K. Narayana Kurup, J. 1. The prayer in this Original Petition is for the issuance of a writ of certiorari quashing Ext. R2(a) Preventive Detention Order passed by the 2nd respondent Commissioner and Secretary to Government (Home), Trivandrum against the petitioner under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short 'the Act'). Ext. R2(a) order is under challenge in this Original Petition on various grounds. At the admission stage Mr. T.P. Kelu Nambiar, learned Senior Advocate and the learned Additional Advocate General entered appearance for the petitioner and State respectively and the O.P. itself was heard at length. Though it is mentioned in the statement dated 10-3-1998 filed on behalf of the 2nd respondent that "the 2nd respondent craves leave to file a detailed counter-affidavit in due course", neither any leave was sought after filing the statement nor any affidavit filed till date.
2. From the statement of facts of the Original Petition and from a scrutiny of the files produced by the Additional Advocate General, it can be seen that the order of detention is passed based on three incidents. The first incident took place on 16-11-1991 in which Indian Currency to the tune of Rs. 9.5 lakhs was seized from the petitioner by the 4th respondent, the Superintendent of Central Excise & Customs, Kozhikode Airport Special Squad who is impleaded herein in his personal capacity. According to the petitioner, the money is the sale proceeds of air tickets sold and due from various customers of M/s. Jeddah Travels in which he is employed as a Collecting Agent, to be handed over to M/s. Air Travel Enterprises (K) Pvt. Ltd., Kozhikode. In spite of the fact that the petitioner had given the names of persons from whom the amount was collected including the copies of their passports, the 4th respondent was stubborn and obstinate in his stand that the currency was the sale proceeds of smuggled goods. Ext. P5 is the claim petition preferred by the petitioner for the release of the amount seized which is the subject matterof O.R. 39/91 charged against him by the 4th respondent. While so, Ext. P6 notice to show cause as to why the Indian Currency of Rs. 9.5 lakhs shall not be confiscated under Section 121 of the Customs Act, 1962 was issued to the petitioner by the Collector of Central Excise and Customs, Kochi to which the petitioner gave Ext. P7 reply reiterating his stand mentioned above. After hearing parties, the Deputy Collector (Customs) passed Ext. P8 order directing confiscation of currency under Section 121 of the Customs Act. However, in appeal, the Collector (Appeals) as per Ext. P9 order reversed Ext. P8 directing to release the amount ordered to be confiscated to the petitioner. The Collector (Appeals) did not place any reliance on the statement made by the petitioner as it was found to be made out of duress and uncorroborated and the statements themselves have been retracted. The findings of the Collector (Appeals) in this regard is as follows :
In short the whole case has been built up on the statement of 3 persons namely Shri Mohammed Ali Haji, Shri Abdul Nazar and Shri Ali Mohammed. All the three statements have been retracted at the earliest opportunity. No evidence to corroborate the confession statement has been brought on record. Both Shri Mohammed Ali Haji and Ali Mohammed have furnished an explanation that the currency belonged to M/s. Jeddan Travels and it was being taken for payment at Air Travel Enterprises. No investigation was conducted regarding the veracity of this claim. Shri A.C. Rayin, the alleged recipient of the currency and the persons who alleged to have supplied the gold denied any connection with the currency or the gold. No investigation was conducted to find the correctness of Shri A.C. Rayin's statement. No attempt has been made to implicate Shri A.C. Rayin in the alleged smuggling and sale of smuggled gold. In view of these circumstances, I am convinced that the investigation has failed to prove the allegation against the appellant. A case of smuggling cannot be built up merely on the admission statement of three accused without any corroborative evidence especially when the admission statement themselves have been retracted. Under these circumstances, I hold that there is no evidence to prove that the currency was the sale proceeds of gold or that the appellant has rendered himself liable to penalty under Section 112(a) of the Customs Act. I, therefore, set aside the order of the original authority and direct that the currency should be released to the appellant.
In the absence of appeal, Ext. P9 has become final.
3. The second incident relates to the seizure of foreign currency worth Rs. 18.6 lakhs at the Trivandrum Airport on 27-1-1993 from one Muhammed Nazeer. According to the petitioner, there is absolutely no nexus between him and the seizure. The only link with the seizure is a jeep of which the petitioner is the registered owner. The absence of nexus and explanation for not transferring the registration of the jeep which was sold long back is stated in paras 13,14 and ground 'H' of the O.P. which is extracted below :
13...The seizure was on 27-1-1993. From the statement from the above said persons, Department found that the said Moothali and other persons involved in the case were using one Maheendra Jeep bearing No. KL-10 A/6143. The said Moothali and Mohammed Nazeer were arrested on 28-1-1993 by the Senior Intelligence Officer, DRT, Trivandrum. In the statement of Moothali, he admitted that the owner of the Jeep are himself, one Akbar and one Siddique. But Registration Certificate of the said jeep stood in the name of the petitioner. Only for the reason that the Registration Certificate of the jeep stand in the name of the petitioner he was also implicated in currency smuggling case by the Department. As submitted earlier, the petitioner is having business dealings of vehicles also. The petitioner originally purchased the said jeep in his name after obtaining a loan of Rs. 1,25,000/- from M/s. Sarala Kumari, 52/1, Erulappan Street, Madras-79, a private vehicle financing agency and the vehicle was under hypothecation with the financier. Later, as per an agreement dated 4-1-1993 the jeep was sold to the said P. Moothali. The petitioner received the sale consideration in instalments. The Registration Certificate could not be transferred to Moothali's name, due to the hypothecation. In fact, the petitioner had no interest on the jeep from 4-1-1993 and the said Moothali was in absolute possession and he is the absolute owner of the jeep.
14. Only for the reason that the Registration Certificate stood in the name of the petitioner and due to the influence and interference of the 4th respondent, the petitioner was also implicated in the case.
H. There is no nexus or connection between the incident of seizing foreign currency on 27-1-1993 from the person named Mohammed Nazeer from Trivandrum Airport and. the petitioner. Only for the reason that the person who has given the foreign currency to the said Mohammed Nazeer has been using a jeep of which the petitioner was a registered owner, the petitioner was implicated in the said crime. The jeep was sold for consideration to P. Moothally and in the claim statement filed by said Moothally before the Deputy Collector of Customs, it has been clearly stated that he and two others are present owners of the jeep and the jeep has been released to him for interim custody also. It is submitted that the Senior Intelligence Officer of the Department of Revenue Intelligence, Trivandrum had manhandled the petitioner at his house aided by some of the accused in Exhibit PI FIR and kidnapped the petitioner and tried to molest the petitioner's wife also. For that incident Exhibit P4 FIR is registered and the criminal case is pending. So it can be seen that the officers attached to the Customs Office at Calicut under the leadership of the 4th respondent and the officers in Department of Revenue Intelligence at Trivandrum are having personal grudge towards the petitioner. It is also relevant to note that on a complaint by the Director of Revenue Intelligence a criminal case has been filed against the petitioner for interfering with the working of the officers of the Department. So the incident on 27-1-1993 cannot be treated as ground for passing preventive detention order against the petitioner.
4. The third incident relates to seizure of a briefcase containing foreign currency worth Rs. 1.03 crores at Kozhikode Airport on 11-9-1995. Here again there is absolutely nothing to show that the petitioner is involved in the smuggling of foreign currency which was seized. He has a further case that he has been falsely implicated in the above incidents, out of animosity and vengeance harboured against him by the 4th respondent on account of filing a criminal case against him by the petitioner as Crime No. 168/1992 of Manjeri Police Station dated 10-4-1992 vide Ext. PI FIR before the Judicial First Class Magistrate's Court, Manjeri. Ext. P4 is another FIR in Crime No. 18993 of Manjeri Police Station preferred by the petitioner against the high handed actions of the subordinates of the 4th respondent. However, it is not the domain of this Court to sit in appeal over the detention order which has a subjective element or to assess the probative value of the evidence available to the detaining authority while considering a writ petition of the warrantee. At the same time, this Court cannot ignore the settled legal position that a detention order not supported by evidence is liable to be quashed. However, I am not embarking on an enquiry on the above lines as according to me the detention order evidenced by Ext. R2(a) is liable to be quashed on other grounds.
5. Ext. R2(a) order of detention passed on 23-1-1996 still remains unexecuted. From the files produced by the Additional Advocate General, I find that even though the detention order was passed by the 2nd respondent as early as on 23-1-1996 and the third respondent, Superintendent of Police, Malappuram was addressed on the same day itself for the immediate execution of the detention order (page 61 of the file), no action is seen taken by the third respondent upto 13-2-1996 to execute the order of detention in spite of the fact that he received the detention order on 27-1-1996 and passed on the same to the Deputy Superintendent of Police, Malappuram on the same date (page 79 of the file). Even a communication is seen addressed by the 3rd respondent to the 2nd respondent detaining authority only as late as 15-4-1996, long after the detention order was passed enclosing a pro forma statement of calendar action taken to apprehend the petitioner. The proforma endorsement dated 15-4-1996 shows that the petitioner is absconding. Further letter of the 3rd respondent dated 15-5-1996 addressed to the 2nd respondent says that enquiries made on 13-2-1996 onwards have revealed that the petitioner is "now somewhere in Gulf countries and his present address could not be located". There is no explanation as to why the detention order could not be executed between 23-1-1996 and 13-2-1996 (a period of 21 days) and why apart from performing casual and perfunctory "look-out for the culprits", no serious attempt was made to apprehend the petitioner immediately after the order of detention was passed on 23-1-1996. The lukewarm attitude with which the entire matter was handled by the respondents is clear from the fact that after communicating the detention order by the 2nd respondent to the 3rd respondent on 23-1-1996, no follow-up action is seen taken in this regard by the 2nd respondent till 26-4-1996 viz; three months after passing of the order of detention on which date the 3rd respondent was requested to report specifically whether the petitioner is still absconding to evade the arrest. From this, it is clear that the 2nd respondent detaining authority himself had not made any serious follow-up action with the police to ascertain why they were not able to apprehend the petitioner. A.T.P. message is seen addressed by the 2nd respondent to the 3rd respondent on 23-5-1996 requesting the latter to report specifically whether the warrantee is still absconding to evade arrest for taking further action under Section 7(1) of the Act in regard to absconding persons. Had the 2nd respondent been serious about the matter one would expect him to act more diligently by taking appropriate follow-up action in time. Here, the detention order was passed on 23-1-1996. It was leisurely and casually communicated to the 3rd respondent who received it on 27-1-1996 by post. Thereafter, there was a deep slumber and hibernation by the 2nd respondent. He did not take any pains to see as to what happened to the detention order. He could have alerted the 3rd respondent about the need for the immediate execution of the detention order. Instead things were taken very lightly. He woke up only on 26-4-1996 to call for a report from the second respondent specifically whether the warrantee is absconding followed by another communication dated 23-5-1996 to the 2nd respondent to report specifically whether the warrantee is still absconding to evade arrest as already noticed. The role of the 3rd respondent is no less different. Admittedly, he received the detention order on 27-1-1996 with a covering letter from the 2nd respondent to arrange for the immediate execution of the detention order. Had he displayed a sense of urgency which the situation warrants he could have nabbed the culprit on 27-1-1996 itself or within the next couple of days. Instead he also adopted a 'take it easy' approach thereby enabling the warrantee to flee from the arms of law. There is no explanation as to why the petitioner who resides within the tiny District of Malappuram, a heart beat away from the police could not be apprehended between 27-1-1996 and 13-2-1996. Details of calendar action was reported to the 2nd respondent only on 15-4-1996 followed by further communication on 15-5-1996 and 27-5-1996. The Apex Court dealing with a similar situation in S.M.F. Sultan Abdul Kader v. It. Secretary to Government of India 1998 (4) JT (SC) 457 held that the failure of the detaining authority to explain the delay therein between 14-3-1996 (the date on which the detention order was passed) and 25-4-1996 (the date on which the police tried to apprehend the warrantee) is fatal to the detention order. For a better appreciation of facts, the material portion of the judgment is extracted below :
2. It is not necessary to state the facts leading to the passing of the detention order as we are inclined to allow this petition on the second ground raised by Mr. K.K. Mani, learned counsel for the petitioner. The order of detention was passed on 14-3-1996. The petitioner came to be detained on 7-8-1997. The contention raised by Mr. Mani is that there was undue delay in execution of the order and that clearly indicates that there was no genuine satisfaction on the part of the detaining authority regarding the necessity of immediate detention of the petitioner in order to prevent him from committing and continuing to commit the prejudicial activity alleged against him. In reply to this contention raised by the petitioner what the detaining authority has stated in the counter-affidavit is that the detention order could not be executed immediately as the petitioner was absconding. In paragraph 12 of the counter-affidavit filed by the Joint Secretary to the Government of India it is stated as under :
Continuous efforts were made by the State Police of the following dates to apprehend the detenue -
25-4-1996, 20-5-1996, 30-6-1996, 23-7-1996, 28-8-1996, 24-9-1996, 15-10-1996, 26-11-1996, 18-12-1996, 20-12-1996, 17-1-1997, 27-2-1997, 26-3-97, 24-4-97,29-5-97, 29-6-97, 25-7-97 and 7-8-97.
But for the sustained efforts by the police authorities at Nagore, he would not have been apprehended now.
3. The Joint Secretary has not explained why no attempt was made from 14-3-1996 to 25-4-1996 to apprehend the detenue and put him under detention even though the detention order was passed on 14-3-96. It further appears that no attempt was made to see that the petitioner was immediately apprehended. No serious efforts were made by the Police authorities to apprehend the detenue. Only once in a month the police had tried to find out the petitioner. It is also not stated where they looked for him and what inquiries were made to find out his whereabouts. The Joint Secretary himself had made no effort to find out from the Police authority as to why they were not able to apprehend the petitioner. No material has been produced on the basis of which it can be said that the Police authorities had made reasonable efforts to locate the petitioner and apprehend him and yet they were not successful in finding him out. There is also no material to show that the detaining authority had made any serious attempt during this whole period of delay to him out if the detention order was executed or not. Thus, the delay in execution of the detention order remains unexplained. The unreasonable delay in executing the order creates a serious doubt regarding the genuineness of the detaining authority as regards the immediate necessity of detaining the petitioner in order to prevent him from carrying on the prejudicial activity referred to in the grounds of detention. We are of the opinion that the order of detention was passed by the detaining authority not in lawful exercise of the power vested in him. We, therefore, allow this petition, set aside and quash the order of detention and direct that the petitioner be set at liberty forthwith unless his presence is required in jail in connection with any other case.
Therefore, I am satisfied that the delay in execution of the detention order casts a serious doubt regarding the bona fides of the detaining authority as regards the immediate necessity of detaining the petitioner in order to prevent him from carrying on the prejudicial activity referred to in Ext. R2(a) viz; abetting the smuggling of goods rendering the same liable to be quashed. The State and its officers having enabled the petitioner to make good his escape by not taking effective action in time to apprehend him cannot now turn round and say that he could not be arrested because of his absconding.
6. There is yet another reason why the detention order cannot be legally sustained. The specific case set up in the memorandum of Original Petition is that the petitioner has been falsely implicated in the case by the 4th respondent out. of mala fide intent. The 4th respondent had registered a case against, the petitioner and two others as O.R. No, 39/91 in connection with the first incident in which the petitioner was severely beaten up by the 4th respondent and his men, as a result of which he was admitted in the District Hospital, Manjeri on 10-4-1992. On getting information from the District Hospital, Manjeri, a Police Constable attached to the Manjeri Police Station came to the hospital and recorded the statement of the petitioner and on the basis of the same a crime was registered as Crime No. 168/1992 of Manjeri Police Station under Sections 323, 326 (added on further investigation), 329 and 337 read with Section 34 of the Indian Penal Code. The 4th respondent is the first accused in Crime No. 168/92 as evidenced by Ext PI FIR as already noted. There is another FIR in which the subordinates of the 4th respondent figure as accused persons. According to the petitioner, the 4th respondent and his subordinates were continuously asking and intimidating the petitioner to withdraw the criminal cases pending against them and they in fact threatened the petitioner that if the criminal cases are not withdrawn, they will see that the petitioner is booked under the COFEPOSA Act. The specific case set up is that the 4th respondent was continuously asking, threatening and intimidating the petitioner to withdraw the cases. He even tried for a settlement of the issue, but the petitioner was not agreeable for the conditions formulated by the 4th respondent. In other words, the submission was that the order of detention was one passed by the 2nd respondent as a result of the influence exerted by the 4th respondent. To put it differently, there is no independent application of mind by the 2nd respondent while passing the detention order. In the face of the aforesaid assertions made by the petitioner in the O.P. regarding the role played by the 4th respondent, it was incumbent upon him to have filed an affidavit before this Court repudiating the above facts. Strangely enough, no affidavit is filed either by the 2nd respondent detaining authority or by the 4th respondent, traversing the aforesaid averments, in spite of the fact that notice by special messenger was served on the 4th respondent as early as on 30-3-1998. In this connection, it has to be remembered that filing of counter-affidavit by the detaining authority or by the person concerned is essential where personal allegations of mala fides or bias is made by the warrantee. It is, no doubt, true that the mere fact that the detaining authority has not sworn to an affidavit by itself will not in all circumstances be fatal to the validity of an order of detention. But the position will be different once an allegation of mala fides or bias is raised in the O.P. in which event non-filing of the affidavit will certainly be fatal to the detention order. The Hon'ble Supreme Court in Madan Lal Anand v. Union of India AIR 1990 SC 176 : (1990 Cri LJ 659) has explained the position thus :
32. No personal allegation of mala fide or bias has been made by the detenue against the detaining authority. If such an allegation had been made, in that case, the detaining authority should have himself sworn the counter-affidavit either in this Court or in the High Court...
Therefore, I have no hesitation in holding that in a case where personal allegations of mala fides or bias has been made by the petitioner, the detaining authority or persons against whom such allegations are made should have himself sworn to a counter-affidavit before this Court and in the absence of such counter-affidavit, the allegation of mala fide or bias will remain un-controverted.
7. Thus on the whole, I am satisfied that his is a case in which the order of detention cannot be legally sustained. The alleged incidents, based on which the order of detention was passed on 23-1-1996 took place in 1991, 1993 and 1995. From the facts pleaded, the petitioner has no connection with these three incidents in which he has been falsely implicated with mala fide intention by the 4th respondent and by his subordinates which remains uncontroverted. The impugned order is passed at a highly belated stage without any proximity to the prejudicial activities. That apart, there is inordinate delay in execution of the order of detention which remains unexplained. The allegation of mala fides and bias has not been denied by the respondents.
In the light of the aforesaid discussion, this O.P. is only to be allowed. Accordingly, I allow this O.P. and quash Ext. E2(a) order of detention as prayed. There shall be no order as to costs.