ABDUL MAJID TINWALLA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is a petition filed by the brother of the detenu, who is detained by the Detaining Authority by an Order of Detention dated 29th August, 2007 under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ('COFEPOSA Act', for short). The order was executed on 4th December, 2007. The grounds were served on the detenu immediately on his detention.

(2.) The brief facts, which led to passing of the Order of Detention against the detenu, were that on the basis of intelligence inputs received by the Directorate of Revenue Intelligence, they had, on 15th December, 2006, apprehended the detenu at the Shivaji International Airport, Sahara, Mumbai. They had questioned the detenu, and on inquiry, they had found that the detenu was travelling from Mumbai to Sharjah and was in possession of foreign currency equivalent to 2.31 lakhs Indian currency. The said currency had not been declared to the Customs Authority. He also ejected two rolls, which were concealed in rectum, and 24 capsules had been ingested, all of which contained assorted foreign currencies. Thereafter, he was arrested, and his statement was recorded under Section 108 of the Customs Act. The arrest was made on 15th December, 2006. On 5th January, 2007, he was granted bail, which he availed of on 7th January, 2007. The Order of Detention was passed more than 7 months after this incident. We have gone through the grounds of detention. This is the only incident, which has been relied upon by the Detaining Authority for the purpose of drawing the satisfaction that the detenu needed to be detained in term of Section 3 of the COFEPOSA Act.

(3.) The learned counsel for the petitioner has submitted that the Order of Detention cannot be sustained, and she challenges this order mainly on three grounds. The first ground of attack is that the Order of Detention was passed on 29th August, 2007, whereas the incident on the basis of which the Order of Detention was passed had occurred on 15th December, 2006. As such, there was an inordinate, unexplained delay in passing the Order of Detention. She further elaborates this argument by saying that inordinate, unexplained delay, thus, would not only render the Order or Detention illegal, but that would also mean that for deriving satisfaction, the Detaining Authority relied on material, which was too remote in point of time, and as such, was stale. The second ground of attack is that the order of the Competent Authority in rejecting the representation of the petitioner was belatedly communicated. The third contention was that even after the Order of Detention was passed on 29th August, 2007, it was not executed till 4th December, 2007, and there was inordinate delay of almost four months in executing the order.