1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 3 OF 2008 Jankhana Pravin Joshi ) Age 38 years, an Indian Inhabitant, ) residing at A-8, 2nd Floor, Unmiya ) Bhavan, Dr. Rajendra Prasad Road, ) Mulund (East), Mumbai – 400080. ).. .. .. Petitioner’s (wife of the Detenu) Versus 1) The State of Maharashtra, ) Through the Secretary to the ) Government of Maharashtra, ) Home Department, Mantralaya, ) Mumbai – 400 032. ) 2) Chandra Iyengar, ) Principal Secretary (Appeals and ) Security) Government of ) Maharashtra, Home Department ) 2 and Detaining Authority, ) Mantralaya, Mumbai – 400 032. ) 3) The Superintendent of Prison, ) The Mumbai Central Prison, ) Arthur Road, Mumbai. ) 4) The Superintendent of Prison, ) Nashik Road Central Prison, ) Nashik. ) 5) The Union of India, ) through the Secretary to the ) Government of India, Ministry ) of Finance, Department of ) Revenue, 6th Floor, Janpath ) Bhawan, “B” Wing, Janpath, ) New Delhi – 110 001. ) Mr. V. N. Tripathi for the Petitioner. Mr. D. S.Mhaispurkar, Addl. P.P. for the State. Mrs. A. S. Pai, for Union of India. 3 CORAM : BILAL NAZKI and A. P. BHANGALE, JJ. RESERVED ON: 29TH APRIL, 2008. PRONOUNCED ON : 6TH MAY, 2008. JUDGMENT (Per Bilal Nazki, J.) : This writ petition has been filed by the wife of the detenu challenging the order of detention passed on 22nd August, 2006 by the Detaining Authority under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short “COFEPOSA Act”). The order has been passed, “with a view to preventing him in future from smuggling goods”. The order of detention was executed on 11th October, 2007, when the detenu himself surrendered. The detenu was arrested on 2nd September, 2005 and he was bailed on 15th October, 2005. The grounds of detention were supplied to him after the writ petition was filed. The respondents filed their counter affidavits and we have heard learned Counsel for the petitioner, learned Addl. Public Prosecutor as well as learned Counsel for the Union of India and have examined the record. 4 2. The first contention of the learned Counsel for the petitioner challenging the order of detention was that there was inordinate delay in executing the order of detention and, therefore, the detention was bad. There was a gap of 14 months in executing the order of detention. Learned Public Prosecutor on the other hand submits that if a detenu absconds and the Authorities are not in a position to arrest him in spite of efforts then it cannot be said that the detention would not be sustainable. While going through the counter affidavit and hearing the learned Public Prosecutor, we have found that the only exercise the respondents did to arrest the detenu was to visit his place of residence in Mumbai. The first visit was made on 22nd August, 2006, the date on which the order of detention was passed. Thereafter nothing was done till 8th September, 2006 when again a visit was made. Visits were made subsequently on 19th September, 2006; 30th September, 2006; 6th October, 2006; 3rd November, 2006; 9th November, 2006; 25th November, 2006; 3rd December, 2006; 16th December, 2006; 31st December, 2006; 13th January, 2007; 15th March, 2007; 1st August, 2007, 7th August, 2007 and 5th September, 2007. There is a gap of more than 5 months between the visits of 15th March, 2007 and 1st August, 2007. Other gaps are also substantial. One of the gap is of 27 days, another 14 days, another 2 months and 2 days, another 4 months and 15 5 days and two other gaps are around one month. Learned Counsel for the petitioner submits that although it is stated in the counter affidavit that they visited the residence of the detenu on 16 occasions, yet it would show that no serious efforts were made to arrest him because after making so many visits they would not expect that after coming to know that the detention order had been passed against him, that he would stay back in his home. There is nothing on record to show as to what efforts, other than visiting at the residence, were made by the respondents. Learned Public Prosecutor, however, submits that a notification was issued by the State Government under Section 7(1)(b) of the COFEPOSA Act on 18th October, 2006 and it was gazetted on 2nd November, 2006. The same was pasted also on the premises of the detenu on 7th December, 2006. Learned Public Prosecutor submits that once a notification under Section 7(1)(b) of the COFEPOSE Act is issued the onus shifts on the detenu to explain his act of absconding. 3. Looking to the judgments on which the parties have relied, it will be profitable to have a look at Section 7 of the COFEPOSE Act. Section 7 lays down that if the appropriate Government has reason to believe that a person in respect of whom a detention order has been passed was absconding and the order could not be executed, the Government may 6 make a report in writing of the fact to a Metropolitan Magistrate and thereupon the provisions of Sections 82, 83, 84 and 85 of the Code of Criminal Procedure would apply in respect of such person and his property. It also provides under Section 7(b) that by an order notified in the Official Gazette the Government may direct such person to appear before such officer, at such place and within such period as may be specified in the order. It also lays down that if the said person fails to comply with such direction, without providing that it was not possible for him to comply therewith, he can be punished with imprisonment for a term which may extend to one year or with fine or with both. Learned Public Prosecutor wants this Court to hold that once a notification is issued under Section 7(1)(b) then the onus shifts on the detenu to show that he was not an absconder. This argument cannot be accepted on the ground that sub-sections (a) and (b) of Section 7(1) of the COFEPOSA Act operate in two different fields although the purpose of both is to secure the custody of the person against whom an order of detention is passed. But yet Section 7(1)(b) creates criminal liability so the onus to show that the detenu was not an absconder but had reason not to comply with the order, has reference to punishment of imprisonment of the term of one year. So the onus is on the detenu to show that he could not comply with the order 7 in order to escape the punishment prescribed under Section 7(1)(b). It is admitted that nothing was done by the respondents in terms of Section 7 (1)(a) of the COFEPOSA Act. The petitioner also submits that since the petitioner had been arrested on 2nd September, 2005, which fact was known to the respondents, because it was the same case which became the basis for his detention. He was also bailed out on 15th October, 2005 but the respondents did not even care to take steps for cancellation of his bail. Therefore, the delay in executing the order, according to the learned Counsel for the petitioner, becomes fatal. 4. Let us have a look at the judgments which have been cited at Bar by the parties. In S. M. F. Sultan Abdul Kader v/s Jt. Secretary to Government of India & Ors., reported in JT 1998(4) SC 457, in paras 2 and 3 the Supreme Court said as under: “2. It is not necessary to state the facts leading to the passing of the detention order as we are inclined to allow this petition on the second ground raised by Mr. K. K. Mani, learned Counsel for the petitioner. The order of detention was passed on 14.3.1996. The petitioner came to be detained on 7.8.1997. The contention raised by Mr. Mani is that there was undue delay in execution of the order and that clearly indicates that there was no genuine satisfaction on the part of the detaining authority regarding the necessity of immediate detention of the petitioner in order to prevent him from committing and continuing to commit the prejudicial activity alleged against him. In reply to this contention raised by the petitioner what the detaining authority has stated in the counter affidavit is that the detention order 8 could not be executed immediately as the petitioner was absconding. In paragraph 12 of the counter affidavit filed by the Joint Secretary to the Government of India it is stated as under : "Continuous efforts were made by the State Police on the following dates to apprehend the detenu - 25-04-1996, 20-05-1996, 30-6-1996, 23-7-,1996, 28-8- 1996, 24-9-1996, 15-10-1996, 26-11-1996, 18-12-1996, 20- 12-1996, 17-1-1997, 27-2-1997, 26-3-1997, 24-4-1997, 29- 5-1997, 29-6-1997, 25-7-1997 and 7-8-1997. But for the sustained efforts by the police authorities at Nagore, he would not have been apprehended now.” 3. The Joint Secretary has not explained why no attempt was made from 14.3.96 to 25.4.96 to apprehend the detenu and put him under detention even though the detention order was passed on 14.3.1996. It further appears that 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. It is also not stated where they looked for him and what inquiries were made to find out his whereabouts. The Joint Secretary himself had made no effort to find out from the Police authority as to why they were not able to apprehend 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 locate the petitioner and apprehend him and yet they were not 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 find 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 on the prejudicial activity referred to in the grounds of detention. We are of the opinion 9 that the order of detention was passed by the detaining authority not in lawful exercise of the power vested in him. We, therefore, allow this petition, set aside and quash the order of detention and direct that the petitioner be set at liberty forthwith unless his presence is required in jail in connection with any other case.” 5. This case, in our view, is almost similar to the case in hands. In the case before the Supreme Court almost once in a month the Police had tried to find out the detenu, whereas in the present case it was not continuously done even within a month. The second judgment referred to is in T. A. Abdul Rahman v/s State of Kerala and Others, reported in AIR 1990 SC 225. In para 13 the Court held as under: “We hold that leaving apart the question of delay in passing the order of detention from the date of the seizure of the gold, the fact remains that the detaining authority has failed to explain the long delay in securing the arrest of the detenu after three months from the date of the passing of the detention order and this non-explanation in our view throws a considerable doubt on the genuineness of the subjective satisfaction of the detaining authority vitiating the validity of the order of detention.” To the same effect are judgments in the cases of K.P.M. Basheer v/s State of Karnataka and anr., reported in 1992 Cri. L. J. 1927 and P. M. Hari Kumar v/s Union of India & Ors., reported in (1995) 5 SCC 691. Since the petitioner was arrested after one year and two months, from the date of order of detention that too on his surrender, 10 and the delay was not explained, it can be presumed that the live and proximate link in the alleged activities of the appellant was snapped and there was no reasonable cause of detaining the detenu. 6. However, the Learned Public Prosecutor has relied on various judgments of this High Court as well as the judgment of the Supreme Court in Vinod K. Chawla v/s Union of India & Ors., reported in (2006) 7 SCC 337. Paragraph 16 of the judgment is quoted below: "16. It was lastly urged that the searches of the premises of the appellant were conducted on 10-12-1996 and 30-12-1996 and his statement was also recorded between 19-12-1996 and 30-1- 1997, but he was taken into custody after more than a year on 12-3-1998 and on account of this long delay the live and proximate link in the alleged activities of the appellant and the date of his actual detention was snapped and there was no reasonable cause for detaining the appellant. The argument raised is wholly misconceived. The detention order was passed on 12-2-1997, soon after the searches were conducted and his statement had been recorded but as the appellant was evading arrest and was absconding, it could only be served on 12-3-1998 when he was taken into custody. In the counter-affidavit filed in the High Court on behalf of the respondents it was averred that continuous efforts were made both by the police authorities as well as the officers of DRA to arrest the appellant. A notice under Section 7(1)(b) of COFEPOSA was published in the Official Gazette on 23-3-1997 and also in leading English and Hindi newspapers on 4-10-1997. An application under Section 7 (1)(a) of the Act was also moved before the Court of ACMM for initiating proceedings under Sections 82 and 83 CrPC where proclamation was made on 3-12-1998. Reference has also been made to three letters dated 28-2-1997, 17-7-1997 and 5-9-1997 from the police headquarters regarding the efforts made to serve the detenu and copies of those letters were placed on record. 11 Every time the family members of the appellant reported before the police that the appellant had left the house on 12-3-1997 to an unknown place and that his whereabouts were not known. An additional affidavit of the Assistant Director of Revenue Intelligence was also filed before the High Court wherein it was averred that 11 summons were issued to the appellant during 20- 2-1997 and 26-11-1997 and a red alert was also issued by DRI on 5-3-1997. These facts conclusively establish that the detention order which was passed on 12-2-1997, soon after the searches had been made and the statement of the appellant had been recorded, could not be served in spite of every possible attempt that had been made to serve him as the appellant was absconding. Where a person himself evades service of detention order, it is not open to him to contend that in view of the long period which has elapsed between the offending activities and the actual arrest and detention, the vital link had snapped and there was no ground for actually detaining him. An otherwise valid detention order cannot be rendered invalid on account of the own act of the detenu of evading arrest and making himself scarce. The contention thus raised has absolutely no merit and has to be rejected.” It is evident from the paragraph quoted above that it was shown to the Supreme Court that serious efforts were made to apprehend the detenu and the Supreme Court came to the conclusion that these facts conclusively established that the detention order which was passed on 12- 2-1997, soon after the searches had been made and the statement of the appellant had been recorded, could not be served in spite of every possible attempt that had been made to serve him as the appellant was absconding. But in the present case not even an attempt for seeking cancellation of bail 12 by the respondents was made. The learned Public Prosecutor has also relied on another judgment of this Court in Kasim Kadar Kunhi v/s State of Maharashtra & Ors., reported in 2005 All MR (Cri.) 1468. In this case the detenu was in Kerala and order of detention was passed in Maharashtra. Even in this judgment the High Court held, “However, mere delay in giving effect to the order of detention by itself cannot be a justification for quashing of the detention order. In such a case, it is necessary to see whether the authorities have furnished satisfactory explanation for such delay.” In Shaikh Mohammad Saeed Karamatullah v/s State of Maharashtra & Ors., reported in 2004 All MR (Cri.) 654, was again a case where the order of detention was passed in Maharashtra and detention order was to be executed in Delhi. In Mukesh Tikaji Bora v/s Union of India and Ors., reported in (2007) 3 SCC (Cri) 439, also in paragraph 12 the Supreme Court held, “In the instant case the materials placed by the respondents on record clearly show that all possible efforts were made to take the detenu to custody but he successfully managed to evade. Ultimately, proclamation was issued under Section7(1)(b) of COFEPOSA.” 7. Another contention which was raised before this court was that the detenu had been detained, “with a view to preventing him in future from 13 smuggling goods.” Whereas in the grounds of detention there is no allegation against the detenu that he was involved in smuggling of goods. It is submitted that Section 3 of the COFEPOSA Act gives power to the Central Government or the State Government or any Officer specially empowered for the purposes to detain person from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from (i) smuggling goods, or (ii) abetting the smuggling of goods, or (iii) engaging in transporting or concealing or keeping smuggled goods, or (iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or (v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods. He further submitted that according to Section 2(e) of the Act “smuggling” has the same meaning as in sub- section (39) of Section 2 of the Customs Act, 1962 and all its grammatical variations and cognate expressions shall be construed accordingly. Sub- Section (39) of Section 2 of the Customs Act reads thus: "Smuggling”, in relation to any goods, means any act or omission which will render such goods liable to confiscation under Section 111 or section 113.” From the bare definition it becomes clear that smuggling has to be understood in relation to “goods” which are liable to confiscation under 14 Section 111 or Section 113 of the Customs Act. If there are no goods there cannot be any confiscation under Section 111 or Section 113. Section 111 of the Customs Act lays down confiscation of improperly imported goods and Section 113 of the Customs Act lays down confiscation of goods attempted to be improperly exported. The argument of the learned Counsel is that the detention order can be passed with a view to prevent a person from doing any of the things mentioned in Section 3(1)(i) to (v) of the COFEPOSA Act. He can also be detained for more than one such acts which are mentioned in Section 3(1)((i) to (v). In the present case, the detenu has been detained expressly with a view to preventing him in future from smuggling goods, which could fall under Section 3(1)(i) of the COFEPOSA Act. But the grounds of detention, if read together, do not at all show that he was either involved or alleged to have committed any smuggling at any point of time. The grounds of detention disclose that the “Information had been received by DRI indicating that certain group of racketeers are involved in a major fraud in the exports made from Nhava Sheva Port under drawback scheme. Information indicated that the fraudsters are managing to file Shipping Bills in the name of fictitious firms. In respect of some Shipping Bills the physical exports are made whereas in respect of some Shipping 15 Bills no goods are carted at all thereby meaning no physical exports are made against those Shipping Bills. The fraudsters re managing to mis-lead the customs officers to get the Let Export Order (LEO) even when no goods are carted, by mis-leading them, at the time of examination. They are also managing to get the entires of such fraudulent Shipping Bills in the EGM and claiming the export benefit under drawback scheme. It was also indicated that the fraudsters are also preparing forged documents in the name of fictitious firms so as to indicate that the containers stuffed in the factory, under Central Excise supervision are exported and claiming drawback, but in reality no physical exports are made. The information also indicated that you had played a very vital role in perpetrating the fraud in the above manner. Names of M/s., Aniruddh Apparels, M/s. Bhanushali Creations, M/s. Shreeji Impex, were also indicated as the firms in whose name such type of frauds are committed.” 8. Going by the definition of “smuggling” in Section 2(e) of the COFEPOSA Act read with Section 2(39) of the Customs Act, we feel that this was also a case of non-application of mind where it was a case of the respondents themselves that no goods were being exported or imported, but order of detention was made in order to preventing detenu from 16 smuggling any goods in future. 9. For the reasons given herein above, the order of detention is quashed and set aside. Let the detenu be set at liberty forthwith unless he is required for any other offence under any Act. 10. Rule made absolute in terms aforesaid. Writ Petition is disposed of. 11. No order as to costs. Sd/- (BILAL NAZKI, J.) Sd/- (A. P. BHANGALE, J.)