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Judgment
Puranik, J.—On 31.1.198, the Petitioner was intercepted at Sahar Airport, Bombay when he arrived from Dubai by flight No. A1 910 with his wife and child. His family had cleared the goods by payment of customs duty valued at Rs. 5,460/- but on personal search of the Petitioner, two crudely made gold Kadas were recovered which were found concealed in his turban. They were weighing 465 Grams valued at Rs. 93,000 and odd in the international market. The said gold kadas were seized and thereafter; a complaint case was also filed against the Petitioner. The statement of the Petitioner was recorded u/s 108 of the Customs Act. The Petitioner was released on bail of Rs. 50,000/- surety bond on the same day which the Petitioner availed of on 3rd February, 1988.
On the basis of the statement of the Petitioner as well as the panchanama during the investigation, the Customs Authorities sponsored the detention of the Petitioner. This proposal for detention was proposed and finally the Government of Maharashtra in Home Department on 12th October, 1988 passed an order directing the detention of the Petitioner under COFEPOSA Act so as to prevent him from indulging in smuggling activities in future.
The detenu in this petition was in fact taken in custody under the said Order on 14th December, 1988 when he was attending the Court of the Metropolitan Magistrate in due course on the date of hearing of his case.
The Petitioner has raised several grounds such as the delay in issuing the order of detention such as non-basis of any material for preventive detention and such as the delay in execution of the order of detention upon the detenu from 12th October, 1988 when the order was passed till the 14th December, 1988 when the order was executed.
We feel that this case can be disposed of only on the short ground of unexplained delay of execution of the order of detention.
Smt. Ranjana Desai appearing on behalf of the detaining authority and the executing authority has filed an affidavit of Tulsiram Dumbre, Police Inspector of the Prevention of Crime Branch, C.I.D., Bombay to explain the delay in the execution of the order of detention.
It is an admitted fact that the detenu was set at liberty on 3rd February, 1988 whereas the order of detention was passed on 12th October, 1988. Police Inspector Shri Dumbre in his affidavit in paragraph 2 has admitted that on the very day, the order was passed, it was communicated to him for execution i.e. on 12th October, 1988. He immediately took steps on 13th October 1988 to find the whereabouts of the detenu to be taken in custody by sending a telex message to the Assistant Collector of Customs, Prevention, New Delhi. However, the reply from the Delhi Office was received by the Inspector Shri Dumbre on 2nd November 1988 intimating him that the detenu is available at the address stated in the order of detention itself. In paragraph 3, the Inspector further states that thereafter on 13.12.1988 the police stall and the identifying Customs Officers proceeded to New Delhi to serve the order of detention. However, it was learnt that the detenu had proceeded to Bombay.
In paragraph 4 he further states that on 14.12.1988 other police staff and identifying officer of the Customs Department attended the Court of the Chief Metropolitan Magistrate and when the detenu attended that Court he was nabbed and taken in custody for execution of the detention order.
We find that this explanation is no explanation at all. When the order of detention was communicated to the Executing Officer on 12.10.1988 he merely sent a telex message on the next day and awaited information about the whereabouts of the detenu for almost 12 days. Thereafter also, having received confirmation chat the detenu was available throughout at the stated address, the Executing Officer did nothing for almost one and half month to take steps to detain the Petitioner. There is also no explanation of any other exigencies which prevented the Executing Officer from proceeding to detain the Petitioner. This inordinate delay having been totally unexplained, we have no hesitation to conclude that the order of detention which is an emergent remedy for prevention of activities prejudicial to the State was treated in al very callous and cavalier manner while executing the same. The order of detention therefore is vitiated and is liable to be quashed on this short ground.
in the result, the Petition succeeds, the impugned order of detention is quashed and set aside and the detenu is ordered to be set at liberty forthwith unless required in any other case. Rule made absolute. liberty to place on record the affidavits of the parties.