JANKHANA PRAVIN JOSHI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This writ petition has been filed by the wife of the detenu challenging the order of detention passed on 22nd August, 2006 by the Detaining Authority under Section 3 (1) of the Conservation of foreign Exchange and Prevention of Smuggling activities Act, 1974 (for short "cofeposa Act" ). The order has been passed, "with a view to preventing him in future from smuggling goods". The order of detention was executed on 11th October, 2007, when the detenu himself surrendered. The detenu was arrested on 2nd September, 2005 and he was bailed on 15th october, 2005. The grounds of detention were supplied to him after the writ petition was filed. The respondents filed their counter affidavits and we have heard learned Counsel for the petitioner, learned Addl. Public Prosecutor as well as learned Counsel for the Union of India and have examined the record.

(2.) The first contention of the learned counsel for the petitioner challenging the order of detention was that there was inordinate delay in executing the order of detention and, therefore, the detention was bad. There was a gap of 14 months in executing the order of detention. Learned Public Prosecutor on the other hand submits that if a detenu absconds and the Authorities are not in a position to arrest him in spite of efforts then it cannot be said that the detention would not be sustainable. While going through the counter affidavit and hearing the learned Public Prosecutor, we have found that the only exercise the respondents did to arrest the detenu was to visit his place of residence in Mumbai. The first visit was made on 22nd August, 2006, the date on which the order of detention was passed. Thereafter nothing was done till 8th September, 2006 when again a visit was made. Visits were made subsequently on 19th September, 2006; 30th September, 2006; 6th October, 2006; 3rd November, 2006; 9th November, 2006; 25th November, 2006; 3rd December, 2006; 16th December, 2006; 31st December, 2006; 13th January, 2007; 15th March, 2007; 1st August, 2007; 7th August, 2007 and 5th September, 2007. There is a gap of more than 5 months between the visits of 15th March, 2007 and 1st August, 2007. Other gaps are also substantial. One of the gaps is of 27 days, another 14 days, another 2 months and 2 days, another 4 months and 15 days and two other gaps are around one month's. Learned Counsel for the petitioner submits that although it is stated in the counter affidavit that they visited the residence of the detenu on 16 occasions, yet it would show that no serious efforts were made to arrest him because after making so may visits they would not expect that after coming to know that the detention order had been passed against him, that he would stay back in his home. There is nothing on record so show as to what efforts, other than visiting at the residence, were made by the respondents. Learned Public Prosecutor, however, submits that a notification was issued by the State Government under Section 7 (l) (b)of the COFEPOSA Act on 18th October, 2006 and it was gazetted on 2nd November, 2006. The same was pasted also on the premises of the detenu on 7th December, 2006. Learned public Prosecutor submits that once a notification under Section 7 (1) (b) of th cofeposa Act is issued the onus shifts on the detenu to explain his act of absconding.

(3.) This case, in our view, is almost similar to the case in hands. In the case before the Supreme Court almost once in a month the police had tried to find out the detenu, whereas in the present case it was not continuously done even within a month. The second judgment referred to is in T. A. Abdul Rahman Vs. State of Kerala and Others, 1990 AIR(SC) 225In para 13 the Court held as under :