Pendse, J. - (1.) The Secretary to the Government of Maharashtra, Home Department, by order dated March 16, 1988 passed in exercise of powers under sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, directed detention of Mukhamed Husain Mohammed Shafi under the Act with a view to prevent him from smuggling goods. The order of detention was served on May 2, 1988 and the grounds of detention were furnished. The grounds of detention, inter alia, recite that on March 26, 1987 the detenu arrived from Dubai and was intercepted at the Arrival Lounge. The detenu was carrying three pieces of baggage and on enquiry stated that he was only carrying textiles and miscellaneous items and leg exercise cycle. The Customs Officers felt suspicious and after the exercise cycle was checked 21 foreign mark gold bars cleverly concealed in the discwheel were noticed. The gold bars were valued at Rs. 4,18,710/-. The statement of the detenu was recorded and the detenu was arrested on March 27, 1987. The detenu was released on bail on April 23, 1987 by Additional Chief Presidency Magistrate, Bombay. The detenu was also permitted to go abroad by an order dated July 13, 1987 on condition that the detenu would come back after ten days. On this material the detaining authority came to the conclusion that it is necessary to pass order of detention under the Act in order to prevent the detenu from including in prejudicial activities in future. The order of detention is under challenge at the behest of mother of the detenu.
(2.) Shri Khan, learned counsel appearing on behalf of the detenu, submitted that there is considerable delay in passing order of detention and therefore the exercise of jurisdiction was uncalled for. The incident occurred on March 26, 1987, while the impugned order was passed on March 15, 1988 and therefore the learned counsel submitted that live-link was broken by passage of time. We find considerable merit in the submission of the learned counsel. The detaining authority has filed return and in paragraph 7 it is claimed that prosecution was launched in the Court on July 25, 1987 and thereafter the file of the detenu was received in the COFEPOSA cell on November 17, 1987. The proposal was prepared on November 25, 1987 and the meeting of the Screening Committee was held on December 11, 1987. The adjudicating authority passed order on December 7, 1987. The proposal along with the documents were forwarded to the Government on February 1, 1988 and thereafter the order was issued on March 16, 1988. From the bare perusal of paragraph 7 of the return, it is clear that the detaining authority has failed to explain the considerable delay in passing the order of detention. We enquired from the learned Public Prosecutor, who appeared on behalf of the detaining authority, as to what was file received from the Customs Office on November 7, 1987 had to do and the Public Prosecutor had no answer. In our judgment, the order was passed after a considerable delay and therefore the requirement of live-link between the incident and the apprehension that the detenu would indulge in prejudicial activities was clearly given go-by. The order of detention therefore cannot be sustained.
(3.) Shri Khan also submitted that the grounds of detention recite that the detenu was a frequent visitor to Dubai, but this statement is not supported by any material placed before the detaining authority. The submission is correct and deserves acceptance. The detaining authority claims that the fact that detenu was frequent visitor was known from the proposal made to the detaining authority. Now, the copy of this proposal is not furnished to the detenu and so it is not known what are the contents of the proposal. There was no other material before the detaining authority to warrant conclusion that the detenu was frequent visitor. It is, therefore, obvious that the detaining authority has taken into consideration certain facts which were not placed before it. In our judgment, the order of detention suffers from infirmities and cannot be sustained.;