2008 (9) TMI 830 - HC - Central Excise

Detention - Delay in issuing detention order - non-placement of a vital document when the case of the detenu was referred to the Board - Held that - The time of couple of months taken at the level of the sponsoring authority or at the instance of the detaining authority in taking the impugned action cannot be catagorised as a delay caused in taking such an action of detention and that it is fatal. There is nothing on record to show that even in the aforesaid background of the potentiality and the propensity of the detenu to again commit the same prejudicial activity again mere alleged delay has resulted into severance of the necessary nexus as also making the grounds of detention stale and illusory. For all these reasons we hold that the detention order is not liable to be set aside on the mere ground of alleged delay that has occurred in its issuance. The contents of this document dated 27th February, 2008 in issue show that there is nothing new in this document which was not already on record and placed before either the Advisory Board and/or the Confirming Authority. Therefore, non-placement of this document in issue has not caused any prejudice to the detenu and the said document cannot be said to be a vital and material document, non-placement of which has or could have affected either the report of the Advisory Board or the decision of Confirming Authority in confirming the detention of the detenu. W.P. dismissed.

Issues Involved:
1. Delay in the issuance of the detention order.
2. Non-placement of a vital document before the Advisory Board.

Issue-wise Detailed Analysis:

1. Delay in the Issuance of the Detention Order:

The petitioner challenged the detention order on the ground of delay in its issuance. The incident occurred on 6th and 7th July 2007, and the detention order was issued on 28th January 2008. The petitioner argued that the delay included the time taken by the sponsoring authority to move the proposal for detention. The court examined the chronology of events and actions taken by the authorities, such as recording statements, conducting searches, and preparing the proposal. The sponsoring authority prepared the proposal on 18th September 2007, which was approved by the Screening Committee on 7th November 2007. The detaining authority received the proposal on 26th November 2007 and issued the detention order on 28th January 2008.

The court referred to the Supreme Court's observation in Abdul Salam v. Union of India, which stated that delay in passing a detention order is not fatal if it is satisfactorily explained. The court found that the sponsoring authority and the detaining authority had taken necessary steps within a reasonable time. The court concluded that the time taken by the authorities did not amount to inordinate delay and did not sever the nexus between the incident and the detention order. The court held that the detention order was not liable to be set aside on the ground of delay.

2. Non-placement of a Vital Document Before the Advisory Board:

The petitioner contended that a reply dated 27th February 2008 to the show cause notice, sent by the detenu's advocate, was not placed before the Advisory Board as required under Section 8(b) of the COFEPOSA Act. The petitioner argued that the non-placement of this vital document resulted in the infringement of the detenu's rights and non-application of mind by the Advisory Board and the Confirming Authority.

The respondents admitted that the document was not placed before the authorities but argued that it was not a vital document. The court examined the document and found that it contained factual statements already on record, including the detenu's retraction of his statements. The court noted that the retraction was already placed before the Advisory Board and the Confirming Authority. The court concluded that the non-placement of the document did not cause any prejudice to the detenu and was not a vital document that could have affected the decision of the authorities.

The court referred to the case of Sharifa Abubakar Zariwala, where it was held that an enquiry is necessary to determine if the withheld material is vital for recording satisfaction. The court found that the document in question was not vital and did not affect the authorities' decision. The court also referred to the case of Prakashchandra Mehra, where the Supreme Court held that even if a confessional statement is retracted, other independent facts can lead to the satisfaction of the authorities.

The court emphasized the object and purpose of the COFEPOSA Act, which is to prevent smuggling and conserve foreign exchange. The court concluded that the non-placement of the document did not vitiate the detention order and dismissed the petition.

Conclusion:

The court dismissed the petition, holding that the delay in issuing the detention order was satisfactorily explained and did not sever the nexus between the incident and the detention. The court also held that the non-placement of the document before the Advisory Board did not cause any prejudice to the detenu and was not a vital document affecting the authorities' decision. The detention order was upheld.

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