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1996 DIGILAW 533 (KER)

M. P. Mariumma v. State Of Kerala

1996-12-13

S.SANKARASUBBAN, U.P.SINGH

body1996
Judgment :- SANKARASUBBAN, J. Petitioner is the wife of the detenu Mohammed. On 26-5-1995, foreign currency worth Rs. 13.25 lakhs were seized from the aforesaid Mohammed at Kozhikode Airport when he was about to board East West Airlines to Bombay. The foreign currency was concealed in the false bottom of the brief case. On being questioned, Mohammed stated that the brief case containing the foreign currency was entrusted to him by one Madathil Saindeen with a direction to hand over the same to one Basheed who is staying in Rafeeque House, Nagapada, Bombay. He was offered an amount of Rs. 10,000/- as remuneration for the work. The detenu was arrested on 27-5-1995 and was produced before the Additional Chief Magistrate (Economic Offences), Ernakulam. He was remanded to judicial custody. His application for bail was rejected by the Magistrate (Economic Offences), Ernakulam on 3-6-1995. Subsequently, he was granted conditional bail by the Sessions Judge, Ernakulam. Thereafter, the Commissioner of Central Excise and Customs, Kochi had forwarded the proposal for issuing the detention order against Mohammed and the detention order was issued on 13-10-1995 under Section 3(1)(i) of the COFEPOSA Act, 1974. The detenu was detained on 10-11-1995 and admitted in the Central Prison, Thiruvananthapuram on 11-11-1995. The detenu filed Ext.P3 representation. This representation was disposed of by the State Government by Ext.P4 order dated 30-12-1995, while the Central Government disposed of the same by Ext.P5 order dated 23-1-1996. The matter was placed before the COFEPOSA Advisory Board and the Advisory Board found against the detenu as per its report dated 15-1-1996. Thereafter, the Government of Kerala passed the confirmation order under Section 10 of the COFEPOSA Act and detention was ordered for a period of one year from 10-11-1995. The order passed by the Government of Kerala dated 24-1-1996 is produced as Ext.P6. 2. Even though many contentions were raised in the original petition challenging the detention, learned Counsel for the petitioner raised only one point at the time of argument, i.e. the grounds raised in ground of the original petition. According to the learned Counsel for the petitioner, the cause of action for the detention order arose on 26-5-1995, when the foreign currency was seized from the detenu. But, it was only on 13-10-1995 that the order of detention was passed. Thus, there is a delay of five months from the alleged cause of action. According to the learned Counsel for the petitioner, the cause of action for the detention order arose on 26-5-1995, when the foreign currency was seized from the detenu. But, it was only on 13-10-1995 that the order of detention was passed. Thus, there is a delay of five months from the alleged cause of action. This, according to the learned Counsel for the petitioner, is very inordinate and no reason has been given why such inordinate delay occurred in the matter of issuing Ext.P1 order of detention. 3. A counter-affidavit has been filed on behalf of the first respondent. In the counter-affidavit the facts leading to the passing of the detention or have been stated. In paragraph 4 of the counter-affidavit, it is stated that the bail application submitted on behalf of the detenu dated 29-5-1995 and order dated 3-6-1996 rejecting the bail application were enclosed along with the grounds. But he had moved the Sessions Court by his application dated 27-6-1995 and was granted bail by order dated 6-7-1995. According to paragraph, 4 of the counter-affidavit, the bail application dated, 27-6-1995 and the order dated 6-7-1995 were received by the Government on 5-10-1995. 4. The relevant files were placed before us and from the files it is found that the Commissioner of Central Excise forwarded the proposal for detention by his letter dated 28-7-1995. The Commissioner & Secretary to Government, Home Department issued a letter dated 4-8-1995 calling for a meeting of the Screening Committee under the COFEPOSA Act on 24-8-1995 to discuss the proposal sent by the Commissioner of Central Excise and Customs. The meeting proposed to be held on 24-8-1995 was postponed to 31-8-1995. In the meeting held on 31-8-1995, the Committee recommended the detention of the detenu. On 25-9-1995, the Commissioner and Secretary to Government of Kerala, Home Department, requested the Commissioner of Central Excise and Customs to furnish certain details especially whether there has been any bail application and whether there is an order granting bail. It is only by letter dated 5-10-1995, the bail application and the bail order were received by the Government. The detention order was passed on 13-10-1995, that is, within 8 days of the receipt of the documents. 5. The question for consideration is whether the detention order is invalid because of the delay of nearly five months from the date when the foreign currency was seized from the detenu. The detention order was passed on 13-10-1995, that is, within 8 days of the receipt of the documents. 5. The question for consideration is whether the detention order is invalid because of the delay of nearly five months from the date when the foreign currency was seized from the detenu. In the decision T. A. Abdul Rahman v. State of Kerala, reported in, (1989) 4 SCC 741 : (1990 Cri LJ 578), the Supreme Court held thus (Para 11 of Cri LJ) :- "The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and is order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the Court has to investigate whether the causal connection has been broken in the circumstances of each case." Their Lordships also referred to the decision Hemlata Kantilal Shah v. State of Maharashtra, (1981) 4 SCC 647 : (1982 Cri LJ 150), where it was held that delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person. What is required by law is that the delay must be satisfactorily examined by the detaining authority. 6. In this case, it is found that the proposals were sent only on 28-7-1995 and a decision was taken on 13-10-1995 to pass orders of detention. But, the authority was waiting to find out whether any order has been passed granting bail to the detenu. The bail application and the bail order was received by the Government only on 5-10-1995. Hence, according to us, the delay has been properly examined. But, the authority was waiting to find out whether any order has been passed granting bail to the detenu. The bail application and the bail order was received by the Government only on 5-10-1995. Hence, according to us, the delay has been properly examined. In the above view of the matter, the original petition is dismissed. Petition dismissed.