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2005 Supreme(Bom) 117
IN THE HIGH COURT OF BOMBAY
Musthafa Ahamed Dossa
Versus
Joint Secretary, Government of India, Ministry of Finance, Department of Revenue, New Delhi
Decided on 1/2/2005
Headnote:Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, (52 of 1974) - Section 3(1) Unexplained delay in issuance of detention order Delay by itself will not vitiate the order Only when the live-link between the prejudicial activities of the detenu and necessity of clamping the order of detention is snapped, the delay will vitiate the order. Where an order of detention dated 25th March, 1992 passed against the petitioner under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 could not be executed since the petitioner absconded from India and was brought to India only in March, 2003 as an accused in serial bomb blast case and was lodged in Central Prison, Mumbai and on 24th April, 2004 the impugned order of detention was served on the petitioner and the petitioner challenged the detention inter alia on ground of gross delay in execution of the order of detention.
Held, that in case of preventive detention under COFEPOSA, even unexplained delay in issuance of detention order by itself will not vitiate the order. Only in case where on account of delay, the live-link between the prejudicial activities of the detenu and the necessity of clamping the detention order on him is snapped, the delay will vitiate the order. If there is material to show that propensity and potentiality of the detenu to commit prejudicial activities was there even on the date of execution of the order then despite the unexplained delay in issuance of detention order the live-link between the prejudicial activities of the detenu and rationale of clamping the order of detention will not be lost. After fresh application of mind the detaining authority passed an order dated 22nd April, 2004 which reflects awareness of the fact that the petitioner was in Mumbai Central Jail in connection with the Bombay Blasts Case pending before the designated Court under TADA Act and the order was executed on 24th April, 2004. Considering all these peculiar events which have taken place, there is no unexplained delay in executing the order. The order of detention remained unexecuted only because the petitioner ran away from the country and was out of India for more than eleven years. The petitioner while abroad was involved in Bombay Bomb Blasts case. It is stated in the affidavit-in-reply that he continued his prejudicial activities outside India. After the petitioner was brought to Mumbai in connection with the Bomb Blasts case, his initial representation was for calling upon the authorities to execute the order. Later on he changed his stand and made a representation praying for revocation of the order. The detaining authority obtained opinion of the concerned Ministries and thereafter, rejected the representation. In any event, it cannot be said that the delay in executing the order is due to apathy or indolence on the part of the authorities in executing the order. There was no unexplained and inordinate delay in executing the order in the peculiar facts and circumstances of the case.
ABHAYS. OKA, J.
( 1 ) 1. The Petitioner musthafa A. Dossa is the detenu against whom the order of detention dated 25th March, 1992 has been passed under Section 3 (1) of the conservation of Foreign Exchange and prevention of Smuggling Activities Act, 1974 (for short COFEPOSA ). The challenge in this petition under Article 226 of Constitution of india is to the said order of detention passed by the Respondent No. 1.
( 2 ) THE impugned order dated 25th march, 1992 was passed against the Petitioner with a view to preventing him from smuggling goods in future. The allegation made in the order of detention is that the Officers of Directorate of Revenue Intelligence (hereinafter referred to as DRI) at Manglore received a credible information that a truck bearing registration no. KA-25-1254 carrying contraband silver bricks would be going towards Indore after passing through Karkala from Padubidri side on 8th March, 1992 at about 9. 00 a. m. The officers of D. R. I. Mangalore proceeded to the spot and started checking all the trucks passing on that route. The said Officers stopped the said truck. In the cabin of the truck there was one more person besides the driver. The driver informed the Officers of D. R. I, that his name was Rameshkumar and he was coming from udupi and going towards Kolhapur. He stated that he was not carrying any goods in the truck. The another person in the cabin disclosed his name as Madan Singh s/o Amar Singh. The said rameshkumar also produced certain documents showing the particulars of registered owner of the truck and the Insurance Policy. Though the driver and the said another person denied that no goods have been concealed in the cabin of the truck, when the Officers examined the cabin of the truck, they found that cabin was specially designed to carry and conceal silver bricks. The officers found smuggled sliver bricks in gunny packages. The truck was brought to the office of D. R. I, at Mangalore. A search of the cabin of the truck showed that there were 75 metalic bricks. One pistol was also found along with 50 live cartridges. An expert in silver was summoned who opined after testing the silver bricks that the same were made of silver of 999 purity. The total weight of the silver bricks was found to be 2676. 394 kgs. The expert opined that the silver bricks are of foreign origin. The approximate value of the said silver bricks was 2,14,11,152/- and the cost of pistol and 50 cartridges was Rs. 41,180/ -. The said silver bricks and pistol were smuggled into India in violation of provisions of Customs Act, 1962. Along with the silver bricks one Pistol and 50 live cartridges were also seized.
( 3 ) THE D. R. I. Authorities recorded a statement of one Abdul Khader of Uchila under section 108 of the Customs Act, 1962. He stated that he was doing smuggling for last 25 years and for last 5 years he was working with the gang headed by the Petitioner who was also known as Tiger Musthafa or Manju Musthafa. At the relevant time the Petitioner was at Dubai from where he was sending gold regularly to the Indian coast. In the said statement, Abdul described the manner in which silver bricks were smuggled in India. The statement of Tanaji kanchan was also recorded on 9th March, 1992, under Section 108 of Customs Act, 1962. He stated that he was working with Abdul khader of Uchila. He described the various acts of smuggling of silver. Similarly, a statement of one Raghunath Kotian was also recorded on 9th March, 1992 under Section 108 of Customs act, 1962. Rameshkumar, the driver of the track also gave a statement under Section 108 of Customs Act, 1962 describing in detail as to how he met Abdul Khader at Uchila and as to how he was given a truck in which 75 silver bricks were concealed. A statement of Madan singh was also recorded. After having considered the statements, the Respondent no. 1 - detaining authority recorded subjective satisfaction that the Petitioner was engaged in smuggling goods into India
