JUDGMENT [ENTITY], J.
1. By virtue of [SECTION] of the [ACT], this writ of Habeaus Corpus has been preferred by the petitioner who is the brother of the detenu by name [ENTITY] detained by an order passed by the second respondent namely the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, vide his order F. No. 673/40/97-CUS-VIII dated 28-4-1997 under [SECTION] of the [ACT] impugning and praying to quash the same. Both the detention order above referred along with the grounds of detention and the documents relied thereupon as shown in Exhibits A, B and C respectively were admittedly executed and served upon the detenu on 26-9-1997.
2. The prejudicial activities which pertains to the passing of the above referred order of detention are briefly stated as under, for the purpose of appreciation of the entire case diary :-
On getting a specific intelligence that the detenu was likely to receive a substantial amount of foreign currencies from a person at 7 p.m. on 26-8-1996 at his office premises situate at 309/ 313 1st floor, Last Room, Nav Nidhan Bhavan, Mumbai-3 the same was searched by the Enforcement Directorate, Mumbai which resulted in recovering of foreign currencies consisting of US $ 43,800, S.Frs. 1000, S.R. 9950, Q.R. 1500, J. Yen. 9000, K. D. 290, B. D. 40, O. R. 45, UK Pound 720, Italian Liras 29 lakhs, Dutch Guilders 2510, UAE Dhms. 7900, DM 270, Aus $ 200 (equivalent to Indian rupees 23 lakhs) were seized along with certain incriminating documents such as diary containing accounts, telephone index, visiting cards and loose sheets under a panchanama. Three persons by name [ENTITY], [ENTITY] and [ENTITY] were also present during the search of the premises at that time. As a follow-up action, the residential premises of the detenu i.e., at Room No. 2, 1st floor, 28, AH Umar Street, Mumbai - 3 were searched on 26-8-1996 resulting in recovering certain documents as mentioned in the panchanama. The said detenu was examined under [SECTION] of the [ACT] and his statement was recorded on the same day and in which he has admitted that he and one [ENTITY] were buying and selling gold biscuits imported by NRFs from abroad and thereafter from August 1994 to March 1996, the detenu in partnership with one [ENTITY] were buying and selling imported gold biscuits and buying .and selling foreign currencies since January 1996 and that in March 1996, [ENTITY] broke away from the detenu's partnership and thereafter he along with one [ENTITY] started working and that one [ENTITY] of Bangalore introduced the detenu to one [ENTITY] of Bangalore who used to send the foreign currencies from Bangalore for sale at Mumbai and for distribution of sale proceeds of the foreign currency as per instructions of [ENTITY] and that on 25-8-1996, [ENTITY] of Bangalore called the detenu on telephone and informed the detenu that he was sending substantial amount of foreign currencies to the detenu which the detenu received on 26-8-1996, that on 26-8-1996 one [ENTITY] ([ENTITY]) a carrier of [ENTITY] Bangalore came to the detenu's office and delivered the seized foreign currencies to the detenu, that [ENTITY] also informed the detenu about the details of the currencies sent through his carriers and the same was noted by the detenu which document was seized from the detenu's office premises at page No. 15 of the bunch marked A, that around 45 hours on 26-8-1996, [ENTITY] gave the detenu a call and informed the detenu that [ENTITY] had reached Mumbai and asked the detenu whether he would come to the detenu's office to deliver the foreign currencies to the detenu, that the detenu asked [ENTITY] to come to his office and accordingly, [ENTITY] came to his office and handed over the said foreign currencies sent by [ENTITY] to the detenu that the detenu have been receiving foreign currencies from [ENTITY] every alternate days and use to sell the foreign currencies in the market at black market rates in Mumbai; that the sale proceeds were received either by the detenu or by [ENTITY] and the same were distributed to different parties in Mumbai on the instructions of [ENTITY] Bangalore who used to give names and their contact telephone numbers of the recipients in Mumbai along with the Indian currency to be paid to them as per the instructions of [ENTITY] the detenu distributed amounts in Mumbai that [ENTITY] was receiving the equivalent amounts in Bangalore from the parties for whom he paid amounts in Mumbai, that the telephone number of [ENTITY] at Bangalore is 560070 as appearing in page No. 40 of the brown coloured telephone index diary seized from the office premises; that one [ENTITY] of Bangalore having telephone No. 2266528 (figuring in page No. 27 of brown coloured telephone index seized from the business premises) has also been working along with [ENTITY] Bangalore in the business of foreign currencies and that [ENTITY] used to call the detenu over telephone from Bangalore and to give the detenu the instructions for delivering of Indian rupees, that the detenu used to regularly speak to [ENTITY] Bangalore over his telephone No. 560070 by Conference STD facility taken from Vijay Communication Centre at Hanuman Galli, Kalbadevi.
3. In his further statement taken on 27-8-1996, the detenu has stated inter alia that page No. 1 of bunch A seized from his residence contained certain calculations and other details like names and telephone number as stated in para 4 and that the above paper is a fax message sent to one [ENTITY] having C/o Fax No. 2259169 at Bangalore and it contains the account of foreign currencies sent by him to the detenu during the period July, 1995 and payments made by the detenu on the instructions of [ENTITY]; that the account written on left side corner of this page contains the details of foreign exchange sent to the detenu by [ENTITY].
4. The detenu has further clarified in his said statement that as per the accounts, he had received foreign currencies as noted in the grounds of detention as depicted on this paper which are the black market rates at which he had to make payment to [ENTITY] and as per this calculation, the detenu owned Indian Rs. 5,80,112/- and this amount is written in Code as 5801-12; that on top of this paper, the detenu's Bal 385.12' is written which shows that out of the previous transactions, the detenu owned an amount of Rs. 38,512/ - and this amount is written in code as 385.12. In entry showing [ENTITY] 5000.00 means that the detenu received Rs. 5 lacs from one [ENTITY] on the instructions of [ENTITY] and the next entry 11186.24 shows the total amount of Rs. 11,18,624.00 that the detenu owned to [ENTITY] of Bangalore, the next entry 8500.00 shows the payments made on orders of [ENTITY] to different persons in Mumbai the names of whom the detenu did not remember, that the entry of 2686.24 shows the balance of Rs. 2686247- the next entry 1000.00 shows the payment of an amount of Rs. 1,00,000 to one [ENTITY] on the instructions of [ENTITY] and [ENTITY]'s balance after adjusting all these payments amounting to Rs. 168624.00 which is written in code. The detenu had further confirmed that as per .the calculation on this sheet, he had purchased foreign exchange equivalent to Rs. 580112 from [ENTITY] at black market rates and sold these foreign currencies to some party in Mumbai whose name the detenu did not remember; that in this transaction the detenu's profit was 5 paise per unit of currency; that on being asked, the detenu stated that as per the entry on the right hand side the detenu paid an amount of Rs. 1,10,000 to one [ENTITY] of Mumbai having telephone number 4227959 and this payment was made on the instructions of [ENTITY] of Bangalore, whose name is written above, the name of [ENTITY]; that page No. 2 of this bunch is a visiting card of [ENTITY]'s shop viz. Novelty centre and contains his address. While explaining the notebook marked 'B' seized from the detenu's residential premises on 27-8-1996, the detenu explained as stated on page 6 of the grounds of detention and that the telephone numbers of the friends of the detenu relatives and acquaintances, that while explaining the documents seized from the detenu's business premises (pages Nos. 1 to 14) the detenu stated that the same contains the day to day account of the transaction in January and February, 1996; that on the left hand side the entries show the amount in Indian currency received from the parties shown there and on the right hand side, the entries show the amount payable by the detenu; that the names and the amounts are written in codes and the figures appearing on these pages should be multiplied by hundred to arrive at the actual amount; that the names appearing on these pages are all in code and the detenu decided those names as narrated at pages Nos. 7,8,9,10,11,12, 13, 14, 15 and 16 in a graphical manner.
5. His statement is recorded on 17-9-1996 which was recorded on the orders of the Chief Metropolitan Magistrate's Court, Mumbai the detenu have gone through his earlier statement dated 26-8-1996 and 27-8-1996 respectively and confirmed that whatever has been stated in his above statement is true and correct. When questioned that in the detenu's statement dated 26-8-1996, the detenu had stated that he started receiving foreign exchange from Bangalore from January, 1996, however in page No. I of the bunch of loose sheets seized from his residence on 26-8-1996 the detenu's explanation of these documents shows that in July 1995 he had received foreign currencies equivalent to Rs. 5,80,112 from [ENTITY] of Bangalore and what were other transactions he has done before January, 1996 the detenu replied that it was the only transaction done during the year 1995 and except that the detenu did not remember having made any dealings in foreign exchange except the one with [ENTITY] and that in that dealing [ENTITY] was the detenu's partner and the profit was shared between both of you; that [ENTITY] was procuring foreign currencies from Bangalore Market only; that detenu do not know the full name of [ENTITY] of Bangalore; that you were receiving foreign currencies sent by Shri [ENTITY] which was sold by the detenu in the Mumbai Market and the proceeds of the foreign exchange sold by the detenu were distributed in Mumbai to different persons; that the detenu were receiving instructions from [ENTITY] of Bangalore for distribution of Indian rupees in Mumbai; that [ENTITY] used to receive Indian rupees from different persons in Bangalore for transfer to Mumbai and after retaining his commission, [ENTITY] used to hand over the balance amount to [ENTITY] at Bangalore; that sometimes the detenu have called [ENTITY] for the list of parties to whom payments were to be made in Mumbai that [ENTITY] introduced the detenu over the telephone about two months backlo Shri [ENTITY]. When questioned as to whether the detenu had ever distributed sale proceeds of foreign exchange on instructions of any persons other than [ENTITY], the detenu stated that earlier [ENTITY] himself used to give you instructions for distribution of sale proceedings of foreign exchange in Mumbai.
6. In his further statement recorded on 20-9-1996, the detenu not only confirmed the contents at pages 2, 3, 4, 5 and 6 of the statement of Shri [ENTITY] dated 27-8-1996 that the detenu had gone through these pages and that the detenu had confirmed his statement dated 27-8-1996. On Being asked about the name [ENTITY] appearing in these pages and the foreign currency transactions shown against these names at pages Nos. 3,4 and 5, the detenu had stated that it is the name of same [ENTITY] of Bangalore from whom the detenu used to receive foreign currencies through carriers like [ENTITY], [ENTITY] and [ENTITY] and it is the same [ENTITY] who had sent [ENTITY] to the detenu with foreign currencies on 26-8-1996 and also previous 4 to 5 occasions and the currencies on 26-8-1996 and also previous 4 to 5 occasions and the currencies received from him through [ENTITY] on 26-8-1996 were subsequently seized on 26-8-1996 that the detenu have given the details of [ENTITY] in his earlier statements dated 26-8-1996 and 27-8-1996; that [ENTITY] is aged about 38-40 years, with height about 6 feet and is bearded and having whitish complexion, medium built and speaks Hindustani, and as stated on pages 17 and 18 of the grounds of detention.
7. One [ENTITY] was examined under [SECTION] of the [ACT] and his statement was recorded on 26-8-1996 and 27-8-1996 in which he, inter alia stated that the detenu was also known as 'Jamal' that he has been working with the detenu since January, 1996, that both of them are dealing in sale and purchase of gold biscuits and foreign currencies; that the detenu's more work is in foreign exchange transactions in partnership; that [ENTITY] was getting share of 40% of the profit while detenu's share was 60% that he knew that the detenu were getting foreign currencies from [ENTITY] Bangalore; that on 26-8-1996 the Officers of Enforcement Directorate searched the business premises and seized certain documents and foreign currencies; that these foreign currencies were brought from Bangalore by a person named [ENTITY] sent by [ENTITY] Bangalore; that apart from [ENTITY], [ENTITY] and [ENTITY] also used to bring foreign currencies sent by [ENTITY]; that the proceeds of sale of foreign exchange were distributed to different parties in Mumbai whose names and addresses were given by a person named [ENTITY] who is working with [ENTITY]; that the documents seized contain one diary which Shri [ENTITY] explained as under; that page one is written by you in your handwriting and you could only explain the same; that pages Nos. 2 to 6 and 9 to 25 were torn by him after settlement of account; that pages Nos. 7 and 26 to 34 contained accounts of foreign currencies, gold and loan amounts, that page No. 8 is written in your handwriting; that the entries on these pages were in codes i.e. 18-64 means 180-64; that the entries on the left side contained account of the amount payable and the entries on the right hand side contained the account of the amount receivable by both of them and the -accounts of foreign exchange as stated on, pages 20,21,22 and 23 of the grounds of detention. That [ENTITY] has appended his signatures on pages 12 to 20 of the detenu's statement and that he has accepted the statement given by the detenu on these pages that in this business both of them earned a profit of Rs. 3,35,0007- and that the account of profit is written on top of the pages of the diary written in [ENTITY]'s handwriting.
8. As a follow-up action, the shop premises of Shri [ENTITY] were searched on 10-9-V996 as a result of which Indian currency of Rs. 1,80,000 and documents of incriminating nature were recovered and seized under panchanama. He was examined under [SECTION] of [ACT] on 10-9-1996 and his statement was recorded in which he inter alia stated that he doesn't have any documents in respect of Indian currency seized. The transactions done is as stated from pages 25,27,28,29, 30,31 and 32 of the grounds of detention.
9. As a further follow-up action, the residential premises of [ENTITY] at No. 2. Old Police Lane, D Cross Road, Mackon Road, Bangalore-51 was searched on 27-8-1996. The search resulted in nil seizure. The business premises of [ENTITY] could not be searched as the same were found to be locked. The premises at No. 36 V.S. Lane Chikpet, Bangalore-53 where telephone No. 2266528 is installed was searched on 27-8-1996. However, nothing was seized. Enquiries made revealed that no one by name '[ENTITY]' was staying at the said premises.
10. A summons dated 27-8-1996 was issued to [ENTITY] by the Enforcement Directorate, Bangalore for his appearance on 28-8-1996. However, he did not appear on the given date and time.
11. It further appears that the detenu along with Shri [ENTITY] and [ENTITY] were arrested under [SECTION] of the [ACT] on 27-8-1996 and produced before the Chief Metropolitan Magistrate, Mumbai on 28-8-1996 when all of them were remanded to judicial custody till 2-9-1996 which was further extended up to 9-9-1996 and by order dated 9-9-1996 the Chief Metropolitan Magistrate, Mumbai enlarged all of them on bail with certain conditions. The detenu and [ENTITY] filed application of retraction of their statements in the Chief Metropolitan Magistrate's Court on 28-8-1996. The Enforcement Directorate, Mumbai filed extension of remand in respect of them on 2-9-1996 wherein it was mentioned that the allegations contained in the said application were looked into but it was found that the allegations were false, baseless and motivated arid were therefore, denied. Another bail application was filed on behalf of the detenu and [ENTITY] in the Court on 2-9-1996. The detenu and [ENTITY] Tiled applications for reduction of jail in the Court on 1 1-9-1996. [ENTITY] filed two applications separately both dt. 11-9-1996 in the Court for (i) taking the matter on that day board i.e. 11-9-1996 and (ii) application for reduction of bail.
12. Shri [ENTITY] was arrested under [SECTION] of the [ACT] on 11-9-1996 and when produced before the Chief Metropolitan Magistrate, Mumbai he was remanded to judicial custody till 12-9-1996 which was .further extended up to 13-9-1996 by the Chief Metropolitan Magistrate, Mumbai on 12-9-1996 Shri [ENTITY] was ordered to be released on bail by the Court on 13-9-1996. Shri [ENTITY] filed an application for bail and the retraction of the statements in the Chief Metropolitan Magistrate's Court on 11-9-1996. The said retraction application was carefully considered by the Assistant Director, Enforcement Directorate Mumbai and a suitable reply was sent to Shri [ENTITY] on 3-1 -1997 denying the allegations.
13. Vide order No. T-3/95-B/96 dated 21-2-1997 issued by the Director of Enforcement, New, Delhi addressed to the detenu, [ENTITY], [ENTITY], [ENTITY], M/s. Shyam Plastic Consultants and Shri [ENTITY], the Director of Enforcement directed that the documents seized be retained in the custody of the Deputy Director, Enforcement Directorate, Mumbai for a further period of 6 months from the date of seizure of such documents.
14. On collection of the above material and documents and everything placed before the detaining authority by the sponsoring authority, the detaining authority has arrived at a conclusion that the detenu has been engaged in unauthorised transactions in violation of the provisions of the [ACT] since he was aware that adjudication proceedings and prosecution proceedings under the [ACT] are likely to be initiated against the detenu in due course by the appropriate authority separately to decide the penal liability. The proceedings are punitive in nature and as a number of witnesses are likely to be examined etc., these proceedings will consume considerable time and even though the detenu was on bail at present, the detaining authority was satisfied that unless detained, the detenu may likely to again engaged in future in the aforesaid prejudice activities with a view to preventing him in future from acting in any manner prejudicial to the augmentation of country's foreign exchange resources, and the detenu's immediate detention under the [ACT] was the only remedy available at the stage and the detaining authority was also satisfied that the nexus between the date of incident and passing of the detention order as well as the object of the detention has been maintained. The said detention order is challenged by the petitioner by filing this writ of habeas corpus in this Hon'ble Court.
15. On behalf of respondents Nos. 1 and 2, the detaining authority Mr. [ENTITY], Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi has filed a sworn affidavit denying all the averments made in the above writ petition and justified the detention order and the execution of the same.
16. Similarly, on behalf of respondents Nos. 3 and 4, Mr. [ENTITY], Police Inspector attached to (he office of the PCB, CID, Mumbai has filed a sworn affidavit in which inter alia he has explained as to how and what actions he took for the purpose of execution of the detention order passed by the second respondent the detaining authority and how the delay in the execution of the same has happened. In either respects, the two affidavits filed on behalf of respondents in this case in tolo, denies any laxity on the part of either the detaining authority or the sponsoring authority or in the execution of the detention order and passing the same at the first instance.
17. We have heard the arguments advanced by the learned counsel for the parties and their rival contentions for and against the impugned detention order.
18. Of all the four grounds, on the basis of which, this writ petition was filed. Mr. [ENTITY] counsel for the petitioner has laid much stress and based all of his contentions on ground No. (ii) which is that there was enormous delay in the execution of the detention order passed by the detaining authority on 28-4-1997 and that: the said delay if reckoned till the detention order were executed upon the detenu on 26-9-1997, taking a period of nearly about: 5'/2 months since remained unexplained and that what all types of explanation given by the authorities in executing the same cannot at all be the basis for any approval or acceptance and if that was so, the said delay is very fatal to the detention order passed and that therefore, on this ground alone, the order of detention has become vitiated. While emphasising the said contention in the context that Mr. [ENTITY] learned counsel appearing for the respondents Nos. 1 and 2, denied and controverted the same. Mr. [ENTITY] learned counsel for the petitioner relied on several case laws to substantiate his point.
Reliance placed on [PRECEDENT] has observed thus at page 4190 (of Cri LJ) :-
If the respondents were really sincere and anxious to serve the order of detention without any delay, it Was expected of them in the fitness of things, to approach the High Court or at least the Court which initially granted the bail for its cancellation, as according to their own showing, the petitioner had violated the conditions imposed and thereby enforce his appearance or production as the case might be. Surprisingly no steps were taken and instead thereof it is now claimed that a communication was sent to his residence which was returned undelivered: Apart from the fact that no such communication has been produced before us in support of such claim, it has not been stated that any follow up action was taken till 3-8-90. When [SECTION] of the Act was invoked. Similarly, inexplicable is the respondents.' failure to insist upon the personal presence of the petitioner in the criminal ease filed at the instance of the Customs Authorities more so when the carriage of its proceeding was with them and the order of detention was passed at their instance.
In [PRECEDENT] has held the following with regard to the delay in the execution of detention order.
No attempt was made to see that the petitioner was immediately apprehended. No serious efforts were made by the police authorities to apprehend the detenu. Only once in a month the police had tried to find out the petitioner. No material has been produced on the basis of which it can be said that the police authorities had made reasonable efforts to locale the petitioner and apprehend him and yet they were no! successful in finding him out. There is also no material to show that the detaining authority had made any serious attempt during this whole period of delay to him out if the detention order was executed or not. Thus, the delay in execution of the detention order remains unexplained. The unreasonable delay in executing the order creates a serious doubt regarding the genuineness of the detaining authority as regards the immediate necessity of detaining the petitioner in order to prevent him from carrying out the prejudicial activity referred to in the grounds of detention.
In a case between [PRECEDENT] in para 20 (page 1817) has thus observed :
In our view, the correct course for the respondents was to apply for cancellation of bail and to take action under [SECTION] of the [ACT]. Rather than doing that, art application for extension of bail was made. In our view, the cumulative effect of all these steps, acts and omissions on the part of the respondents vitiates the order of detention which is liable to be set aside. In our view, the acts and omissions on the part of the sponsoring authority and State Government mentioned in this para cast a serious doubt on the subjective satisfaction recorded in the order of detention that it was necessary to detain him with a view to preventing him from smuggling goods for concealing and keeping the smuggled goods.
In a unreported judgment rendered in [CASE NUMBER] dated 16-10-1991 a Division Bench of this Court ([ENTITY] and [ENTITY], JJ.) has thus observed :-
We find hardly any merit in the statement made from the affidavit by the Police Inspector attached to PCB, CID. We fail to understand when the premises of the detenu were found to have been locked on the first visit. What was the propriety in visiting his residence twice again. The affidavit is silent as to the sincere efforts made for service by executing the order of detention other than by mere visit to the residential premises where to the knowledge of the executing authority the detenu could not have been found.
Mr. [ENTITY]-learned counsel for the petitioner also relied on one decision in the case of [PRECEDENT] to substantiate his contention of delay in the execution of the order of detention, if remained unexplained vitiate the order itself. But, this judgment though held by a bench in which one of us ([ENTITY], J.) was a member, it is worthwhile to note that the same authority has been relied by Mr. [ENTITY] learned counsel for the respondents Nos. 1 and 2.
19. However, in the context of the above contention, we have to advert to the explanation submitted by the detaining authority in their counter-affidavit and in particular paras 5 and 6 of the affidavit filed by [ENTITY], which has become relevant to advert as hereunder:-
As regards averments made in ground 4(ii) of the petition, it is asserted that the detenu was himself absconding from his all known addressed after issue of the detention order. Attempts were made by the officers of sponsoring authority at Bombay on a number of dates viz. 20-5-97,20-6-97, 15-7-97, 10-8-97 and 15-9-97. Similar attempts were made by the police officials/of Mumbai on 20-5-97,26-5-97, 28-5-97, 12-6-97, 19-6-97, 24-7-97, 19-8-97 and 24-9-97. An application for cancellation of the bail was filed in the Chief Metropolitan Magistrate's Court on 25-8-97. Summons dated 26-8-97 was issued by the Hon'ble Chief Metropolitan Magistrate's Court against the detenu which also could not be served on the detenu as he was absconding from all known places. At last, police officials of J. J. Marg police station, apprehended the detenu on 26-9-97. It is therefore submitted that concerned efforts were made to apprehend the detenu but, since the detenu himself made scarce from all known places, he could not be apprehended. In fact the detenu is trying to take advantage of his own wrong and the detenu is only to be blamed for delay in execution of the detention order.
As regards averments made by the petitioner, in ground 4(iii) of the petition, it is submitted that the detection order was passed by the detaining authority after a careful consideration of all the material placed before it. The detaining authority' has considered all the developments up to 21-2-97 and therefore passed the order on 28-4-97.; There is therefore, no undue or unexplained delay in passing the detention order as alleged. The order is fully legal and valid.
A sworn affidavit filed by [ENTITY], Police Inspector attached to PCB. CID, Mumbai in order to explain the delay in executing the order of detention, he has placed the following explanations before this Court which has been stated as under:-
I say that the Government of India passed the Detention Order under [ACT] vide D.O. No. F. No. 673/40/97-CUS-VIII, D/-28-4-1997, against Shri [ENTITY] S/o Shri [ENTITY]. [ENTITY], residing at (I) 309/313, 1st floor, Last Room, Nav Nidhan Bhavan Mumbai-3 and (2) R. No. 2 1st floor, Ali Umer Street, Mumbai-3 was received in P.C.B. Office on 20-5-1997 for execution. The following efforts were made to trace the detenu.
3. On 20-5-1997 at about 22.00 hrs, PSI [ENTITY] and staff visited the residential address of the detenu i.e. at R. No. 2 1st floor, 28, Ali Umer Street, Mumbai-3 but the said room was found locked. Hence, enquiries were made with one Smt. [ENTITY] which revealed that the said room is closed since many days. She was not aware of the present whereabouts of the detenu. The above staff made efforts to trace out the detenu at the 1st address i.e. 309/313, 1st floor, last room, Nav Nidhan Bhavan but in vain.
4. On 26-5-1997 at about 21.40 hrs. PSI [ENTITY] and staff visited the 1st address i.e. Nav Nichan Bhavan, Mumbai-3 but the detenu was not found there. At that time, one Shri [ENTITY] was present. Enquiries were made with him and he stated that since his arrest in customs case, the detenu was not seen in the area. He was not aware of the present whereabouts of the detenu.
5. On 12-6-1997 at about 12.25 hrs, PSI [ENTITY] and staff visited the residence of the wanted detenu at 28, Ali Umer Street, R. No. 2 Mumbai but the detenu was not found there. At that time, his mother Smt. [ENTITY] M/53 years, was present. Enquiries were made with her and she stated that the detenu left the house with his friend for attending marriage before two months and did not return so far. She was not aware of the present whereabouts of the detenu.
On 19-6-1997 [CASE NUMBER] returned from watch duty from Chief Metropolitan Magistrate, Court Mumbai and reported that the detenu did not attend the Court.
On 24-7-1997 at about 12.30 hrs, PSI [ENTITY] and staff visited the residence of the detenu but it was found locked. Enquiries were made with neighbour Smt. [ENTITY] and she stated that the whereabouts of the detenu were not known and said room is locked since last many days.
Thereafter at about 13.00 hrs the above staff visited the place of work of the detenu i.e. at Nav Nidhan Bhavan 303/313 Mumbai-3 but the detenu was not found there. One Shri [ENTITY] was present. Enquiries were made with him and he stated that previously the detenu was staying there on rental basis. He further stated that after his arrest in customs case, the detenu vacated the room and since that day he had not seen the detenu. He was not aware of the present whereabouts of the detenu.
6. On 28-6-1997 a letter was sent to Sr. P. I. Pydhonie Police Station for making continuous efforts to trace the wanted detenu. This letter came to be referred to J. J. Marg Police Station as the address of the detenu fell in their jurisdiction.
7. On 19-8-1997 at about 12.15 hrs, PSI [ENTITY] P. C. No. 20367 and 28219 visited the 309/313, Nav Nidhan Bhavan, 1st floor, last room, Mumbai but the detenu was not found there. Enquiries revealed that he was not staying there since his arrest in customs case. It was revealed that the detenu closed his business and vacated the said room. Thereafter at about 12.25 hrs, they visited the second address at 28, Ali Umer Street, R. No. 2 Mumbai the said room was found locked. Enquiries were made with Shri [ENTITY] and he stated that the said room is closed since long days. He was not aware of the present whereabouts of the detenu.
8. On 24-9-1997 at about 15.30 hrs. [CASE NUMBER] and [CASE NUMBER] visited the address of the wanted [ACT] detenu at 28, Ali Umer Street R. No. 2 Mumbai and said room was found locked. Enquiries were made with Smt. [ENTITY] and she also stated as mentioned above.
9. I say that Sir J. J. Marg Police Station made efforts to trace the detenu on 1-7-1997. PSI [ENTITY] and PC 22974 made efforts to trace the detenu on the address at 303/313, 1st floor, Nav Nidhan Bhavan, Mumbai-3 and Ali Umer Street, Mumbai-3. However, detenu could not be traced. Thereafter, on 2-7-1997,3-7-1997,5-7-1997 and 11-7-1997 efforts were made by PSI [ENTITY] in order to trace the detenu but the detenu could not be traced. Thereafter on 13-7-1997 PSI [ENTITY], [CASE NUMBER] again made confidential enquiry at Ali Umer Street in order to trace the detenu but the detenu could not be traced. The residence of the wanted detenu was visited and the door of his house was found locked. On enquiry, it was learnt that the wanted detenu and his family members were not visiting the residence since last two months. Thereafter, on 5-8-97, 6-8-97, 13-8-97, 14-8-97, 17-8-97, 19-8-97, 3-9-97 and as 22-9-97 also efforts were made to trace the detenu but he could not be traced. I say that these efforts were not only made at the residence of the detenu but they were also made in the surrounding localities like Null Bazar, S.V.P. Road, Bara Imam Road, Mastan Talav area etc.
10. I say that on 26-8-1997 an information was received little before 2.50 p.m. through the reliable source to the effect that the detenu is coming to Saifee Hospital Charni Road, Mumbai' at 15.15 hrs to 15.30 hrs. On receipt of the information PSI [ENTITY] PSI [ENTITY] and staff immediately visited the hospital and kept watch at the outside of the hospital. The informant had also given the particulars about the physical appearance of the detenu and the clothes that he was wearing. After some time a person whose description tallied with the description given earlier come near the gate of Saifee Hospital. He was immediately accosted and questioned. It was revealed that he is the same person wanted in the said case, Hence, he was brought to the police station for further enquiry. At the police station it was got fully confirmed that the said person is the proposed detenu under the [ACT] vide [CASE NUMBER] dt. 28-4-97 issued by the Government of India. The said persons was explained about his detention order under the [ACT]. PSI [ENTITY] contacted the PCB, CID office and informed them about the said development. PSI [ENTITY] of PCB, CID confirmed about the detention order and other particulars. Accordingly, the detenu was sent to PCB, CID office Bombay for further necessary action. His father Shri [ENTITY] was informed accordingly. Thereafter at about 5.20 p.m. detenu was handed over to the PCB. CID Office and he came to be detained under the [ACT] on the same day.
20. In the context of the explanation submitted by the detaining authority with regard to the delay in the execution of the detention order if, we peruse the same it appears to us that there was no controversy among the parties that with regard to the quantum of delay of about 5'/2 months is concerned, it has been properly explained by the respondents herein. The order of detention was passed on 28-4-1997 and the execution of the same was admittedly on 26-9-1997. The receipt of the detention order was received according to the affidavit filed by Mr. [ENTITY] was on 20-5-1997 and since then onwards the affidavit filed by him would show that continuously from that date onwards, every effort and attempt has been made to search the detenu on several occasions as stated and detailed in the various paras of the affidavit. But, since he was not available and from the all the steps, it was found that the detenu was not at all available for the execution. Since the authorities knew that the detenu was on bail granted by the Chief Metropolitan Magistrate, Mumbai on the same day with some conditions, concedingly the detenu has never complied with the condition nor appeared before the Magistrate's Court nor attended on the subsequent hearing dates. A close perusal of the affidavit and the case record would clearly demonstrate that the detenu since the date of his wilargement on bail was totally elusive and not at all available to either of the authorities at any point of time till he was secured and the order of detention was served on 26-9-1997. It was the contention of the learned counsel for the petitioner that in case if the petitioner was not at all available and that several steps could have been taken or the respondents as contemplated by law particularly under [SECTION] or under the relevant provisions of [ACT] and so that since nothing has been done by the respondents, the delay of more than 51/2 months is to be deemed as totally unexplained and that would amount to vitiating the impugned order of detention. On the other hand, while narrating and explaining the steps taken on and on behalf of the respondents to execute the warrant of detention, Mr. [ENTITY] learned counsel has did it with reference to their affidavits filed by Mr. [ENTITY] and Mr. [ENTITY] and then had pointed out that since the detenu was not at all made available to any of the place in any area, the detaining authority had filed an application for cancellation of bail before the Chief Metropolitan Magistrate, Mumbai on 25-8-1997. It is also noticed that the Chief Metropolitan Magistrate on receipt of the application for cancellation of bail, ordered notice to the respondents namely the detenu. It is significant to note at this stage, even to serve the notice as ordered by the Chief Metropolitan Magistrate the detenu was not at all available and that therefore the process is still pending. A perusal of the entire document and the affidavits clearly demonstrate the fact that since when the detenu was released on bail, he was absconding and elusive and made himself not at all available at any point of time either to the enforcement authorities or to the Court of law or to anyone as provided by law. Therefore, there was some force in the argument advanced by Mr. [ENTITY] learned counsel for the detaining: authority that since the authorities concerned were vigilant throughout and taken all efforts and steps to identify the whereabouts of the detenu and to execute the warrant of detention and even after service of the notice and after having filed application for cancellation of bail, no order could be passed for the reason of the non-availability of the detenu at any point of time. It is therefore the very activities of the detenu done voluntarily in going underground or elusive to the hands of others would make necessary to the authorities to take further action after the detaining authority filed application for cancellation of bail before the Metropolitan Magistrate on 25-8-1997 and consequently notice-was ordered to be served on the detenu and that he was not available even to serve the notice, and that the detenu never appeared before the Court on any hearing date, the next step would be necessarily taken by the authorities as provided by [SECTION] of the [ACT]. But, however there was not of much difference between the date of filing the application for cancellation and securing of the detenu on 26-9-1997 as between 25-8-1997 and 26-9-1997, the time gap is only a negligible one and that even so according to the detaining authority, the detenu himself had absconded and that therefore all further steps as suggested by the learned counsel for the petitioner, could be taken only after but, in the meanwhile he was secured and detained. Thus, the contention of Mr. [ENTITY], in short would show a graphic picture of the efforts and steps taken by them besides the attempt taken by the authorities to apprehend the detenu and that shows that there was no laxity or in action on the part of the detaining authority in executing the order of detention in this case.
In the case of [PRECEDENT] it was held as under at page 465 (of Cri LJ) :-
It is true that the purpose of detention under the [ACT] is not punitive but preventive. The purpose is to prevent organised smuggling activities and to conserve and augment foreign exchange. It is also true that the maximum period for which a person may be detained under the [ACT] is one year. It is further true that there must be a live and proximate link 'between the grounds of detention alleged by the detaining authority and the avowed purpose of detention namely the prevention of smuggling activities. The Court in appropriate cases may assume that the link is 'snapped' if there is a long and unexplained delay between the date of the order of detention and the arrest of the detenu. In such a case the Court may strike down order of detention unless the grounds indicate a fresh application of the mind of the detaining authority to the new situation and the changed circumstances. But where the delay is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct of the detenu is evading arrest, there is warrant to consider the 'link' not snapped but strengthened.
In a case held between [PRECEDENT] in paras 4 and 5 has observed as under :-
4. Taking the first point, regarding the delay in making the detention order, it must be realised that after the detenu was arrested he was granted bail by the learned Magistrate on. 21-5-1991 albeit with a restriction that he should not leave the area falling within the jurisdiction of the learned Magistrate soon thereafter the customs authorities issued summons under [SECTION] of the [ACT] with a view to recording the detenu's statement. The detenu did not appear in response to these summons on the ground that he was prohibited by the learned Magistrate's order from leaving [ENTITY]. He, however, promised to appear before the customs officers after he obtained permission of the Court to leave that area. He moved an application for lifting the embargo against his movement and succeeded in persuading the learned Magistrate to pass the order of 31 -10-1991 extracted earlier, instead of reporting before the customs authorities he appears to have disregarded the summons issued under [SECTION] of the [ACT]. When the customs authorities realised that he had left [ENTITY] and his statement could not be recorded under [SECTION] they mooted a proposal for his detention on 31 -1-1997 and as stated earlier, after the screening committee and the department concerned cleared it, the detention order came to be made on 28-5-1992. It would thus be seen from these facts and throughout the custom officers were keen on interrogating the detenu and recording his statement but the detenu did not appear in response to the summons firstly off the ground that he was prohibited from leaving [ENTITY] and later for no reason whatsoever. That is why the Division Bench of the High Court has come to the conclusion that his behaviour was non-co-operative. It is therefore difficult to say that the delay was on account of laxity on the part of the customs authorities although we would have thought that the customs authorities themselves could have moved the learned Magistrate for, permitting them to take him outside his jurisdiction. They perhaps relied on the statement of the detenu that he would be moving the learned Magistrate for such an order. He did move, secured an order and slipped out beyond the reach of the customs officers. In these circumstances, it is difficult to say that the link had snapped as contended by learned counsel. There was certainly delay but that delay was not on account of the fact that the customs authorities had given up the chase or that they had given up the idea of pursuing the proposal for his detention. We are therefore of the opinion that the learned Judges in the High Court were right in repelling this contention.
5. As stated above, after the .detenu secured the order of 31 -10-1991 he left [ENTITY] and thereafter his whereabouts were not known to the authorities. After the detention order was passed on 28-5-1992 the authorities were on the look out for the detenu but they were not able to execute the order till they heard from Gamdevi police station, Bombay that he had been detained in another case bearing FIR No. 856 of 1992. As soon as they learnt about his whereabouts from the Bombay police they reached Bombay and executed the detention order on 13-10-1992. The detenu it appears was apprehended in similar cases in the past and was, therefore an experienced hand. The activities of persons engaging in such nefarious economic offences are generally carried on the sly and having regard to their network in the country, it is difficult to locate their movements and keep a close watch on their activities. In the circumstances, after he slipped out from [ENTITY] on the learned Magistrate having lifted the embargo against his movement by the order of 31-10-1991 it was not possible for the authorities to execute the detention order, till they learnt about his presence in Bombay from the Gamdevi police station. In the circumstances, we do not think that there was any laxity or indifference on the part of the customs authorities in the matter of executing the detention order. We are, therefore of the opinion that the High Court was right in repelling the contention based on this ground.
In another case between [PRECEDENT] in para 13, it is observed as under :-
Mr. [ENTITY] lastly submitted that having regard to the fact that the order of detention was passed as far back as in 1990 and the maximum period of detention which the appellant would have to undergo under the order was two years, was long over, is detention at this distant point of time would be punitive and not preventive. It is undoubtedly true that an unusual delay in execution of an order of detention if not satisfactorily explained may persuade the Court to draw such an inference. There is, however no scope for drawing such an inference in this case as the delay here has been occasioned not by any omission or commission on the part of the detaining authority. On the contrary, it is the appellant who' has delayed the execution by first moving the: Bombay High Court and then this Court. That apart, the respondents have asserted that though this Court had not passed any interim order against execution of the order, it could not be served as the appellant was absconding. It is pertinent to point out here that an identical contention raised by Mr. [ENTITY] on similar facts; was negatived by this Court in [PRECEDENT] .
A bench of this Court in the case of [PRECEDENT] had occasion to hold the following in this regard. Para 6 reads as under:-
6. As we understand the ratio culled out in (supra) (supra) and in other decisions of the Supreme Court including the (supra) is that no mathematical time limit for issuing a detention order having universal application to all cases can be fixed. What has to be examined by the Court in every case as to whether on account of delay in the issuance of the detention order the live link between the prejudicial activities and the rationale for clamping a detention order on the detenu has been severed or not. If the answer to this, question in a given case is in the affirmative, the detention order would be vitiated; if if is in the negative the detention order would be legally sustainable. In (supra) it has been mentioned that delay ipso facto is not fatal and when there is delay it should be examined by the detaining authority.
It is significant to note that a bench of this Court in a case held between [PRECEDENT] in which one of us ([ENTITY], J.) was a party had occasion to observe the following :-
6. In sum and substance the standpoint of the respondent is that they acted with diligence and promptitude in serving the detention order on the detenu; there were no laches or lethargy on their part in serving the same; the delay which occurred was occasioned by the detenus act of absconsion or concealing himself; and the law will not permit him to take advantage of his own wrong.
It should be borne in mind that delay ipso facto in the execution/service of the detention order, does not vitiate it for if that was so, the person sought to be preventively detained Would either abscond or conceal himself/herself and thus frustrate the service of the detention order on him/her. A detention order is only vitiated in law on the ground of delay in its execution, if there is no plausible explanation for its belated service on the person sought to be preventively detained and the most effective methods stipulated by law to have it executed are not taken recourse to.
8. What we have observed is founded on the principle that the law would not allow a person to take advantage of his/her wrong and on sound common sense. Hence there is no need to take recourse to crutches of authorities.
But since reference to and reverence of authorities, is the order of the day, we do not want to deviate authorities have a virtue about them. By citing them a legal proposition is accepted readily. They have a psychological value for they provide self-validation.
It is common knowledge that there is no dearth of authorities in support of the proposition mentioned above but to eschew prolixity we only propose referring to two of them viz. those ; [PRECEDENT] and ; [PRECEDENT].
In (supra) in paragraph 2 the Apex Court observed thus :
We must not be understood to mean that whenever there is delay in making an order of detention or in arresting the detenu pursuant to the order of detention the subjective satisfaction of the detaining authority must be held to be not genuine or colourable. Each case must depend on its own peculiar facts and circumstances. The detaining authority may have a reasonable explanation for the delay and that might be sufficient to dispel the inference that its satisfaction was not genuine.
In ; [PRECEDENT] in paragraph 15 the Supreme Court observed as follows :
It can therefore be seen that on the mere delay in arresting the detenu pursuant to the order of detention the subjective satisfaction of the detaining authority cannot be held to be not genuine. Each case depends on its own facts and circumstances. The Court has to see whether the delay is explained reasonably.
8. That there has been delay in the execution of the detention order is not a grey area in this case, for though the detention order was issued on 11th December, 1996, it was only executed on the detenu on 4th July, 1997. The question is whether the delay has been satisfactorily explained and the authorities took steps stipulated by law, such as cancellation of detenus bail, action under [SECTION] of the [ACT] and prompt initiation of proceedings under [SECTION] of the [ACT] against him to facilitate expeditious execution of the detention order. To that our answer is in the negative.
11. We find that there is an ominous inaction on the part of the detaining authority to have the detention order executed between the period 27-1-1997 and 30-4-1997. A perusal of para 9 of his return shows that the letters sent by Additional Chief Secretary, Government of Kerala, dated 17-12-1996 and 21 -1 -1997 to the Superintendent of Police Kozikode (Rural) with instructions to serve the same on the detenu were received in the Home Department on 21 -12-1996 and 27-1 -1997 respectively. But to our dismay it was only as late as 30-4-1997, as evident from a perusal of para 9 of the said return that the Government of Maharashtra called for information about the efforts made by the Kerala Government to apprehend the detenu and copy of the said letter was sent to the Assistant Commissioner of Customs (P) Mumbai requesting therein to send proposal under [SECTION] of the [ACT].
12. In our judgment, if the subjective satisfaction of the detaining authority to detain the detenu was really genuine he would not have followed a policy of masterly inactivity for more than 3 months and this inaction on his part during the said period throws a cloud on the genuineness of his subjective satisfaction of clamping a detention order on the detenu.
13. Again we find that the detaining authority did not take recourse to the most effective methods enjoined by law, to have the detention order served on the detenu, namely the cancellation of his bail, action under [SECTION] of the [ACT] and prompt action under [SECTION] of the [ACT]. On the converse it moved an application for extension of his bail.
14. The failure of the detaining authority to apply for cancellation of bail has been frowned upon by the Courts and has been construed to mean that the authorities were not serious to serve the detention order on the detenu. There are no dearth of authorities to vindicate that view but again to eschew prolixity we are only referring to two of them viz. those ; [PRECEDENT] and a Division Bench decision of this Court, reported in [PRECEDENT]; [PRECEDENT] to which one of us ([ENTITY], J.) was a party.
In (supra); [ENTITY] J., speaking for the Division Bench, in paragraph 13, observed thus :
13. If the respondents were really sincere and anxious to serve the order of detention without any delay, it was expected of them, in the fitness of things, to approach the High Court, or at least the Court which initially granted the bail for its cancellation as according to their own showing, the petitioner had violated the conditions imposed and thereby enforce his appearance or production as the case might be. Surprisingly however, no such steps were taken and instead thereof it is now claimed that a communication was sent to his residence which was returned undelivered. Apart from the fact that no such communication has been produced before us in support of such claim, it has not been stated that any follow up action was taken till 3-8-1990 when [SECTION] of the Act was invoked.
In [PRECEDENT] (supra); [ENTITY], J. speaking for the bench, in para 20, observed that where there is a delay in the execution of the detention order the correct course would be to apply for cancellation of bail.
21. If we refer to the judicial pronouncements referred above, and the case laws above referred to the facts of the instant case, in the light of the explanations submitted by the detaining authority, and the respondents submitted their explanations, as regards what are the steps taken by them to execute the warrant of detention we are able to see that there is every force in the contention made on behalf of the respondents, and that the explanations submitted by them can be accepted and if it is accepted then the ratio would provide the answer with the result that the order of detention cannot at all be vitiated or the virus can be attacked. It is in this way, after having considered the whole factual matrix and the settled case law, we are inclined and satisfied to say that the delay in executing the order of detention remains unexplained cannot at all be accepted and that therefore, the very contention made by the learned counsel Mr. [ENTITY] has to fail. Though he took all strenuous efforts to pursuade us, we are totally unable to accept the same.
22. Since no other substantial points has been raised and that the learned counsel for the petitioner has given up all other grounds raised in the petition, we are inclined to say that the writ petition must fail and accordingly it has to be dismissed.
23. In the result, the writ petition is dismissed and the rule issued already is thus discharged.