Case Note & Summary
The petitioner, father of the detenu, filed a writ of habeas corpus under Article 226 of the Constitution challenging a detention order dated 2/8/2008 passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) against his son. The detention order was served on the detenu on 20/10/2009, nearly 14 months after it was issued. The detenu had been under detention for over nine months at the time of the petition. The petitioner argued that the gross and unexplained delay in execution threw doubt on the genuineness of the detaining authority's satisfaction and that no prompt steps were taken to execute the order, including failure to move for cancellation of bail or take action under Section 7 of the COFEPOSA Act. The respondents, including the State of Maharashtra and Union of India, did not provide any explanation for the delay. The court considered only ground (c) regarding delay. The court held that the unexplained delay of 14 months in executing the detention order, when the detenu was available at his known address, vitiated the subjective satisfaction of the detaining authority. The court quashed and set aside the detention order and directed the detenu's release unless required in any other case.
Headnote
A) Preventive Detention - Delay in Execution - COFEPOSA Act, 1974, Section 3(1) - Unexplained delay of 14 months in serving detention order - The detenu was available at his known address but no prompt steps were taken - Held that such inordinate and unexplained delay vitiates the subjective satisfaction of the detaining authority and the detention order cannot be sustained (Paras 1-5).
Issue of Consideration
Whether the unexplained delay of 14 months in executing the detention order under Section 3(1) of the COFEPOSA Act, 1974, renders the detention order invalid and liable to be quashed.
Final Decision
The court quashed and set aside the detention order dated 2/8/2008 and directed the detenu to be released forthwith unless required in any other case.
Law Points
- Delay in execution of detention order
- Unexplained delay vitiates detention
- COFEPOSA Act Section 3(1)
- Article 226 of Constitution
Case Details
2010 LawText (BOM) (08) 75
Criminal Writ Petition No. 419 of 2010
B. H. Marlapalle, Anoop V. Mohta
Mr. U. N. Tripathi for petitioner, Mrs. S. D. Shinde, APP for respondent nos.1 to 3 - State, Mr. M. M. Goswami with Mr. Y. M. Nakhawa for respondent no.4 - UOI
Shri Mohamed Saliah (Father of detenu)
Anna Dani, Principal Secretary (Appeals & Security) Govt. Of Maharashtra, The Additional Chief Secretary (Home), The State of Maharashtra, Union of India
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Nature of Litigation
Criminal writ petition under Article 226 of the Constitution seeking a writ of habeas corpus to quash a detention order under COFEPOSA Act.
Remedy Sought
Petitioner (father of detenu) sought quashing of detention order dated 2/8/2008 and release of detenu.
Filing Reason
Detention order under Section 3(1) of COFEPOSA Act was served after a delay of 14 months, raising doubts about genuineness of satisfaction.
Previous Decisions
Detention order issued on 2/8/2008, served on 20/10/2009. Advisory Board heard detenu on 21/11/2009, confirmation order issued on 21/12/2009. Petition filed on 1/2/2010.
Issues
Whether the unexplained delay of 14 months in executing the detention order under Section 3(1) of COFEPOSA Act renders the detention invalid?
Submissions/Arguments
Petitioner argued that there was gross and unexplained delay of 14 months in executing the detention order, which throws doubt on the genuineness of the detaining authority's satisfaction. The authorities did not take prompt steps to execute the order, nor did they move for cancellation of bail or take action under Section 7 of COFEPOSA Act.
Respondents did not provide any explanation for the delay.
Ratio Decidendi
Unexplained and inordinate delay in executing a preventive detention order vitiates the subjective satisfaction of the detaining authority and renders the detention order invalid. The detaining authority must take prompt and effective steps to execute the order; failure to do so without explanation makes the detention unsustainable.
Judgment Excerpts
This petition filed under Article 226 of the Constitution prays for a writ of habeas corpus so as to quash and set aside the order of detention dated 2/8/2008 passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short the COFEPOSA Act) issued against the petitioner’s son.
Though various grounds have been raised so as to challenge the detention order, only ground (c), which reads as under, has been pressed for by the learned counsel for the petitioner:-
The said detention order was served on the detenu on 20/10/2009 and the detention period of one year would expire on 19/10/2010.
The respondents have not offered any explanation for the delay in executing the detention order.
In the result, this petition succeeds. The detention order dated 2/8/2008 is hereby quashed and set aside. The detenu be released forthwith unless required in any other case.
Procedural History
Detention order under Section 3(1) of COFEPOSA Act was issued on 2/8/2008. It was served on the detenu on 20/10/2009. The detenu submitted representations on 6/11/2009, 16/11/2009, and 21/11/2009. The Advisory Board heard the detenu on 21/11/2009. The State Government issued confirmation order on 21/12/2009. The petition was filed on or about 1/2/2010.
Acts & Sections
- Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act): Section 3(1), Section 7
- Constitution of India: Article 226
