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2005 DIGILAW 311 (KER)

Hajara v. Union of India

2005-05-24

K.HEMA, S.SANKARASUBBAN

body2005
Judgment :- Sankarasubban, J. This Writ Petition has been filed under Article 226 of the Constitution of India by one Hajara. Hajara is the wife of one V Abdul Kareem, who has been imprisoned under an order passed by the Joint Secretary to Government of India under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as 'the COFEPOSA Act'), copy of which is produced and marked as Ext. P-1. The order is dated 15-10-2003. The order was executed on 10-12-2004, nearly after one year of Ext. P-1. The petitioner has raised many grounds challenging the order of detention. One of the grounds raised is the delay in the execution of the order of detention, namely, Ext. P-1. 2. As already stated, Ext. P-1 was issued on 15-10-2003. But the petitioner's husband was arrested only on 10-12-2004. Since we are accepting the contention of the petitioner that there has been unexplained delay in the execution of the order, it is not necessary for us to consider the other grounds. The petitioner has from paragraph 10 to 25 of the Writ Petition given the details regarding the fact that the petitioner's husband was present in the Village and it was only because of the inaction on the part of the authorities that he was not arrested. The petitioner submitted the following facts. 3. As per Ext. P-7, the petitioner's husband was in the police custody or in the judicial custody of the Bombay Police. Ext. P-7 is the order passed on bail application filed by the detenu and the bail was granted by the court. It is dated 17-10-2003. It is further seen that the detenu appeared before the Bombay Police from 18-10-2003 to 2-11-2003. Ext. P-8 will show that the detenu was in the judicial custody of the Judicial First Class Magistrate, Chavakkad for the period from 16-12-2003 to 18-12-2003. The invitation card of the marriage of the petitioner's daughter is, dated 7-12-2003. Ext. P­16 shows that the detenu has registered a document in the Sub Registrar's Office on 1-­1-2004. Ext. P-18 is the consultation of the Doctor on 12-1-2004. Ext. P-13 is the document registered before the Sub Registrar's Office, Chavakkad on 28-1-2004. On the basis of this, the petitioner contends that the detenu was available, but he was not arrested. There is no question of absconding. 4. Ext. P-18 is the consultation of the Doctor on 12-1-2004. Ext. P-13 is the document registered before the Sub Registrar's Office, Chavakkad on 28-1-2004. On the basis of this, the petitioner contends that the detenu was available, but he was not arrested. There is no question of absconding. 4. A counter-affidavit has been filed regarding this and it is seen discussed in paragraphs 12 and 13. The respondents have produced Ext. R-3 (d) showing the chronology of dates and events from the date of order of detention till execution. The following facts are revealed from Ext. R-3 (d). The detention order was issued on 15-10-2003. The order was received by the Directorate of Enforcement, New Delhi on 16-10-2003. The Directorate of Enforcement, New Delhi forwarded the detention order to the Directorate of Enforcement, Chennai on 16-10-2003. The Chennai office received the same and carried out documentation work on 3-11-2003. On the same day, the Directorate of Enforcement, Chennai forwarded the detention order, grounds of detention and relied upon documents to the Principal Secretary, Howe Department Government of Kerala, Thiruvananthapuram. It was received by the Directorate of Enforcement, Thiruvananthapuram on 6-11-2003. It was received by the Home Department, Government of Kerala on 7-11-2003 and it was sent for execution to the Additional Secretary, Home Department on 12-11-2003. On 13-11-2003, the detention order was sent to the Deputy Superintendent of Police, Narcotic Cell, Trichur for execution. It is stated that on 29-11-2003, enquiries were made by the Deputy Superintendent of Police. On 9-12-2003 it was known that the detenu was arrested by the Bombay Police and was later released on bail. On the same day, the Directorate of Enforcement, Mumbai was requested to ascertain the details. On 15-12-2003, the Deputy Superintendent of Police, Narcotic Cell, Trichur made enquiries. It is further admitted that on 23-12-2003, there is a report from the Directorate of Enforcement, Mumbai that the detenu was released on bail by the Court in Bombay and that the next date of hearing was 23-12-2003. It is further seen that the Deputy Superintendent of Police made enquiries. A long list is given under Ext. R-3 (d) regarding the enquiries made. 5. After perusing the counter-affidavit and Ext. R-3 (d), we are not satisfied that the delay has been sufficiently explained. It is further seen that the Deputy Superintendent of Police made enquiries. A long list is given under Ext. R-3 (d) regarding the enquiries made. 5. After perusing the counter-affidavit and Ext. R-3 (d), we are not satisfied that the delay has been sufficiently explained. In P.U. Iqbal v. Union of India (A.I.R. 1992 Supreme Court 1900), it was observed thus: "If there is unreasonable delay between the date of the order of detention and the date of arrest of the detenue, such delay unless satisfactorily explained throws a considerable doubt on the genuineness of the requisite subjective satisfaction of the detaining authority in passing the detention order and consequently render the detention order had and invalid because the 'live and proximate link' between the grounds of the detention and the purpose of detention is snapped in arresting the detenu." It is further stated in Manju Ramesh Nahar v. Union of India and others ((1994) 4 S.C.C. 116) that the delay in execution of the order unless properly explained cannot be condoned. A Division Bench of this Court in the decision reported in Lekha Nandakumar v. Government of India (2004 (2) K.L.T 1094) held that a writ of habeas corpus can be issued, if there is wide time gap between the offence and the order of detention. 6. The facts of this case will reveal the appearance of the detenu, in the Bombay Court and subsequent appearance by the detenu in the Chavakkad Court and other materials as given will amply show that the order could have been executed earlier. The counter-affidavit merely narrates that certain enquiries were made but that will not show that the delay has been properly explained. In the above view of the matter, we set aside Ext. P-1 order and direct that the detenu, V Abdul Kareem, resident of House No.XXIV/81, Valia Parambil House, Peragam, Trichur shall be released at once, if he is not required in any other case.