SHAIKH MOHD RAFIQ MOHD HUSSAIN Vs. PREVENTIVE DETENTION SECRETARY TO THE GOVT OF MAHARASHTRA HOME DEPT AND

JUDGEMENT

(1.) THE Secretary (Preventive Detention) to the Government of Maharashtra, Home Department, and Detaining Authority passed order dated May, 9, 1989 in exercise of powers under sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of smuggling Activities Act, 1974, directing detention of the petitioner with a view to preventing him from smuggling goods. The order of detention was served on February 15, 1990 and the grounds of detention were furnished. The grounds, inter alia, recite that on suspicion, Customs Intelligence Officers intercepted the detenu on his arrival on March 17, 1988 at Sahar Airport. The detenu had arrived from Dubai. On search of the detenu, 50 gold bars with foreign markings weighing 5,830 grams and valued rupees 18,18,960/- were recovered. The statement of the detenu was recorded and the detenu incriminated himself in the commission of smuggling of gold. The detenu was arrested on march, 18, 1988 but was released on bail by the Chief Metropolitan Magistrate and the bail was availed of on April 25, 1988. From this material, the Detaining Authority came to the conclusion that it is necessary to pass order of detention to prevent the detenu from indulging in smuggling in future. The order of detention is under challenge.

(2.) SHRI Sardar, learned counsel appearing on behalf of the detenu, submitted that the exercise of power of detention is entirely mala fide and uncalled for. The learned counsel urged that the incident which gave rise to the passing of order of detention occurred on March 17, 1988. The petitioner was released on bail on April 25, 1988 and after passing of more than a year, the order of detention was passed on May 9, 1989. The learned counsel is right in his submission that the detention is resorted to in respect of a stale incident. In answer to the petition, the Detaining authority has filed return affirmed on April 2, 1990 and what is stated entirely supports the submission of Shri Sardar that the power of detention was exercised in a causal manner. The return claims that the proposal for detention was initiated on September 5, 1988 and the screening Committed cleared it on Sept. 20, 1988. The proposal was submitted to the Detaining authority on November 25, 1988. On January 21, 1989, the Detaining Authority formulated the draft grounds of detention. The translation of the grounds was received by the Detaining authority on March, 21, 1989. The detaining Authority claims that the proposal was re-considered and then order was passed on May 9, 1989. In our judgment, the entire exercise to pass order of detention has proceeded in a slipshod manner and the powers are exercised in a casual fashion. It is not permissible to exercise power of detention after passage of considerable time from the date of incident which is the basis of exercise of power. Shri Sardar is also right in his submission that the order of detention was to served on the detenu for over six months. The explanation given by the Detaining Authority is not satisfactory. In our judgment, the order of detention is these circumstances is required to be struck down.

(3.) ACCORDINGLY, petition succeeds and the order of detention is quashed and the detenu is directed to be released forthwith.