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Judgment
Vishnu Sahai, J.—Through this petition preferred under Article 226 of the Constitution of India, the petitioner who is the brother of the detenu Ramesh B. Paliwal @ Ramesh Chandra Paliwal, seeks to challenge the detention order dated 31.5.1996 passed by the second respondent Mr. K. L. Verma, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi, detaining the detenu u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA Act). The detention order along with the grounds of detention bearing the same date was served on the detenu on 16.12.1997.
In order to dispose off this petition, in our view it would not be necessary to advert to the prejudicial activities of the detenu detailed in the grounds of detention.
We have heard Mr. Maqsood Khan for the Petitioner, Mr. R.M. Agarwal for the Respondents Nos. 1 and 2 and Mrs. V. K. Tahilramani, Public Prosecutor for the Respondent Nos. 3 and 4.
Although in the petition, three grounds have been pleaded but, Mr. Maqsood Khan learned Counsel for the petitioner canvassed a solitary ground before us namely ground No. 4 (iii). The short and long of the said ground is that the impugned detention order dated 31.5.1996 was belatedly executed on the detenu on 16.12.1997 i.e. more than 1 1/2 years after its issuance. It has been urged in the said ground that effective and genuine efforts to serve the detention order on the detenu were not taken recourse to by the authorities. A query is raised in the ground that the detaining authority should disclose whether action u/s 7 of the COFEPOSA Act was taken against the detenu and if taken the details in respect of it be furnished.
The contention of Mr. Maqsood Khan is that on account of the inordinate delay in the execution of the detention order, the live link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him is snapped and the detention order has ceased to be preventive and instead has become punitive.
We have reflected over the said ground canvassed by Mr. Maqsood Khan and the reply furnished in the three returns filed on behalf of the respondents. We are constrained to observe that after examining the said ground, the reply in the three returns and reflecting over the matter, we do not find any merit in this ground.
Ground No. 4(iii) has been replied to in the three returns namely those of :-
(1) Mr. R.B. Dange, Inspector of Police attached to P. C. B. C. I. D. Mumbai (return dated 6.3.1998);
(2) Mr. Somnath Pal, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi (return dated 20.3.1998); and
(3) Mr. S.L.J. Gallyot, Assistant Director Enforcement Directorate, Foreign Exchange Regulation Act, Government of India, Ministry of Finance, Department of Revenue, Mumbai. (return dated 6.10.1998).
In each of these returns, a most cogent explanation for the non-execution of the detention order against the detenu has been furnished. The explanation in them is that the detention order could not be served on the detenu as he had absconded immediately after the offending seizure and only surrendered to the P. C. B. C. I. D. Mumbai on 16.12.1997 and on the said date when the detention order was served on him.
We now propose examining the averments made in each of the three returns. In brief, they are as under :-
Mr. R.B. Dange in his return has stated that the detention order dated 31.5.1996 was received in his office on 12.6.1996 for execution. On the very day (12.6.1996) and 17.6.1996, PSI Verghese visited the residence of the detenu at Mahalaxmi Building Fort Mumbai but, found that it was locked. On both the dates, he made inquiries from the neighbourers but the said inquiries afforded no clues about the whereabouts of the detenu. On 12.6.1996, the neighbourers of the detenu Mr. Uttam Patel and Mr. Ramesh Rajput, informed that two months before the detenu had left the residence and they did not know his whereabouts.
On 2.8.1996, police head constable B. No. 15797 of M.R.A. Marg police station visited the detenu''s residence mentioned above, but, could not trace him.
On 23.8.1996, a proclamation u/s 7(1)(b) of the COFEPOSA Act, dated 9.8.1996, which had been issued against the detenu was received in the office of the P. C. B. C. I. D. Mumbai. Thereafter, it was sent to M.R.A. Marg police station as the detenu''s residence fell within its ambit. The M.R.A. Marg police station duly posted the said proclamation at the entrance door of the detenu on 24.9.1996 under a panchanama in the presence of one Anand Devada, But, the detenu did not appear before the Commissioner of Police Mumbai within the stipulated time.
On 18.11.1996, 19.11.1996,20.11.1996,21.11.1996, 22.11.1996, 25.11.1996 and 27.11.1996 the M.R.A. Marg police station made efforts to trace the detenu but the same yielded no results. On 30.12.1996, PSI Tavare of P. C. B. C. I. D. Mumbai visited the residence of the detenu and found it locked. He made inquiries from his neighbors one Mr. Uttam he revealed that the residence had been locked since the last nine months and he was not aware of his whereabouts.
On 23.1.1997, PSI Tavare again visited the residence of the detenu but, did not find the detenu. One Henry D''Souza was present there who stated that he was staying on leave and license basis. He informed him that he had heard that the detenu was staying there but had never seen him. On 7.2.1997, PSI Tavare again visited the residence of the detenu but did not find him there and instead found one Ms. Geeta Upale present there. She stated that she had never seen the detenu.
On 3.3.1997, a letter was sent from the office of the P. C. B. C. I. D. Mumbai to the Joint Secretary to the Government of India in which efforts taken by it to execute the detention order were stipulated. In the said letter, it was mentioned that the sponsoring authority be moved to take further action for attachment of the property of the detenu as he was deliberately avoiding the service of the detention order.
On 16.12.1997, the detenu presented himself in the office of the P. C. B. C. I. D. Mumbai and the detention order was served on him.
We now take up the return of Mr. Somnath Pal. In para 6 the said ground has been replied to. Mr. Somnath Pal has emphatically stated that the detenu disappeared right from the date of search and seizure itself and he remained absconding till 16.12.1997 and continuous efforts by the sponsoring authority were made to trace him and serve the detention order on the dates stipulated below : -
12.6.1996, 10.8.1996,10.9.1996, 8.10.1996,22.11.1996,2.1.1997, 4.2.1997, 6.3.1997, 19.4.1997, 5.5.1997, 10.6.1997, 16.7.1997, 13.8.1997, 22.10.1997,6.11.1997, 27.11.1997, and 8.12.1997.
It has been mentioned therein that P. C. B. C. I. D. Mumbai had also made efforts to apprehend the detenu on 12.6.1996, 17.6.1996, 30.12.1996, 23.1.1997, and 7.2.1997.
Action u/s 7(1)(b) of the COFEPOSA Act, 1974, was initiated and order dated 9.8.1996 was issued against the detenu. Red alert No. 51/96, dated 3.10.1996 was also issued against him by the Assistant Director, DRI (Intelligence). In short, the averment of Mr. Somnath Pal is that the detenu on account of the act of his absconding was squarely responsible for the delay in the detention order being served upon him and could not be permitted to take advantage of his own wrong.
We now take up the affidavit of Mr. S.L.J. Gallyot, Assistant Director, Enforcement Directorate Foreign Exchange Regulation Act, Government of India, Ministry of Finance, Department of Revenue, Mumbai. In the said affidavit, it has been explained as to why action u/s 7 of the COFEPOSA Act was taken after efflux of some time. What is sought to be conveyed is as urged by Mr. R.M. Agarwal that the said provision stipulates that the condition precedent for taking action is reason to believe that the person against whom a detention order is to be served is either concealing himself/herself or absconding, and the authority would only have reason to believe to this effect if the said person was either not arrested or did not surrender within a reasonable time.
After going through the said three returns, we are implicitly satisfied that the detenu had absconded after the offending seizure and remained absconding till 16.12.1997 on which date he surrendered to the P. C. B. C. I, D. Mumbai and the detention order was executed on him.
In the circumstances, it is crystal clear that the delay in executing the detention order was a consequence of the absconding on the part of the detenu and in such a situation, when the detenu himself was to blame for the delay in execution, it hardly lies in his mouth to say that on account of passage of time, the live link between his prejudicial activities and the rationale of clamping the detention order on him was snapped.
The Supreme Court in the decisions M. Ahamedkutty Vs. Union of India (UOI) and Another, and Bhawarlal Ganeshmalji Vs. State of Tamil Nadu and Another, has laid down that if the delay in execution of the detention order has been occasioned on account of the act of absconding on the part of the detenu, the detention order would not be vitiated on the vice of delay in execution.
In the former authority in para 13 and in the latter authority in para 6, the Supreme Court has held that where the delay has been adequately explained and it is also found that it is the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is reason to warrant the inference that the live link has not been snapped but, instead it has been strengthened. In the latter decision, the detenu had been absconding for over three years and therefore, the Supreme Court repelled the contention of his counsel that the impugned detention order had become vitiated on account of the delay in its execution.
The source of the said certificate is squarely applicable to this case.
For the said reasons, we do not find any merit in the solitary submission canvassed by Mr. Maqsood Khan.
In the result, this petition is dismissed and rule is discharged.