K. Ramchandra Rao vs L. Hmingliana, Secretary to the Govt. of Maharashtra and Others

Puranik Sugla, J.—The petitioner is the brother-in-law of the detenu Koni Praveenchandra Habbar, who was apprehended on 17th February, 1988 at Sahar Airport, Bombay while coming from Dubai. Five gold bars of 10 tolas each were found concealed with him. He was taken into custody and his statement u/s 108 of the Customs Act recorded. He was remanded to custody upto 22nd February 1988, on which date on an application made by him, he was released on bail in the sum of Rs. 60,000/-. His passport was allowed to be retained with the Customs authorities.

In departmental adjudication proceedings show cause notice was issued to the detenu on 27th April 1988. The departmental proceedings as well as the prosecution against the detenu are still pending. By order dated 2nd November 1988 the detaining authority directed the detenu to be detained u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities, 1974 read with Government Order, Home Department (Special) No. SPL. 3(A) PSA 1187/1, dated 10th September 1987. Along with the order of detention the grounds for detention being Annexure ''A'' and ''B'' at pages 19 to 24 and the list of documents being annexure ''C at pages 25 to 49 served on the detenu on 15th November 1988. The detenu is in the custody with effect from 15th November 1988 till this date.

Mrs. Ponda, the learned Counsel for the petitioner, stated that the order of detention was bad and illegal. There was gross, inordinate and unexplained delay in passing the detention order. The fact that on 17th February 1988 the detenu was remanded to the custody upto 22nd February 1988 and was released on application made by him on 22nd February 1988 only was not within the knowledge of the detaining authority which indicated total non-application of mind. The bail application dated 22nd February 1988 wherein certain averments had been made by the detenu was not placed before the detaining authority as is evident from the fact that the said application was not served along with the other documents on the detenu. This fact also indicated absolute non-application of mind by the detaining authority. Mrs. Ponda placed reliance on this Court''s decision in the case State of Maharashtra Vs. Pollonji Darabshaw Daruwalla, In that case the detaining authority had noted that the detenu was in a Hospital ''X'' whereas actually he was hospitalised in Hospital ''Y''. The fact was held to be fatal to the order of detention.

Smt. Ranjana Desai for the respondents, on the other hand, stated that the detaining authority had correctly noted the fact that the detenu was discharged on bail on 22nd February 1988. Mere mention of the words "on the same day" was an inadvertent slip. In any event that was not a material fact on the basis of which conclusion could be arrived at that there was complete non-application of mind. Referring then to the bail application, she stated that, to say the least, the application was general and vague. The bail application was, thus, also not a material document non-consideration of which could make difference in the situation. As regards the gross inordinate delay, Smt. Desai referred to paragraph 6 of the affidavit sworn by the detaining authority to show that the incident took place on 17th February 1988. Show cause notice was issued to the detenu on 27th April 1988. Draft proposal was prepared by the Customs Department on 26th July 1988; and the proposal was placed before the Screening Committee on 16th August 1988. After its clearance by the Screening Committee all the documents were collected, xeroxed and made into required number of sets and submitted to the detaining authority by letter dated 30th August 1988, whereafter the detaining authority passed the impugned order on 2nd November 1988. Her submission, thus, is that the delay, if any, is fully explained.

In our judgment, the delay is not at all explained far less satisfactorily explained. It is a case of solitary incident which took place on 17th February 1988. The detenu was released on bail on 22nd February 1988. His passport was allowed to be retained by the Customs authorities. There is no whisper in the order of detention that his being at liberty from 22nd February 1988 to 2nd November 1988 was in any manner dangerous to the State. That apart, the manner in which the delay has been explained, to say the least, shows the casual and carefree manner in which the authorities have approached the problem. In preventive detention matters the situation is supposed to be emergent. That is why the provision is for detention without trial. There is no indication of sense of emergency shown in the conduct of the authorities. Incident has ''taken place on 17th February 1988. Show cause notice is issued after two months. Thereafter the proposal is sent by the Customs department after further three months i.e. on 26th July, 1988 and even after everything is ready on the table of the detaining authority, he takes two months to pass the impugned order. Thus, the petitioner was already at large for eight and a half months after the incident without any indication of his further involvement in smuggling activities. No doubt, Ranjana Desai placed reliance on the Supreme Court decision in the case of Rajendrakumar Natvarlal Shah Vs. State of Gujarat and Others, for the proposition that in the cases of preventive detention like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, the rule as to unexplained delay in taking action was not inflexible and in that case it was held to be not fatal. However, on carefully going through the facts of that case, we find that the decision in that case was rendered on its own facts. The incident in that case had taken place on 29/30th December 1986. The detenu was not arrested immediately. On 21st January 1987 he applied for anticipatory bail making a statement that there was no immediate and proximate cause for detention till February 1987. The detenu was not traceable. The order of detention passed on 28th May 1987. Moreover, the detenu had a past history. These facts certainly weighed with Their Lordships. The decision is, thus, distinguishable.

In the above view of the matter we are satisfied that the incident in this case had become stale on the day when the detaining authority passed the detention order. The delay from February to November 1987 has not been explained at all far less satisfactorily.

In the circumstances, the order of detention must fail and is quashed hereby. The detenu is directed to be set at liberty unless required in any other proceedings.

Rule is made absolute.