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Bombay High CourtIndian Cases

Mhoamed Aslam Musliya vs The State Of Maharashtra And Ors. on 4 September 1996

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Bombay High Court
Mhoamed Aslam Musliya vs The State Of Maharashtra And Ors. on 4 September, 1996
Author: Vishnu Sahai
Bench: Vishnu Sahai

Vishnu Sahai, J.

1. By means of this petition preferred under Article 226 of the Constituion of India, the petitioner, who is the brother of the detenue Fazlur Rehman, has impugned the detention order dated 30th January, 1995 passed by respondent No. 2, in exercise of powers vested in him under sub-section (1) of section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974), read with Government Order, Home Department (Special) No. SPL.-3(A)/P.S.A./1094/I, dated 16th May, 1994. The said Act is herinafter referred to as the ‘COFEPOSA ACT’.

2. The prejudicial activities of the detenue are contained in the grounds of detention which were served on the detenue on 15-10-1995.

The grounds of detention briefly read thus:

On 15-6-1994, officers of Customs Air Intelligence Unit, intercepted a passenger named Ahmed Abdulla in the arrival hall, Modulla II, N.I.P.T., Sahar Airport, Bombay. Abdulla was alleged to be holding Indian passport issued in Bombay, and also an Air India ticket and some articles. He stated that he arrived by Air India Flight No. AI 834. He made a declaration of his baggage of goods worth Rs. 11,500/- to the officer at the counter. The Customs Intelligence officers screened his four pieces of baggage and noticed some dark patches in a card board carton. Immediately, to panchas were called and in their presence Ahmed Abdulla was asked whether he was carrying contraband like gold in his baggage to which he replied in the negative. Thereafter, the Customs Officers opened card board carton and saw three dark patches in the emergency lights which were contained in it. Again, they asked him whether he had concealed any contraband in the emergency lights to which once again he replied in the negative. Not being satisfied, the Customs Officers unscrewed the three emergency lights and cut open the battery packs and pursuant thereto, recovered 31 gold bars of foreign origin of ten tolas each.
In the presence of the panchas, Ahmed Abdulla was asked about the emergency lights and he stated that one Aziz of Muscat had handed them over to him and had asked him to hand over the same to his (Aziz’s) contact-man outside the Bombay Airport after clearing himself through the Customs. Thereupon, Ahmed Abdulla was escorted along with panchas outside the airport where two persons were waiting. the said two persons were asked to give their names and they gave out their names as Ibrahim Ali and Mohd. Malik. In the presence of the panchas, the Custom Officers took search of Ahmed Abdulla and recovered one gold bar of 5 tolas of foreign origin, one yellow coloured telephone diary with one envelope containing letter in Malayalam language having name of “Fazal” (detenue). Telephone number was also mentioned in the said letter. The said officers also recovered one ’50’ U.S. $ Note from Abdulla. The said recoveries were made under a panchanama by the Custom Officers under a bonafide belief that the contraband was smuggled into India and hence liable for confiscation under the Customs Act, 1962.
Ibrahim Ali and Mohd. Malik, the two contactmen of Aziz, whom Abdulla was to give contraband, were questioned by the Customs Officers as to how they were to recognise Ahmed Abdulla. They replied that identification marking was on the baggage; the marking being “AA MCT-BOM”.
On 16-6-1994, statements of Mohd. Malik and Ibrahim Ali were recorded under section 108 of the Customs Act, wherein inter alia they stated that they had come to Airport under the instructions of the detenue, who was staying in a guest house at Nishan Pada Road. The Intelligence Officers went to Nishan Pada Road and apprehended the detenue, on 17-6-1994. On the same day, the detenue and others were produced before the Chief Metropolitan Magistrate, Bombay. On 1-7-1994, the Chief Metropolitan Magistrate, Bombay, granted them bail, but the bail amount was excessive and therefore, the same was reduced later on.
Ahmed Abdulla in his statement under section 108 of the Customs Act, stated that he had gone to Muscat in 1989 and travelled on Indian passport issued in Bombay. He stated that at Muscat he was working in a small hotel at Kasab. He further stated that he had come to India in June 1991 and again on 3-12-1991 had gone to Muscat and again after staying for 31/2 years there, had come back to India on 15-6-1994. In the said statement, he further stated that a friend by the name of Abdulla was also working with him in the same hotel suggested that in Muscat he could stay with his friend Abdul Aziz. On 10-6-1994, he had gone to Abdul Aziz’z place and stayed with him for four days. During his stay in Muscat he purchased a ticket for Bombay and told Aziz that he would be going to Bombay to meet his family. Aziz asked Ahmed Abdulla to take some of his goods to Bombay and deliver the same to two boys (Mohd. Malik and Ibrahim) who would come to the Bombay Airport. Aziz had told him that he had to carry three emergency lights and some other articles.
In his statement under section 108 of the Customs Act, Ahmed Abdulla further stated that on 15-6-1994, he came to Bombay Airport by Air-India Flight No. AI-834. After collecting his baggage consisting of suit case and some cartons, he proceeded towards the Green Channel, but was diverted to the Red Channel since he was having a bulky baggage. He declared goods worth Rs. 11,500/- including one VCR, three emergency lights and some other goods. At the time of making such declaration, Custom Officers came there and screened his baggage. Thereafter, as stated above, contraband gold was recovered.
On 16-6-1994 statement of the detenue was recorded under section 108 of the Customs Act, wherein he stated that he came to Bombay from his native place Kasargod and started staying in Room No. 89, 2nd floor, 229, Nishanpada road Khedak, Bombay-9. The detenue also stated that Telephone No. 3716045 was installed in his room by his brother Aziz who was staying at Muscat. He stated that telephone number of his brother at Muscat was 787645 and his brother used to contact him on phone and give information in detail about the passengers coming from Muscat. He further stated that either he used to go to Airport or send Mohamed Malik and brahim to receive the passengers and take the consignments of the contraband.
In his statement, the detenue also stated that Abdulla, Rafiq Latheef and Prakash were the three contact-men of his brother Aziz.
It may also be stated that Mohd. Malik and Ibrahim in their statements under section 108 of the Customs Act stated that on 5/6 occasions earlier, they had come to the Airport at the instance of the detenue and received the passengers arriving from Muscat and had taken them to him.
3. That on account of the facts mentioned in the preceding paragraph, respondent No. 2 was subjectively satisfied that in order to curb prejudicial activities of the detenue in future, it was imperative to detain him under section 3(1) of the COFEPOSA Act.

4. We have heard Mr. Suleman for the petitioner, Mr. R.L. Patil, Additional Public Prosecutor for respondents Nos. 1, 2, 4 and 5 and Mr. R.M. Agarwal for respondent No. 3.

Mr. Suleman assailed the impugned detention order on four grounds, namely:

i) delay in issuing the detention order.
ii) delay in executing the detention order.
iii) delay in consideration on the part of the Central Government of the detenue’s representation addressed to it; and
iv) illegible documents which hampered the detenue’s right of making an effective representation.
5. We have examined the grounds of challenge raised by Mr. Suleman and we are constrained to observe that for the reasons stated hereinafter, we find no substance in them.

We would first take up the first Ground viz. delay in issuing detention order. Mr. Suleman pointed out that although the contraband was seized on 15-6-1994, but the detention order was issued after 71/2 months, on 30-1-1995. The said ground has been pleaded as Ground No. 4(i) in the petition. The ground in substance is that on account of the time-lag of 71/2 months between the seizure of contraband and issuance of the detention order the livelink between the alleged prejudicial activity and the rationale for clamping a preventive detention order on the detenue has been snapped vitiating the detention order. In support of his submission, Mr. Suleman invited our attention to a decision of the Apex Court Pradeep Nilkanth Paturkar v. Shri S. Ramamurthi and others. We have gone through the said decision cited by Mr. Suleman. In the said decision, the Apex Court in para 4 has considered the material justifying clamping of detention order and thereafter proceeded to examine the question whether delay was fatal or not. In the said decision, the Apex Court has also made reference to the earlier decisions T.A. Abdul Rehman v. State of Kerala and Hemalata Kantilal Shah v. State of Maharashtra.

6. As we understand the ratio culled out in (supra) and in other decisions of the Supreme Court, including the (supra) is that no mathematical time limit for issuing a detention order having universal application to all cases can be fixed. What has to be examined by the Court in every case is as to whether on account of delay in the issuance of the detention order the livelink between the prejudicial activities and the rationale for clamping a detention order on the detenue has been severed or not. If the answer to this question in a given case is in the affirmative, the detention order would be vitiated; if it is in the negative the detention order would be legally sustainable. In (supra) it has been mentioned that delay ipso facto is not fatal and when there is delay it should be examined by the detaining authority.

7. The ground of delay in issuing the detention order has been replied to in paragraph 6 of the return filed by Mr. M.K. Mada, Joint Secretary to the Government of Maharashtra, Home Department (Spl.) Mantralaya, Bombay. In the said paragraph, it has been stated that the Detaining Authority had asked for some additional information which was received on 15-9-1995 and then, after carefully scrutinising the proposal and minutely scrutinising the documents the detaining authority formulated draft grounds of detention on 13-1-1995. We make no bones in the matter that we are not prepared to swallow that the detaining authority took four months merely for scrutinising the documents and formulating the grounds of detention. There has been a definite delay on his part in issuing the detention order which has not been satisfactorily explained in the return of Mr. M.K. Mada who has filed the same because the detaining authority had been transferred.

8. The question is as to whether this delay simplicitor in the issuing of the detention order is fatal or not? Our answer is in the negative. We are fortified in our view by the observations made by the Apex Court in paragraph 10 in the cases of Rajendra Kumar v. The State of Gujarat, which read thus:

“It has been laid down by this Court in series of decisions that the rule as to unexplained delay in taking action is not inflexible. Quite obviously, in cases of mere delay in making an order of detention under a law like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence have been posing a serious threat to the economy and thereby to the security of the nation, the courts should not merely on account of delay in making of an order of detention assume that such delay, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. Taking of such a view would not be warranted unless the Court finds that the grounds are ‘stale’ or illusory or that there is not real nexus between the grounds and the impugned order of detention.”
As observed by us in para 6 the crucial question is as to whether on account of delay the livelink between the prejudicial activities and the rationale for clamping a detention order has been snapped. In the instant case, the answer is in the negative.

The Apex Court has held whether such livelink in a given case is snapped or not would depend upon the propensity and potentiality of the detenue. The proposition in our judgment is far too well settled to require elucidation by way of authorities. But if one is required it is that Abdul Salam v. Union of India, wherein in paragraph 14 the Apex Court observed thus:

“That apart, we are unable to agree with the learned Counsel that because of this delay the necessary nexus got severed and that the grounds have become stale and illusory. In appreciating such a contention, the Court also has to bear in mind the nature of the prejudicial activities indulged by the detenue and the likelihood of his repeating the same. It is this potentiality in him that has to be taken into consideration and if the detaining authority is satisfied on the available material then on mere delay as long as it is not highly unreasonable and undue the Court should not normally strike down the detention on that ground.”
In the grounds of detention (they have been exhaustively set out by us in paragraph 2) it has been mentioned in paragraph 18 that Ibrahim Ali and Mohamed Malik in their statements under section 108 of the Customs Act, stated that at the instance of the detenue on 5 to 6 earlier occasions they had gone to the Airport received passengers and had taken them to the detenue. The said statements show that the detenue was not involved in an sporadic act of smuggling of contraband but he was an old hand. In our view his propensity and potentiality was so firmly entrenched that on account of a mere delay of seven and half months on the part of the detaining authority in issuing the detention order, the livelink between his prejudicial activities and the rationale of clamping a detention order on him would not be snapped. In this connection it would be pertinent to refer to the decision of the Apex Court in the case of Olia Manek v. The State of West Bengal, . In that case, the detenue was the member of a gang which was systematically entrenched in cutting aluminium wires etc. and the detention order which was clamped on him after five months was affirmed. The Apex Court held that the subjective satisfaction of the District Magistrate, who was detaining authority in that case, was not vitiated, on the ground of delay in issuing the detention order.

Consequently, the first ground canvassed by Mr. Suleman fails.

9. We would now take up the second ground urged by Mr. Suleman viz., the delay in execution of the detention order. Mr. Suleman contended that although the detention order was formulated on 30th January, 1995 it was served on the detenue as late as 15-10-1995 and this delay in execution vitiates the detention order. We regret that we do not find any merit in the said contention. Delay in execution of the detention order on the detenue, has been plausibly explained in the return filed by Mr. R.B. Dange, Police Inspector, attached to P.C.B., C.I.D., Bombay. In paras 2 to 15 of his return he has elaborately spelt out the reasons for the delay in execution of the detention order. In the said paragraphs it has been mentioned that the detenue is resident of Kasargod in Kerala and his endeavour to execute the detention order on him on various dates there proved futile. In the said paragraphs Inspector Dange stated that since the detenue was not available at his native place, the detention order could not be served on him. In this connection, another return has been filed by Mr. M.P. Sendo, Assistant Commissioner of Customs, COFEFOSA Cell, Sahar Airport, Bombay. In paragraph 3 of the said return, it is stated that the officers of sponsoring authority visited the detenue’s place of residence in Bombay but could not find the detenue at his Bombay address they made an application for cancellation of his bail on 2-5-1995 and on 8-6-1995, the learned Magistrate issued non-bailable warrants for arrest against the detenue as a sequel to the cancellation of his bail. The said warrant was sent to Kasargod, in Kerala, of which place, the detenue was a permanent resident. However, the warrant returned back on 28-8-1995 as unserved. It is also mentioned in the return of Mr. Sendo that on 15-10-1995 the detenue surrendered and then the order of detention came to be served on him.

From a perusal of both the affidavits, we are squarely satisfied that the delay in the execution of the detention order was not on account of any latches on the part of the concerned authorities but on account of the conduct of the detenue who had absconded. It is well settled that the law would not allow a person to take advantage of his own wrongs. If we were to accept Mr. Suleman’s contention would be bidding good-bye to this norms it would almost tantamount to judicial abetment of abscondance; and would be giving premium to abscondance.

For the said reasons, the second submission of Mr. Suleman also fails.

10. We now take up the 3rd contention of Mr. Suleman viz. delay on the part of the Central Government in considering the representation forwarded by the detenue to it. We are constrained to observe that this ground has not been pleaded in the petition. Instead, what has been pleaded in paragraph 4(X) of the petition is that the detenue is making a representation. There is nothing in the petition to indicate that the detenue did make a representation. In such a situation, when it is not certain whether the detenue did make a representation, the submission of Mr. Suleman is misconceived and we accordingly reject it.

11. Now we take up the last ground which has been pleaded by Mr. Suleman in para 4(v) namely, that the documents at pages 56, 57, 58, 59, 61, 62, 64, 72, 73, 75, 77, 78, 79,80, 81, 82, and 83 of the compilation are illegible and consequently, the detenue was hampered in exercise of his right of making a effective representation conferred on him by Article 22(5) of the Constitution of India We have perused the said documents. We have no hesitation in observing that none of them are material documents. The law is that if material documents i.e documents which have a bearing on the detenue’s right of making a representation are illegible, would his right of making an effective representation under Article 22(5) of the Consititution of India be infringed. The said documents do not fall in that category.

We feel constrained to point out that some of the documents which have been castigated in the said grounds as being illegible were found by us to be legible, when we perused them.

For the said reasons we find no merit in the submission of Mr. Suleman either.

12. Pursuant to the aforesaid discussion we are squarely satisfied that the impugned detention order does not suffer from any infirmity which vitiates the same in law. Accordingly, this petition is dismissed. Rule is discharged.

In case an application for certified copy of this judgment is made, the same shall be issued on an expedited basis.