1985 (11) TMI 238 - HC - Indian Laws

Summary

Issues Involved:
1. Subjective satisfaction of the detaining authority based on a single incident.
2. Delay in considering the representation by the detaining authority.
3. Delay in passing the detention order.
4. Delay in executing the detention order.
5. Exercise of power by the Central Government under Section 11 of the COFEPOSA Act.

Detailed Analysis:

1. Subjective Satisfaction of the Detaining Authority Based on a Single Incident:
The petitioner challenged the detention order on the grounds that the subjective satisfaction of the detaining authority could not have been properly arrived at due to the fact that the incident of smuggling was a solitary incident. The court referenced the Division Bench judgment in Yahya Ali Ahmed Fahem v. State of Maharashtra, which established that a single incident could form the basis of subjective satisfaction for future prevention under the COFEPOSA Act. The court reiterated that a single incident, if it demonstrates potentiality for continuing criminality and indicates previous practice and expertise, can lead to a legitimate conclusion that similar activities could be repeated. The court found that the petitioner's actions, as recorded under Section 108 of the Customs Act, showed full awareness and active participation in smuggling, thus justifying the detention order.

2. Delay in Considering the Representation by the Detaining Authority:
The petitioner argued that the continued detention was illegal due to the delay in considering his representation. The representation, received on 18th February 1985, was rejected by the State Government on 6th March 1985. The court, referencing Harish Pahwa v. State of U.P., emphasized that representations must be considered expeditiously. The court found that the State Government acted with due diligence, forwarding the representation to the sponsoring authority and receiving comments promptly, thus rejecting the argument of undue delay.

3. Delay in Passing the Detention Order:
The petitioner contended that the delay between the incident (28th July 1984) and the detention order (2nd November 1984) indicated a lack of proper appreciation of the factors involved. The court found that the delay was satisfactorily explained by the need for translation of documents into Gujarati and the procedural steps involving the Screening Committee and the Home Department. The court held that the delay did not vitiate the detention order.

4. Delay in Executing the Detention Order:
The petitioner argued that the nearly two-month delay in executing the detention order affected the quality of the subjective satisfaction. The court examined the steps taken to execute the order, including efforts to locate the petitioner and attempts to serve the order during court remand dates. The court concluded that the detaining authority was neither negligent nor inactive, and the delay was due to procedural requirements and difficulties in locating the petitioner. The court found no basis to claim that the subjective satisfaction was not genuine.

5. Exercise of Power by the Central Government under Section 11 of the COFEPOSA Act:
The petitioner raised the issue of whether the Central Government exercised its power under Section 11 of the COFEPOSA Act to review the detention order. The court reviewed an affidavit from the Under Secretary to the Government of India, which confirmed that the report from the State Government was scrutinized, and no reason for interfering with the detention order was found. The court was satisfied that the Central Government acted within a reasonable time and with due diligence.

Conclusion:
The court found that neither the order of detention nor the continued detention of the petitioner was illegal. The rule was discharged, and the petition was dismissed.