Case Note & Summary
The petitioner, who was the detenu, filed a criminal writ petition under Article 226 of the Constitution before the High Court of Bombay seeking a writ of habeas corpus to challenge his preventive detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The detention order was passed on 13 May 2005 by the Principal Secretary (Appeals), Government of Maharashtra, under Section 3(1) of the Act on the ground that the detenu attempted to smuggle out foreign and Indian currency totaling Rs. 20,11,377 from India, which was discovered at the Chhatrapati Shivaji International Airport on 30 November 2004. The detenu was arrested, his passport seized, and after several statements were recorded, he was released on bail on 10 December 2004. The detention order was challenged on multiple grounds: inordinate delay of over five months in issuing the order after his release on bail, thereby snapping the live link; unexplained delays at every stage of processing the detention; non-consideration of retractions made by the detenu on 1 December 2004 and 31 December 2004; delay in deciding his representation dated 29 June 2005 and communicating the rejection; and delay in deciding his subsequent representations dated 12 and 19 September 2005. The respondents opposed the petition, claiming that the detention order was valid and there was no unexplained delay. The court examined the scheme of the Act and the constitutional safeguards under Article 22(4) and (5), emphasizing that preventive detention is a drastic measure requiring strict adherence to procedural safeguards. The court focused on the ground of delay in considering the representation. It noted that the representation dated 29 June 2005 was received by the detaining authority on 30 June 2005 but was decided only on 26 July 2005, after 27 days, and the rejection order was served on the detenu on 8 August 2005, 13 days after the decision. The court held that this unexplained delay violated the constitutional mandate of expeditious consideration and communication of the decision on a representation, thereby vitiating the detention order. Although other grounds were also raised, the court found it unnecessary to go into them as this ground alone was sufficient to quash the order. The petition was allowed, the detention order was quashed, and the detenu was directed to be released forthwith unless required in any other case.
Headnote
A) Preventive Detention - Delay in Issuing Order - Live Link - Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, Section 3(1) - If there is inordinate delay in passing a preventive detention order after the prejudicial activity, and the same is not satisfactorily explained, the live link between the activity and the detention gets snapped, vitiating the order. In the present case, the Detaining Authority did not explain the delay from the last statement on 31-1-2005 to the order dated 13-5-2005, though this ground was not determinative. (Paras 3, 13)
B) Preventive Detention - Right of Representation - Article 22(5) of Constitution of India - Unexplained delay in considering a detenu's representation violates the constitutional mandate and vitiates the detention order. The detaining authority must decide the representation with reasonable expedition, and any delay must be satisfactorily explained. In this case, the representation dated 29-6-2005 was received on 30-6-2005 but decided only on 26-7-2005 (27 days), and the rejection order was communicated to the detenu on 8-8-2005 (13 days after decision), which was held to be an unexplained delay violating Article 22(5). (Paras 10, 11, 14-17)
C) Preventive Detention - Communication of Decision on Representation - Article 22(5) of Constitution of India - The right to make a representation includes the right to have it decided and communicated without avoidable delay. Even a short delay, if unexplained, can lead to quashing of the detention. Here, the delay of 13 days in serving the rejection order on the detenu after the decision was held to be fatal. (Paras 12, 14-17)
Issue of Consideration
Whether the detention order dated 13-5-2005 under Section 3(1) of COFEPOSA Act, 1974 was vitiated by inordinate and unexplained delays in passing the order, non-consideration of retractions, and delays in deciding and communicating the rejection of representations, thus violating Article 22(5) of the Constitution.
Final Decision
The High Court allowed the criminal writ petition, quashed and set aside the detention order dated 13 May 2005, and directed that the detenu be released forthwith unless required in any other case. The court held that the unexplained delay of 27 days in deciding the representation and 13 days in communicating the rejection order violated Article 22(5) of the Constitution and vitiated the detention.
Law Points
- Unexplained delay in deciding detenu's representation violates Article 22(5) of Constitution
- Right to make representation includes right to have it decided and communicated without avoidable delay
- Delay in passing preventive detention order must be satisfactorily explained to maintain live link
- Preventive detention law is drastic and procedural safeguards must be strictly enforced
Case Details
2006 LawText (BOM) (02) 34
Criminal Writ Petition No. 2281 of 2005
Justice B.H. Marlapalle, Justice Smt. R.S. Dalvi
Mrs. A.M.Z. Ansari, Mr. D.S. Mhaispurkar
Shabbir Ahmed Rafique Ahmed
The State of Maharashtra & Ors.
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Nature of Litigation
Criminal writ petition under Article 226 of the Constitution of India seeking a writ of habeas corpus to quash a preventive detention order passed under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
Remedy Sought
The petitioner-detenu prayed for the quashing of the detention order dated 13 May 2005 and his immediate release from detention.
Filing Reason
The detention order was challenged on grounds of inordinate and unexplained delay in its issuance after the alleged prejudicial activity and release on bail, non-consideration of retractions, and delays in deciding and communicating the rejection of representations, thereby violating Article 22(5).
Previous Decisions
The detenu was intercepted at the airport on 30 November 2004 and taken into custody, and later released on bail by the Chief Metropolitan Magistrate on 10 December 2004. The detention order was passed on 13 May 2005. The Advisory Board rendered an opinion on 2 August 2005 that there was sufficient cause for detention, and the State Government confirmed the order on 8 August 2005. The detenu's representations dated 29 June 2005, 12 September 2005, and 19 September 2005 were rejected.
Issues
Whether the delay of over five months in issuing the detention order after the release on bail was unexplained and snapped the live link, thereby vitiating the order.
Whether the non-consideration of the retractions dated 1 December 2004 and 31 December 2004 by the Detaining Authority while forming grounds of detention vitiated the order.
Whether the unexplained delay in deciding the representation dated 29 June 2005 and communicating its rejection violated Article 22(5), warranting quashing of the detention.
Whether the subsequent representations dated 12 September 2005 and 19 September 2005 were also decided with inordinate delay, further violating constitutional safeguards.
Submissions/Arguments
The petitioner argued that the detention order was passed with inordinate delay of more than five months after his release on bail, and this delay was unexplained, snapping the live link and vitiating the order.
The petitioner contended that the Detaining Authority did not consider his retraction statements while setting out the grounds of detention, thus the satisfaction was sham and the order punitive rather than preventive.
The petitioner claimed that his representation dated 29 June 2005 was decided only on 26 July 2005 and the rejection communicated on 8 August 2005, with unexplained delays violating Article 22(5).
The respondents submitted that the detention order was valid and did not suffer from any delays, non-application of mind, or violation of constitutional guarantees, and all representations were duly considered without unexplained delay.
The respondents further stated that the case was referred to the Advisory Board, which opined there was sufficient cause for detention, and the detention was confirmed under Section 8(f) after due consideration.
Ratio Decidendi
The unexplained delay in deciding a detenu's representation and communicating the rejection violates the constitutional safeguard under Article 22(5). The right to make a representation includes the right to have it considered and decided with reasonable expedition and communicated without avoidable delay, and any such delay if not satisfactorily explained vitiates the detention order. In the instant case, the 27-day delay in deciding the representation and the 13-day delay in serving the rejection order were fatal.
Judgment Excerpts
The Constitution Bench in the case of Kamleshkumar Ishwardas Patel [(1995) 4 SCC 51] observed in para 49 thus: '...While discharging our Constitutional obligation to enforce the fundamental rights of the people, more especially the right to personal liberty, we cannot allow ourselves to be influenced by these considerations.'
In the instant case, as per the affidavit-in-reply filed by the Detaining Authority, the representation dated 29-6-2005 was received on 30-6-2005. The proposal was forwarded to the Government Pleader on 1-7-2005. ... The representation was decided on 26-7-2005 and accordingly forwarded to the office of the Superintendent of Nashik Road Central Prison for serving the order on the detenu. The representation was decided after 27 days and the order rejecting the representation was served on the detenu for the first time on 8-8-2005 i.e. after 13 days of its decision. The delay has not been explained at all and therefore, the detention order stands vitiated on account of the delay in deciding the representation dated 29-6-2005 and the delay in communicating the order of rejection dated 26-7-2005 to the detenu.
Procedural History
On 30 November 2004, the detenu was intercepted at Chhatrapati Shivaji International Airport, Mumbai, while attempting to depart for Dubai; foreign and Indian currency totaling Rs. 20,11,377 was seized, and he was arrested. His statement was recorded under Section 108 of the Customs Act. He was produced before the Chief Metropolitan Magistrate and released on bail on 10 December 2004. Several further statements were recorded from 13 December 2004 to 31 January 2005. On 13 May 2005, the Principal Secretary (Appeals), Government of Maharashtra, passed the detention order under Section 3(1) of the COFEPOSA Act, served on the detenu on 20 May 2005. The detenu filed a representation dated 29 June 2005, received by the Detaining Authority on 30 June 2005. The case was referred to the Advisory Board on 8 June 2005, which opined on 2 August 2005 that there was sufficient cause for detention. The detention was confirmed under Section 8(f) on 8 August 2005. The representation was rejected on 26 July 2005, but the rejection order was served on the detenu only on 8 August 2005. Further representations dated 12 and 19 September 2005 were rejected on 18 October 2005. The writ petition was filed and finally heard on 30 January 2006, with judgment pronounced on 15 February 2006.
Acts & Sections
- Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974: 3(1), 3(2), 3(3), 8(b), 8(f), 10, 11
- Customs Act, 1962: 108
- Constitution of India: Article 22(4), Article 22(5)
- General Clauses Act, 1897: 21
