1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1722 OF 2008 Bittu Choith Nanikram Harchandani, ] Age 30 years, an Indian inhabitant, residing at ] Barrack No. 868, Room No.11, Sector-19, ] Ulhasnagar, District Thane 421 003 ] ...Petitioner ] (son of the detenu) Versus 1. The State of Maharashtra, ] through the Additional Chief Secretary to ] the Government of Maharashtra, ] Home Department (Special), Mantralaya, ] Mumbai 400 032 ] 2. Ms. Anna Dani, ] the Principal Secretary to the Government of ] Maharashtra, Mantralaya, Mumbai 400 032 ] 3. The Superintendent of Prison, ] the Mumbai Central Prison, Arthur road, Mumbai ] 4. The Superintendent of Prison, ] Nashik Road Central Prison, Nashik Road, ] Maharashtra ] ...Respondents. Mrs. Aisha Zubair Ansari for the Petitioner Mrs. A.S. Pai, Additional Public Prosecutor, for the State. CORAM: B ILAL NAZKI and A.R. JOSHI, JJ. 2 DATE: FEBRUARY 13, 2009 ORAL JUDGMENT (Per Bilal Nazki, J.):- This petition has been filed by the son of the detenu, the detenu being Harchandani Choith Nanikram (hereinafter referred to as “the detenu”), challenging the Order of Detention dated 25th July, 2008, which was executed on 29th July, 2008. The Order of Detention has been passed in terms of Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter “COFEPOSA”). 2. The brief facts leading to passing of the Order of Detention against the detenu are that officers of the Customs Department intercepted the detenu at C.S.I. Airport at 22.15 hours on 26th March, 2007 when the detenu was about to depart for Singapore by Jet Airways Flight No. 92 0012. He was found in possession of Jet Airways passenger ticket and one Jet Airways Boarding Card and also Jet baggage claim tags. On being questioned, he stated that he was in possession of US $ 2400 and Rs.12000/- Indian Currency. 3 Being not satisfied with his reply, a search was conducted by the authorities, and 9100 Euros, 1060 British Pounds, 1000 Qatar Riyals, 6000 Hongkong Dollars, 5000 Indian Rupees, bundles of 3500, 4000 and 46200 Euros and 1000 UAE Dirhams were recovered from the detenu, besides US $ 2400. They were collectively equivalent to Indian Rs. 38,00,671/-. Thereafter, the arrest of the detenu was effected. His statement was recorded. He moved an application for bail before the trial Court on 27th March, 2007. He was bailed out on the same day. 3. The Order of Detention has been challenged on various grounds, including the ground that there was unexplained delay between the incident of 26th March, 2007 and the Order of Detention which was passed on 25th July, 2008. 4. Counter-affidavits have been filed by the Detaining Authority as well as the Sponsoring Authority, and records have been produced. We have perused the same and heard learned counsel for the petitioner as well as the learned Additional Public Prosecutor. 5. It appears that, for the first time, the proposal of detention was 4 initiated on 8th August, 2007, and when it went to the Detaining Authority after the usual grill, the record had reached the Detaining Authority on 5th September, 2007 – almost a month after the proposal was received in her office. On 5th September, 2007, the Detaining Authority directed that the Investigating Officer be called on 10th, so that the matter could be discussed with him. On 10th September, 2007, the Detaining Authority wrote: “Discussed with I.O. Pl. get translation of documents. Then put up.” Therefore, it is not known whether the Detaining Authority, on that day, was satisfied that the detenu needs to be detained or not, because she merely stated that the matter was discussed with the I.O., and she directed translation of documents. 6. Thereafter, in between, many things happened, and on 9th October, 2007, the Detaining Authority passed the following order:- “Include in relied upon documents. Detention order to be issued after receipt of Sindhi translation.” 7. Therefore, it appears that on 9th October, 2007, the Detaining Authority had prepared her mind, and was of the view that the Detention 5 Order should be issued. Only hitch was that the Sindhi translation of the relied-upon documents was not ready. 8. Thereafter, the matter appears to have again been put up to the Detaining Authority on 19th October, 2007, when she wrote:- “Translation not yet rec'd. Also check if reply to show cause notice is received. ” In the meantime, it appears that the show-cause notice issued to the detenu was also received in the office of the Detaining Authority. 9. Thereafter, from 19th October, 2007, the matter remained, and ultimately, it reached the Detaining Authority on 15th December, 2007, i.e., more than two months after the earlier order. It appears that in between these two months, the officers were dealing with a pre-detention representation made by the detenu. Although there is no requirement for the Detaining Authority to consider any pre-detention representation, yet the Detaining Authority spent two months in considering the pre-detention representation and rejecting it. 10. It appears that from 15th December, 2007, nothing was done till 22nd January, 2008, which is about 5 weeks, when, again, certain 6 documents were received from the Assistant Commissioner of Customs, and the Detaining Authority, on 4th February, 2008, directed that these documents be included in relied-upon documents. It appears from the record that on 4th February, 2008, the Detaining Authority had already ordered that Detention Order should be issued. She had also ordered rejection of the representation of the detenu. She had also ordered that re-generated material received on 22nd January, 2008 be added, but even then, nothing appears to have been done till 27th December, 2008, when some more documents were received from the Assistant Commissioner. 11. This matter comes before the Detaining Authority on 10th March, 2008, although the re-generated document was received on 27th February, 2008, but it reaches the detaining Authority on 10th March, 2008, and she again wrote: “Include in relied upon documents.” Again, nothing was done from 10th March, 2008 till 19th March, 2008, when certain more documents were received. The file is seen by the Detaining Authority on 27th March, 2008 when, again, she wrote:- “Include in relied upon documents.” 12. Again, on 29th April, 2008, certain documents were received, 7 but order was not passed in between 29th March, 2008 till 29th April, 2008, and nothing was done. Even after receiving one re-generated document, which was merely a copy of the Order of the Magistrate, rejecting the application of the detenu to allow him to visit a foreign country, the matter was not put up before the Detaining Authority till 15th May, 2008. Again, she wrote:- “ Include in relied upon documents.” 13. Then, ultimately, a draft is approved on 27th May, 2008. Again, another representation is entertained on 2nd June, 2008 made by the detenu, which is rejected subsequently. Certain documents are again re-generated, and approval of the detention is made on 18th July, 2008. 14. We have given in somewhat details the steps taken by the Detaining Authority in this case, only to show that at different points of time, much time was lost. There is no explanation for waiting till further documents are re-generated. The Detaining Authority made up its mind on the material before it that the Detention Order should be issued. Since there is an un-explained delay from the date of the incident till the date of detention, it can be presumed that the live link between the 8 activities prejudicial to conservation or augmentation of foreign exchange had been severed. 15. For this reason, we allow the petition, quash the Order of Detention dated 25th July, 2008, and direct that the detenu, Mr. Harchandani Choith Nanikram, be released forthwith, if not required in any other case. Since we are quashing the detention on the ground mentioned hereinabove, we have not considered other grounds pleaded by the petitioner. BILAL NAZKI, J. A.R. JOSHI, J.