1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 418 OF 2008 Mohammed Wasim Mohammed ) Bashir Memon, Age 19 years, an ) Indian Inhabitant, residing at Flat ) No.1E/703, Patli Putra Nagar, ) MHADA Complex, Link Road, ) Oshiwara, Jogeshwari, Mumbai - ) 400 102. ) .... Petitioner. (son of the detenu) Versus 1) The State of Maharashtra ) through the Secretary to the ) Government of Maharashtra, ) Home Department (Special) ) Mantralaya, Mumbai-400 032. ) 2) Ms. Anna Dani, the Principal ) Secretary (Appeals and Security),) the Government of Maharashtra, ) Home Department (Special), ) Mantralaya, Mumbai-400 032. ) 3) The Superintendent of Prison, ) Yeravada Central Prison, Pune, ) Maharashtra. )... .... Respondents. Mr. A. M. Z. Ansari for the Petitioner. Mr. D. S. Mhaispurkar, APP for the Respondents - State. 2 CORAM : BILAL NAZKI and A. A. KUMBHAKONI, JJ. DATED : 25TH JULY, 2008. JUDGMENT (Per Bilal Nazki, J.) : This is yet another case of an unfortunate lady detained by the State machinery which is working at a snail' s speed in the matters that are brought before it and which require immediate attention and actions. 2. This petition has been filed by the son of a detenu. The detenu has been detained by an order of detention passed under the Conservation of Foreign /Exchange and Prevention of Smuggling Activities Act, 1974 (for short “COFEPOSA Act”), on 11th February, 2008. The order of detention has been executed on 12th February, 2008. The order of detention is only based on one incident which occurred on 12th January, 2007. Thus there is a gap of 13 months between the alleged incident of smuggling and the order of detention. 3. Briefly, the facts as mentioned in the grounds of detention are: That the detenu was travelling from Mumbai to Sharjah (Dubai) on 11th January, 2007 by an Indian Airlines flight. The Intelligence Unit of Customs, on some information, checked the baggage of the detenu 3 and scrutinised her documents. She was intercepted and she maintained that she was carrying US $ 5,000/- but on search it was found that on her person and in her baggage she had in all US $ 15,000/-, Euros 12,500 and Indian Rupees 3,53,500/-. The total value in Indian Rupees was amounting to Rs.17,14,375/-. Immediately, these monies were seized. She was taken into custody. She moved a bail application before the Magistrate concerned, who bailed her out on 19th January, 2007. From 19th January, 2007 when she was bailed out till 12th February, 2008 when she was detained, she travelled twice out of the country on her passport after getting permission from the concerned Judicial Magistrate. 4. If the detenu was necessary to be detained for the purpose of COFEPOSA Act, the whole exercise ought to have been completed immediately after 11th January, 2007. But when an order of detention was passed after 13 months, it was incumbent upon the detaining authority to see whether the detenu was still active in the activities prejudicial to the foreign exchange or whether the activities of 11th January, 2007 had been severed. Admittedly, no such activity after 11th January, 2007 till the order of detention passed on 11th February, 2008 was attributed to the detenu. 5. We have read the explanation given of almost 10 pages of the counter affidavit by the Detaining Authority where as a matter of fact there 4 is no real reason given for the delay of 13 months in deciding whether the detenu was needed to be detained or not. It is true that the detention order was passed on the basis of consideration of materials and by reaching to subjective conclusion by the Detaining Authority. But this decision cannot be prolonged for granting order. Months and months have been taken by the authorities concerned to translate the documents from English to Hindi which cannot be accepted as a relevant reason. 6. Another reason given is that since the show cause notice was given almost after four months of the incident by the Customs Authority, they were required to wait for the reply of the detenu and after the reply was furnished the matter was again considered. 7. Time and again this Court and the Supreme Court has held that it is not necessary that the Detaining Authority should wait for show cause notice or the reply to the show cause notice. The fact of the matter was that, allegedly the detenu was involved in a prejudicial activities in terms of the provisions of the COFEPOSA Act because of the incident of 11th January, 2007. That was sufficient for coming to a conclusion whether the detenu needed to be detained or not. 8. The order of detention cannot be sustained on another ground that the Detaining Authority neither in the order of detention or in the 5 ground of detention explained that it was necessary to detain the detenu on the basis of the incident which had happened 13 months before and was there any live link between the incident of 11th January, 2007 till the date the Detaining Authority passed an order of detention. In such case, reference to earlier judgment may not be necessary. But it will be sufficient to refer to an earlier unreported judgment of the Division Bench of this Court in Criminal Writ Petition No. 2167 of 2007 (Sajid Dilawar Khan v/s The State of Maharashtra & Ors.) dated 29th February, 2008 and the judgment of the Supreme Court in V. C. Mohan v/s Union of India & Ors. reported in (2002) 3 Supreme Court Cases 451. The relevant portion of paragraph 8 of the Supreme Court judgment is quoted below : "Significantly, though the incident noticed above took place on 24- 7-2000 and other important documents have come into existence immediately hereafter, the detaining authority did not pass the detention order immediately but only after a lapse of about seven months i.e. On 1-3-2001. During this interregnum, however, the detenu admittedly did not indulge in any illegal activities and it is in this context Mr. Mani, learned advocate appearing in support of the petition with his usual eloquence, contended that the incident of 24-7-2000 had become stale and irrelevant and it is too remote in point of time and as such, question of there being any detention order on the basis thereof would not arise.” 9. For the reasons given above, the writ petition is allowed. The impugned detention order is quashed. The detenu, Smt. Sahida Mohammed Bashir Memon, may be released forthwith, if not required in 6 any other case. 10. Rule made absolute in terms aforesaid. No order as to costs. Sd/- (BILAL NAZKI, J.) Sd/- (A.A.KUMBHAKONI, J.)