IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 12592 of 2002 For Approval and Signature: HON'BLE MR.JUSTICE J.R.VORA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- MUSTAK KHAN ISMAIL ALI KHAN Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MS BANNA DUTTA for Petitioner MS MITA PANCHAL AGP for Respondent No. 1 & 3 MS PJ DAVAWALA for Respondent No. 2 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE J.R.VORA Date of decision: 19/09/2003 ORAL JUDGEMENT 1. This Special Civil Application has been filed by the petitioner challenging an order passed by the Additional Chief Secretary to Government of Gujarat, Home Department, Gandhinagar, on 8th of November, 2002, in exercise of Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act for short) directing the detention of the petitioner in pursuance of Section 5 of the COFEPOSA Act, 1974. The petitioner was actually detained in pursuance of this order on 20.11.2002. 2. The grounds served upon the detenu petitioner and as has been placed on record point out following facts. The petitioner is a holder of Indian Passport bearing No. M-889304 issued on 3.12.1992 valid upto 2nd of December, 2002. The incident in question occurred on 16.8.2002 and on that day the petitioner was to travel to Sarjah from Sardar Vallabhbhai Patel International Airport, Ahmedabad, in Flight No.IC-563. The petitioner was holding ticket booklet, United Arab Emirates Entry Permit, etc. The petitioner checked in at the Airlines counter for boarding the flight and also obtained boarding pass and seat number of the aircraft. The petitioner passed through the immigration, the customs and security check. After that, the petitioner was waiting in a waiting hall to board the aircraft. At that juncture, on the basis of specific information , the Officers of Directorate of Revenue Intelligence, Ahmedabad, intercepted the petitioner at the waiting hall. Upon inquiry and after some hesitation, the petitioner admitted that he was concealing foreign currencies in his body. The petitioner was immediately taken to the Office of Directorate of Revenue Intelligence at Ahmedabad for ejecting the foreign currencies which was concealed by the petitioner in his body. During the period from 16.8.2002 to 19.8.2002, the petitioner ejected 85 small capsules and one big capsule consisting of US $ 18,300, UAE Dirham - 99,000 and Qatar Rial 11,5000, worth Indian Rs.23,58,288.60 at the exchange rate prevailing on 19.8.2002. The said foreign currency, as per the provisions of the Customs Act, 1962 were seized in the presence of panchas because the same was being smuggled out of India by concealing the same in the body of the petitioner. The petitioner revealed before the Deputy Director, Directorate of Revenue Intelligence, Ahmedabad, that the petitioner had on 16.8.2002 boarded Indian Airlines Flight at 5.00 p.m. from Mumbai to Ahmedabad and thereafter from Ahmedabad the petitioner was to board Indian Airlines Flight to Sarjah at 9.10 p.m. on 16.8.2002. The petitioner, as aforesaid, had concealed the foreign currencies in his body by swallowing the capsules containing the foreign currency and one big such capsule was injected in the body of the petitioner though his anus. The currency was to be smuggled as above said out of the country and was given to the petitioner by one Shri Rajubhai of Mumbai. The petitioner had met Shri Rajubhai on Gulf Air Flight from Mumbai to Dubai in the month of May, 2002. At that time, the petitioner was on visit to his brother-in-law staying at Dehra, Dubai. On the said flight, the petitioner got acquainted with said Rajubhai. Thereafter, when petitioner returned from Dubai around 24/25th May, 2002, Rajubhai contacted the petitioner on his residence telephone and asked for a meeting. Rajubhai on meeting with the petitioner, made a proposal that if petitioner smuggles out foreign currency, Rajubhai would pay the petitioner Rs.5,000/- per trip and bear all the travelling expenses. Rajubhai convinced the petitioner that the petitioner was to earn by this proposal not only cash but free visits to UAE also. The petitioner agreed to the proposal floated by Rajubhai. Thereafter, in first week of June 2002, said Rajubhai took the petitioner to Dubai to meet one Shri Aslambhai and Aslambhai accordingly at his residence at Dehra, Dubai, was introduced to the petitioner by Rajubhai. Around 15th of July, 2002, Rajubhai contacted the petitioner again and asked him to meet at Greenfield Hotel near Mazgaon Circle. Rajubhai also informed the petitioner that the visa of the petitioner to Dubai was arranged and the petitioner was to take along with him foreign currencies by smuggling to Dubai. The petitioner was informed that the currency would be packed in capsules which were required to be consumed by the petitioner orally and after reaching Dubai, on defecating the capsules, were to be recovered by the petitioner from his stools. The said capsules containing foreign currencies was thereafter to be entrusted to Aslambhai. On or around 23.7.2002, Rajubhai informed the petitioner that he was to go to Dubai on 25.7.2002. On 25.7.2002, Rajubhai came to pick the petitioner at 7.00 a.m. and in his Maruti Van took him to Worli Seaface and gave petitioner 65 capsules and asked the petitioner to swallow the same. The petitioner swallowed the said capsules. That 65 capsules contained foreign currencies around Rs. 15 lacs. Rajubhai thereafter dropped the petitioner at Mumbai International Airport from where the petitioner boarded Air India Flight at 2.30 p.m. to Dubai. On reaching Dubai, Shri Aslambhai received the petitioner and took him to Hotel Al-Khail Inn. The petitioner after taking food and smoking cigarettes, passed stools on newspapers and recovered the capsules swallowed by him orally containing foreign currencies and after cleaning those capsules, the same were entrusted to Aslambhai. On the night of the same day, as arranged by Aslambhai, the petitioner returned to Mumbai through flight. Again, in the first week of August, 2002, Rajubhai contacted the petitioner, arranged visa, and informed him to be ready to smuggle out foreign currencies. Rajubhai met the petitioner at Sai Shradha Bar, Mazgaon Circle, Mumbai, on 15.8.2002 and gave the petitioner 85 capsules and one big capsule of battery size containing foreign currencies. Rajubhai informed the petitioner that the petitioner was to board Sarjah flight from Ahmedabad and from Mumbai to Ahmedabad the petitioner was to travel through Indian Airlines flight. The travel from Ahmedabad to Mumbai to Sarjah, according to Rajubhai, was to take place on 16th of August, 2002. As instructed, the petitioner consumed 85 capsules in the morning of 16.8.2002 and injected one battery size capsule through his anus. All these capsules contained foreign currencies. On 16.8.2002, around 3.00 p.m. Rajubhai picked the petitioner from his residence and dropped him at Mumbai domestic airport. From there petitioner, through flight landed at Ahmedabad around 5.00p.m. On reaching Ahmedabad Airport, the petitioner cleared all the boarding formalities and got the boarding pass on Indian Airlines Flight to Sarjah, and as above said, on trap being laid, the petitioner was caught while he was waiting to board the above said flight. The petitioner came to be arrested under the provisions of the Customs Act on 19.8.2002 and a prosecution came to be launched against the petitioner. The proposing authority moved the proposal for detention of the petitioner under the COFEPASA Act. The proposing authority first placed the material before the Screening Committee. The meeting of the Screening Committee convened on 24.9.2002 and it was decided that the petitioner be detained under the COFEPASA Act. Therefore, the proposing Authority on 4.10.2002 moved the detaining authority and placed all the material for perusal and screening and to pass appropriate orders by detaining authority. The detaining authority is the Additional Chief Secretary, Home Department, Govt. of Gujarat. In the meanwhile, in the prosecution launched against the petitioner under the Customs Act, the petitioner preferred bail application on 3.9.2002, before the Chief Metropolitan Magistrate, which came to be rejected on the same day. The petitioner thereafter preferred bail application before the City Sessions Court at Ahmedabad, which also came to be rejected on 8.10.2002. But since, the charge sheet could not be filed within the prescribed time by the Code of Criminal Procedure, the petitioner came to be released on bail on 23.10.2002 by the Chief Metropolitan Magistrate Court at Ahmedabad. So, as aforesaid, when the proposing authority forwarded the material to the detaining authority on 4.10.2002 and the matter was under consideration and when the bail order dated 23.10.2002 came to be passed, the same also was submitted before the detaining authority. The Additional Chief Secretary, Home Department, the detaining authority, received all the material, as aforesaid through proper channel on 31.10.2002. After due scrutiny of all the relevant records placed before him and after carefully going through the material on record, the detaining authority i.e. Additional Chief Secretary, Home Department, Govt. of Gujarat, recorded his subjective satisfaction on 7.11.2002 and decided to pass the order of detention under COFEPASA against the petitioner. The order impugned therefore came to be passed on 8.11.2002. The said order is under serious challenge by this Special Civil Application. 3. Learned Advocate Ms. Banna Dutta for the petitioner, learned AGP Ms. Mita Panchal for respondents No. 1 and 3 and learned Addl. Central Govt. Standing Counsel Ms.P.J.Davawala for respondent No.2 were heard at length. Affidavit-in-reply and additional affidavit of the Under Secretary to Government of Gujarat, Home Department, rejoinder filed by the petitioner, sur-rejoinder filed on behalf of the respondent No.1 i.e. Deputy Secretary, Govt. of Gujarat, Home Department, and all the relevant records available with this court were taken into consideration. Learned Advocate for the petitioner has advanced in all four contentions against the order impugned. Each contention is discussed and decided one by one, as under. 4. The first contention which was advanced by the learned Advocate for the petitioner was in respect of passing the order of detention with delay. It was vehemently contended that the so called incident occurred on 16.8.2002. The statement of the detenu was recorded on 19.8.2002. Proposal to the Screening Committee was made by the proposing Authority on 3.09.2002. The Screening Committee heard the proposal on 24.9.2002 and thereafter the order of detention was passed on 8.11.2002 by the Addl. Chief Secretary, Home Department, Govt. of Gujarat, the same being the detaining authority. It was urged that in the cases of preventive detention, the purpose of detention itself would be frustrated if the order is passed with delay. In this case, according to the submission made by the petitioner, there is a delay of 3 months in passing of the order from the date of the alleged incident. This delay, though affidavit is filed, on behalf of the State Government, is not properly explained and merely dates are mentioned. Therefore, it was urged that the order passed is required to be quashed on this ground alone. Learned Advocate for the petitioner has placed reliance on a decision of the Apex Court in the matter of RAJESH GULATI vs. GOVT. OF NCT OF DELHI AND ANOTHER, as reported in 2002 AIR SCW 3563, and a decision of the Division Bench of this Court in the matter of ARJAN GAGA SHIYAL (THE DETENU) VS. THE STATE OF GUJARAT AND ANOTHER, reported in 1987 (1) CRIMES, 531. As against that, learned AGP Ms. Panchal after drawing the attention of this Court on affidavit-in-reply filed by the Deputy Secretary to the Govt. of Gujarat, Home Department, urged that mere delay is not fatal for the order of detention. According to learned AGP, the delay is well explained in the affidavit filed by Shri G.R. Rajput, Under Secretary to Govt. of Gujarat, on 24.4.2003 vide para 5, point No.10 of the affidavit, which is on record. It was urged that after the incident, the investigation was carried on at both the places at Ahmedabad and Mumbai. The proposal to the Screening Committee was sent by the Commissioner of Customs, on 3 December 2002. The Screening Committee could meet only on 24.9.2002 and decided the matter. Thereafter on 4.10.2002, the papers were submitted to the Addl. Chief Secretary, Home Department, which was received by the Addl. Chief Secretary through the movement of files on 31.10.2002 and after due consideration, the order came to be passed on 8.11.2002. Therefore, as urged by learned AGP, according to her, there is no delay at all and if the delay is caused, the same is explained, as aforesaid. Learned AGP has placed reliance on a decision of the Apex Court in the matter of RADHAKRISHNAN PRABHAKARAN vs. STATE OF T.N. AND OTHERS, as reported in (2000) 9 SCC 170 and a decision of the Apex Court in the matter of RAJAN WORLIKAR vs. STATE OF KARNATAKA & ORS., as reported in (2001) 5 SCC 295, and a decision of this Court in the matter of HARISH ANAND vs. UNION OF INDIA & ORS., as reported in 1996 (1) GLR 197. 5. Having regard to the rival contentions in this respect and evaluating the contentions raised, it must be borne in mind that mere delay in passing the order, would not vitiate the order on account of delay. The law as it stands today is when delay if at all occurred and if not explained, vitiates the order. Therefore, in each case, when delay is contended as a ground for quashing the detention order, careful screening of the facts and circumstances of each case has to be undertaken and while going through this exercise, the Court has to be pragmatic and must scrutinize the circumstances with a eye of realities of life. As revealed from the record, true it is that, the incident occurred on 16.8.2002 and the order of detention came to be passed on 8.11.2002. A look on surface of this fact certainly would give an impression that the delay of three months are caused in passing of the order and, therefore, the facts are required to be scrutinized with an eye of reality. The affidavit-in-reply which is filed by the Under Secretary of the Govt. of Gujarat, Home Department, reveals that the proposal to Screening Committee was moved by the Customs Department on 3.9.2002. The Screening Committee consists of the members of different departments, practical difficulty to convene the Screening Committee must not be lost sight off. The members of the Committee consists the State Government representatives, Central Government representatives and Officers of the Customs Department and, therefore, the Committee could be convened only on 24.9.2002. This delay cannot be attributed to in-action to the extent of vitiating the order impugned in this petition. Thereafter also, as soon as the Committee recommended the detention of the petitioner, right on 4th of October, 2002, the Addl. Secretary in the Home Department of the State Government was moved by the Customs Authorities vide letter. The files of the Department reveal that the Officers of the Customs Department and DRI were prompt enough to move the proposal by personal delivery. In consultation with the Home Department, it was deduced by proposing mechanism that the material which is supposed to be placed before the detaining authority, requires five sets of attested documents and that too in translation in the languages English, Gujarati, Arabic and Marathi. In consultation, it was also deduced that it was also advisable to have copy of the x-ray of the petitioner to place before the detaining authority. It was also deduced that the State Government was required to be informed of latest development with regard to the bail application and therefore by no stretch of reasoning, it could be said that when file with all material reached to the Addl. Secretary, Home Department - the detaining authority on 31.10.2002, there was any such delay, which would vitiate the order of detention. The detaining authority thereafter, as mentioned in the affidavit-in-reply, gone through the material placed before him carefully and reached to the subjective satisfaction on 7.11.2002 and consequently the order came to be passed on 8.11.2002. If we carefully peruse the procedural mechanism right from 19.8.2002, the day on which the statement came to be recorded of the petitioner and panchnama was drawn till 8.11.2002, it is not found that the prompt action was not taken by the authority concerned. Therefore, the principle of law is, the time gap is never material to attribute delay in passing of the order. There may be causes contributing the delay and those causes may not be the causes to quash the order and on the contrary those causes may appeal to the court that there may not be any other alternative except to proceed the mechanism as it might have proceeded with. It is useful in this respect to quote the observation of this Court in the matter of Harish Anand vs. Union of India (supra) wherein the delay of 13 months in passing of the order of detention on facts was not considered fatal by this Court. The paras 15, 17 and 23 of the said decision are as under: "15. In the case of Rajendrakumar Natwarlal Shah v. State of Gujarat & Ors., AIR 1988 SC 1255, the Supreme Court has emphasized and made it clear for the guidance of different High Courts that a distinction must be drawn between the delay in making of detention order under a law relating to preventive detention like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and the delay in complying with the procedural safeguards of Art. 22(5) of the Constitution. The Supreme Court has highlighted the principle that in the cases of mere delay in making of an order of detention under a law like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering, who owing to their resources and influence, have been posing a serious threat to the economy and thereby to the security of the nation, the Courts should not merely on account of delay in making of an order of detention assume that, such delay if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. The Supreme Court has further cautioned that taking of such view would not be warranted unless the Court finds that the grounds are stale or illusory or that there is no real nexus between the grounds and the impugned order of detention. The pertinent observations which have been made by the Supreme Court are to be found in para-9 of the reported judgment of the Supreme Court which are as under : "In the enforcement of a law relating to preventive detention like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 there is apt to be some delay between the prejudicial activities complained of under Sec. 3(1) of the Act and making of an order of detention. When a person is detected in the act of smuggling or foreign exchange racketeering, the Directorate of Enforcement has to make a thorough investigation into all the facts with a view to determine the identity of the persons engaged in these operations which have a deleterious effect on the national economy. Quite often these activities are carried on by person forming a syndicate or having a wide network and, therefore, this includes recording of statements of persons involved, examination of their books of accounts and other related documents. Effective administration and realisation of the purpose of the Act is often rendered difficult by reason of the clandestine manner in which the persons engaged in such operations carry on their activities and the consequent difficulties in securing sufficient evidence to comply with the rigid standards, insisted upon by the Courts. Sometimes, such investigation has to be carried on for months together due to the magnitude of the operations. Apart from taking various other measures, i.e. launching of prosecution of the persons involved for contravention of the various provisions of the Acts in question and initiation of the adjudication proceedings, the Directorate has also to consider whether there was necessity in the public interest to direct the detention of such person under Sec. 3(1) of the Act with a view to preventing them from acting in any manner prejudicial to the conservation and augmentation of foreign exchange or with a view to preventing them from engaging in smuggling of goods etc. The proposal has to be cleared at the highest quarter and is then placed before a Screening Committee. For ought we know, the Screening Committee may meet once or twice a month. If the Screening Committee approves of the proposal, it would place the same before the detaining authority. Being conscious that the requirements of Art. 22(5) would not be satisfied unless the basic facts and materials which weighed with him in reaching his subjective satisfaction, are communicated to the detenu and the likelihood that the Court would examine the grounds specified in the order of detention to see whether they are relevant to the circumstances under which the impugned order was passed, the detaining authority would necessarily insist upon sufficiency of the grounds which would justify the taking of the drastic measure of preventively detaining the person." "17. The test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention. It is a subsidiary test evolved by the Court for the purpose of determining the main question whether the past activity of the detenu is such that from it a reasonable prognosis can be made as to the future conduct of the detenu and its utility, therefore, lies only in so far as it subserves that purpose and it cannot be allowed to dominate or drown it. The prejudicial act of the detenu may in a given case be of such a character as to suggest that it is a part of an organized operation of a complex of agencies collaborating to clandestinely and secretly carry on such activities and in such a case the detaining authority may reasonably feel satisfied that the prejudicial act of the detenu which has come to light cannot be a solitary or isolated act, but must be part of a course of conduct of such or similar activities clandestinely or secretly carried on by the detenu and it is, therefore, necessary to detain him with a view to preventing him from indulging in such activities in future. "23. From the facts of the case and more particularly the grounds of detention, it is apparent that the detaining authority was aware of the fact that some time had elapsed between the date of incident and the date of passing of the detention order and yet it is indicated in the grounds that the detaining authority formed subjective satisfaction that having regard to the prejudicial activities attributed to the detenu, it was necessary to detain him with a view to preventing him from engaging in transporting smuggled goods. Para 14 of the grounds of detention reads as under : " I am also satisfied that there is no delay in initiating action under the COFEPASA Act, 1974 and that the nexus between the date of incident and the passing of this detention order as well as the object of your detention has been maintained." "In my opinion, time-lag between the date of alleged incident and the