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2004 (12) TMI 670 - SC - CustomsWhether order of detention passed by the appellant No. 2 under Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the 'COFEPOSA') directing detention of Rajen Ghosal(hereinafter referred to as the 'detenu') correctly quashed by HC?
Issues Involved:
1. Delay in passing the order of detention. 2. Delay in executing the order of detention. 3. Sufficiency of a single incident to justify detention. 4. Delay in disposing of the representations. 5. Independent application of mind by the Central Government in rejecting the representation. Issue-Wise Detailed Analysis: 1. Delay in Passing the Order of Detention: The High Court held that there was unexplained delay in passing the order of detention. The investigation started in January 2002, and the order was passed in November 2002. The Supreme Court found that the High Court did not properly appreciate the factual scenario, noting that various writ petitions and interim orders contributed to the delay. The proposal for detention was sent on 4.7.2002, considered by the Central Screening Committee on 18.9.2002, and the order was passed on 20.11.2002. The steps taken, including the issuance of summons and recording of statements, justified the time taken. Therefore, the Supreme Court concluded that there was no unusual delay in passing the order of detention. 2. Delay in Executing the Order of Detention: The High Court found unusual delay in executing the order of detention. The Supreme Court noted that the order was passed on 20.11.2002, and the detenu was arrested on 17.12.2002. Efforts were made to arrest the detenu, including requests for police cooperation and surveillance. The detenu successfully evaded arrest until 27.12.2002. The Supreme Court held that the High Court erred in concluding that there was unusual delay in executing the order, as the authorities took all possible steps to apprehend the detenu. 3. Sufficiency of a Single Incident to Justify Detention: The High Court concluded that a single incident was insufficient to justify detention. The Supreme Court disagreed, stating that it is the impact of the act, not the number of acts, that determines the necessity of detention. The financial consequences of the detenu's actions were enormous, running into crores of rupees. The Supreme Court emphasized that the impact and effect of the act are determinative, not the number of incidents. Therefore, the High Court's conclusion on this issue was unsustainable. 4. Delay in Disposing of the Representations: The High Court found unexplained delay in disposing of the representations and concluded that the Central Government had not applied its mind independently. The Supreme Court noted that the materials on record showed independent application of mind by the Central Government. The representations were considered and rejected by both the Detaining Authority and the Central Government. The Supreme Court held that the High Court failed to properly appreciate the factual position and that the rejection of the representations was justified. 5. Independent Application of Mind by the Central Government: The High Court concluded that the Central Government had not applied its mind independently and merely rejected the representation because the Detaining Authority had done so. The Supreme Court found that the Central Government had indeed applied its mind independently, as evidenced by the order of rejection. The Supreme Court emphasized that the Detaining Authority and the Central Government had dealt with the representations with utmost expedition and that the High Court's conclusion was not justified. Conclusion: The Supreme Court set aside the High Court's judgment, finding that there was no unusual delay in passing or executing the order of detention, that a single incident could justify detention based on its impact, and that the representations were disposed of with independent application of mind by the Central Government. The Supreme Court directed the Detaining Authority to decide within a month whether further detention was desirable and to serve the order on the detenu accordingly. The appeal was allowed and disposed of in these terms.
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