1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 396 OF 2008 Smt. Daksha V. Shah ) Age: 58, Ocupation: Housewife, ) Bejal House, Kumbharwada, ) Agasi, Tal.Vasai, Dist.Thane. ). ... Petitioner. (Mother of the Detenu) Versus 1)The State of Maharashtra ) Through the Secretary to the ) Govt. of Maharashtra, Home ) Department, Mantralaya, ) Mumbai – 400 032. ) 2)Anna Dani ) The Principal Secretary (Appeals ) And Security) to the Government ) of Maharashtra, Home Dept., and ) Detaining Authority, Mantralaya, ) Mumbai – 400 032. ) 3)The Superintendent of Prison, ) The Mumbai Central Prison, ) Arthur Road, Mumbai. ) 4)The Superintendent of Prison, ) Nasik Road Central Prison, ) Nasik. ) 5)Union of India, ) Ayakar Bhavan, Law Department, ) Mumbai. ).. ... Respondents. Mr. G. R. Agarwal for the petitioner. Mr. D. S. Mhaispurkar, Addl.P.P for Respondent Nos.1 to 4. Ms. Ruma Nalavade for Respondent No.5. 2 CORAM : BILAL NAZKI and A. A. KUMBHAKONI, JJ. DATED : 18TH JULY, 2008. JUDGMENT (Per Bilal Nazki, J.): This writ petition has been filed by the mother of the detenu, who had been detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short “COFEPOSA Act”), by an order of detention passed by the Detaining Authority on 1st December, 2007. The order has been executed on 15th December, 2007 and the detenu is at present lodged in a jail. 2. The brief facts leading to the detention of the detenu are : On the basis of a specific intelligence Smt. Sheetal Deepak Shah was intercepted by the officers of DRI Mumbai Zonal Unit outside the Customs Exit Gate of Module 2A, CSI Airport, Sahar, on 2nd March, 2007. She was coming from Dubai to India and had passed through the green channel of customs. After inquiry and search it was found that she was carrying certain cut and polished diamonds and further interrogation and examination under Section 108 of the Customs Act, 1962 was carried on. The Department raided house of the detenu, who is the husband of Smt.Sheetal Deepak Shah. This had become possible when the younger brother of the detenu had come to see Smt. Sheetal Shah, when she was with the Authority. On search having 3 been conducted on the brother of the detenu, certain incriminating materials came to light which led to raid on the house of the detenu. Thereafter on the basis of the material collected by the authority, the order of detention was passed. 3. Learned Counsel appearing for the detenu challenged the order of detention only on two grounds. He submits that the order of detention cannot be sustained in view of the fact that there was an inordinate and inexcusable delay in execution of the order as the order was passed on 1st December, 2007 and it was executed on 25th December, 2007. The second contention on which the order of detention is assailed is that the two material documents were not supplied to the detenu of which reference is made in the grounds of detention. This communication, according to him, required summons to be issued for presence of Mr. Pradipkumar Chotalal Jagada and Mr.Jagdishbhai @ Manish. He submits that in ground 24, it is submitted that these two persons were issued summons on 23rd March, 2007 for appearance on 19th April, 2007. The summons had been received back undelivered on 3rd May, 2007. But these documents were not furnished to the detenu. 4. Coming to the first argument that there was inordinate and inexcusable delay in execution of the order, we have seen the affidavit of the 4 petitioner in which he had stated that he has changed his address in November, 2007 and he had duly informed the Sponsoring Authority about change of his address much before 1st December, 2007. Inspite of this the order of detention was passed on 1st December, 2007 showing the unchanged address of the detenu. The respondents went on searching for the detenu on the earlier address although they were in know of the fact that the detenu had changed his address. 5. In the counter affidavits filed by the Sponsoring Authority and also by the Detaining Authority, it has been submitted that the petitioner had changed his address and had informed about his change of address by his letter dated 22nd November, 2007 which had reached the Sponsoring Authority on 30th November, 2007, who forwarded it to the Detaining Authority. The Detaining authority received this letter on 4th December, 2007 i.e. After the order of detention was passed. He sent this communication to the Executing Authority on 15th December, 2007. 6. The Executing Authority has filed counter affidavit in which he has stated that he did not know about the change of address. Therefore, by their secret enquiry they came to know the changed address of the detenu. The Executing Authority received communication by which the detenu had informed about the change of his address, after execution of the order. This 5 communication of the petitioner about the change of his address was received by him on 5th January, 2008. 7. Thus there is some unexplainable delay of about 10 days as it is not explained by the Sponsoring Authority of keeping back communication from 4th December, 2007 to 15th December, 2007 with him. Although the delay in execution of the order on the detenu after 15th December, 2007 is tried to be explained because of the postal delay, but there is no explanation of delay between the period from 4th December, 2007 to 15th December, 2007. 8. It may be remembered that the delay in execution of the order of detention is not fatal to the order of detention in each and every case. The Court insists that the order of detention should be executed as soon as possible because otherwise the principle of detention gets defeated and if there is a long delay between the order of detention and its execution then even the connection between the previous activities and presumed future activities get disconnected and sever. 9. Many judgments have been brought to our notice by the learned Counsel for the petitioner to canvas that the order of detention be quashed. In all these judgments the principle has been accepted that the delay is not fatal to the detention itself. 10. We feel that the present case is one of such cases in which delay has 6 been sufficiently explained. The detenu cannot be blamed for the delay in execution of the detention order as he had informed the Authority about his change of address and the Detaining Authority also not to be blamed as he had not received the communication sent by the detenu about his change of address till he found out the same by secret inquiry and served the order on the detenu. This is a case in which the Court can hold that the delay has not been explained. 11. Coming to the second ground relating to the alleged vital documents which were not supplied to the detenu. In the counter affidavit, it has been submitted by the respondents that the documents to which reference has been made in para 24, were in fact supplied to the detenu as is evident from Serial Nos.46 and 53 of the Annexure to the grounds of detention. Whereas these documents mention 23rd March, 2007 as the date on which two persons were asked to appear before the Authority. Whereas the date mentioned as 19th April, 2007 was wrongly mentioned and was a typographical mistake. Learned Public Prosecutor has relied on the Judgment of the Supreme Court in Kirti Kumar Nirula v/s State of Maharashtra & Ors. reported in (2005) 9 SCC 65. Relying on that we do not find that the mistake in the date is vital. 12. The learned Public Prosecutor further submitted that in any case this was a summons issued to two persons without making any mention about 7 any connected matters. Therefore, even if a date was wrongly mentioned in the ground of detention, it could have not caused any prejudice to the detenu to make an effective representation. Though the learned Counsel for the petitioner tried hard to convince us that there was a relation between making of representation and between mistaken date of documents supplied, we are not convinced. Even if the petitioner had known that the reference in para 24 of the ground of detention was the documents which were supplied at serial Nos.46 and 53, even then it would not make any difference to his making representation. 7. In view of the above, we do not find any merit in the writ petition, which is hereby dismissed. Sd/- (BILAL NAZKI, J.) Sd/- (A.A.KUMBHAKONI, J.)