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2002 DIGILAW 1358 (PAT)

Hassan Ali v. Union Of India

2002-12-03

R.S.GARG, S.N.JHA

body2002
Judgment S.N.Jha and R.S.Garg JJ. 1. The petitioner seeks to challenge the order of the State Govt, contained in Memo No. 554 dated 27.5.1999 of the Home (Special) Department by which he has been detained under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short, COFEPOSA). The order has been confirmed after rejecting the petitioners representation. 2. The short facts of the case are that on 23.4.1998 a criminal case under Section 135 of the Customs Act being Case No. 101(C)/98 (Patna) was registered against the petitioner. The allegation against the petitioner is that he was carrying a contraband item, namely, smuggled ball bearing of third country origin in 75 gunny wrapped packages when he was coming from Sitamarhi and was about to cross Hajipur at about 5 RM. on 23.4.1998. to the criminal case which was registered or his apprehension, the petitioner was eventually granted bail by this Court on 3.11.1998. The case of the petitioner is that he is not involved in any other case except the above said Customs Case No 101(C)/98 (Patna). The case is pending trial before the Special Court at Muzaffarpur. The further case of the petitioner is that he is mere a driver of the vehicle and he was not aware of the Contents of the packages recovered from the vehicle and his detention under the COFEPOSA, therefore, was unwarranted. 3. Sri Abdul Mannan Khan, learned counsel for the petitioner submitted that apart from the factual aspects of the petitioners defence, the aforesaid detention is liable to be struck down on a short ground, namely, the belated service. It was pointed out that though the detention order was passed on 27.5.1999 it was served on the petitioner only on 17.8.2002 i.e. after more than three years. 4. Learned Standing Counsel appearing on behalf of the respondents submitted that the petitioner was not found at the address declared by him which is evident from the letter of the Assistant inspector General of Police (S) with Bengal Police Directorate, dated 17.8.2001, enclosed as Annexure-A to the counter affidavit, and therefore, the order could not be served on the petitioner earlier. It is not the case of the respondents that the address furnished by the petitioner on which notice was sent for service is false. It is not the case of the respondents that the address furnished by the petitioner on which notice was sent for service is false. Learned counsel for the petitioner submitted that the petitioner has been appearing on different dates in the above said criminal case, therefore, the respondents could have served the detention order on him on any date, if they really wanted to serve the detention order on him. It thus cannot be said that the petitioner evaded service of notice as he was always available for this purpose but no genuine attempt was made by the respondents to do so. The belated service of notice is enough to invalidate the detention of the petitioner. He submitted that where the detention order is not served within a reasonable period, the very purpose of detention vanishes and the order of detention, therefore, must be struck down. 5. In paragraph 6 of the writ petition the petitioner has specifically stated that he was throughout in attendance in the Court of Special Magistrate, Economic Offences, Muzaffarpur. While dealing with this averment, in paragraph 9 of the counter affdavit the respondents have simply stated that the petitioner was absconding and concealing himself. In our opinion, the controversy as to whether the petitioner was in attendance in the court of the Special Magistrate, Economic Offences or not could be easily verified from inspection of the records of the relevant case but no attempt appears to have been made by the respondents in this regard. A bald denial of the kind cannot be said to be sufficient to reject the case of the petitioner regarding his being in attendance in the court through out. We find substance in the submission of the learned counsel for the petitioner that where the detention order is not served within a reasonable period, the very purpose of detention loses its relevance and the order of detention cannot be said to be in accordance with law. 6. In the facts and circumstances, therefore, we are constrained to set aside the order of detention dated 27.5.1999 and direct that the petitioner be released forth with, if not wanted in any other case. 7. The writ petition is allowed accordingly.