TaxTMI 
TaxTMI 
TaxTMI 
2007 (7) TMI 651
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.... 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 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.No. Name of the Bank Current A/c.No. Amount (in Rs.) Period of transaction 1. Lord Krishna ....
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....ul Kareem; that cash deposits totalling ₹ 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 ₹ 25 Lakhs, ₹ 16 Lakhs and ₹ 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 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 ac....
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.... 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. 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 nec....
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....003 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 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 Exhi....
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.... 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 th....
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....tenu 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 ....
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....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 a....
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.....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 rece....
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....s 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 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, ....
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.... 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 ....
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....y 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 arres....
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....ng 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 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....