MOHAMMAD HUSAIN HAJI SULEMAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) - The Secretary to the Government of Maharashtra, home Department, and the detaining authority by order dated September 12, 1988 passed in exercise of powers under sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling activities Act, 1974 directed detention of Mohammad Kasam, s/o mohammad Husain with a view to preventing him from smuggling goods. The order of detention was served on January 18, 1990 and the grounds of detention were supplied.

(2.) THE grounds of detention, inter alia, recite that the detenue was intercepted by the Officers of D. R. I. , Bombay after the detenu cleared himself through the immigration in the arrival hall of Sahar Airport, on june 23, 1988. The detenu made a statement that 60 foreign marked gold biscuits were concealed by him in two cavities in the rear side of the aircraft. The cavities were examined and 60 gold biscuits valued at rs. 22,18,683/- were recovered. The statement of the detenu under Section 108 of the Customs Act was recorded and the detenu made statement ncriminating himself in the commission of the offence. The detenu was put under arrest on June 24, 1988 but was released on bail on July 8, 1988 by the Metropolitan Magistrate. The detenu retracted his statement after releasing on bail. On this material, the detaining authority came to the conclusion that it is necessary is pass order of detention to prevent to detenu from indulging and smuggling in future. The order of detention s under challenge at the behest of the father of the detenu.

(3.) SHRI Karmali, learned counsel appearing on behalf of the detenu, submitted that there is inordinate and unexplained delay in serving order of detention and that this ground itself is enough to hold that the continuation of detention is bad. We find considerable merit in the submission of the learned counsel As mentioned hereinabove, the order of detention was passed on September 12, 1988, but was served only on January 18, 1990. The detaining authority has not filed any return to indicate why the order was not served on the detenu for considerable length of time. Mrs. Desai, Public Prosecutor, appearing on behalf of the detaining authority, submitted that the detenu sought extention of bail right from september 12, 1988 till November 29, 1988 from the Metropolitan Magisrate without presenting himself in Court. The learned counsel urged that as the detenu was not present in Court, possibly the order could not be served. It was also contended that from the fact that the detenu did not attend the Court, it should be concluded that the detenu was not available. It is impossible to accede to the submission. It is well-settled by the decision of the Supreme Court that it is not incumbent for the accused to remain present in Court while seeking extension of bail. The mere fact that the accused did not attend Court cannot mean that the accused was not available for service of detention order. The detaining authority has not filed any return making such claim. Even assuming that such claim was made, the detaining authority would have been required to answer as to why application for cancellation of bail was not filed before the metropolitan Magistrate. In our judgment, the service of detention order after a considerable length of time vitiates the effectiveness of the order. The order of preventive detention is passed because there is immediate danger of the detenu indulging in prejudicial activities and service of such orders cannot be postponed for over years. In these circumstances, the order of detention is required to be quashed.