2001 (1) TMI 901 - HC - Companies Law

Summary

Issues Involved:
1. Delay in execution of the order of detention.
2. Non-consideration of the representation made by the petitioner.
3. Lack of material linking the petitioner's husband to any irregular or illegal activity.
4. Applicability of the Government notification dated 22-1-1999 regarding revocation of detention orders issued prior to 1-1-1996.

Detailed Analysis:

1. Delay in Execution of the Order of Detention:
The petitioner challenged the legality, validity, and vires of the detention order dated 16-11-1995 under section 3(1) of the Conservation of Foreign Exchange and Smuggling Activities Act, 1974 (the Act). It was argued that there was a delay in executing the order. The court noted that the preventive detention is an anticipatory measure and does not relate to an offence, unlike criminal proceedings which are punitive. The court emphasized that the satisfaction of the detaining authority is subjective and based on any material or information available, which may not meet the standards of legal proof required for a criminal conviction.

2. Non-consideration of the Representation Made by the Petitioner:
The petitioner claimed that her representation was not considered. The court referred to the case of Addl. Secretary to the Govt. of India v. Alka Subhash Gadia, which outlines the limitations of judicial interference in preventive detention cases. The court stated that such interference is limited to specific circumstances and found no substance in the plea that the representation was not considered.

3. Lack of Material Linking the Petitioner's Husband to Any Irregular or Illegal Activity:
The petitioner contended that there was no material linking her husband to any irregular or illegal activity. The court observed that the matter of duty evasion by the petitioner's husband was under appeal, and thus, it was not desirable to test the sufficiency of the material used by the authorities. The court reiterated that the preventive detention is based on the subjective satisfaction of the detaining authority and does not require the same level of proof as criminal proceedings.

4. Applicability of the Government Notification Dated 22-1-1999:
The petitioner argued that a Government notification dated 22-1-1999 mandated the revocation of detention orders issued prior to 1-1-1996 that remained unexecuted. The court clarified that the notification was actually a letter issued by the Joint Secretary (COFEPOSA) to different sponsoring authorities, and it specified that detention orders would not be revoked for individuals categorized as organizers, financiers, or kingpins. Since the petitioner's husband was categorized as an organizer, his detention order was not revoked. The court found that this disputed question of fact could not be adjudicated in the present petition.

Conclusion:
The court dismissed the petition, stating that it was not a fit case for interference before the execution of the detention order. The petitioner's husband was advised to surrender pursuant to the order of detention and then have his grievances examined on merits. The petition was found to be thoroughly misconceived and was dismissed accordingly.