AMIRUL ISLAM Vs. UNION OF INDIA & ORS.

JUDGEMENT

(1.) By this writ petition, the petitioner seeks issuance of a writ of habeas corpus for forthwith release of the petitioner from detention and quashing of order dated 4th June, 2015.

(2.) The case of the petitioner is that he is a poor villager and resides at Malda. A show-cause notice was issued to him by DRI, Berhampur Sub-zonal Unit on 18th October, 2010 under Section 124 of the Customs Act, 1962. An addendum was also issued on 21st February, 2011. One Sadar Ali was intercepted by DRI officers of Delhi Zonal Unit and was found to have in his possession fake currency. On being questioned he implicated the petitioner in the fake currency racket. It was on the said basis that the show-cause notice and its addendum were issued to the petitioner. A reply was also given to the said show-cause notice by the petitioner on 3rd March, 2011. In spite of the said show-cause issued in 2010 and 2011, it was only on 9th February, 2012 that the detention order was issued against the petitioner. It has been alleged by the respondent authorities that as the petitioner was absconding and concealing himself, the detention order could not be executed but this fact is totally incorrect as the petitioner in 2013 had applied for an adhar card and also undergone biometric test and was issued the card in June, 2013. At the time of biometric test he was in public view and therefore it cannot be said that the petitioner was either concealing himself or absconding. In spite of the detention order being issued on 9th February, 2012, it was only on 1st March, 2012 that the executing authority was requested to execute the order of detention. Therefore, the purpose of issuing the detention order on 9.2.2012 was rendered infructuous. The 1974 Act contemplates prevention of smuggling activities. It does not contemplate any punitive measure, but contemplates preventive measure. Therefore, delay in issuing the executing order has in itself defeated the purpose of the 1974 enactment. It was as late as 17th March, 2015 that the petitioner was arrested and detained in the Berhampore Correctional Home where an attempt was made to serve on him the grounds of detention. After signing a few pages of the grounds of detention the petitioner thought it fit to seek advice from his family members and therefore refused to sign the balance papers and informed the authorities that he would receive the papers on 25th March, 2015. A panchnama was also drawn up in this regard on 19th March, 2015, but the authorities did not supply the papers to the petitioner on 25th March, 2015. Instead notice was issued on 23rd April, 2015 intimating the petitioner that a hearing was fixed on 2nd May, 2015 and 3rd May, 2015. Although request was made by the petitioner through the jail authorities for furnishing the grounds of detention, such grounds of detention was served on the petitioner only on 1st May, 2015 and not prior thereto. The petitioner appeared before the Advisory Board and thereafter a Report was given by the Advisory Board upholding the grounds of detention and on basis thereof the Central Government passed the order dated 4th June, 2015. The said order is bad as the Central Government has not given its reason for relying on the report of the Advisory Board. Materials on record have also not been discussed which led the Central Government to affirm the report of the Advisory Board. A writ of habeas corpus can be issued for release of the detenue as held in (1998) 4 SCC 615. Therefore, this application is maintainable.

(3.) As there has been delay in execution of the detention order so also no-objective data which will point to the petitioner indulging in the said business will render the order of detention bad. There has been delay of three years in executing the order of detention. The delay is fatal to the respondent authorities as the detention order must be executed forthwith. It was one Sadar Ali who spoke on phone to the petitioner. No particulars exist of earlier incidents to form a part of the show-cause notice. 2 other people were caught and intercepted in Delhi but there is no basis to connect the said persons to Sadar Ali. One Md. Naushad Miyan informs Abdul Kalam about the petitioner but Abdul Kalam cannot identify the petitioner as will be evident from the show cause notice. Amirul Islam has not been interrogated. It is only when one Sadar Ali was caught with fake currency in his possession that an inquiry was made. No incriminating witness or evidence has been found against the petitioner. As there exists no direct or indirect evidence against the petitioner, the order of detention is bad and ought to be set aside so also the order dated 4th June, 2015. It was on 17th March, 2015 that the petitioner was arrested from his residence and it is nobody's case that he was absconding. No material exists also in this respect. There is also no evidence to show the involvement of the petitioner in similar business post 2012. For the proposition that delay in execution of the detention order is fatal reliance is placed on P.U. Iqbal v. Union of India and ors, 1992 1 SCC 434 ; N.K. Bapan v. Union of India, 1994 1 CalHN 81 and Saeed Zakir Hussain Malik v. State of Maharashtra, 2012 8 SCC 233. Reliance is also placed on (1999) 2 SCC 566 for the proposition of continuous activity and SMF Sultan Abdul Kadar v. Jt. Secy. to Govt. of India and ors,2012 7 SCC 129 for the proposition of applying the subjective satisfaction test in which case, the detention order was held to be invalid. No effort was made by the detaining authority to ascertain the progress made to give effect to the order of detention and where no effort was made as held in (1998) 8 SCC 343, the order of detention be set aside. Reliance is also placed on P.M. Hari Kumar v. Union of Indian and ors, 1995 5 SCC 691 for the proposition that where delay in executing the detention order has not been properly and satisfactorily explained, the detention order be quashed. The only paragraphs of relevance in the affidavit filed by the Union of India are paragraphs 27 and 28 wherein all that has been said is that several efforts were made by the police authorities to execute the detention order but in vain. These are nothing but vague averments made lacking in particulars. It has also been stated that the local police authorities several times visited the residence for execution of the detention order but the dates on which such visits were made have also not been specified. For all the reasons, therefore, the order of detention so also the order dated 4th June, 2015 be set aside.