Fathima Mohammed v. State of Kerala — 1997 DIGILAW 141 (KER)

JUDGMENT U. P. Singh, C. J. 1. This Habeas Corpus Petition has been filed by the wife of one Sri. V. R. Mohammed, who has been detained under S.3(1)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter called as 'the COFEPOSA Act'). Petition has been filed with a view to obtain a direction to the respondents to produce the petitioner's husband, the detenu, before this Court. He is under detention in the Central Prison, Trivandrum, and is now about to complete the period of detention on 21.5.1997. 2. The short question raised in this petition is that there was no justification to detain the detenu in pursuance of Ext. P1 order dated 4.11.1989, on 22.5.1996. The contention is that there has been considerable delay in execution of the order of detention and the alleged cause of action. The cause of action arose on 13.8.1983 leading to the issuance of Ext. P1 order dated 4.11.1989. The grounds of detention revealed that the entire investigation was over by 2.9.1989. In other words, it is contended that there is absolutely no ground explaining the inordinate delay of 6 1/2 years in serving the detention order and hence the same is vitiated. At the time when the order was issued, the detenu was working in Abu Dhabi and he had come to his native place for a short visit. When he learnt that the order of detention under Ext. P1 has been issued by the second respondent, he was advised to approach the Delhi High Court and a writ petition was filed. By order dated 13.8.1990, the High Court of Delhi issued an interim order staying the implementation of Ext. P1 order till the disposal of the writ petition. 3. In the meanwhile, the detenu had returned back to his original place of employment at Abu Dhabi and, occasionally, he had been visiting his native place on holidays in Kerala. The writ petition was ultimately dismissed by Delhi High Court on 17.9.1993. The contention raised was that even thereafter, no serious action was taken by the respondents to detain him in pursuance of the detention order contained in Ext. P1. After his return from Abu Dhabi, he had been staying at his residence at Brothers Manzil, Vellurayil House, Perumppadappu, Ponnanl. However, he was arrested and taken into custody only on 22.5.1996 and detained in the Central Prison, Trivandrum. P1. After his return from Abu Dhabi, he had been staying at his residence at Brothers Manzil, Vellurayil House, Perumppadappu, Ponnanl. However, he was arrested and taken into custody only on 22.5.1996 and detained in the Central Prison, Trivandrum. His detention commenced from the date when . the grounds of detention was served on him, subsequently. 4. The case was then referred to he COFEPOSA Advisory Board on 19.6.1996 under S.8(b) of the COFEPOSA Act. The Advisory Board submitted a report on 1.8.1996 stating that there was sufficient cause for detention, under S.3(1)(ii) of the COFEPOSA Act. Subsequently thereafter, the detenu addressed a representation on 19.8.1996 contending that he had no connection whatsoever with the alleged offence, that no statement had been obtained from him and that the only evidence against him was the alleged confessional statement of the coaccused. He further stated that the criminal proceedings initiated against him by the Customs Department had been quashed by the Kerala High Court. 5. We are not concerned with all the grounds raised by him, since this petition has been pressed only on one ground that there has been considerable delay in the matter of executing the order of detention, since the said order Ext. P1 dated 4.11.1989 was executed only on 22.5.1996. It is this sole ground which has been pressed for our consideration and we are disposing of this petition only on that ground. No other ground has been pressed for consideration. In support of the contention, as already noticed above, the learned counsel contended that it was known to the authorities from the very beginning when they had visited the residence of the detenu at Kerala that the detenu was serving at Abu Dhabi. In this context, our attention was drawn to the two grounds mentioned against the detenu: "i) Gold of foreign origin weighing 2336 grain and valued at Rs. 7,24,160/- was seized from K. P. Ali when he landed at Trivandrum Airport by Air India Flight AI 982 on 13.8.1989 and the gold under seizure was sent by you from Abudhabi. (ii) You had abetted the smuggling of gold of foreign origin by sending the gold of foreign origin from Abudhabi". 7,24,160/- was seized from K. P. Ali when he landed at Trivandrum Airport by Air India Flight AI 982 on 13.8.1989 and the gold under seizure was sent by you from Abudhabi. (ii) You had abetted the smuggling of gold of foreign origin by sending the gold of foreign origin from Abudhabi". On these two grounds emphasis is laid by the counsel that it was known to the authorities that the detenu had abetted the smuggling of gold from Abu Dhabi and that the gold under seizure had been sent by him from Abu Dhabi. 6. The importance of emphasis on these two grounds is with a view to show that the activity of a smuggler which was abetted by the detenu was from Abu Dhabi alone. This will have relevance while considering the sole question raised by the counsel for the detenu. In other words, it is an attempt to show that at the time when the detention order was passed, the Detaining Authority had the full knowledge that his activity originated from Abu Dhabi. Further, on investigation made at his residence in Kerala, it was revealed to them that he was at Abu Dhabi and occasionally he comes during all holidays. 7. In this context, the stand taken in the counter affidavit has to be noticed and in Para.9 thereof, it is stated that the Special Squad was constituted for further enquiries and the enquiries revealed that he was staying in Abu Dhabi. It is then stated that the detenu had tried all means to circumvent the law of the land and he had not appeared before the investigating authority or the adjudicating authority at any stage of the adjudication and he had been declared as an absconder under S.7(i) of the COFEPOSA Act on 25.1.1990. Then in Para.14, it is stated that the detention order was issued on 4.11.1989 and the warrantee has been apprehended on 22.5.1996. The warrantee was concealing himself to evade detention. On enquiries, it was revealed that he was in Gulf Country. The detenu stayed back in Gulf Country to escape from the clutches of law. In Para.16, it is stated that the police authorities made enquiries you apprehend the warrantee by contacting persons at Perumpadappu on several days, right from November 1989 till March, 1996. On enquiries, it was revealed that he was in Gulf Country. The detenu stayed back in Gulf Country to escape from the clutches of law. In Para.16, it is stated that the police authorities made enquiries you apprehend the warrantee by contacting persons at Perumpadappu on several days, right from November 1989 till March, 1996. The details of the enquiries made by the police to locate the warrantee would be seen from the relevant files. The detenu stayed back in Gulf Country to escape from the clutches of law. On these averments, it was contended on behalf of the respondents that there was delay in execution of the detention order is absolutely baseless. 8. An additional affidavit was also filed by respondents 1 and 2, which reiterated the same position and in addition, reliance has been placed on Annexure A1 wherein the details of calendar of action taken in order to apprehend the warrantee has been furnished. It presents a strange situation. The said calendar does not indicate as to whether any statement of the persons, who are alleged to have been interrogated by the Investigating Agency, was recorded. It further appears that even after dismissal of the writ petition by the Delhi High Court since 7.9.1993 the Special Squad made further enquiries, but the details furnished in the calendar of action do not indicate as to what effort was made by the authorities to apprehend the detenu in the Gulf Country, although it was within their full knowledge that he was in the Gulf Country. From this calendar, we also do not find as to whether those persons, who are alleged to have met the enquiry officers, gave any statement as to the details of the warrantee staying in the Gulf Country and whether the same was obtained. On these facts, it is apparent that the Detaining Authority had full knowledge that the detenu was serving in the Gulf Country, which has been communicated to them by the detenu's wife when her house was first visited by them and the address was known to them. But even knowing these facts, no effect was made by the detaining authority as also the Investigating Agency to find out the address of the detenu at Abu Dhabi. No correspondence is placed before us in order to establish that efforts were made to apprehend him in the Foreign Country at Abu Dhabi. But even knowing these facts, no effect was made by the detaining authority as also the Investigating Agency to find out the address of the detenu at Abu Dhabi. No correspondence is placed before us in order to establish that efforts were made to apprehend him in the Foreign Country at Abu Dhabi. Even after the dismissal of the writ petition by the Delhi High Court, as early as on 7.9.1993, the Special Squad had learnt from one Muhammedkutty on that dale at a place called Ponnani in Kerala that the warrantee was in Gulf Country, but we have no evidence before us as to whether any effort had been made to obtain his address from those persons whom the Special Squad met at Ponnani in Kerala and it is not only one person, but several such persons have been mentioned in the said calendar. Therefore, although we have a bald statement that the Special Squad met these persons in Kerala at Ponnani and learnt that the warrantee was in Gulf Country, but that again was of no effect, because neither any effort was made by them to obtain the address of the detenu from those persons whom they met nor any enquiry whatsoever was made to apprehend the alleged detenu at Abu Dhabi. There was absolutely no effort by these authorities on which we can place reliance. Even the respondents' counsel could not point out any averment to the effect that any such effort was made by the Investigating Authorities to apprehend the detenu at Abu Dhabi. 9. On these facts, the learned counsel appearing for the detenu has submitted that there has been unexplained delay of nearly 6 1/2 years in securing the arrest of the detenu and, therefore, such delay would throw considerable doubt on the genuineness of subjective satisfaction of the authority. In support of the contention, our attention was drawn to the decision of the Supreme Court in the case of T. A. Abdul Rahman v. State of Kerala and Others ( AIR 1990 SC 225 ). The Supreme Court said: "In the instant case, the Police Officer to whom the detention order was forwarded for execution has not filed any supporting affidavit explaining the delay in securing the arrest of the detenu. The Supreme Court said: "In the instant case, the Police Officer to whom the detention order was forwarded for execution has not filed any supporting affidavit explaining the delay in securing the arrest of the detenu. Under these circumstances, it must be held that leaving apart the question of delay in passing the order of detention from the date of the seizure of gold, the fact remains that the detaining authority has failed to explain the long delay in securing the arrest of the detenu after three months from the date of the passing of the detention order and this non explanation throws a considerable doubt on the genuineness of the subjective satisfaction of the detaining authority vitiating the validity of the order of detention." In the ca se of Pradeep Nilkanth Paturkar v. S. Ramamurthi and others (1993 Supp (2) SCC 61), the Supreme Court observed that the unexplained delay whether short or long especially when the appellant has taken a specific plea of delay, vitiates the detention order. In the case of P.M. Hari Kumar v. Union of India (1995) 5 SCC 691 ), the detention order was quashed on the ground that the delay in executing the detention order was not properly and satisfactorily explained. 10. Considering the facts and circumstances of this particular case, we have no option but to hold that the delay of six and half years in execution of the detention order without any reasonable explanation for such delay, has vitiated the detention order in question and, accordingly, the order of detention, contained in Ext. P1 is quashed. The application is accordingly allowed and the detenu is directed to be set free, if he is not warranted in any other case. Issue photo copy on usual terms.