KASIM KADAR KUNHI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The Petitioner challenges the Order of detention issued on 28-2-2002 by the respondent No. 2 in exercise of the powers under Section 3 (1) of the Conservation of foreign Exchange and Prevention of smuggling Activities Act, 1974 (hereinafter referred to as 'cofeposa Act') on three grounds viz. (i) delay in execution of the detention order; (ii) delay in consideration of representation; and (iii) the order issued for the purpose referred therein could not have been issued on the basis of the materials placed before the Detaining Authority.

(2.) The petitioner is the friend of one mohd. Kunhi Kallattra-detenu. On suspicion, the detenu was intercepted on 6-9-2001 while he had boarded the Gulf Air Flight No.-059 to travel to Dubai, and examination of his baggage and personal search resulted in recovery of Indian Currency worth Rs. 14,650/ - and Foreign Currency equivalent to rs. 6,94,500/-, besides, travellers cheques totally worth Rs. 12,87,252/- and the same were seized under Panchanama and he was arrested by the Custom Authorities. The foreign currency worth Rs. 3,16,505/- is stated to have concealed in the bag, which was carried by the detenu and there was no declaration made in relation to the said foreign currency by the detenu before the Customs authorities before boarding the air craft. The arrest of the detenu was followed by the investigation, which included the recording of his statement under Section 108 of the customs Act, 1962, followed by retraction of statement and thereafter by Order dated 28-2-2002. The Detaining Authority issued the said impugned Detention Order and the same was served upon the detenu along with the grounds in support thereto on 21-9-2004. It is also to be noted that pursuant to the arrest of the detenu, an application for bail came to be filed before the concerned Magistrate, which was allowed on 18-9-2001 and the detenu was released on bail on 29-10-2001.

(3.) As regards the first ground of challenge it is the contention of the detenu that the impugned Order was belatedly served upon the detenu i. e. nearly two years and seven months from the date of issuance of the said Order and there is no satisfactory explanation for such delay in giving effect to the said Order. It is the contention on behalf of the detenu that inspite of receipt of the letter dated 2-9-2003 sent by the Advocate for the detenu informing the Customs Authorities about the non-service of any Show Cause notice under Section 124 of the Customs Act, 1961 regarding the seizure of the currency from him, there was no response to the said letter nor even intimation about the issuance of detention order against the detenu. It is further contention that the detenu himself had presented before the learned Magistrate dealing with the complaint filed by the customs Authority under Section 135 of the customs Act and inspite of having appeared as many as on five occasions before the learned Magistrate no efforts were made to serve the Detention Order and there is no explanation for such failure. It is the contention of the detenu that in the facts and circumstances of the case, the belated service of the impugned order of the detention on the detenu has impaired the satisfaction arrived at by the detaining authority, as the same is not genuine and it renders the order to be null and void and therefore, deserves to be quashed. The reliance is placed in the decision in the matter of K. P. M. Basheer Vs. State of Karnataka and Anr. reported in (1992) 2 scc 295 and in the matter of Narendra punjabhai Shah Vs. Union of India and ors. reported in 1994 (2) Scale 112. It has also been brought to the notice of the court that in the statement of detenu recorded under section 108 of the Customs Act the detenu had clearly disclosed his local address in mumbai and yet no efforts were made to serve the order of detention at Mumbai and there is no explanation for the same by the respondents. Even the action under section 7 (1) of the COFEPOSA Act has been taken after five and half months and there is no explanation for such delay.