IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.11.2011 CORAM: THE HONOURABLE MR.JUSTICE K.MOHAN RAM AND THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI H.C.P.No.481 of 2011 Said Farouk .. Petitioner vs. 1. The State of Tamil Nadu rep.by Secretary to the Government Public (SC) Department Government Secretariat Chennai 600 009. 2. The Union of India rep.by the Secretary to Government Ministry of Finance Department of Revenue (COFEPOSA Unit) Central Economic Intelligence Bureau Janpath Bhavan, Janpath New Delhi 110 001. 3. The Superintendent Cuddalore Central Prison Cuddalore .. Respondents Habeas Corpus Petition filed under Article 226 of the Constitution of India calling for the records relating to the detention order in G.O.No.SR.1/618-5/2010 dated 08.12.2010 passed by the first respondent against the detenu Said Farouk, Son of Said Noor Ismail, now detained in the Central Prison, Cuddalore as COFEPOSA detenu; to quash the same and to direct the respondents to set him at liberty. For Petitioner : Mr.M.M.K.Alifudeen For Respondents : Mr.M.Maharaja Additional Public Prosecutor for RR1 and 3 No appearance https://hcservices.ecourts.gov.in/hcservices/ ORDER (The Order of the Court was made by K.MOHAN RAM.J.) The above petition has been filed by the detenu-Said Farouk challenging the order of detention passed by the first respondent in his proceedings in G.O.No.SR.1/618-5/2010, Public (S.C.) Department dated 08.12.2010 detaining him under Section 3(1) (i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 [Central Act 52 of 1974], (hereinafter called as COFEPOSA). 2. The brief facts leading to the passing of the detention order as aforesaid is that on 29.10.2010, at Chennai Anna International Airport the detenu was intercepted by the Customs officers, when he came from France and on a personal check conducted on him, they recovered 536 gold coins totally weighing 4288 gms valued at Rs.76,54,080/- and 3000 Euros from him. Subsequent to the seizure, the detenu had given a statement dated 02.09.2010 admitting the seizure of gold coins and 3000 Euros. In connection with that, the detenu was arrested on 03.09.2010 and case was registered under Sections 132 and 135(1) (a) and (b) of the Customs Act and was released on bail on 24.09.2010 with certain conditions. Subsequently, the condition was also relaxed. On the basis of the aforesaid materials placed before him, the detaining authority came to the satisfaction that if he remains at large, he will indulge in such prejudicial activities again, even though his passport has been produced before the Court. Hence, the detention order was passed. Challenging the said detention order, this Habeas Corpus Petition has been filed by the detenu. 3. Though several grounds have been raised in the petition challenging the order of detention, we are not referring to all the grounds of attack, as the Habeas Corpus Petition could be disposed of on the following ground. 4. In para No.6(iii) of the affidavit filed in support of this petition, it has been averred as follows: "As mentioned in earlier paragraphs, the Customs authorities are alleged to have seized the gold coins from me on 02.09.2010 and I was arrested on 03.09.2010 under the provisions of Customs Act and remanded to judicial custody. Subsequently, I was released on bail by the learned Additional Chief Metropolitan Magistrate, E.O.II, Chennai on 23.09.2010 on certain conditions. After complying with the above conditions, I was released on bail. Thereafter, I am appearing before the Customs Department daily as directed in the bail and on 1.11.2010 the condition was relaxed to once https://hcservices.ecourts.gov.in/hcservices/ in fifteen days by the lower court. On 9.12.2010 I filed a further relaxation petition and the same was served on the counsel for the customs department. On 15.12.2010 the counsel for the Customs Department stated before the Court that the accused is complying the condition regularly and after hearing the customs prosecutor, my appearance was relaxed to once in one month by the lower court. Thereafter, as per the modified condition, I appeared on 1.1.2011 before the Customs Department control room and signed as on 1st of January 2011 no officers were available in the concerned department; and on 1.2.2011 and 1.3.2011, I appeared regularly before Mr.Dawar, Supdt of Customs Department and signed the attendance register. But only I went to sign on1.4.2011 I was handed over to police and the detention order was executed." Mr.Alifudeen, the learned counsel appearing for the petitioner, referring to the aforesaid facts stated in the affidavit, submitted that though the petitioner was appearing before the Court of Judicial Magistrate, Alandur in C.C.No.120 of 2011 on various dates and that the order of detention had been passed on 08.12.2010 and after the passing of the order of detention also he had appeared before the court concerned on 09.12.2010, 12.01.2011, 17.02.2011 and 23.03.2011, the detention order dated 08.12.2010 was not executed against him. If the detaining authority was serious in executing the order of detention, the same could have been executed when the detenu appeared before the Judicial Magistrate Court, Alandur on the aforesaid dates. Therefore, the learned counsel for the petitioner submitted that the delay of nearly four months in executing the order of detention vitiates the order of detention itself. 5. The learned counsel for the petitioner further submitted that though a detailed counter affidavit has been filed by the first respondent, in para No.7 of the counter affidavit the aforesaid facts, viz., the various dates of appearance of the detenu before the Judicial Magistrate Court, Alandur have not at all been referred to or denied and it has not been explained as to why the order of detention could not be executed between 08.12.2010 and 31.03.2011. In the counter affidavit, it has been stated that the order of detention was sent to the executing authority on the same day and the police party who visited the address mentioned in the detention order on 31.12.2010 and 16.01.2011 have reported that the house of the detenu was found locked and the detenu was evading his arrest and hence he was arrested only on 02.02.2011. In support of his contention, the learned counsel for the petitioner placed reliance on the order dated 24.08.2011 passed by the Division Bench of this court in HCP No.2380 of 2010 [J.Syed Mohamed vs. State of Tamil Nadu and two others]. In Para Nos.18 and 19 of the said order, the Division Bench has held as follows: https://hcservices.ecourts.gov.in/hcservices/ "18. The grounds of detention would disclose that the alleged smuggling activity/mis-declaration took place on 10th March, 2010 and the detenu was arrested on 11th March 2010 and he was enlarged on bail on 11th May 2011, subject to the condition that he shall appear before the DRI on all working days until further orders, which was subsequently modified twice. The detention order was passed on 11th October 2010 and it was executed on 13th December 2010. A perusal of the additional typed set of papers filed on behalf of the petitioner would disclose that the petitioner filed Crl.M.P.No.1488/10 for relaxation of the bail condition and that the application was listed for hearing on 18th October 2010. It was directed to be called on 21st October 2010 and on that day it was adjourned to 8th November, 2010 and on both occasions the accused was present. The detenu also filed Crl.M.P.No.1651/10 praying for appropriate directions for his appearance on receipt of summons and it was called on 15th November 2010, the detenu was absent and on an application u/s 317 Cr.P.C, his personal appearance was dispensed with and the said application was called on 22nd Nov.,2010 and on that date the accused was absent and his personal appearance was dispensed with on filing a petition u/s 317 Cr.P.C and again it was called on 7th December 2010, 13th December 2010 and on both occasions, the accused was present and on 15th December 2010, the said petition was dismissed as not pressed. Thus, the accused was appearing before the court of Additional Chief Metropolitan Magistrate, E.O.II on 18th Oct., 2010, 21st Oct.,2010, 22nd Nov.,2010, 29th Nov.,2010 and also on 7th Dec.,2010 and 13th Dec.,2010 and inspite of his appearance steps have not been taken to execute the order of detention. 19. In A.Mohammed Farook – vs. Joint Secretary to GOI and another [2000 SCC (Crl.)411], the order of detention was challenged, among other grounds, that there was a delay of 40 days in execution of detention order and the facts of the said case would disclose that the detention order was passed on 25th February 1999 and executed on 5th April 1999 and though the detenu was present in the concerned court on 25th Feb.,1999 as well as on 25th March, 1999, neither the detaining authority nor the executing agency nor the sponsoring authority had chosen to serve the order of detention. The Hon'ble Supreme Court held that though the explanation was given by the detaining authority that despite their best efforts, the detenu could not be located either at his residence or in his office, in the absence of report from the executing agency as to the steps taken to serve the detention order, the subjective satisfaction https://hcservices.ecourts.gov.in/hcservices/ arrived at by the detaining authority was vitiated for non- execution of the detention order within a reasonable order." 6. On the aforesaid submission, we heard the learned Additional Public Prosecutor. 7. The learned Additional Public Prosecutor is unable to rebut the aforesaid submission made by the learned counsel for the petitioner, but submitted that prompt steps were taken to execute the order of detention by forwarding the order of detention to the executing authority but the executing authority inspite of their best efforts could not execute the order of detention. 8. We have considered the submissions made on either side and perused the materials available on record. 9. Admittedly, the order of detention was passed on 08.12.2010 and the same was executed only on 01.04.2011. There is no dispute that the detenu was appearing before the Judicial Magistrate Court, Alandur on the following dates in C.C.No.120 of 2011, viz., 09.12.2010, 12.01.2011, 17.02.2011 and 23.03.3011. Further, it is seen that by an order dated 15.12.2010 passed in M.P.No.1977 of 2010, the learned Additional Chief Metropolitan Magistrate, Economic Offences Wing-II, Egmore, Chennai-8 has modified the conditions imposed on the detenu and that he was permitted to appear before the complainant, viz., the Superintendent of Customs, Prosecution Unit (Air), Customs House, Chennai-1 on the first of every month and he should stay at Karaikal. It is not the case of the respondents that the detenu was not complying with the said conditions imposed on him. Thus, when the detenu was admittedly appearing before the Judicial Magistrate Court, Alandur in connection with C.C.No.120 of 2011 and pursuant to the order of relaxation dated 15.12.2010, he was appearing before the Superintendent of Customs, Prosecution Unit (Air), Customs House, Chennai-1, the order of detention, which was passed as early as 08.12.2010 could have been easily executed; but the non-execution of the order of detention during those dates has not at all been adverted to or explained in the counter affidavit filed by the first respondent. The explanation offered in the counter affidavit in para No.7 is not acceptable. In the decision reported in 2000 SCC (Crl.) 411, [A.Mohammed Farook – vs. Joint Secretary to GOI and Others] the Hon'ble Apex Court has held that the delay of 40 days in executing the detention order still vitiates the order of detention and on that ground, the order of detention was set aside. The said decision has been followed by the Division Bench of this court in the order referred to supra. https://hcservices.ecourts.gov.in/hcservices/ 10. The above order of the Division Bench of this court and the decision of the Hon'ble Apex Court squarely applies to the facts of the case and accordingly, the impugned order of detention dated 08.12.2010 is set aside and the habeas corpus petition is allowed. The detenu is directed to be released forthwith, unless he is required in any other case. Sd/ Asst. Registrar /True Copy/ Sub Asst.Registrar vj2 To 1. The Secretary to the Government State of Tamil Nadu Public (SC) Department Government Secretariat Chennai 600 009. 2. The Secretary to Government Union of India Ministry of Finance Department of Revenue (COFEPOSA Unit) Central Economic Intelligence Bureau Janpath Bhavan, Janpath New Delhi 110 001. 3. The Superintendent Central Prison,Cuddalore (in duplicate for communication to detenu) 4. The Joint Secretary to Government Public (Law & Order) Fort St.George, Chennai-9. 5. The Public Prosecutor, Madras H.C.P.No.481 of 2011 KSJ(CO) KSA (30/11/2011) https://hcservices.ecourts.gov.in/hcservices/