1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL WRIT PETITION NO.1655 OF 2010 Naresh Dua, an Indian inhabitant, residing at AD-29, Tagore Garden, New Delhi 110 027. Petitioner Vs. 1. State of Maharashtra through the Secretary (Home), Home Department, Mantralaya, Mumbai 400 032. 2. Smt. Anna Dani, Principal Secretary (Appeals & Security), Government of Maharashtra, Home Department and Detaining Authority, Home Department (Special), Mantralaya, Mumbai 400 032. 3. Superintendent, Nashik Central Road Prison, Nashik. Respondents 2 Mr.Shibadas Banersei, Senior Advocate with Mr.Faisal Farook, Mr.Shubail Farook i/b. Mrs. A.M.Z.Ansari for petitioner. Mr.A.S.Gadkari, APP for State. CORAM: B.H.MARLAPALLE & ANOOP V. MOHTA,JJ. Reserved on : June 18, 2010. Pronounced on: June 22, 2010 JUDGMENT (PER B.H.MARLAPALLE,J.) 1. This petition under Article 226 of the Constitution of India praying for a writ of habeas corpus and quashing and setting aside the order of detention dated 21/2/2008 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (“the Cofeposa Act” for short) passed against Shri Rajesh Dua (the detenu) has been filed by his brother Shri Naresh Dua, both residents of AD-29, Tagore Garden, New Delhi 110 027. The said detention order came to be served on the detenu by Rajori Garden Police Station after he was taken in custody by the officers of the Directorate of 3 Revenue Intelligence. He was detained at the said police station from 21/5/2010 till 26/5/2010. 2. The detenu along with the officials boarded the train from Delhi and reached the Nashik Road Central Prison at Nashik on 27/5/2010 in the evening. 3. After the detention order was passed on 21/2/2008 and before it was executed / served on the detenu, Criminal Writ Petition No.635 of 2009 came to be filed by the detenu himself before this Court on or around 17/3/2009 challenging the detention order at the pre-execution stage. On issuing notices by this Court the Detaining Authority as well as the Sponsoring Authority filed affidavits in reply and opposed the said petition. As the detention order came to be served on the detenu on 21/5/2010 and he was admitted to the Nashik Road Central Prison at Nashik on 27/5/2010, Criminal Writ Petition No.635 of 2009 was allowed to be withdrawn as per our order dated 10/6/2009. 4. The officers of the Directorate of Revenue Intelligence had started investigation in respect of imports of copper scrap, brass 4 scrap, zinc ingots, tin sheets, chemicals, dry fruits etc. at Nhava Sheva Port by certain Delhi based firms and which were cleared without payment of customs duty by filing Bills of Entry for Warehousing and allegedly diverted and sold in the market without being taken to the Bonded Warehouses. In the course of investigation certain documents were resumed and it was found that the goods were imported initially in the names of some firms and sold on High Seas Sale basis to Delhi based firms who filed Bills of Entry for Warehousing and cleared the goods free of customs duty. Various premises were searched by the officers of DIR and several persons were arrested on the allegation of evading customs duty in respect of the imports so made and goods sold in the local market. The detenu's residential premises were searched by the DRI on 4/4/2006 and panchanama was drawn. On 24/4/2006 the detenu’s brother Shri Pawan Dua appeared before the officers of DRI and his statement was recorded and he was allowed to return home. On 3/5/2006 the detenu’s business premises in the name and style of M/s.Baisakhiram Girdharilal & Sons located at Sadar Bazar, New Delhi were searched and the detenu appeared before the DRI on 25/5/2006. His statement was recorded in English. He was shown arrested on 26/5/2006 and produced 5 before the learned Additional Chief Metropolitan Magistrate, 3rd Court, Mumbai. He was released on bail on 16/6/2006 on certain conditions and on 30/6/2006 his statement in Hindi was recorded by the officers of DRI. It appears that a proposal for preventive detention under Section 3(1) of the Cofeposa Act was moved by the DRI sometimes in September 2006 and pursuant thereto the impugned order came to be passed by the Detaining Authority on 21/2/2008. On the same day similar orders were passed in respect of the very same allegations against 13 importers / dealers including the detenu’s brother Shri Pawan Dua. 5. The detention order issued against Shri Pawan Dua came to be challenged in Criminal Writ Petition No.1458 of 2008. While allowing the said petition on 24/10/2008 this Court noted that though the detention order was passed on 21/2/2008 it was served on the detenu on 3rd July 2008. The confirmation order of detention was passed on 10th October 2008 and it was obviously beyond the period of three months from the actual date of detention of the detenu and solely on this ground the petition was allowed and the detention order passed against Shri Pawan Dua was quashed and set aside. 6 6. Though various grounds have been raised challenging the detention order dated 21/2/2008, only the following grounds have been heard by us so as to decide this petition. (a) The detention order dated 21/2/2008 had become stale by the time it was executed on 21/5/2010; (b) no efforts were made either by the Sponsoring Authority, the Detaining Authority or the Executing Authority to serve the detention order on the detenu and he was not absconding; (c) the accompanying documents to the order of detention including the translated documents were not served on the detenu on 21/5/2010 and they were served on him while he was in the illegal detention at the Rajori Garden Police Station till 26/5/2010 and he was never produced for remand before the Competent Court of the Metropolitan Magistrate / Judicial Magistrate. The detention is, therefore, vitiated on 7 this ground. 7. Mrs.Medha Gadgil, Principal Secretary (Appeals & Security), Government of Maharashtra, Home Department and the designated Detaining Authority has filed affidavit in reply on the first two grounds i.e. as to whether the detention order passed on 21/2/2008 and served on 21/5/2010 had become stale and the detenu was absconding. It has been submitted in the said affidavit that on 21/2/2008 itself the detention order was communicated to the Commissioner of Police, New Delhi by a forwarding letter of the same date and the Deputy Commissioner of Police, Head Quarters Delhi by his letter dated 7/4/2008 had informed that the detenu was not found at the given address and efforts were in progress to trace him. The detenu could not be found for execution of the detention order and, therefore, an order under Section 7(1)(b) of the Cofeposa Act came to be passed on 7/7/2008. By his letter dated 24/7/2008, the Joint Commissioner of Police (Crime), Delhi informed the Government of Maharashtra that the order dated 7/7/2008 was sent for pasting at the entrance door of the residence of the detenu but the detenu was not found and did not appear before the Executing Authority (Commissioner of 8 Police, New Delhi) as specified in the order dated 7/7/2008 and report under Section 7(1)(a) of the Cofeposa Act was made to the Judicial Magistrate, First Class, New Delhi on 1/11/2008. It has been contended that because the detenu was absconding, the detention order dated 21/2/2008 could not be served prior to 21/5/2010 i.e. for two years and three months. The same ground was raised in the affidavit in reply filed by the Detaining Authority in Criminal Writ Petition No.635 of 2009 filed by the detenu, in the following words, “However, since the petitioner is absconding according to the reports of the Executing Authorities and, therefore, the order of detention could not be executed and served on him. I say that the action under Section 7(1)(a) and 7(1)(b) of the COFEPOSA Act has been initiated against the petitioner...” 8. In the case of Sk. Nizamuddin v. State of West Bengal [AIR 1974 SC 2353], the detention order was passed on 10/9/1973 and it was executed on 23/11/1973 i.e. after two and 9 half months and this delay was not explained satisfactorily. The order of detention was quashed. In the case of T.A. Abdul Rahman Vs. State of Kerala [AIR 1990 SC 225] delay of 72 days was caused in executing the order and their Lordships held while quashing the said order that the delay was not explained and in the absence of satisfactory explanation, the said delay was too long a period for ignoring the indolence on the part of the concerned authority. In the case of P.M.Harikumar Vs. Union of India [1995 AIR SCW 3726], the detention order was passed on 11/7/1990 and the detenu was arrested at the Sahar International Airport, Mumbai on 3/7/1994. The Supreme Court held that the inordinate delay caused was not explained and the order was quashed and set aside. In the case of K.P.M.Basheer v. State of Karnataka [1992 Cri.L.J. 1927], the detention order was passed on 7/1/1991 and it was served on the detenu on 28/6/1991 i.e. after five months and 11 days. The detention order was set aside as the delay caused was not properly explained. In the case of Manju Ramesh Nahar Vs. Union of India [(1999) 4 SCC 116], the delay caused in execution of the detention order was more than one year and vague explanation was submitted claiming that the detenu was absconding. The detention order was set aside. 10 9. A similar issue recently came up before the Apex Court in the case of Sanjeev Jain Vs. Union of India [Criminal Appeal No.1060 of 2010]. The detention order was passed in the year 2003 and the same was challenged before the Delhi High Court in Criminal Writ Petition No.1093 of 2007 at the pre-detention stage. The petition was dismissed by the Delhi High Court on 19th May 2008 as not maintainable as it was at the pre-execution stage and the said order was carried in Criminal Appeal No.1060 of 2010 by the detenu. The Supreme Court noted that the detention order was passed in 2003 and was not executed and also there was nothing on record to show that the appellant had indulged in similar activities after the detention order. It further held that no useful purpose would be served in keeping the detention order alive and consequently the appeal was allowed by quashing the detention order and the Supreme Court clarified that the said order dated 12/5/2010 was passed in the facts of that case and it would not be treated as precedent in other cases. Shri Banersei, the learned Senior Counsel appearing for the petitioner has relied upon the said order dated 12/5/2010 passed in Criminal Appeal No.1060 of 2010 by the Supreme Court, though it was clearly stated that it would not be treated 11 as a precedent in other cases. 10. To rebut the first ground the Detaining Authority has submitted that the detention order did not become stale when it was executed on 21/5/2010 solely because the detenu was absconding. We have perused the original file produced before us by Shri Gadkari, the learned APP appearing for the Detaining Authority. 11. The record shows that the detention order dated 21/2/2008 was forwarded to the Commissioner of Police, New Delhi on the very same day by the Under Secretary to the Government of Maharashtra, Home Department along with the grounds of detention (Page 02 to 37), annexure of accompaniments (page 38 to 44), set of relied upon documents in English (Page 01 to 20232) and translation of detention order, grounds of detention and annexures in Hindi Language (Page 01 to 49) and relied upon documents. A copy of the said order was also forwarded to the Deputy Director, DRI, Mumbai Zonal Unit, New Marine Lines, Mumbai 400 020 and the Competent Authority and Administrator (SAFEMA), Nariman Point, Mumbai 400 021. By his letter dated 7/4/2008 Shri M.N.Tiwari, ACP Head 12 Quarters, Commissioner of Police, Delhi addressed to the Under Secretary to the Government of Maharashtra, Home Department informed that an enquiry was made and it was found that Shri Rajesh Dua, resident of AD-29, Tagore Garden, New Delhi was out of station in connection with business since 20-25 days and Shri Naresh Dua, brother of Rajesh Dua was found at the given address and he had stated that Shri Rajesh Dua was not present and the whereabouts of Shri Rajesh Dua were not known to him. It was further stated that efforts were being made to trace him and further progress would be intimated in due course. Along with this letter, the statement recorded of Shri Naresh Dua by a police officer and duly attested on 11/3/2008 was forwarded. The recorded statement very specifically stated that Shri Pawan Dua and Shri Rajesh Dua were out of Delhi for the last 20-25 days in connection with the business and it was not known as to when they would return. This had happened also in the past in view of the nature of business. However, as soon as they return, they would be informed. It is important to note that there was no material either with the Delhi Police or the State of Maharashtra that by 7/4/2008 the detenu was absconding from 11/3/2008 to 7/4/2008. No fresh efforts were made by the Delhi Police either to serve the detention order on the detenu or paste 13 a copy of the same on his residential premises. Based on this communication received on 10/4/2008, an order came to be passed on 22nd April 2008 under Section 7(1)(b) of the Cofeposa Act directing the detenu to appear before the Commissioner of Police, New Delhi at his office situated on the second floor of Police Headquarters, ITO, New Delhi between 10 a.m and 5 p.m. on any working day within 30 days from the date of publication of the said order in the Maharashtra Government Gazette. The record does not indicate that the said order dated 22nd April 2008 was at all published in the Government gazette, though copies of the said order were forwarded to the Secretary, Government of India, Ministry of Finance (Department of Revenue), New Delhi, the Commissioner of Police, New Delhi and the Deputy Director, DRI, Mumbai Zonal Unit as well as the Director General for Information and Public Relations, Mumbai so as to give wide publicity in the local newspapers and the Manager, Government Printing Press, Mumbai with a request to publish this order in Part IV-A of Maharashtra Government Gazette and return ten copies of the same to the Home Department. Neither this order was published in the local newspapers by Delhi Police or Director General for Information and Public Relations, Mumbai nor was it published in the 14 Government Gazette. On 23/5/2008 the DRI, Mumbai Zonal Unit addressed a letter to the Under Secretary to the Government of Maharashtra, Home Department that a show cause notice was issued on 16/5/2008 to the detenu. On 13/8/2008 yet another letter was addressed by the DRI, Mumbai Zonal Unit to the Under Secretary, Home Department informing that the show cause notice was received by the detenu and vide his letter dated 9/6/2008 he had prayed for extension of time to file a reply. A copy of the letter dated 9/6/2008 addressed by the detenu to the DRO was also forwarded to the Under Secretary, Home Department, Government of Maharashtra. On 7/7/2008 the Home Department, Government of Maharashtra passed yet another order again claiming to be under Section 7(1)(b) of the Cofeposa Act directing the detenu to appear before the Commissioner of Police, New Delhi at his office situated on the second floor of Police Headquarter, ITO, New Delhi between 10 a.m. and 5 p.m. on any working day within thirty days from the date of publication of this order in the Maharashtra Government Gazette. Copies of the said order were also forwarded to the Secretary to the Government of India, Ministry of Finance (Department of Revenue), New Delhi, the Commissioner of Police New Delhi, the Joint Commissioner of Police (Crime), New 15 Delhi and the Deputy Director, DRI, Mumbai Zonal Unit. The said order was published in the Maharashtra Government Gazette dated 10/7/2008. However, there is nothing on record to show that it was published in the local newspapers at New Delhi and the record shows in fact that it was not so published. Shri M.N.Tiwari, ACP, Head Quarter, office of the Commissioner of Police, Delhi by his letter dated 24/7/2008 and in reply to the letter dated 7/7/2008 requesting that the order dated 7/7/2008 be pasted on the entrance door of the residence of the detenu and to publish the said order in the local newspaper through the Crime Branch along with the photograph of the proposed detenu, had informed that it was sent to DCP/West District for pasting a copy of the same at the entrance door of the detenu i.e. AD-29, Tagore Garden, New Delhi 110 027. As regards publishing the order along with the photograph of the detenu in the local newspapers, he stated that the photograph of the detenu was not received and at the same time he advised to ask the Publicity Department / Resident Commissioner to get the advertisement / order released in the newspapers at Delhi. The last paragraph of this letter reads as under: “Besides, an enquiry was also made which 16 revealed that Shri Rajesh Dua r/o AD-29, Tagore Garden, New Delhi – 110027 is out of station. There whereabouts of Sh. Rajesh Dua are not known to his family members. Efforts are being made to trace him and further progress will be intimated in due course.” 12. It is interesting to note that there is nothing on record to support the contentions regarding an enquiry made by the Delhi police in which it was revealed that the detenu was out of station and that his whereabouts were not known to the family members. If such an enquiry was made, obviously the statements of any of the family members would be recorded and forwarded along with the letter dated 24/7/2008. On 23rd October 2008 the Under Secretary to the Government of Maharashtra, Home Department submits a report under Section 7(1)(a) of the Cofeposa Act purportedly to the First Class Judicial Magistrate, Delhi and obviously such a report would not be received and would be of no consequence. The Under Secretary ought to be aware that in Delhi there was no Judicial Magistrate, First Class and the report under Section 7(1)(a) of the Cofeposa Act was required to be submitted to the Metropolitan Magistrate or the Joint Chief / Additional Chief or Chief Metropolitan 17 Magistrate. Similar report and addressed in the same way was sent on 1st November 2008. However, a copy of this report was acted upon by the Sub-Divisional Magistrate (Administration), in the office of the Deputy Commissioner, Dist. East, I & FC Office Complex, Government of NCT of Delhi and a copy of the order dated 1/11/2008 was forwarded to the Deputy Commissioner, Dist. West, Old Tehsil Building, Rampura, Delhi. On 7th February 2009 the Secretary to the Government of Maharashtra, Industries, Energy and Labour Department and the Detaining Authority addressed a letter to the Secretary (Home Department), Government of Delhi. It would be appropriate to reproduce the said letter: “The detention order under COFEPOSA Act, 1974 has been issued by the Detaining Authority, Government of Maharashtra, against PD Shri Rajesh Dua on 21.02.2008, and is forwarded to the Commissioner of Police, New Delhi, for execution on the PD. However, the said order still remained unexecuted, inspite of reminder in form of notification issued u/s 7(1)(b) of COFEPOSA Act, on 07.07.2008. Thereafter because of non execution of detention 18 order, the PD was declared absconding u/s 7(1)(a) of the COFEPOSA Act, by the Government of Maharashtra, on 01.11.2008. After his communication dated 24.07.2008 the Commissioner of Police, has not intimated about further progress in this matter. Considering that the PD is still freely roaming inspite of issuance of detention order, the detention order needs to be executed immediately failing which the purpose behind issuance of detention order will be defeated. Also, it is evident from the fact that the PD has filed a petition in the Hon’ble High Court, Mumbai, that the PD is available for detention. You are, therefore, requested to kindly ensure the execution of detention order on the PD and also fix the responsibility for non execution of the detention order on the PD under intimation to me.” (emphasis supplied) 13. The petitioner had approached this Court and filed a writ petition and for one year therefrom the detention order was not served on him. It is only on 21/5/2010 that the officers of DRI visited his residence and he was taken to Rajori Garden Police 19 Station and the impugned order of detention was served upon him. It is not the case of the DRI that he was absconding on 21/5/2010 or any time before that date the DRI, which was the Sponsoring Authority, had made any attempts to call upon the detenu or take him in custody. At the same time at no point of time either the DRI Zonal Unit, Mumbai or the Detaining Authority had taken any steps to cancel the bail granted to the detenu and more so when it was a conditional bail. The orders issued under Section 7(1)(b) of the Cofeposa Act, on 22/4/2008 and 7/7/2008 were not pasted on the door of the detenu’s residence at New Delhi. 14. In these obtaining circumstances, the contentions of the Detaining Authority that the impugned detention order could not be served on the detenu till 21/5/2010 as he was absconding, are not supported by the record and hence are required to be discarded. The whole approach of the Sponsoring Authority as well as the Detaining Authority in executing the detention order has been casual and without application of mind. Nothing stopped the officers from DRI, the Sponsoring Authority, from visiting the house of the detenu any time after 7/4/2008 and before the detenu filed Writ Petition No.635 of 2009 before this 20 Court so as to execute the detention order with the help of Delhi Police. Even after the said petition was filed, no steps were taken by the DRI to get the detention order executed with the help of Delhi Police, for more than one year. When an order of detention is passed under Section 3(1) of the Cofeposa Act, the intention is that the detenu is prevented from indulging in similar activities in the immediate future and that the propensity to indulge in such activities is taken away and if the said purpose has to be achieved in the instant case, it was necessary for the Detaining Authority to get the said order executed with due diligence and promptness. If the detention order has to achieve its desired objective, it must be served with utmost diligence and within shortest possible time span and this responsibility lies on the detaining authority as well as the sponsoring authority alone. It is surprising to note from the record that there is no report of the Delhi Police regarding the visits of any of its officers after 11/3/2008 and, therefore, the contentions that the detenu was absconding till he filed Criminal Writ Petition No.635 of 2009 before this Court is far fetched. We, therefore, hold that the impugned detention order had become stale when it was 21 served on the detenu on 21/5/2010 and hence the same deserves to be quashed and set aside solely on that ground. It is not necessary for us to go into the other issue that the exhibits and documents as well as the grounds of detention annexed to the detention order were served on the detenu while he was in illegal custody/detention of the Rajori Garden Police Station from 21/5/2010 to 26/5/2010. 15. Hence this petition succeeds and the same is hereby allowed. The impugned order of detention