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Bhavani Shankar B. Paliwal v. The Union Of India & Ors.
Structured Summary of the Opinion (Vishnu Sahai, J.)
Factual and Procedural Background
The petition was filed under Article 226 of the Constitution of India by the brother of the detenu Ramesh B. Paliwal @ Ramesh Chandra Paliwal. The petitioner challenged a detention order dated 31.5.1996 issued by the second respondent, Mr. K.L. Verma, Joint Secretary, Government of India, Ministry of Finance, Department of Revenue, under section 3(1) of the COFEPOSA Act. Although the detention order is dated 31.5.1996, it and the accompanying grounds of detention were served on the detenu on 16.12.1997.
The petition advanced multiple pleaded grounds, but argument before the court was focused on a single ground (Ground No. 4(iii)) complaining of inordinate delay (more than 1½ years) in executing the detention order and alleging that the authorities did not take effective steps to serve it. The petitioner asked whether action under section 7 of the COFEPOSA Act had been taken and sought disclosure of details if it had been taken.
The court heard counsel for the petitioner, counsel for respondents Nos. 1 and 2, and the Public Prosecutor for respondents Nos. 3 and 4. The court examined three returns filed by officials providing explanations for the delay and subsequently dismissed the petition.
Legal Issues Presented
- Whether the long delay (more than 1½ years) between issuance (31.5.1996) and execution/service (16.12.1997) of the detention order vitiates the detention on the ground that the "live link" between the detenu's prejudicial activities and the rationale for detention has been snapped, converting a preventive order into a punitive one (Ground No. 4(iii)).
- Whether effective and genuine efforts were made by the authorities to serve the detention order on the detenu, and whether the detaining authority should disclose whether action under Section 7 of the COFEPOSA Act was taken against the detenu and furnish details of such action.
Arguments of the Parties
Petitioner's Arguments
- The petitioner (through Mr. Maqsood Khan) primarily argued Ground No. 4(iii): the detention order dated 31.5.1996 was belatedly executed only on 16.12.1997, more than 1½ years after issuance; this delay severed the live link between the alleged prejudicial activities and the rationale for detention, rendering the order punitive rather than preventive.
- The petitioner contended that the authorities did not take effective and genuine efforts to serve the detention order and sought disclosure whether action under Section 7 of COFEPOSA had been taken and, if so, details thereof.
Respondents' Responses
- The respondents filed three returns (by R.B. Dange; Somnath Pal; and S.L.J. Gallyot) explaining the delay. Their common position was that the detention order could not be executed earlier because the detenu had absconded immediately after the offending seizure and remained absent until he surrendered on 16.12.1997, when the order was served.
- The respondents detailed multiple attempts and dates on which the detenu's residence was visited, inquiries were made of neighbours, and efforts were undertaken by police and the P.C.B.C.I.D. to trace and apprehend the detenu; these efforts included posting a proclamation under Section 7(1)(b) of the COFEPOSA Act, issuance of a red alert, and other specified visits and steps listed in the returns.
- One respondent (S.L.J. Gallyot) explained why initiation of action under Section 7 took time, noting that the statutory condition precedent requires reason to believe that the person is concealing himself or absconding, which depends on whether the person was not arrested or did not surrender within a reasonable time.
- The respondents asserted that the delay was attributable to the detenu's own act of absconding and that he could not take advantage of his own wrongful conduct to challenge the detention on the ground of delay.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| M. Ahmed Kutty v. Union of India (Supreme Court) | The principle that where delay in executing a detention order is occasioned by the detenu's act of absconding, the delay does not vitiate the detention order. | The court relied on this authority to support the proposition that delay caused by the detenu's absconding does not sever the live link between the prejudicial activities and the rationale for detention; the court found it applicable to the facts and used it to reject the petitioner's contention. |
| Bhawarlal Ganeshmalji v. The State of Tamil Nadu (Supreme Court) | The holding that when delay is adequately explained and is the result of the detenu's recalcitrant conduct in evading arrest, the live link is not snapped and may be strengthened; delay caused by absconding does not vitiate the detention (noting a case where the detenu had absconded for over three years). | The court cited this decision for the same legal principle and applied it to the present facts, concluding that because the detenu had absconded, the delay did not invalidate the detention order; the court found the authority squarely applicable. |
Court's Reasoning and Analysis
The court confined itself to the principal ground pressed (Ground No. 4(iii)) and examined the three returns filed in response. The court's analysis proceeded in the following steps, as recorded in the opinion:
- Identification of the central factual issue: why the detention order dated 31.5.1996 was only executed on 16.12.1997.
- Review of the three returns (by R.B. Dange of P.C.B.C.I.D. Mumbai; Somnath Pal, Joint Secretary, Ministry of Finance; and S.L.J. Gallyot, Assistant Director, Enforcement Directorate) which together offered a comprehensive explanation: the detenu absconded immediately after the search and seizure and remained at large until he surrendered on 16.12.1997.
- Examination of factual details provided in the returns: visits to the detenu's locked residence on multiple dates (12.6.1996, 17.6.1996, 30.12.1996, 23.1.1997, 7.2.1997, etc.), inquiries of neighbours who stated the detenu had left months earlier, a proclamation under Section 7(1)(b) posted at the residence on 24.9.1996, continued tracing and apprehension efforts by police on many specified dates, and a final surrender by the detenu on 16.12.1997 when the detention order was served.
- Consideration of the procedural explanation regarding Section 7 action: the court noted the explanation that a condition precedent for initiating Section 7 action is a reason to believe that the person is concealing himself or absconding, which arises only after failure to arrest or surrender within a reasonable time.
- Legal synthesis: applying the factual conclusion (that delay was caused by the detenu's absconding) to established Supreme Court authority (M. Ahmed Kutty and Bhawarlal Ganeshmalji), the court concluded that delay occasioned by the detenu's own evasive conduct does not vitiate a detention order and may, in some respects, strengthen the live link between the prejudicial activities and the need for preventive detention.
- Final evaluative conclusion: because the detenu's absconding sufficiently explained the delay, the petitioner could not succeed on the submission that the detention had become punitive due to the passage of time; the solitary submission lacked merit.
Holding and Implications
Holding: This petition is dismissed and the rule is discharged.
Implications:
- The direct legal effect is that the petition under Article 226 challenging the detention order dated 31.5.1996 was dismissed; the court discharged the rule. The detention order's challenge on the ground of delay in execution was rejected on the basis that the delay was caused by the detenu's absconding.
- The court applied and relied upon existing Supreme Court precedents to reach its conclusion; the opinion does not purport to lay down a new legal principle or to distinguish the cited authorities. The opinion states that the cited authorities are squarely applicable to the facts of this case.
- No broader or novel precedent was declared by this opinion beyond applying the established rule that delay occasioned by the detenu's evasion does not vitiate a detention order.
Vishnu Sahai, J.:— Through this petition preferred under Article 226 of the Constitution of India, the petitioner who is the brother of the detenu Ramesh B. Paliwal @ Ramesh Chandra Paliwal, seeks to challenge the detention order dated 31.5.1996 passed by the second respondent Mr. K.L Verma, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi, detaining the detenu under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the COFEPOSA Act). The detention order along with the grounds of detention bearing the same date was served on the detenu on 16.12.1997
2. In order to dispose off this petition, in our view it would not be necessary to advert to the prejudicial activities of the detenu detailed in the grounds of detention. We have heard Mr. Maqsood Khan for the Petitioner, Mr. R.M Agarwal for the Respondents Nos. 1 and 2 and Mrs. V.K Tahilramani, Public Prosecutor for the Respondent Nos. 3 and 4.
3. Although in the petition, three grounds have been pleaded but, Mr. Maqsood Khan learned counsel for the petitioner canvassed a solitary ground before us namely ground No. 4(iii). The short and long of the said ground is that the impugned detention order dated 31.5.1996 was belatedly executed on the detenu on 16.12.1997 i.e more than 1½ years after its issuance. It has been urged in the said ground that effective and genuine efforts to serve the detention order on the detenu were not taken recourse to by the authorities. A query is raised in the ground that the detaining authority should disclose whether action under section 7 of the cofeposa act was taken against the detenu and if taken the details in respect of it be furnished.
4. The contention of Mr. Maqsood Khan is that on account of the inordinate delay in the execution of the detention order, the live link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him is snapped and the detention order has ceased to be preventive and instead has become punitive.
5. We have reflected over the said ground canvassed by Mr. Maqsood Khan and the reply furnished in the three returns filed on behalf of the respondents. We are constrained to observe that after examining the said ground, the reply in the three returns and reflecting over the matter, we do not find any merit in this ground.
6. Ground No. 4(iii) has been replied to in the three returns namely those of:—
(1) Mr. R.B Dange. Inspector of Police attached to P.C.B.C.I.D Mumbai (return dated 6.3.1998);
(2) Mr. Somnath Pal, Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, New Delhi (return dated 20.3.1998); and
(3) Mr. S.L.J Gallyot, Assistant Director Enforcement Directorate, Foreign Exchange Regulation Act, Government of India, Ministry of Finance, Department of Revenue, Mumbai. (return dated 6.10.1998).
7. In each of these returns, a most cogent explanation for the non-execution of the detention order against the detenu has been furnished. The explanation in them is that the detention order could not be served on the detenu as he had absconded immediately after the offending seizure and only surrendered to the P.C.B.C.I.D Mumbai on 16.12.1997 and on the said date when the detention order was served on him.
8. We now propose examining the averments made in each of the three returns. In brief, they are as under:—
9. Mr. R.B Dange in his return has stated that the detention order dated 31.5.1996 was received in his office on 12.6.1996 for execution. On the very day (12.6.1996) and 17.6.1996, PSI Verghese visited the residence of the detenu at Mahalaxmi Building Fort Mumbai but, found that it was locked. On both the dates, he made inquiries from the neighbourers but the said inquiries afforded no clues about the whereabouts of the detenu. On 12.6.1996, the neighbourers of the detenu Mr. Uttam Patel and Mr. Ramesh Rajput, informed that two months before the detenu had left the residence and they did not know his whereabouts.
10. On 2.8.1996, police head constable B. No. 15797 of M.R.A Marg police station visited the detenu's residence mentioned above, but could not trace him.
11. On 23.8.1996, a proclamation under Section 7(1)(b) of the COFEPOSA Act, dated 9.8.1996, which had been issued against the detenu was received in the office of the P.C.B.C.I.D Mumbai. Thereafter, it was sent to M.R.A Marg police station as the detenu's residence fell within its ambit. The M.R.A Marg police station duly posted the said proclamation at the entrance door of the detenu on 24.9.1996 under a panchanama in the presence of one Anand Devada. But, the detenu did not appear before the Commissioner of Police Mumbai within the stipulated time.
12. On 18.11.1996, 19.11.1996, 20.11.1996, 21.11.1996, 22.11.1996, 25.11.1996 and 27.11.1996 the M.R.A Marg police station made efforts to trace the detenu but the same yielded no results. On 30.12.1996, PSI Tavare of P.C.B.C.I.D Mumbai visited the residence of the detenu and found it locked. He made inquiries from his neighbourerers one Mr. Uttam he revealed that the residence had been locked since the last nine months and he was not aware of his whereabouts.
13. On 23.1.1997, PSI Tavare again visited the residence of the detenu but, did not find the detenu. One Henry D'Souza was present there who stated that he was staying on leave and license basis. He informed him that he had heard that the detenu was staying there but had never seen him. On 7.2.1997, PSI Tavare again visited the residence of the detenu but did not find him there and instead found one Ms. Geeta Upale present there. She stated that she had never seen the detenu.
14. On 3.3.1997, a letter was sent from the office of the P.C.B.C.I.D Mumbai to the Joint Secretary to the Government of India in which efforts taken by it to execute the detention order were stipulated. In the said letter, it was mentioned that the sponsoring authority be moved to take further action for attachment of the property of the detenu as he was deliberately avoiding the service of the detention order.
15. On 16.12.1997, the detenu presented himself in the office of the P.C.B.C.I.D Mumbai and the detention order was served on him.
16. We now take up the return of Mr. Somnath Pal. In para 6 the said ground has been replied to. Mr. Somnath Pal has emphatically stated that the detenu disappeared right from the date of search and seizure itself and he remained absconding till 16.12.1997 and continuous efforts by the sponsoring authority were made to trace him and serve the detention order on the dates stipulated below:—
12.6.1996, 10.8.1996, 10.9.1996, 8.10.1996, 22.11.1996, 2.1.1997, 4.2.1997, 6.3.1997, 19.4.1997, 5.5.1997, 10.6.1997, 16.7.1997, 13.8.1997, 22.10.1997, 6.11.1997, 27.11.1997, and 8.12.1997
17. It has been mentioned therein that P.C.B.C.I.D Mumbai had also made efforts to apprehend the detenu on 12.6.1996, 17.6.1996, 30.12.1996, 23.1.1997, and 7.2.1997
18. Action under Section 7(1)(b) of the COFEPOSA Act, 1974 was initiated and order dated 9.8.1996 was issued against the detenu. Red alert No. 51/96, dated 3.10.1996 was also issued against him by the Assistant Director, DRI (Intelligence). In short, the averment of Mr. Somnath Pal is that the detenu on account of the act of his absconding was squarely responsible for the delay in the detention order being served upon him and could not be permitted to take advantage of his own wrong.
19. We now take up the affidavit of Mr. S.L.J Gallyot, Assistant Director, Enforcement Directorate Foreign Exchange Regulation Act, Government of India, Ministry of Finance, Department of Revenue, Mumbai. In the said affidavit, it has been explained as to why action under section 7 of the cofeposa act was taken after efflux of some time. What is sought to be conveyed is as urged by Mr. R.M Agarwal that the said provision stipulates that the condition precedent for taking action is reason to believe that the person against whom a detention order is to be served is either concealing himself/herself or absconding, and the authority would only have reason to believe to this effect if the said person was either not arrested or did not surrender within a reasonable time.
20. After going through the said three returns, we are implicitly satisfied that the detenu had absconded after the offending seizure and remained absconding till 16.12.1997 on which date he surrendered to the P.C.B.C.I.D Mumbai and the detention order was executed on him.
21. In the circumstances, it is crystal clear that the delay in executing the detention order was a consequence of the absconding on the part of the detenu and in such a situation, when the detenu himself was to blame for the delay in execution, it hardly lies in his mouth to say that on account of passage of time, the live link between his prejudicial activities and the rationale of clamping the detention order on him was snapped.
22. The Supreme Court in the decisions M. Ahmed Kutty v. Union of India, and Bhawarlal Ganeshmalji v. The State of Tamil Nadu, has laid down that if the delay in execution of the detention order has been occasioned on account of the act of absconding on the part of the detenu, the detention order would not be vitiated on the vice of delay in execution.
23. In the former authority in para 13 and in the latter authority in para 6, the Supreme Court has held that where the delay has been adequately explained and it is also found that it is the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is reason to warrant the inference that the live link has not been snapped but, instead it has been strengthened. In the latter decision, the detenu had been absconding for over three years and therefore, the Supreme Court repelled the contention of his counsel that the impugned detention order had become vitiated on account of the delay in its execution.
24. The source of the said certificate is squarely applicable to this case. For the said reasons, we do not find any merit in the solitary submission canvassed by Mr. Maqsood Khan.
25. In the result, this petition is dismissed and rule is discharged.
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