By TIOL News Service

MUMBAI, FEB 03, 2016: THE Petitioner, wife of the detenu, challenges an order (on the ground of delay) of detention under the COFEPOSA passed on 17th July 2015 and served on the detenu on 4th August 2015.

The facts: By Air India Flight AI-964, the detenu arrived in Mumbai from Hyderabad on 23rd September 2014. After clearing immigration, one Ms. Shahin was intercepted by the Officers of the Air Intelligence Unit. She was subjected to a personal search in the presence of a gazetted officer and two independent panchas. The search yielded the recovery of a packet wrapped in transparent cello-tape from an artificial cavity pocket that was stitched around the waist of her blue jeans of the brand 'Joe FRESH'. When the transparent cello tape was detached from the packet, 19 bars of gold of 250 grams each were recovered. These had foreign markings. On questioning and enquiry, the lady revealed that she had gone to Hyderabad from Mumbai on an early morning Jet Airways flight along with the detenu and his wife Farida (the present Petitioner) and a co-passenger, one Ms. Shabana. On their return on the same day by the Air India flight, the packet was handed over to her by an unknown person in the flight who was already seated as a transit passenger from Jeddah to Mumbai via Hyderabad. She received the packet on the detenu's instructions. The monetary consideration and other matters are then detailed in the grounds of detention together with value of the contraband.

The petitioner mentions the following about the ground of delay -

+ On or about 23.09.2014, the gold bars were seized from two ladies Shahin Patel and Shabana Shaikh. The detenu was arrested by the officer A.I.U. on 13.02.2015 and was granted bail on 01.04.2015. The statement of the detenu were recorded on 13.02.2015.

+ The impugned order of detention was belatedly and leisurely issued on 17.07.2015 after a period of 10 months from the investigation in the matter and after 5 months from the date when the detenu has given inculpatory statement.

+ The Petitioner says and submits that the impugned order of detention issued after 10 months is after inordinate and inexcusable delay.

+ The Petitioner says and submits that the detenu not having come to the adverse notice of the officer of A.I.O. or any other authorities during the said interregnum period when he was granted bail and when impugned order of detention was issued and as a result the live link having been snapped and the credible chain, if any, has been broken.

+ The Petitioner says and submits that the impugned order of detention is stale and remote in point of time. In the result, the impugned order of detention is malafide null and void."

The Detaining Authority in the Affidavit in Reply (which the High Court observed as 'makes interesting reading') stated that there is "only a delay of three months and four days" between the date of receipt of the proposal and the order of detention.

The High Court observed that it was satisfied that the order of detention is vitiated by an enormous and unexplained delay.

The High Court added -

++ If these authorities are indeed sincere about apprehending smugglers, checking smuggling and taking further steps to prevent its perpetuation, then they ought to have paid heed to the repeated warnings of the country's highest Court. Instead, we are deeply troubled to see absolutely no change in their approach.

++ The time consumed for scrutiny, evaluation and a detailed analysis of proposals received from the Sponsoring Authority should not be so much as would enable the live link to be snapped, the credible chain broken and the very purpose of the detention proposed itself defeated. After the detenu was enlarged on bail on 1st April 2015, if the detaining authority on receipt of the proposal on 15th April 2015 does not issue the detention order till 17th July 2015, then we have no alternative but to record our satisfaction that there is indeed a long and unexplained delay sufficient to conclude that the live link is snapped.

++ We do not believe these explanations are satisfactory, nor are we persuaded to hold that there is no delay or that such delay as exists is trivial. The very fact that there is an order of preventive detention under a statute like COFEPOSA necessarily implies a situation of more than common urgency. This is, after all, a matter of deprivation of personal liberty. The law and our Constitutional framework demand that actions that curtail personal liberty must be taken swiftly and accurately. There is no margin for error or tardiness. The public at large expects from these officers that they will control and some day would be able to totally stop the smuggling activities.

++ The detaining authority is required, as a matter of Constitutional law, to ensure that the live link is not snapped, the credible chain not broken.

++ It is not some arcane legal principle meant to obstruct administration or executive action. It is a judicial principle that is held to be cardinal and essential to our survival as a body politic, firmly rooted in our Constitutional mandate, and in Article 21, the fundamental right to life and personal liberty. These are not rights that are specially created or given to smugglers and drug runners and criminals. They are rights intended for the protection of us all.

Holding that the detention order is vitiated by a delay of three months and four days, the same was quashed and set aside. The detenu was ordered to be released forthwith.

(See 2016-TIOL-197-HC-MUM-COFEPOSA)