SHABBIR AHMED RAFIQUE AHMED Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This writ petition seeking a writ of habeas corpus or the directions in like manner impugns the order of detention dated 13-5-2005 passed by the principal Secretary (Appeals and Secretary) , government of Maharashtra, Home Department and the detaining Authority by invoking powers under Section 3 (1) of the Conservation of Foreign Exchange and prevention of Smuggling Activities Act, 1974 (for short "the Act"). The said order was served on the detenu on or about 20/5/2005 and he was taken in detention on that day. A communication bearing No. PSA - 1105/2/spl-3 (A) dated 13/5/2005 was also issued by the said Detaining Authority and served on him on or about 20/5/2005 along with the list of documents. This communication had set out the statements and grounds of detention on the basis of which the impugned order was passed. Admittedly the copies of the documents mentioned in the list of documents were also served upon the detenu along with the detention order.

(2.) On 30/11/2004 the detenu was intercepted while he was at Module 2a Departure Hall of Chhatrapati shivaji International Airport, Mumbai while he was to depart to Dubai and was proceeding to transit lounge after passing through the Immigration and Customs to board flight GF 057 for Dubai via Bahrain. He was holding Indian Passport No. A 4197422 and was questioned whether he was carrying any contraband such as foreign currency, Indian currency, diamonds, narcotic drugs etc. , on his person or in his baggage, to which he replied in the negative. Not being satisfied with his reply, he was subjected to a check up along with the checked-in baggage and the operation resulted in the recovery of assorted foreign currency equal to Indian Rs. 2,50,377/- from his shoes and Indian currency of Rs. 17,61,000/- from a cardboard carton containing rotten custard apples from the checked-in baggage. The total amount equivalent to Rs. 20,11,377/- was seized under a panchanama in the reasonable belief that the same were attempted to be smuggled out of India and hence liable for confiscation under the provisions of the customs Act, 1962 read with Foreign Exchange management Act, 1999. His statement was recorded under Section 108 of the Customs Act on the same day and he was claimed to have admitted the possession, carriage, concealment and recovery of the currency under seizure. He is alleged to have stated that the currency under seizure was given to him by one shabbir who stayed in Mumbra but he did not know his exact address. The detenu is stated to have said further that he met said Shabbir on 29-11-2004 on instructions from his friend Haji Shaikh from Dubai. He was taken in custody and produced before the learned Chief Metropolitan Magistrate who was pleased to release him on bail subsequently on 10-12-2004. Admittedly his passport was also seized as soon as he was taken in custody on 30-11-2004. His statements were recorded on 13-12-2004, 14-12-2004, 16-12-2004, 22-12-2004, 29-12-2004 and 31-1-2005, before the impugned order dated 13-5-2005 was passed.

(3.) The main grounds of challenge to the detention order as set out in the petition and reiterated by the learned counsel in her oral arguments advanced before us are as under: (A) The detention order was issued belatedly i. e. after a period of more than five months on his release on bail on 10-12-2004 and the delay caused was not only inordinate, lethargic but was inexcusable and colossal thereby vitiating the order of detention. The live-link was snapped and the credible chain was broken on account of the delay caused in issuing the order of detention more so when the grounds of detention were not proximate to the alleged prejudicial activities on the basis of which the impugned order was passed. (B) At every pocket in the process of passing the detention order, there was delay which has not been explained at all by the Detaining Authority and on that ground also the detention order is required to be set aside. The detention order suffers from the vice of non-application of mind and the satisfaction arrived at by the Detaining Authority is sham and fabricated. (C) While passing the detention order the retractions dated 1-12-2004 and 31-12-2004 submitted by the detenu have not been considered by the detaining Authority while setting out the grounds of detention and this itself has severely impaired the detention order warranting the same to be quashed and set aside. The detention order is not preventive in nature but in fact it is punitive in character. (D) The representation dated 29-6-2005 submitted by the detenu was forwarded by the Superintendent of nashik Road Central Prison to the Detaining Authority as well and the same was considered and rejected belatedly vide the order dated 26-7-2005 and the said order was served on the detenu for the first time on 8-8-05. The delay caused in deciding the representation by the Detaining Authority and serving the order of its rejection suffer from the delays which have not been explained satisfactorily and this resulted in violation of the guarantee under Article 22 (5) of the Constitution. (E) The detenu had also submitted representations to the State of Maharashtra on 12-9-2005 and 19-9-2005 and the same came to be rejected vide order dated 18-10-2005 which was received by the detenu on 20-10-2005 at the Nashik Road Central Prison. This delay caused in deciding the representations submitted under Section 11 of the Act has also vitiated the detention order as the said delay could not be explained satisfactorily and thus the protection under Article 22 (4) and 22 (5) of the constitution has been denied to the petitioner by the respondents. On these grounds also the impugned order is required to be quashed and set aside.