1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1936 OF 2008 Pawan Mahesh Vrajlal Shah, ] Age 28 years, an Indian inhabitant, residing ] at 22-B, 202, Ashok Nagar, Kalyan Naka, ] Bhiwandi, District Thane 421 302 ] ...Petitioner (son of the detenu) Versus 1. The State of Maharashtra, ] through the Secretary to ] the Government of Maharashtra, ] Home Department (Special), Mantralaya, ] Mumbai 40 032 ] 2. Ms. Chandra Iyengar, ] the Principal Secretary (Appeals and Security), ] the Government of Maharashtra, ] Home Department (Special), Mantralaya, ] Mumbai 400 032 ] 3. The Superintendent of Prison, ] Mumbai Central Prison, Arthur Road, Mumbai ] 4. The Superintendent of Prison, ] Nasik Road Central Prison, Nasik, Maharashtra ] ...Respondents. Mrs. Aisha Zubair Ansari for the Petitioner Mrs. A.S. Pai, Additional Public Prosecutor, for the State. CORAM: B ILAL NAZKI and 2 A.R. JOSHI, JJ. DATE: FEBRUARY 13, 2009 ORAL JUDGMENT (Per Bilal Nazki, J.):- This Writ Petition has been filed by the son of the detenu, who has been detained under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'COFEPOSA'), by an Order of Detention dated 23rd August, 2006. This order has been executed on 18th August, 2006, and the detenu is in custody. 2. Counter-affidavits have been filed on behalf of the Detaining Authority and the Sponsoring Authority. We have heard the learned counsel for the petitioner and the learned Additional Public Prosecutor, and perused the records. 3. The main allegations against the detenu were that intelligence had received reports that cheap betel nut powder was being exported at a highly inflated value to claim fulfilment of export obligation in order to misuse Duty Free Replenishment Certificate Scheme of the Export and 3 Import Policy. A raid was conducted on 14th October, 2004 on M/s. Universal Exports (India), M/s. Shurveer Overseas and M/s. Chamunda Trading. This raid became the basis for the collection of material against the detenu. Certain persons were arrested. Their statements were recorded. They were also bailed out. The detenu was not even arrested. His statement was not recorded at any point of time, but an Order of Detention was passed on 23rd August, 2006, i.e., almost after 22 months of the raid, which was conducted on 14th October, 2004. 4. The learned counsel for the petitioner has challenged the Order of Detention mainly on two grounds: Firstly, that there was delay in issuing the Order of Detention. Secondly, that there was also delay in execution of the order. 5. Coming to the first ground, we have seen from the affidavit of the Sponsoring Authority that the respondents knew about the alleged prejudicial activities of the detenu right from the beginning, and, in fact, even in the Grounds of Detention, it has been the incident of 14th October, 2004, leading to search and seizure, which has been referred to. The Sponsoring Authority, in his counter-affidavit, has stated that the 4 detenu, during the investigation, was absconding, and in spite of several summonses having been issued on the detenu on various dates, including 4th October, 2004, which is the date when the raid was conducted, the detenu did not appear before them. It is submitted in the affidavit that from 14th October, 2004, 7 notices were issued to the detenu to appear till 1st March, 2006, but he did not appear. Since the Department had already evidence with it, which suggested prejudicial activities of the detenu, and he was not even appearing to get his statement recorded under the provisions of the Customs Act, there was all the more necessity to proceed immediately for the Department, and the detenu's detention was necessary. 6. On the other hand, other persons were involved, who were also detained, and were co-operating with the investigation, and their Detention Order was passed much earlier to the Order of Detention against the detenu. We are told at the Bar that in case of some of the co-detenu, the Detention Order was passed in October, 2005, and in case of some of them, in December, 2005. Therefore, the delay in passing of the order remained unexplained. 7. We have also gone through the record. The record does not disclose as to why the Sponsoring Authority did not initiate the proposal 5 earlier. Since an activity had been found on 14th October, 2004, which was considered to be prejudicial, and Order of Detention was passed on 23rd August, 2006, it can be presumed that there was already snapping of a live link between the alleged prejudicial activities and the detenu. 8. The learned counsel for the petitioner has referred to the following two judgments of this Court:- Criminal Writ Petition No. 548 of 1990 (Ganesh Dattaram Sawant v. Shri L. Hmingliana & Ors.) decided on 3rd August, 1990 and Kamruddin Abdul Aziz v. L. Hmingliana & Ors. reported in 1992(1) Crimes 1. 9. For these reasons, we do not go to other reasons agitated before us, and allow this petition, quash the Order of Detention dated 23rd August, 2006 and direct the release of the detenu, Mr. Mahesh Vrajlal Shah, forthwith, if not needed in any other case. The Rule is made absolute. BILAL NAZKI, J. A.R. JOSHI, J.