1 WP.2188-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2188 OF 2011 Shamsher Singh S/o. Balwinder ] Singh, Age 18 years. ] An Indian Inhabitant, ] Residing at Vand PO ] Lokha, The Patli, District Taran, ] Taran (Punjab). ] Petitioner [Son of detenu] Balwinder Singh. ] Detenu Versus 1. The State of Maharashtra, ] through the Secretary to the ] Government of Maharashtra, ] Home Department (Special), ] Mantralaya, Mumbai – 400 032. ] 2. Medha Gadgil, ] the Principal Secretary ] (Appeals and Security) to the ] Government of Maharashtra, ] Home Department and ] Detaining Authority, Mantralaya,] Mumbai – 400 032. ] 3. The Superintendent of Prison, ] Nasik Road Central Prison, ] Nasik Road, Maharashtra. ] 4. The Officers of Customs, ] Air Intelligence Unit, ] Mumbai. ] ..Respondents. PPD 2 WP.2188-11 .......... Smt. A.M.Z. Ansari, Advocate for the Petitioner. Mrs. M.H. Mhatre, A.P.P. for the State. .......... CORAM : A. M. KHANWILKAR AND P. D. KODE, JJ. DATE OF RESERVING THE JUDGMENT: 03rd OCTOBER, 2011. DATE OF PRONOUNCING THE JUDGMENT: 11th OCTOBER, 2011 ORAL JUDGMENT (PER A. M. KHANWILKAR, J.) : 1. This Writ Petition, under Article 226 of the Constitution of India, takes exception to the detention order passed by the Principal Secretary (Appeals and Security), Government of Maharashtra, Home Department and Detaining Authority dated 23rd December, 2010 against the petitioner's father Shri Balwinder Singh (the detenu) in exercise of powers under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (hereinafter referred to as “the COFEPOSA Act”), with a view to prevent the detenu in future from smuggling the goods. 3 WP.2188-11 2. The detenu was arrested by the officials of the Customs Department on 21st March, 2010 when he was found to be in possession of 6000 Micro SD Memory cards of 2 GB capacity. These foreign origin memory cards were valued at Rs.12,00,000 (CIF) (provisionally) and Rs.18,60,000/- (LMV) (provisionally). While he arrived by Air India Flight No.AI-315 as domestic passenger from Delhi to Mumbai, the goods were seized by the officers. The petitioner, however, was granted bail by the Metropolitan Magistrate when he was produced on the next date i.e. on 22nd March, 2010 in connection with the said offence. The petitioner availed of the bail on 29th March, 2010. While he was in police custody, statement under Section 108 of the Customs Act was recorded. Even after being released on bail, further statement under Section 108 of the Customs Act of the detenu as well as the co-accused came to be recorded by the officials of the Customs Department. 3. It is, however, only on 14th June, 2010, proposal to detain the said Shri Balwinder Singh (the detenu) was forwarded by the Sponsoring Authority, which in the first place, was placed for approval before the Commissioner (AP). 4 WP.2188-11 The Commissioner (AP) approved the proposal on 22nd July, 2010. Thereafter the proposal was placed before the Screening Committee on 28th July, 2010. The same was approved by the Screening Committee on 11th August, 2011. After approval of the Screening Committee, the proposal was placed before the Detaining Authority for consideration on 27th August, 2010. The detention order, however, was passed on 23rd December, 2010, which was eventually served on the detenu. The detenu came to be arrested sometime in April, 2011 and was sent to Nasik Road Central Prison by the Executing Authority. 4. The petitioner, being the son of the detenu, has approached this Court by way of Writ Petition challenging the said detention order. 5. The petition is resisted by the respondents by filing affidavit of the Detaining Authority as well as the Sponsoring Authority. We shall advert to the relevant facts stated in the said affidavit at the appropriate stage. 6. During the course of arguments, the Counsel for the petitioner has primarily raised five broad points to challenge the impugned detention order. The first ground is that there 5 WP.2188-11 is inordinate and unexplained delay in issuing the detention order. So far as this ground is concerned, the argument is threefold – firstly, there was inordinate and unexplained delay in initiating proposal by the Sponsoring Authority; secondly, there was inaction and callousness in processing the file in the office of the Commissioner who was responsible to grant approval to the said proposal; thirdly, the Detaining Authority also dealt with the proposal in a casual manner and there was inordinate and unexplained delay in passing the order. 7. The second main contention is that the detention order suffers from non-application of mind by the Detaining Authority. This contention is twofold – firstly, going by the reply filed by the Detaining Authority it appears that she proceeded to examine the proposal and passed the detention order on the very same day when the proposal was placed before her along with all the relevant documents. The second shade of the said ground is that the affidavit does not explain as to whether the grounds were formulated by the Detaining Authority herself or whether it was prepared by someone else and more so whether the grounds were prepared, 6 WP.2188-11 reviewed and updated by her after receipt of the further documents. 8. The third contention is that since the detenu was released on bail on 29th March, 2010 till the passing of the detention order had not indulged in any prejudicial activity of similar nature. Thus, the live-link had snapped when the detention order was issued on 23rd December, 2010. The Detention Authority has failed to record its satisfaction in this behalf. 9. The fourth ground on which the impugned detention order is challenged is that there was inordinate and unexplained delay of around four months in execution of the detention order. 10. The fifth ground on which the detention order is challenged is that the goods in question which have been seized from possession of the detenu were not prohibited by law. At best, it was a case of an attempt by detenu of causing loss to public exchequer. That issue could have been addressed by imposing penalty as a condition precedent for return of the goods to the detenu. For that, the detention order, by no standard, was just and appropriate action. 7 WP.2188-11 11. On the above grounds, the validity and correctness of the impugned detention order is put in issue. 12. We shall revert to the first contention of the petitioner about the delay in issuance of the detention order. From the pleadings on record, there is no difficulty in accepting the grievance of the petitioner that although the Sponsoring Authority has filed reply affidavit to oppose this Petition, it has failed to indicate as to what prevented the Sponsoring Authority to initiate the proposal immediately after 29th March, 2010 when the detenu was released on bail in connection with the arrest and seizure of memory cards valued at Rs.52,00,000 (CIF) and Rs.68,60,000/- LMV from Hongkong to Mumbai on 21st March, 2010. It is also noticed that the statement of the detenu under Section 108 of the Customs Act was recorded immediately after his arrest on 21st March, 2010. There is nothing in the affidavit of the Sponsoring Authority to indicate as to whether the said statement by itself was not sufficient to proceed against the detenu under the provisions of the COFEPOSA Act. Further more, the affidavit is also silent about the fact that although the further statement of the detenu under Section 108 of the 8 WP.2188-11 Customs Act was recorded on 8th April, 2010 and again on 9th April, 2010 & 3rd June, 2010, in the successive statements, until recording of the statement dated 3rd June, 2010, there was no sufficient material before the Sponsoring Authority to proceed against the detenu under the provisions of the COFEPOSA Act. The proposal was admittedly initiated by the Sponsoring Authority only on 14th June, 2010. Suffice it to observe that there is no explanation, much less sufficient explanation, given by the Sponsoring Authority as to why he did not think it necessary to immediately initiate the proposal as soon as the detenu was released on bail on 29th March, 2010 and more so on the basis of the successive statements recorded by the Officials of the Customs Department under Section 108 of the Customs Act firstly on 21st March, 2010 and thereafter again on 8th April, 2010 and on 9th April, 2010. What was the necessity of waiting till recording of further statement of the detenu on 3rd June, 2010, has not been explained in the affidavit. 13. Similarly, we find that when the proposal was placed before the Commissioner for grant of approval on 14th June, 2010, The Commissioner granted approval only on 22nd July, 9 WP.2188-11 2010. No explanation has been given as to what prevented the Commissioner to process the file with utmost dispatch and to wait for a period of five weeks from the date of receipt of the proposal. Similarly, it is noticed that even the Detaining Authority has not acted with utmost dispatch. Indeed, the Detaining Authority has offered explanation for the period between 27th August, 2010 when the proposal was received till 18th November, 2010. Time taken during this period cannot be stated to be without sufficient cause. However, no explanation whatsoever has been offered by the Detaining Authority as to when the proposal was complete in all respects on 18th November, 2010, why the decision was taken only on 22nd December, 2010. That means the Detaining Authority kept the file pending in her office which was complete in all respects for a period of five weeks without any sufficient cause. 14. Affidavit filed by the Detaining Authority does not reveal that after 18th November, 2010 she was examining the file on day to day basis, much less, at reasonable intervals and what prevented her from taking decision before 22nd December, 2010. On this finding, the petitioner may be 10 WP.2188-11 justified in criticizing the action of the Sponsoring Authority as well as the Sanctioning Authority and also that of the Detaining Authority. However, the contention regarding delay in issuance of the detention order will have to be answered keeping in mind the principle enunciated by the Apex Court in the case of Rajendrakumar Natvarlal Shah Vs. State of Gujarat and others reported in (1988) 3 Supreme Court Cases 153. It may be useful to refer to paragraph Nos.10 to 12 of the said decision, which read thus : “10. Viewed from this perspective, we wish to emphasise and make it clear for the guidance of the different High Courts that a distinction must be drawn between the delay in making of an order of detention under a law relating to preventive detention like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and the delay in complying with the procedural safeguards of Article 22(5) of the Constitution. It has been laid down by this Court in a series of decisions that the rule as to unexplained delay in taking action is not inflexible. Quite obviously, in cases of mere delay in making of an order of detention under a law like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence have been posing a serious threat to the economy and thereby to the security of the nation, the courts should not merely on account of delay in making of an order of detention assume that such delay, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was 11 WP.2188-11 not genuinely reached. Taking of such a view would not be warranted unless the Court finds that the grounds are 'stale' or illusory or that there is no real nexus between the grounds and the impugned order of detention. The decisions to the contrary by the Delhi High Court in Anil Kumar Bhasin v. Union of India & Ors., Crl. W. No. 410/86 dated 2.2.1987; Bhupinder Singh v. Union of India & Ors., [1985] DLT 493; Anwar Esmail Aibani v. Union of India & Ors., Crl. W. No. 375/86 dated 11.12.1986; Surinder Pal Singh v. M.L. Wadhawan and Ramesh Lal v. Delhi Administration, Crl. W. No. 43/84 dated 16.4.1984 and other cases taking the same view did not lay down good law and are accordingly overruled. 11. In the present case, the direct and proximate cause for the impugned order of detention was the importation in bulk of Indian made foreign liquor by the appellant acting as a broker from across the border on the night between December 29/30, 1986. The District Magistrate in the counter- affidavit has averred that it was revealed from the statements of the witnesses recorded on January 4, 1987 that the appellant was the person actually involved. Apprehending his arrest the appellant applied for anticipatory bail on January 21, 1987. It appears that on the same day the appellant (sic police) appears to have made a statement that there was no proposal at that stage to arrest the appellant. However, later it was discovered that there was no trace of the appellant. He was arrested on February 2, 1987 and on the same day he made a statement admitting these facts. Meanwhile, the proposal to detain the appellant was placed before the District Magistrate. It is averred by the District Magistrate that on a careful consideration of the material on record he was satisfied that it was necessary to make an order of detention of the appellant under Section 3(2) of the Act and that accordingly on May 28, 1987 he passed the order of detention. The appellant was taken into custody on May 30, 1987. He had forwarded the report to the State Government on the 28th and the government accorded its approval on the 31st. 12. Even though there was no explanation for the 12 WP.2188-11 delay between February 2, and May 28. 1987 it could not give rise to a legitimate inference that the subjective satisfaction arrived at by the District Magistrate was not genuine or that the grounds were stale or illusory or that there was no rational connection between the grounds and the impugned order of detention. There is a plethora of decisions of this Court as to the effect of unexplained delay in taking action. These are admirably dealt with in Durga Das Basu's Shorter Constitution of India, 8th edn. at p. 154. We will only notice to a few salient decisions. In Olia Mallick v. State of West Bengal, (1974) 1 SCC 594 it was held that mere delay in making the order was not sufficient to hold that the District Magistrate must not have been satisfied about the necessity of the detention order. Since the activities of the detenu marked him out as a member of a gang indulging systematically in the cutting of aluminium electric wire, the District Magistrate could have been well satisfied, even after the lapse of five months that it was necessary to pass the detention order to prevent him from acting in a manner prejudicial to the maintenance of the supply of electricity. In Golam Hussain v. Commissioner of Police, (1974) 3 SCR 613, it was held that the credible chain between the grounds of criminal activity alleged by the detaining authority and the purpose of detention, is snapped if there is too long and unexplained an interval between the offending acts and the order of detention. But no 'mechanical test by counting the months of the interval' was sound. It all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation. The Court has to investigate whether the casual connection has been broken in the circumstances of each case. In Odut Ali Miah v. State of West Bengal (1974) 4 SCC 129 where the decision of the detaining authority was reached after about five months, Krishna Iyer, J. repelled the contention based on the ground of delay as a mere 'weed of straw' and it was held that the 'time-lag' between the dates of the alleged incidents and the making of the order of detention was not so large that it could be said that no reasonable person could possibly have 13 WP.2188-11 arrived at the satisfaction which the District Magistrate did on the basis of the alleged incidents. It follows that the test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention. In Vijay Narain Singh v. State of Bihar, (1984) 3 SCC 14, one of us, Sen, J. observed: [SCC p.18 : SCC (Cri) 365, headnote] "On merits the impugned order cannot be said to be vitiated because of some of the grounds of detention being non-existent or irrelevant or too remote in point of time to furnish a rational nexus for the subjective satisfaction of the detaining authority. It is usually from prior events showing tendencies or inclinations of a man that an inference can be drawn whether he is likely, in the future, to act in a manner prejudicial to the maintenance of public order." See also:Gora v. State of West Bengal (1975) 2 SCR 996; Raj Kumar Singh v. State of Bihar & Ors., (1986) 4 SCC 407 and Hemlata Kantilal Shah v. State of Maharashtra, (1981) 4 SCC 647.” [Emphasis supplied] 15. Even in the present case it is noticed from the grounds of detention that the detenu was acting as a member of a gang indulging systematically in the smuggling of memory cards from Hongkong to Mumbai. In such cases, to borrow the expression of the Apex Court even though there was no explanation for the delay caused by the concerned officials, it would not give rise to legitimate inference that the subjective satisfaction arrived by the Detaining Authority was not genuine or that the grounds were stale or illusory or that 14 WP.2188-11 there was no rational connection between the grounds and the impugned order of detention. 16. The question is : whether the Detaining Authority has recorded its satisfaction that the nexus between the date of incident and passing of the detention order was still in existence. For that, we may usefully refer to the grounds of detention itself in addition to the reply affidavit filed by the Detaining Authority before this Court. The Detaining Authority after adverting to all the relevant documents placed before her along with the proposal to detain Shri Balwinder Singh (the detenu) in the concluding part of grounds of detention has categorically mentioned that since the detenu has engaged himself in such prejudicial activities, it was imperative that Shri Balwinder Singh should be detained under the COFEPOSA Act, 1974 with a view to prevent him from indulging in smuggling activities in future. The detaining authority has noted that the smuggling activities in which the detenu indulged were covered by the provisions of Section 111(l),(m) of the Customs Act, 1962. In paragraph-15 of the grounds of detention, the Detaining Authority has then noted that after receipt of the proposal 15 WP.2188-11 and after scanning the proposal and the documents appended to the proposal, she had applied her mind and arrived at subjective satisfaction and was satisfied with the nexus between the date of incident and passing of the detention order as well as the object of detention of Shri Balwinder Singh has been maintained. 17. It is well established position that it is not open to the Court to sit over the subjective satisfaction recorded by the Detaining Authority as a Court of Appeal. Sufficiency or adequacy of the material considered by the Detaining Authority while recording such subjective satisfaction cannot be the basis to set aside the detention order which is otherwise valid in all respects. Moreover, once the subjective satisfaction about the continuation of the nexus between the date of incident and passing of the detention order is recorded by the Detaining Authority, assuming that there is some delay caused in anterior period, which is not even explained - remained un-explained – that would not make any difference. For, the delay in issuance of the detention order, if any, would get subsumed in the subjective satisfaction recorded by the Detaining Authority that the 16 WP.2188-11 nexus between the date of incident and passing of the detention order as well as the object of detention has been maintained. In our opinion, therefore, the argument under consideration is untenable. 18. Learned APP had placed reliance on another decision of the Division Bench of this Court in the case of Ashok Kumar Vs. State of Maharashtra & Ors., reported in 2003 ALL MR (Cri) 1237. Even the said decision restates the settled legal position that the general rule is that delay simplicitor in issuance of the detention order does not vitiate the order, whereas the order would be vitiated if live-link between the prejudicial activity of the detenu and the rationale of clamping a detention order on him is snapped. 19. As aforesaid, in the present case, the Detaining Authority has categorically noted in the detention order that the live-link has not snapped on the date of passing of the order dated 23rd December, 2010. Accordingly, the first ground of challenge will have to be rejected. 20. That takes us to the second ground urged before us that the detention order suffers from non-application of mind by the Detaining Authority. The first shade of this argument is 17 WP.2188-11 that the proposal was placed before the Detaining Authority, which was complete in all respects, on 22nd December, 2010; and on the same day the Detaining Authority proceeded to pass the detention order. According to the petitioner it is noticed from the record that besides the detention order passed against the detenu in the present case, on the same day the Detaining Authority passed order against co-accused Shri Kuldeep Singh. 21. The argument proceeds that it was physically impossible for the Detaining Authority to wade through the entire proposal in respect of two separate cases on the same day and also formulate grounds for detention and pass the order of detention. The Counsel for the petitioner has placed reliance on the unreported decision of the Apex Court in the case of Shri Umesh Chandra Verma Vs. Union of India and another in Criminal Appeal No.878 of 1985, decided on December 20, 1985. In that case, the detenu was interrogated on 13th June, 1985 for almost the whole day. Thereafter, at 6:00 p.m. on that day he was formally arrested under Section 104 of the Customs Act. On the same night, detention order was made by the Joint Secretary of the 18 WP.2188-11 Government of India. The detention order so passed ran into about 234 pages including the arrest memo prepared at 6:00 p.m. on the same day i.e. on 13th June, 1985. In the fact situation of that case, the Court observed that the Detaining Authority could not have possibly applied its mind to the voluminous documentary evidence which was placed before him and for that reason alone the order of detention was quashed. 22. The next decision pressed into service by the Counsel for the petitioner is a decision of the Division Bench of this Court in the case of Smt. Kirti Sujit Satam Vs. State of Maharashtra & Ors. reported in 2008 ALL MR (Cri) 774. In that case, the Detaining Authority claimed to have perused almost 1712 pages comprising of 154 documents in