Judgment:
Bilal Nazki, J.
1. This is a petition filed by the brother of the detenu, who has been detained by order dated 16th August, 2007 in terms of provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. Though the order was passed on 16th August, 2007, it was executed on 22nd October, 2007. The grounds of detention were served thereafter. The Order of Detention has been challenged on various grounds.
2. The respondents have filed their counter-affidavit. We have gone through the record and heard the learned Counsel for the parties.
3. Essentially, there is only one ground of detention on which the detention has been ordered, and that relates to an incident of 3rd April, 2006, when the detenu arrived by a flight from Dubai, and on search, it was found that he was carrying -
(1) Ladies dress material - 06 Takkas of 35yards each,
(2) Bluetooth - Sony Ericsson HBH608 (without charger cord) 25 Nos.,
(3) AC/DC Adapter -06 Nos.,
(4) Bluetooth - Nokia type HS 11 WFCC (without charger cord) - 25 Nos.,
(5) Bluetooth - Motorola HS 850 (without charger cord) - 10 Nos.,
(6) DV 5120519138, MC - IGH512 DACU - PC & CE T700300610 - 491 Nos.,
(7) All in one card reader - 01 No. ,
(8) Fortex Multi Card Reader - 01 No. , and
(9) Mobile Plastic Cover outer bodies - 100 Nos.
The local market value of these goods was assessed at Rs.7,26,900/-. It was also found that he was carrying certain jewellery, the cost of which was assessed at Rs.5,90,989.60. The process under the Customs Act, 1962 was initiated. The detenu was arrested and subsequently released on bail. A show-cause notice was issued to him to which he replied, and ultimately, an order was passed on 29th December, 2006. The Joint Commissioner of Customs, by his order, ordered confiscation of dutiable foreign goods and gold jewellery, which he valued at Rs.10,74,590/-, but also gave an option to the detenu to redeem the goods on payment of redemption fine of Rs.2 lakhs. Therefore, the whole matter was concluded, and the goods were not confiscated, because the goods were not banned goods and could have been imported.
4. The matter was concluded on 29th December, 2006, but the Order of Detention was surprisingly passed on 16th August, 2007. It is 16 months after the incident, and about 8 months after conclusion of proceedings under the Customs Act. The only explanation given in the counter-affidavit for the delay is that material was being re-generated, and it was being received by the Detaining Authority, but on file, there is no material which could have been re-generated after 29th December, 2006 when the final order was passed by the Assistant Commissioner of Customs. In the counter, it is stated that the further generated material was received for the last time on 16th April, 2007.
5. We have seen the file. On 16th April, 2007, the material that was sent to the Detaining Authority was the final order passed on 29th December, 2006 by the Assistant Commissioner, to which we have already referred. If it takes four months for the order of the Assistant Commissioner to reach the Detaining Authority, that cannot be taken as an explanation for the delay. In any case, even after 16th April, 2007, she took another four months to finalise the Order of Detention on the pretext that the material that was before her was in English and the detenu knew Hindi, and it took about two months to translate the documents. Since there is no plausible explanation for the delay of 16 months, the incident can be taken to be too remote in point of time. Admittedly, during those16 months, i.e., between the incident and the Order of Detention, the detenu had not indulged in any activity, which was prejudicial to the conservation of foreign exchange.
6. The learned Counsel for the petitioner has relied on a judgment of the Supreme Court in V.C. Mohan v. Union of India and Ors. reported in : 2002(7)ELT141(SC) . The relevant portion of paragraph 8 is quoted below:
Significantly, though the incident noticed above took place on 24-7-2000 and other important documents have come into existence immediately thereafter, the detaining authority did not pass the detention order immediately but only after a lapse of about seven months i.e. on 1-3-2001. During this interregnum, however, the detenu admittedly did not indulge in any illegal activities and it is in this context Mr.Mani, learned advocate appearing in support of the petition with his usual eloquence, contended that the incident of 24-7-2000 had become stale and irrelevant and it is too remote in point of time and as such, question of there being any detention order on the basis thereof would not arise.
7. She also relied on another judgment of the Supreme Court in Issac Babu v. Union of India and Anr. reported in : (1990)4SCC135 .
In this case, the seizure had been effected on November 30, 1986. Investigation commended in April, 1987. It took five months to complete the investigation after seizure. But the proposal for detention was not moved till August 27, 1987. Therefore, there was a delay of four months, and this delay was sought to be explained for the following reasons:
After investigation the case records were processed for issue of show cause notice as it is mandatory under the Customs Act, 1962 to issue show cause notice to the persons involved in the case within 6 months from the date of detection of the case. In this case, show cause notice was issued on May 18, 1987 to the detenu and others. After the issue of show cause notice the voluminous records were processed for initiating COFEPOSA action.
This reason was not accepted by the Supreme Court, and the Court held, 'It was not incumbent on the authorities to wait till the issue of the show cause notice. The need to issue a show cause notice within 6 months has nothing to do with the processing of the detention papers.'
8. If the same judgment is followed, then, in the present context, it should be said that once the incident occurred on 3rd April, 2006, the Detaining Authority could have immediately passed an order of detention. It had neither to wait for show-cause notice under Section 108 of the Customs Act, 1962, nor the reply of the detenu nor the final order.
9. The learned Additional Public Prosecutor has, however, drawn our attention to another judgment of the Supreme Court in D. Anuradha v. Joint Secretary and Anr. reported in : 2006CriLJ2784 , in which there was a delay of two years, and the Court did not think it necessary to quash the order of detention. The Supreme Court gave reasons for not accepting the contention that the incident was too remote, because the delay was explained. The detenu in that case was a Non Resident Indian. There were various transactions, which needed to be checked and cross-checked. The checking and cross-checking even with foreign nationals took time. Therefore, the delay, according to the Supreme Court in that case, stood explained. Hence, this judgment would not govern the present case.
10. In the result, this Writ Petition is allowed. The impugned Order of Detention dated 16th August, 2007 issued by the Principal Secretary (Appeals and Security), Home Department, Government of Maharashtra, against the detenu, Javed Dilawar Khan, is quashed and set aside, and the detenu is directed to be released from detention forthwith, if not required in any other case.