Shabbir Ahmed Rafique Ahmed v. The State of Maharashtra & Ors.

Judgment

1. This writ petition seeking a writ of habeas corpus directions manner impugns detention 13-5-2005 passed Principal Secretary (Appeals Secretary), Government Maharashtra, Home Department Detaining Authority invoking powers Section 3(1) Conservation Foreign Exchange Prevention Smuggling Activities Act, 1974 "the Act"). The served detenu 20/5/2005 he was detention day. A communication bearing (for No. PSA - 1105/2/SPL-3(A) 13/5/2005 issued Detaining Authority served 20/5/2005 documents. 2 This communication statements grounds detention impugned passed. Admittedly copies documents mentioned documents also served upon the detenu along with the detention order.

2. On 30/11/2004 the detenu was intercepted while at Module 2A Departure Hall Shivaji International Airport, Mumbai Chhatrapati depart Dubai proceeding transit lounge passing through Immigration Customs flight GF 057 for Dubai Bahrain. He holding Indian Passport No.A 4197422 questioned whether carrying contraband foreign currency, Indian currency, diamonds, narcotic etc., person baggage, replied negative. Not satisfied reply, subjected a checked-in baggage operation resulted recovery assorted foreign currency Indian Rs.2,50,377/- a Indian currency Rs.17,61,000/- cardboard carton containing rotten custard apples checked-in baggage. The amount 3 equivalent Rs.20,11,377/- seized a panchanama reasonable belief liable attempted smuggled India confiscation provisions Customs Act, 1962 Foreign Exchange Management Act,

1999. His statement recorded Section 108 Customs Act claimed admitted possession, carriage, concealment recovery currency seizure. He alleged stated currency seizure Shabbir stayed in Mumbra address. The detenu stated further he met Shabbir 29-11-2004 instructions friend Haji Shaikh Dubai. He custody produced before learned Chief Metropolitan Magistrate pleased release subsequently 10-12-2004. Admittedly passport seized custody 30-11-2004. His statements recorded 13-12-2004, 14-12-2004, 16-12-2004, 22-12-2004, 29-12-2004 and 31-1-2005, before the impugned order dated 13-5-2005 was passed.

3. The main grounds of challenge to the detention 4

petition reiterated the learned counsel in her oral arguments advanced before us are as under: (A) The detention order was issued belatedly i.e. a period months release 10-12-2004 caused inordinate, lethargic inexcusable colossal thereby vitiating detention. The live-link snapped credible broken account caused issuing detention grounds detention proximate alleged prejudicial activities on the basis of which the impugned order was passed. (B) At every pocket in the process of passing the detention order, explained Detaining Authority ground detention required aside. The detention suffers non-application satisfaction arrived at by the Detaining Authority is sham and fabricated. 5 (C) While passing the detention order the retractions 1-12-2004 31-12-2004 submitted detenu considered Detaining Authority setting grounds detention itself severely impaired detention warranting quashed set aside. The detention order is not preventive in nature but in fact it is punitive in character. (D) The representation dated 29-6-2005 submitted detenu forwarded Superintendent Nashik Road Central Prison Detaining Authority same was considered rejected belatedly 26-7-2005 served detenu 8-8-05. The caused deciding representation Detaining Authority rejection suffer serving delays explained satisfactorily resulted in violation of the guarantee under Article 22(5) of the Constitution. (E) The detenu had also submitted representations State Maharashtra 12-9-2005 19-9-2005 rejected 6 18-10-2005 received detenu 20-10-2005 Nashik Road Central Prison. This caused deciding representations submitted Section 11 Act vitiated detention explained satisfactorily protection Article 22(4) 22(5) Constitution denied petitioner respondents. On these grounds also the impugned order is required to be quashed and set aside.

4. The Detaining Authority has filed an affidavit-in-reply opposing petition reiterated detention suffer delays, non-application mind, malice violation Constitutional guarantee Article

22. Affidavit-in-reply Under Secretary Government Maharashtra stating State Government referred detenu Advisory Board required Section 8(b) Act 8-6-2005 The Advisory Board interviewed detenu. report opinion Advisory Board 2-8-2005 holding sufficient detention received Home Department 7 day. The representation 29-6-2005 considered Additional Chief Secretary (Home) report submitted Advisory Board confirmation 8-8-2005 passed Section 8(f) Act communicated detenu 12-8-2005. There additional affidavit Under Secretary Government of Maharashtra, Home Department stated representations 12-9-2005 19-9-2005 submitted detenu detention considered rejected 18-10-2005. There unexplained processing deciding representations explanation satisfactory. For all these reasons, the respondents have prayed for the dismissal of the petition.

5. The law of preventive detention is a drastic authorises detentions without Court a way encroachment a liberty individual cherished freedom guaranteed Constitution. At a larger public national interest recognised Constitution providing certain minimum safeguards 8 mitigate rigour ensure unjustified detention detention continued beyond certain period. In Act instant detention COFEPOSA safeguards provisions enabling scrutiny review detention authority representation detenu otherwise. By judicial interpretations, ancillary safeguards effectuate Constitutional guarantees flowing Article 22(4) 22(5) carved out. Article 22(5) guarantees rights (i) informed as may grounds on which (ii) afforded earliest opportunity making a representation against detention. The appraise detenu making representation authorities reconsider revoke detention Detaining Authority. So consider representation behalf detenu reasonable expedition emphasised consistently inordinate disposal representation, detention ground. Section 9 3(2) Act obligation State Government forward Central Government within report respect detention order. It obvious provision enable Central Government address itself detention earliest opportunity intervene appropriate exercising powers revocation Section

11. Section 3(3) Act provides grounds detention furnished ordinarily detention Section 8 provides constitution Advisory Board, procedure followed Board action Government receipt opinion Board. Section 10 prescribes maximum period detention depending applicability Section

9. Section 11 empowers State Government Central Government, be, revoke detention without prejudice Detaining Authority rescind Section 21 the General Clauses Act. Thus scheme Act guarantee Article 22 Constitution provides reexamine review detenu 10 afford various redressal against detention. The matter examined Advisory Board, Detaining Authority, State Central Government acting Section receipt Advisory Board’s opinion, addition Central Government 11 examine validity detention acting receipt report Section 3(2). Government exercise Section consider question sufficiency The 11 adequacy grounds whether detention within parameters conferred statute and, therefore, exercised Section 11 described a supervisory nature decisions obviously supervisory cannot equated subjective satisfaction Detaining Authority Advisory Board examine whether sufficient material detention. While examining representation submitted detenu, authorities concerned comply mandate Article 22(5) Constitution viz. decide representation earliest possible without inordinate delay. Unexplained of more a 11 vitiate detention, irrespective grounds detention claimed serious. The Constitution Bench [(1995) 4 in the case of Kamleshkumar Ishwardas Patel [(1995) 4 [(1995) 4 51] observed in para 49 thus: SCCSCCSCC 51] 51] "...We unmindful harmful consequences activities detenus alleged involved. But discharging Constitutional obligation enforce fundamental rights people, especially personal liberty, cannot ourselves influenced considerations. It history liberty history procedural safeguards. The Framers Constitution, preventive detention involves a serious encroachment personal liberty, incorporate Clauses (4) (5) Article 22, certain minimum safeguards protection persons sought preventively detained. These safeguards required zealously watched enforced Court. Their rigour cannot modulated 12 nature activities a particular person." . A full bench of this Court in the case of Mrinal Namdev Waghmare vs. Reva Nayyar [2001 [2001 [2001 (5) (5) (5) Bom.Bom.Bom. C.R. C.R. C.R. 631] 631] 631] considered caused deciding representations consequences thereof. By referring a number decisions of the Supreme Court the full bench observed: "It now well settled a detenu constitutional making a a representation Detaining Authority, Detaining Authority consider promptly. There should matter consideration, though measure Appropriate Authority consideration. Whether Detaining Authority considered representation reasonable despatch a question necessarily depend circumstances case, neither possible advisable 13 period uniformly applicable cases. The Court consider judicially between available material receipt representation consideration State Government unreasonably explanation offered State Government unsatisfactory render detention thereafter illegal. imperative consideration representation absolute The obsessive. It depends necessity ... ... ... representation made. There number days, arithmetical formula a within representation considered. It depends case. The holidays, including Saturdays Sundays, cannot enlarge unexplained delay. Some leeway procedure Government office another reaches authority decision 14 matter." . The full bench concluded its findings on the reference in the following words: "...In view, formula regard. The Court consider totality evidence record, thereafter a conclusion whether Detaining Authority guilty inordinate unexplained disposing representation. It depends circumstances and, therefore, advisable formula regard. What considered Court whether Detaining Authority subordinates prompt disposal representation, resulting inordinate unexplained delay. It matters little whether consideration representation different stages. In fact, appropriate case, Court stages authorities concerned 15 promptly, conclusion authorities a casual manner, oblivious special responsibility a detenu who detained without trial. As observed earlier, depends circumstances a case, consideration Court totality material evidence record."

6. There is no doubt that the respondent no.2 has conferred powers a detention Act impugned passed 13-5-2005. His representation 29-6-2005 addressed Advisory Board a Detaining Authority. As affidavit-in-reply Detaining Authority herself, representation received Mantralaya 4-7-2005 (late evening) Nashik Road Central Prison. On 5-7-2005 concerned Assistant prepared a detailed expressing necessity parawise remarks Sponsoring Authority forwarded Under Secretary 16 endorsement 5-7-2005 forwarded Deputy Secretary endorsement submitted papers Detaining Authority day. He made endorsement calling parawise remarks Sponsoring Authority accordingly a letter addressed authority received 12-7-2005. The Sponsoring Authority prepared parawise remarks forwarded Detaining Authority letter 14-7-2005 received 15-7-2005. The concerned Assistant prepared a detailed 16-7-2005 forwarded Under Secretary forwarded Deputy Secretary papers placed before Detaining Authority Deputy Secretary itself. As Detaining Authority representation rejected 26-7-2005. Thus remained pending Detaining Authority days. The question required considered whether satisfactorily explained not. It pointed 17-7-2005, 23-7-2005 24-7-2005 holidays. As decision Mrinal (Supra) Saturdays Sundays holidays required 17 excluded excluding caused days. The Detaining Authority pointed Monsoon Sessions Legislative Assembly during period representation pending before representations pending before her. The Detaining Authority Principal Secretary (Appeals Security) obvious required physically present either House State Legislature i.e. either Legislative Assembly Legislative Council. Admittedly Monsoon Sessions 22-7-2005 and, therefore, satisfied properly explained and it would not in any way vitiate the detention order.

7. The reply rejecting the representation vide 26-7-2005 received detenu 8-8-2005 learned counsel petitioner submitted pocket explained and, therefore, detenu’s Article 22(5) violated. We mention original record maintained office Detaining Authority placed before 18 noticed 26-7-2005 despatched through Speed Post / Registered Post A.D. 17-22 hours. It 26-7-2005 Maharashtra Mumbai inundated. The flooded movement a days. All Government offices private establishments virtually closed days. The traffic Central railways Mumbai restored almost consequently postal services severely affected thereby causing delays transportation. The record produced before 26-7-2005 received Nashik Road Central Prison 8-8-2005 served detenu itself. This grievance raised detenu vitiate detention we, therefore, representation submitted detenu 29-6-2005 decided rejecting dispatched Detaining Authority earliest possible i.e. day. As it was received Nashik Road Central Prison by post, the same was served on the detenu on 8-8-2005. 19

8. Now coming to the representations dated 12-9-2005 19-9-2005 submitted State Government through Additional Chief Secretary (Home), detenu firstly sought copies certain documents a representation claimed relevant documents. In alternate prayed affording opportunity effective representation earliest revoke impugned Section 21 General Clauses Act. Both representations verbatim. By following Smt.Shalini Soni & ors. v. Union India & ors. [[[ (1980) (1980) (1980) 4 4 4 SCC SCC SCC 544 544 544 ] ] ] State Government treated communications representations. The representations forwarded State Government Nashik Road Central Prison 18-10-2005 representations rejected. The order was served detenu 20-10-2005. The additional affidavit Under Secretary Government Maharashtra, Home Department states detenu demanded copies documents viz. (a) Export Declaration Form prescribed Section 77 Customs Act, 1962; 20 (b) Export Declaration Form prescribed FEMA; (c) relevant regulation Customs Act Board. Parawise remarks called Sponsoring Authority letter 20-9-2005 Sponsoring Authority letter 4-10-2005 parawise remarks received Home Ministry 6-10-2005 evening. On 11-10-2005 Assistant concerned prepared forwarded Under Secretary endorsement 13-10-2005 forwarded Deputy Secretary endorsement 14-10-2005. It pointed 8-10-2005, 9-10-2005 12-10-2005 offices closed account holidays. The papers thereafter forwarded Joint Secretary (Law) endorsement 14-10-2005 forwarded Additional Chief Secretary (Home). The discussions subordinate officers 15-10-2005 carefully through material record a representations rejected 17-10-2005 further direction supply documents demanded detenu. The papers were received Department 17-10-2005 concerned Assistant prepared rejection forwarded 21 Under Secretary 18-10-2005. Accordingly issued 18-10-2005 itself. The representation 12-9-2005 received Home Department 15-9-2005 second representation 19-9-2005 received 21-9-2005 Nashik Road Central Prison post. As representations virtually processing started together 21-9-2005 parawise remarks received the Sponsoring Authority vide letter dated 4-10-2005. . It is noted that the parawise remarks were called letter 20th September 2005 received Sponsoring Authority 26-9-2005. On 27-9-2005 Technical Section Sponsoring Authority clarify whether prescribed export declaration. On 28th September 2005 Sponsoring Authority received a representation 14-9-2005 submitted detenu Secretary, Ministry Finance, Department Revenue, Government India, New Delhi. On 3-10-2005 parawise remarks prepared placed before Sponsoring Authority 1st communicated State Government letter 4-10-2005. It 2nd October 2005 holidays (Saturday 22 Sunday) account office Sponsoring Authority closed. Thus unexplained caused deciding representations submitted detenu right under Article 22(5) of the Constitution has not been denied to the detenu in that regard.

9. Coming to the issue of retractions, we have retraction 1-12-2004 application submitted before Court learned Metropolitan Magistrate, advocate detenu merely stated accused retracting statement recorded section 108 Customs Act,

1962. It statement recorded record 13-12-2004 detenu a statement Section 108 Customs Act, 1962 recorded Officer Air Intelligence Unit situated Departure Wing, CSI Airport. He a similar statement 14-12-2004 question answer signed true, correct voluntary. He voluntary statements 16-12-2004 22-12-2004 29-12-2004. On 31-12-2004 submitted 23 application Joint Commissioner Customs, Air Intelligence Unit, CSI Mumbai a placed before learned Addl. Metropolitan Magistrate’s 3rd Court, Esplanade R.A. No.122

2004. The Joint Commissioner Customs submitted a rebuttal application retraction 18-1-2005 pointing detenu submitted before Court 1-12-2004 forced a statement 30-11-2004 recorded Section 108 Customs Act,

1962. That apart, impugned considered application 31-12-2004 applying retraction statements recorded section 108 Customs Act, 1962 rebuttal necessary Department. It Detaining Authority reasons retraction statement 31-12-2004 disbelieved consequence. Thus retraction statement detenu, impugned cannot illegal retraction statement 31-12-2004 consideration Detaining Authority retraction statement thereto Joint Commissioner before the Court of the learned 24 Additional Metropolitan Magistrate.

10. It was urged that the live-link between the alleged offence apprehension Detaining Authority satisfied necessity detention snapped credible broken account delay. It contended accused released 10-12-2004 further occasion indulge alleged activities smuggling foreign exchange Indian currency passport already impugned. We impressed submissions. The articulations adopted detenu hiding foreign exchange Indian currency volumes. He had made 23 foreign 12-4-2004 30-11-2004. In months June, October November he made each. The frequency departure International Airport indicated almost flying across Indian borders. It impossible detenu continue activity smuggling Indian currency foreign currency India through someone though passport surrendered. The 25 foreign exchange smuggling accepted snapped because detenu’s passport surrendered. The Detaining Authority between incident passing detention object behind order. The impugned suffer non-application Detaining Authority called a punitive order. The Advisory Board recorded satisfaction regarding obtaining circumstances necessitating detention passed Detaining Authority report Advisory Board support contentions the Detaining Authority that there were sufficient and just reasons for issuing the order of detention.

11. Lastly coming to the point of the delay caused passing detention alleged failure explain caused pocket passing order, necessary consider affidavit-in-reply Detaining Authority Assistant Commissioner Customs. The foreign currency Indian currency seized 30-11-2004 detenu custody. He released 26 10-12-2004 whereas detention passed 13-5-2005 i.e. months release Court. As earlier, released 10-12-2004 statements recorded 13-12-2004, 14-12-2004, 16-12-2004, 22-12-2004 29-12-2004. He submitted application retraction before Additional Metropolitan Magistrate 1-12-2004 through Advocate addressed another application 31-12-2004 Commissioner setting retraction. This Joint replied Joint Commissioner before Court 18-1-2005. In meanwhile screening committee forwarded proposal 31-1-2005. The detenu 3-1-2005 sponsoring authority retraction letter 31-12-2004. The sponsoring authority decision proposal 7-1-2005 prepare forward detention detenu. a The screening committee received 13-1-2005 On placed meeting 18-1-2005. approval proposal forwarded minutes. The proposal received minutes Sponsoring Authority 2-2-2005 thereafter forwarded Detaining 27 Authority 11-2-2005. It was received Detaining Authority 14-2-2005 Detaining Authority called discussion Investigating Officer 5-3-2005. The proposal running 105 holidays 19-2-2005 20-2-2005 office Detaining Authority. The concerned Assistant scrutinised proposal prepared a detailed submitted approval Under Secretary 23-2-2005. Under Secretary endorsement 24-2-2005 forwarded Deputy Secretary endorsement 25-2-2005 forwarded papers The Detaining Authority. 26-2-2005 27-2-2005 holidays. The Detaining Authority considered proposal 2-3-2005 discrepancies and, therefore, instructed Investigating Officer a meeting 5-3-2005. A detailed showing discrepancies proposal prepared 7-3-2005 Under Secretary submitted Detaining Authority. A detailed report called Sponsoring Authority regard discrepancies endorsement 10-3-2005. Vide letter 21-3-2005 Sponsoring Authority called documents rearrange prepare accordingly 28 returned Sponsoring Authority submitted papers Home Ministry letter 28-3-2005 Home Ministry received 30-3-2005. Thus 31-3-2005 30-4-2005 proposal appears remained without attended remained dead. On 1st May 2005 it was a holiday 2nd May 2005 concerned Assistant prepared a detailed scrutiny forwarded Under Secretary endorsement forwarded Deputy Secretary. The Deputy Secretary endorsement 5-5-2005 submitted papers Detaining Authority. The Detaining Authority approved proposal Sponsoring Authority endorsed issuance detention 6-5-2005. The concerned Assistant prepared forwarded Under Secretary 10-5-2005. The Deputy Secretary endorsement and submitted to the Detaining Authority and finally the impugned order is passed on 13-5-2005.

12. The question that arises for our consideration whether pocket caused 31-3-2005 30-4-2005 explained explained satisfactorily, whether a 29 itself vitiate detention. The Detaining Authority stated affidavit-in-reply during period 30-3-2005 2-5-2005 13 proposals pending before scrutiny between holidays. So 20 remained explained attributed pendency 13 proposals before Detaining Authority. Could ground declaring detention as void ab initio? The answer is in the negative. . The learned APP rightly relied upon the decision Rajendrakumar Natvarlal Shah v. State of Gujarat & ors. (AIR (AIR (AIR 1988 1988 1988 SC SC SC 1255). 1255) 1255) The effect caused passing detention cannot equated delays caused deciding representations submitted Detaining Authority, State Government Central Government. Clarifying guidelines of the High Court, the Apex Court in para 10 stated thus: "Viewed emphasise distinction different High perspective, we Courts between guidance a 30 prevention detention detention a Exchange Foreign Smuggling complying Activities Act, 22(5) Article It series a unexplained decisions taking action inflexible. a Quite making obviously, Conservation Act, 1974 effectively Prevention enacted foreign persons exchange engaged resources dealing economy Courts posing a serious thereby should security threat assume explained, material subjective in making delay, inference Detaining Taking warranted reached. grounds ‘stale’ impugned satisfaction unless merely Authority a Court illusory between 1974 procedural detention Foreign Smuggling purpose racketeering necessarily subjective making relating Conservation Prevention safeguards Constitution. Court Exchange Activities smuggling who, influence nation, account detention satisfactorily sufficient satisfaction genuinely grounds detention..." . Excluding the ten holidays, on the face of it a 20 passing impugned 13-5-2005. The Detaining Authority stated 13 proposals similar purpose pending before during period. As stated earlier, detenu 23 foreign 31 between period 12-4-2004 30-11-2004 and, therefore, grounds detention become illusory. There sufficient material before Detaining Authority a conclusion detenu smuggling foreign exchange Indian currency organised manner explanation carrying Indian currency business purposes support acceptance. But passport impounded, detenu himself undertake foreign reason believe have managed activity through a person detention. Under circumstances, Detaining Authority failed explain 20 satisfactorily instance a passing detention cannot reason vitiate detention. We hereby reject challenge detention ground passed belatedly passed reasons or that there was no real nexus between the grounds and the impugned order of detention. 32

13. In the premises, the challenge to the detention counts and, therefore, the petition deserves to be dismissed. The same is hereby dismissed and rule is discharged. (SMT.R.S.DALVI,J.) (B.H.MARLAPALLE,J.)