A.R. Lakshmanan, J.
1. Heard Mr. Sudheendra Kumar for the appellant and Mr. Alexander Thomas, Government Pleader for the State.
2. The appellant herein is the petitioner in the Original Petition, which was filed challenging Ext. P 1, issued by the Government of Kerala dated 5-2-96 in exercise of its powers conferred by Section 3(1)(i) and 3(1)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974), detaining the petitioner herein with a view to preventing him from smuggling goods.
3. According to the appellant he is employed in Dubai. A detention order was passed on 5-2-96 against him on the ground that three cartons of duck eggs attempted to be exported to Dubai by one Messrs. Fathima Enterprises, Moovattupuzha, contained concealed foreign currency to the tune of Rs. 45,11,588.75 when the D. R. I. Authorities examined the same at Trivandrum Air Cargo Complex. The statement of one Yusuff, Managing Director of M/s. Fathima Enterprises, Muvattupuzha was recorded by the authorities in connection with the seizure under Section 108 of the Customs Act, 1962. According to the appellant, the said statement of Yusuff was retracted by petition dated 27-7-95 alleging threat and duress. It is also submitted that at the alleged time of seizure the appellant was at Dubai and his address was known to the Senior Intelligence Officer, Directorate of Revenue Intelligence, Trivandrum. The said Officer did not take any steps to issue summons to the appellant to his known address at Dubai and record his statement, but issued summons to his address at Moovattupuzha where his aged mother was residing. According to the appellant, the summons was not served on him and that Ext. P-1 order was passed without hearing him or without having any evidence against him, other than the statement of the said Yusuff. It is alleged that Ext. P-l order was passed mechanically, without any subjective satisfaction of the second respondent. It is also alleged and argued at the time of hearing that even though the order of detention was passed on 5-2-96, no steps have been taken by the respondents to implement the order of detention till date, though the address of the appellant was known to them. The non-execution of the order of detention even after an unexplained period of three years and four months has taken away the live and proximate link between the grounds of detention and the very purpose of detention. It is the case of the appellant's counsel that if the purpose of detention is the prevention of smuggling activities, live and proximate link must always be there in justification of preventive detention and if it is not there, justification for detention cannot be there. Therefore, the satisfaction that immediate detention of the appellant is required, cannot be genuine. With these allegations the appellant filed the Original Petition with a prayer for a mandamus directing the respondents not to take further steps pursuant to Ext. P-l detention order and detain the appellant on the basis of that order. The second respondent filed a detailed statement on 28-6-99 and an additional statement on 31-7-99.
4. K. S. Radhakrishnan, J. by his judgment dated 18-8-99, on a consideration of the exhibits filed before him and of the statement and other documents, held that the charge leveled against the appellant is serious, which affects the country's economy and national interest and, therefore, the learned Judge declined to interfere with the detention order. The learned Judge has also opined that steps have been taken by the authorities to execute the detention order and all formalities under the COFEPOSA Act were complied with and that the contention of the appellant that there is inordinate delay in executing the order from the date of detention order, cannot at all be accepted.
5. Being aggrieved by the above judgment, the appellant filed the present appeal, reiterating the very same grounds. It is alleged in the appeal that nearly four years have been elapsed since the alleged incident, nothing has been heard or found out regarding the involvement of the appellant in any smuggling activities and, therefore Ext. P-1 order of detention is totally unwarranted. It is further submitted that there is no criminal case pending against the appellant in connection with the alleged seizure of foreign currency and the detention order passed against the appellant is highly illegal and would offend the fundamental rights of the appellant guaranteed under Articles 12, 21 and 22 of the Constitution of India.
6. In the Writ Appeal, a statement was also filed by the counsel for the appellant, Mr. Sudheendra Kumar. It is stated in the said statement that after the occurrence of the alleged incident, the appellant visited India so many times and the appellant had been to India for signing the Vakalath and also the affidavit in the Original Petition and also in the Writ Appeal. The authorities which passed Ext. P- 1 order, did not take any sincere and genuine effort to arrest and detain the appellant, of his availability in India. The address of the appellant at abroad was also well within the knowledge of the authorities as is evident from Ext. P-2 and also from the statement filed by the respondent. It is further stated. that the order of attachment of property prior to proclamation is bad in law as per the provisions of Section 83, Cr.P.C. and the order of attachment under the said section can be issued only after the proclamation or in exceptional circumstances simultaneously at the time of proclamation. The purpose of attachment under Section 83 is to prevent the transfer of property by the proclaimed person to third parties to defeat the process of law. But the purpose of proclamation is to curtail the free movement of the offender and also to bring the offender before law by general public having the knowledge regarding the proclamation. The proclamation also enables the offender to have notice regarding the requirement of him by the authorities.
7. It is further stated that the enquiries allegedly made by the police to arrest the appellant are totally false and that the authorities have been totally passive in enforcing Ext.P-1 order of detention. Having failed to take any steps by the authorities, it cannot be said that the appellant was absconding. It is further stated that the strict compliance with the provisions of law by the authorities may be insisted upon, so as to between the interest of the country and also the individual interest, which in turn would help to sort out the absconding persons from other persons.
8. Per contra the arguments of learned counsel for the appellant was opposed by the learned Government Pleader by inviting our attention to the two statements by the State and also placing the entire detention records from the authorities concerned. We have also directed the Chief Judicial Magistrate, Ernakulam to forward the entire records in M. P. 3739/96. Accordingly the Chief Judicial Magistrate has placed before us the entire records for our perusal. We have also perused the entire records and also various orders passed by the Chief Judicial Magistrate. A perusal of the records submitted by the Chief Judicial Magistrate would only go to show that the said Court has taken proper and necessary steps in this regard. Proceedings in M. P. 3739/96 was taken on file on 18-4-96. Following dates are relevant in order to appreciate the steps taken by the Chief Judicial Magistrate, Ernakulam in this regard :-
17-5-96 : Repeat through, returnable to
25-7-96
25-7-96 : Repeat, returnable to 24-10-96
24-10-96 : Repeat through, concerned re-
turnable to 31-12-96
31-12-96 : Repeat through concerned, ret-
urnable to 26-3-97
26-3-97 : Repeat through the concerned,
returnable to 19-6-97. Issue
steps u/Sections 82, 83 against the
accused
19-6-97 : For 82, 83 steps to 31-7-97
31-7-97 : Repeat NBW through concerned,
S.P. Adjourned to 31-10-97
31-10-97 : No sitting notified to 9-12-97
9-12-97 : Repeat MBW through S. P. to 1-
4-98
1-4-98 : Accused absconding as per report
of the police 82, 83 steps re-
turned to 2-6-98
2-6-98 : Repeat NBW. For adjourned to
22-10-98
22-10-98 : NBW issued through S. P. con-
cerned to 21-12-98
21-12-98 : No sitting notified to 9-3-99
9-3-99 : No sitting notified to 13-4-99
13-4-99 : Accused absent. Issue NBW to
16-6-99
16-6-99 : Accused absent. Issue fresh NBW
to 12-8-99
12-8-99 : Accused absent. Issue fresh NBW
to 1-10-99
1-10-99 : Issued NBW to 16-12-99.
9. It is also seen from the records placed before us that on 16-7-95 Messers. East West Travels and Trade Links Ltd., Trivandrum, as Custom house agents, submitted a shipping bill dated 15-7-95 supported by other relevant documents to the Customs authorities at Trivandrum Air Cargo Complex for export of 48 cartons/bags of vegetables and fruits and 3 cartons of duck eggs totally valued at Rs. 8,804/- to Dubai via Male, on behalf of M/s. Fathima Enterprises, Muvattupuzha. The export documents were signed by Yusuff as the Managing Partner of M/s. Fathima Enterprises. The said cargo was brought to the export bay of the said complex by one D. Jayakumar as the representative of the said exporter. All the said 51 packages were marked as TTT/ DXB. As per the invoice, packing list etc. the total weight of the consignment was about 500 kgs. and the same was consigned to M/s. Three Tower Trading Establishment, Dubai to be flown by air Maldives flight. After customs examination the packages were put through security X-ray of Air India. Some concealment was noticed in three card boards containing duck eggs and hence one of the said three card board boxes was cut opened and foreign currencies were found concealed in between the corrugated portion. Air India officials informed the matter to the Senior Intelligence Officer, Trivandrum and the Senior Intelligence Officer immediately rushed to the spot. On knowing about the finding of foreign currency in the consignment, Customs officials also came to the scene. Sri P. M. Yusuf, who was then staying at Priya Tourist Home was brought to the spot. Thereafter, in the presence of the said Yusuf, independent witnesses and Air India officials, Senior Intelligence Officer and Customs officials opened and examined the said three packets. The said cartons which were serially numbered from 49 to 51 contained duck eggs. The trays containing duck eggs were removed and side walls of all the three cartons were cut open and foreign currencies were found concealed in between the corrugated portions of the four side walls of all the said cardboard cartons. Foreign currencies of different countries equivalent to Rs.45,11,586.75 were found concealed in the above manner. When asked about the said foreign currencies, Mr. P. M. Yusuf informed that the same were given to him by one Khader to be exported to Dubai and that he had done the same on instruction from one Ashraf (appellant/petitioner) who is at Dubai. Therefore, the said Intelligence Officer seized the foreign currencies on the reasonable belief that the said currencies were attempted to be smuggled out of India and are liable to confiscation under the Customs Act. The shipping bills and connected documents filed on behalf of M/s. Fathima Enterprises, the cardboard cartons used for concealment and the export consignment were also seized under the said mahazar. Immediately after the seizure, Mr. P. M. Yusuf had given a statement before the Senior Intelligence Officer under Section 108 of the Customs Act wherein Yusuf had stated that he is the Managing Partner of Fathima Enterprises, that for export of 51 packages of fruits, vegetables and duck eggs to Dubai a shipping bill assigned with No. 150 15, dated 15-7-95 was filed by M/s. East West Travels Tradelinks, Trivandrum with air cargo customs, Trivandrum, that the said consignment to be exported to Dubai via Male was examined and foreign currency equivalent to Rs. 45 lakhs were recovered from the box containing duck eggs and the same is seized by the Senior Intelligence Officer, Trivandrum and that he discussed the prospectus of exporting vegetables etc. through Trivandrum with Ashraf, who was a friend of his younger brother, that Ashraf was working with M/s. Three Tower Trading Establishment, Dubai and that he agreed to export vegetables etc. Ashraf promised to give him Rs. 25,000/- as remuneration for every consignment of foreign currency smuggled out. The said Yusuf was arrested on 17-7-95 by the Senior Intelligence Officer and produced before the Chief Judicial Magistrate, Trivandrum who, remanded him to judicial custody and later released on bail. The residence of Ashraf was searched by the Inspector of Central Excise and following documents were seized :-
1. Visiting card of Fathima Enterprises, Moovattupuzha.
2. A letter written by Ashraf to Ansar.
3. Letter dated 29-4-95 written to one Ansar.
4. Letter written by Ashraf on 15-11-94 from Dubai in the letter of M/s. Three Towers Trading Establishment, Dubai.
5. Order original VIII/10/68/88 Cus Adj., dt. 29-12-1998 passed by Deputy Collector of Customs, Cochin confiscating the 27 gold biscuits and the materials like RCR, VCP, Dinner Set etc. seized from Ashraf on 10-3-1988 at Trivandrum Airport.
10. Summons issued by the Senior Intelligence Officer dated 30-8-1995 to ascertain address was returned undelivered by the postal authorities with a remarks 'Addressee working Gulf country'. A fresh summons issued to him in his residential address by the Senior Intelligence Officer dated 18-9-95 to appear on 5-10-95 was pasted in the residence by Inspector of Central Excise, Moovattupuzha on 4-10-95. He had not appeared before the Senior Intelligence Officer, for the purpose of investigation. After investigation of the case, the Directorate of Revenue Intelligence furnished proposals for detention of the appellant under Section 3(1)(i) and 3(1)(ii) of the COFEPOSA Act. The Government have examined the proposal in detail under the procedure established by law and issued Ext. P-1 order on 5-2-96 after arriving at the subjective satisfaction of the detaining authorities. The detention order was forwarded to the Superintendent of Police, Ernakulam (Rural) for immediate execution who, in turn, reported that the warrantee is concealing to evade arrest. Hence action under Section 7(1) of the Act has been initiated against him. The Chief Judicial Magistrate, Ernakulam has reported that the warrantee has no property in his name and hence fresh non-bailable warrant has been issued against him.
11. The following dates would also clearly show in regard to the steps taken by the police authorities in executing the order of detention :
12-2-96 Ext. P-l order was received by the Superintendent of Police and forwarded to the Deputy Superintendent of Police, Moovattupuzha. The Superintendent of Police, Ernakulam (Rural) has again directed the Deputy Superintendent of Police, Aluva and Muvattupuzha to take urgent steps for the execution of the detention order. It was also directed that the concerned Assistant Collector of Customs/Central Excise may be contacted for the purpose of identification of the warrantee.
25-2-96 The Deputy Superintendent of Police, Moovattupuzha has reported to the Superintendent of Police, Ernakulam (Rural) that the enquiries have been made about the appellant and it is known that the said warrantee had left his native place about one year back and his present whereabouts are not known to his family members. The Deputy Superintendent of Police has also stated in his reports that there is a rum our that the warrantee, has gone abroad.
16-3-96 The Deputy Superintendent of Police, Moovattupuzha has sent a wireless message to the Superintendent of Police, Ernakulam (Rural) informing that in spite of continuous enquiry the whereabouts of the warrantee could not be ascertained. His family members are also not aware of his present whereabouts.
12-4-96 The second respondent had requested the Judicial Magistrate, Ernakulam to take action for attachment of the landed properties of the warrantee under Section 7(l)(a) of the COFEPOSA Act since the warrantee is concealing himself so as to prevent execution of the detention order. The second respondent issued an order under Section 7(1)(b) to publish the matter in the Gazette and directed the warrantee to appear before the Superintendent of Police, Ernakulam (Rural) within thirty days from the date of publication.
27-8-98 The concerned Village Officer has filed a report that the appellant has no property in his name and hence attachment warrant is not executed.
22-10-98 Non-bailable warrant has been issued.
17-10-98 (sic) The Superintendent of Police, Ernakulam (Rural) had again directed the Deputy Superintendent of Police, Moovattupuzha to maintain a sharp look out for the warrantee and to make all efforts to execute the detention order.
28-11-98 The Deputy Superintendent of Police, Moovattupuzha had reported to the Superintendent of Police, Ernakulam (Rural) that enquiries have been conducted to apprehend the warrantee but it is known that the warrantee had left India in 1995 with his family. It is also reported that inmates of the Thazhathukudiyil House are the parents, brothers and sisters of the warrantee and that the present whereabouts of the appellant are not known to them.
28-3-99 The Additional Chief Secretary has requested the Chief Judicial Magistrate, Ernakulam to issue a fresh report on the action taken against the warrantee under Section 7(1) of the COFEPOSA Act.
12. The Deputy Superintendent of Police, Moovattupuzha has reported to the Superintendent of Police, Ernakulam (Rural) that the warrantee has no property in his name. The Sub-Inspector of Police, Moovattupuzha has conducted enquiries about the warrantee on 16-3-1996. The Assistant Sub-Inspector of Moovattupuzha Police Station has conducted enquiries on various dates. The enquiries conducted by various police constables who were deputed by the Deputy Superintendent of Police, Moovattupuzha have reported that the warrantee could not be traced out.
13. The above facts stated in the additional statement would clearly reveal that the second respondent has taken timely action in order to execute the detention order and there is no delay on the part of the second respondent, as alleged by the appellant. Since the warrantee could not be traced out, action under Section 7(1)(a) and Section 7(1)(b) of the Act was also taken.
14. Though the appellant was asked to produce his original passport for perusal by this Court, the said passport has not been produced at all. Instead a Photostat copy of the passport alone was produced. Since the original is not produced for our perusal, we have not looked into the photostat copies of the papers produced.
15. The law on the subject can now be adverted to in order to find out whether the appellant/petitioner can challenge the pre-execution detention order. In Additional Secretary to the Government of India v. Smt. Alka Subhash Gadia, 1992 Supp (1) SCC 496, the Supreme Court in paragraph 30 has observed as follows :-
The grounds on which the Courts have interfered with them at the pre-execution stage are necessarily very limited in scope and numberviz., where the Courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds, or (v) that the authority which passed it had no authority to do so. The refusal by the Courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenue.
16. It is not the case of the appellant that the impugned order is not passed under the Act and that it is wrongly sought to be executed against him and that it was passed for a wrong purpose, on vague and extraneous and irrelevant grounds. It is also not the case of the appellant that the authority which passed it had no authority to do so. The only contention, as already noticed, is the delay in execution of the detention order.
17. In Secretary, Home Department v. Abdul Azeez (1995) 1 Ker LT 709, a Division Bench of this Court held that only in exceptional circumstances the Court can go into the question regarding the validity of the order of detention. The Division Bench, in arriving at the conclusion, has also followed the judgment of the Suprme Court above referred to. As pointed out by the Division Bench, a person who was eluding the dragnet of the detention order is not entitled to take advantage of his concealment and contend that on account of delay in execution of the order of detention the order is to be quashed. The jurisdiction of the High Courts in pre-execution challenge to the orders of detention has been the subject-matter of many a number of decisions by the Hon'ble Supreme Court. In this case the order of detention was issued against the appellant is certainly one under the COFEPOSA Act. It is not the case of the appellant that he is not the wrong person sought to be detained as per the order of detention. As already seen, the main contention raised by the counsel representing the appellant is that the order of detention was issued on vague, irrelevant and extraneous grounds. We are sorry that such a contention cannot at all be countenanced at this stage. The appellant, in our opinion, is not entitled to know the grounds under which he has been detained at this stage. Law does not allow him to have the grounds adverted to him before he surrenders. The detention order passed by the detaining authority simply states that the order was passed under Section 3(1)(ii) of the COFEPOSA Act with a view to prevent him from indulging in smuggling activities. The said purpose cannot be stated to be extraneous or irrelevant to the order of detention. The appellant has no case that the Secretary to Government, Home Department, who issued the detention order is not having the authority to issue the same. In these circumstances, we are of the opinion that the appellant's case will not fall in any of the grounds mentioned by the Supreme Court for this Court to interfere with the order of detention. This apart, when the appellant was found absconding, notification under Section 7(1)(b) was issued in the Official Gazette. The matter was also reported to the Chief Judicial Magistrate, Ernakulam under Section 7(1)(a) of the COFEPOSA Act.
18. In Subhash Muljimal Gandhi v. L. Himingliana (1994) 5 JT (SC) 358 : 1994 AIR SCW 4975 the Supreme Court held as follows :-
In our considered view, even, if it is held that the above explanation offered by the respondents for delayed production is not a satisfactory one and that the Customs Officers have failed to comply with constitutional and statutory requirements, the order of detention which has been made by the detaining authority on the basis of its satisfaction that the petitioner was smuggling gold, would not be bad on that score. The appellant, however, would be certainly entitled to seek appropriate relief by way of compensation or otherwise in case he succeeds in proving that he was wrongfully and illegally detained. For the foregoing discussion, we are unable to hold that the order of detention is made for a purpose extraneous to the provisions of COFEPOSA.
19. The Supreme Court in Bhawarlal Ganeshmalji v. State of Tamil Nadu (1979) 1 SCC 465 : 1979 Cri LJ 462 has held that the purpose of detention under the COFEPOSA is not punitive but preventive. There must be a live and proximate link so that where the delay is adequately explained and is found to be the result of recalcitrant or refractory conduct of the detenu in evading the arrest, there is warrant to consider that the link is not snapped. On the contrary it could be strengthened and that was what precisely happened in the instant case.
20. As already noticed, at the time of search of the residence of the appellant, the authorities have seized several documents and in particular (sic) and order in original in C. No. VIII/ 10/ 68/ 88 Cus Adj, dated 29-12-1988 passed by the Deputy Collector of Customs, Cochin confiscating 27 gold biscuits and the materials like RCR, VCP, Dinner set etc. on 10-3-1988 at Trivandrum Airport. The above order would also show that the appellant has involved himself in economic offences earlier and is now being detained for the very same offence on the basis of the statement now given by Mr. Yusuff before the Senior Intelligence Officer under Section 108 of the Customs Act.
We are of the opinion that the appeal has no merits and that the details furnished above in this judgment would clearly go to show that the customs/enforcement authorities and the police authorities have taken timely action in the best possible manner in order to execute the detention order and there is no dealy on their part warranting interference by this Court. Writ Appeal, therefore, fails and is dismissed. No costs.