1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 702 OF 2008 Imran Abdul Aziz Fruitwala ) Age 28 years, An Indian Inhabitant, ) residing at 141, Dontad Cross Lane, ) Fatima Building, 1st Floor, Room No. ) 4, Khadak, Mumbai – 400 003. ) .... Petitioner. (Friend of the detenu) Mohammad Sohail Abdul Rehman ) Aboobaker ).... ..... (Detenu) Versus 1) The State of Maharashtra ) through the Secretary to the ) Government of Maharashtra, ) Home Department, Mantralaya, ) Mumbai – 32. ) 2) Anna Dani, ) The Secretary to the Government,) Home Department, Mantralaya, ) Mumbai – 32. ) 3) The Superintendent of Prison, ) Mumbai Central Prison, Mumbai. ) 4) The Superintendent of Prison, ) Nasik Road Central, Nasik. )... ..... Respondents. Mrs. A. M. Z. Ansari for the Petitioner. Mrs. A. S. Pai, APP for the State. 2 CORAM : BILAL NAZKI and A. A. KUMBHAKONI, JJ. DATED : 30TH AUGUST, 2008. ORAL JUDGMENT (Per Bilal Nazki, J.): This petition has been filed for quashing of an order of detention passed on 2nd July, 2007 in respect of the detenu by the Detaining Authority under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short “COFEPOSA Act”). 2. The order was executed on 18th October, 2007. The detenu had been arrested on 9th March, 2007, statements were recorded and ultimately he was bailed on 10th March, 2007. One of the grounds agitated by the learned Counsel for the petitioner to challenge the order of detention was that the detenu had been detained on 8th March, 2007 and the reason for his arrest on 9th March, 2007 was the only ground for detention of the detenu. There has been delay of 4 months in passing the order of detention. During this 4 months period, no other material was collected against the detenu which could have justified his detention after 4 months. If the respondents were satisfied on the basis of his arrest on 9th March, 2007 that he needs to be detained, the order of detention could have been passed immediately. 3 Learned Counsel for the petitioner further submits that the links between the detenu's activities connected to the offence of 8th march, 2007 were not in tact when an order of detention was passed on 2nd July, 2007. She further submits that the Detaining Authority had only to examine 18 documents which were of 39 pages only as is admitted in the counter affidavit. Therefore, the delay of more than 4 months in passing the impugned order cannot be explained. 3. We have seen the original record. Heard the learned Public Prosecutor as well and gone through the counter affidavits. 4. On 9th March, 2007 the detenu was arrested for his activities of 8th March, 2007. But, even the proposal was initiated belatedly on 15th May, 2007 i.e. 2 months later. There was, therefore, delay of 2 months even in initiating the proposal. What more reveals the record is, the Detaining Authority received a report from the Sponsoring Authority, which is a brief history given of the detenu and also the instance of 8th March, 2007 when the goods were seized from him at the Airport. Then this proposal by Sponsoring Authority was placed before the Under Secretary and not the Detaining Authority. The Under Secretary makes the following observations in the report: "5. After scrutiny of the proposal and relied upon documents it is found that :- 4 (i) The proposal is based on the statement of PD and statement of other accused. (ii) The Sponsoring Authority has mentioned that the prejudicial activity of the PD falls under Sub Clause (i) of Clause (1) of Section 3 of COFEPOSA Act, 1974, i.e. “smuggling goods”. (iii) The Sponsoring Authority has mentioned that the smuggling activity of the PD has been detected under Section 111(1) of Customs Act, 1962.” Then it goes to the Deputy Secretary, who only signs the proposal. Then it goes to the Principal Secretary, who writes “Issue Detention Order”. If the decision had been taken and satisfaction had been recorded on 13th June, 2007 that the order of detention be issued then there was no justification in not issuing the detention order till 2nd July, 2007. But what happened after this order of the Detaining Authority, it appears that the file again went to the Under Secretary and it is not known for what purpose, he made the following endorsement: "The draft detention order, grounds of detention and annexure in respect of PD Shri Mohammed Sohail s/o Abdul Rehman Aboobaker as dictated by Detaining Authority is submitted for perusal and approval of the Detaining Authority.” This submission again goes to the Deputy Secretary and then to the Detaining Authority and the Detaining Authority again endorsed, “D.O. May be issued”. The grounds of detention were prepared between 13th June, 2007 and 19th June, 2007. Whereas, the order of detention actually was ordered to be 5 passed on 13th June, 2007 i.e. much prior to consideration of material. Then again the file is endorsed on 27th June, 2007 by the Under Secretary, who says, “As approved in the note on prepage final draft detention order, grounds of detention and annexure in respect of PD Shri Mohammed Sohail s/o Abdul Rehman Aboobaker is submitted for signature of the Detaining Authority”. And on 2nd July, 2007 it appears to be signed by the Detaining Authority. Therefore, it is not clear whether the grounds of detention came first and then the order of detention was passed or the order of detention was passed first and then the grounds of detention came. 5. For the aforesaid reasons, the impugned order of detention cannot be sustained and the same is required to be quashed. 6. In view of the above, the impugned order of detention is quashed. The detenu be released forthwith, if not required in any other case. 7. Rule made absolute in terms aforesaid. 8. Writ petition is, accordingly, allowed. No order as to costs. Sd/- (BILAL NAZKI, J.) Sd/- (A. A. KUMBHAKONI, J.)