MOHAMMAD BILAL YUNUS SALEH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS petition has been filed by the brother of the detenu challenging the order of detention passed on 4th October, 2008 in terms of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short "COFEPOSA Act") and who is presently lodged in jail.

(2.) THE detenu was earlier arrested by the Authority as allegedly the seizure was effected on 17th April, 2008. After being arrested on 17th April, 2008 he was ordered to be released on bail on 14th May, 2008. He availed the bail. Thereafter the order of detention was passed on 4th October, 2008. The grounds of detention disclose that the allegation against detenu was that he was booked for Dubai by Emirates flight No.EK-501 and on search from his person and bag, Indian and Foreign currency were collected, an amount equivalent to Indian currency of Rs.64,03,717/- was recovered from his handbag and person. The Detaining Authority took note of the fact that he was arrested on 17th April, 2008 and was released on bail on 14th May, 2008.

(3.) WE have gone through the affidavit of the Detaining Authority and also perused the original record. It appears that the proposal with a detail note was put before the Detaining Authority on 30th August, 2008. The proposal before the Detaining Authority was, "In view of the above observation, the proposal forwarded by the Sponsoring Authority is submitted for consideration and appropriate order of the Detaining Authority". It is signed without any comment by the Under Secretary and the Joint Secretary. Thereafter, it reaches the Detaining Authority, who remarked, "Proposal of S.A. is valid". We fail to understand, what does that mean. The Detaining Authority had the material before her. She had the proposal before her. She was required to decide as to whet her the detenu had to be detained or not to be detained in terms of Section 3 of the COFEPOSA Act. But her endorsement that the proposal was valid is neither here nor there. It does not mean whether she was satisfied that the detenu had to be detained in terms of Section 3 of the COFEPOSA Act or not to be detained. The file again was put before the Detaining Authority on 11th September, 2008 i.e. after 12 days when she was informed that, "Letter dated 26th August, 2008 and 1st September, 2008 have been received on 27th August, 2008 and 2nd September, 2008 from the Additional Commissioner. It may also be noted here that when the learned Detaining authority recorded on 30th August, 2008 that "Proposal of S.A. was valid", the letter of 27th August, 2008 to which a reference is made later on was already with the Detaining Authority. This note is disposed of by the Detaining Authority by writing, "Include in relied upon documents". So, if the Detaining Authority ordered that this document be included in relied upon document, according to the learned Counsel for the petitioner, that means she had already made up her mind to detain the detenu without this document. In any case, learned Counsel for the petitioner submits that this is total non-application of mind. Nothing happened in between 11th September, 2008 and 25th September, 2008. The file discloses that the Detaining Authority drafted the detention order and the grounds of detention and they were put forth for approval of the Detaining Authority. So the Detaining Authority finally dictated and approved the grounds of detention and the order of detention on 25th September, 2008. If, the detention order was drafted and approved, why was not the detention order issued? Again the respondents waited upto 26th September, 2008 when some more documents were ordered to be included in the relied documents. These documents, according to the note, were received on 19th September, 2008 and 23rd September, 2008. Curious to note that the Detaining Authority approved the order of detention and grounds of detention on 25th September, 2008 but did not take into consideration the documents generated on 19th September, 2008 and 23rd September, 2008 that means they were generated previous to the Detaining Authority approving the grounds of detention and the order of detention. Ultimately, on 3rd October, 2008, she approved again the detention order and grounds of detention and the order of detention was finally issued on 4th October, 2008.