2007 (7) TMI 651 - HC - Customs

Summary

Issues Involved:
1. Legality of the detention order under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act).
2. Delay in executing the detention order.
3. Subjective satisfaction of the detaining authority.
4. Availability and absconding of the detenu.
5. Right to representation and procedural safeguards.

Detailed Analysis:

1. Legality of the Detention Order:
The petitioner challenged the legality of the detention order passed by the Joint Secretary to the Government of India under Section 3(1) of COFEPOSA Act. The detaining authority opined that it was necessary to detain the petitioner's husband to prevent him from acting in any manner prejudicial to the augmentation of foreign exchange resources and the prevention of smuggling activities.

2. Delay in Executing the Detention Order:
The court focused on the delay in executing the detention order. The detention order was passed on 27.11.2003 but was executed only on 07.12.2006, a delay of more than three years. The petitioner argued that the detenu was available at his residence and had not absconded, as evidenced by his participation in family events and compliance with other statutory notices. The court noted that there was no satisfactory explanation from the detaining authority or the executing agency for this delay, which undermined the nexus between the alleged prejudicial activity and the detention order.

3. Subjective Satisfaction of the Detaining Authority:
The court examined whether the subjective satisfaction of the detaining authority was genuine and real. It was argued that the long delay in executing the order indicated that the detaining authority was not serious about the immediate necessity of detaining the detenu. The court cited several precedents, including *A.Mohammed Farook vs. Joint Secretary to Government of India* and *SMS Sultan Abdul Khader vs. Joint Secretary to Government of India*, to support the view that unexplained delay in execution vitiates the subjective satisfaction of the detaining authority.

4. Availability and Absconding of the Detenu:
The respondents contended that the detenu was absconding, which caused the delay in executing the order. However, the petitioner provided evidence, such as participation in his daughter's marriage and compliance with other statutory notices, to show that the detenu was available at his residence. The court found the explanation of the respondents unsatisfactory, noting that no serious efforts were made to arrest the detenu despite his known whereabouts.

5. Right to Representation and Procedural Safeguards:
The detaining authority had informed the detenu of his right to make a representation against the detention order to various authorities, including the Advisory Board. However, the court did not delve deeply into this issue, as the case was decided on the ground of delay in execution.

Conclusion:
The court concluded that the unexplained delay in executing the detention order vitiated the subjective satisfaction of the detaining authority and rendered the detention order invalid. The court ordered the release of the detenu, stating that the detention order must stand vitiated by reason of non-execution within a reasonable time.