Mohamed Shahanawaz vs D.N. Capoor

Kotwal, J.—On the basis of credible information, one person was nabbed by the Customs Air Intelligence Unit, Bombay on 29-10-1986 at about 7.00 p.m. at Sahar Airport. On his person five gold bullions of 10 tolas each were found which were sought to be carried clandestinely. These came to be attached under Panchanama. Formalities of investigation commenced. His statement u/s 108 of the Customs Act was recorded. It is some time thereafter that it was felt that a preventive action was necessary and, therefore, a proposal was made to detain him. After observing formalities, an impugned order of detention was passed on 22nd April, 1987. It was however, served on the detenu on 7th August, 1987, which order is being impugned in this petition on behalf of the detenu under Article 226 of the Constitution of India.

In support of the petition, Shri Gupta, the learned Counsel pressed into service pre-dominantly four contentions and in our opinion, all the said four contentions deserve to be accepted.

The incident is alleged to have occurred on 29th October, 1986. The impugned order is recorded on 22nd April, 1987 and it was served on the detenu on 7th August, 1987. This aspect, therefore, contains two Chapters. In the first, there is delay in passing the order of detention in between 29th October, 1986 and 22nd April, 1987. In the second chapter, there is a delay in serving the order. On both the grounds, in our opinion, there is unexplained delay. In the return filed on behalf of the detaining authority, it is mentioned that the detenu was arrested on 30th October, 1986. His last statement was recorded on 17th December, 1986 though investigation continued right from the date of his arrest. The proposal was made and the Screening Committee accepted the proposal on 16th February, 1987. It was forwarded on 12th March, 1987 to the detaining authority and on scrutiny the detention order was passed on 22nd April, 1987.

In our opinion, this hardly furnish any reasonable explanation for the delay. The arrest was made on 30th October, 1986 and right from 29th October, 1986 the investigation was in progress. All his statements were completed by 17th December, 1986. The proposal was placed before Screening Committee though for no apparent reason the Screening Committee approved of it as late as on 16th February, 1987 and thereafter it was forwarded as late as on 12th March, 1987. In our opinion, no explanation has been tendered as to why nothing could be done either prior to 16th February, 1987 and certainly prior to 22nd April, 1987. There are no future activities after the incident nor any past antecedents to his credit. Therefore, the live-link is snapped. This delay, in our opinion, which is obviously unreasonable and unexplained, is fatal to the validity of the impugned order. On this forum also it could not be properly explained.

In the second chapter, the delay is from 22nd April, 1987 to 7th August, 1987, in serving the order on the detenu. It is stated in the return that the detenu was not available and did not attend the Court even on the dates of the hearings. This is denied by the detenu. However, it is apparent that adjudication proceeding was initiated by the Customs Authority and the detenu has admittedly attended the same. Significantly he was informed by written intimation on 18th May, 1987 to remain present on 17th June, 1987 and accordingly he attended on 17th and 18th June, 1987 the said adjudication proceeding. This is not denied. The only explanation in the return is that adjudication proceeding is independent and the detaining authority is not concerned. We are not impressed by said contention because it is relevant proceeding and what is of more importance is that the same department had sponsored the proposal for detention and everything occurred in the same building. The delay has, therefore, also remained unexplained.

It was contended that a Panchnama at his residence at Cochin was made on 28th November, 1986 when no incriminating article was found and nil Panchnama was recorded. It is stated that this document was not placed before the detaining authority nor its copy was supplied to the detenu. The importance lies in the fact that it becomes vital document because it is alleged that some other baggage which was not accompanying the passenger was allowed that some other baggage which was not accompanying the passenger was allowed to be removed subsequently and the department felt that the same also might have contained contraband whereas it was the case of the detenu that on transfer out of earnings and savings he purchased gold and brought it for his personal use. If the department suspected about his past dealings, then it was essential to effect search of his premises and that is what they did. But they did not find anything. This document, therefore, was a relevant document and, therefore, should have been placed before the detaining authority. Its impact must be adverse to the department.

The fourth and the last point is that the representation which was made to the Central Government on 1st September, 1987 was considered late and its rejection was communicated to him on 13th October, 1987. This is apparent from the letter of communication. No return is filed on behalf of the Central Government nor it is clarified by any document and there was no explanation for this delay, first, in taking the decision on the representation and second, in communicating the same. Both the counts are against the Department.

The petition, therefore, succeeds on all these grounds.

Rules absolute.

The impugned order of detention dated 22nd April, 1987 recorded by the first respondent is quashed and set aside. The detenu is directed to be released forthwith.