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SHOBHA JAYAPRAKASH, WIFE OF versus THE UNION OF INDIA, REPRESENTED BY

High Court of Kerala

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SHOBHA JAYAPRAKASH, WIFE OF v. THE UNION OF INDIA, REPRESENTED BY - WP(Crl) No. 76 of 2007(S) [2007] RD-KL 13435 (18 July 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(Crl) No. 76 of 2007(S)

1. SHOBHA JAYAPRAKASH, WIFE OF
... Petitioner

Vs

1. THE UNION OF INDIA, REPRESENTED BY
... Respondent

2. THE JOINT SECRETARY,

3. THE ENFORCEMENT OFFICER,

For Petitioner :SRI.O.V.MANIPRASAD

For Respondent :SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR

The Hon'ble the Chief Justice MR.H.L.DATTU The Hon'ble MR. Justice K.T.SANKARAN

Dated :18/07/2007

O R D E R

H.L. DATTU, C.J. & K.T. SANKARAN, J.

W.P.(Crl.) No.76 of 2007 Dated this, the 18th day of September, 2007.

JUDGMENT

H.L. DATTU, C.J. Petitioner's husband is languishing in the Central Jail, Thiruvananthapuram for the last nine months. We think time has come for his release.

2. Petitioner is the wife of the detenu, Sri.Jayaprakash. In this petition filed under Article 226 of the Constitution of India, petitioner calls in question the legality or otherwise of the order of detention passed by the detaining authority, the Joint Secretary to the Government of India under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (as amended) hereinafter for the sake of brevity referred to as "the Act". The detaining authority after recording his subjective satisfaction on the basis of the materials available with him, has opined, that with a view to prevent the petitioner's husband from acting in any manner prejudicial to the augmentation of foreign exchange resources of the country in future and from acting in any manner prejudicial to the conservation of foreign exchange and prevention of smuggling activities, that necessary orders requires to be passed under Section 3(1) of the Act to detain the petitioner's husband, Sri.Jayaprakash and accordingly, in exercise of the powers under Section 3 (1) of the Act, the detaining authority has ordered for detention of the petitioner's husband Sri.Jayaprakash in custody in Central Jail, Thiruvananthapuram. In so far as the petitioner's husband is concerned, the detaining authority in the grounds of the W.P.(Crl.)No.76 of 2007 - 2 - detention order passed on 27.11.2003 supplied to the detenu has stated as under:

"During the course of investigations, the Direcorate further noticed that funds were transferred from Shri V.Abdul Kareem's account to your S.B.A/c. No.22055 with M/s. Lord Krishna Bank, Thrissur. Your address was given as Devaki Villa, Parlikkad P.O., Wadakkancherry. You were found to be maintaining the following bank accounts; Sl Name of the Bank Current Amount Period of No. A/c.No. (in Rs.) transaction

1. Lord Krishna Bank, 11.10.1999 to Thrissur 22055 15,46,31,500 05.02.2001

2. Lord Krishna Bank, 05.04.2000 to Thrissur 3000 1,58,53,518 09.02.2001

3. Lord Krishna Bank, 24.05.2000 to Tellicherry 2429 1,04,53,000 10.02.2001

4. South Indian Bank, Thrissur 1367 1,93,69,930 08.12.1999 to15.01.2001

5. AkolaJanata Commercial 17.12.1999 to Co-operative Bank, 698 71,02,000 21.12.1999 Kalbadevi, Mumbai

6. Catholic Syrian Bank,Thrissur (M/s. Anaswara Bullion - 269 3,17,87,000 19.11.1999 to Proprietor, Shri 05.06.2001 M.Jayaprakash, i.e. you)

7. Nedungadi Bank, 06.06.2000 to Ernakulam South SB 4651 46,09,037 22.10.2001 Total 7 A/c 24,38,05985 Oct.99 to Oct. 01 "Your residential premises at Parlikkad were searched on

23.03.2001, which resulted in the seizure of few documents, but those were subsequently found to be irrelevant to this case. You were not available during the course of the said search. Summonses were issued to you, but did not respond. Later, your W.P.(Crl.)No.76 of 2007 - 3 - statement was recorded on 28.05.2001, wherein, you stated, inter alia that you were a close relative of Shri B.Nandakumar of M/s.Balakrishna Transport, Guruvayoor; that Shri Nandakumar had introduced you to Shri V.Abdul Kareem; that Shri V.Abdul Kareem told you that he (Shri V.Abdul Kareem) was dealing in bullion business in which transactions were huge; that he (Shri V.Abdul Kareem) required a trustworthy person to whose bank account, he (Shri V.Abdul Kareem) would transfer funds from Mumbai, which were required to be paid to persons whose identities, he (Shri V.Abdul Kareem) would inform over phone; and that you agreed to do so. It was subsequently found that in the A/c. No.1367 with South Indian Bank, Thrissur -1, you had received Rs.1.93 crores by means of Telegraphic Transfers from the A/c. No.1723 of one Shri Jaison J.Alappat with South Indian Bank, Fort Branch, Mumbai, as per the arrangement of Shri V.Abdul Kareem. There was also an A/c. No.269 with Catholic Syrian Bank, Thrissur in the name of M/s.Anaswara Bullion showing yourself as its proprietor and you had signed as such in the bank documents. In your further statement dated 28.04.2003 with reference to the transaction in your Current A/c. No.698 with Akola Janata Commercial Co-operative Bank, Mumbai, inter alia admitted that you had opened the said account as per the instructions of Shri V.Abdul Kareem; that cash deposits totalling Rs.71,02,000/- were made into the said by him during 17.12.1999 to 21.12.1999; that those amounts were given to you by Shri V.Abdul Kareem; that as directed by Shri V.Abdul Kareem you obtained pay orders for amounts of Rs.25 Lakhs, Rs.16 Lakhs and Rs.30 Lakhs in favour of M/s.Lord Krishna Bank and handed over the same to Shri V.Abdul Kareem; that later, you understood that those pay orders were credited into Shri C.Surendran's Current A/c.No.2811 with Lord Krishna Bank, Fort, Mumbai and that Shri V. Abdul Kareem alone could explain further about thosetransactions. You further stated, inter alia, that initially you W.P.(Crl.)No.76 of 2007 - 4 - were not aware that the amounts were meant for hawala transactions; but subsequently, you developed suspicion that Shri V.Abdul Kareem was indulging in receiving and making payments on behalf of persons resident outside India, and, therefore, you discontinued your association with him (Shri V.Abdul Kareem). In your letter dated 08.05.2003 addressed to the Directorate, you clarified your earlier version of having Current A/c. No.639 with Catholic Syrian Bank, College Road, Thrissur was not correct, that the actual number of the account was C.A. No.269 in the name of M/s.Anaswara Bullion, showing yourself as proprietor and the same was opened as per the instructions of Shri V.Abdul Kareem, who was the actual proprietor of M/s. Anaswara Bullion at Coimbatore; that there was no firm or branch for M/s. Anaswara Bullion at Wadakkanchery; that for the purpose of opening the account, you had given the address and phone number of your relative, who was running chit business at National Stores Building, Wadakkancherry; that the said account was opened by you on 19.11.1999 with the introduction of one Shri Saju Paulson; that the said account was closed on 05.06.2001; that a total amount of Rs.3,17,85,000/- had come to that account by way of Telegraphic Transfer remittances from Mumbai, as per the arrangements of Shri V.Abdul Kareem, mostly from the bank account of his (Shri V.Abdul Kareem) associate, Shri P.V. Hamza maintained with Catholic Syrian Bank, Fort, Mumbai; and that the entire amount of Rs.3,17,85,000/- had been disbursed by you to various persons as per the instructions of Shri V.Abdul Kareem.".

3. The detaining authority in conclusion of his order of detention has stated at paragraphs 43 and 44 as under:

"In view of the foregoing, I have no hesitation in arriving at the conclusion that you had been engaging yourself in activities prejudicial to the augmentation and conservation of the foreign exchange resources of the country. considering the nature and gravity W.P.(Crl.)No.76 of 2007 - 5 - of the offence, your role therein, the planned manner in which you had been indulging in such prejudicial activities, all of which reflect your high potentiality and propensity to continue to engage in such prejudicial activities in future, I am satisfied that unless detained, you are likely to engage in the aforesaid prejudicial activities in future also and, therefore, it is necessary to detain you under the COFEPOSA Act, 1974, with a view to preventing you in future from acting in any manner prejudicial to the augmentation of country's foreign exchange resources. For the same reasons, and particularly having regard to the chronological sequence of events in this case, I am further satisfied that the nexus between the date of incident and passing of this Detention Order and the object of your detention have been well maintained. I am aware that adjudication proceedings under the Foreign Exchange Management Act, 1999 are likely to be initiated against you by the appropriate authority in due course to decide your penal liability. The above proceedings are punitive in nature but considering your past activities and your potentiality and propensity to indulge in such activities in future, I am satisfied that your detention under the COFEPOSA Act, 1974 is the only remedy at this stage".

4. The detaining authority has also informed the petitioner, that, he has a right to make a representation against his detention order to the detaining authority, the Central Government as well as the Advisory Board. He has also informed him, that he has a right to be heard in person by the Advisory Board. He has also further informed the petitioner's husband that he has a right of making representation through the jail authorities either to the detaining authority or to the Central Government or to the Advisory Board. W.P.(Crl.)No.76 of 2007 - 6 -

5. In the writ petition, the petitioner has raised several contentions against the order of detention passed on the petitioner's husband. But, in our opinion, after hearing learned counsel appearing for the parties to the lis, it may not be necessary for us to refer to all those contentions, since the petitioner is bound to succeed on the ground of delay in executing the order of detention.

6. In the writ petition, the petitioner has stated at paragraphs 3, 7, 8, 15, 33 and, Grounds D and E as under. The assertion so made requires meticulous attention. Therefore, they are extracted. "The detenu Sri. Jayaprakash, was taken into custody pursuant to

the impugned detention order passed by the second respondent on 07.12.2006 and he is undergoing detention. The order of detention and the execution of the same are vitiated by serious illegalities and irregularities, making the order of detention unsustainable. The order of detention and the subsequent procedures adopted by the respondents 1 and 2 are in gross violation of the statutory mandate embedded under Article 22 of the Constitution of India and Section 3 of COFEPOSA Act. The order of detention is illegal, arbitrary and in violation of the fundamental right of the detenu guaranteed under the Constitution of India. He is under illegal detention. Since the detenu is in illegal detention, the petitioner who is his wife and interested on him, challenges the illegal detention order. It is seen from the grounds of detention that the detaining authority has passed an order of preventive detention against the detenu on 27.11.2003. He was taken into custody in execution of the Order on 07.12.2006 alone. The detenu is a resident of Parlikadu in Thrissur District. He was residing with the petitioner and children in the address shown in the grounds of detention. There was no effort on the part of the detaining authority or any officer authorised to execute the same to serve the detention order on the detenu before the date of arrest. From November 2003 onwards, the detenu was very much present in his house at Parlikadu and also in his house at Cherlayam, Kunnamkulam. The address shown in the grounds of detention is sufficient enough to trace the detenu and he never absconded or evaded from the serving of any notice or summons on him during the interregnum. Whenever the summons or notices were issued to the detenu for his appearance before the departmental officials like Income Tax, Enforcement, etc., he has received the notices and appeared before them and gave statements. There was inordinate delay in execution of the detention order passed on 27.11.2003 and thereby the nexus between the alleged prejudicial activity and the detention order was snapped and thereby the order of detention is vitiated. It is submitted that the detenu was very much available in W.P.(Crl.)No.76 of 2007 - 7 - his residence and was doing all his routine works and responsibilities as the head of the family. The detenu received all notices, summons etc., issued to him by the statutory authorities. The detenu received the show cause notice issued by the Special Director, Enforcement Directorate asking him to appear in the adjudication proceedings. A true copy of the show cause notice dated 31.3.2004 issued by the Special Director, Enforcement Directorate, New Delhi is produced herewith and marked as Exhibit P-3. When Exhibit P-3 show cause notice issued by the enforcement directorate itself was served on the detenu, it cannot be at any stretch of imagination said that the detenu was absconding and not available in his residence. Apart from that, the marriage of detenu's daughter Sruthy was solemnized on 23.1.2006 at Shankarankulangara Temple Kalyanamandapam. A true copy of the invitation card of the marriage of detenu's daughter Sruthy is produced herewith and marked As Exhibit P-4. It is submitted that on the date of marriage, various persons were invited and the marriage ceremony was performed in the presence and auspicious of the detenu. The petitioner may be permitted to produce some photographs showing the presence of the detenu in the marriage of their daughter. Photographs are produced herewith and marked as Exhibit P-5. The detenu himself arranged the temple hall where the marriage of his daughter was performed. The detenu paid the rental for the Kalyanamandapam on 09.01.2006 to the Sankarankulangara Devaswom. He also paid the rentals for the various materials used on the date of marriage. True copies of the receipts dated 09.01.2006 and 23.01.2006 are produced herewith and marked as Exhibits P6 and P6(a) respectively. From Exhibit P5 & P6,it can be seen that the detenu was very much available in his residence and he was performing his duties as the head of the family and he was not absconding. It is submitted that after the passing of Exhibit P1 order, the detenu never absconded from his residence. More than two occasions, the detenu was admitted in hospitals for some ailments. The detenu has undergone various medical check-ups. True copy of the medical reports of the detenu after the passing of the detention order is produced herewith and marked as Exhibit P7. The preventive detention order is to be passed as a preventive measure. It's avowed object is to prevent anti social and subversive elements from imperiling the welfare and security of the Nation, disturbing the public tranquility and indulging in smuggling or illicit traffic in narcotic drugs and psychotropic substances. The basic principle in issuing a detention order is the urgency in preventing the person against whom the order is passed from indulging in any of the prejudicial activities without any delay. The delay in passing detention order from the date of prejudicial activity snaps the nexus of the order and the prejudicial activity. The same principle is applicable with regard to the delay in executing the detention order once passed. The inordinate delay, in the present case, it is more than 2 years, casts serious doubt on the genuinity of the subjective satisfaction of the detaining authority in passing the detention order. The W.P.(Crl.)No.76 of 2007 - 8 - long delay in executing the order snaps the nexus between the order and the very purpose of passing the same. There is inordinate delay in executing the order passed against the detenu. The order was passed on 27.11.2003. It was executed on 07.12.2006 alone. There is delay of more than 3 years in executing the detention order. There is no explanation forthcoming from the detaining authority regarding the delay in executing the order. The inordinate delay in executing the detention order vitiate the subjective satisfaction of the detaining authority and it shows that the nexus between the illegal activity, passing of detention order and its execution are lost. It is submitted that Exts.P3 to P7 clearly show that the detenu was available in his residential address all these time and there was no serious attempt on the part of the detaining authority to apprehend the detenu. As there were no reasonable efforts to execute the detention order it casts serious doubt regarding the genuineness of the detaining authority as regards the immediate necessity of detaining the detenu in order to prevent him from carrying on the prejudicial activity referred to in Ext.P1. The unexplained delay in executing the detention order clearly indicates the absence of genuine satisfaction of the detaining authority and the very detention order is vitiated by the same. It is submitted that the detention of detenu in the present case is illegal and unsustainable for the reason of the long delay in executing the detention order. The impugned detention order was passed on 27.11.2003. The detenu was taken into custody and detained on 07.12.2006. There is delay of more than 3 years in executing the order. No serious efforts have been taken by the detaining authority to execute the order of detention in the present case. In the absence of any satisfactory explanation or not taking any effective steps for the apprehension of the detenu the subjective satisfaction of the detaining authority in issuing the detention order was vitiated by reason of non-execution of the order within a reasonable time. The detenu who is a resident of Kunnamkulam was very much available in his residence. All the summons issued by the statutory authorities were received by the detenu and reply letters were sent. So it cannot say that the detenu was absconding from the clutches of law. There was no serious attempt on the part of the detaining authority to execute the order. The long gap between the passing of the detention order and the execution of the same snaps the nexus between the alleged illegal activity and the detention order. It also nullifies the alleged subjective satisfaction of the detaining authority for passing the detention order.

The Honourable Supreme Court in A.Mohammed Faroke Vs.

Joint Secretary to Government of India (2000) 2 SCC 360 held that the non-execution of the detention order within a reasonable time vitiate the detention order as there is no subjective satisfaction of the detaining authority in issuing the detention order. The Honourable Supreme Court in SMS Sultan Abdul Khader vs. Joint Secretary to Government of India and others, 1998 SCC (Crl) 1534 held that the unreasonable delay in executing the order of detention creates a serious doubt regarding the genuineness of the detaining authority as regards the immediate necessity of detaining the detenu in order to prevent him from carrying on the prejudicial activity referred to in the grounds of detention. The order of detention was passed by the detaining authority not in lawful exercise of the power vested on him. In another decision, the Honourable Supreme W.P.(Crl.)No.76 of 2007 - 9 - Court, held that the delay of about one year in arresting the detenu due to the indifferent attitude would render the detention order invalid. P.U.Iqbal vs. Union of India, 1992 Crl Law Journal 2924. The Honourable Supreme Court in M.P.M.Basheer vs. State of Karnataka, held that in the absence of any serious steps taken by the detaining authority to execute the order, the order of detention order cannot be sustained. It is submitted that due to the unexplained delay in executing the order of detention 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 detenu.

7. In reply to the assertions made in the writ petition and to resist the relief sought for therein, the respondents as well as the executing agency namely, Superintendent of Police, has filed counter affidavits before this Court.

8. The Joint Secretary to the Government of India, based on the materials gathered by him from the records of the case as well as the legal advice tendered to him, in his affidavit, has stated, in so far as the aforesaid issue is concerned, as under.

"The other allegation that there was inordinate delay in executing the Detention Order is also not correct as the Detenu was absconding and was not available at the normal place of living between the period from the date of issue of Detention Order and its execution. Proceedings under 7(1)(b) and 7(1) (a) of the COFEPOSA Act , 1974 were initiated against him and pursuant to the order passed by the Court, his property of Survey No.309/1 comprising 12 cents of building and in survey No.309/2 comprising 44 cents of land at Parlikkad Village at Wadakanchery were attached on 23.12.2005 in CMP. 3099/04 by the Judicial First Class Magistrate, Wadakancherry. This clearly indicates that the Detenu was not available at his normal place of residence during the period and hence his allegation that there was undue delay in execution of the Order is not correct and on the contrary, the delay was caused solely because the Detenu was absconding. xxx xxx xxx xxx In reply to the averments made in Paragraph 7, it is submitted that the allegations levelled by the Detenue are incorrect. Attempts were made by the Executing Authority as well as the Sponsoring Authority on many occasions to locate him, but the efforts were futile. The Detenu was not available at his house at Cherlayam, Kunnamkulam as claimed by him and between the period from the date of issue of Detention Order and his detention, no notice other than SCN was issued to the detenu by the Sponsoring Authority. The SCN issued to him by post returned undelivered because the Detenu was not available and hence the same was served under substituted service under Rule 9(C) of FEMA (Adjudication Proceedings and Appeal) Rules 2000 on 12.8.2004. It also W.P.(Crl.)No.76 of 2007 - 10 - indicates that the Detenu was not available as claimed by Detenu and on the contrary was absconding to evade detention under the COFEPOSA Act. As already submitted, there was no delay in passing the Detention Order and hence the nexus between the alleged prejudicial activity and the Detention Order was not snapped. xxxx xxxx xxxx xxxx The real fact is that the SCN issued to the Detenu by post was returned undelivered since the Detenu was not available. In fact, when the Officer visited the Detenu's residence at Cherlayam, his wife Smt.Shoba, the petitioner herein was only available and in her presence only the Notice was affixed after she informed the Officer that her husband had gone to Delhi few months back and had not been visiting the house since then and his likely return was also not known. Petitioner herein has also signed all the said Mahazar. Enquiries were also made on 12.8.2006 at Devaki Villa, Parlikkad, where no one was available. It is also claimed on behalf of the Detenu that he Detenu conducted the marriage of his daughter at Sankarankulangara Temple Kalyana Mandapam on 23.01.2006 and in support of which he had produced certain photographs showing his presence with the couple as well as copies of receipts towards the rental of Kalyana Mandapam to show that the Detenu was available after the issue of the Detention Order. However, it is pertinent to mention herein that one of the photographs produced by the Detenu have been taken at his place of residence. All the photographs have been taken during the time of marriage of his daughter at the above said temple Kalyana Mandapam. Thus, the production of photographs cannot in any way substantiate his claim that he was available at his residence subsequent to issue of Detention Order and it is also worthwhile to mention that the marriage was solemnised after his property was attached on 23.12.2005 by the Court's Order. The mere production of copies of receipts will not in any way prove the presence of the Detenu at the relevant olace since any one can pay money and book the hall in the name of the Detenu. Hence, the documents i.e., the photographs and receipts submitted on behalf of the Detenu are not enough to prove that the Detenu was at his residence. On the contrary, the Sponsoring Authority indicate that the Detenu was not available at the addresses furnished by him and was absconding".

9. The Superintendent of Police who is the executing agency, in the affidavit filed before this Court, has stated as under: "It is submitted that the Detention Order F.No.673/17/2003-CUS-VIII

dt.27.11.2003 issued against Sri.M.Jayaprakash, S/o.late Bhaskara Menon, Devaki Villa, Parlikkad P.O,., Wadakkanchery by Govt. of India under COFEPOSA Act 1974 was received at this office of The Superintendent of Police, Thrissur and the same was forwarded to the C.I. Of Police, Wadakkanchery with direction to execute the Detention Order immediately. C.I. of Police, Wadakkanchery ws also instructed to submit a report in detail in the prescribed proforma fortnightly, if the Detention order could not be executed immediately. As the detenu was absconding from his house at Parlikkad and the whereabouts were not known, the Detention order could not be executed till 7.12.2006, inspite of earnest efforts. W.P.(Crl.)No.76 of 2007 - 11 - The Circle Inspector of Police, Wadakkanchery conducted sincere and serious enquiry on the following dates at the following places for tracing out and arresting the absconding detenue. In 2003, enquiries were made at Parlikkad and Wadakkanchery on 29.12.2003. In 2004, enquiries were made at Parlikkad, Kunnamkulam, Chazhoor etc. places on 14.01.2004, 28.01.2004, 12.02.2004, 27.02.2004, 15.03.2004, 31.03.2004, 16.04.2004, 01.5.2004, 16.05.,2004, 07.06.2004, 27.06.2004 07.07.2004, 17.07.2004, 13.09.2004, 23.09.2004, 12.10.2004, 26.10.2004, 04.11.2004, 20.11.2004, and 17.12.2004. During 2005, enquiries were made at Parlikkad, Kunnamkulam Chazhoor etc. places on 25.1.2005, 08.02.2005, 18.03.2005, 29.03.2005, 12.04.2005, 27,04.2005, 15.05.2005, 30.05.2005, 06.06.2005, 27.06.2005, 15.07.2005, 30.07.2005, 03.08.2005, 04.08.2005, 20.08/2005, 07.09.2005, 22.09.2005, 07.10.2005, 28.10.2005, 15.11.2005 and 02.12.2005. In 2006, enquiries were made at Parlikkad and Kunnamkulam on 12.01.2006, 26.01.2006, 11.02.2006, 02.03.2006, 20.03.2006, 07.04.2006, 26.04.2006, 24.05.2006, 13.06.2006, 06.07.2006, 22.07.2006 14.08.2006, 10.09.2006, 28.09.2006, 24.10.2006, 12.11.2006 and 29.11.2006. CI Wadakkanchery had also arranged reliable informants at Parlikkad and Kunnamkulam for collecting secret informations regarding the whereabouts of the detenue. As the detenue was absconding from his house at Parlikkad in Wadakkanchery and his whereabouts were not known, his movements were not traceable. None of his relatives are available in and around Parlikkad. The contention that the detenue had participated in his daughter's marriage at Sankarankulangara temple, Thrissur, if true, was not known to anybody because he did not come to his own house, inlaws house, house of any of his known relatives or friends. Finally, the detenue Sri.M.Jayaprakash was arrested on 07.12.2006 at 15.15 hrs from his wife's house at Kunnamkulam after complying with all formalities and produced before Jail Superintendent, Central Prison, Trivandrum, at 09.30 hrs on 08.12.2006 which itself is a proof of the watchfulness, alertness and earnestness of Police, It is submitted that all possible and earnest efforts were made to detain the detenue from the date of receipt of the Detention Order and he could not be arrested earlier only because of the reason that he was absconding to evade arrest and his wherabouts were not known to anybody.".

10. Learned Senior Counsel, Sri.M.K.Damodaran appearing for the petitioner would contend, that, there is inordinate delay in executing the orders of detention passed and, therefore, the detaining authority was not very serious in serving detention order and thereby the subjective satisfaction of the detaining authority in issuing the detention order is vitiated. Learned counsel would further contend, that, the explanation offered by the detaining authority as W.P.(Crl.)No.76 of 2007 - 12 - well as the executing agency is no explanation at all inasmuch as no details are furnished as to what steps the detaining authority and executing agency have taken in serving the order of detention passed against the detenu. Therefore, learned counsel would contend that in the absence of satisfactory explanation as regards the delay in executing the detention order, it must be held that detaining authority was not very serious in serving the detention order on the detenu and therefore, the very purpose of the order of detention passed is vitiated. He further submitted that because of this defect, the order of detention stands vitiated and continued detention of the detenu should be declared as illegal. The learned senior counsel would further submit that despite the availability of the petitioner's husband in his village, the detaining authority has not taken effective steps to execute the order and it is because of this delay that the apprehension entertained by the detaining authority as regards the likelihood of future activities of the petitioner being prejudicial under COFEPOSA Act was neither real nor genuine and therefore the impugned order is nothing but punitive.

11. Per contra, Sri.Parameswaran Nair, learned Assistant Solicitor General, appearing for the revenue would contend, that, the detaining authority and the executing agency could not serve the order of detention passed on the detenu, since the detenu was absconding. The learned counsel would further submit that every effort was made by the detaining authority and the executing agency to serve the order of detention on the detenu and the same could be done only on 7.12.2006. The detaining authority has further stated that the notice issued under FEMA is also returned 'unserved' since the detenu was not available in the address furnished at the time of his interrogation and therefore, it is stated that the petitioner's husband was absconding and could not be traced in W.P.(Crl.)No.76 of 2007 - 13 - spite of the best efforts made by the detaining authority and also the executing agency. In support of the contention, learned counsel has produced records of the detaining authority and the executing agency and also a long list of dates showing the number of attempts made by the executing agency to execute the order of detention on the detenu.

12. Learned Senior Counsel, Sri.Damodaran in aid of his submission has brought to our notice several decisions of this court and the Apex Court in the case of Lekha Nandakumar v. Government of India 2004 (2) KLT 1094, A.Mohammed Farook vs. Joint Secretary to Government of India (2000) 2 SCC 360, Assia vs. State of Kerala 2000 (1) KLT 673, Manju Ramesh Nahar v. Union of India and others (1999) 4 SCC 116, SMF Sultan Abdul Kader vs. Jt. Secretary to Government of India (1998) 8 SCC 343, P.U.Iqbal vs. Union of India AIR 1992 SC 1900, K.P.M. Basheer v. State of Karnataka, AIR 1992 SC 1353, .R.D.Borade vs. V.K. Saraf, AIR 1989 SC 1861, Prem Lata Sharma vs. District Magistrate, (1998) 4 SCC 260, Union of India vs. Paul Manickam (2003) 8 SCC 342. In all these decisions, the courts have observed, that when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to prevent him from acting in a prejudicial manner.

13. Before we advert to the contentions canvassed, it would be useful to refer to the observations made by the apex court as regards the purpose and the need for execution of the order without much delay. The Apex Court in Manju W.P.(Crl.)No.76 of 2007 - 14 - Ramesh Nahar v. Union of India, (1999) 4 SCC 116, has stated:

"The Act provides for preventive detention. Section 3 gives power to the Central Government or the State Government or any officer of the Central or State Government of the specified status, to pass, with respect to any person with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from smuggling activities specified therein or harbouring persons engaged in smuggling activities, an order directing that such person be detained. The action under this section can be taken only on "satisfaction". The further requirement is that the order should have been passed for preventing that person from carrying on the prejudicial activities. This implies that as soon as the Government or its officer feels satisfied that an order this section is necessary, it has to be passed and implemented forthwith so that the prejudicial activities carried on by the person against whom the order has been passed, may be stopped immediately or at the earliest. This object can be achieved if the order is immediately executed. If, however, the authorities or those who are responsible for the execution of the order, sleep over the order and do not execute the order against the person against whom it has been issued, it would reflect upon the "satisfaction" of the detaining authority and would also be exhibitive of the fact that the immediate necessity of passing that order was wholly artificial or non-existent.". (underlining by us)

14. The Supreme Court in Naresh Kumar Goyal vs. Union of India, (2005) 8 SCC 276, has stated: "It is trite law that an order of detention is not a curative

or reformative or punitive action, but a preventive action, avowed object of which being to prevent the antisocial and subversive elements from imperilling the welfare of the country or the security of the nation from disturbing the public tranquility or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances, etc.. Preventive detention is devised to afford protection to society. The authorities on the subject have consistently taken the view that preventive detention is devised to afford protection to the society. The object is not to punish a man for having done something but to intercept before he does it, and to prevent him from doing so. It, therefore, becomes imperative on the part of the detaining authority as well as the executing authority to be very vigilant and keep their eyes skinned but not to turn a blind eye in securing the detenu and executing the detention order because any indifferent attitude on the part of the detaining W.P.(Crl.)No.76 of 2007 - 15 - authority or executing authority will defeat the very purpose of preventive action and turn the detention order as a dead letter and frustrate the entire proceedings. Inordinate delay, for which no adequate explanation is furnished, led to the assumption that the live and proximate link between the grounds of detention and the purpose of detention is snapped. (See P.U.Iqbal v. Union of India (1992) 1 SCC 434, Ashok Kumar v. Delhi Admn. (1982) 2 SCC 403, and Bhawarlal Ganeshmalji v. State of T.N.(1979) 1 SCC 465)". (emphasis supplied by us)

15. In the instant case, the order of detention was passed on 27.11.2003 and the same was executed on the petitioner's husband only on 7.12.2006, i.e. nearly after three years from the order of detention passed. The records would clearly disclose that at no point of time the executing agency has taken any serious effort to serve the order of detention passed on the detenu. Learned counsel appearing for the petitioner has produced before us the dates on which the so called efforts were made by the detaining authority and the executing agency to serve the order of detention passed on the detenu. As we have already noticed, the detention order was passed on 27.11.2003, the first police enquiry was made only on 29.12.2003, that is for nearly 47 days nothing was done by the detaining authority nor the executing agency In the chronology of events submitted by the respondents and the petitioner, what can be easily seen is, that, as a ritual, once in 15 days they would prepare a report and whether that report is based on enquiries made or not is not supported by any material, such as statements recorded either of detenu's wife, children, relatives, neighbours and the persons of the locality. It looks to us that the entire report that is prepared and produced by the executing agency before this Court appears to be a report written while sitting in the office and not after any enquiries. We say so for the reason, at no point of time, the executing agency has even asked the police constable to furnish a report of enquiry made by him in any of the W.P.(Crl.)No.76 of 2007 - 16 - place/places, where they made enquiries about the whereabouts of the petitioner's husband. In fact, there are few instances where nearly for more than a month, no attempt was made by the executing agency to arrest the petitioner's husband pursuant to the order of detention passed, for instance between 17.7.2004 and 13.9.2004, nearly for 57 days, between 17.12.2004 and 25.1.2005, nearly for 39 days, no efforts seems to have been made either by the detaining authority or the executing agency to arrest petitioner's husband. In fact, petitioner in the petition has sated that the petitioner's husband had participated in their daughter's wedding held at 'Sankarankulangara Temple Kalyana Mandapam, Trichur' and in support of that assertion, she has produced the wedding invitation and the photographs' taken during the marriage celebrations. But, the respondents plead their ignorance of the marriage and in their counter affidavit, they give a vague reply in their counter affidavit filed before the court. If the respondents were vigilant enough, they could have at least anticipated the participation of petitioner's husband during the marriage celebration and steps could have been taken to arrest the petitioner's husband. In fact, during this period, neither the detaining authority nor the executing agency has made any attempt to arrest the petitioner's husband. A perusal of chronology of the dates stated by the executing agency in their counter affidavit would indicate that a feeble attempt was made by the executing agency to serve the order of detention on the detenu. In the affidavit filed, it is stated, that, the executing agency after receiving the order of detention from the detaining agency had passed on the information with a clear direction to the Circle Inspector of Police in whose jurisdiction the detenu was ordinarily residing. In the records, it is also indicated by the executing agency that certain efforts were made by the Circle Inspector of W.P.(Crl.)No.76 of 2007 - 17 - Police. According to them, police constables were directed to serve the order of detention passed and on all those dates the police constables could not serve the order of detention, since the petitioner's husband was absconding. They have stated that they had made certain enquiries on the whereabouts of the detenu, and those enquiries did not reveal the whereabouts of petitioner's husband. The records does not disclose that any statement were recorded by the police constables from either the detenu's wife, kith and kin, or the neighbours or any person who was acquainted with the detenu. This only shows that the records maintained by the detaining authority was perfunctory and not as required either under the common law or as contemplated in the Code of Criminal Procedure. If, for any reason, an attempt has been made by the police authorities to whom the detaining authority had entrusted the job of service of order of detention and to arrest the detenu, at least they should have recorded the statements and should have drawn an appropriate mahazar with the help of some independent witnesses that in spite of the best efforts were being made by them, the petitioner's husband was not available in the address shown either in the order of detention passed or in any other place. The entire records would only show a formal opinion of the executing agency that an attempt was made by the police authorities but they were informed that the petitioner's husband is not available in the address. The sum and substance of their submission before the court that the petitioner's husband was absconding and therefore, the executing agency could not serve the order of detention on the detenu. The explanation offered by the executing agency and the detaining authority is wholly unsatisfactory and it is beyond anybody's comprehension also why despite a long passage of time, the respondents could not implement the orders passed by the W.P.(Crl.)No.76 of 2007 - 18 - detaining authority. Time and again, courts have observed that, delay in execution ipso facto may not vitiate the proceedings taken under Section 3(1) of the Act, but the explanation offered should be satisfactory and acceptable, and it is only then, it can be said that the delay in execution of the order of detention would not vitiate the proceedings. In the present case, as we have already noticed, that, there was a delay of more than three years in executing the order of detention. No serious efforts were made at any point of time either by the detaining authority or by the executing agency to serve the order of detention passed on the detenu. In our view, it is a classic case where the detaining authority and the executing agency by their lethargic attitude has allowed the detenu to remain at large for such a long time to carry on his activities, which was sought to be prevented by passing an order under Section 3(1) of the Act. In matters of this nature, they should have acted in greater promptitude in securing the arrest of the detenu. In our view, if serious efforts were made, it could not have been difficult for the executing agency to have served the order of detention on the detenu and he could have been arrested under the provisions of the COFEPOSA Act. The purpose of the orders of detention itself is defeated by the executing agency in delaying the process of execution of the order of detention, since the orders of detention passed under Section 3(1) of the Act is not in the nature of punishment or punitive action, but is an effort to prevent the person from indulging himself in the activities in the way of augmentation of foreign exchange resources of the country in future and also to prevent the smuggling activities as contemplated under the Act.

16. It is no doubt true that if the delay in executing the order of detention is sufficiently explained, the same would not be a ground for quashing W.P.(Crl.)No.76 of 2007 - 19 - the order of detention under COFEPOSA Act, but as in this case, the delay in execution remain unexplained. Therefore, we are of the opinion that the detention order must stand vitiated by reason of non-execution thereof within a reasonable time.

17. In the result, the order of detention passed by the detaining authority under Section 3(1) of the Act requires to be set aside and accordingly it is set aside and the detenu is ordered to be released forthwith, if not required in any other case. Ordered accordingly. Sd/- H.L.DATTU, CHIEF JUSTICE. Sd/- K.T. SANKARAN,

DK. JUDGE.

(True copy)


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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