2012 (4) TMI 566 - HC - Customs

Summary

Issues Involved:
1. Legality of the detention order.
2. Delay in passing the detention order.
3. Justification for preventive detention when criminal proceedings are ongoing.
4. Impact of the petitioner being granted bail on the detention order.

Summary:

Legality of the Detention Order:
The petitioner sought quashing of the detention order dated 09.09.2011 issued by the Central Government u/s 8(f) of COFEPOSA. The detention order was based on intelligence received by DRI and subsequent events on 05.07.2010, including the seizure of Fake Indian Currency Notes (FICN) worth Rs. 2,95,000/- and the petitioner's confession u/s 108 of the Customs Act. The petitioner argued that the detention order was illegal as he was already facing prosecution u/s 135 of the Customs Act and Section 489 IPC.

Delay in Passing the Detention Order:
The petitioner highlighted that all necessary facts were available to the detaining authority by August 2010, yet the detention order was issued on 09.09.2011, indicating inordinate delay. The Court noted that no new material was examined between August 2010 and September 2011 to justify the delay. The Supreme Court's decision in T. D. Abdul Rahman vs. State of Kerala was cited, emphasizing that undue and unexplained delay can break the causal connection between prejudicial activities and the purpose of detention.

Justification for Preventive Detention When Criminal Proceedings Are Ongoing:
The Court referred to the Supreme Court's decisions in Haradhan Saha vs. State of West Bengal and Rekha vs. State of Tamilnadu. It was noted that while preventive detention is not barred by ongoing criminal proceedings, it must be justified under Article 21 and 22 of the Constitution. The Court found that the detention order was primarily based on the confessional statement and recoveries from Amirul Islam's premises, with no new material justifying the delay.

Impact of the Petitioner Being Granted Bail on the Detention Order:
The petitioner was granted bail on 08.11.2011 due to insufficient prima facie evidence. The Court observed that the detention order, based on past activities and the confessional statement, was insufficient to justify continued detention. The Court emphasized that the petitioner's right under Article 21 was violated, as there was no case registered against him for similar or other offences.

Conclusion:
The Court quashed the detention order dated 09.09.2011 u/s 3 and 8 of COFEPOSA due to inordinate delay and insufficient justification for preventive detention. The writ petitioner was ordered to be released forthwith unless required in any other case. The writ petition was allowed.