1 cri-wp-764-11.doc pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 764 OF 2011 Shabbirbhai Bookwala ) Age 65 years, ) An Indian Inhabitant, Residing at ) 1st Floor, Room No. 21, Rafi Ahmed ) Kedwai Marg, Bhoiwada, ) Kalyan (W), Dist. Thane. ) .. Petitioner (Father of Detenu) Mustafa Sabbirbhai Bookwala ) .. Detenu Vs. 1. The State of Maharashtra ) through the Secretary to the ) Government of Maharashtra ) Home Department (Special) ) Mantralaya, Mumbai – 400 032 ) 2. Nandkumar Jantra ) the Secretary to the ) Government of Maharashtra, ) Home (Preventive Detention), ) Mantralaya, Mumbai 400 032. ) 3. The Superintendent of Prison ) Nasik Road Central Prison, ) Nasik Road, Maharashtra ) .. Respondents Mrs. A.M.Z. Ansari for petitioner. Ms. M. H. Mhatre, APP for State. 2 cri-wp-764-11.doc CORAM: B. H. MARLAPALLE & U. D. SALVI, JJ. RESERVED ON : JULY 07, 2011. PRONOUNCED ON : JULY 15, 2011. JUDGMENT (PER B. H. MARLAPALLE,J.): 1. This petition seeking a writ of habeas corpus under Article 226 of the Constitution is directed against the order of detention passed on 11/2/2011 by the Secretary (Appeals and Security), Government of Maharashtra, Home Department and in his capacity as the Detaining Authority under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (the Act for short). The said order came to be executed on 17/2/2011 and while confirming it, as per the order dated 16/5/2011 under Section 8(f) of the Act, the period of detention has been said to be one year. 2. As per the reasoned order passed on the very same day i.e. 11/2/2011, on 24/3/2010, the officers of the Air Intelligence Unit (AIU), on the basis of the intelligence received, had intercepted the detenu in transit 3 cri-wp-764-11.doc lounge on his arrival from Hongkong by Jet Airways Flight No.9W 0075 while he was found surreptitiously exchanging his hand bag and baggage with another passenger by name Shri Mohd. Shaikh Parvez Ali who was travelling to Delhi as a domestic passenger by Air India Flight No.AI 143 on the very same day. Both of them were brought to the office of the AIU with the baggages and in the presence of two independent panchas, baggages were examined. The hand bag passed on to Shri Mohd. Shaikh Parvez Ali was found to have 88,878 pieces of assorted Memory cards of foreign origin totally valued at Rs.2,23,28,250/- (CIF) and Rs.3,34,92,375/- (LMV). 129 pieces of sticker sheets each having 160 stickers with a description “Micro SD 2GB” were also recovered from the said bag. The recovered articles were seized and the bag passed to the detenu did not contain anything except the personal effects. However, the personal search of the detenu resulted in the recovery of Indian currency of Rs.32,500/-. 3. On the same day, the statement of Shri Mohd. Shaikh Parvez Ali (resident of Mira Road (E), Dist. Thane) was recorded and he stated that he was to catch the Air India Flight scheduled for Delhi and had exchanged his bag with that of the detenu containing assorted Memory cards as per the pre-plan in the cliffer lounge prior to his boarding the Delhi 4 cri-wp-764-11.doc Flight AI 143. Shri Ali had met the detenu in Dubai while on his visit in the month of May 2009 and he had worked in a trading company dealing with mobile accessories. He had agreed to become a carrier for one Shri Khan and agreed to collect the bag containing the memory cards from the detenu at the Sahar Airport and to carry it upto Delhi by domestic flight and at Delhi one person would come and collect the bag on behalf of Shri Khan, as per the scheduled day and time, i.e. 24/3/2010. Shri Khan had booked the air ticket for Shri Ali with M/s. Altas Travels in Mumbai and he further admitted to have undertaken the job for a consideration of Rs. 10,000/-. Shri Ali identified the detenu as the person with whom he had exchanged his hand bag and also admitted the possession, carriage, concealment, non-declaration, recovery and seizure of the Memory cards of foreign origin in commercial quantity. His statement was further recorded on 12/5/2010, 22/6/2010. The detenu’s statement was recorded on 24/3/2010 under Section 108 of the Customs Act, 1962. It was disclosed in the said statement that on 21/3/2010 he was told to come to Hongkong via Mumbai and received Memory chips from Shri Mohammed, Pakistani national in M/s. AMW Ltd. and hand over the same to one person after calling Shaikh Abdullah Zayed. The detenu was given 400 US $ in cash for expenditure and thereafter he boarded Jet Airways Flight No.9W 076 5 cri-wp-764-11.doc on 23/3/2010 for Hongkong. On reaching Hongkong, he contacted Mr. Vincent who gave him 26000 pieces of 2GB Memory Cards. On the next day, the detenu went to Mr. Mohammed in his office at AMW Ltd. and collected around 29000 pieces of 2GB Memory Cards. The detenu had packed all these Memory Cards in different packages and without any monetary transactions and boarded the Jet Airways Flight No.9W 075 at Hongkong Airport and arrived at Mumbai Airport on 23/3/2010. On arrival at Mumbai, he received a telephone call from one person named Shaikh Abdullah and as per his advice the hand bag was to be exchanged to Shri Parvez Ali, who was known to the detenu for the last two months. He further admitted that he had undertaken the said job for a monetary consideration of Rs.20,000/- at the instructions of his employer Shri Shaikh Abdullah Zayed and the payment was made directly by telex transfer of money. The detenu was a frequent traveller between Hongkong and Mumbai and had made 20 trips during the last one and half year. The detenu was taken in custody on 25/3/2010 but came to be released on bail on 23/4/2010. The order further stated that considering the nature and gravity of the offence and the well organized manner in which the detenu had engaged in such prejudicial activities, it was imperative that he should be detained under the Act with a view to prevent him from indulging in 6 cri-wp-764-11.doc smuggling activities in future. The copies of the document relied upon and referred to while passing the detention order were also made available to the detenu as stated in the order. 4. Mrs. Ansari, the learned counsel for the petitioner, who is the father of detenu, has challenged the detention order mainly on the following grounds:- (A) There was inordinate delay in submission of the proposal by the Sponsoring Authority on 15/9/2010 with reference to the date of arrest of the petitioner (25/3/2010) or the date of his release on bail (23/4/2010) and this delay has not been explained satisfactorily. (B) The order of detention passed on 11/2/2011 also suffers from inordinate delay and is a stale order, either with reference to the date of the arrest or release on bail of the detenu. This delay caused in passing the order has also not been explained satisfactorily and, therefore, the detention order is required to be quashed and set aside. 7 cri-wp-764-11.doc (C) In paras 5 to 7 of the reasoned order of detention, reference has been made to the statements recorded of the co- accused on 24/3/2010, 12/5/2010 and 22/6/2010. However, the copies of the said statements were not given to the detenu `pari passu’ along with the grounds of detention and this resulted in non communication of the grounds of detention. The detenu was deprived of making an effective representation at the earliest under Article 22(5) of the Constitution. This deprivation of the right for representation has vitiated the order of detention and on that ground alone it is required to be quashed and set aside. (D) If the said statements of the co-accused were not supplied along with the reasoned detention order, there is a reason to believe that the same were not placed before the Detaining Authority and thus there was a manifest and gross error in passing the detention order in as much as the Detaining Authority could not apply his mind to the said statements of the co-accused. (E) The statements of the detenu as well as the co-accused recorded from time to time and relied upon in support of 8 cri-wp-764-11.doc the detention order were retracted at the earliest opportunity available and, therefore, the earlier recorded statements could not have been considered while passing the detention order. (F) The representation submitted to the Detaining Authority was rejected on 24/4/2011 and by the State Government on the same day. However, in the affidavit-in-reply filed by the Detaining Authority it has been stated that the representation was under consideration. This would show that the Detaining Authority was not at all aware of the representation of the detenu and the representation was not considered by the said Authority before it was rejected on 24/4/2011. The rejection could be even by a subordinate officer to the Detaining Authority and this has denied a valuable right of effective representation. 5. The Detaining Authority – Shri Nandkumar Jantre, Secretary (Appeals and Security), Home Department, has filed affidavit-in-reply and similarly Shri M. K. Shrivastava, Assistant Commissioner of Customs has 9 cri-wp-764-11.doc filed affidavit and additional affidavit on behalf of the Sponsoring Authority i.e. the Commissioner of Customs, Mumbai. The petition has been opposed and it has been submitted that there was no delay caused in passing the detention order and the time taken at every steps has been properly explained. 6. It is well settled that the procedure as laid down under Article 22 of the Constitution must be strictly observed in the cases of preventive detention and the scope of judicial review in matters of preventive detention is practically limited to an enquiry as to whether there has been a strict compliance with the requirements of law. The Supreme Court in the case of Makhan Singh Vs. State of Punjab [AIR 1952 SC 27] held that before a person is deprived of his personal liberty the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person affected. The onus to show that the liberty of the detenu has been taken away in accordance with the procedure established by law is on the State i.e. the Detaining Authority who must show that the liberty of the detenu has been taken away in accordance with the procedure established by law and the safeguards provided in Article 22 as well as in the Act under which the detention order has been passed. In the case of Ram Bali Rajbhar 10 cri-wp-764-11.doc vs. State of West Bengal [AIR 1975 SC 623] the Supreme Court held that on a habeas corpus petition, what has to be considered by the Court is whether the detention is prima facie legal or not, and not whether the detaining authorities have wrongly or rightly reached a satisfaction on every question of fact. Courts have, no doubt, to zealously guard the personal liberty of the citizen and to ensure that the case of a detenu is justly and impartially considered and dealt with by the detaining authorities and the Advisory Board. But, this does not mean that they have to or can rightly and properly assume either the duties cast upon the detaining authorities and Advisory Board by the law of preventive detention or function as courts of appeal on questions of fact. 7. On the point of delays, the Constitution Bench of the Supreme Court in the case of K. M. Abdulla Kunhi and B.L. Abdul Khader vs. Union of India [1991 (1) SCC 476] has held that any unexplained delay in the disposal of the representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal. In the case of Hemlata Kantilal Shah vs. State of Maharashtra [AIR 1982 SC 8], the Supreme Court held, 11 cri-wp-764-11.doc “Delay ipso facto in passing an order of detention is not fatal to the detention of a person, for in certain cases delay may be unavoidable and reasonable. What is required by law is that the delay must be satisfactorily examined by the detaining authority.” After referring to a some of its earlier decisions, the Supreme Court in the case of T.A. Abdul Rahman vs. State of Kerala and ors. [AIR 1990 SC 225] held, “.......The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the rest of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the 12 cri-wp-764-11.doc order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the Court has to investigate whether the casual connection has been broken in the circumstances of each case. Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner.” 8. In the case of Deepak Bajaj Vs. State of Maharashtra [(2008) 13 cri-wp-764-11.doc 16 SCC 14] by following the earlier decision in the case of Ashadevi v. K. Shivraj [(1979) 1 SCC 222] the Supreme Court observed that if a confession is considered by the detaining authority while passing the detention order, the retraction of the confession must also be placed before him and considered by him, otherwise the detention order is vitiated. In the case of Adishwar Jain v. Union of India [(2006) 11 SCC 339], the Supreme Court observed that where the relevant documents have not been placed before the detaining authority, issuing of the detention order itself would become vitiated. In the case of A. Sowkath Ali v. Union of India [(2000) 7 SCC 148] the Supreme Court observed that if the detaining authority has relied on a confessional statement then the retraction of that confession should also have been placed before the detaining authority and should have been considered by it, and failure to do so would invalidate the detention order. 9. On the backdrop of these enunciations of the Supreme Court we will have to examine the challenge to the detention order in the instant case and on the grounds mentioned hereinabove. Let us first examine the delay caused in forwarding the proposal by the Sponsoring Authority to the Detaining Authority. The additional affidavit filed by Shri M.K. Shrivastava, Assistant Commissioner of Customs states that investigation 14 cri-wp-764-11.doc was carried out by him during the period from 12/5/2010 to 26/8/2010. The detenu was taken in custody on 24/3/2010 and he was released on bail after one month i.e. on 24/4/2010. While under arrest and after he was released on bail his statements were recorded. Show cause notice was issued to him on 16/9/2010 but it is important to note that from 26/8/2010 when the Commissioner approved the proposal for issuing the detention order, it took more than three weeks for the approval of the Screening Committee which approval was granted on 15/9/2010. The approval was received by the Commissioner on 16/9/2010 but nothing further was done and the proposal was forwarded to the Detaining Authority for the first time on 11/10/2010. In our opinion the delay between 26/8/2010 to 15/9/2010 and from 16/9/2010 to 11/10/2010 has not been explained with justifiable reasons and this unexplained delay has vitiated the detention order. 10. Now coming to the delay caused at the end of the Detaining Authority, the affidavit in reply filed by the Secretary (Appeals & Security), Home Department, Government of Maharashtra states that the proposal submitted by the Additional Commissioner of Customs was received on 12/10/2010. It was scrutinized on 15/11/2010 and the Under Secretary endorsed it on 16/11/2010. It is not known as to why the scrutiny was 15 cri-wp-764-11.doc delayed for more than a month i.e. from 12/10/2010 to 15/11/2010. This delay of more than a month has not been explained, leave alone a satisfactory explanation. Further it is stated that after the Joint Secretary endorsed the proposal on 18/11/2010 information was called from the Sponsoring Authority by letter dated 23/11/2010. The Sponsoring Authority forwarded the said information by its letter dated 14/12/2010 and it was received by the Detaining Authority on 20/12/2010. This delay in receiving the information from the Sponsoring Authority from 23/11/2010 to 14/12/2010 has not been explained properly by the Sponsoring Authority. In addition, the delay caused from 21/12/2010 onwards has also not been explained satisfactorily. It is stated that on 31/12/2010 the Sponsoring Authority forwarded three sets but the Detaining Authority i.e. Principal Secretary (Appeal and Security) had proceeded on sanctioned leave and the orders regarding charge of the Detaining Authority during the leave period was issued on 12/1/2011. However, the detention order has been passed on 11/2/2011 and this delay also has not been explained satisfactorily. These unexplained delays or the delays which have not been supported by satisfactory explanations have also vitiated the detention order. The detention order so passed belatedly is a stale order. 16 cri-wp-764-11.doc 11. The detention order in paragraphs 5 to 7 specifically states that it is based on the statements of the co-accused Shri Mohd. Shaikh Parvez Ali recorded on 24/3/2010, 12/5/2010 and 22/6/2010 but copies of these statements were not provided to the detenu `pari pasu’ along with the grounds of detention. The learned counsel for the petitioner is justified in her arguments that failure to supply these documents provided to be a handicap for the detenu to submit an effective representation and thus violated the guarantee under Article 22(5) of the Constitution. This deprivation of right for effective representation also vitiated the order of detention dated 11/2/2011. It is not known whether the copies of the these statements of Shri Mohd. Shaikh Parvez Ali were placed before the Detaining Authority and the said authority applied its mind to these documents. In the case of Mehrunissa vs. State of Maharashtra [AIR 1981 SC 1861], the Supreme Court, by following its earlier two decisions – AIR 1980 SC 1983 and AIR 1981 SC 431, stated, “...The detenu was entitled to be supplied with copies of all material documents instead of having to rely upon his memory in regard to the contents of the documents. The failure of the detaining authority to supply copies of such documents vitiated 17 cri-wp-764-11.doc the detention, as has been held by this Court in the two cases cited by counsel. The detenu is, therefore, entitled to be released....” 12. Though the statements of the detenu were recorded on 24/3/2010, 3/5/2010, 22/6/2010, 11/8/2010 and 13/9/2010, these statements were retracted by the detenu at the earliest opportunity available and the impugned order of detention does not reflect the effect of these retractions. Even the reply dated 13/10/2010 submitted by the detenu to the show cause notice dated 16/9/2010 has not been reflected in the detention order. Even if it is presumed that the retraction of Shri Mohd. Shaikh Parvez Ali from his statement dated 24/3/2010 has not materially affected his statement dated 24/3/2010, it was imperative that copies of the statements of Shri Mohd. Shaikh Parvez Ali were required to be considered in the order of detention and copies of the same ought to have been provided to the detenu along with the detention order. 13. We are, therefore, satisfied that on all the above grounds of delay as well as failure to provide the copies of the statements recorded of the co-accused and failure to consider the retractions of the detenu have 18 cri-wp-764-11.doc vitiated the detention order. Consequently, the same is required to be quashed and set aside. 14. Hence the petition succeeds and the same is hereby allowed. The impugned order of detention dated 11th February 2011 is quashed and set aside. The detenu – Shri Mustafa Shabbirbhai Bookwala be released forthwith unless required to be detained in any other case. Rule is made absolute accordingly. (U.D. SALVI, J.) (B. H. MARLAPALLE, J.)