HAJA MOHIDEEN Vs. UNION OF INDIA (UOI) REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, NEW DELHI

JUDGEMENT

(1.) THIS is a pre -detention writ. The Petitioner seeks issue of a writ of mandamus to forbear the Respondent either directly or through his agents or subordinates from arresting and detaining him in pursuance of the order of detention issued under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, in respect of an occurrence stated to have taken place on 10.4.1990, at Madras.

(2.) IN the affidavit sworn to by the Petitioner in support of his prayer, he has stated that he had come down to Madras to eke out livelihood as a broker in scrap iron. He owned an Ambassador Car bearing Registration No. MDL 342, which he was using as a private taxi. On 10.4.1990 one Buhari, son of M.S.A. Abdul Khader wanted the Ambassador Car for his use on hire basis. The Petitioner had appointed Khader as a temporary driver since Buhari was living opposite to his house situated in Angappa Naicken Street. The Petitioner travelled on 10 -4 -90 along with Buhari, is relative Manawar Hussain and others in the car, driven by Khader. The car was stopped at Nainiappan Naicken Street near Dada Pharmaceuticals. Certain persons searched the car and from the back seat they recovered a plastic bag containing Indian Currency valued at Rupees five Lakhs. The Petitioner was shocked. According to him the said money must have been brought by Buhari or Manawar Hussain. However, all the three of them were taken to the Enforcement Office. The search of the Petitioner's residence did not yield anything incriminating. At the Enforcement Office, he was beaten, tortured and made to write, a number of pages, the matter dictated by the Officials. His plea that the money belonged to Buhari and Abdul Khader was not accepted. On 11.4.1990, he was produced before the Additional Chief Metropolitan Magistrate, Madras, who remanded him to judicial custody. On 12.4.1990, in the bail application filed on his behalf, he had retracted his confession. He also sent a retraction letter on 16.4.1990. On 18.4.1990 he was directed to be released on bail. On 19.4.1990, as soon as he came out on bail, he sent a telegram to the Directorate of Enforcement, New Delhi, retracting his confession, on 1.5.1990, the Ambassador car was returned to him.

(3.) EXPATIATING both these grounds, the learned Counsel contended that, in the counter affidavit filed, no explanation had been offered for such extra ordinary delay not only regarding the passing of the order of detention but also in respect of the delay in arrest. He would strenuously submit, that the Respondent should not have withheld details, which led to the delay by taking an untenable stand that these questions cannot be taken in pre -detention case. He further submitted, that the denials made in the counter affidavit were really no denials at all, since they were totally vague in (Sic)aracter. The learned Counsel went on to add, that the detaining authority cannot say after a few months that he had decided to arrest and detain the detenu, without any supervening circumstances. This was not a case of absconding of the Petitioner. Absconding being a conscious act, it must be shown, that the detenu knew of the passing of the order of detention. No affidavit had been filed from the Officer concerned, who attempted to serve the order of detention on the Petitioner and found him absconding. The Petitioner could not have absconded since not only in the summons issued to the Petitioner in 1990, but also in the show cause notice issued in March, 1991 the address of the Petitioner has been constantly shown as 154, Angappa Naicken Street, Madras.