KADHAR NAINA USHMAN Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS petition under Art.32 of the Constitution of India has been filed seeking quashing of order of detention dated 23-10-2001 passed by the Government of Tamil Nadu under S.3(1)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short "the COFEPOSA" with a view to preventing the petitioner from smuggling goods in future. The aforesaid order was modified in terms of GO No. SR 1/1155-21/2001 dated 9-4-2002. The necessity to modify the order dated 23-10-2001 arose on account of the surrender of the petitioner before the Magistrate and his subsequent remand to Central Prison, Chennai.

(2.) THE facts, in brief, are that the petitioner was apprehended on 22-8-2001 while attempting to smuggle out of India foreign currency. He was arrested on 24-8-2001. The application for release on bail on medical grounds filed by the petitioner was rejected by the Magistrate concerned on 27-8-2001 and by the Sessions Judge on 28-8-2001. The petitioner was, however, released on bail in terms of the order of the High Court dated 30-8-2001. The grant of bail, to the petitioner, was not opposed by the Public Prosecutor before the High Court. The petitioner was directed to be released on bail by the High Court on his executing a bond for Rs 10,000 with two sureties for a like sum each. It appears that on furnishing the bail bond and the sureties the petitioner was released on bail. On 3-4-2002, however, the brother of the petitioner who was one of the sureties, withdrew his surety, the petitioner did not give alternative surety and was arrested and remanded to judicial custody. The modified order of detention was served on the petitioner while in custody.

(3.) IN the present case, as already noticed, the detention order was executed on 9-4-2002. It was passed on 23-10-2001 and modified on 9-4-2002. Earlier to 23-10-2001, the petitioner had been released on bail in terms of the order of the High Court dated 30-8-2001. The respondent State of Tamil Nadu, in the counter - affidavit, filed by its Deputy Secretary, has stated that the detention order dated 23-10-2001 could not be executed as the petitioner went in hiding and was absconding all the time and action was taken under S.7(1)(b) of the COFEPOSA on 7-2-2002. It has also been stated that all efforts taken by the police to implement the detention order proved futile as the detenu was absconding to evade arrest. Except these general and vague averments, no particulars have been mentioned in the affidavit. There is nothing in the affidavit which could show as to what efforts were made between 23-10-2001 and 7-2-2002. In absence, this Court is constrained to take the view that no efforts were made for nearly 3 1/2 months i.e. between 23-10-2001 and 7-2-2002 to apprehend the petitioner. It is also not the case of the respondents that any application was filed before the Magistrate either praying for the cancellation of the bail or praying that the petitioner shall not be granted exemption from personal appearance since he is evading arrest pursuant to the order of detention. Clearly, therefore, the respondents have miserably failed to offer any explanation, let alone a satisfactory explanation in respect of delay in execution of the order of detention. The inevitable conclusion is that the respondents were not serious in detaining the petitioner under the preventive law of the COFEPOSA .