1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Writ Petition No. 349 of 2008 Shashikant Ramjidas Chawla ..Petitioner (Brother of the Detenue) Vs. The State of Maharashtra and ors. ..Respondents Mrs. A.M.Z. Ansari for the petitioner. Mr. D.S. Mhaispurkar, APP for State. CORAM : B.H.MARLAPALLE & J.H.BHATIA, JJ. Reserved on : July 03, 2008. Pronounced on : August 04, 2008. JUDGMENT: (Per B.H. Marlapalle,J.) 1. This petition filed by the brother of the detenue under Article 226 of the Constitution challenges the detention order dated 14/11/2006 issued against the detenue - Ravikant Ramjidas Chawla by the Principal Secretary (Appeals and Security) to the Government of Maharashtra, Home Department and Detaining Authority under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short the Act). The said order dated 14/11/2006 was served on the detenue on 28/8/2007 and since then he continues to 2 be under detention. The Advisory Board constituted under the Act confirmed the order of detention and subsequently the State Government passed an order on 15/11/2007 under Section 8(f) of the Act confirming the said detention for a period of one year under Section 10 of the Act from the date of his detention i.e. from 28/8/2007. 2. One Shri Deepak Jare, who was running an export agency by name M/s. Vaishnavi Freight Forwarders had arranged the export of three containerized export cargo covered by 13 Shipping Bills in the name of M/s. Simplex Exporter and Importer, New Delhi and other 15 Shipping Bills in the name of M/s. Maan International and M/s. Pal Exim India which were declared to contain children’s wear, ready-made garments and sports goods like cricket bats etc. On suspicion of false claim of drawback amount, his premises were searched on 17/1/2006. He was operating as custom clearing agent on the strength of CHA Licence No.11/747 issued to M/s. Smita International for which he was paying an amount of Rs.500/- per document to Shri Shekhar Desai of the said firm. He was attending the clearance of export consignments of various exporters under 3 licence of M/s. Smita International and he had employed 8 persons including Shri Javed, Shri Jahid M. Nazmu and one Shri Sandip. The detenue was present in the office of Mr.Jare on 17/1/2006 and his statement was recorded on that day and his another statement was recorded on 18/1/2006. On 21/1/2006, 13 Shipping Bills of M/s. Simplex Exporters and Importers, New Delhi were examined and they were found to be in respect of Baba suits and cricket bats. The value of these items was shown at Rs.3.60 crore as against the real value of Rs.29.33 lakhs. Similarly on 2/2/2006, 15 Shipping Bills of M/s. Maan International and M/s. Pal Exim India were inquired into and it was found that as against the real value of Rs.19.62 lakhs, the export value was shown at Rs.3.31 crore. In his statement, Mr. Jare had accepted that since October, 2005 till the date of search, he had received an amount of Rs.1.25 crore by way of drawback amount and the said amount was distributed by cheques issued in favour of M/s.Simplex Exporters and Importers (Rs.29,20,000/-), M/s. Maan International (Rs.14,50,000/-), M/s. East West (Rs.20,00,000/-), M/s. Midas International (Rs.9,00,000/-), M/s. SNT Fashions (Rs.18,35,000/-), M/s. Metro Concepts (Rs.4,41,000/-), M/s. York 4 Fashions (Rs.7,35,000/-), M/s. SNT Fashions (Rs.14,70,000/-). All these cheques were issued towards the drawback amount claim against the fraudulent export arranged and made against the said firms which were found to be fictitious. As per the statement of the detenue recorded on 17/1/2006, on his request, Shri Ajay Batra had agreed to assist him in making the export of garments and sports items on the condition that the profit made out of such export would be shared with Shri Deepak Jare and this offer was accepted by Mr.Jare as well, who had informed the detenue that the low valued goods would be exported by enhancing the same to maximum value and also by declaring higher quantity to avail maximum drawback which would be shared equally between three i.e. Shri Deepak Jare, Shri Ajay Batra and the detenue. Show cause notice was issued to the detenue on 18th/19th July 2006 and he submitted pre detention representations dated 17/7/2006 and 12/8/2006. Both these representations were rejected and the impugned detention order was issued. 3. Though the detention order was challenged on more than one grounds, only the following grounds have been urged before us:- 5 (a) The detenue was arrested on 18/1/2006 and was granted bail on 21/2/2006, whereas the impugned order was issued on 14/11/2006 i.e. after lapse of about 10 months. The impugned order of detention was, thus, issued after an inordinate and inexcusable delay of 10 months and after four months of issuance of show cause notice. The live link was snapped and the credible chain having been broken, the detention order becomes punitive as the grounds of detention are not proximate. The detention order is manifestly and patently mala fide and void ab initio. In the affidavit-in-reply filed by the detaining authority, the delay caused in issuing the impugned order has not been explained satisfactorily and, therefore, the order is vitiated. (b) On account of the delay caused in issuing the impugned detention order, the grounds of detention fail to remain proximate and they became stale. The detention order has thus 6 been passed on stale and remote grounds and it amounts to an order punitive in nature. (c) Though the detention order was passed on 14/11/2006, it was served, for the first time, on the detenue on or about 28/8/2007 i.e. after a lapse of 9 months. If in the interregnum period the detenue was not traceable to serve the order of detention, the authorities ought to have made an application for cancellation of the detenue’s bail and forfeiture of the amount deposited by him. No such application was made by the sponsoring authority and such a failure by itself is fatal to the impugned order of detention. Action under Section 7(1)(a) of the Act for execution of the impugned order of detention was taken for the first time on 31/5/2007 and it was gazetted on 21/6/2007. This delay caused in taking action under Section 7(1)(a) or (b) of the act has vitiated the order of detention. 4. Mrs. Ansari, the learned counsel for the detenue has relied upon the following decisions:- 7 (a) V.C.Mohan Vs. Union of India & ors. [(2002) [(2002) [(2002) 3 3 3 SCC 451] SCC 451] SCC 451] (b) T.A.Abdul Rahman Vs. State of Kerala & ors. [AIR 1990 SC 225] [AIR 1990 SC 225] [AIR 1990 SC 225] (c) P.M.Harikumar Vs. Union of India & ors. [1995 [1995 [1995 AIR AIR AIR SCW 3726] SCW 3726] SCW 3726] (d) Manju Ramesh Nahar Vs. Union of India & ors. [(1999) 4 SCC 116] [(1999) 4 SCC 116] [(1999) 4 SCC 116] (e) A.Mohammed Farook Vs. Joint Secretary to Government of India and ors [(2000) 2 SCC 360] [(2000) 2 SCC 360] [(2000) 2 SCC 360] She also relied upon the following decisions of this Court.: (a) Kamruddin Abdul Aziz Vs. L.Hmingliana and ors. [1992 (1) Crimes 1] [1992 (1) Crimes 1] [1992 (1) Crimes 1] (b) Netaji Narayan Lotlikar Vs. State of Goa [1992 [1992 [1992 Cri.L.J. 2363] Cri.L.J. 2363] Cri.L.J. 2363] (c) Ismail Shaikh Ali Vs. State of Maharashtra & ors. [1998 (2) Crimes 35 [1998 (2) Crimes 35 [1998 (2) Crimes 35 (Bom.)] (Bom.)] (Bom.)] (d) Smt.Naseem Imran Mohammed Siddik Vs. State of Maharashtra and ors. [2001 Cri.L.J. [2001 Cri.L.J. [2001 Cri.L.J. 1619] 1619] 1619] 5. The detaining authority has filed affidavit-in-reply. In addition, Shri Sharad Balkrishna Pawaskar, Under Secretary, Home Department (Special), Government of Maharashtra has filed his 8 affidavit-in-reply. Shri Pankaj Bodkhe, Deputy Director, D.R.I., Mumbai has filed affidavit-in-reply on behalf of the sponsoring authority. It is contended by the respondents that the detention order has been passed by following the due process of law and it is not vitiated on any count so as to allow the petition. It is clear from the affidavits filed by the respondents that the detention order dated 14/11/2006 itself had given the detenue’s two different addresses in Delhi i.e. (1) B-160, Surajmal Vihar, Delhi 110 092 and (2) 203, Surya Niketan, 1st Floor, Yamuna Park, Delhi 110 092. The said order was immediately forwarded to the Commissioner of Police, New Delhi vide letter dated 14/11/2006 so as to execute the same and inform the progress. Thus, the executing authority became the Commissioner of Police, New Delhi. 6. Coming to the first ground regarding the delay caused in passing the impugned order of detention, it is not in dispute that on 17/1/2006 the statement of the detenue was recorded under Section 108 of the Customs Act. He was arrested on 18/1/2006 and was released on bail on 21/2/2006. His additional statement was recorded on 18/1/2006. Show cause 9 notice was issued on 18th/19th July, 2006. The statements of Shri Ajay Batra were recorded on 8/3/2006, 9/3/2006, 4/4/2006 and 28/4/2006 under Section 108 of the Customs Act. The statement of Shri Rameshchandra Desai, partner of M/s. Smita International, holding CHA Licence No.11/747 was recorded on 27/4/2006 and the detenue filed his retraction statement on 3/5/2006, which was received by the sponsoring authority on 17/5/2006. The Screening Committee in its meeting held on 18/5/2006 approved the proposal for detention and the minutes of the Screening Committee were received by the sponsoring authority on 22/5/2006. The sponsoring authority forwarded the proposal to the office of the detaining authority on 12/6/2006. The concerned Assistant prepared a detailed note on 27/6/2006 and the Under Secretary gave his endorsement on the same day and forwarded to the Deputy Secretary, who gave his endorsement and forwarded the papers to the detaining authority on 17/7/2006. Pre detention representation dated 17/7/2006 was received by the Department on 18/7/2006 and the remarks of the sponsoring authority were called on 24/7/2006. On 22/7/2006 and 23/7/2006 were the holidays. The Deputy Secretary gave his endorsement on 26/7/2006 10 and the investigating officer attended the office of the detaining authority for discussion on 31/7/2006. Thereafter the concerned Assistant prepared a detailed note on 4/8/2006 and the Under Secretary forwarded the said proposal to the Deputy Secretary. Parawise comments on the representation were received on 8/8/2006 and the second representation dated 12/8/2006 was received. Remarks were called from the sponsoring authority on this representation on 18/8/2006. The concerned Assistant prepared a detailed note on 19/8/2006. The Deputy Secretary gave his endorsement on 19/9/2006. The representations were rejected and the draft grounds of detention were formulated, which were endorsed by the detaining authority on 4/10/2006. The draft grounds were prepared on 5/10/2006 and on 10/10/2006 they were placed before the detaining authority, which were approved by her on 19/10/2006. Re-typed copy was submitted on 26/10/2006, which was endorsed by the Deputy Secretary on 27/10/2006 and finally the detention order was passed on 14/11/2006. . Thus, after the proposal was received from the sponsoring authority by the office of the detaining authority, there appears to be some delay in the 11 following pockets:- (a) from 12/6/2006 to 27/6/2006. (b from 27/6/2006 to 17/7/2006. (c) from 18/8/2006 to 18/9/2006. (d) from 19/9/2006 to 4/10/2006. It has been pointed out by the detaining authority that there were holidays on 18/6/2006, 24/6/2006 and 25/6/2006 in the first pocket. Similarly there were holidays on 2/7/2006, 8/7/2006, 9/7/2006, 22/7/2006 and 23/7/2006. Similarly there were holidays on 23/9/2006, 24/9/2006, 1/10/2006 and 2/10/2006. It has been further clarified that in all 17 proposals were pending with the concerned Assistant and, therefore, there was a delay. 7. In the case of Rajendrakumar Natvarlal Shah Vs. State of Gujarat & ors. (AIR 1988 SC 1255) (AIR 1988 SC 1255) (AIR 1988 SC 1255) the Supreme Court held, 12 "........Quite obviously, in cases of mere delay in making of an order of detention under a law like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence have been posing a serious threat to the economy and thereby to the security of the nation, the Courts should not merely on account of delay in making of an order of detention assume that such delay, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the Detaining Authority or that such subjective satisfaction was not genuinely reached. Taking of such a view would not be warranted unless the Court finds that the grounds are ‘stale’ or illusory or that there is no real nexus between the grounds and the impugned order of detention...." 13 . More recently in the case of Sheetal Manoj Gore vs. State of Maharashtra and ors. [(2006) 7 [(2006) 7 [(2006) 7 SCC SCC SCC 560] 560] 560], their Lordships observed, inter alia, as under:- "7........No doubt, if there is inordinate delay in issuing the order of detention, it may well be argued that the live link between the prejudicial activity of the detenu and the purpose for which the order of detention is issued is snapped, and being stale there was no justification for issuance of an order of detention. In the facts and circumstances of this case, we are satisfied that the details furnished by the detaining authority provide sufficient explanation for the time taken in issuing the order of detention. We are also satisfied that the detaining authority was conscious of the fact that the matter required immediate attention, but in view of the voluminous record which had to be scanned and scrutinised before issuance of the order of detention, the order could not be issued 14 earlier." 8. In the instant case, we are satisfied that the delay caused in above mentioned pockets has been properly explained. There were also holidays on 28/10/2006, 29/10/2006, 5/11/2006, 11/11/2006 and 12/11/2006. The record which is placed before us does provide sufficient explanation for the time taken in issuing the order of detention and we are also satisfied that the detaining authority was conscious of the fact that the matter required immediate attention, but at the same time there were 17 such proposals pending and 64 documents in the instant case were running into more than 616 pages. Hence, we hold that the impugned detention order cannot be said to be vitiated on the alleged ground of delay caused in its issuance and that the order has not been passed on stale grounds. The live link between the reasons for detention and the activities of the detenue could not be held to be snapped in the instant case. The detenue was procuring garments from various markets in the North and was a member of the gang engaged in exporting these garments/sports items at highly inflated prices and quantities so as to make inflated claims on drawback amounts under the 15 scheme for export, at the relevant time. He could have easily continued in these activities after he was released on bail and, therefore, it cannot be said that the reasons for detention were not proximate or had become stale within a period of few months from the date of the detenue being released on bail. We, therefore, reject the first two grounds of challenge against the detention order. 9. Now coming to the issue of delay caused in execution of the detention order, there is no doubt that it was executed by the Delhi Police on 28/8/2007 on the detenue at Delhi, whereas the order was passed on 14/11/2006. As per the affidavit filed by the detaining authority, the first reminder was sent to the Commissioner of Police, New Delhi on 27/12/2006 and since no reply was received, the second reminder was sent on 29/3/2007, whereas the third reminder was sent on 25/4/2007. The Delhi Police submitted the report dated 7/5/2007 stating that after receipt of the detention order, the Delhi Police personnel had visited both the premises as per the addressed furnished by the detenue i.e. B-160, Surajmal Vihar, Delhi 110 092 and 203, Surya Niketan, 1st Floor, Yamuna Park, Delhi 110 092. The report further 16 stated that on the first premises the owner by name Mr. Rawat had informed that the detenue was a tenant from 1997 to 1999 and subsequently the premises were vacated. When the police visited House No. 203, 1st floor, Surya Niketan, Yamuna Park, the wife of the detenue was found staying there with her two children for the last five years or so. Her statement was recorded. On our request, the copies of the report were called and the learned APP has placed the same on record before us. . It has been further stated in the affidavit-in-reply by the detaining authority that after the report dated 7/5/2007 was received, the concerned Assistant prepared a note on 28/5/2007 for taking action under Section 7(1)(b) of the Act and accordingly on 31/5/2007 such an order was passed by the Government of Maharashtra (Home Department). By the said order the detenue was directed to appear before the Commissioner of Police, New Delhi at his office situated on the Second Floor of Police Headquarter, ITO, New Delhi between 10 a.m. to 5 p.m. on any working day within thirty days from the date of publication of the said order in the Maharashtra Government Gazette. The order was sent 17 to the Delhi Police and a copy of the same was pasted on the entrance of both the addresses furnished by the detenue along with his photograph. The same was also published in the English newspaper "Hindustan Times" as well as its Hindi Edition dated 26/6/2007. The Delhi Police forwarded the report dated 21/7/2007 and another report dated 31/8/2007. In the second report it was stated that the detention order was executed on the detenue on 28/8/2008 and he was sent to Mumbai Central Prison at Mumbai. In the meanwhile, the sponsoring authority had also secured an order under Section 7(1)(a) for a look out notice and such an action was sought to be taken on 3/9/2007 i.e. after the detention order was executed. 10. It was submitted by Mrs. Ansari that after the detention order was forwarded to the Delhi Police on 14/11/2006, the first reminder was sent by the detaining authority only on 27/12/2006 i.e. after about one and half months. She further stated that from 27/12/2006 to 29/3/2007, the detaining authority did nothing for three long months. The third reminder was also sent to Delhi Police almost after four weeks i.e. on 25/4/2007. Despite the report having been received on 7/5/2007, the order under 18 Section 7(1)(b) of the Act was passed only on 31/5/2007 and it was published in the newspaper at Delhi only on 26/6/2007. She, therefore, submitted that the delay caused in execution of the order and specially the time taken till 31/5/2007 to pass an order under Section 7(1)(b) of the Act has not been explained and justified by furnishing satisfactory reasons. She also stated that if the detenue was not traceable on the given addresses, nothing prevented either the sponsoring authority or the detaining authority from applying for cancellation of the bail granted to the detenue. No such steps were taken and, therefore, the detention order is vitiated and deserves to be quashed and set aside, urged the learned counsel. 11. We have noted that vide his letter dated 8/7/2008 the Deputy Commissioner of Police, Delhi has forwarded the recorded statements of Shri R.S. Rawat, Mrs. Madhu Chawla, who is the wife of the detenue and Shri Ramjidas Chawla, the father of the detenue. The statements of Mr. Rawat were recorded by the Delhi Police on 5/12/2006 and 22/2/2007. It is thus clear that the Delhi Police visited House No.B-160, Surajmal Vihar, Delhi on two occasions i.e. 19 on 5/12/2006 and 22/2/2007 so as to execute the detention order and the detenue was not traceable on the said address. This address was available in the passport of the detenue, a copy of which was submitted to the sponsoring authority. The Delhi Police, therefore, visited the second premises i.e. 203, Surya Niketan, 1st floor, Yamuna Park, Delhi on 22/2/2007 and recorded the statement of Mrs. Madhu Chawla. She informed the police that her husband was not available at Delhi and had left for Mumbai for some work. He had called from Mumbai and he used to call once in a week or once in two weeks and informed that as soon as the work was completed he would return to Delhi. About one week back the detenue had called her and told that as soon as the work was over he would return to Delhi. These calls from a Cell No.9811374135. She also stated that family house in Mirat was also sold by her husband and she was not knowing as to where he used to stay while on business visits. She further stated that as and when the detenue would return to Delhi, she would visit the Anand Vihar Police Station and inform accordingly. The Delhi Police again visited the same premises on 29/3/2007 and they did not find the detenue. The police recorded the statement of his wife Madhu 20 Chawla and she stated that her husband was out of station in connection with ready-made garments business. She further stated that he had switched off his mobile and, therefore, she was not able to contact him. She gave the address of her father-in-law and also assured the police that as soon as her husband returned, she would visit the Anand Vihar Police Station and give intimation accordingly. The police thereafter visited the detenue’s father and recorded his statement on 29/3/2007. The detenue’s father declared his ignorance about the whereabouts of the detenue and further stated that he has not been a member of the joint family for the last 15-20 years. The third reminder is dated 25/4/2007 to the Delhi Police and consequently the report dated 7/5/2007 was received by the detaining authority from the Delhi Police. 12. The learned APP while placing reliance on the decision in the case of Vinod Chawla Vs. Union of India & ors. [(2006) 3 SCC (Cri) 270] [(2006) 3 SCC (Cri) 270] [(2006) 3 SCC (Cri) 270] has invited our attention to the representation dated 7/1/2007 submitted by the detenue to the Detaining Authority. The said representation has been received by the Detaining Authority on 16/1/2007 and the prayer in 21 the said representation reads as under: "This Representation may kindly be considered by your Kind Authority under Section 11 of the COFEPOSA Act read with Article 21 of the Constitution of India and your Kind Authority may kindly be pleased to revoke the Order of Detention issued against the petitioner Ravikant Ramjidas Chawla." This representation by itself clearly goes to show that the detenue was aware of the detention order having been passed against him. We are, therefore, required to consider, whether the detenue being aware of the detention order passed against him by itself would support the case of the detaining authority that the delay caused in execution of the detention order would not vitiate the same and the action under Section 7(1)(b) of the Act was taken in time and thus all due steps were taken by the detaining authority to execute the detention order promptly and at the earliest possible. 13. In the case of Manju Nahar (Supra) the delay 22 in execution of the order was more than one year and vague explanation was submitted claiming that the detenue was absconding. In the case of P.M. Harikumar (Supra) the detention order was passed on 11/7/1990 and the detenu was arrested at Sahar International Airport, Bombay on 3/7/1994. The Supreme Court held that the inordinate delay caused was not explained. In the case of T.A.Abdul Rahman (Supra) the delay