the detenue Suhrabi was intercepted and searched. The search disclosed 14 foreign marked gold biscuits in her hand-bag. The contraband was seized, her statement was recorded immediately under the Customs Act, 1962 and the adjudication proceedings were also over on the same day i.e. on 25.7.1990. 3. On 26.7.1990, she was produced before the Metropolitan Magistrate, where she was released on bail. The bail amount was later on reduced. The detenue Suhrabi availed of the bail on 22nd August 1990 arid she was set at liberty. It was only 6 months thereafter that her liberty was curtailed for the second time on 7.5.1991 by an order of detention dated 12.3.1991. 4. It is in these circumstances that the order of detention dated 12.3.1991 passed by the 1st respondent is impugned. Mrs. Ansari, learned counsel appearing for the petitioner, urged only one ground namely delay in issue of order of detention of over 7 months and 18 days which has resulted in snapping the live link between the incident and the purpose for preventive detention. This ground is stated in detail in para (vi) at page 8 of the petition. On the said submission it was urged that the Detaining Authority at such a late stage could not have been arrived at any rational prognosis of the future behavior of the detenu from her alleged past conduct necessitating her preventive detention. She contended that this detention on a stale ground is punitive in character rather than preventive in nature. 5. The Detaining Authority has filed its reply affidavit and in paragraph 6 page 24 there is an attempt to explain this delay in the matter of issue of order of detention. It is submitted inter alia that the incident took place on 25.7.1990 and the investigation was in progress. At this stage it must be observed that there is no material on record to show that any investigation proceeded beyond 25.7.1990. It is submitted inter alia that the incident took place on 25.7.1990 and the investigation was in progress. At this stage it must be observed that there is no material on record to show that any investigation proceeded beyond 25.7.1990. Thereafter it is contended that the file was received from the "seizing unit by the COFEPOSA unit on 1.8.1990. The content of para 6 further discloses that nothing was done at the COFEPOSA unit in the entire month of August, entire month of September and in the entire month of October. It was only as late as on 30th October, 1990 that a proposal was initiated by the COFEPOSA unit and sent to the Screening Committee. There is no explanation whatsoever for sitting tight on these papers for a period of 3 months when the investigation and all the papers were before the Authorities on 25.7.1990 itself. 6. After the Screening Committee cleared the proposal on 31.10.1990 the Assistant Collector of Customs after 90 days on 19.11.1990 forwarded the proposal to the Detaining Authority. It was received by the Detaining Authority on 20th November, 1990. Again for a period of 16 days the Detaining Authority did nothing except he applied his mind on 6.12.1990 and drafted the grounds of detention. It appears that after the grounds were drafted, some additional information was called for and even the said information was received latest by 22.1.1991. However, in the last week of January, whole month of February and two weeks of March 1991 nothing had taken place and it was only on 12.3.1991 that the order of detention came to be passed. We are not satisfied with the explanation and the contention of the Detaining Authority in saying that the time taken in issue of the order of detention is reasonable and necessary for full consideration. 7. The petitioner relied on a case on almost similar set of facts decided by our Division Bench on 22.8.1991 in Criminal Writ Petition No. 261 of 1991 (Smt. Nafisa Mohd. Hanif Ilahi v. State of Maharashtra.) The Division Bench at length considered the Supreme Court judgment in the matter of Abdul Salem alias hiyyan v. Union of India and others1 wherein all other judgments of the Supreme Court were also considered, cited by the learned Public Prosecutor. Hanif Ilahi v. State of Maharashtra.) The Division Bench at length considered the Supreme Court judgment in the matter of Abdul Salem alias hiyyan v. Union of India and others1 wherein all other judgments of the Supreme Court were also considered, cited by the learned Public Prosecutor. The Division Bench also considered the decision cited on behalf of the detenue in the matter of T. A. Abdul Rahman v. State of Kerala Osr2.It is observed by the Division Bench of our High Court that on principles of law there is no dispute whatsoever. It is, however, a question of appreciation of facts in each given case which would determine the factor whether the delay in issue of the order of detention was such when the live-link between the prejudicial act and the purpose of preventive detention had snapped. 8. In the facts and circumstances of our present case we find that there is no satisfactory explanation coming forth for a period of 3 months to initiate the proposal and thereafter several weeks are taken merely for drafting and formulation of the grounds of detention. This delay is particularly unsatisfactory in view of the fact that the entire investigation material was available on the very first day on the incident and no other links were sought to be established. It is not a case where the detenue was a member of a smuggler's gang or any material had been collected to show on the basis of which there could be rational prognosis of the future prejudicial activities of the detenue. No doubt the Detaining Authority has stated the fact that the detenue had on two previous occasions smuggled gold into India but went undetected. But that would not give basis for a rational prognosis of the future activities after 9 months after the incident and when no other activity prejudicial in nature was found against the detenue. At any rate if the detenue had indulged in prejudicial activity on two occasions previously, it was all the more rational to expect the Authorities to act expeditiously and with promptitude in preventively detaining the person. 9. For these reasons we are not satisfied with the explanation for delay and we hold that the delay is fatal to the subjective satisfaction on the basis of which the order of detention is passed. 10. In the result, therefore, the petition succeeds. 9. For these reasons we are not satisfied with the explanation for delay and we hold that the delay is fatal to the subjective satisfaction on the basis of which the order of detention is passed. 10. In the result, therefore, the petition succeeds. The impugned order is quashed and set aside. The detenue be released forthwith if not required otherwise. Rule is made absolute as above. Petition allowed. 1. A.I.R. 1990 S.C. 1446. 2. A.I.R. 1990 S.C. 225; 1989(3) Crimes 186 (S.C)