1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.455 OF 2008 Saeed Zakir Hussain Malik ) Petitioner r/o. Room No.2, 1st Floor, ) (Brother of Detenu) House No.64, Church Street, Kamani, Kurla (W), ) Mumbai – 400 070. ) ) Shahroz Zakir Hussain Malik ) Detenu versus 1. The State of Maharashtra through the ) Secretary, Home Department, Mantralaya, ) Mumbai-32. ) ) 2. Chandra Iyengar, ) 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 Mr.A.N.Z.Ansari for petitioner. Mr.D.S.Mhaispurkar, APP for State. 2 CORAM : BILAL NAZKI AND A.A.KUMBHAKONI, JJ. DATE OF RESERVING THE JUDGEMENT : 29th July 2008 DATE OF PRONOUNCING THE JUDGEMENT : 14th August 2008 JUDGEMENT : (PER : A.A.KUMBHAKONI, J.) :- . This petition once again raises the same issues which have been dealt with not only by this Court but also by the Supreme Court time and again while dealing with the Habeas Corpus petitions filed questioning the sustainability of a detention order. These issues are :- (i) Whether the detaining authority as also the executing authority have explained properly and/or satisfactorily and/or justifiably the delay that has occurred in execution of the detention order ? (ii) Whether simplicitor on account of the delay that has occurred in execution of the detention order, the detention order is liable to be quashed and set aside and consequently the detenu is liable to be set free ? 3 2. It goes without saying that the answers to these issues always depend upon the facts and circumstances of each case and in spite of various decisions of this court and the Supreme court in that regard it is not possible to have a straight-jacket formula for answering the aforesaid issues which are often raised by petitions questioning the detention orders. As we are required to answer these issues in the facts and circumstances of this case, we must set out few facts, relevant enough, to decide these issues and we do so hereunder. 3. The detention order is issued in exercise of powers conferred by Section 3(1) of The Conservation of Foreign Exchange and Prevention of Smuggling Activigties Act, 1974 (hereinafter referred to as “the said act” for the sake of brevity) whereby the petitioner Saeed Zakir Hussain Malik has been directed to be detained under the said Act. The detenu was arrested on 21st October 2005 and was enlarged on bail on 11th November 2005. The detention order is dated 14th November 2006 and has been admittedly served on the detenu only on 1st February 2008 i.e after a period of about 14 ½ months. 4. Along with the detention order, the detenu has been served with 4 the grounds of detention and a list of documents accompanied by the documents set out therein. In view of the aforesaid two issues alone raised and pressed before us in support of the petition, we may not set out in detail the grounds of detention. Suffice it to say that the grounds of detention state that the detenu played a vital role in the misuse of drawback scheme in the manner set out in the order of detention. It was stated that the detenu has financed the operations for perpetrating the fraud and shared the inadmissible drawback with other racketeers. The detenu is alleged to have played a crucial role in the execution of the modus operandi and the racket for misuse of drawback scheme, defrauding the Government to the extent of crores of rupees. The detenu was found indulging in smuggling activities rendering the detenu liable under section 113(i) and (d) of the Customs Act, 1962. 5. The only ground argued and pressed on behalf of the petitioner is set out in ground no.(vii) of the petition viz. that the authorities have not executed the detention order promptly as required by Article 22(5) of the Constitution. It is contended on behalf of the petitioner that though the detention order was issued on 14th November 2006, admittedly, the same has been served on the detenu after a lapse of more than fourteen and a half months i.e. on 1st February 2008. It is contended that even if it is admitted 5 that the detenu was not available for effecting the service of the detention order, in view of the fact that the detenu was enlarged on bail on 11th November 2005, prompt action ought to have been taken for cancellation of the bail and forfeiture of the amount deposited by the detenu. It is further contended that the detaining authority must satisfy the Court as to the effective steps taken for serving the detention order on the detenu, including an action taken under sections 7(1)(a) and (b) of the said Act. It is, therefore, submitted that the delay caused in taking an action for serving the detention order on the detenu is fatal and has vitiated the detenion order. 6. On the other hand, it is contended by the learned Assistant Public Prosecutor (APP) that the detenu was absconding. Repeated attempts were made by the executing authority for executing the detention order, however, all the efforts were in vain as the detenu had rendered himself non-traceable. In this regard reliance is placed on the affidavits filed not only by the detaining authority but also by the executing authority explaining the efforts made in serving the order of detention on the detenu by giving graphical details about the efforts. It is contended that after realising that the detenu has absconded, an action was also taken under section 7(1)(b) and additionally under Section 7(1)(a) of the said Act and that the detenu did not 6 comply with the same. It is submitted that on the receipt of secret inteligence, certain persons were apprehended and brought to the office of Directorate of Revenue Intelligence (DRI) and that on inquiry with them it revealed that one of those persons who were apprehended, was the detenu. 7. Learned APP relied on three decisions of three different Division Benches of this Court which are as under :- (i) Smt.Poonam Rajeev Pathak Vs. The Union of India and others reported in 2002-ALL MR (Cri).-2182; (ii) Bapu Shantaram Satam Vs. The Union of India and others – Criminal Writ Petition No.1909 of 2003 dated 29th March 2004 (Paragraph 9 onwards); and (iii) Kasim Kadar Kunhi Vs. State of Maharashtra & others reported in 2005-ALL MR (Cri)-1468 (paragraph 8 onwards). By relying on the aforesaid three judgements it is strenuously contended by the learned APP as under :- The detenu cannot play a game of hide and sick with the detaining and/or executing authority. Once appropriate action is taken under section 7(1)(a) and (b) of the said Act, the burden shifts to the detenu. The detention order can be set aside on the aforesaid ground of delay only and only if it is demonstrated by the detenu that though the detenu was 7 available for effecting the service of the detention order on the detenu, no efforts were made in that regard by the concerned Authorities. As in the present case, no such case is made out by the detenu, the order of detention is sustainable in law and in view of the facts of the case. 8. Before dealing with the legal aspects of the matter at some length, we may complete the narration of facts by giving hereunder the relevant chronology of events as reflected by the petition and the affidavits in reply. 21.10.2005 – The detenu was arrested; 11.11.2005 – The detenu was enlarged on bail; 14.11.2006 – The detention order was issued. On the same day the detention order was received by the executing authority. On the same day the executing authority attempted to execute the order of detention by visiting the residential premises of the detenu; 22.11.2006, 25.11.2006, 3.12.2006, 16.12.2006 – On all these days repeated attempts were made by the executing authority to serve the detention order on the detenu by visiting the residential premises of the detenu; 19.12.2006 – The Senior Police Inspector of Crime Branch accordingly forwarded a report of non availability of the detenu; 3.1.2007 – Upon receipt of the aforesaid report, needful was done and ultimately an action was taken under section 7(1)(b) of the said Act by issuing a notification in the Official Gazette directing the detenu to appear; 8 13.1.2007, 15.3.2007 – Again efforts were made of serving the detention order on the detenu by visiting the residential premises of the detenu; 23.4.2007 – A report was submitted by the Senior Police Inspector, PCB, CID to the effect that in spite of issuance of the Notification under section 7(1)(b) of the said Act, the detenu did not appear and consequently, could not be served with the detention order; 30.4.2007 – An action under section 7(1)(a) of the said Act was ordered; 3.5.2007 – Accordingly, an action u/s 7(1)(a) of the said Act was taken; 1.2.2008 – On receipt of secret intelligence, certain persons were apprehended and brought to the office of DRI, when on enquiry it transpired that one of them was the detenu. The detention order with grounds and annextures served on the detenu. 3.3.2008 – The detenu submitted a representation against the order of detention; 14.3.2008 – The representation was rejected; 22.4.2008 – The Advisory Board confirmed the order of detention; 24.4.2008 – The order of confirmation issued and served on the detenu. 9. The legal issue argued at some length in this case was that according to the learned APP, once a notification is issued by taking appropriate steps u/s 7(1)(b) of the said Act, the detaining authority as also the executing authority will have to be presumed to have discharged their 9 burden of proving that they have made all the efforts to execute the detention order. It is contended that thereafter i.e. after issuance of the aforesaid Notification u/s 7(1)(b) of the said Act, the burden shifts to the detenu to show that though the detenu was available for service of the detention order, these authorities have failed to effect the service rendering the detention order unsustainable. 10. On the contrary it is the contention of the Petitioner that the burden to prove that the concerned Authorities have taken prompt action to serve the detention order on the detenu continues to remain on these Authorities even after an action is taken by them u/s 7 of the said Act. It is submitted that the Petitioner is required to discharge the burden cast on the detenu u/s 7(1)(b) of the said Act only to absolve himself of the punishment that may be inflicted on him for the non-compliance with the Notification issued u/s 7(1)(b) of the said Act. 11. The relevant provisions of the said Act reads thus : “7. Powers in relation to absconding persons.- (1) If the appropriate Government has reason to believe 10 that a person in respect of whom a detention order has been made has absconded or is concealing himself so that the order cannot be executed, the Government may- (a) make a report in writing of the fact to a Metropolitan Magistrate or a Magistrate of the First Class having jurisdiction in the place where the said person ordinarily resides; and thereupon the provisions of sections 82, 83, 84 and 85 of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply in respect of the said person and his property as if the order directing that he be detained were a warrant issued by the Magistrate; (b) by order notified in the Official Gazette direct the said person to appear before such officer, at such place and within such period as may be specified in the order; and if the said person fails to comply with such direction, he shall, unless he proves that it was not possible for him to comply therewith and that he had, within the period specified in the order, informed the officer mentioned in the order of the reason which rendered compliance therewith impossible and of his whereabouts, be punishable with imprisonment for a term which may extend to one year or with fine or with both. (2) Notwithstanding, anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) every offence under clause (b) of sub section (1) shall be cognisable.” 12. A perusal of sub-section (1)(b) of section 7 aforesaid demonstrates that this provision can conveniently be bifurcated into two parts. The first part deals with the Notifying in the Official Gazette an order to be issued directing the detenu to appear before a particular officer at a 11 particular place and within a particular time, specified in the order so notified. The second part deals with the consequence of failure of the detenu to comply with the direction contained in the order so notified under the first part. This second part stipulates that on failure of such a detenu to comply with such Notified order, the detenu shall be punishable with imprisonment for a term which may extend to one year or with fine or with both. This second part further states that such detenu however will not be liable for such a consequence i.e. punishment, if the detenu proves the following, in the exact language of the said provision :- (a) that it was not possible for him to comply therewith and (b) that he had, within the period specified in the order, informed the officer mentioned in the order of the reason which rendered compliance therewith impossible and (c) of his whereabouts, It is pertinent to note that all these requirements are conjunctive and not disjunctive, in as much as, the provision uses the term “and” and not 12 “or” therein. Thus the detenu is required to prove that it was not possible for him to comply with the Notified order and that the detenu had, within the prescribed time, informed the concerned officer (set out in the notified order) of the reasons, which rendered compliance of the order by the detenu impossible and further that the detenu within the time specified in the Notified order has also informed about his whereabouts. 13. The aforesaid analysis of sub section (1)(b) of section 7 of the said Act, will demonstrate that the second part of the said provision sets out the consequences to follow where the detenu fails to comply with the first part of the said provision. It also further shows that even if the detenu fails to comply with the first part of the said provision, still the detenu can escape the consequences so given of non compliance i.e. punishment, if the detenu proves that the detenu has taken all the steps set out in the second part of the said provision. 14. Thus, there is no doubt that the second part of the said provision casts burden on the detenu to prove that the detenu has taken all the steps set out therein, but the burden so cast on the detenue by the second part of the said provision is to enable the detenu to absolve from the punishment which 13 may be awarded to the detenu on account of failure to comply with the first part of the said provision. Casting of burden on the detenu in this regard means that if the detenu is able to prove these aspects set out therein, the detenu will not be punished even if the detenu has failed to comply with the first part of the said provision. 15. Now the issue that requires consideration in this case is as to whether casting of such a burden on the detenu to prove that the detenu has taken certain steps set out in the second part of sub section (1)(b) of section 7 of the said Act will also amount to casting of burden on the detenu to prove that the detaining and/or executing authority has failed to execute the order of detention on the detenue promptly resulting into vitiating the detention order itself. 16. The very purpose and object of section 7 needs to be understood for answering the aforesaid issue. An occasion arises to take recourse to an action u/s 7 only if the approprtiate Government has reason to believe that a person against whom a detention order is issued, absconds or is concealing himself so that the order of detention cannot be executed. In such an eventuality, section 7 contemplates certain steps to be taken by the 14 appropriate Government. One of the steps to be taken by the appropriate Government is to issue an order requiring the detenu to appear before a specified officer at a specified place and within a specified time. The order is required to be issued accordingly and is further required to be notified in the Official Gazette so that, in law, it can be presumed that the detenu has not only been informed but also has been made aware that the detenu is required to appear before a notified officer at a notified place within a notified time. Once the order requiring the detenu to appear in the notified manner within a notified time is Notified in the Official Gazette it is not open, in law, for the detenu to contend that the detenu was not aware of such an order. {For effect of notification in the Official Gazette – see (2005) 6 SCC 262 (Paragraph 13,14)}. This requirement of appearance of the detenu is obviously for the purpose that as and when the detenu so appears, the detention order can be executed i.e. the detention order can be served on such a detenu. However, if the detenu fails to comply with such a Notified order by failing to appear accordingly, in law a presumption can be drawn i.e. an inference adverse to the detenu can be drawn that though the detenu is made aware of the requirement of his appearance accordingly ( as set out in the Notified order) the detenu is purposely and deliberately not so appearing. 15 Such a conduct of the detenu will result into drawing of an 'escapable ( and not inescapable)' conclusion that the detenu is absconding or is concealing himself so that the order of detention can not be executed. We have said 'escapable ( and not inescapable)' conclusion because the aforesaid second part provides for such an 'escape' to the detenu i.e. by proving all the ingredients set out hereinabove by dissection of the second part of Section 7 (1)(b) of the said Act. 17. Obviously, therefore, once an order accordingly is issued and notified u/s 7(1)(b) of the said Act and the detenu fails to appear accordingly the detenu cannot, in law claim that he/she was not absconding or that he/she was not concealing himself/herself so that the order of detention can not be executed. Thus the burden in such an eventuality shifts to the detenu to prove that he/she was not absconding or that he/she was not concealing himself/herself so that the order of detention can not be executed. The detenu can discharge this burden by taking all ( and not just one of them) the steps contemplated by the aforesaid second part of the Section 7(1)(b) of the said Act. It is pertinent to note that one of such step is to inform, within the notified time, the notified officer of his whereabouts. This requirement also is also, once again, to enable the executing authorities to execute the 16 detention order. 18. In our view, therefore, the mechanics, as to shifting of burden contemplated by law works as under :- To start with, the burden is on the detaining and/or executing authority to prove that it has taken all possible steps to execute the order of detention promptly and that in spite of its best efforts the order of detention could not be executed because the detenu absconded or that the detenu concealed himself so that the order of detention could not be executed. To demonstrate and prove that detenu absconded or that the detenu concealed himself so that the order of detention could not be executed, the steps contemplated by Section 7 of the said Act are required to be taken, including that an order requiring the detenu to appear before a notified officer at a notified place within a notified time is to be issued and is also to be notified in the Official Gazette. Once such an order is notified the detenu is required to appear accordingly, which enables the authorities to execute the order of detention. If the detenu fails to appear and consequently the order of detention remains un-executed, the burden shifts to the detenu to prove that the detenu took all the steps as contemplated by the second part of Section 7(1)(b) of the said Act, including that the detenu has informed the 17 notified officer of his whereabouts. Once the detenu proves that the detenu took all the steps as contemplated by the second part of the Section 7(1)(b) of the said Act, the burden again shifts back to the authorities to prove that even after the detenu has informed inter-alia of his whereabouts why the authorities have failed to execute the order. If the authorities fail to discharge this burden then obviously an irresistible conclusion will have to be drawn against the authorities of having failed to observe the mandate of Article 22(5) of the constitution, resulting into vitiating the order of detention itself. 19. In our view, the detenu cannot be permitted to take benefit of his own wrong. A detenu cannot render himself unavailable/non traceable, so to say abscond, for a considerable length of time and then come back and say that because the order was not executed i.e. served on the detenu promptly as contemplated by Article 22(5) of the Constitution the order itself is vitiated. The detaining and/or executing authority, no doubt, are bound to be prompt in executing the order of detention, but if the detenu himself/herself makes it impossible for the detaining and/or executing authority to serve an order of detention on the detenu, these authorities cannot be blamed for the same. 18 20. In as much as the punishment aspect of the second part of the said provision under consideration is concerned the same has been prescribed to demonstrate that the compliance by the detenu with the notified order is mandatory and not just directory. It is settled position of the interpretation of statues that once consequences of non-compliance of a provision are set out then such a provision is mandatory and not just directory {see : (2005) 4 SCC 480 – paragraph 34 onwards} . In this case serious penal consequences are provided for the non-compliance with the notified order, which clearly exhibits the vigor/seriousness with which the concerned detenu is required to treat the notified order and act in accordance with the same. The punishment is to be imposed on the detenu not just for failing to prove that the detenu took all the steps as contemplated by the second part of Section 7(1)(b) of the said Act but for having failed to comply with the notified order set out in the first part of the said provision. It will be misreading of the said provision to say that the detenu is required to discharge the burden under the second part of the said provision only and only so that the detenu is not punished appropriately. Reading of the said provision in such a manner would run counter to the main purpose and 19 object of enacting the provisions contained in section 7 of the said Act viz. the detaining and/or the executing authority is able to serve the order of detention on the detenu. In our view, if the burden under the second part of the said provision is