NAVIN MOHANLAL KATARMAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS writ petition under Article 226 of the Constitution of India is filed by the brother of detenue, one Jitendra Mohanlal Katarmal, challenges an order of detention dated 26th August, 2005 issued by the Principal Secretary (Appeals and Security), Government of Maharashtra, Home Department (for short "detaining authority") in exercise of his power under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974) (for short "COFEPOSA Act") with a view to preventing the detenue from smuggling goods in the future.

(2.) THE order of detention dated 26.8.2005 was served upon the detenue on 24.6.2006 alongwith the grounds of detention and material in support thereof. The grounds of detention indicate the nature of prejudicial activities of the detenue. It appears that on the basis of the intelligence received by officers of the Directorate of Revenue Intelligence (for short "the DRI"), they detained three containers of Red Sanders which were illegally exported on three different occasions by misdeclaring them as "Poha" and "Coriander Products" respectively. The consignors and consignees on all the three occasions were different. The containers on all the three occasions were examined by the officers of DRI in the presence of panchas. The enquiry conducted at Delhi reflected that the consignors were non-existent firms. During enquiry in order to ascertain true facts of the case, summons were issued to several persons whose statements were recorded under section 108 of the Customs Act including the statement of the petitioner. The record reveals that a gang was apprehended by the Thane police who were indulging in the export of Red Sanders by using fake stamps and seals. The Thane police were contacted to get the details and it was found that the same gang had operated in sending Red Sanders also. We do not deem it necessary to give further details for deciding the instant writ petition. Suffice it to say that the grounds of detention do indicate that the detenue was, indeed, involved in smuggling of goods on a large scale. It appears that after perusing the material in support of the grounds of detention, the detaining authority has observed that the extent and gravity of the offence, the well planned manner in which the detenue had been indulging in smuggling activities and his connection with international smuggling syndicate outside the country coupled with his indepth knowledge of clearance of cargo through docks and customs procedures which he can misuse, clearly reflect his high propensity and potentiality to indulge in prejudicial activities in the future.

(3.) MR .Mhaispurkar, learned A.P.P., on the other hand submitted that lot of efforts were put in by the executing authority to execute the detention order, but in vain since the detenue was absconding during the said period. He invited our attention to the affidavit of the executing authority dated 16.12.2006 and submitted that it is clearly reflected in the affidavit as to what efforts were made by the executing authority. He took us through paragraph 3 of the affidavit in particular to contend that the right from the date, that is, 29.8.2005, they received the order of detention alongwith the grounds of detention and compilation of the documents, they made several attempts by visiting the residence of the detenue as also to his relatives and other persons in the locality where the detenue was residing. The detenue was, however, not found in his house. Mr.Mhaispurkar submitted that they did not file application for cancellation of bail since they did not find it necessary and they were hopeful of the execution of the order since they were making all sincere efforts to arrest him. Having failed in their efforts, on 23.5.2006 they issued a letter to the Police Inspector, Crime Branch, Thane (E.O.W.) requesting him to take action for cancellation of bail in Crime registered at Mumbra police station. The investigating officer, in turn, made an application on 19.6.2006 to the learned Magistrate seeking information as to whether the detenue attended all the dates of hearing before him. However, before further steps were taken, on 26.6.2006, the detenue came to be arrested and the order of detention was served upon him and hence it cannot be said that no efforts were made by the detaining authority to execute the order of detention. He submitted that the detenue cannot take advantage of his own wrong and the due and diligent efforts made by the executing authorities to execute the order of detention on the detenue cannot be disregarded. He then submitted that the action under section 7(1)(b) of the COFEPOSA was also initiated against the detenue on 6.3.2006. In the circumstances Mr.Mhaispurkar submitted that the order of detention cannot be faulted. In support of this submission Mr.Mhaispurkar placed reliance upon the judgments of this Court in (i) Bapu Shantaram Satam Vs. Union of India and Ors. in Writ Petition No.1909 of 2003 decided on 29.6.2004; (ii) Smt.Poonam Rajeev Pathak Vs. The Union of India & Ors. 2002 ALL Maharashtra Reporter (Cri.) 2182; and (iii) Bhawarlal Ganeshmalji Jain Vs. State of Tamil Nadu & Ors. AIR 1979 SC 54.