- 1 - 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 WRIT PETITION WRIT PETITION NO.1627 OF 2004 NO.1627 OF 2004 NO.1627 OF 2004 Musthafa Ahamed Dossa ...Petitioner vs. 1. The Joint Secretary, Government of India, Ministry of Finance, Department of Revenue, New Delhi. 2.The Inspector of Police, PCB, CID, Crawford Market, Mumbai. 3.State of Maharashtra ...Respondents Shri Rizwan G. Merchant with Shri Sultan A. Khan for the Petitioner Shri B.A.Desai, Addl.Solicitor General with Shri D.A.Nalavade and Ms Revati Mohite-Dere for the Respondent. CORAM: CORAM: CORAM: SMT.RANJANA DESAI & SMT.RANJANA DESAI & SMT.RANJANA DESAI & A.S.OKA,JJ. A.S.OKA,JJ. A.S.OKA,JJ. DATE DATE DATE ON WHICH PETITION WAS LASTLY HEARD: DECEMBER 21, 2004. ON WHICH PETITION WAS LASTLY HEARD: DECEMBER 21, 2004. ON WHICH PETITION WAS LASTLY HEARD: DECEMBER 21, 2004. DATE DATE DATE OF PRONOUNCEMENT OF JUDGMENT : FEBRUARY 1,2005. OF PRONOUNCEMENT OF JUDGMENT : FEBRUARY 1,2005. OF PRONOUNCEMENT OF JUDGMENT : FEBRUARY 1,2005. ORAL JUDGMENT : (Per Abhay S. Oka,J.) (Per Abhay S. Oka,J.) (Per Abhay S. Oka,J.) 1. The Petitioner Mustafa A. Dossa is the detenu against whom the order of detention dated 25th March 1992 has been passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,1974 (for short COFEPOSA). The challenge in this Petition under Article 226 of Constitution of India is to the said order of detention passed by the Respondent No.1. - 2 - 2. The impugned order dated 25th March 1992 was passed against the Petitioner with a view to preventing him from smuggling goods in future. The allegation made in the order of detention is that the Officers of Directorate of Revenue Intelligence (hereinafter referred to as DRI) at Manglore received a credible information that a truck bearing registration No.KA-25-1254 carrying contraband silver bricks would be going towards Indore after passing through Karkala from Padubidri side on 8th March 1992 at about 9.00 a.m. The Officers of D.R.I. Mangalore proceeded to the spot and started checking all the trucks passing on that route. The said Officers stopped the said truck. In the cabin of the truck there was one more person besides the driver. The driver informed the Officers of D.R.I. that his name was Rameshkumar and he was coming from Udupi and going towards Kolhapur. He stated that he was not carrying any goods in the truck. The another person in the cabin disclosed his name as Madan Singh S/o Amar Singh. The said Rameshkumar also produced certain documents showing the particulars of registered owner of the truck and the Insurance Policy. Though the driver and the said another person denied that no goods have been concealed in the cabin of the truck, when the Officers examined the cabin of the truck, they found that cabin was specially designed to carry and conceal silver bricks. The Officers found smuggled sliver bricks in gunny packages. The truck was brought to the office of D.R.I. at Mangalore. A search of the cabin of the truck showed that - 3 - there were 75 metalic bricks. One pistol was also found along with 50 live cartridges. An expert in silver was summoned who opined after testing the silver bricks that the same were made of silver of 999 purity. The total weight of the silver bricks was found to be 2676.394 kgs. The expert opined that the silver bricks are of foreign origin. The approximate value of the said silver bricks was 2,14,11,152/- and the cost of pistol and 50 cartridges was Rs.41,180/-. The said silver bricks and pistol were smuggled into India in violation of provisions of Customs Act,1962. Along with the silver bricks one Pistol and 50 live cartridges were also seized. 3. The D.R.I. Authorities recorded a statement of one Abdul Khader of Uchila under Section 108 of the Customs Act,1962. He stated that he was doing smuggling for last 25 years and for last 5 years he was working with the gang headed by the Petitioner who was also known as Tiger Musthafa or Manju Musthafa. At the relevant time the Petitioner was at Dubai from where he was sending gold regularly to the Indian coast. In the said statement, Abdul described the manner in which silver bricks were smuggled in India. The statement of Tanaji Kanchan was also recorded on 9th March 1992. under Section 108 of Customs Act, 1962. He stated that he was working with Abdul Khader of Uchila. He described the various acts of smuggling of silver. Similarly, a statement of one Raghunath Kotian was also recorded on 9th March 1992 under Section 108 of Customs Act, 1962. Rameshkumar, the driver of the truck - 4 - also gave a statement under Section 108 of Customs Act,1962 describing in detail as to how he met Abdul Khader at Uchila and as to how he was given a truck in which 75 silver bricks were concealed. A statement of Madan Singh was also recorded. After having considered the statements, the Respondent No.1-detaining authority recorded subjective satisfaction that the Petitioner was engaged in smuggling goods into India. Further satisfaction was recorded that the Petitioner was likely to indulge in prejudicial activities in future and therefore, it was necessary to detain the Petitioner under COFEPOSA. 4. Respondent No.3-State of Maharashtra also passed an order of detention dated 30th January 1996 against the Petitioner under Section 3(1) of COFEPOSA. It must be noted here that after the impugned order of detention was passed, the Petitioner absconded. He went to Dubai. The Petitioner was brought to India only in March 2003 as an offence in serial Bomb Blast was registered against the Petitioner and others under TADA Act and was detained in Mumbai. The impugned order of detention provided that the Petitioner shall be kept in Central Prison at Bangalore. The Petitioner was served with order of detention dated 30th March 1996 after he was brought to India in connection with the Bomb Blast cases. The case of the Petitioner was placed before the Advisory Board. The Advisory Board was of the opinion that there was no sufficient cause for detention of the Petitioner. The State of - 5 - Maharashtra acting on the opinion of the Advisory Board revoked the order of detention dated 30th January 1996. There was one more order of detention passed by the State of Maharashtra against the Petitioner on 28th August 1992 under the provisions of COFEPOSA. According to the Petitioner, he was not made aware about the said order of detention. However after he was served with the order of detention dated 30th January 1996 passed by the State of Maharashtra, he became aware about the order dated 28th August 1992 passed by the State of Maharashtra. Before execution of the order dated 30th January 1996 the Petitioner by his letter dated 5th April 2003 sent on his behalf by Shri Qureshi M. Attal, Advocate addressed to the Under Secretary of Home Department, Mantralaya, Mumbai, informed the State Government that the Petitioner was in custody for a period of two weeks in Arthur Road jail. By the said letter it was informed that if any detention order was pending against the Petitioner, the Department was at liberty to execute the said detention order either at CBI office or at TADA Court after adopting proper legal procedure. The case of the Petitioner is that only after the said letter was sent by his Advocate, he was served with the order dated 30th January 1996. 5. The Advocate for the Petitioner Shri R.G.Merchant by his letter dated 17th December 2003 addressed to the Principal Secretary to the Government of Maharashtra and the Respondent No.2 herein i.e. Inspector of Police, PCB CID, Mumbai brought - 6 - to their notice that the order of detention dated 28th August 1992 passed by the State Government against the Petitioner was pending for execution. By the said letter, the concerned Authorities were requested to take steps to ensure immediate execution of the said order. It is the case of the Petitioner that from the documents supplied to the Petitioner along with order of detention dated 30th January 1996 the Petitioner came to know that the impugned order of detention has been passed by Respondent No.1 on 25th March 1992. Therefore, by a letter dated 17th December 2003 sent on behalf of the Petitioner by his Advocate addressed to the Respondent No.1, the Respondent No.2, Deputy Director, Directorate Revenue Intelligence, Mangalore, Deputy Director, Revenue, Directorate of Intelligence, Colaba, Mumbai, the Authorities were called upon to take immediate steps to execute the impugned order. According to the Petitioner an Application being Misc. Application No.11 of 2003 was made before the designated Court under TADA Act through Mumbai Central Prison, Mumbai in pending case bearing BBC-1-A of 1993. In the said Application, the Petitioner prayed for direction from TADA Court to the Respondents in the said application to serve orders of detention issued in the year 1992 by Respondent No.1 and Respondent No.3. An Affidavit-in-reply was filed to the said application before the TADA Court by Shri Ramesh Shinde, a Deputy Secretary to the Government of Maharashtra, Home Department, Mantralaya, Mumbai. In the said Affidavit-in-reply it was stated that the order dated 28th - 7 - August 1992 passed by the State Government has been revoked on 27th January 2004. A copy of order dated 27th January 2004 was annexed to the Affidavit-in-reply. In the said order dated 27th January 2004 it was stated that State Government was of opinion that no purpose will be served by executing the detention order dated 28th August 1992. In the said order it was noted that the Petitioner was under judicial custody of the designated Court under TADA Act. 6. The Petitioner made representation dated 6th February 2004 addressed to Respondent No.1 calling upon Respondent No.1 to revoke the impugned order of detention. In the said representation which was made by the Petitioner through his Advocate, a reference was given to the order passed by the State Government on 27th January 2004 by which order of detention dated 28th August 1992 was revoked. Similarly, a representation was made by the Advocate appearing for the Petitioner on 10th February 2004 which was addressed to Respondent No.1. Reliance was placed in the said representation on a decision of Kerala High Court. The Advocate for the Petitioner made further representation dated 11th March 2004 pointing out that no reply was sent by Respondent No.1 to earlier representations. It was pointed out that if no steps were taken by Respondent No.1, the Petitioner will approach the Hon’ble High Court by filing a Writ Petition. The Petitioner on 7th April 2004 filed Criminal Writ Petition No.667 of 2004 in this Court inter alia - 8 - for quashing and setting aside the impugned order of detention on the ground of delay in execution of the said order. According to the Petitioner a copy of Writ Petition was sent to office of Respondent No.1 on 8th April 2004. The said Writ Petition came before the Division Bench of this Court on 12th April 2004, when the learned Counsel for the Respondents in the said Writ Petition took time for taking instructions. On 24th April 2004 the impugned order of detention was served on the Petitioner. As the impugned order was served on the Petitioner, the said Writ Petition was disposed by the Division Bench of this Court by order dated 26th April 2004. 7. The Petitioner has challenged the order of detention by filing this Writ Petition on various grounds set out in the Petitioner. The Petitioner contended that there was a gross delay in execution of the order of detention. It is also contended in the Petition that before execution of the impugned order of detention, the detaining authority has not recorded satisfaction that there was imminent possibility of the Petitioner being released on bail in the case under TADA Act under which he was in custody and that looking to the propensity and potentiality of the Petitioner, no satisfaction has been recorded that the impugned order of detention was required to be given effect to even after lapse of period of 12 years from the date of passing the impugned order. There was a gross delay in considering the representations dated 6th February 2004, 10th February 2004 and 11th March 2004 praying - 9 - for revocation of impugned order. The Petitioner has also made grievance about non-placement of translation of endorsements in Kannada language on certain documents placed before the detaining authority and therefore, there was non-application of mind. It is also submitted that non-supply of translation of the said endorsements to the Petitioner in Urdu language has resulted in breach of fundamental rights guaranteed under Article 22(5) of Constitution of India. The Petitioner urged that non-supply of translation in Urdu language of the said documents prevented the Petitioner from making effective representation against the order of detention. Lastly, it is contended that certain documents which were placed before the detaining authority came into existence on 24th March 1992 and therefore, while passing the order of detention on 25th March 1992 there was no sufficient time available to the detaining authority to apply his mind to the said documents. 8. The Respondent No.1 has filed Affidavit-in-reply and opposed the Petition. In the Affidavit-in-reply Respondent No.1 has described the Petitioner’s prejudicial activities of smuggling. In the said Affidavit-in-reply and in particular paragraph No.3 thereof Respondent No.1 has set out various dates and events leading to passing the order of detention and execution of the order of detention. It is submitted in the Affidavit-in-reply that a Notification under Section (7) (b) of the COFEPOSA was issued on 3rd June 1992 and Red Alert - 10 - No.30A/1192 was issued against the Petitioner on 10th July 1992. Respondent No.1 stated that since the Petitioner absconded and was out of India, order of detention could not be executed. It was stated that the Petitioner was declared as having absconded and was brought to India only in March 2003 as an accused in serial Bomb Blast case and was lodged in Central Prison, Mumbai. It was contended that since the impugned order of detention requires the Petitioner, to be detained in Bangalore Prison the same could not be executed. It is the case of Respondent No.1 that in Criminal Writ Petition No.667 of 2004 which was filed by the Petitioner on 12th April 2004, the Division Bench of this Court directed the Respondents to execute the order of detention. Respondent No.1 contended that considering the peculiar facts of the case there was no unexplained delay in executing the order of detention. Respondent No.1 relied upon the order dated 22nd April 2004 passed by him which shows awareness about the judicial custody of the Petitioner in TADA case and by the said order, detention of the Petitioner under the impugned order was directed to be made in the Central Prison at Mumbai instead of Central Prison at Bangalore. 9. It is stated in the Affidavit-in-reply that representations made by the Petitioner through his Advocate were duly considered and a reply was sent to the Petitioner and his Advocate on 24th March 2004. It is stated in the Affidavit-in-reply that delay in execution of the said order - 11 - was as a result of recalcitrant or refractory conduct on the part of the Petitioner. In paragraph No.9 of the reply it was stated that during the period when the Petitioner was absconding, he repeatedly indulged in smuggling of foreign exchange and Indian currencies and was involved in serial Bomb Blast case in the year 1993. It was stated that live link between the grounds of detention and purpose of detention is not snapped due to delay in service of detention order. It is submitted in the reply that the endorsement in Kannada language on certain documents was inconsequential and same does not affect the application of mind by the detaining authority. It is stated that the documents at page Nos.101 and 123 and 124 of compilation of documents supplied to the Petitioner were not material documents which could have affected the subjective satisfaction of the detaining authority. It is stated in the reply that translation of all the relevant documents in Urdu language was served on the Petitioner on 21st May 2004. The Respondent No.1 stated that the Petitioner had knowledge of both Hindi and English languages. It is stated that the documents dated 24th march 1992 were considered by the detaining authority. The said documents did not require much time for consideration. Lastly, it is stated that the Petitioner had ran away from the country after passing of the order of detention and has been indulging in several illegal activities with the help of his associates inside and outside the country. The Petitioner and his associates were running smuggling racket by placing - 12 - themselves in Dubai and if the Petitioner was allowed to escape the same will be jeopardise the country’s economy. 10. Shri Merchant, learned Counsel for the Petitioner and Shri B.A.Desai, Additional Solicitor General have made extensive submissions before us. Both of them have also tendered their respective written submissions for our consideration. 11. Shri Merchant, learned Counsel for the Petitioner submitted that though the Respondents were aware that the Petitioner was in judicial custody of the TADA Court in the Bomb Blast cases, no steps were taken for service of impugned order of detention. Apart from sending letters to various authorities, the Petitioner filed an application on 2nd January 2004 before the designated Court under TADA Act seeking directions against Respondent Nos.1 and 2 to execute the orders of detention passed by the Respondent No.1. The State Government responded to the said application by filing Affidavit bringing on record that the order of detention dated 28th August 1992 passed by the State Government has been revoked. However, Respondent No.1-Union of India even after service of the said application did not file any reply before the TADA Court and did not execute the order of detention. After making the said application three representations were made, last of which was of 11th March 2004 addressed to Government of India praying for revocation of impugned order. - 13 - Inspite of the service of representations no efforts were made to execute the said order of detention. He submitted that Cri.W.P.No.667 of 2004 was filed on 7th April 2004 and even thereafter there was long delay of 17 days in executing the order. He also relied upon certain facts disclosed in the Affidavit-in-reply of Respondent No.1 filed to this Petition. He pointed out that in chronology of the dates and events given in paragraph No.3 of the Affidavit, it is stated that on 3rd April 2003 a letter was sent by Directorate of Revenue Intelligence to the Commissioner of Police, Mumbai asking the Commissioner whether the detention order against the Petitioner was executed after his repatriation from Dubai to India. He pointed that there is a reference in the said chronology to the letter of the Deputy Commissioner of Police, Crime Branch, Mumbai stating that the Petitioner was in Central Prison in connection with Bomb Blast cases. The said letter was sent on 17th November 2003. He therefore submitted that the delay in execution of the impugned order will have to be calculated from 3rd April 2003 when the aforesaid letter was written by DRI. He submitted that there is a gross delay of more than one year in executing the order. He submitted that there was no reply filed either by the Sponsoring Authority or by the Respondent No.2 who was the executing authority. He submitted that there was no explanation in the Affidavit-in-reply of Respondent No.1 for the delay. Shri Merchant relied upon the decisions of Apex Court reported in 2000 2000 2000 S.C.C. (Criminal) page No.411 (A. Mohammed Farook Vs. S.C.C. (Criminal) page No.411 (A. Mohammed Farook Vs. S.C.C. (Criminal) page No.411 (A. Mohammed Farook Vs. - 14 - Joint Joint Joint Secretary to the Government of India and others) and Secretary to the Government of India and others) and Secretary to the Government of India and others) and 1999 1999 1999 S.C.C. (Cri.) page No.498 (Manju R. Nahar Vs. Union of S.C.C. (Cri.) page No.498 (Manju R. Nahar Vs. Union of S.C.C. (Cri.) page No.498 (Manju R. Nahar Vs. Union of India) India) India) in support of his submissions. 12. Shri Merchant further submitted that as the impugned order of detention was sought to be executed after twelve years in the year 2004, before executing the order, the detaining authority ought to have applied his mind and ought to have recorded subjective satisfaction that there was imminent possibility of his release on bail and that looking to his propensity and potentiality, the detaining authority was satisfied that after twelve years, the impugned order deserves to be given effect to and satisfaction which existed in 1992 about the detenu being likely to continue his prejudicial activities was existing even in the year 2004. He stated that in the Order dated 22nd April 2004 passed by the detaining authority no such satisfaction has been recorded. In continuation of the said submission he stated that before execution of the order, the detaining authority ought to have recorded a reasoned satisfaction for continuing with the impugned order. Shri Merchant relied upon the decision of Apex Court reported in (1986) 4 S.C.C. page No.416 (Binod (1986) 4 S.C.C. page No.416 (Binod (1986) 4 S.C.C. page No.416 (Binod Singh Singh Singh Vs. District Magistrate and others) Vs. District Magistrate and others) Vs. District Magistrate and others). 13. He submitted that the representations made by the Petitioner through his Advocate on 6th February 2004, 10th February 2004 and 11th March 2004 were disposed of only on - 15 - 24th March 2004. He stated that there was a gross and unexplained delay in deciding the representations. He submitted that no explanation was forthcoming for the said delay in the Affidavit-in-reply. 14. He submitted that the executing authority i.e. the Respondent No.2 was aware that the Petitioner was conversant only with Urdu language. He submitted that Respondent No.2 has not performed his mandatory duty of explaining to the Petitioner in Urdu language the contents of the orders of detention at the time of service of the order. He, therefore, submitted that fundamental rights of the Petitioner guaranteed under Article 22(5) of Constitution of India have been violated. 15. He submitted that there was a delay of one month in supplying the translation in Urdu language to the Petitioner of the order of detention, grounds of detention and documents relied upon in the order of detention. He submitted that the translation in Urdu language of the said documents was served on the Petitioner on 21st May 2004 i.e. nearly one month after the order of detention was executed. He, therefore, submitted that there was an infringement of the right conferred on the Petitioner by Article 22(5) of Constitution of India as the Petitioner was prevented from making effective representation. He lastly submitted that the detaining authority has relied upon the documents at page Nos.140, 141 - 16 - and 142 in the compilation of documents supplied to the Petitioner and the said documents had come into existence only on 24th March 1992. He pointed out that the order of detention was passed on 25th March 1992. He submitted that there was no sufficient time for the detaining authority to apply his mind to the said documents before passing the order of detention and therefore subjective satisfaction of the detaining authority has been vitiated. 16. Shri Desai, learned Additional Solicitor General appearing for Respondent No.1 submitted that the Petitioner cannot rely upon the observations of the Apex Court as if the said Judgments were statutes.