- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION No. 415 OF 2008 Vipul Dilipbhai Dorda, Age 26 years, ) Petitioner R/o. Khatorovad, Main Bazar, Bagashra )[Brother-in-law of the Gujrat-365 440 ) Detenu] Ashok Kumar Himatlal Dhakan ) Detenu Vs. 1. The State of Maharashtra ) Though the Secretary to the Govt. ) of Maharashtra, Home Department ) Mantralaya, Mumbai-400 032 ) 2. Anna Dani ) The Principal Secretary (Appeals ) and Security) to the Government of ) Maharashtra, Home Department and) Detaining Authority, Mantralaya ) Mumbai-400 032. ) 3. The Superintendent of Prison ) The Mumbai Central Prison, ) Arthur Road, Mumbai ) 4. The Superintendent of Prison ) Nasik Road, Central Prison, Nasik ) Respondents Mr. Girish Agarwal, for the petitioner. - 2 - Mr. D. S. Mhaispurkar, APP, for the respondents-State. Mrs. Navale, for the Union of India. CORAM : BILAL NAZKI & A. A. KUMBHAKONI, JJ. RESERVED FOR JUDGMENT ON : JULY 27, 2008. JUDGMENT PRONOUNCED ON : SEPTEMBER 12th, 2008. JUDGMENT [ PER : A. A. KUMBHAKONI, J.] 1. This Habeas Corpus petition is filed by one Vipul Dilipbhai Daroda, the brother in law of the detenu : Ashok Kumar Himmatlal Dhakan, who has been detained under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 (hereinafter referred to as the “Act”, for the sake of brevity), in pursuance of a detention order dated 5th September 2007, executed on 19th December, 2007. 2. The aforesaid detention order in issue has been challenged only on one ground, viz. the delay caused by the detaining authority in issuing the detention order. Before dealing with this sole ground of attack, we may in short state the grounds of detention hereunder, as set out by the detaining authority. - 3 - 3. Acting on a specific information that the detenu will smuggle in polished diamonds and jewelery in India, while traveling from Hongkong to Mumbai by a flight scheduled to arrive on 9th February, 2007 at Mumbai, the Officers from the Director of Revenue Intelligence apprehended the detenu near the exit gate of the airport at Mumbai. On interrogation the detenue admitted that he was carrying diamonds in polypouches which were concealed in the Radio Cassette Recorder brought by the detenue in his baggage and also some jewelery kept in the strolley bags of the detenu. On taking search of the belongings of the detenu, five polypouches of various sizes were recovered along with another polythelene packet containing some assorted jewelery and diamonds. The valuation of the diamonds done by Valuation Expert, disclosed that the assorted diamonds were worth Rs. 1,36,34,513/- in the International Market, and the jewelery was found worth Rs.2,67,897/- in the international market. Thus, items worth Rs.1,39,02,410/- in the International market were seized. . The detenu is alleged to have walked through green - 4 - channel at the airport and had declared value of the goods to the Customs as “NIL” intentionally to smuggle the diamonds and jewelery, that was later on recovered and seized from the belongings in possession of the detenu. These diamonds and jewelery under seizure was to be handed over by the detenu to the members of an organized gang in Mumbai. The detenu, thus, is alleged to have been indulged in smuggling of assorted polished diamonds and jewelery in India without declaring to the Customs and acts committed by the detenue are alleged to be a smuggling activity falling under section 111(i), (j) and (m) of the Customs Act, 1966. 4. As the sole ground on which the order of detention is challenged is the delay allegedly caused by the detaining authority in issuing the order of detention, the admitted and relevant chronology of events will be important for our purpose in the present case. The same is as follows- 9 th February, 2007 – The sole aforesaid incident occurred involving the detenue. 9 th February, 2007 – The detenu was arrested. 11 th April, 2007 - The bail was granted to the detenu. - 5 - 15 th April, 2007 - The detenu availed the bail. ---------- A proposal was submitted to the Screening committee by the Sponsoring Authority (the date is not on record). 24 th April, 2007 – Screening committee approved the proposal. 18 th May, 2007 – The proposal was received by the office of the Detaining Authority. 29 th May, 2007 – The Sponsoring Authority forwarded the additional material to the Detaining Authority. 30 th May, 2007 - The assistant in the office of the Detaining Authority prepared a detailed note on the proposal so received. 31 st May 2007 – The Under Secretary in the office of the Detaining Authority endorsed the proposal. June, 2007 - The Dy. Secretary endorsed and forwarded it to the Detaining Authority . 5 th June, 2007 - The Detaining Authority called for information as to the address where the order of detention was proposed to be executed and also as to why the Sponsoring Authority had not filed the rebuttal to the representation of the detenu. 8 th June, 2007 – A letter was issued by the Detaining Authority, calling for the aforesaid information. - 6 - 20 th June, 2007 – Sponsoring Authority replied the letter. 22 nd June, 2007 – The reply was received by the office of Detaining Authority. 2 nd July, 2007 – The Assistant from the office of Detaining Authority prepared a detailed note. 7 th July, 2007 – The Detaining Authority gave directions to issue detention order. 23 rd July, 2007 - The draft of detention order, grounds of detention and annexture thereto as dictated by the detaining Authority were typed and submitted for perusal and approval of the Detaining Authority. 7 th August, 2007 – The Detaining Authority approved the draft and directed to issue detention order. 10 th August, 2007 – The Detaining Authority received additional documents from the Sponsoring Authority. 17 th August, 2007 -- The Detaining Authority received the same. 18 th August, 2007 – The Detaining Authority issued directions to include the additional material in the papers and the grounds were accordingly reformulated. 21 st August, 2007 - The typed grounds of detention as dictated by the Detaining Authority were submitted by the Assistant to - 7 - the Under Secretary, working in the office of the Detaining Authority. 23 rd August, 2007 – The Detaining Authority approved these grounds of detention. 5 th September, 2007 – The final detention order, grounds of detention and annexures were signed by the Detaining Authority and the order of detention was issued. 19 th December, 2007 – The detention order was executed. 5. On the basis of the aforesaid admitted chronology of events, the learned counsel for the petitioner contended that the Detaining Authority has caused unexplained delay in issuing the detention order. In his submission, the papers were gathering dust in the office of the Detaining Authority at various stages for various periods. He analysed the same as under- (i) 24 days - from 24th April to 18th May, 2007. (ii) 13 days – from 18th May to 30th May, 2007. (iii) 10 days- from 22nd June 2007 to 2nd July, 2007. (iv) 16 days - 7th July to 23rd July, 2007. (v) 9 days - 7th August to 18th August. (vi) 13 days - 21st August to 5th September 2007. - 8 - 6. Affidavits in reply have been filed not only by the Sponsoring Authority but also by the Detaining Authority. In short it is submitted by the Detaining Authority that initially though a first draft of grounds of detention was approved on 7th August, 2007, additional material was forwarded by the Sponsoring Authority to the Detaining Authority which the Detaining Authority considered and reformulated the grounds on 23rd August, 2007. It is contended that these grounds were finalized and the order of detention has been issued on 5th September, 2007. It is contended on behalf of the respondents that considering the potentiality and propensity of the detenu to indulge in similar prejudicial activity, the Detaining Authority was satisfied about the nexus between the date of incident and passing of detention order was very much maintained and that therefore, the detention order was issued by recording satisfaction in this regard in paragraph 7 and 12 of the grounds of detention. - 9 - 7. We have heard both the sides. The learned counsel on behalf of the petitioner relied upon following judgments in support of his contention- a) V. C. Mohan Vs. Union of India (2002) 3 SCC 451. b) Pradeep Nilkanth Paturkar Vs. S. Ramamurthy AIR 1994 SC 656. c) Abdul Majid Tinwalla Vs. The State of Maharashtra Cri. W.P. 2380 of 2007 [BOMBAY HIGH COURT] d) Sajid Dilawar Khan Vs. The State of Maharashtra Cri. W.P. No. 2167 of 2008 [BOMBAY HIGH COURT] . On the other hand, the learned APP relied upon following judgments in support of his contention- a) Kantilal Hirji Shah Vs. State of T.N. & Ors. (2000) 7 Supreme Court Cases 606. b) Sheetal Manoj Gore Vs. State of Maharashtra & Ors. (2006) 7 Supreme Court Cases 560. c) Prabhudas Devji Ghutala Vs. The State of Maharashtra & Ors.Cri. W. P. No. 316 OF 2008 [BOMBAY HIGH COURT]. 8. As usual, we called for the original file to find out how the proposal for detaining the detenu has traveled from one hand to another and as to the manner in which the same was - 10 - processed at various stages. A perusal of the file reveals following important aspects of the matter- a) After scrutinizing the proposal received from the Sponsoring Authority a note was prepared by the Assistant, dated 30th May, 2007 which was endorsed by under Secretary and Dy. Secretary from the office of the Detaining Authority. The Detaining Authority has made the following endorsement thereunder on 15th June, 2007 - “Pl. get info. on where order to be executed, also why rebuttal is not filed.” b) After receipt of the reply in this regard by the Sponsoring Authority the same was put up for consideration of the Detaining Authority on 2nd July, 2007. The Detaining Authority has made following endorsement thereunder “Issue detention order”. c) The draft of detention order, grounds of detention and annexures as dictated by the Detaining Authority were submitted for perusal and approval of the Detaining Authority by the Assistant on 23rd July, 2007 to Under Secretary and Dy. Secretary. The Detaining Authority has made a following endorsement “Issue Detention Order”. d) A letter dated 9th August, 2007 was received from the Sponsoring Authority along with additional - 11 - documents that were numbered page 102 to 142 (in all 39 documents were so received). These further generated documents were submitted for appropriate orders of the Detaining Authority by the Assistant through Under Secretary and Dy. Secretary on 17th August, 2007. On 18th August, 2007 the Detaining Authority made following endorsement thereunder “Include in relied upon pps.” e) The draft of detention order, ground of detention order and annexures as dictated by the Detaining Authority were submitted for its perusal and approval by the Assistant through the Under Secretary and Dy. Secretary on 22nd August, 2007. The Detaining Authority on 23rd August, 2007 made following endorsement : “Approved”. f) The final detention order, the grounds of detention and annexures were submitted for signature of the Detaining Authority on 29th August, 2007 and the Detaining Authority has signed the same on 5th September, 2007. 9. A perusal of the file with the aforesaid specific endorsements made thereon by the Detaining Authority from time to time demonstrates that the Detaining Authority for the first time made up her mind to issue the Detention order on 7th - 12 - July, 2007 itself. Whereas the grounds of detention were prepared thereafter. In our view this action of the detaining authority was a clear case of non-application of mind in as much as the grounds of detention were prepared after the detaining authority made up her mind to detain the detenu. As already held by us in few other similar cases the grounds of detention ought to have been prepared first and thereafter on those grounds it was open for the detaining authority to make up her mind as to whether the detention order is to be issued in this case or not. If the detention order impugned by this petition was issued only on the basis of the aforesaid endorsement made by the detaining authority, without adding anything herein, we would have proceeded to quash and set it aside the same, as has been done by us in some other cases as well. However developments have occurred in this case subsequent to the aforesaid endorsement made by the detaining authority on 2nd July 2007. These subsequent developments that have occurred in this case, as reflected by the aforesaid chronology, will have to be considered by us in the - 13 - proper perspective before we conclude the matter finally. We now deal with the same hereunder. 10. After perusal of the draft detention order, grounds and annexures as dictated by the detaining authority, the detaining authority has again made a separate endorsement for issuance of detaining order on 7th August, 2007. Thus at this stage it does appear that the draft order of detention as also the draft grounds of detention were very much before the Detaining Authority on the basis of which, as aforesaid, it was open for the detaining authority to form an opinion as to the issuance of the detention order. Therefore it can not be said at this stage that there was non-application of mind on the part of the detaining authority in issuing the detention order. In other qords at this stage it does appear that there was proper application of mind by the detaining authority to the grounds of detention and consequent issuance of the detention order. 11. It appears that thereafter further generated 39 documents were forwarded by the Sponsoring Authority to the Detaining Authority along with its letter dated 9th August, 2007 - 14 - which were considered by the Detaining Authority and the Detaining Authority directed their inclusion in the papers relied upon, in support of the detention order, by making an endorsement on 18th August, 2007. . Thereafter it appears that the grounds were reformulated and the draft thereof was approved by the Detaining Authority on 23rd August, 2007. It appears that final detention order was signed and issued on 5th September, 2007. 12. In the light of aforesaid state of affairs, specific query was made to the learned APP during the course of argument as to what was the change effected by the Detaining Authority in the initial draft of detention order and/or grounds of detention after receipt of so called “further generated documents” from the Sponsoring Authority. The learned APP submitted that paragraph 10 of the grounds of detention was added. This paragraph 10 appears on page 16 of the compilation of the present Writ Petition, which reads only thus :- “I am aware that a show cause notice was issued to you by the Department on 06.08.2007”. . Thus, only one sentence, actually one line was added - 15 - in the grounds of detention, which were already prepared by the Detaining Authority before receipt of so called “further generated documents” and making endorsement for issuing detention order. Thus these so called further generated documents have not at all changed the complexion of matter at all. 13. We are satisfied with the clarification and/or explanation and/or reason given by the Detaining Authority in its affidavit in reply and as explained by the learned APP during the course of the arguments in regard to the time consumed and consequently the delay that has occurred (and not caused) by the Detaining Authority in issuing the detention order. We do not find any substance in the contention of the petitioner that the proposal of the Sponsoring Authority and the papers related thereto were gathering dust in the office of the Detaining Authority for considerable length of time and the Detaining Authority has failed to give any cogent reason and justifiable grounds as to the delay that has occurred in issuing the detention order. Even the analysis submitted by the learned counsel appearing on behalf of the petitioner does not at all show any inordinate delay as such at the hands of the detaining - 16 - authority in issuing the detention order. Though the time taken by the detaining authority is on the higher side and that though it may be possible to contend that the impugned action could have been taken by the detaining authority little earlier, in our view in this case it can not be held that there was so much inordinate and un-explainable delay that was caused by the detaining authority that the action of the detaining authority is vitiated on the ground of such delay ipso-facto. 14. As regards the judgment relied on behalf of both the sides in support of their respective cases, we only say that each case will be decided in the facts and circumstances of that case. When the Court is called upon to decided an issue as to whether the Detaining Authority has properly explained, by giving justifiable grounds and/or reason, the time consumed by it in issuing the detention order, the same is required to be decided in the facts and circumstances of each case. - 17 - 15. Though not relied by either side we hereunder note what the Supreme Court has said, while dealing with a detention matter under the very said Act in the case of Abdul Salam alias Thiyyan Vs. Union of India and others reported in (1990) 3 SCC 15 : This extract is taken from Abdu Salam v. Union of India, (1990) 3 SCC 15, at page 21 : “.....................In our view, the delay has been reasonably explained. The courts have not laid down that on mere such delay the detention has to be struck down. In Yogendra Murari v. State of U.P.9 it is held that : (SCC p. 563, para 6) “... it is not right to assume that an order of detention has to be mechanically struck down if passed after some delay.... It is necessary to consider the circumstances in each individual case to find out whether the delay has been satisfactorily explained or not.” That apart, we are unable to agree with the learned counsel that because of this delay the necessary nexus got severed and that the grounds have become stale and illusory. In appreciating such a contention, the court also has to bear in mind the nature of the prejudicial activities indulged by the detenu and the likelihood of his repeating the same. It is this potentiality in him that has to be taken into consideration and if the detaining authority is satisfied on the available material then on mere delay as long as it is not highly unreasonable and undue the court should not normally strike down the detention on that ground. In Hemlata Kantilal Shah v. State of Maharashtra 10 it is held that delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person. For these reasons we are of the view that in this case the delay by itself does not invalidate the detention but even otherwise it has been reasonably explained.” (emphasis supplied) 16. In the light of the aforesaid legal aspect of the matter - 18 - and on perusal of the file, especially the afore-quoted endorsements made from time to time therein by the Detaining Authority, we are of the view that on account of submission of the 'further generated documents' by the sponsoring authority, which required consideration by the detaining authority before issuance of the final detention order, delay has occurred (and not caused) by the detaining authority in issuing the detention order. In all probabilities, if the sponsoring authority were not to submit such additional documents with the detaining authority, the final detention order would have been issued at an earlier point of time. 17. Neither any other point was argued nor do we find any illegality in the issuance of the impugned detention order dated 5th September, 2007 bearing No. PSA-1207/CR-105/SPL-3(A). Therefore, we have no other option but to dismiss this petition, which we hereby do. 18. Rule is discharged. [ BILAL NAZKI, J.] - 19 - [ A. A. KUMBHAKONI, J.]