ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1290 OF 2008 WRIT PETITION NO.1290 OF 2008 WRIT PETITION NO.1290 OF 2008 Abdul Rehman abdul Sattar Age 48 years, R/o. 168-A, Amina Building, 1st Floor, R.No.6,Madanpura, Mumbai-400 008. ...Petitioner. (Brother-in-law of the detenu) Vs. 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, Mumbai Central Prison, Arthur Road, Mumbai. 4. The Superintendent of Prison, Nashik Road Central Prison, Nasik Road, Maharashtra. ...Respondents. Mrs.A.M.Z.Ansari, for the Petitioner. Ms.A.S.Pai, APP for the State. CORAM CORAM CORAM : BILAL : BILAL : BILAL NAZKI & NAZKI & NAZKI & ANOOP ANOOP ANOOP V.MOHTA, JJ. V.MOHTA, JJ. V.MOHTA, JJ. DATED DATED DATED : 27TH JANUARY, 2009. : 27TH JANUARY, 2009. : 27TH JANUARY, 2009. ORAL ORAL ORAL JUDGMENT (PER- BILAL NAZKI, J.) JUDGMENT (PER- BILAL NAZKI, J.) JUDGMENT (PER- BILAL NAZKI, J.):- This Petition has been filed by the brother-in-law of the detenu, challenging the order of ( 2 ) detention passed on 19th June, 2007 under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short "COFEPOSA Act"). 2. The order was executed on 27/05/2008, after the detenu surrendered. Counter affidavits have been filed by the Detaining Authority as well as the Sponsoring Authority and also the Executing Authority. 3. We have heard the learned Public Prosecutor, the learned Counsel appearing for the Petitioner and also perused the record. On various grounds the Detaining Authority came to the subjective satisfaction that he is likely to revert to similar activities in future and therefore, it was necessary to detain him. The detention has been initiated on the basis of incident, which took place at Chhatrapati Shivaji International Air Port, Sahar, Mumbai on 7th/8th November, 2006. During that night, the detenu was travelling from Mumbai to Dubai and on interception two passports and the currency of different countries were found in his person. Besides the foreign currency, certain diamonds were also seized from his custody. His statement was recorded on 08th November, 2006. The foreign currency ( 3 ) and diamonds were confiscated under the Customs Act. Thereafter, he was taken in the custody. 4. He moved bail application on 13th November, 2006 and was released on bail on 20th November, 2006. The detention order was passed on 19th June, 2007 i.e. 7 months after the detenu was released on bail. The learned counsel appearing for the Petitioner challenges the order of detention mainly on two grounds. One is that there was a delay in passing the order of detention and the other is as such there was no scope for coming to a conclusion that the detenu had continued with his prejudicial activity from 20th November, 2006 till 19th June, 2007. Similarly, the learned counsel appearing for the Petitioner submits that finally the detention order was passed on 19th June, 2007 i.e. almost 7 months after the detenu had been bailed out and there was no live link between the prejudicial activities and the detenu. These submissions have been contested by the otherside. 5. The learned Public Prosecutor has drawn our attention to the counter affidavits and submitted that the Respondents were collecting materials in order to come to a conclusion as to whether the detention is ( 4 ) necessary or not, therefore, there was some delay in passing the order of detention. She further submits that the Petitioner himself was evading from arrest after 19th June 2007 and could not be served till 25/07/2008 as such he cannot take benefit of his evasion of arrest. 6. The learned counsel appearing for the Petitioner drawn our attention to the reply filed by the Detaining Authority, Sponsoring Authority and Executing Authority to canvass that in fact no material has been collected from 20th December, 2006 till 13th March, 2007 and the detenu was called upon only on 15th February, 2007 to record his statement, although the detenu had already given statement to the Authority. In the affidavit of the Assistant Commissioner, Customs, who is Sponsoring Authority, it is stated that "thereafter on 20.12.2006, the proposal was initiated before the Screening Committee which was considered by the Screening Committee on 21.12.2006. The minutes of the Screening Committee was received by us on 22.12.2006. Thereafter, the investigation was still in progress, as during the course of investigation on 15.2.2007 statement of the detenu was recorded." We have seen the copy of the statement dated 15th February, 2007. It is the ( 5 ) statement of the detenu himself and he has nothing added thereafter to what he had stated earlier. Therefore, in fact, the proposal was initiated for detention of the detenu on 20th December, 2006 and was pending till the detention order was passed on 19th June, 2007. No material was collected against the detenu. This is further substituted from the affidavits of the Detaining Authority, the Sponsoring Authority and also the Executing Authority. Since, we found that there was considerable delay in passing the order of detention without any reason and there was no link between the prejudicial activities and the detenu. On this ground alone, we hold that the order of detention cannot sustain. We do not propose to deal with any other ground since we are holding that there was a delay in execution of the detention order. 7. For this reason, the Writ Petition is allowed. The order of detention bearing No.PSA-1107/CR-57/SPL-3(A) dated 19th June, 2007 is quashed and set aside and detenu - Javed Ahmed Riyaz Ahmed be released forthwith, if not required in any other case. Rule made absolute accordingly. ( 6 ) (ANOOP (ANOOP (ANOOP V. MOHTA, J.) V. MOHTA, J.) V. MOHTA, J.) (BILAL (BILAL (BILAL NAZKI, J.) NAZKI, J.) NAZKI, J.)