K.P.M.
Basheer Vs. State of Karnataka & Anr [1992] INSC 64 (28 February 1992)
Pandian,
S.R. (J) Pandian, S.R. (J) Kuldip Singh (J) Sahai, R.M. (J)
CITATION:
1992 AIR 1353 1992 SCR (1)1075 1992 SCC (2) 295 JT 1992 (3) 610 1992 SCALE
(1)525
CITATOR
INFO :
D 1992
SC1937 (6)
ACT:
Conservation
of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 :
Section
3(1)-Detention Order-Undue and unreasonable delay in execution-Maintainability.
HEAD NOTE:
The
appellant, on 12.11.1990, was found carrying two gold pellets with foreign
markings each weighing ten tolas, without any valid permit. The order of
detention under S.3(1) of the conservation of Foreign Exchange and Prevention
of Smuggling Activities Act, 1974 was passed on 7.1.1991. The detention order
was served on him on 28.6.1991.
The
Writ Petition challenging the detention order, inter alia, on the ground of
undue and reasonable delay in its execution was dismissed by the High Court.
The detenu
filed the appeal by special leave against the High Court's order as also the
writ petition under Article 32 of the Constitution before this Court.
Allowing
the appeal and disposing of the writ petition, this Court,
HELD:
1.1 The order of detention cannot be sustained since the `live and proximate link'
between the ground of detention and the purpose of detention is snapped on
account of the undue and unreasonable delay in securing the appellant/detenu
and detaining him. The order of detention is liable to be set aside on this
ground alone. [p. 1080A-B]
1.2
Though the two gold pellets (the contrabands) were seized from the appellant on
12.11.1990, the order of detention was passed on 7.1.1991, and the detention
order was executed after a period of 5 months and 11 days. {pp. 1078F; 1079G-H;
1080A] 1076
2.1 No
sufficient cause is shown for not taking any action under s.7 of the COFEPOSA
Act. The explanation-that though COFEPOSA section in the office of the Collectorate
of Customs requested the State Government on 19.4.1991 to initiate action under
s.7(1) (b) of the Act it was not done so because the seizing unit was asked to
make one more attempt to trace out the appellant-is not satisfactory and
reasonable one. [pp. 1078G-H; 1079A-B]
2.2 No
serious and sincere effort was taken by the arresting officers: There was only
exchange of correspondence between the Department and the arresting officers.
It is incomprehensible as to why no effort was made to secure the appellant/detenu
during the two days, namely, on 6th and 20th Feb.91, when he appeared before the
Assistant Collector of Customs.
[pp.
1079F-G]
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal No. 144 of 1992.
From
the Judgement and Order dated 27.9.1991 of the Karnataka High Court in W.P. No.
113 of 1991.
WITH Writ
Petition (Crl.) No. 1394 of 1991.
C.S. Vaidyanathan
and P.K. Manohar for the Appellant.
K.T.S.
Tulsi, Addl. Solicitor General, P. Parmeswaran, A.K. Srivastava, M. Veerappa
and Kh. Nobin Singh (For the State of Karnataka) for the Respondents.
The
Judgment of the Court was delivered by S. RATANAVEL PANDIAN, J. Leave granted.
The
appellant/petitioner K.P.M. Basheer by the above appeal is challenging the
correctness and legality of the order dated 27th September 1991 made by the
High Court of Karnataka dismissing the Writ Petition filed by the appellant
challenging the legality and validity of the order of detention dated 7.1.1991
passed by the State of Karnataka. The first respondent in the appeal, namely,
the State of Karnataka in exercise of the powers conferred by the Section 3(1) of
the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act
1974 (hereinafter 1077 referred to as `the Act') passed the impugned detention
order on 7th January 1991 with a view to preventing him from engaging in
keeping and transporting smuggled goods falling within the mischief of Section
3(1)(iii) of the Act. The appellant was directed to be detained and kept in the
custody of the central prison, Banglore.
The
brief facts of the case which led to the passing of the impugned order can be summarised
as follows:
On
12.11.1990 the Superintendent of Central Excise on information interrogated the
appellant at the Balgaum bus stand on his arrival from Bombay in the presence
of some panchas and recorved two gold pellets with foreign markings each
weighing ten tolas, wrapped in a paper packet from his front side right watch
pocket of his pant. The appellant was not having any valid permit and also was
not able to give any satisfactory explanation for possessing the gold pellets.
Therefore, the Superintendent entertaining a reasonable belief that they were
smuggled gold pellets recorded the statement of the appellant. The State
Government on the information passed on by the sponsoring authority passed the
impugned order on 7.1.1991 on being subjectively satisfied of the necessity of
passing the impugned order on the materials placed before it. The detention
order was served on the detenu only on 28.6.1991 from which date onwards he has
been detained. Challenging the detention order, the petitioner filed a Writ
Petition No. 113/91 before the High Court of Karnataka and raised several
contentions; those being (1) the order of detention is based on a solitary
incident; (2) there has been an undue and prolonged delay in serving the order
on the detenu; and (3) the materials placed before the detaining authority were
not sufficient for drawing the requisite satisfaction for passing the impugned
order. The High Court rejected all those contentions and dismissed the Writ
Petition. Hence this appeal.
Before
this Court the petitioner has filed a separate Writ Petition under Article 32
of the Constitution of India raising certain additional grounds. Those grounds
are: (1) The detenu made a request to the detaining authority to forward a copy
of his representation to the Central Government and that the detaining
authority has not forwarded the same to the Central Government as requested by
him. Even assuming that it has been forwarded, his represe tation has not been
disposed of in time and as such there is violation of Article 22(5) of the
Constitution of India.
1078
(2) The normal criminal process which would be adequate to take care of the
possession of the gold has not been followed; and (3) The first respondent in
the Writ Petition (Union of India) has failed in its duty to inform the
petitioner regarding the Government instruction issued to the sponsoring
agencies not to make an order of detention in cases where the value of the
smuggled goods is less than Rs.1 lakh.
In the
Writ Petition both the State Government as well as the Central Government have
filed their counter affidavits refuting all the additional grounds.
Before
scrutinising the additional grounds raised in the Writ Petition, we shall now
examine the contentions raised in the appeal and find out whether the order of
the High Court warrants interference.
Mr.
C.S. Vaidyanathan, the learned counsel appearing on behalf of the appellant
contends that the delay of more than five months in executing the order of
detention is not only an inordinate and unreasonable one but also stands un-
explained and on that ground the High Court ought to have set aside the order
of detention. According to him, the High Court has not gone deep into that
question but summarily disposed of the same holding "The explanation
offered by the 1st respondent, in para 9 of the statement of objection is quite
acceptable." Of course, this contention has not been specifically taken in
the Memorandum of Appeal, but there can be no bar to advance a legal argument
in a case of this nature and especially when such a contention has been raised
before the High Court. We want through the explanation given in para 9 of the
counter affidavit filed on behalf of the first respondent by the then
commissioner and Secretary to Government, Home Department. It is not denied
that the detention order was executed after a period of 5 months and 11 days.
What the first respondent states is that various efforts were taken to trace
the detenu at Tellicherry at the address given in the grounds of detention as
well as in the Bombay address, but he could not be
secured. Further it has been stated that though the arresting officers
attempted to secure him at the Court of Chief Judicial Magistrate at Belgaum on 6.3.91, 28.3.91 and 14.5.91 on
which dates the criminal case aS against him stood posted before that court,
the officers could not do so as the appellant did not appear before the court
for hearing. Further it is mentioned that though COFEPOSA Section in the office
of the Collec- 1079 torate of Customs requested the State Government on 19.4.91
to initiate action under Section 7(1)(b) of the Act it was not done so because
the seizing unit was asked to make one more attempt to trace out and detain the
appellant. This explanation is not a satisfactory and reasonable one for the
following reasons :
(1) No
sufficient cause is shown for not taking any action under Section 7 of the Act.
(2) It
appears from the paragraph 9 of the counter that the officers came to know of
the correct address of the appellant at Bombay, but they could not trace him. It may be pointed out that the Bombay address at which place the
appellant detenu was attempted to be secured is not given in the counter. Had
it been given, the Court would have been in a position to verify the averments
made in the grounds of detention stating that the address at Bombay given by the appellant was a
fictitious one.
In
paragraph 17 of the Writ Petition filed before the High Court, the appellant
has asserted that he appeared before the Asstt. Collector of Customs, Marine
Lines, Bombay on 6.2.91 and 20.2.91 but no
attempt was made to arrest and detain him. This specific averment is not all
denied in the counter. This indicates that the arresting officers did not take
any real and genuine effort to secure and detain the appellant. The explanation
now offered stating that the appellant was fugitive, eluding the dragnet of the
detention order cannot be accepted, because during the alleged period of search
he has appeared before the Assistant Collector of Customs, Bombay on two
occasions during Feb. 1991, that is after passing of the detention order.
All
the above points show that no serious and sincere effort appears to have been
taken by the arresting officers and that there was only exchange of correspondence
between the Department and the arresting officers. It is incomprehensible as to
why no effort has been made to secure the appellant/detenu during the two days,
namely, on 6th and 20th February when he appeared before the Assistant
Collector of Customs. No supporting affidavits or documents are filed to
substantiate the averments made in the counter.
Incidentally,
it may be mentioned that though the two gold pellets (the contrabans) were
seized from the appellant on 1080 12.11.90 the authorities concerned passed
these orders only on 7.1.1991, i.e. nearly after two months.
Under
these circumstances, we are of the view that the order of detention cannot be
sustained since the `live and proximate link' between the grounds of detention
and the purpose of detention is snapped on account of the undue and
unreasonable delay in securing the appellant/detenu and detaining him. As we
have now come to the conclusion that the order of detention is liable to be set
aside on this ground alone we are not dealing with other contentions raised in
the Memorandum of Appeal as well as in the Writ Petition.
Hence
for the reasons stated above we allow the appeal, set aside the order of the
High Court and quash the impugned detention order and direct the detenu to be
set at liberty forthwith. In view of the order in this present appeal, no order
is necessary in the Writ Petition.
R.P.
Appeal allowed.
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