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2006 Supreme(Bom) 219
IN THE HIGH COURT OF BOMBAY
Shabbir Ahmed Rafique Ahmed
Versus
State
Decided on , FEBRUARY 15, 2006
Headnote:Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, (52 of 1974) - Section 3(1) Detenu was smuggling foreign exchange and Indian currency in an organised manner Merely because there was delay of 20 days in passing the detention order cannot be the sole reason to vitiate the order of detention Challenge to detention order rejected. There was a delay of about 20 days in passing the impugned order on 13.5.2005. The detaining authority stated that in all 13 proposals for similar purpose were pending during that period. The detenu had made about 23 foreign trips between the period from 12.4.2004 to 30.11.2004 and, therefore, it could not be said that the grounds for detention had become stale or illusory. There was sufficient material before the detaining authority to reach a conclusion that the detenu was smuggling foreign exchange and Indian currency notes in an organised manner and the explanation that he was carrying Indian currency for business purposes could not find support for acceptance. But for the passport being impounded, the detenu himself could not undertake any foreign trip but there is no reason to believe that he could not have managed the same activity through a third person if he was not taken in detention. Under the circumstances, the detaining authority cannot be said to have failed to explain the delay of 20 days satisfactorily at the first instance and in any case even such a delay in passing the detention order cannot be the sole reason to vitiate the order of detention. The challenge to the detention order on the ground that it was passed belatedly or it was passed for stale reasons or that there was no real nexus between the grounds and the impugned order of detention is rejected.
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, (52 of 1974) - Section 3(1) Detenu was subjected to a check on 30.11.2004 at Mumbai Airport when he was to depart to Dubai Foreign currency equal to Indian Rs. 2,50,377/was recovered from his shoes and Indian currency of Rs. 17,61,000/from a cardboard carton containing rotten custard apples from the checked in baggage Detenu had made 23 foreign trips from 12.4.2004 to 30.11.2004 He was released on bail on 10.12.2004 Even though his passport was surrendered he could have continued activity of smuggling Indian and Foreign currency out of India through someone else Detention of the detenu was justified. The articulation s which were adopted by the detenue for hiding the foreign exchange as well as the Indian currency notes did speak in volumes. He had made 23 foreign trips from 12.4.2004 to 30.11.2004. In the months of June, October and November he made four trips each. The frequency of his departure from the International Airport indicated that almost every week he was flying across the Indian borders. It was not impossible for the detenu to continue the said activity of smuggling the Indian currency or foreign currency out of India through someone else even though his passport was surrendered. The link of the foreign exchange smuggling could not be accepted to be snapped only because the detenu’s passport was surrendered. The detaining authority was aware of the nexus between the date of the incident and the passing of the detention order as well as the object behind such an order. The impugned order does not suffer on the count of non-application of mind by the detaining authority nor can it be called as a punitive order. The Advisory Board has also recorded its satisfaction regarding the obtaining circumstances necessitating the order of detention passed by the detaining authority and the report of the Advisory Board does support the contentions of the detaining authority that there were sufficient and just reasons for issuing the order of the detention.
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, (52 of 1974) - Section 3(1) Order of detention. Where detenu was involved in activity of Smuggling Indian and foreign currency out of India in an organised manner therefore mere delay of 20 days in passing detention order cannot be sole reason to vitiate order of detention.
Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, (52 of 1974) - Section 3(1) Detention of detenu. Where it was not impossible for detenu to continue activity of Smuggling Indian currency or foreign currency out of India through someone else even though his passport was surrendered therefore order of detention justified.
B. H. MARLAPALLE, J.
( 1 ) THIS writ petition seeking a writ of habeas corpus or the directions in like manner impugns the order of detention dated 13-5-2005 passed by the principal Secretary (Appeals and Secretary), government of Maharashtra, Home Department and the detaining Authority by invoking powers under Section 3 (1) of the Conservation of Foreign Exchange and prevention of Smuggling Activities Act, 1974 (for short "the Act" ). The said order was served on the detenu on or about 20/5/2005 and he was taken in detention on that day. A communication bearing No. PSA - 1105/2/spl-3 (A) dated 13/5/2005 was also issued by the said Detaining Authority and served on him on or about 20/5/2005 along with the list of documents. This communication had set out the statements and grounds of detention on the basis of which the impugned order was passed. Admittedly the copies of the documents mentioned in the list of documents were also served upon the detenu along with the detention order.
( 2 ) ON 30/11/2004 the detenu was intercepted while he was at Module 2a Departure Hall of Chhatrapati shivaji International Airport, Mumbai while he was to depart to Dubai and was proceeding to transit lounge after passing through the Immigration and Customs to board flight GF 057 for Dubai via Bahrain. He was holding Indian Passport No. A 4197422 and was questioned whether he was carrying any contraband such as foreign currency, Indian currency, diamonds, narcotic drugs etc. , on his person or in his baggage, to which he replied in the negative. Not being satisfied with his reply, he was subjected to a check up along with the checked-in baggage and the operation resulted in the recovery of assorted foreign currency equal to Indian Rs. 2,50,377/- from his shoes and Indian currency of Rs. 17,61,000/- from a cardboard carton containing rotten custard apples from the checked-in baggage. The total amount equivalent to Rs. 20,11,377/- was seized under a panchanama in the reasonable belief that the same were attempted to be smuggled out of India and hence liable for confiscation under the provisions of the customs Act, 1962 read with Foreign Exchange management Act, 1999. His statement was recorded under Section 108 of the Customs Act on the same day and he was claimed to have admitted the possession, carriage, concealment and recovery of the currency under seizure. He is alleged to have stated that the currency under seizure was given to him by one shabbir who stayed in Mumbra but he did not know his exact address. The detenu is stated to have said further that he met said Shabbir on 29-11-2004 on instructions from his friend Haji Shaikh from Dubai. He was taken in custody and produced before the learned Chief Metropolitan Magistrate who was pleased to release him on bail subsequently on 10-12-2004. Admittedly his passport was also seized as soon as he was taken in custody on 30-11-2004. His statements were recorded on 13-12-2004, 14-12-2004, 16-12-2004, 22-12-2004, 29-12-2004 and 31-1-2005, before the impugned order dated 13-5-2005 was passed.
( 3 ) THE main grounds of challenge to the detention order as set out in the petition and reiterated by the learned counsel in her oral arguments advanced before us are as under: (A) The detention order was issued belatedly i. e. after a period of more than five months on his release on bail on 10-12-2004 and the delay caused was not only inordinate, lethargic but was inexcusable and colossal thereby vitiating the order of detention. The live-link was snapped and the credible chain was broken on account of the delay caused in issuing the order of detention more so when the grounds of detention were not proximate to the alleged prejudicial activities on the basis of which the impugned order was passed. (B) At every pocket in the process of passing the detention order, there was delay which has not been explained at all by the Detaining Authority and on that ground also the detention order is required to b
