ABDUL KALAM ALIAS MULLAJI Vs. UOI

JUDGEMENT

(1.) THE petitioner seeks a direction for quashing of an order dated 09.09.2011 issued by the Central Government in terms of Sec. 8 (f) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as `COFEPOSA'). THE petitioner urges that the detention order and the grounds referred to are illegal and besides, he is facing prosecution in connection with the incident under Section 135 of the Customs Act and Section 489 IPC.

(2.) ACCORDING to the detention order, intelligence was received by DRI that some one answering to the petitioner's description would be alighting from the Brahmputra Mail scheduled to arrive at Delhi Railway Station on 05.07.2010 at around 6 AM. Apart from the description, information received also was specific as to the kind of clothes he was wearing. A team was constituted which included independent witness; they all reached the Station around 5:50 AM and mounted surveillance around the location. The allegations further are that at about 8:30 AM the DRI officers spotted a person wearing white kurta payjama and riding a red motorcycle, parking near a mazaar. The said person parked his motorcycle and walked towards the mazaar. He was joined by some one who get off from an auto rickshaw. The person of the first description was identified as Mohd. Naushad Mian. He handed over a green coloured polythene packet, brought by him to the second individual, i.e., the petitioner in this case i.e. Abdul Kalam and both of them started walking towards the motorcycle. The detention order alleges that at this stage both of them were interrogated. It was alleged that the packet contained Fake Indian Currency Notes in the denomination of Rs.500/- and Rs.1000/- aggregating to Rs.2,95,000/-. The detention order alleges that Abdul Kalam i.e. the present petitioner recorded his confession under Section 108 of the Customs Act on the same day i.e. 05.07.2010 in terms of which he acknowledged to personal knowledge about the contents of the packet and also confirmed that this was a part of an organized racket. He apparently named one Amurul Islam as master mind of the entire operation. The detention order states that on the basis of the statement of the writ petitioners, further investigation was conducted pursuant to which summons/notices were issued to the other alleged offenders including Amirul Islam. The detention order mentions that summons were issued on 08.07.2010 and also later, on 12.8.2010 and 30.8.2010. Apparently, Amirual Islam did not comply with notice and appeared before the authorities. His premises were searched and incriminating documents were allegedly seized. The detention order also alleges that the documents taken into possession revealed at least one previous incident involving the smuggling of fake Indian currency notices to the extent of Rs. 4 lakhs.

(3.) COUNSEL for the respondent submitted that the mere circumstance that the writ petitioner was granted bail either before the detention order or even later is not insufficient ground for the Court to exercise its discretion under Article 226 of the Constitution and quash an order. It was argued that so far as question on delay is concerned there was in fact no delay and that the standard for judging whether the order of detention is made after an inexcusable delay or ordinary delay is not the same as in the case of approach of detaining authority which is expected to dispose of the detenu's representation with utmost expedience. It was emphasized that the provisions of COFEPOSA impose time limits within which representation have to be dealt with and the question of delay in passing detention order has to be seen not from a mathematical perspective but whether the facts of the case disclose that the offender is likely to indulge in the same behaviour.