Judgment:
B.H. Marlapalle, J.
1. The order of detention dated 1/12/2007 passed under Section 3(1)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short the Act), by the Principal Secretary (Appeals and Security), Government of Maharashtra, Home Department and Detaining Authority, is under challenge in this petition filed under Article 226 of the Constitution. The said order was served on the detenue - Harnish Prabhudas Ghutla @ Kanha (the petitioner's son) on 5/1/2008 at Veraval, Taluka Junagadh in the State of Gujarat along with the statement of reasons and other connected documents and was detained in the Mumbai Central Jail, Arthur Road on 6/1/2008 and continues to be in detention as of now. The period of detention is one year from the date of detention i.e. from 5/1/2008.
2. Though a number of grounds have been raised against the impugned order of detention, the learned Counsel for the petitioner has confined her arguments only to the following grounds:
(a) The detenue was arrested on 9/3/2007 and was released on bail on 10/3/2007. Show cause notice was issued to him on 31/8/2007 by the Additional Director General, Directorate of Revenue Intelligence, Mumbai Zonal Unit. However, the detention order was passed on 1/12/2007 and, therefore, the order was passed belatedly and leisurely i.e. after a lapse of nine months, the delay caused was inordinate, inexcusable and unexplained and the detenue, not having indulged in any prejudicial activity during the said period of nine months, more particularly from the date of his release on 10/3/2007, the live link was snapped. The grounds of detention were proximate and the impugned detention order was punitive.
(b) The detention order was passed relying upon irrelevant and extraneous documents (pages 99 and 100) for clamping down preventive detention on the detenue and the satisfaction arrived at by the detaining authority was sham and unreal. The detention order was, therefore, mala fide, null and void.
(c) The detention order was without application of mind and there was no need to resort to extraordinary action of preventive detention. The detenue was only an employee of Jagdish on an initial monthly salary of Rs. 2500/-, which was subsequently increased to Rs. 5000/- and in that capacity he was receiving passengers, goods/parcels, collecting air tickets from the travel agents as per the instructions of his employer and, therefore, clamping down the order of preventive detention on him was unwarranted and unjustified. There was no record to show that the detenue was involved in smuggling of goods or he was receiving any commission either from Pradipbhai or Jagdishbhai, the main accused. After his detention, he was away in Gujarat at his native place - Veraval in Gujarat State till he was arrested by the Head Police Station, Veraval on 3/1/2008 and, therefore, there was no material on record for the satisfaction of the detaining authority that the detenue had indulged in any act which amounted to abetting smuggling. Consequently, the detention order has been passed without any justification and without application of mind to decide whether the detenue was capable of assisting or abetting in the acts of smuggling.
(d) The detenue was arrested on 3/1/2008 by the police officer attached to the Head Police Station, Veraval and was kept in lockup continuously till he was served with the impugned detention order by the officers of PCB, CID, Mumbai along with the officer of DRI on 5/1/2008 at about 7.00 p.m. The detenue was in illegal custody from 3/1/2008 till 5/1/2008 when he was actually taken into detention after the service of the impugned order, his personal liberty was taken away and when the detenue was in illegal detention, the impugned order was served on him, the order of detention is vitiated solely on that ground.
3. Mrs. Ansari, the learned Counsel for the petitioner, also submitted that the subjective satisfaction of the detaining authority, as stated in the order of detention, and in the statement of reasons annexed thereto, is at variance in as much as in para 27 of the statement of reasons the detention is claimed to be under Section 3(1)(i), whereas in the order of detention it is shown to be under Section 3(1)(ii) of the Act. We have perused the statements of the detenue recorded under Section 108 of the Act on more than one occasions and there is no doubt that the impugned order has been passed under Section 3(1)(ii) of the Act i.e. for preventing the detenue from abetting the smuggling of goods. Mrs. Ansari also stated that though the order of detention was passed on 1/12/2007, it was served only on 5/1/2008 and on this ground also the casual and leisurely attitude of the authorities is writ large to indicate that there was no justification to pass the impugned order. We are not impressed by these submissions. From the record it is clear that when the detenue was taken in detention he had given his address of Mumbai and, therefore, at the first stage the order of detention was sought to be served at the said address. He was not traceable and then the authorities went through the record once again and noted his permanent address in Gujarat and got in touch with the Veraval Police Station. On 3/1/2008 the Veraval Police Station informed about the availability of the detenue and, therefore, the officers went to the said police station and served the detention order on the detenue. This explanation deserves to be accepted.
On the issue of delay in passing the impugned order, Mrs. Ansari has relied upon the following decisions:
(i) Abdul Majid Tinwalla v. The State of Maharashtra and Ors. Criminal Writ Petition No. 2380 of 2007 decided on 8/4/2008
(ii) Jehova Vision Uche Umeeurike v. The State of Maharashtra and Ors. Criminal Writ Petition No. 1008 of 1992 decided on 5/11/1992.
(iii) Shri Ravinder Pal Singh Washar v. The State of Maharashtra Criminal Writ Petition No. 1087 of 1993 decided on 11/10/1993.
(iv) Shri Yeshwant Laxmilal Pamecha v. Union of India and Ors. W.P. No. 698 of 1994 decided on 27/9/1994.
4. So far as the issue of delay caused in passing the impugned order of detention is concerned, the detaining authority in her affidavit-in-reply has stated that the Sponsoring Authority decided to initiate the proposal for taking preventive action against the detenue and forwarded to the Screening Committee on 23/3/2007 and the said Committee approved the proposal in its meeting held on 24/4/2007. The proposal was forwarded to the office of the detaining authority and it was received on 23/5/2007. The concerned Assistant prepared a scrutiny note on 21/6/2007 and submitted the Secretary who endorsed it on 22/6/2007. In between, there were holidays on 26/5/2007, 27/5/2007, 3/6/2007, 9/6/2007, 10/6/2007 and 17/6/2007. The Deputy Secretary made his endorsement on 26/6/2007 and was forwarded the same to the detaining authority who endorsed the proposal on 30/6/2007 and called for information. The Sponsoring Authority furnished the information vide its letters dated 4/7/2007 and 5/7/2007. On 19/7/2007 the concerned Assistant prepared a note and submitted to the Under Secretary who endorsed it on the same day and forwarded to the Deputy Secretary. The note was endorsed by the Deputy Secretary on 20/7/2007 and submitted it to the detaining authority. A letter was sent to the Sponsoring Authority on 25/7/2007 for holding a meeting for discussion which was held on 6/8/2007 and on the same day the concerned Assistant prepared a note and forwarded along with the papers to detaining authority. The detaining authority directed to issue the order of detention on 7/8/2007 and formulated the draft grounds of detention. Vide the letter dated 8/8/2007 the Sponsoring Authority forwarded further generated documents. The concerned Assistant prepared a note on 18/8/2007 and forwarded to the Under Secretary who endorsed it on the same day and forwarded to the Deputy Secretary. On the same day the Deputy Secretary endorsed it and submitted to the detaining authority, who formulated the grounds of detention and directed to include further generated documents on 21/8/2007. The Sponsoring Authority forwarded further generated documents vide its letter dated 27/8/2007 and the concerned Assistant prepared a note on 29/8/2007 and submitted to the Under Secretary, who endorsed it on the same day and forwarded to the Deputy Secretary. On 29/8/2007 the Deputy Secretary endorsed it and submitted to the detaining authority, who directed to include further generated documents. The same exercise was again don when the Sponsoring Authority vide its letters dated 3/9/2007 and 26/9/2007 forwarded further generated documents. On 4/10/2007 the detaining authority formulated the grounds of detention and directed to include these additional documents as well. Draft detention order was prepared on 10/10/2007. Enquiries were made whether reply to the show cause notice issued by the Sponsoring Authority was received vide letter dated 15/10/2007 and subsequent reminder was sent on 17/11/2007. The Sponsoring Authority forwarded the information vide its letter dated 19/11/2007 which was received on the next day and the Under Secretary endorsed the draft detention order on 23/11/2007 and submitted to the Deputy Secretary, who endorsed it on 26/11/2007 and submitted to the detaining authority. The draft was approved on 26/11/2007 and the detention order was passed on 1/12/2007.
5. It is true that in some pockets the delay was not properly explained. For example, the Screening Committee received the proposal from the Sponsoring Authority on 23/3/2007 but the proposal was approved in its meeting held on 24/4/2007. The Sponsoring Authority submitted the proposal to the detaining authority on 23/5/2007 i.e. after one month. Similarly, a letter was sent to the Sponsoring Authority on 15/10/2007 and a subsequent reminder was sent one month later i.e. on 17/11/2007. However, these delays and unexplained, by themselves will not vitiate the detention order. In the case of Rajendrakumar Natvarlal Shah v. State of Gujarat and Ors. : 1988CriLJ1775 Supreme Court held, 'Viewed from this perspective, we wish to emphasise and make it clear for the guidance of the different High Courts that a distinction must be drawn between the delay in making of an order of detention under a law relating to prevention detention like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and the delay in complying with the procedural safeguards of Article 22(5) of the Constitution. It has been laid down by this Court in a series of decisions that the rule as to unexplained delay in taking action is not inflexible. Quite obviously, in 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 large 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. Taking of such a 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....'
6. Mr. Borulkar, the learned Public Prosecutor, rightly placed reliance on the decision in the case of Sheetal Manoj Gore v. State of Maharashtra and Ors. (2006) 7 SCC 560. The order of detention passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 on 27/1/2006 came to be challenged in a petition filed under Article 32 of the Constitution and one of the grounds raised was the delay caused in passing the order of detention. The statement of the detenue under Section 108 of the Customs Act, 1962 was recorded on 30/3/2005. The Screening Committee in its meeting held on 14/6/2005 had approved the proposal for detention and it was received by the detaining authority on 7/7/2005. The scrutiny was undertaken and further generated documents were received on 12/9/2005. A detailed note was prepared on 26/9/2005 and the Deputy Secretary had prepared his note and gave his endorsement on 20/10/2005. The detaining authority on 21/10/2005 had given an endorsement and further generated documents were received on 18/11/2005. The detention order was passed on 27/1/2006. The Supreme Court held that there was no delay on the part of the authorities in taking necessary steps in connection with the issuance of the order of detention. Their Lordships observed,
7. ...No doubt, if there is inordinate delay in issuing the order of detention, it may well be argued that the live link between the prejudicial activity of the detenu and the purpose for which the order of detention is issued is snapped, and being stale there was no justification for issuance of an order of detention. In the facts and circumstances of this case, we are satisfied that the details furnished by the detaining authority provide sufficient explanation for the time taken in issuing the order of detention. We are also satisfied that the detaining authority was conscious of the fact that the matter required immediate attention, but in view of the voluminous record which had to be scanned and scrutinised before issuance of the order of detention, the order could not be issued earlier.
These observations apply aptly to the facts of the instant case as well and we are satisfied that there was no unexplained delay caused in issuing the impugned order of detention. We are also satisfied that the allegation of the live link being snapped in issuing the order of detention on 1/12/2007 is devoid of merits.
7. The detention order is based on voluminous documents running into 488 pages and it cannot be said that it was passed only on the basis of documents at pages 99 and 100 which were seized from one Mr. Manishn Shah. These were the parts of the documents received during the course of panchanama dated 3/7/2007 drawn in the DRI's office regarding the personal search of Mr. Manish Vinod Shah, the brother of Shri Deepak Shah. In his personal search a letter running into two pages and written in Gujarati language, purportedly by Smt.Sheetal Shah to her husband Shri Deepak Shah was recovered. Pages 99 and 100 are nothing but the said letter. The said document cannot be said to be totally irrelevant and at the same time it cannot be denied that the said letter provides sufficient clue for further investigation. We, therefore, do not find any merit in the contentions that these documents were irrelevant and the impugned order was passed on the basis of such documents. These two pages document was also included in 88 documents on the basis of which the impugned order was passed.
8. Coming to the ground of justification of the impugned order on the ground of the apprehension of abetting smuggling, we must note that the statement of the detenue recorded under Section 108 of the Customs Act, 1962 is self explanatory. Though the detenue was employed as a driver by Mr. Jagdish Bhat and he did not have much educational background, the fact remains that he was aware of the activities of Mr. Jagdishbhai and more particularly of receiving gold and diamond jewellery. He was not only collecting air tickets and reaching the passengers to or receiving them from the Air Port and in deed he was also collecting parcels brought by such passengers and/or he was handing over parcels to such passengers. He was also aware of the contents of these parcels and was quite familiar in the destinations to reach these smuggled goods. In short, he had acquired sufficient knowledge of the smuggling activities without perhaps realising that it was called smuggling. He was a runner for the main smuggler and was familiar of the game of smuggling. He had acquired sufficient experience in assisting smuggling. Mr. Jagdishbai and Pradeepbhai, who were the main accused, were missing and were not traceable. The detenue undoubtedly was capable of continuing the activities of Jagdishbhai on his instructions and thus Jagdishbhai would have acted as a remote controller through the detenue in continuing with the smuggling activities. It would have been different if both of them were also detained, but they managed to be at large. Though it is accepted that after the detenue was released on bail, he was not available in Mumbai and had gone to his native place, the possibility of his engaging in the activities of smuggling or abetting such activities could not be overruled and, therefore, the apprehensions of the detaining authority that the detenue was capable of abetting smuggling of gold and diamond jewellery was justified. Though he did not himself participate in the smuggling activities but certainly his own statement recorded under Section 108 of the Customs Act that he was abetting smuggling and he was not an innocent driver who were merely reaching the passengers to the Air Port or receiving them. We, therefore, did not find any merit in the contentions that the detention order was unjustified and without application of mind.
9. Coming to the last ground, it was urged that the detention order was served on the detenue when he was in an illegal detention by the Gujarat Police. The detaining authority in her reply has denied that the detenue was arrested in Gujarat on 3/1/2008 and he was kept in lock-up. The affidavit further states that enquiries with Shri Harnish Prabhudas Ghutla @ Kanha had revealed that he along with Mr. Jagdish were staying at Flat No. B-28, Gurukul Co.Op. Housing Society, S.V, Road, Dahiser (East) and the order of detention was sought to be served on the said address by the PCB CID, Mumbai but the detenue was not found and it was informed that the said premises were under lock since last 6 to 7 months. Thereafter the detenue's address in Gujarat was located on his passport i.e. Jay Somnath Studio, Tower Chowk, Veraval, Junagad District and the said address was communicated to the executing authority (PCB CID). The executing authority contacted the police authority of Gujarat to verify the whereabouts of the detenue and accordingly Veraval Police Station on 3/1/2008 telephonically informed the executing authority at about 7.30 p.m. about the detenue having been found at the above address. The Sponsoring Authority, after taking permission, immediately proceeded to Gujarat and it executed the detention order on 5/1/2008. The time of execution of the order of detention on the detenue has not been stated in the affidavit-in-reply and, therefore, we will have to accept the contention of the detenue that the said order was served on him in the night (7 p.m.) when the officers of the PCB CID, Mumbai along with the officers of the DRI reached the Veraval Police Station. It is the case of the detenue that he was in police custody at Veraval Police Station for more than 48 hours and he was not presented before the nearest Magistrate's court within 24 hours from his detention at about 7.30 p.m. on 3/1/2008. In the reply filed by the detaining authority, except denial no further details have been provided so as to deal with the allegation of the detenue that he was in illegal custody continuously for more than 48 hours before the detention order was served on him.
10. The PCB, CID, Mumbai or any officer from DRI has not filed an affidavit-in-reply to deny these allegations of illegal detention for more than two days, nor any record has been placed before us in support of the contentions of the detaining authority that the detenue was not in illegal custody for more than two days when the detention order was served on him. However, Mr. Borulkar placed before us a copy of the letter dated 16/6/2008 he received from the Senior Police Inspector, PCB, CID, Mumbai and as per the said letter the detenue was under serveillence from 3/1/2008 till the order of detention was served on him in the night of 5/1/2008. This plea of serveillence is not supported from any documents on record and the personal knowledge on this issue could be attributed only to an officer from PCB, CID, Mumbai or any officer of DRI who was a member of the party which went to Verval Police Station and served the order of detention on 5/1/2008 on the detenue. The affidavit submitted by the detaining authority on this issue is not supported from any report, either received from the Veralval Police Station or from an officer from DRI or PCB, CID, Mumbai. We, therefore, have no alternative but to accept the contentions of the detenue that he was under detention from about 7 p.m. on 3/1/2008 till the detention order was served on him in the night of 5/1/2008 i.e. for about 48 hours and without being presented before the competent Magistrate within 24 hours from his detention.
11. Article 22(1) of the Constitution of India states that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. Article 22(2) states that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
There is nothing on record to show that when the detenue was taken in custody by the Veraval Police Station he was informed of the reasons for such detention and that he was offered the right to consult and to be defended by a legal practitioner of his choice. He was also not produced before the Magistrate within 24 hours of his arrest on 3/1/2008. Thus, the constitutional guaratee under Article 22(1) and (2) was denied to the detenue.
12. The law of preventive detention is a drastic law as it authorises detentions without trial in a Court of law and is in a way an encroachment on the liberty of an individual which is the cherished freedom guaranteed by our Constitution. At the same time the need for such a law in larger public or national interest has been recognised by our Constitution by providing certain minimum safeguards in order to mitigate the rigour of law and to ensure that there is no unjustified detention and even the detention is not continued beyond certain period. In the instant case, as noted earlier, the impugned order of detention was served on the detenue when he was in illegal custody of the police at Veraval and it is not possible to accept that he was only kept under surveillance by the said police. In our considered view, the impugned detention order is vitiated on this sole ground and, therefore, it deserves to be quashed and set aside on that ground alone. The learned Counsel for the detenue has rightly relied upon the decision of this Court in the case of Yeshwant Pamecha (Supra). This Court observed as under:.After going through the relevant portion of the petition in ground No. 10 in conjunction with the reply filed by respondent Nos. 1 and 2 and also by respondent Nos. 3 and 4 we are of the opinion that the detenu was apprehended on 7th May 1994 at night and thereafter was in the custody of the affiant police officer and Custom Officer till he was brought to Bombay. It is also an admitted position from the record that the impugned detention order was served upon the detenu on his arrival at night on 8th May 1994 at the Airport. From these facts it is clear that from the time the detenu was apprehended by the affiant police officer and the Custom officer at his native place in Nathdwara in the night of 7th May 1994 till he was served with the order of detention at about 9.00 p.m. on 8/5/94 at Udaipur Airport, the detenu was in detention for which he was not served with any valid order of detention. As the order of detention was not communicated to the detenu at the time of his detention in the night on 7th May 1994 till 9.00 p.m. on 8th May 1994 the said initial detention till the order of detention was served upon the detenu has become illegal and therefore subsequent continuation of the same also cannot be sustained.
13. Hence the petition succeeds and the same is hereby allowed. The impugned order of detention is quashed and set aside. It is directed that the detenue - Shri Harnish Prabhudas Ghutla @ Kanha be released forthwith unless required to be detained in any other case.
Rule is made absolute accordingly.