TaxTMI 
TaxTMI 
2017 (3) TMI 1070
X X X X Extracts X X X X
X X X X Extracts X X X X
....etenue. 3. The necessary facts to be noticed for disposal of the writ petition and as stated by the petitioner in the petition are that the detenue is a resident of Bhatkal, Karnataka. He has completed his B.Com. in the year 2003. Besides his old parents, he has four brothers and two sisters. Initially, the detenue was working as a Sales Executive in Bangalore, however, in the year 2008 he shifted to Dubai in search of a job and better future prospects. At the relevant time, the detenue was working with M/s Richmand General Trading LLC. Simultaneously, the detenue started a small time business wherein he used to trade in electronics and garments. Detenue used to purchase garments from Dubai and used to sell the same to shopkeepers in Bahrain and sometimes customers directly. In order to earn extra money, detenue also used to book online air tickets by charging some commission. Detenue also used to book air tickets of one Ajmal Sheikh in Dubai. 4. On 02.11.2015, detenue was approached by Ajmal Sheikh for booking of an air ticket for one Smt. Shehnaz Laiq Ahmed Ansari. Accordingly, the detenue booked the air ticket in the name of Ms.Ansari. On 02.11.2015 itself the detenue was sche....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aka when he learnt about an Official Gazette publication in the newspaper at Bhatkal on 05.08.2016 wherein the detenue was required to be detained under the detention order passed on 20.05.2016. Detenue was directed to appear before the Director General of Police, Government of Goa, Panji, within 7 days from the date of the publication. Being a law abiding citizen, the detenue reached Goa on 10.08.2016 and surrendered before the police in compliance with the detention order. On 10.08.2016 itself, the detenue was served with a single page detention order. On the following day, he was served with a list of documents, grounds of detention and other relied upon documents. The detenue has also filed his representation before the Detaining Authority, Central Government and the Advisory Board and had also appeared before the Advisory Board. 8. Various grounds have been raised by Mr. Pradeep Jain, learned counsel for the petitioner in support of his submission that the detention order is wholly unwarranted, per se illegal, unconstitutional being without jurisdiction and having been passed without any application of mind. The submissions of Mr.Pradeep Jain can be summarized as under:- (i)....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d and time and again, the High Court and the Supreme Court have quashed the detention orders which are based solely on a solitary incident without having any other justified grounds. 11. It is next submitted that no document or material has been placed on record by the Detaining Authority except the statement of the detenue as well as of Smt. Shehnaz Laiq Ahmed Ansari to substantiate their allegation that the detenue was in any way connected with the smuggling of gold jewellery. In fact, the detenue has no past history in relation to any alleged smuggling activities or any other illegal activity and detenue has been simply doing his business and job in order to supplement his income for which he had gone to Dubai. 12. In support of this contention, counsel has relied upon the judgment passed in the case of Gimik Piotr v. State of Tamil Nadu and Ors., (2010) 1 SCC 609, wherein it was held as under:- "23. The Act contemplates two situations for exercise of the power of preventive detention viz. to prevent violation of foreign exchange regulations and to prevent smuggling activities. The justification for passing the order of detention is suspicion or reasonable probability of the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... occasion person smuggled goods into the country would not constitute a legitimate basis for detaining him under the COFEPOSA. This can be gathered from the past or future activities of the said person." 25. In Gurdev Singh v. Union of India [(2002) 1 SCC] this Court held: "20. ... Whether the detention order suffers from nonapplication of mind by the detaining authority is not a matter to be examined according to any straitjacket formula or set principles. It depends on the facts and circumstances of the case, the nature of the activities alleged against the detenu, the materials collected in support of such allegations, the propensity and potentiality of the detenu in indulging in such activities, etc. The Act does not lay down any set parameters for arriving at the subjective satisfaction by the detaining authority. Keeping in view the purpose for which the enactment is made and the purpose it is intended to achieve, Parliament in its wisdom, has not laid down any set standards for the detaining authority to decide whether an order of detention should be passed against a person. The matter is left to the subjective satisfaction of the competent authority." 26. What emerges ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tary and Others, (2010) 15 SCC 72 and Gimik Piotr (Supra). In Moulana Shamshunnisa (Supra), it has been held as under: "8. In Rajesh Gulati's case (supra), the question that came to be canvassed on behalf of the detenu was that as his passport continued to be in the possession of the customs authorities, there was no question of the appellant travelling abroad or indulging in any smuggling activity. This plea was accepted by this court by observing that it was not the case of the Detaining Authority at any stage that the detenu would be able to continue with his smuggling activities within India, though he could not go abroad his passport having been seized. It was observed thus: "15. ... The conclusion that despite the absence of his passport the appellant could or would be able to continue his activities is based on no material but was a piece of pure speculation on the part of the Detaining Authority. These findings are sufficient to invalidate the impugned detention order and it is not necessary to consider the other issues raised by the appellant." 9. This opinion has been fortified by this Court in Gimik Piotr's case (supra). In para 32, it has been held as under:....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ad this document been placed before the Detaining Authority, the mind of Detaining Authority could have been influenced otherwise. It is very strange as to how the sponsoring authority deliberately and intentionally suppressed the aforesaid vital document. It is a settled law that non-placement of vital document vitiates the detention order. 19. It is further contended that besides the above document, in the present case the seizure of goods had taken place on 03.11.2015 vide panchnama dated 03.11.2015, however, no separate seizure memo has been placed or relied upon in the grounds of detention and all what has been placed is a mere panchnama which records that the goods were seized by the Customs Officers. Further, as per the Customs Act, 1962 the show-cause notice had to be issued by 02.05.2016 (i.e. within six months from the date of seizure 03.11.2015), however, neither any show-cause notice has been placed on record nor any application seeking extension of time for issuance of show-cause notice has been placed on record. The show-cause notice is a vital piece of document as it is issued after culmination of investigation and it shows the result of investigation, hence, the no....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or the reason that his passport was taken under custody by the DRI. 25. It is also contended that no Officers of customs or any other authority had any time visited the house of the detenue for the purpose of execution of the detention order. It is the duty of the Detaining Authority to show before the Court as to what effective steps were taken by the Detaining Authority for the purpose of execution of the detention order. Even in the response filed by the respondents, no satisfactory explanation has been given by the respondents as to what effective measures were taken by them to serve the detenue at Bhatkal where the permanent residence of the detenue is situated which was very much in the knowledge of the respondents as is clear from the statement recorded of the detenue. There was a delay of almost 80 days in the execution of the detention order. 26. In support of his arguments, the learned counsel for the petitioner relies upon A. Mohammed Farook v. Jt. Secy. to G.O.I., (2000) 2 SCC 360 (paragraphs 9 and 10) and Manish Gadodia v. Union of India & Anr., 216 (2015) DLT 521. 27. It is further contended that the respondents even failed to show their efforts in accordance with ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al Sheikh; that he undertook a journey from Bahrain to Dubai especially for the purpose of collecting gold at Dubai and then to act as a carrier of carrying gold from Dubai to Doha, where, by an independent act, he had already planted Mrs. Ansari, facilitating her to travel from Dubai to Doha to enable her to receive gold and then travel to another destination other than Mumbai, where she was scheduled to land. 31. The above facts, if interpreted in the context that he has a track record of being in transit at Doha Airport for 53 times, goes on to show that he is a professional carrier and therefore, a person who is capable of acting with so much precision; he is a potential danger, evocative of his propensity. Mr. Jain, learned ASG, relied upon Madhab Roy alias Madha Roy v. State of West Bengal, AIR 1975 SC 255: (1974) 4 SCC 548 where the issue pertained to detention of a person upon a single solitary incident if carried out with certain expertise, is not to be treated as an isolated act, rendering the detention of such person valid. It was held as follows: "2. To answer this question it is necessary to understand the real nature of the activity of the petitioner as disclosed by....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uard in Article 22(5)." (Emphasis Supplied) 32. Learned ASG further submits that since the act of acting as a carrier was for a monetary consideration of 1000 dirhams, there was bound to be propensity in the act of the detenue, as held by the Supreme Court in the case of Mohammed Sultan v. Joint Secretary of Government, (1991) 1 SCC 144: "7. ....In the grounds of detention reference has been made to the statements dated September 30, 1989 and October 1, 1989, made by the Petitioner before the Customs Officer wherein the Petitioner had stated that his income was not adequate for his maintenance and in order to earn money he had gone to Singapore after obtaining a passport in a false name and at Singapore the Petitioner developed friendship with one Majeed and on assurance given by Majeed that he would bear the cost of the air ticket of the Petitioner amounting to Rs. 5,200/- and would also pay to the Petitioner a sum of Rs. 2,000/- the Petitioner agreed to carry gold bars and other goods and to hand over the same to the son of Majeed in India and accordingly the Petitioner brought seven gold bars concealed in his body for the purpose of handing over the same to the son of Majeed.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sport being under custody of the DRI, there was no occasion for the detenue to travel abroad and consequently the detenue will not indulge in any prejudicial activity, it is contended that the same is ill-placed. A smuggling activity with a syndicate does not mean that the detenue should necessarily travel abroad. With contacts developed, such persons can guide other carriers. The fact that the passport was with DRI and also that an application was filed for its release was also considered by the Detaining Authority. Reference of the same can be found at paragraphs 5 and 68 of the Grounds of Detention. This shows due application of mind by the Detaining Authority. 37. It is further contended that the question whether grounds of detention can give rise to the satisfaction required for making the order is beyond the scope of the inquiry of the Court. The same was dealt by the Apex Court in State of Bombay v. Atma Ram, AIR 1951 SC 157. In this case, the Apex Court has held as follows: "42. ...If the order was made as a result of satisfaction derive in good faith, but upon grounds which may be vague, the order will be perfectly good and cannot be challenged in any Court." 38. Mr. Sa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eld as follows: "4. The High Court has virtually decided the matter as if it was sitting in appeal on the order passed by the Detaining Authority Action by way of preventive detention is largely based on suspicion and the court is not an appropriate forum to investigate the question whether the circumstances of suspicion exist warranting the restraint on a person. The language of Section 3 clearly indicates that the responsibility for making a detention order rests upon the Detaining Authority who alone is entrusted with the duty in that regard and it will be a serious derogation from that responsibility if the court substitutes its judgment for the satisfaction of that Authority on an investigation undertaken regarding sufficiency of the materials on which such satisfaction was grounded. The court can only examine the grounds disclosed by the Government in order to see whether they are relevant to the object which the legislation has in view, that is, to prevent the detenue from engaging in smuggling activity. The said satisfaction is subjective in nature and such a satisfaction, if based on relevant grounds, cannot be stated to be invalid. The concerned authorities have to take ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sulted in denial of the right of the Petitioner to make a representation under Article 22(5) of the Constitution. In support of the aforesaid submission reliance has been placed on the decision of this Court in M. Ahamedkuttyv. Union of India (1990) 2 SCC 1. We find no substance in this contention. The application submitted by the Petitioner before the Additional Chief Metropolitan Magistrate for relaxing the conditions for his release on bail and the order dated October 31, 1989 passed by the Additional Chief Metropolitan Magistrate on the said application whereby the conditions on which the Petitioner was released on bail were relaxed, cannot be regarded as material documents and the failure to produce the same before the Detaining Authority before it passed the order of detention would not vitiate the order of detention. In this connection reference may be made to the decision of this Court in Haridas Amarchand Shah v. K.L. Verma (1989) 1 SCC 250 : AIR 1989 SC 497. In that case also an application had been made for variation of the conditions of bail and the Chief Metropolitan Magistrate had passed an order varying the conditions of bail. That order passed by the Chief Metropol....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y of the copies of the same to the Petitioner would not result in denial of the right of the Petitioner to make a representation under Article 22(5) of the Constitution." (Emphasis Supplied) 44. The Supreme Court has gone further ahead and held that the Courts under the Writ Jurisdiction cannot decide on the adequacy of the documents on record of the Detaining Authority. The same is to be as per the subjective satisfaction of the Detaining Authority. This was held in State of Gujarat v. Adam Kasam Bhaya, AIR 1981 SC 2005: (1981) 4 SCC 216 as follows: "6. ... The High Court in its writ jurisdiction under Article 226 of the Constitution is to see whether the order of detention has been passed on any materials before it. If it is found that the order has been based by the detaining authority on materials on record, then the Court cannot go further and examine whether the material was adequate or not, which is the function of an Appellate Authority or court. It can examine the material on record only for the purpose of seeing whether the order of detention has been based on no material. The satisfaction mentioned in Section 3 of the Act is the satisfaction of the detaining authority....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... violations has to be curbed. Notwithstanding the many disadvantages of preventive detention, particularly in a country like ours where right to personal liberty has been placed on a very high pedestal, the Constitution has adopted preventive detention to prevent the greater evil of elements imperilling the security, the safety of State and the welfare of the Nation. 70. On the touchstone of constitutional jurisprudence, as reflected by Article 22 read with Articles 14, 19 and 21, we do not think that the impugned provision is rendered unconstitutional. There is no constitutional mandate that preventive detention cannot exist for an act where such act is not a criminal offence and does not provide for punishment. An act may not be declared as an offence under law but still for such an act, which is an illegal activity, the law can provide for preventive detention if such act is prejudicial to State security. After all, the essential concept of preventive detention is not to punish a person for what he has done but to prevent him from doing an illegal activity prejudicial to the security of State. Strictly speaking, preventive detention is not regulation (many people call it that w....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the Detaining Authority decides to pass the Detention Order, the same is to be served upon the proposed detenue as soon as possible through the Executing Authority. The Executing Authority is the senior-most police officer of the State where the proposed detenue is proposed to be detained, which happens to be the place where the Sponsoring Authority is located or is in the closest proximity. It is for this reason, that the detention orders were first forwarded to the Director General, Goa, where the proposed detenue was proposed to be detained, who in turn sent it to the concerned authorities for the same being served within the local jurisdiction. This is as per the internal guidelines and practice of the Government. In this case, the Sponsoring Authority, till such time the order under Section 7(1)(b) was issued, kept on inquiring from the Executing Authority about the status of the service. The reason why the procedure under Section 7(1)(b) was adopted first, was so that it would be less prejudicial to the proposed detenue. 49. Learned ASG further submits that the detenue was detained on 10.08.2016 and was furnished the Grounds of Detention and the relied upon documents on 11.....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... as the matter involves the curtailing the personal liberty of a person. 53. We proceed to analyse the case of the detenue. Admittedly, the detention order is premised in the smuggling of 10 kg gold jewellery seized at the Dabolin Airport, Goa. The incident took place as under: Time Act Detenue located at Bahrain On 01.11.2015 (Sunday) Before 02:42 AM Detenue booked two tickets for himself: * From Bahrain to Dubai via Doha (same day) * From Dubai to Bahrain via Doha (next day) 07:00 AM to 09:10 AM Detenue travels to Dubai Time Act Carrier/Smt.Ansari already in Dubai holding a direct ticket from Dubai to Mumbai for 15.11.2015 On 02.11.2015 (Monday) Before 01:38 AM Detenue booked new ticket for Smt.Ansari from Dubai to Goa via Doha for the same day. Detenue picks up 10 kg of gold from Abdul Rehman at Dubai and was paid 1000 dirhams for acting as carrier and separate consideration for booking services 06:30 PM Smt.Ansari boards flight QR 1013 in Dubai 06:40 PM Smt.Ansari arrives at Hamad International Airport, Doha 07:30 PM Detenue boards flight QR 1065 in Dubai 07:40 PM An hour later: Detenue arrives at Hamad International A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he detenue, though may not be the king-pin, but was atleast acting as a wazir or bishop, efficiently planning and coordinating the entry of the contraband in India. He cannot be said to be a mere carrier. Accordingly, we are of the opinion that the propensity and potentiality of future activities is manifest as the incident was clearly an organized act perpetrated with great expertise and preparation. 57. Therefore, this ground of the petitioner deserves to be rejected. SUBJECTIVE SATISFATION HAS BEEN INCORRECTLY ARRIVED AT BY THE DETAINING AUTHORITY 58. The next aspect to be considered is as the whether the subjective satisfaction of the detaining authority has been wrongly arrived at? This contention of Mr. Pradeep Jain is premised in the fact that the detenue had voluntarily surrendered his passport and therefore, there was no scope for the detenue to indulge into smuggling in the future. 59. The first case to be considered is that of Rajesh Gulati v. Govt of NCT of Delhi, (2002) 7 SCC 129. The detenue therein was a carrier, described by the court as a "pawn" who had repeatedly brought into India various household items at the instance of his employer, M/s B.D. Denim. His pa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he instant case as the facts reveal that there was no pressing need to curtail the liberty of a person by passing a preventive detention order. Foreign currency cannot be smuggled as the person cannot move out of the country on account of his passport being impounded. Merely because a person cannot otherwise survive in the country, is no basis to conclude that a person will again resort to smuggling activities, or abetting such activities by staying in the country. There is higher standard of proof required in these circumstances involving the life and liberty of a person. The material provided by the respondents is not enough to justify the curtailment of the liberty of the appellant under an order of preventive detention in the facts and circumstances of the case." (Emphasis Supplied) 62. The Supreme Court in Moulana Shamshunnia (Supra) was dealing with a case wherein the detenue had been caught at the Bangalore International Airport possessing 4.35 kg of gold jewellery which had not been disclosed to the authorities. His passport was seized, yet the order of detention was passed against him. In this background, the Apex Court quashed the detention order relying on Rajesh Gulat....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the goods from point "A" to point "B". In such circumstances, the surrendering of passport may go a long way to inhibit or even foreclose his potentiality altogether. 66. That is not the case in the present matter. The detention order in the present matter is under Section 3 (1) (ii) and not Section 3 (1) (i). The relevant portion of the grounds of detention read as under: "70. Considering the fact that you boldly conspired and attempted smuggling of gold as an active member of organized smuggling syndicate through Dabolim Airport, I am satisfied that you have a high propensity and potentiality to indulge in aforesaid prejudicial activities again. I am therefore satisfied that you should be immobilized by detention under COFEPOSA Act, 1974 with a view to prevent you from engaging in abetting smuggling of goods in future. Therefore, in order to prevent you from continuing your prejudicial activities (smuggling) as discussed above, your immediate detention under COFEPOSA Act, 1974 is the only remedy. Hence I direct that you be detained under Sections 3(1)(ii) of the COFEPOSA Act, 1974 to prevent you from abetting smuggling in future." (Emphasis Supplied) 67. In view of the afore....
X X X X Extracts X X X X
X X X X Extracts X X X X
....der: "13. With due respect to the Commission, we are unable to find any reasoning behind their conclusion that "even on merits, it can be seen that the applicant had only signed some documents at the instance of the principal offender Sh. Yusuf Dhanani. Sh. Yusuf Dhanani has been heavily penalised for it in the said Final order. Thus on merits too the penalty against this person is not attracted and no prudent adjudicator would order levy of penalty in such facts.....If the contention of the Revenue is accepted then all foreign suppliers, all over the world, who have connived and colluded will (sic. with) for under valuation by raising two sets of invoices should have the subject matter of show cause notice issued by the Customs/Revenue in India. This has never been done as the law is not applicable to such persons who have neither abetted or concluded or have been an accomplice in the acts of omission or commission committed by Indian Importers which have rendered goods liable to confiscation." We are unable to agree with these findings especially since no reasons have been given for coming to this conclusion. Once it is found that the offence has been committed, or a violation o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d in the past. We are required to pre-judge the entire issue at the pre-execution stage of the detention orders. We must be loathe to do so. ... 16. This discussion would not be comprehensive without a consideration of Section 188 of the Code of Criminal Procedure, 1974 (Cr.P.C). This provision deals with offences committed outside India. In the case of Indian citizens there are no restriction as to the place or situs where the offence has allegedly occurred, whereas non citizens would have to have been aboard an „Indian Flag‟ vessel for the Section to apply. This amply clarifies the observations made by the Settlement Commission pertaining to the non-prosecution of foreigners heretofore in similar matters concerning under or overinvoicing. In sharp contrast to the provisions of the Cr.P.C. Section 4 of the IPC restricts the operation thereof to offences punishable under the IPC alone. It is important to underscore the fact that the word "offence" has been defined in Section 2(n) of the Cr.P.C. to mean "any act or omission made punishable by any law for the time being in force....." The Legislature clearly intended that the Cr.P.C. would not be circumscribed in its ap....
X X X X Extracts X X X X
X X X X Extracts X X X X
....through any route other than a route specified in a notification issued under clause (c) of section 7 for the import of such goods; (c) any dutiable or prohibited goods brought into any bay, gulf, creek or tidal river for the purpose of being landed at a place other than a customs port; (d) any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force; (e) any dutiable or prohibited goods found concealed in any manner in any conveyance; (f) any dutiable or prohibited goods required to be mentioned under the regulations in an import manifest or import report which are not so mentioned; (g) any dutiable or prohibited goods which are unloaded from a conveyance in contravention of the provisions of section 32, other than goods inadvertently unloaded but included in the record kept under sub-section (2) of section 45; (h) any dutiable or prohibited goods unloaded or attempted to be unloaded in contravention of the provisions of section 33 or section 34; (i) any dutiable or prohibited goods found conceal....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e detenue that his past antecedents and conduct are taken into account and not otherwise. In a sense, the liberty of the detenue is not taken away for his past but to prevent him for indulging in analogous activities in the future, based upon the propensity and potentiality established from his past. It is irrelevant as to whether such activities were conducted in the territory of India or on foreign land, so long as the subjective satisfaction is correctly arrived at. 73. Accordingly, we find no infirmity on this count as well. NON-PLACEMENT OF VITAL DOCUMENTS 74. Mr. Pradeep Jain has contended that the application seeking the cancellation of bail filed by the department before the CJM, Goa has not been placed from the Detaining Authority and this document was vital document which goes to the root of the decision of the Detaining Authority. 75. It is settled law that the failure to place material and vital facts, which would influence the mind of the Detaining Authority, vitiates the subjective satisfaction having been arrived at. Therefore, any document which may tilt the view of the authority to make or not to make the detention order should be placed by the Sponsoring Autho....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... "20.......... A man is to be detained in the prison based on the subjective satisfaction of the Detaining Authority. Every conceivable material which is relevant and vital which may have a bearing on the issue should be placed before the Detaining Authority. The Sponsoring Authority should not keep it back, based on its interpretation that it would not be of any help to a prospective detenu. The decision is not to be made by the Sponsoring Authority. The law on this subject is well settled; a detention order vitiates if any relevant document is not placed before the Detaining Authority which reasonably could affect it's decision." 31. The preventive detention law is based on suspicion. The Court does not sit in Appeal over the subjective satisfaction reached by the Detaining Authority except where the relevant and vital material has not been considered or extraneous material has been taken into consideration in passing the detention order or similar other matters. ..." (Emphasis Supplied) 77. In the present case, it must be ascertained as to whether the application for cancellation of bail filed before the CJM, Margao, Goa can be said to be a vital document which goes to t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rson's liberty without trial is clearly draconian in nature and should not be taken lightly by any civilized society. It is a necessary evil to be resorted to in the rarest of circumstances. At the same time, the violation of foreign exchange regulations and smuggling activities may tear apart the very economic fabric of the Nation's economy, which has necessitated statutes such as the COFEPOSA Act. [See Dropti Devi (Supra)]. 83. Prior to dealing with the contentions of the parties, we may trace the development of the law upon the subject. In Biram Chand v. State of U.P., (1974) 4 SCC 573, it was held that recourse to both criminal proceedings and passing of a preventive detention order cannot be allowed. This judgment was later overruled by a Constitutional Bench of the Supreme Court in Haradhan Saha (Supra) with the following observations: "32. The power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....] : (WLR p. 518 F-G) " ... The imposition of what is in effect a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily with ordinary concepts of the rule of law." ... 21. It is all very well to say that preventive detention is preventive not punitive. The truth of the matter, though, is that in substance a detention order of one year (or any other period) is a punishment of one year's imprisonment. What difference is it to the detenu whether his imprisonment is called preventive or punitive? 22. Mr Altaf Ahmed, learned Senior Counsel for the respondents, submitted that there are very serious allegations against the detenu of selling expired drugs after removing the original labels and printing fresh labels to make them appear as though they are not expired drugs. 23. In this connection, criminal cases are already going on against the detenu under various provisions of the Penal Code, 1860 as well as under the Drugs and Cosmetics Act, 1940 and if he is found guilty, he will be convicted and given appropriate sentence. In our opinion, the ordinary law of the land was sufficient to deal with this situation, and hence, recourse ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... criminal offence, but the ordinary criminal law (the Penal Code or other penal statutes) will not be able to deal with the situation, then, and only then, can the preventive detention law be taken recourse to. 34. Hence, the observation in SCC para 34 in Haradhan Saha case [(1975) 3 SCC 198 : 1974 SCC (Cri) 816] cannot be regarded as an unqualified statement that in every case where a person is liable to be tried, or is actually being tried, for a crime in a criminal court a detention order can also be passed under a preventive detention law." (Emphasis Supplied) 86. We may also take note of the decision of the Supreme Court in the case of Munagala Yadamma v. State of A.P. and Ors., (2012) 2 SCC 386 wherein the Detaining Authority had passed the order for the reason that "recourse to normal legal procedure would involve more time and would not be an effective deterrent in preventing the detenue from indulging in further prejudicial activities." The Apex Court allowed the appeal and quashed the detention order relying upon the decision in Rekha (Supra) holding as under: "9. No doubt, the offences alleged to have been committed by the appellant are such as to attract punishment ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lackadaisical attitude towards communicating the order, the courts have come to a conclusion that the live link between the order and its execution was „snapped‟ and consequently, the subjective satisfaction having arrived at stood vitiated. 91. In A. Mohammed Farook (Supra), the Supreme Court was dealing with a scenario wherein there was a gap of 40 days in the execution of the detention order and it was contended that all the while the detenue was residing and working in Chennai to the knowledge of the authorities. Since no reasonable explanation was forthcoming from the authorities, the detention order was quashed by the Court. The relevant paragraphs of the opinion read as under: "9. There is a catena of judgments on this topic rendered by this Court wherein this Court emphasised that the detaining authority must explain satisfactorily the inordinate delay in executing the detention order otherwise the subjective satisfaction gets vitiated. Since the law is well settled in this behalf we do not propose to refer to other judgments which were brought to our notice. 10. As indicated earlier the only explanation given by the detaining authority as regards the delay o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... detention order issued but also have the person detained because only then the object and purpose of issuing the detention order is really achieved. It is also contended that there is no satisfactory explanation on behalf of the respondent in this regard. We find no force in the submission of learned counsel for the petitioner. ... 30. No doubt the underlying rule is that once a detention order has been passed every effort is to be made by the Department to ensure service of the detention order on the detenue and in case of unexplained delay, the order is liable to be quashed. The guidelines of the Department are also to the same effect. 31. The only question, which arises in the present case, is whether the Department had taken every possible step to serve the detenue in the shortest period of time or not. The reply explains the steps taken by the Department to serve the petitioner. As the petitioner could not be served in the ordinary way a look out circular was issued on 28.3.2014. The Department took steps under Section 7(1)(b) of the COFEPOSA Act. A copy of the order dated 31.3.2014 was published in the official gazette. A publication was carried out in the local newspaper....
X X X X Extracts X X X X
X X X X Extracts X X X X
....detention order after it has been issued. Simultaneously, they should keep detailed records of the efforts made for execution of the Detention order from time to time, as it would be important to convince the Advisory Board/Hon'ble High Courts, if need arises......" (Emphasis Supplied) 33. The detention order is passed as a preventive measure and therefore, its purpose is defeated if the detenue is not detained at the earliest possible opportunity after the alleged act. The actions of the respondents should display a sense of urgency in the matter of passing of, and execution of the detention order, if the preventive detention is to be justified. In the present case, the entire exercise undertaken by the respondents appears to be rather casual and cavalier." (Emphasis Supplied) 94. A reference to the Letters bearing No. F.No.671/6/2001-Cus.VIII dated 12.07.2001 and bearing No. F.No. 702/MAD/S/33/2006-Cus.IX dated 21.02.2007 mentioned in Smitha Dey Bhattacharya (Supra) and Manish Gadodia (Supra) respectively issued by the Ministry of Finance, Government of India shows that the Government itself has directed prompt communication of the detention order. Our attention is direct....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the detenue continued to perform his duties upto 13.7.2015. Thus, in our view, the order of detention is liable to be quashed as there is unexplained delay in execution of the impugned detention order." (Emphasis Supplied) 96. Accordingly, the present case is also to be decided upon the touchstone of the well-settled law. The contention of the learned counsel for the petitioner is that there was a delay of 80 days in execution of the detention order when it was clearly within the knowledge of the authorities that the detenue was residing at his native place at Bhatkal, North Kannada, Karnataka. While the stand of the respondents remains that there was no delay on the part of the authorities in executing the order and the authorities were all along seized in the matter. As per procedure, the order was sent by the Sponsoring Authority to the Executing Authority, being the senior-most police officer of the State where the proposed detenue was to be detained, i.e. Goa. 97. In the Counter Affidavit, the State has detailed the steps taken by it in a chronochological manner. We deem it appropriate to reproduce it in its entirety below: "GROUND F: ... Copy of the Chronological Chart ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....made to the Office of the SP (North Goa) to enquire about the status of execution. 15 06.07.2016 Ministry asked for the Action Taken Report both from the Sponsoring Authority as well as from the Executing Authority 16 14.07.2016 Comprehensive Action taken Report sent to the Director (COFEPOSA) CEIB New Delhi, marked as "Annexure D-4" 17 25.04.2015 Apart from these, the department had already filed Criminal Misc Application before Hon‟ble Chief Judicial Magistrate, Margao for the cancellation of bail granted to the accused on 25.04.2016, on the request of the defense advocate next date of hearing was fixed on 05.05.2016. 18 05.05.2016 On the request of the defense advocate next date of hearing was fixed on 01.06.2016. 19 01.06.2016. Case was adjourned to 22.06.2019 20 22.06.2019 Case was adjourned to 22.06.2019 21 13.07.2016 Departmental Officer attended the Court hearing i/r of cancellation of Bail of Shri Ateef Damda Fakki filed by the Department. The Court ordered to keep the case in abeyance in view of COFEPOSA detention order. 22 28.07.2016 & 05.08.2016 Action under section 7(1)(b) of the COFEPOSA Act were initiated agains....