D.R Khanna, J.:— An order of detention of Omar Ahmed Ebrahim Noorani, a Kenyan national, was issued by the Government of Maharashtra on 2-9-1982 under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. It was mentioned that this was with a view to prevent him from smuggling goods and for the purpose his detention was necessary.

2. At that time the detenue was not in India. He, however, was taken into custody on 18-10-1983 when he arrived in Delhi by air. He was taken to Bombay before the Chief Metropolitan Magistrate on the next date as the allegations were that he had earlier jumped bail in June 1982. On 20-10-1983 the aforesaid order of detention was served on him when he was still in remand under the order of the Bombay Court. Ever since then he has been in detention.

3. The order of detention passed under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act of the date 2-9-1982 described the detenu as a Kenyan National. No address of his in India was given. Similar was his description in the grounds of detention which were served upon him along with the detention order. These grounds have narrated the background which had resulted in the passing of the detention order. Briefly stated the same was that the detenu had come to Bombay by air on 18-4-1982, from Bangkok. He passed through green channel and declared that he had no dutiable or contraband article. However, his search by the Custom authorities revealed that he was carrying 500 grams of gold in his pouch, 250 grams of gold in one shoe and 100 grams of gold in the other shoe. The total gold, 850 grams so carried valued at Rs. 1.01 (150). He was also found to be having a Rado Wrist Watch and some other articles valued at Rs. 47,600 M.V His statement under Section 108 of the Customs Act was then recorded and he was taken into custody and produced before the Chief Metropolitan Magistrate, Bombay and remanded. Extensions of remand were given by that court from time to time till 22-5-1982 when on his application he was released on bail subject to his furnishing cash bail of Rs. 40,000.

4. The detenu states that soon thereafter he left India as he was not told that any case had been registered against him with the police or any complaint was filed before a court. The Chief Metropolitan Magistrate, Bombay however forfeited the bail amount of Rs. 40,000 when he did not subsequently appear before the court. This has been pleaded to be wholly unwarranted and illegal.

5. It was thereafter that on 2-9-1982 that the impugned detention order was passed.

6. The detenu's case is that he is carrying on import and export business at Kenya and Bangkok and has never indulged in smuggling activity. He had earlier visited India in 1979 but nothing incriminating was found in his possession. On 7-3-1982 he again visited India along with his wife and children and was validly cleared by the Customs. He took his family to Bhavnagar to which place his ancestors originally belonged. He had also wanted to impart Islamic education to his children. During this visit they found the designs of Indian jewellery fascinating and, therefore, the family became interested in getting some jewellery made in Indian designs. In the meanwhile the detenu had to go to Bangkok because of an urgent business call and returned therefrom via Singapore. He family in the meanwhile had remained in India. At Singapore he found that there was a sudden crash in the price of gold and, therefore, he purchased 850 grams of gold keeping in view the desire shown by his family members to get some Indian design ornaments made. On the flight from Singapore to India he learnt that the carriage of Gold to India was prohibited and as such he became panicky. He also states that in 1979 when he had earlier visited India and passed through red channel, he had to face considerable harassment and hardship from the Custom authorities and several of his things were badly handled and broken although nothing incriminating was found. He had as such thought of taking easier course of passing through the green channel with all the three pieces of gold in his pouch but was apprehended. This according to him was the solitary instance of lapse on his part and the motive was to get some family ornaments prepared. He claimed that he carried a receipt of the purchase of the gold.

7. The detenue replied to the ground of detention in which he mentioned all these circumstances but without success. His representation to the Advisory Board also failed.

8. The Custom authorities had found that two of the gold pieces were carried by the detenu in his in the shoes were not owned by the shoes. He had thus it was pointed out clearly made an attempt to smuggle gold by passing through green channel and had even declared that he had no dutiable or contraband article. According to them the detenu who claims to be doing import and export business and has been otherwise extensively travelling in different Asian countries as per his passport could not be unaware of the bar on the import of gold. In any case it was pointed out that as per his own version, he had learnt of this in the plane itself and still thought of clandestinely bringing gold in India. The solitary act of smuggling it is contended could as well result in detention order.

9. So far as the merits of the facts leading to the detention of the detenu, the same need not be commented upon as they pertained to the subjective satisfaction of the detaining authority. This court cannot go into the propriety thereof or opine on them as an appellate body.

10. The crucial question to be considered is whether the detention order could have been made against this foreign national at a time when he was not in India. Before proceeding further reference may be made to the circumstance highlighted by the State that the detenu had earlier jumped bail and had left India without informing Custom authorities or obtaining permission from the court. It was as a result of this conduct that a general alert had been sounded about him and as such he was taken into custody on his arrival in Delhi on 18-10-1983. The detenu has of course pleaded that if he had any intention to be fugitive from law he would not have voluntarily come back to India. It has also been pointed out that this jumping of the bail or alleged going out of India without obtaining permission of the court was not made a ground of detention and as such cannot be exploited at this stage. I agree in this respect that a ground which was not made the basis of the detention cannot be urged in answer to a petition of the Habeas Corpus seeking inter alia, quashing of the detention order.

11. Even otherwise I am of the opinion that the orders made by the Chief Metropolitan Magistrate in April-May 1982 remanding the detenu to judicial custody and not releasing him till he had furnished bail were entirely unwarranted in law. So must be held of the forfeiture of his bail amount. Admittedly to this date no complaint has been filed by the Custom authorities with regard to the incident of 18-4-1982 when gold and some other articles were said to have been brought by the detenu in India. There was besides no case registered by the police against him nor the police had submitted any report before the Metropolitan Magistrate. In the circumstances there was no occasion for the Metropolitan Magistrate to take cognizance of any offence U/S 190 Cr. P.C In fact he could not be treated even as an accused. Normally a person stands in the character of an accused when the First Information Report is lodged against him in respect of an offence before an officer competent to investigate it or when a complaint is made relating to the commission of the offence before a Magistrate competent to try or send to another Magistrate for trying the offence. Where a Customs Officer arrests a person and informs that person of the grounds of his arrest, which he is bound to do under Article 22 (1) of the Constitution for purposes of holding an inquiry into the infringement of the provisions of the Custom Law which he has reason to believe has taken place, there is no formal accusation of offence. The accusation would come only when a complaint is lodged by the Officer in that behalf before the Magistrate. (See in this regard Ramesh Chandra Mehta v. State of West Bengal, AIR 1970 S.C 940) (1).

12. It is also now well settled that the courts have no inherent power of remand of an accused to any custody unless power is conferred by law. (See in this regard Nataberidi v. State of Orissa, AIR 1975 S.C 1645) (2). Unlike the Code of Criminal Procedure of 1898, the present Code of 1973 does not confer remand power as such on a Magistrate. This is available under Section 309 only after the Magistrate has taken cognizance of an offence. None such was taken in the present case. I find support in this behalf from a Division Bench judgement of this Court in Dalam Chand Baid v. Union of India & others, 1982 Criminal Law Journal 747 (3). It is, therefore, apparent that the detenu could not be treated as an accused by the Chief Metropolitan Magistrate and he could as well not have been remanded nor any bail taken. There was, therefore, no impropriety involved if the detenu had left India without obtaining permission from the Court or informing the Customs Authorities.

13. Moreover, the practice of requiring accused person to continue making appearance in court when he is on bail till the formal submission of challan or complaint, amounts to his sheer harassment, and must be strongly deprecated as unwarranted by law. (See in this regard Free Legal Aid Committee, Jamshedpur v. State Of Bihar, AIR 1982 S.C 1463 (4).

14. Furthermore, it would also be incorrect to say that the detenu could be treated as an absconder as not only he did not abscond, the requirements of Section 7 (1) (a) of the Conservation of Foreign Exchange and Prevention of Smuggling Act, coupled with those contained in Sections 82 to 85 of the Code of Criminal Procedure had not been complied with. The mere publication of notice in the Maharashtra Gazette on 18-4-1983 under Section 7 (1) (b) of the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 could not make him absconder.

15. Rather the conduct of the Custom authorities in still not filing any complaint against the detenu reflects in what indifferent and casual manner they are taking the affairs to be. When this has been the approach to the actual incident itself, preventive postures to possible future acts or apprehensions appear unreal.

16. Although no rigid rule can be laid that a foreigner who does not happen to be at the relevant time in India, cannot be made the subject matter of a detention order, the propriety of it would only be a pointer to an exercise in futility. There is no gain-saying that the purpose of such detention is preventive and not punitive. It is guided by motive to curtail and put a restraint on the otherwise most likely future illegal activities of a person. The society and the State are thereby sought to be secured from his unwarranted and reckless exploits in pursuit of defiance of law. The State has no jurisdiction over a foreigner unless he happens to be within its territory or indulges in activity having direct effect within its territory. These were, therefore, certainly very relevant considerations which should have been laid before the detaining authority which passed the detention order in the present case. The material placed before the detaining authority as per grounds of detention and the documents attached therewith does not show that the detaining authority was apprised that the detenu had already left India when the detention order was sought to be obtained. This was a vital information having considerable bearing which should have been placed before the detaining authority. That authority could have well then assessed if it still liked to indulge in an exercise in futility of passing an order which could not be given effect to, and seek prevention of future course of illegal activity of which there was no likelihood or chance as long as the detenu did not choose to come back. It was also not laid before detaining authority that there was any information that detenu was likely to come back in the near future. There was thus no appliance of mind to vital facts.

17. Another significant circumstances in the present case is that the order of detention was made on 2-9-1982 and it was to be operative for a period of one year in terms of the law as then existing. For full one year the detenu did not come back to India nor was placed under detention. The purpose of preventing him from indulging in smuggling activity during that year was thus in any case served by his own conduct of remaining outside India. The detention order, therefore, must be treated to have become stale and exhausted itself. It remained ineffective because of the inherent infirmity which the detaining authority was not made aware of viz. that the detenu had already left India. After all the underlying basis of detention is not detention simpliciter or for the sake of it. It is entirely preventive and is to thwart what is considered to be otherwise most likely to happen, and there should be reasons and basis for such belief. In the present case the object of that prevention was well achieved and served when the detenu of his own chose to remain outside India for the entire period for which prevents action was postulated. I am conscious that normally the period of detention starts operating from the date of the actual detention and not the date of the making of the order alone. However that happens when unavoidable transitory lapse takes place in the actual taking of the person concerned in custody or he chooses to abscond. None of this was the position in the present case. In fact, the detention order remained only on paper as the petitioner had much earlier left India in early June, 1982, and had not come back during the period for which he could be detained if he had been otherwise taken into custody. In case, therefore, detention was, thereafter, still felt necessary, circumstances had to be freshly considered, and whether in the changed situation because of long time lapse, detention was unavoidable. Thus in Bhawarlal Ganeshmalji v. The State of Tamil Nadu & others, AIR 1979 S.C 541 (5), it was observed that there must be ‘live and proximate link’ between the grounds of detention alleged by the detaining authority and the avowed purpose of detention namely the prevention of smuggling activities. The Court in appropriate cases may assume that the link is ‘snapped if there is a long and unexplained delay between the date of the order of detention and the arrest of the detenu. In such a case the Court may strike down order of detention unless the grounds indicate a fresh application of the mind of the detaining authority to the new situation and the changed circumstances. But where the delay is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the ‘link’ not snapped but strengthened. In the present case as already noted above, there was no such recalcitrant or refractory conduct of the detenu in evading arrest. He was not an absconder and had left India when there was no cognizance of any case against him by any Indian court.

18. In view of the discussion above, the detention order is liable to be quashed as not only the material information about the detenu having already left India was not placed before the detaining authority, the detention order too had become stale and exhausted itself. Rather there is justification for saying that a detention order in case of a foreigner who is not in India is a mis-directed exercise. The State can instead approach the Indian Ambassador, High Commissioner or Consulate in the country concerned of which the foreigner is a national to not issue him a visa. It amazes that when the prisons in the country are already over-crowded, such meaningless enthusiasm is displayed of ordering detention of a person who is neither an Indian national nor is within the country's territories.

19. Before concluding it must as well be regrettably taken more that the counter-affidavit in the present case has not been filed by the officer ordering detention nor any satisfactory explanation given why it could not be filed by him. It was he who from his personal knowledge could depose about the circumstances which prevailed in the issue of detention order and what material was taken into consideration, and how the infirmities and irregularities alleged are to be met or are otherwise non-existent. Rather the affidavit filed is incorrect when it stated that the detention order was served on the detenu when he was on bail. In fact he was in custody. The affidavit, therefore, can be ignored. (See in this regard 1983 S.C.C (Criminal) Biru Mahato v. District Magistrate, Dhanbad) (6).

20. In view of the discussion above, I need not go into the other ground whether there was a delay in the passing of the detention order vis-a-vis the dale when the detenu attempted to smuggle the goods in India. There was in this regard a time lapse of about 40½ months. The question whether the live proximity and nexus existed between the incident and the detention order, therefore, has not been gone into.

21. So far as the challenge to the jurisdiction of this Court to entertain this habeas corpus petition in Delhi when the detention order was made by the Bombay State, and the detenu too is kept in Yarvada Central Jail, it has not been, disputed that this Court has been entertaining such petitions consistently and that at present the controversy is pending in the Supreme Court.

22. The result, therefore, is that the detention order is quashed, and the detenu is directed to be forthwith set at liberty unless required in any other case.

Petition allow.