Case Note & Summary
The appeal arose from a preventive detention order passed under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The appellant was detained in connection with an allegation of smuggling gold. According to the factual background, the appellant was apprehended by Customs Officers and photographs were taken at the time of apprehension. The allegation was that the appellant had attempted to smuggle gold by wearing three belts, each containing 60 pieces of gold weighing 10 tolas each, around his waist. The detention order was passed in 1990, and the maximum period of detention under the order was two years. The appellant challenged the order by first moving the Bombay High Court and then the Supreme Court. No interim order against execution was passed by the Supreme Court. The respondents asserted that the order could not be served because the appellant was absconding. The appellant raised two principal contentions before the Supreme Court. First, through counsel, that the photographs taken at the time of apprehension demonstrated the utter absurdity of the smuggling allegation because it was physically impossible for him to zip up his trousers with three belts of gold around his waist. The court observed that this factual submission was not a relevant consideration at that stage under the principles laid down in Alka Subhash Gadia, but to satisfy judicial conscience the court called for and examined the photographs carefully and found that the submission was based on wrong instructions. Second, the appellant contended that since the detention order had been passed as far back as 1990 and the maximum period of two years was long over, his detention at that distant point of time would be punitive and not preventive. The court accepted the general principle that unusual delay in execution of a detention order, if not satisfactorily explained, may persuade the court to draw an inference that detention has become punitive. However, the court found no scope for drawing such an inference because the delay was occasioned not by any omission or commission on the part of the detaining authority but by the appellant himself, who had delayed execution by first moving the Bombay High Court and then the Supreme Court, and because the respondents had asserted that the appellant was absconding and the order could not be served. The court noted that an identical contention raised on similar facts was negatived in Bhawarlal v. State of T.N., (1979) 1 SCC 465. On these conclusions, the Supreme Court dismissed the appeal. The final decision upheld the preventive detention order and rejected the challenge based on delay and factual impossibility, holding that the delay was attributable to the detenu's own conduct and absconding, not to any fault of the detaining authority.
Headnote
A) Preventive Detention - Judicial Review - Limited Grounds - Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - The appellant raised a factual submission that photographs taken at the time of apprehension showed it was impossible for him to zip up his trousers with three belts containing 60 pieces of gold each weighing 10 tolas around his waist - The court noted that in the context of the principles laid down in Alka Subhash Gadia, factual submission was not a relevant consideration at that stage; nevertheless the court called for and examined the photographs and found the submission based on wrong instructions - Held that the factual defence could not invalidate the detention order (Paras B-C). B) Preventive Detention - Delay in Execution of Detention Order - Unusual Delay - Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - The appellant contended that since the detention order was passed in 1990 and the maximum period of two years had long been over, detention at that distant point of time would be punitive and not preventive - The court held that unusual delay in execution if not satisfactorily explained may persuade such an inference, but no such inference arose because the delay was occasioned not by any omission or commission on the part of the detaining authority but by the appellant himself, who first moved the Bombay High Court and then the Supreme Court, and because the respondents asserted the appellant was absconding - Held that the identical contention was negatived in Bhawarlal v. State of T.N. and the appeal was dismissed (Paras D-F).
Issue of Consideration
Whether the preventive detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 was invalid due to factual impossibility of smuggling; whether the unusual delay in execution of the detention order rendered the detention punitive rather than preventive; whether the delay was occasioned by the detenu's own conduct and absconding.
Final Decision
Appeal dismissed.
Law Points
- Unusual delay in execution of a detention order
- if not satisfactorily explained
- may persuade the court to infer that detention is punitive rather than preventive
- delay caused by the detenu's own conduct in moving courts and absconding does not vitiate the detention order
- judicial review of preventive detention is limited and factual submissions regarding impossibility of the alleged smuggling are not relevant at that stage under Alka Subhash Gadia principles
- an identical contention on delay was negatived in Bhawarlal v. State of T.N.
