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Judgment
K. Mohan Ram, J.—The above petition has been filed by the detenu-Said Farouk challenging the order of detention passed by the first
respondent in his proceedings in G.O. No. SR.1/618-5/2010, Public (S.C.) Department dated 08.12.2010 detaining him u/s 3(1)(i) of the
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 [Central Act 52 of 1974], (hereinafter called as
COFEPOSA).
The brief facts leading to the passing of the detention order as aforesaid is that on 29.10.2010, at Chennai Anna International Airport the detenu
was intercepted by the Customs officers, when he came from France and on a personal check conducted on him, they recovered 536 gold coins
totally weighing 4288 gms valued at Rs. 76,54,080/- and 3000 Euros from him. Subsequent to the seizure, the detenu had given a statement dated
02.09.2010 admitting the seizure of gold coins and 3000 Euros. In connection with that, the detenu was arrested on 03.09.2010 and case was
registered under Sections 132 and 135(1) (a) and (b) of the Customs Act and was released on bail on 24.09.2010 with certain conditions.
Subsequently, the condition was also relaxed. On the basis of the aforesaid materials placed before him, the detaining authority came to the
satisfaction that if he remains at large, he will indulge in such prejudicial activities again, even though his passport has been produced before the
Court. Hence, the detention order was passed. Challenging the said detention order, this Habeas Corpus Petition has been filed by the detenu.
Though several grounds have been raised in the petition challenging the order of detention, we are not referring to all the grounds of attack, as
the Habeas Corpus Petition could be disposed of on the following ground.
In para No. 6(iii) of the affidavit filed in support of this petition, it has been averred as follows:
As mentioned in earlier paragraphs, the Customs authorities are alleged to have seized the gold coins from me on 02.09.2010 and I was arrested
on 03.09.2010 under the provisions of Customs Act and remanded to judicial custody. Subsequently, I was released on bail by the learned
Additional Chief Metropolitan Magistrate, E.O.II, Chennai on 23.09.2010 on certain conditions. After complying with the above conditions, I was
released on bail. Thereafter, I am appearing before the Customs Department daily as directed in the bail and on 1.11.2010 the condition was
relaxed to once in fifteen days by the lower court. On 9.12.2010 I filed a further relaxation petition and the same was served on the counsel for the
customs department. On 15.12.2010 the counsel for the Customs Department stated before the Court that the accused is complying the condition
regularly and after hearing the customs prosecutor, my appearance was relaxed to once in one month by the lower court. Thereafter, as per the
modified condition, I appeared on 1.1.2011 before the Customs Department control room and signed as on 1st of January 2011 no officers were
available in the concerned department; and on 1.2.2011 and 1.3.2011, I appeared regularly before Mr. Dawar, Supdt of Customs Department
and signed the attendance register. But only I went to sign on1.4.2011 I was handed over to police and the detention order was executed.
Mr. Alifudeen, the learned counsel appearing for the petitioner, referring to the aforesaid facts stated in the affidavit, submitted that though the
petitioner was appearing before the Court of Judicial Magistrate, Alandur in C.C. No. 120 of 2011 on various dates and that the order of
detention had been passed on 08.12.2010 and after the passing of the order of detention also he had appeared before the court concerned on
09.12.2010, 12.01.2011, 17.02.2011 and 23.03.2011, the detention order dated 08.12.2010 was not executed against him. If the detaining
authority was serious in executing the order of detention, the same could have been executed when the detenu appeared before the Judicial
Magistrate Court, Alandur on the aforesaid dates. Therefore, the learned counsel for the petitioner submitted that the delay of nearly four months in
executing the order of detention vitiates the order of detention itself.
The learned counsel for the petitioner further submitted that though a detailed counter affidavit has been filed by the first respondent, in para No.
7 of the counter affidavit the aforesaid facts, viz., the various dates of appearance of the detenu before the Judicial Magistrate Court, Alandur have
not at all been referred to or denied and it has not been explained as to why the order of detention could not be executed between 08.12.2010
and 31.03.2011. In the counter affidavit, it has been stated that the order of detention was sent to the executing authority on the same day and the
police party who visited the address mentioned in the detention order on 31.12.2010 and 16.01.2011 have reported that the house of the detenu
was found locked and the detenu was evading his arrest and hence he was arrested only on 02.02.2011. In support of his contention, the learned
counsel for the petitioner placed reliance on the order dated 24.08.2011 passed by the Division Bench of this court in HCP No. 2380 of 2010 [J.
Syed Mohamed vs. State of Tamil Nadu and two others]. In Para Nos.18 and 19 of the said order, the Division Bench has held as follows:
The grounds of detention would disclose that the alleged smuggling activity/mis-declaration took place on 10th March, 2010 and the detenu
was arrested on 11th March 2010 and he was enlarged on bail on 11th May 2011, subject to the condition that he shall appear before the DRI on
all working days until further orders, which was subsequently modified twice. The detention order was passed on 11th October 2010 and it was
executed on 13th December 2010. A perusal of the additional typed set of papers filed on behalf of the petitioner would disclose that the petitioner
filed Crl.M.P. No. 1488/10 for relaxation of the bail condition and that the application was listed for hearing on 18th October 2010. It was
directed to be called on 21st October 2010 and on that day it was adjourned to 8th November, 2010 and on both occasions the accused was
present. The detenu also filed Crl.M.P. No. 1651/10 praying for appropriate directions for his appearance on receipt of summons and it was
called on 15th November 2010, the detenu was absent and on an application u/s 317 Cr.P.C., his personal appearance was dispensed with and
the said application was called on 22nd Nov., 2010 and on that date the accused was absent and his personal appearance was dispensed with on
filing a petition u/s 317 Cr.P.C. and again it was called on 7th December 2010, 13th December 2010 and on both occasions, the accused was
present and on 15th December 2010, the said petition was dismissed as not pressed. Thus, the accused was appearing before the court of
Additional Chief Metropolitan Magistrate, E.O.II on 18th Oct., 2010, 21st Oct., 2010, 22nd Nov., 2010, 29th Nov., 2010 and also on 7th Dec.,
2010 and 13th Dec., 2010 and inspite of his appearance steps have not been taken to execute the order of detention.
In A. Mohammed Farook - vs. Joint Secretary to GOI and another [2000 SCC (Crl.) 411], the order of detention was challenged, among
other grounds, that there was a delay of 40 days in execution of detention order and the facts of the said case would disclose that the detention
order was passed on 25th February 1999 and executed on 5th April 1999 and though the detenu was present in the concerned court on 25th
Feb., 1999 as well as on 25th March, 1999, neither the detaining authority nor the executing agency nor the sponsoring authority had chosen to
serve the order of detention. The Hon''ble Supreme Court held that though the explanation was given by the detaining authority that despite their
best efforts, the detenu could not be located either at his residence or in his office, in the absence of report from the executing agency as to the
steps taken to serve the detention order, the subjective satisfaction arrived at by the detaining authority was vitiated for non-execution of the
detention order within a reasonable order.
On the aforesaid submission, we heard the learned Additional Public Prosecutor.
The learned Additional Public Prosecutor is unable to rebut the aforesaid submission made by the learned counsel for the petitioner, but
submitted that prompt steps were taken to execute the order of detention by forwarding the order of detention to the executing authority but the
executing authority inspite of their best efforts could not execute the order of detention.
We have considered the submissions made on either side and perused the materials available on record.
Admittedly, the order of detention was passed on 08.12.2010 and the same was executed only on 01.04.2011. There is no dispute that the
detenu was appearing before the Judicial Magistrate Court, Alandur on the following dates in C.C. No. 120 of 2011, viz., 09.12.2010,
12.01.2011, 17.02.2011 and 23.03.3011. Further, it is seen that by an order dated 15.12.2010 passed in M.P. No. 1977 of 2010, the learned
Additional Chief Metropolitan Magistrate, Economic Offences Wing-II, Egmore, Chennai-8 has modified the conditions imposed on the detenu
and that he was permitted to appear before the complainant, viz., the Superintendent of Customs, Prosecution Unit (Air), Customs House,
Chennai-1 on the first of every month and he should stay at Karaikal. It is not the case of the respondents that the detenu was not complying with
the said conditions imposed on him. Thus, when the detenu was admittedly appearing before the Judicial Magistrate Court, Alandur in connection
with C.C. No. 120 of 2011 and pursuant to the order of relaxation dated 15.12.2010, he was appearing before the Superintendent of Customs,
Prosecution Unit (Air), Customs House, Chennai-1, the order of detention, which was passed as early as 08.12.2010 could have been easily
executed; but the non-execution of the order of detention during those dates has not at all been adverted to or explained in the counter affidavit
filed by the first respondent. The explanation offered in the counter affidavit in para No. 7 is not acceptable. In the decision reported in 2000 SCC
(Crl.) 411, [A. Mohammed Farook - vs. Joint Secretary to GOI and Others] the Hon''ble Apex Court has held that the delay of 40 days in
executing the detention order still vitiates the order of detention and on that ground, the order of detention was set aside.
The said decision has been followed by the Division Bench of this court in the order referred to supra.
The above order of the Division Bench of this court and the decision of the Hon''ble Apex Court squarely applies to the facts of the case and
accordingly, the impugned order of detention dated 08.12.2010 is set aside and the habeas corpus petition is allowed. The detenu is directed to be
released forthwith, unless he is required in any other case.