TaxTMI 
TaxTMI 
2015 (8) TMI 697
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....ppearing for the Petitioner and Mr. Yagnik, learned APP appearing for the Respondents. We have also minutely perused the entire record produced by the learned APP including the various notings made by the concerned authorities in the file of the Respondent Nos.1 and 2. 3. At the outset, we may note here that though the Petitioner has taken various grounds in the Writ Petition thereby challenging the impugned order of detention dated 16 th December, 2014 passed by the Respondent No.2, ig the learned counsel appearing for the Petitioner restricted her arguments only to the point of delay in issuing the impugned detention order by the detaining authority i.e. the Respondent No.2. She submitted that the incident in question was dated 11 th May, 2014, the detention order was issued on 16 th December, 2014 and the detention order was executed on the detenu on 8 th January, 2015 at Kannur District, State of Kerala. She further submitted that the said point of delay in issuing the detention order goes to the root of the matter and which according to her is fatal, vitiates the impugned order dated 16 th December 2014, in pursuance of which the detenu has been detained by the Respondents.....
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....d counsel appearing for the Petitioner also pointed out that a show cause notice under Section 124 of the Customs Act, 1962 before confiscation of goods was issued on 5 th November, 2014 and after the detenu answered to the said show cause notice, the impugned detention order dated 16 th December, 2014 came to be issued which was executed on the detenue on 8th January, 2015 as stated herein above. 5. After service of notice Dr. Kiran Kumar Karlapu, Assistant Commissioner of Customs, COFEPOSA Cell (AIU), CSI Airport, Mumbai on behalf of the Respondent No.3, the Sponsoring Authority has filed a detailed affidavit dated 3 rd March, 2015 opposing the Petition. Mr. Sanjay Dagadu Khedekar, Home Department, Government of Maharashtra, Mantralaya, Mumbai has filed a detailed affidavit dated 16 th March, 2015 for and on behalf of the Respondent Nos.1 and 2 i.e. the State of Maharashtra and the detaining authority. 6. As stated earlier, the learned counsel appearing for the Petitioner has restricted her arguments only to one point i.e. the delay in issuing the detention order from the date of incident. She submitted that there is an inordinate delay of about seven months in issuing t....
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....lay has occasioned, when called upon to answer and further the Court has to investigate whether the causal connection has been broken in the circumstances of each case. 12. Similarly 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 a 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 preventing him from acting in a prejudicial manner." 7. The second decision relied upon by the learned counsel appearing for the Petitioner is a decision of the Supreme Court in the case of Adishwar Jain v. Union of India and another reported in (2006) 11 SCC 339 and in particular, relied upon paragraph Nos.8, 11, 12 and 15 thereof. In paragraph Nos.8, 11, 12 and 15 the Supreme Court held thus : "8. Indisputably, delay to some extent stands explained. But, we fail to understand as to why despite the fact that the proposal for detention was made on 2.12.2004, the order of d....
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....his nefarious activities." 1 (1975) 2 SCC 78 The learned counsel appearing for the Petitioner, therefore, urged before us that taking into consideration the delay occurred in the present case, while issuing the detention order, the same is fatal and vitiates the issuance of detention order. She, therefore, submitted that the Petition may be allowed and the detention order be quashed and set aside. 8. The learned APP on the other hand supported the order of detention passed by the Respondent No.2 and submitted before us that the sponsoring authority as well as the detaining authority have properly explained the alleged delay by way of filing their respective affidavits. The learned APP after relying upon the statements made in reply submitted that the delay in issuing the impugned detention order is not inordinate and assuming for the sake of argument that there was some delay in doing so, the same has been properly and satisfactorily explained in the said replies. It is to be noted here that in response to the Petition Dr. Kiran Kumar Karlapu, Assistant Commissioner of Customs, COFEPOSA Cell (AIU), CSI Airport, Mumbai has filed an affidavit in reply dated 3rd March, 2015 ther....
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....his affidavit dated 16th March, 2015, in response to the ground 5(i) raised in the Petitioner has stated in paragraph 5 that after getting approval of the Screening Committee, the Sponsoring Authority on 30th June, 2014 submitted four sets of proposal, brief facts and indexed replied upon documents in the office of the detaining authority and the detention order was issued on 16 th December, 2014 by the detaining authority after carefully perusing all the documents including the further generated documents and after arriving at the conclusion that the detention order was necessary in view of the possibility of the detenu to involve himself in the smuggling activities and in view of his frequent visits abroad and strong possibility of being habitual offender. It has been stated in said paragraph No.5 that the detention order was issued after a period of only six months which period was necessary to verify the facts, clear all the doubts and to arrive at subjective satisfaction. The said authority has denied that there is an inordinate delay of seven months in issuing the impugned detention order. 10. The Respondent Nos.1 and 2 while explaining the delay in issuing the detention o....
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....g Authority shows the sincere efforts on its part to satisfy itself as to the need of detaining the detenu and after his subjective satisfaction the Detention Order was issued. Hence the same cannot be casted upon the Detaining Authority as a fault on its part." 11. The learned APP appearing for the Respondents in support of his contentions relied upon two decisions of the Supreme Court. The first decision is in the case of Rajendrakumar Natvarlal Shah v. State of Gujarat and others reported in (1988) 3 SCC 153 and in particular, paragraph Nos.10 and 12 thereof, which read as under : "10. Viewed from this perspective, we wish to emphasise and make it clear for the guidance of the different High Courts that a distinction must be drawn between the delay in making of an order of detention under a law relating to preventive detention like the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 and the delay in complying with the procedural safeguards of Art. 22(5) of the Constitution. It has been laid down by this Court in a series of decisions that the rule as to unexplained delay in taking action is not inflexible. Quite obviously, in cases of mer....
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.... of a gang indulging systematically in the cutting of aluminium electric wire, the District Magistrate could have been well satisfied, even after the lapse of five months that it was necessary to pass the detention order to prevent him from acting in a manner prejudicial to the maintenance of the supply of electricity. In Golam Hussain @ Gama v. The Commissioner of Police, Calcutta & Ors., [1974] 3 SCR 613, it was held that the credible chain between the grounds of criminal activity alleged by the detaining authority and the purpose of detention, is snapped if there is too long and unexplained an interval between the offending acts and the order of detention. But no 'mechanical test by counting the months of the interval' was sound. It all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation. The Court has to investigate whether the casual connection has been broken in the circumstances of each case. In Odut Ali Miah v. State of West Bengal, [197....
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.... of delay, that has to be satisfactorily explained. After all, the purpose of preventive detention is to take immediate steps for preventing the detenu from indulging in prejudicial activity. If there is undue and long delay between the prejudicial activity and making of the order of detention and the delay has not been explained, the order of detention becomes vulnerable. Delay in issuing the order of detention, if not satisfactorily explained, itself is a ground to quash the order of detention. No rule with precision has been formulated in this regard. The test of proximity is not a rigid or a mechanical test. In case of undue and long delay the court has to investigate whether the link has been broken in the circumstances of each case." 12. There cannot be any quarrel about the ratio laid down by the Supreme Court in the present case. However, it is to be noted here that in paragraph 9 of the said decision in the case of Licil Antony (supra), the Supreme Court has noted as under : "As stated by the respondents in the counter affidavit, the record of the sponsoring authority, the screening committee and other materials consisted of over 1000 pages. As the final call was to ....
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....cial activities under the COFEPOSA Act and with a view to preventing him the detention order must be issued. In our opinion the delay in issuing the detention order in the present case must vitiate the subjective satisfaction of the detaining authority as regards the preventive action sought to be taken against the detenu." The learned counsel appearing for the Petitioner submitted that in the present case also except repetition of pleadings about the clarification and demand of documents by the Respondent Nos.1 and 2 from the Respondent No.3, no expeditious steps were taken for issuing the detention order. 15. In the present case, as stated herein above the sponsoring authority has tried to explain the delay on behalf on its behalf upto 26th June 2014. It is necessary to note here that in the affidavit of the Respondent Nos.1 and 2 the detaining authority as stated herein above in paragraph 6 of the said affidavit has tried to explain the delay on its part. The affiant of the said affidavit has stated that the proposal sent by the sponsoring authority along with 97 pages dated 26 th June, 2014 was received by the detaining authority on 30th June, 2014. A scrutiny note was su....
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.... detention in the present case. The detaining authority prepared and dictated the detention order, grounds of detention and the annexures on 12th December, 2014 and the detention order was issued on 16 th December, 2014. Here also the Respondent Nos.1 to 2 have failed to explain the delay of about 22 days between 20 th November, 2014 to 12th December, 2014 for dictation and preparation of the detention order. Further the Respondent Nos.1 and 2 have also failed to explain the delay of about four days from 12th December, 2014 to 16 th December, 2014 for issuing the said order. Thus, it is clear that the detaining authority has clearly failed to explain the delay on its part properly and satisfactorily. 16. After taking into consideration the aforesaid facts that the delay in issuing the detention order has occurred at every stage, we are of the considered view that in the present case neither the sponsoring authority nor the detaining authority were serious enough in issuing the detention order expeditiously to prevent the detenu in future from indulging into the smuggling of goods as well from engaging in transportation and concealing and keeping smuggled goods. 17. Apart from....