2001 (1) TMI 903 - SC - FEMA

Detention order - Held that - Appeal allowed. The order of detention having been made as early as on 9-6-1998 and the same not having been effected till today it is certainly necessary for the authorities concerned in the Government to apply mind as to whether detention of the respondent is still necessary or not and take appropriate steps either in giving effect to the order of detention or to revoke the same. In addition we may also notice that the order made by us will not prejudice the interest of the respondent that in the event the said order of detention is given effect to it is open to the respondent to raise all grounds as are permissible in law notwithstanding what we may have observed in the course of this order.

Summary

Issues:
Challenge to validity of detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1973. Interference by High Court at pre-detention stage. Delay in passing and executing detention order.

Analysis:

1. The case involved a challenge to the validity of a detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1973. The High Court of Punjab and Haryana was approached with a writ petition contesting the detention order issued against the respondent. The respondent had earlier filed a similar petition in the High Court of Delhi, which was withdrawn with liberty to file a fresh petition if necessary. Notably, the High Court of Punjab and Haryana was not informed about the previous petition filed in Delhi. The detention order was based on incidents involving the recovery of currency and gold from the respondent's premises. The order was passed nearly a year after the alleged incident.

2. The High Court raised concerns about the delay in issuing the detention order and the lack of effective steps taken to execute it, merely alleging that the respondent was absconding. The appellant challenged the High Court's interference at the pre-detention stage, citing precedents that courts should not intervene unless exceptional circumstances exist, such as the order being passed for a wrong purpose or on vague grounds. The Additional Solicitor General argued that the grounds cited by the High Court did not warrant interference at that stage.

3. The respondent's counsel contended that the delay in issuing the detention order and the lack of execution efforts justified the High Court's intervention. He referred to previous cases to support his argument. The Court emphasized that the matter should be examined like any other writ petition and noted the failure to disclose the previous petition filed in Delhi as a fatal lapse. Despite this, the Court acknowledged the respondent's liberty interests under the Constitution but ultimately held that the High Court's decision to quash the detention order was legally flawed.

4. While setting aside the High Court's order, the Supreme Court directed the authorities to reconsider the necessity of the respondent's detention, given the passage of time since the order was issued and not executed. The Court clarified that its decision did not prejudice the respondent's ability to raise legal grounds if the detention order was implemented in the future. The appeals were allowed, and the High Court's order was overturned.