Case Note & Summary
The petitioner, brother of the detenu Saiyed Jamaluddin Naeemuddin, filed a writ of habeas corpus under Article 226 of the Constitution challenging a preventive detention order dated 26 September 2011 passed by the Principal Secretary (Appeals and Security), Government of Maharashtra, under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). The detenu was detained on grounds of smuggling activities. The petitioner raised multiple grounds, but the court focused on the first ground: unexplained and avoidable delay in consideration of the detenu's representation by the Central Government. The detenu had sent five copies of representations to various authorities, including the Central Government. The court noted that the representation was received by the Central Government on 10 October 2011, but was not considered until 1 November 2011, a delay of 22 days without any explanation. The court held that such delay violates the constitutional right under Article 22(5) to have the representation considered as expeditiously as possible. However, the court clarified that this ground only renders the continued detention illegal and does not quash the detention order itself, as the order was valid when passed. The petitioner argued that quashing the order was necessary to avoid further action under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA), but the court did not accept this. The court declared the continued detention illegal and directed the detenu's release unless required in any other case. The judgment was delivered by a Division Bench of Justices A.M. Khanwilkar and R.Y. Ganoo on 31 August 2012.
Headnote
A) Preventive Detention - COFEPOSA Act - Delay in Consideration of Representation - Unexplained delay of 22 days in considering detenu's representation by Central Government - Held that such delay violates Article 22(5) of the Constitution and renders continued detention illegal, though not sufficient to quash the detention order ab initio (Paras 3-5).
Issue of Consideration
Whether the unexplained and avoidable delay in consideration of the detenu's representation by the Central Government renders the continued detention illegal and vitiates the preventive detention order under Section 3(1) of the COFEPOSA Act, 1974.
Final Decision
The court declared that the continued detention of the detenu is illegal and vitiated due to unexplained delay in consideration of his representation by the Central Government. The court directed the detenu's release unless required in any other case. However, the court did not quash the detention order itself.
Law Points
- Preventive detention
- Unexplained delay in considering representation
- COFEPOSA Act
- Article 22(5) of Constitution
- Right of detenu
- Speedy consideration
- Vitiation of detention
Case Details
2012 LawText (BOM) (08) 83
Criminal Writ Petition No.793 of 2012
A.M. Khanwilkar, R.Y. Ganoo
Mr. D.S. Mhaispurkar for Petitioner; Mrs. A.S. Pai, A.P.P. for Respondent Nos.1 to 5; Ms. P.H. Kantharia, A.P.P. for Respondent No.6
Amiruddin Jamaluddin Sayyed
Medha Gadgil, The Principal Secretary (Appeals and Security), Government of Maharashtra, Home Department, Mantralaya, Mumbai; The State of Maharashtra; The Superintendent of Customs, Nhava Sheva, Uran, Dist. Raigad; The superintendent, Nashik Road Central Prison, Nashik; The Secretary, Hon'ble Advisory Board; The Secretary, Ministry of Finance, Department of Revenue
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Nature of Litigation
Writ of habeas corpus challenging preventive detention order under COFEPOSA Act.
Remedy Sought
Quashing and setting aside the preventive detention order dated 26 September 2011 and release of the detenu.
Filing Reason
Unexplained and avoidable delay in consideration of detenu's representation by the Central Government.
Issues
Whether the unexplained delay in consideration of the detenu's representation by the Central Government renders the continued detention illegal?
Whether such delay is sufficient to quash the preventive detention order ab initio?
Submissions/Arguments
Petitioner argued that the delay of 22 days in considering the representation by the Central Government is unexplained and avoidable, violating Article 22(5) of the Constitution, and that the detention order should be quashed to avoid further action under SAFEMA.
Respondents argued that the delay was not unreasonable and that the ground only renders continued detention illegal, not the order itself.
Ratio Decidendi
Unexplained and avoidable delay in consideration of a detenu's representation by the Central Government violates the constitutional right under Article 22(5) of the Constitution and renders the continued detention illegal, though it does not necessarily invalidate the detention order ab initio.
Judgment Excerpts
After hearing the Counsel for the parties, we, tentatively, indicated that the first ground urged by the petitioner appears to be a formidable ground and the petition can be disposed of on that basis without going into any other contention articulated in the memo of writ petition.
Reverting to the first contention, on which the detenu ought to succeed, is one of avoidable and unexplained delay in consideration of the detenu's representation by the Central Government.
Procedural History
The petitioner filed Criminal Writ Petition No.793 of 2012 before the Bombay High Court challenging the preventive detention order dated 26 September 2011 passed under Section 3(1) of the COFEPOSA Act. The court heard the parties and delivered judgment on 31 August 2012.
Acts & Sections
- Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974: Section 3(1)
- Constitution of India: Article 226, Article 22(5)
- Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976:
