1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2556 OF 2008 Mohammad Bilal Yunus Saleh, ) Age 30 years, an Indian Inhabitant, ) residing at Patel Wadee, Beside ) Town Hall at P. O. Kosamba, ) Taluka Mangrol, Surat-394 120. ).. .. .. Petitioner (Brother 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) Anna Dani, ) The Principal Secretary to the ) Government of Maharashtra, ) Home Department (Preventive ) Detention), Mantralaya, ) Mumbai – 400 032. ) 3) The Superintendent of Prison, ) Nashik Road Central Prison, ) Nashik, Maharashtra. ) 4) Union of India, ) Ministry of Finance, ) Department of Revenue, ) Central Economic Intelligence ) Bureau, (COFEPOSA Section) ).. ... Respondents. 2 Mrs. A.M.Z. Ansari for the Petitioner. Mrs. A. S. Pai,Addl. P.P. for the State. CORAM : BILAL NAZKI and F. M. REIS, JJ. RESERVED ON: 26TH MARCH, 2009. PRONOUNCED ON : 23RD APRIL, 2009. (At 4.45 p.m. in Chamber) JUDGMENT (Per Bilal Nazki, J.) : This petition has been filed by the brother of the detenu challenging the order of detention passed on 4th October, 2008 in terms of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short “COFEPOSA Act”) and who is presently lodged in jail. 2. The detenu was earlier arrested by the Authority as allegedly the seizure was effected on 17th April, 2008. After being arrested on 17th April, 2008 he was ordered to be released on bail on 14th May, 2008. He availed the bail. Thereafter the order of detention was passed on 4th October, 2008. The grounds of detention disclose that the allegation against detenu was that he was booked for Dubai by Emirates flight No. EK-501 and on search from his person and bag, Indian and Foreign currency were 3 collected, an amount equivalent to Indian currency of Rs.64,03,717/- was recovered from his hand-bag and person. The Detaining Authority took note of the fact that he was arrested on 17th April, 2008 and was released on bail on 14th May, 2008. 3. Learned Counsel for the petitioner has challenged the order of detention mainly on the ground that there was delay in issuing detention order and there was no live link between the alleged prejudicial activity which resulted in the arrest of the detenu on 17th April, 2008 and the date on which the order of detention was passed i.e. 4th October, 2008. There was a gap of six months. It is submitted by the learned Counsel for the petitioner that even after the proposal was made by the Sponsoring Authority for detention of the detenu the order of detention was not passed immediately although the material on which the Detaining Authority finally relied was available to her. We have heard the learned Counsel for the petitioner as well as the learned Public Prosecutor. We have also gone through the counter affidavits filed by the Detaining Authority and the Sponsoring Authority. 4. In paragraph 4(i) of the writ petition, the petitioner stated : “(i) The petitioner says and submits that the alleged seizure was effected on 17/4/2008, the detenu was arrested on 17/4/2008. 4 The detenu was ordered to be released on bail on 14/5/2008. The detenu availed of the bail on the same date. The petitioner says and submits that assuming whilst denying that the impugned order of detention was warranted to be issued; the same in that case, ought to have been issued promptly and vigilantly soon thereafter. The petitioner says and submits that the detaining authority in that case could not have and as a matter of fact ought not to have differed, withheld or kept back in abeyance the issuing of the impugned order of detention for any reason whatsoever. The petitioner says and submits that the impugned order of detention having been issued as late as on 4/10/2008, that is to say, after a lapse of almost six months from the date of incident and six months from the date the detenu was released on bail, the same is punitive in character rather than preventive in nature. It is accordingly malafide, null and void.” In response to this paragraph, the Sponsoring Authority has accepted the fact as mentioned by the petitioner in paragraph 4(i) of the writ petition. However, it has further submitted that on 17th April, 2008 statement of the detenu was recorded under Section 108 of the Customs Act. Further 5 investigation was carried on and further statement was recorded on 9th June, 2008 and 10th June,2008. The residential premises of the detenu was searched and summons were issued to the detenu on 18th June, 2008 and 2nd July, 2008. Thereafter, statement of witnesses from Surat were recorded on 27th May, 2008 and 28th May, 2008. Further statement of the detenu was recorded on 31st July,2008 and 4th August, 2008. The detenu retracted his statement on 18th April, 2008. Further statement of detenu was recorded on 9th June, 2008 and 4th August, 2008. After collecting the material on 11th July, 2008 the proposal for detention of detenu was approved by the Commissioner of Customs. If we go through the statement in this para, it becomes clear that unnecessarily the detenu's statement continued to be taken upto 4th August, 2008 and in between 17th April, 2008 till 4th August, 2008 it appears that the detenu was examined on seven occasions. We do not understand, if his statement had been taken on 17th April, 2008 under Section 108 what was the necessity of examining him again. He had retracted his statement on 18th April, 2008. That means only after one day of his making the statement and if there was any necessity to examine him again on 18th April, 2008, one could understand examining this detenu once after 18th April, 2008. But they continued examination after examination only with a view to perhaps gain time. It 6 may also be noted from the reply affidavit that even the statement of the detenu was again taken on 4th August, 2008 when the proposal had already been moved by the Commissioner of Customs for detention on 11th July, 2008. This perhaps was a ploy to gain time to justify the delay in passing of the order of detention. There is no explanation forthcoming for not sending a proposal for detention of the detenu from 18th April, 2008 till 11th July, 2008. Now when the proposal reaches with an unexplained delay of four months to the Detaining Authority, the Detaining Authority takes her own time. 5. We have gone through the affidavit of the Detaining Authority and also perused the original record. It appears that the proposal with a detail note was put before the Detaining Authority on 30th August, 2008. The proposal before the Detaining Authority was, “In view of the above observation, the proposal forwarded by the Sponsoring Authority is submitted for consideration and appropriate order of the Detaining Authority”. It is signed without any comment by the Under Secretary and the Joint Secretary. Thereafter, it reaches the Detaining Authority, who remarked, “Proposal of S.A. is valid”. We fail to understand, what does that mean. The Detaining Authority had the material before her. She had the proposal before her. She was required to decide as to whet her the 7 detenu had to be detained or not to be detained in terms of Section 3 of the COFEPOSA Act. But her endorsement that the proposal was valid is neither here nor there. It does not mean whether she was satisfied that the detenu had to be detained in terms of Section 3 of the COFEPOSA Act or not to be detained. The file again was put before the Detaining Authority on 11th September, 2008 i.e. after 12 days when she was informed that, “Letter dated 26th August, 2008 and 1st Septemebr, 2008 have been received on 27th August, 2008 and 2nd September, 2008 from the Additional Commissioner. It may also be noted here that when the learned Detaining authority recorded on 30th August, 2008 that “Proposal of S.A. Was valid”, the letter of 27th August, 2008 to which a reference is made later on was already with the Detaining Authority. This note is disposed of by the Detaining Authority by writing, “Include in relied upon documents”. So, if the Detaining Authority ordered that this document be included in relied upon document, according to the learned Counsel for the petitioner, that means she had already made up her mind to detain the detenu without this document. In any case, learned Counsel for the petitioner submits that this is total non-application of mind. Nothing happened in between 11th September, 2008 and 25th September, 2008. The file discloses that the Detaining Authority drafted the detention order and the 8 grounds of detention and they were put forth for approval of the Detaining Authority. So the Detaining Authority finally dictated and approved the grounds of detention and the order of detention on 25th September, 2008. If, the detention order was drafted and approved, why was not the detention order issued ? Again the respondents waited upto 26th September, 2008 when some more documents were ordered to be included in the relied documents. These documents, according to the note, were received on 19th September, 2008 and 23rd September, 2008. Curious to note that the Detaining Authority approved the order of detention and grounds of detention on 25th September, 2008 but did not take into consideration the documents generated on 19th September, 2008 and 23rd September, 2008 that means they were generated previous to the Detaining Authority approving the grounds of detention and the order of detention. Ultimately, on 3rd October, 2008, she approved again the detention order and grounds of detention and the order of detention was finally issued on 4th October, 2008. 6. We have no where seen on the file that the Detaining Authority had at any time applied her mind and recorded her satisfaction that with a view to preventing the detenu in future from smuggling the goods, it was necessary to detain the detenu. The only thing she has recorded in this 9 context is “Proposal of S.A. is valid”. Besides unexplained delay in initiating the proposal, the delay in passing the order of detention after getting the proposal, it is a case of total non-application of mind. Therefore, the detention of the detenu cannot be upheld. 7. For the reasons aforesaid, we quash and set aside the order of detention bearing No. PSA-1208/CR-238/SPL-3(A) dated 4th October, 2008 passed by the Detaining Authority detaining the detenu – Mohammed Sohil Yunus Saleh and direct that the detenu be released forthwith, if not required in any other case. 8. Rule made absolute in terms aforesaid. Writ Petition is, accordingly, allowed. Sd/- (BILAL NAZKI, J.) Sd/- (F. M. REIS, J.)