Case Note & Summary
The petitioner, father of the detenu Chirag D. Shah, filed a writ of habeas corpus under Article 226 of the Constitution of India challenging a preventive detention order dated 16 September 2014 passed by Respondent No.2 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). The detenu was ordered to be preventively detained. The petitioner argued that the representation made by the detenu against the detention order was not decided promptly, violating Article 22(5) of the Constitution. The court examined the timeline: the detention order was served on 17 September 2014, the detenu made a representation on 19 September 2014, which was forwarded to the Detaining Authority on 22 September 2014. The Detaining Authority received comments from the sponsoring authority on 26 September 2014 and rejected the representation on 30 September 2014. The State Government received the representation on 22 September 2014 and rejected it on 1 October 2014. The court found that there was an unexplained delay of 12 days in deciding the representation, which infringed the detenu's right under Article 22(5). The court relied on the principle that any unexplained delay in considering a representation vitiates the detention order. Consequently, the court allowed the writ petition, set aside the detention order, and directed the release of the detenu forthwith.
Headnote
A) Preventive Detention - Delay in Deciding Representation - Article 22(5) of the Constitution of India - Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - The detenu's representation was decided with unexplained delay of 12 days by the Detaining Authority and State Government. The Court held that such delay violates the constitutional guarantee under Article 22(5) and vitiates the detention order. The Court set aside the detention order and directed the release of the detenu. (Paras 4-8)
Issue of Consideration
Whether the unexplained delay in deciding the representation made by the detenu under Article 22(5) of the Constitution of India vitiates the preventive detention order under Section 3(1) of the COFEPOSA Act, 1974.
Final Decision
The Court allowed the writ petition, set aside the detention order dated 16 September 2014, and directed the release of the detenu forthwith.
Law Points
- Preventive detention
- Delay in deciding representation
- Article 22(5) of the Constitution of India
- Section 3(1) of COFEPOSA Act
- 1974
- Habeas Corpus
