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PETITIONER: K.P.M. BASHEER ETC.

       Vs.

RESPONDENT: STATE OF KARNATAKA AND ANR. ETC.

DATE OF JUDGMENT28/02/1992

BENCH: PANDIAN, S.R. (J) BENCH: PANDIAN, S.R. (J) KULDIP SINGH (J) SAHAI, R.M. (J)

CITATION:  1992 AIR 1353            1992 SCR  (1)1075  1992 SCC  (2) 295        JT 1992 (3)   610  1992 SCALE  (1)525  CITATOR INFO :  D          1992 SC1937  (6)

ACT:      Conservation  of  Foreign Exchange  and  Prevention  of Smuggling Activities Act, 1974 :      Section  3(1)-Detention  Order-Undue  and  unreasonable delay in execution-Maintainability.

HEADNOTE:      The  appellant, on 12.11.1990, was found  carrying  two gold pellets with foreign markings each weighing  ten tolas, without  any  valid permit.  The order  of  detention  under S.3(1)   of  the  conservation  of  Foreign   Exchange   and Prevention  of Smuggling Activities Act, 1974 was passed  on 7.1.1991.   The  detention  order  was  served  on  him   on 28.6.1991.      The  Writ  Petition challenging  the  detention  order, inter  alia, on the ground of undue and reasonable delay  in its execution was dismissed by the High Court.      The  detenu filed the appeal by special  leave  against the  High  Court’s  order as also the  writ  petition  under Article 32 of the Constitution before this Court.      Allowing the appeal and disposing of the writ petition, this Court,      HELD:  1.1 The order of detention cannot  be  sustained since  the ‘live and proximate link’ between the  ground  of detention and the purpose of detention is snapped on account of  the  undue  and  unreasonable  delay  in  securing   the appellant/detenu and detaining him.  The order of  detention is liable to be set aside on this ground alone. [p. 1080A-B]      1.2 Though the two gold pellets (the contrabands)  were seized  from  the  appellant on  12.11.1990,  the  order  of detention  was passed on 7.1.1991, and the  detention  order was  executed after a period of 5 months and 11  days.  {pp. 1078F; 1079G-H; 1080A]                                                        1076      2.1  No  sufficient cause is shown for not  taking  any action  under s.7 of the COFEPOSA Act. The  explanation-that though COFEPOSA section in the office of the Collectorate of Customs  requested  the  State Government  on  19.4.1991  to

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initiate action under s.7(1) (b) of the Act it was not  done so  because  the  seizing unit was asked to  make  one  more attempt  to trace out the appellant-is not satisfactory  and reasonable one. [pp. 1078G-H; 1079A-B]      2.2  No  serious and sincere effort was  taken  by  the arresting   officers:    There   was   only   exchange    of correspondence  between  the Department  and  the  arresting officers.   It is incomprehensible as to why no  effort  was made  to  secure the appellant/detenu during the  two  days, namely, on 6th and 20th Feb.91, when he appeared before  the Assistant Collector of Customs.                                                [pp. 1079F-G]

JUDGMENT:      CRIMINAL  APPELLATE JURISDICTION: Criminal  Appeal  No. 144 of 1992.      From  the  Judgement and Order dated 27.9.1991  of  the Karnataka High Court in W.P. No. 113 of 1991.                             WITH      Writ Petition (Crl.) No. 1394 of 1991.      C.S. Vaidyanathan and P.K. Manohar for the Appellant.      K.T.S. Tulsi, Addl. Solicitor General, P.  Parmeswaran, A.K.  Srivastava, M. Veerappa and Kh. Nobin Singh  (For  the State of Karnataka) for the Respondents.      The Judgment of the Court was delivered by      S. RATANAVEL PANDIAN, J. Leave granted.      The  appellant/petitioner K.P.M. Basheer by  the  above appeal  is challenging the correctness and legality  of  the order  dated 27th September 1991 made by the High  Court  of Karnataka   dismissing  the  Writ  Petition  filed  by   the appellant challenging the legality and validity of the order of   detention  dated  7.1.1991  passed  by  the  State   of Karnataka.  The first respondent in the appeal, namely,  the State  of Karnataka in exercise of the powers  conferred  by the Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (hereinafter                                                        1077 referred  to  as ‘the Act’) passed  the  impugned  detention order on 7th January 1991 with a view to preventing him from engaging in keeping and transporting smuggled goods  falling within  the mischief of Section 3(1)(iii) of the  Act.   The appellant  was  directed  to be detained  and  kept  in  the custody of the central prison, Banglore.      The brief facts of the case which led to the passing of the impugned order can be summarised as follows:      On  12.11.1990 the Superintendent of Central Excise  on information  interrogated the appellant at the  Balgaum  bus stand  on  his arrival from Bombay in the presence  of  some panchas and recorved two gold pellets with foreign  markings each weighing ten tolas, wrapped in a paper packet from  his front  side right watch pocket of his pant.   The  appellant was  not  having any valid permit and also was not  able  to give  any satisfactory explanation for possessing  the  gold pellets.   Therefore,  the  Superintendent  entertaining   a reasonable  belief  that  they were  smuggled  gold  pellets recorded   the  statement  of  the  appellant.   The   State Government  on the information passed on by  the  sponsoring authority  passed  the impugned order on 7.1.1991  on  being subjectively  satisfied  of  the necessity  of  passing  the impugned  order  on  the materials placed  before  it.   The detention  order was served on the detenu only on  28.6.1991 from  which date onwards he has been detained.   Challenging the  detention order, the petitioner filed a  Writ  Petition

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No.  113/91  before the High Court of Karnataka  and  raised several contentions; those being (1) the order of  detention is based on a solitary incident; (2) there has been an undue and prolonged delay in serving the order on the detenu;  and (3) the materials placed before the detaining authority were not  sufficient for drawing the requisite  satisfaction  for passing  the  impugned order.  The High Court  rejected  all those  contentions and dismissed the Writ  Petition.   Hence this appeal.      Before  this Court the petitioner has filed a  separate Writ Petition under Article 32 of the Constitution of  India raising certain additional grounds.  Those grounds are:  (1) The  detenu  made a request to the  detaining  authority  to forward  a  copy  of  his  representation  to  the   Central Government   and  that  the  detaining  authority  has   not forwarded the same to the Central Government as requested by him.  Even assuming that it has been forwarded, his  represe tation has not been disposed of in time and as such there is violation of Article 22(5) of the Constitution of India.                                                        1078 (2)  The normal criminal process which would be adequate  to take  care  of  the  possession of the  gold  has  not  been followed; and (3) The first respondent in the Writ  Petition (Union  of  India)  has failed in its  duty  to  inform  the petitioner  regarding the Government instruction  issued  to the sponsoring agencies not to make an order of detention in cases  where  the value of the smuggled goods is  less  than Rs.1 lakh.      In the Writ Petition both the State Government as  well as   the  Central  Government  have  filed   their   counter affidavits refuting all the additional grounds.      Before  scrutinising the additional grounds  raised  in the  Writ  Petition, we shall now  examine  the  contentions raised  in the appeal and find out whether the order of  the High Court warrants interference.      Mr. C.S. Vaidyanathan, the learned counsel appearing on behalf of the appellant contends that the delay of more than five months in executing the order of detention is not  only an  inordinate  and  unreasonable one but  also  stands  un- explained  and on that ground the High Court ought  to  have set  aside  the order of detention.  According to  him,  the High  Court  has  not  gone  deep  into  that  question  but summarily  disposed  of the same  holding  "The  explanation offered by the 1st respondent, in para 9 of the statement of objection is quite acceptable."      Of  course, this contention has not  been  specifically taken  in the Memorandum of Appeal, but there can be no  bar to  advance  a legal argument in a case of this  nature  and especially when such a contention has been raised before the High Court.  We want through the explanation given in para 9 of  the  counter  affidavit filed on  behalf  of  the  first respondent  by  the  then  commissioner  and  Secretary   to Government,  Home  Department.  It is not  denied  that  the detention order was executed after a period of 5 months  and 11  days.  What the first respondent states is that  various efforts were taken to trace the detenu at Tellicherry at the address given in the grounds of detention as well as in  the Bombay address, but he could not be secured.  Further it has been stated that though the arresting officers attempted  to secure  him  at the Court of Chief  Judicial  Magistrate  at Belgaum  on 6.3.91, 28.3.91 and 14.5.91 on which  dates  the criminal case aS against him stood posted before that court, the officers could not do so as the appellant did not appear before the court for hearing.  Further it is mentioned  that though COFEPOSA Section in the office of the Collec-

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                                                      1079 torate of Customs requested the State Government on  19.4.91 to  initiate action under Section 7(1)(b) of the Act it  was not  done so because the seizing unit was asked to make  one more  attempt to trace out and detain the  appellant.   This explanation is not a satisfactory and reasonable one for the following reasons :          (1) No sufficient cause is shown for not taking any          action under Section 7 of the Act.           (2) It appears from the paragraph 9 of the counter          that  the  officers  came to know  of  the  correct          address of the appellant at Bombay, but they  could          not  trace  him.  It may be pointed  out  that  the          Bombay address at which place the appellant  detenu          was  attempted  to be secured is not given  in  the          counter.   Had it been given, the Court would  have          been in a position to verify the averments made  in          the  grounds of detention stating that the  address          at  Bombay given by the appellant was a  fictitious          one.      In  paragraph 17 of the Writ Petition filed before  the High  Court,  the appellant has asserted  that  he  appeared before  the  Asstt.   Collector of  Customs,  Marine  Lines, Bombay  on  6.2.91 and 20.2.91 but no attempt  was  made  to arrest  and detain him.  This specific averment is  not  all denied  in the counter.  This indicates that  the  arresting officers did not take any real and genuine effort to  secure and  detain  the  appellant.  The  explanation  now  offered stating that the appellant was fugitive, eluding the dragnet of  the detention order cannot be accepted,  because  during the  alleged  period of search he has  appeared  before  the Assistant  Collector  of Customs, Bombay  on  two  occasions during  Feb.  1991, that is after passing of  the  detention order.      All  the above points show that no serious and  sincere effort appears to have been taken by the arresting  officers and  that there was only exchange of correspondence  between the   Department   and  the  arresting  officers.    It   is incomprehensible as to why no effort has been made to secure the appellant/detenu during the two days, namely, on 6th and 20th   February  when  he  appeared  before  the   Assistant Collector of Customs.  No supporting affidavits or documents are filed to substantiate the averments made in the counter. Incidentally,  it may be mentioned that though the two  gold pellets (the contrabans) were seized from the appellant on                                                        1080 12.11.90 the authorities concerned passed these orders  only on 7.1.1991, i.e. nearly after two months.      Under these circumstances, we are of the view that  the order  of detention cannot be sustained since the ‘live  and proximate  link’ between  the grounds of detention  and  the purpose of detention is snapped on account of the undue  and unreasonable  delay  in securing  the  appellant/detenu  and detaining  him.  As we have now come to the conclusion  that the  order  of detention is liable to be set aside  on  this ground  alone  we  are not dealing  with  other  contentions raised  in the Memorandum of Appeal as well as in  the  Writ Petition.      Hence for the reasons stated above we allow the appeal, set aside the order of the High Court and quash the impugned detention  order and direct the detenu to be set at  liberty forthwith.  In view of the order in this present appeal,  no order is necessary in the Writ Petition. R.P.                                 Appeal allowed.                                                     1

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