Criminal Writ Petition No. 429 of 1996. Case: Shakeel Sait Vs C.D. Singh and others. High Court of Bombay (India)
| Case Number | Criminal Writ Petition No. 429 of 1996 |
| Counsel | For Petitioner: M.G. Karmali with Mrs. A.M.Z. Ansari, Advs. and For Respondents: R.L. Patil A.P.P. and R.M. Agrawal, Adv. |
| Judges | D. K. Trivedi, J. and S. S. Parkar, J. |
| Issue | Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (52 of 1974) - Section 3 |
| Citation | 1997 CriLJ 4045 |
| Judgement Date | June 07, 1997 |
| Court | High Court of Bombay (India) |
Judgment:
S. S. Parkar, J.
-
This writ petition has been filed by the petitioner, challenging the detention of his father by name Mustafa Ahmed Ali Merchant under the provisions of COFEPOSA Act. The detention order was issued under the COFEPOSA Act on 16th Feb. 1996 by respondent No. 1 who was, at that time, Principal Secretary to the Government of Maharashtra, Home Department (Preventive Detention) and Detaining Authority. The said order of detention is annexed to this petition as Annexure "A". The respondent No. l had also formulated the grounds of detention dated 16th Feb. 1996 which are annexed as Annexure "B" to this petition. Consequent to the said order of detention, the detenu was detained by 29th of Feb. 1996. At the time of his detention the detenu was served with the grounds of detention along with the order of detention and the documents and material relied on by the detaining authority. The initial order of detention was for a period of one year and the same was extended by further period of one year by.virtue of the declaration made under Section 9(1) of the COFEPOSA Act on 25th March, 1996 which is annexed as Annexure "D" and the order of confirmation dated 1st June, 1996 issued under clause (f) of Section 8 of the said Act, and annexed as Annexure "E" to the petition.
-
The brief facts leading to the detention of the detenu are as follows:-
Pursuant to the intelligence report, the D.R.I. Officer kept surveillance on the detenu who was to travel by Cathey Pacific flight No. CX-750 scheduled to depart at about 5.05 hrs on 29-81995 to Hongkong from Sahar Airport; Mumbai. The Officer of the D.R.I. intercepted the detenu after he had cleared himself through the customs and security checks and was in the security lounge. Although on inquiry the detenu denied that he was carrying any diamonds, on subsequent questioning the detenu admitted that he was carrying diamonds in his rectum and, therefore, the Officers brought the detenu to the D.R.I. Office at Colaba. From the baggage 750 US dollars were found and the detenu voluntarily ejected two packets containing diamonds. In one packet there was a slip containing the figures 650.17 and in-the other packet there was a slip containing the figures 651.81. They were seized under the panchanama along with the 750 US dollars. The statement of the detenu was recorded on 29th and 30th August, 1995 in which he admitted that he was working as a carrier of one Dhanubhai for a consideration of Rs. 50001- per trip. The air ticket was bought by one Madanlal on 28-8- 1995 and handed over to him. He further admitted that two packets were inserted in the rectum of the detenu by Madanlal who also gave him 550 US dollars as remuneration and 200 US dollars for expenses. In addition, Rs. 2000/- were paid for hotel expenses. The detenu is alleged to have made eight trips during the period between 6-3-1990 and 6-4-1995. His passport also was seized. The detenu was arrested on 30th August, 1995, and produced before the learned Chief Metropolitan Magistrate's Court on 30th August, 1995 and remanded to custody. His earlier bail application was rejected: The investigation was completed and the complaint was filed against the detenu in the Court of Chief Metropolitan Magistrate at Mumbai on 9-10-1995 on which date he came to be released on bail under certain conditions. After the release of the detenu on bail he retracted from his confessional statement given under Section 108 of Customs Act to which department filed reply dated 19-10-1995, denying the allegations made in the letter of retraction.
-
The reference has been made to the aforesaid facts in the grounds of detention and it is also stated in the grounds that the diamonds which were seized from the detenu were of the value of RS. 30,80,700/- CIF and Rs. 38,00,000/- LMV approximately. In the grounds of detention at Annexure "B", it is stated that the detaining authority passed the order of detention with a view to prevent the detenu from smuggling diamonds in exercise of the power conferred under Sub-Section (1) of Section 3 of the COFEPOSA Act. The detaining authority had recorded his satisfaction that was necessary to detain the detenu under the provisions of COFEPOSA Act to prevent him from indulging in prejudicial activities in future.
-
The petitioner has raised several grounds challenging the order of detention. However, we are satisfied that this petition can be allowed and detention order can be set aside on the ground (i) raised in the petition that there was unreasonable and unexplained delay in issuing the order of detention and, therefore, the live-link between the prejudicial activities and the order of detention has been snapped.
-
In order to appreciate the point raised by Mr. Karmali on behalf of the petitioner it would be pertinent to mention few relevant facts and dates in brief.
The seizure of the contraband had taken place on 29th August, 1995 and the investigation was over in the first week of Oct. 1995 and the complaint came to be lodged in the Court of Chief Metropolitan Magistrate at Mumbai on 9th Oct. I995, on which date the detenu was also released by the said Court on bail under certain conditions. Those conditions are as follows:
The detenu was released on bail in the sum of Rs. 4 lakhs with three sureties of Rs. 1 lakh each and cash amount of Rs. 1 lakh. The wife and two sons of the accused were accepted as sureties in the sum of Rs. 1 lakh each provisionally. The detenu was directed not to leave the local limits of Greater Bombay without prior permission of that Court and the hearing of the complaint or criminal case was expedited and it was directed to be heard on day to day basis from 30th Oct. 1995 onwards. The summons were also issued to the prosecution witnesses on the same date i.e. 9th Oct. 1995 when the detenu was ordered to be released on bail and the hearing of the case under the provisions of Customs Act was expedited.
-
Pursuant to the aforesaid order of bail the detenu was released on bail on the same day on furnishing the requisite sureties. Although the bail applications on behalf of the detenu were rejected earlier, as on 28th Sept. 1995 as referred to in the grounds of detenu, the department had not objected to the release of the detenu on bail on 9th Oct. 1995, as mentioned in the order dated 9th Oct. 1995, passed by the learned Chief Metropolitan Magistrate, Mumbai, while allowing the application of the detenu for his release on bail.
-
Mr. Karmali, the learned counsel for the petitioner contends that although the date of incident was 29th August 1995 and the entire investigation was completed and the criminal case under the provisions of Customs Act culminated in filing of the complaint in the Court of Chief Metropolitan Magistrate, Mumbai on 9th Oct. 1995, the impugned order of detention came to be issued as late as on 16th Feb. 1996 and thus there was a delay of about 5 and 1/2 months from the date of incident and more than 4 months delay in issuing the order of detention from the date of completion of the investigation and the release of the detenu on bail in the criminal case. He further contended that even after proposal was submitted to the detaining authority for the detention of detenu under the provisions of COFEPOSA Act on 3-11-1995 after it was approved on recommended by the screening committee, the detaining authority took three months time to issue the order which delay has not been explained at all. The submission of Mr. Karmali is that since the detaining authority took three months' time after the proposal was placed before him to issue the order of detention it would...
To continue reading
Request your trial