NETAJI NARAYAN LOTLIKAR Vs. STATE OF GOA

JUDGEMENT

(1.) DETENU Bhagwant Babul Lotlikar has been detained u/ S. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'the COFEPOSA Act') with a view to preventing him from engaging in transporting smuggled goods vide order dated 3/05/1990 passed by the Under Secretary (Home), Government of Goa. The grounds of detention were simultaneously prepared on 3/05/1990. However, the detention order could not be served on the detenu immediately because he was absconding. He was arrested on 18-6-1991 and immediately he was served with the order of detention and the grounds of detention.

(2.) ON behalf of the detenu several challenges have been raised in the petition, but Mr. Karmali, the learned Advocate appearing for the detenu, essentially pressed the challenge raised in ground Nos. (iv) and (v ). According to him, though the impugned order of detention was made on 3-5-1990, it was served on the detenu as late as on 19-6-1991, after a lapse of about 13 months. According to him, the order of detention has the validity of one year in normal course and in the present case the order of detention was served on the detenu after it had out-lived its life. He contended that there has been no serious efforts on the part of the Detaining Authority for several months to take any effective measure to cause the arrest of the detenu. He further contended that it is the obligation on the Detaining Authority to satisfy the Court as to what steps it had taken to effect the service of the detention order on the detenu.

(3.) ON behalf of the respondents, an affidavit has been filed by Mr. Ganesh P. Chimulkar, Under Secretary (Home) to the Government of Goa. The challenges made in ground Nos. (iv) and (v) have been replied to in paras of the affidavit, which is reproduced below. 8. With reference to grounds (iv) and (v), I say and submit that as stated herein above that although the detention order was issued on 3-5-90, it could not be served till 18-6-91 as the detenue was absconding. It is submitted that the Police informed the Home Department vide their letter dated 20-11-90 that the detention order could not be served as the detenu is not available. The Collectorate of Customs, Panaji was informed about this fact by the Home Department. The Collectorate of Customs knew that the detenu was absconding and had issued a red alert to their field offices throughout India to keep a watch on the detenu and to report to the Assistant Collector, Marmagoa if they noticed him. A report was also made to the Judicial Magistrate First Class, Margao for invoking provisions of Ss. 82, 83, 84 and 85 of the Code of Criminal Procedure, whereupon the detenu surfaced and could be arrested and detained on 18-6-9l. " From the above reply it would be seen that there is not even a whisper as to what the Detaining Authority did from 3-5-1990 to 20-11-1990. It is not in dispute that the Detaining Authority was aware even at the time of passing of the detention order that the detenu was absconding. However, Mr. Bhobe has vehemently argued before us and submitted that though the details are not mentioned in the affidavit; but still he could substantiate his argument that the Detaining Authority was quite alert and was taking every possible step ever-since the detention Order was issued. Mr. Bhobe has produced before this Court several documents at this stage, which we have allowed in the interest of justice. The bunch of documents which he had produced consists of correspondence beginning from 24-7-1990 to 29-5-1991. Mr. Bhobe has taken us through all these documents. He has laid great stress, and in our view rightly on a letter dated 18-11-1990, which gives record of the action that was being taken by the police to arrest the detenu. This letter, in our view, is an important document, which explains practically the steps which were taken day-to-day by the police. The relevant portion of this letter is reproduced below -.