Mahesh Kumar @ Mahesh Prasad vs Union of India and Others

The petitioner has come before this court in an application under Article 226 of the Constitution challenging his detention in pursuance of the detention order passed u/s 3 of The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The facts of the case are brief and without controversy. On the basis of some confidential information received by them, the customs authorities on 11.1.1999 intercepted two trucks near Sasaram that were on way from Sitamarhi to Delhi. The trucks were laden with ball-bearings, worth approximately Rs. 45 lacs, of a third country origin. The drivers of two trucks or the persons accompanying the consignments failed to produce any document showing any authorised entry of the goods in this country. Consequently, the goods were seized and a confiscation proceeding was started. The authorities took statements of the drivers and the other people who accompanied the consignments of the smuggled goods. The names of the present petitioner and his brother Sanjay Prasad were mentioned in those statements and it appears that it was at the instance of the present petitioner that the goods were loaded at Sitamarhi for being dispatched to Delhi.

On the basis of the seizures that took place on 11.1.1999 two detention orders, one in respect of the petitioner and the other in respect of his brother Sanjay Prasad were passed on 23.5.2000. In the detention orders it is stated that notices were earlier issued on 13.6.1999,31.8.1999 and 14.10.1999 asking them to appear before the authorities and it was on their failure to comply that the detention orders were finally passed.

The two detention orders one relating to the petitioner and the other relating to his brother Sanjay Prasad are absolutely identical. It is, however, pointed out that the role of the present petitioner was relatively more serious since in some of the statements made before the authorities he was said to be the person who got the smuggled goods loaded on the trucks at Sitamarhi in his presence.

Be that as it may, the detention order was served on Sanjay Prasad on 2.8.2002 and on 1.1.2002 his case came before the Advisory Board. The. Board, however, found that the service of the detention order on the detenue Sanjay Prasad was delayed by more than two years, without any sufficient explanation and on that ground refused to accord its concurrence to his detention. Consequently, Sanjay Prasad was released from the detention.

In the case of the petitioner a notification u/s 7(1)(b) was made as late as on 24.1.2004 and then the Government passed order dated 25.2.2004 taking action u/s 7(1)(a) of the Act

It appears that at that stage the petitioner came to this court in Cr.W.J.C. No. 131 of 2004 seeking to challenge the detention order passed against him on 23.5.2000. At that stage this court declined to interfere in the matter and dismissed the writ petition by order dated 10.1.2005, leaving it for the petitioner to make a representation before the competent authority against his proposed detention. The petitioner filed his representation on 14.6.2005. Finally the detention order could be served on him on 17.6.2005. His case came before the Advisory Board which gave its consent on 20.7.2005 and the petitioner was informed on 8.10.2005 that his representation was rejected and his detention was ordered till 16.6.2006.

It ex-facie appears that there has been a great deal of unexplained delay in taking action under the provisions of the Act. The alleged role of the petitioner in smuggling of goods came to light on 11.1.1999. The detention order was passed on 23.5.2000. The notification u/s 7(1)(b) was made on 24.1.2004 and the petitioner was finally arrested on 17.6.2005.

In the supplementary counter affidavit filed on behalf of Respondents 3 and 4 an attempt is made to explain the delay. The explanation does not go beyond referring to a few letters written by the customs authorities to the C.I.D. and the latter in its turn writing to the S.P., Sitamarhi. The writing of a few letters, at the rate of two or three letters per year is hardly sufficient to explain the delay of four years in taking action u/s 7(1) (b) of the Act. It may be noted here that in K.P.M. Basheer Vs. State of Karnataka and another, the Supreme Court held that a delay of five months was fatal to the detention.

In course of hearing we pointedly asked both the Addl. Advocate General appearing for the State and Mr. Sudhir Singh, counsel appearing for the customs authorities whether there is any evidence that during the past five years the petitioner has been indulging in the same kind of activities. Both the counsel were unable to give any satisfactory answer to the court''s query.

It is basic and elementary that a detention under COFEPOSA is not by way of punishment for an established and proved crime. Rather, the detention is preventive and a measure to prevent the detenue from repeatedly indulging in smuggling activities. As there is no material to suggest that the petitioner has been indulging in the same kind of activities his detention in connection with an occurrence that took place five years ago can hardly be described as a preventive measure.

For all these reasons we are unable to uphold the detention of the petitioner in pursuance of the detention order passed five years ago.

The order of detention is quashed and the petitioner is directed to be released forthwith unless he is required in connection with any other case in which he may be lawfully detained. In the result this writ petition is allowed but with no order as to costs.