KARIMA ISHAK SAYANI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS petition under article 226 of the Constitution of India is preferred by the petitioner, Smt. Karima Ishak Sayani questioning the validity and correctness of the order of detention passed by second respondent on 4th December, 1996 in exercise of powers conferred by Sec. 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ("act" for Short) whereby detaining the petitioner's husband Ishak Sayani with a view to prevent the detenu in future from smuggling of goods.

(2.) THE material facts which necessitated passing of the detention order can be briefly stated thus : On 13th of July, 1996, Officers of Mumbai Customs Preventive Commissionerate intercepted the detenu while he was on his way to board Oman Airways Flight WY 801 bound for Dubai via Muscat at Sahar International Airport. THE detenu was holding Indian Passport No. A-881464 issued on 14th June, 1991 in the name of Yunus Jafrani. When the detenu was produced before the Superintendent of Customs, he admitted that he was carrying 2 bundles of foreign currency wrapped in condom concealed in his rectum and also that he concealed 50 capsules containing foreign currency equivalent to Indian rupees 6 to 7 lakhs. THE detenu volunteered to eject the concealed foreign currency without medical assistance or being produced before a Magistrate. On carrying further search of his person, the Custom Authorities recovered US Dollar 550 (F. T. S. Amount) and UAE Dirhams 250/totally equivalent to Rs. 21,479/- from the pocket of trouser of detenu. In his statement under Sec. 108 of the Customs Act, made on 13th July, 1996, the detenu stated that his real name was Ishak Ibrahim and he was residing at Room No.12-A. Jakaria Patel Compound, S. V. Road, Malad (West), Mumbai and the address shown on his passport was his old address in Pune where he was not residing any more and that the name Yunus Siddiqui Jafrani shown in his passport was false and that the passport was obtained through an agent illegally. As regards the foreign currency seized from him, detenu stated that it was given to him by one "poumal" to whom he used to meet during hawking time at Andheri. He further stated that said Poumal suggested him to smuggle foreign currency out of India and explained to him the modus operandi of concealing the currency in rectum and stomach and the detenu agreed to do the same for monetary consideration of Rs. 3,000/ -. THEse currencies were to be handed over to a person in Dubai. Poumal arranged for his passport, air ticket and fax copy of transit visa. He met Poumal at the same place as pre-arranged and received two big bundles containing 55 currency notes in each and 50 capsules containing two currency notes in each all foreign currencies Poumal gave him Rs. 20,000/- for purchasing F. T. S. amount and he further gave amount the UAE Dirhams 250 to be used for his daily expenses at Dubai. THE detaining authority taking into consideration the seizure of currency notes and the statement of the detenu admitting his involvement in the prejudicial activities impugned in the ground of detention reached subjective satisfaction of the necessity of passing impugned order and passed the same on 4th December, 1996.

(3.) SHRI Tripathi strenuously urged that the explanation offered by respondents is totally unsatisfactory. According to Mr. Tripathi the respondents have failed to explain the delay at least at two stages. Firstly there is no explanation as to why authorities took nearly 2 months time to initiate the proposal for detention of the detenu. Secondly according to Mr. Tripathi, authorities were not right in contending that the reply to the show cause notice was received on 21st Nov. 1996 and thereafter detaining authority considered the proposal and formulated the grounds of detention on 4th December, 1996. Mr. Tripathi, argues that it was not at all incumbent on the authorities to wait till the issue of show cause notice. In this behalf Mr. Tripathi placed strong reliance on the decision of the Supreme Court in Issac Babu Vs. Union of India 1994 S. C. C. 135. Mr. Tripathi also sought to rely upon the decisions of the Supreme Court in T. A. Abdul Rahman Vs. State of Kerala, AIR 1990 SC 225 and Pradeep Nilkanth Paturkar V. SHRI. S. Rammurti & Ors reported in JT 1992 (3) S. C. 261. On the other hand Mr. Tahilramani, learned P. P. urged that the respondents have satisfactorily explained the delay in issuing the detention order. The learned P. P. urged that the delay ipso facto in passing the order of detention is not fatal to the detention order. What is required to see is whether time lag of 4 1/2 months between "offending acts" and the date of detention order is such that the causal link must be taken to be snapped and the satisfaction reached by the detaining authority should be regarded as unreal. Learned P. P. urged in that the facts and circumstances of the case, the delay of 4 1/2 months cannot be said to be unreasonable or undue. The learned P. P. placed strong reliance on the decision of the Supreme Court in Rajendra Kumar Natwarlal Shah Versus State of Gujrat and others reported in A. I. R. 1988 S. C. 1255.