1992 (5) TMI 189 - HC - Customs

Summary

Issues Involved:
1. Legality of detention orders under COFEPOSA, 1974.
2. Validity of proceedings under SAFEMA, 1976.
3. Timeliness and maintainability of petitions challenging detention orders and SAFEMA notices.
4. Existence and communication of grounds of detention.

Issue-wise Detailed Analysis:

1. Legality of Detention Orders under COFEPOSA, 1974:
The petitioners challenged the original detention orders under COFEPOSA, 1974, on the grounds that these orders were illegal, invalid, and unconstitutional. It was argued that the grounds of detention were not formulated or furnished to the detenues at the time of or before the issuance of the detention orders. The court found that in several cases, the grounds of detention were indeed not in existence when the detention orders were passed, rendering the detention orders purely illusory and invalid. The court cited the Supreme Court decision in Krishna Murari Aggarwala v. Union of India, which emphasized that detention orders must be based on contemporaneously prepared grounds.

2. Validity of Proceedings under SAFEMA, 1976:
The petitioners contended that valid proceedings under SAFEMA presuppose valid detention orders under COFEPOSA. Since the detention orders were revoked or found invalid, the subsequent SAFEMA proceedings were also invalid. The court referenced the Supreme Court decision in Union of India v. Haji Mastan Mirza, which established that SAFEMA applies only if the detention order under COFEPOSA has not been set aside by a court of competent jurisdiction. As the original detention orders were revoked in several cases, the court concluded that the SAFEMA proceedings could not have been validly instituted.

3. Timeliness and Maintainability of Petitions:
The respondents argued that the petitions were not maintainable as they were filed late and the detention orders were not challenged in due course. However, the court rejected this preliminary objection, referencing its own earlier decisions and the Supreme Court's ruling in Union of India v. Haji Mastan Mirza, which allowed for the challenge of detention orders when used as a basis for SAFEMA proceedings. The court concluded that the petitions were maintainable despite the delay.

4. Existence and Communication of Grounds of Detention:
The court found that in many cases, the grounds of detention were not formulated at the time of passing the detention orders. This non-compliance with the constitutional mandate under Article 22(5) of the Constitution of India rendered the detention orders invalid. The court cited its own decision in Parshottam Dahyabhai Chunara v. State of Gujarat, which held that the grounds of detention must exist on the day the order is passed, and if recorded subsequently, the order is bad in law.

Conclusion:
The court allowed the group of 7 petitions, quashing and setting aside the impugned detention orders under COFEPOSA and the consequent notices under SAFEMA. The court ruled that the proceedings under SAFEMA were invalid due to the lack of valid detention orders under COFEPOSA and the non-existence of grounds of detention at the time of issuing the detention orders. The petitions were deemed maintainable, and no costs were ordered.