1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2380 OF 2007 Dist.: MUMBAI Abdul Majid Tinwalla, ] Age 46 years, an Indian Inhabitant, ] residing at 35B Memonwada Road, ] Mumbai 400 003 ] ...Petitioner (Brother of the detenu) Amin Abdul Karim Tinwala ...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 Ms. A.M.Z. Ansari for the Petitioner Mr. D.S. Mhaispurkar, Additional Public Prosecutor, for the State. 2 CORAM: B ILAL NAZKI and A.P. DESHPANDE, JJ. DATE: APRIL 8, 2008 ORAL JUDGMENT (Per Bilal Nazki, J.) :- This is a petition filed by the brother of the detenu, who is detained by the Detaining Authority by an Order of Detention dated 29th August, 2007 under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ('COFEPOSA Act' , for short). The order was executed on 4th December, 2007. The grounds were served on the detenu immediately on his detention. 2. The brief facts, which led to passing of the Order of Detention against the detenu, were that on the basis of intelligence inputs received by the Directorate of Revenue Intelligence, they had, on 15th December, 2006, apprehended the detenu at the Shivaji International Airport, Sahara, Mumbai. They had questioned the detenu, and on inquiry, they had found that the detenu was travelling from Mumbai to Sharjah and 3 was in possession of foreign currency equivalent to 2.31 lakhs Indian currency. The said currency had not been declared to the Customs Authority. He also ejected two rolls, which were concealed in rectum, and 24 capsules had been ingested, all of which contained assorted foreign currencies. Thereafter, he was arrested, and his statement was recorded under Section 108 of the Customs Act. The arrest was made on 15th December, 2006. On 5th January, 2007, he was granted bail, which he availed of on 7th January, 2007. The Order of Detention was passed more than 7 months after this incident. We have gone through the grounds of detention. This is the only incident, which has been relied upon by the Detaining Authority for the purpose of drawing the satisfaction that the detenu needed to be detained in term of Section 3 of the COFEPOSA Act. 3. The learned counsel for the petitioner has submitted that the Order of Detention cannot be sustained, and she challenges this order mainly on three grounds. The first ground of attack is that the Order of Detention was passed on 29th August, 2007, whereas the incident on the basis of which the Order of Detention was passed had occurred on 4 15th December, 2006. As such, there was an inordinate, unexplained delay in passing the Order of Detention. She further elaborates this argument by saying that inordinate, unexplained delay, thus, would not only render the Order or Detention illegal, but that would also mean that for deriving satisfaction, the Detaining Authority relied on material, which was too remote in point of time, and as such, was stale. The second ground of attack is that the order of the Competent Authority in rejecting the representation of the petitioner was belatedly communicated. The third contention was that even after the Order of Detention was passed on 29th August, 2007, it was not executed till 4th December, 2007, and there was inordinate delay of almost four months in executing the order. 4. We shall take the first ground that there was delay in passing of the Order of Detention. Before going to the facts which are narrated in the Writ Petition, and also counter affidavit filed by the Detaining Authority, it may be pertinent to mention that this contention of the learned counsel for the petitioner is opposed by the learned Additional Public Prosecutor on various grounds. One of the contentions he has 5 raised is that the delay in passing an order of detention, ipso facto, would not render it illegal. 5. He further submits that even if there is delay in passing of the Order of Detention, but there are reasons to believe that there was potentiality and propensity of the detenu committing prejudicial acts, then the detention would not be fatal. He has relied on judgments of this Court, one of the judgments being Rafiq Abdul Karim Merchant v. Rajendra Singh [1998 (2) MhLJ 496], in which, admittedly, there was delay of 7 and ½ months in issuing the Order of Detention. 6. The Court, however, relied on certain facts. One of the facts was that the detenu was a kingpin who was engaging the others to take the currency out of the country. The other factor was the statement made under Section 108 of the Customs Act by the detenu regarding his past activity. The Court also was of the view that on facts of the case, there was no delay in the issuance of the detention order considering the enormity of the prejudicial activities of the detenu and there was no 6 snapping of live link between prejudicial activities of the detenu and the rationale of clamping detention order on him. In paragraph 10A, the Court also held:- “For determining whether such a live link has been severed or not, the propensity and potentiality of the detenu to commit prejudicial activities would be very material. If there is no material to indicate that the detenu had propensity and potentiality to commit them, unexplained delay simpliciter in the issuance of the detention order would be fatal and the same would be vitiated because the live link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him would be snapped. On the converse if there is material to show that the propensity and potentiality of the detenu to commit prejudicial activities was there then despite the unexplained delay in the issuance of the detention order the live link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him would not be lost and the detention order would not be vitiated.” 7. In paragraph 15, the Court said:- “To repeat in our judgment the propensity and potentiality of the detenu was such that on account of the mere delay of 7½ months in the issuance of the detention order, the live link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him did not get snapped.” 7 8. In the present case, we find that the delay beyond February, 2007 has not at all been explained, and in this connection, a reference can be made to the counter affidavit filed by the Detaining Authority. If one goes by the assertion made on pages 56 to 60 of the counter affidavit, it would be noted that about 15 days were taken by the Detaining Authority to ask the Sponsoring Authority to make the correct pagination in the documents generated by the Sponsoring Authority. After the Detaining Authority sent the file back to the Sponsoring Authority for paginating the file correctly, the Sponsoring Authority took another 10 days, i.e., from 9th May, to 18th May, 2007 to correctly paginate the documents and sent the same back to the Detaining Authority. Nothing has been said as to what happened between 18th May, 2007 and 23rd May, 2007 and on 23rd, the Detaining Authority, again, sent back the matter to the Sponsoring Authority for verification of the residential address of the proposed detenu. This work should have been done during the same period for which the Sponsoring Authority was supposed to make correct pagination of the documents. The changed address was also available, which is seen from the record with the Detaining Authority when a letter was sent. 8 Then again, from 29th June, 2007 till 16th July, 2007, only notes were prepared by some others in the office of the Detaining Authority, and also, 20 days' time was wasted on that. Then the file went from one ladder to another ladder, and reached the Detaining Authority on 18th July, 2007, but it took her 6 days to consider the issuance of detention order, and the Detaining Authority passed such a direction on 23rd July, 2007. Even after passing the direction on 23rd July, 2007 to issue the detention order, the detention order was eventually issued on 28th September, 2007. Even after approving the grounds of detention, approving the order of detention, and directing the order of detention be issued, it took the actual order one month and 5 days to be issued. In this view of the matter, one cannot agree with the learned Additional Public Prosecutor that the delay had been explained. 9. The learned Additional Public Prosecutor has also relied on judgments of High Court in Usman Gani Yakubali v. State of Maharashtra and Ors. [2002 ALL MR (Cri) 2148] and Shaikh Mohammed Saeed Karamatullah v. State of Maharashtra & Ors. [2004 (1) Bom.C.R. (Cri.) 507]. In view of our finding that the delay has not at all been explained, 9 we do not think that these judgments would apply, particularly in view of the judgment of the Supreme Court, which we have relied in our earlier judgment in Criminal Writ Petition No. 2167 of 2007 (Sajid Dilawar Khan v. The State of Maharashtra & Ors.). The judgment of the Supreme Court in V.C. Mohan v. Union of India & Ors. is reported in (2002) 3 Supreme Court Cases 451. Paragraphs 8 and 9 of this judgment are quoted as under:- “8. Significantly, though the incident noticed above took place on 24-7-2000 and other important documents have come into existence immediately thereafter, the detaining authority did not pass the detention order immediately but only after a lapse of about seven months i.e. on 1-3-2001. During this interregnum, however, the detenu admittedly did not indulge in any illegal activities and it is in this context Mr.Mani, learned advocate appearing in support of the petition with his usual eloquence, contended that the incident of 24-7-2000 had become stale and irrelevant and it is too remote in point of time and as such, question of there being any detention order on the basis thereof would not arise Mr. Mani further contended upon reference to the fact situation as adverted to hereinbefore in this judgment that the detenu was arrested on 25-7-2000 for offences under Sections 132 and 135 of the Customs Act and was remanded to judicial custody on 26-7-2000. The detenu was however enlarged on bail by the learned Additional Chief Metropolitan Magistrate (EO III) on 11-8- 2000 and the Department after completing the investigation issued the required show-cause notice on 19-9-200. 9. The factual score thus lends a substantial credence to 10 the submissions of Mr Mani as regards the charges being too stale to be taken recourse to in the matter of issuance of the order of detention on 1-3-2001 more so, having regard to the admitted factum of non-involvement of the detenu in any illegal activity and thus consequently too remote as well in point of time to be the basis of an order of detention.” In this judgment, the Supreme Court saw the delay from an additional angle as well. The first angle was whether there was an unexplained delay, and if there was unexplained delay, then the detention order should be quashed. Now, the second angle added to the same argument, viz., that if there is an inordinate delay, that would make the grounds stale. 10. In the present case, the detenu was arrested on 15th December, 2006, and that was the incident, on the basis of which the detention order was passed. From 15th December, 2006 till the order of detention, i.e., 29th August, 2007, there was no allegation against the detenu that he had participated in any activity which could be prejudicial to the conservation of foreign exchange or prejudicial to the objects of Section 3 of the COFEPOSA Act. Therefore, in our view, the order of detention cannot be sustained on this ground. Since we are quashing the order of detention on this ground, we do not intend to decide the other two grounds raised by the learned counsel for the petitioner. 11 11. The impugned Order of Detention dated 29th August, 2007 issued by the Secretary to the Government of Maharashtra, Home Department (Preventive Detention), and Detaining Authority, against the detenu, Amin Abdul Karim Tinwala, is quashed. The respondents are directed to release the detenu forthwith, if not required in any other case. The petition is accordingly allowed. BILAL NAZKI, J. A.P. DESHPANDE, J.