2000 (4) TMI 831 - HC - Indian Laws

Summary

Issues Involved:
1. Delay in passing the detention order.
2. Non-placement of relevant documents before the Advisory Board.
3. Legality of the detention order based on Section 123 of the Customs Act.

Detailed Analysis:

1. Delay in Passing the Detention Order:
The petitioner challenged the detention order dated 14th July 1999, arguing that it was passed five and a half months after the incident on 28th January 1999, which vitiated the order due to undue delay. The court examined several precedents, noting that while delay is not inherently fatal, it must be reasonably explained. In this case, the court found that the investigation had effectively concluded by 4th March 1999, and there was no valid explanation for the delay until the bail modification on 19th May 1999. The court concluded that the delay was unexplained and unreasonable, thereby snapping the live link between the incident and the detention order, rendering the order illegal.

2. Non-Placement of Relevant Documents Before the Advisory Board:
The petitioner argued that the show cause notice issued on 22nd July 1999 and the replies given by the detenu and the driver were not placed before the Advisory Board, which was a material lapse. The court agreed, stating that these documents were relevant and material to the subject of detention and should have been presented to the Advisory Board. The failure to do so breached the detenu's rights under Article 22(5) of the Constitution, as it prevented an effective representation against the detention order. This omission further vitiated the detention order.

3. Legality of the Detention Order Based on Section 123 of the Customs Act:
The petitioner contended that the detention order was erroneously based on the legal provision of Section 123 of the Customs Act, which pertains to the burden of proof. The court noted that the detention order should be based on tangible material available to the detaining authority and not merely on legal principles. However, the court did not delve deeply into this issue, as the detention order was already found to be vitiated on the grounds of delay and non-placement of relevant documents before the Advisory Board.

Conclusion:
The court quashed the detention order due to unexplained delay and failure to present relevant documents to the Advisory Board, directing the release of the detenu unless required in any other matter by any other authority.