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2012 (9) TMI 57 - SC - CustomsDelay in Order of detention - 14 months in executing the detention order - allegation of fraudulent exports made from Nhava Sheva Port - Held that - If there is unreasonable delay in execution of the detention order, the same vitiates the order of detention. In the case on hand, though the appellant s brother-the detenu was released on bail on 11.11.2005, the detention order was passed only on 14.11.2006, actually, if the detenu was absconding and was not available for the service of the detention order, the authorities could have taken steps for cancellation of the bail and for forfeiture of the amount deposited. Admittedly, no such recourse has been taken. If the respondents were really sincere and anxious to serve the order of detention without any delay, it was expected of them to approach the court concerned which granted bail for its cancellation, by pointing out that the detenu had violated the conditions imposed and thereby enforce his appearance or production as the case may be. Admittedly, no such steps were taken instead it was explained that several attempts were made to serve copy by visiting his house on many occasions. In the absence of proper explanation for a period of 15 months in issuing the order of detention, the same has to be set aside. Since, we are in agreement with the contentions relating to delay in passing the Detention Order and serving the same on detenu, there is no need to go into the factual details - thus as the detention period has already expired, no further direction is required for his release. The appeal is allowed.
Issues Involved:
1. Delay in executing the detention order. 2. Delay in passing the detention order. Issue-wise Detailed Analysis: 1. Delay in Executing the Detention Order: The appellant contended that despite the detention order being passed on 14.11.2006, it was executed only on 01.02.2008, resulting in an inordinate and unreasonable delay of 14 1/2 months. The respondent-State argued that the detenu was absconding, and despite repeated attempts, the authorities could not trace him. The State also claimed that actions under Sections 7(1)(a) and 7(1)(b) of COFEPOSA were initiated, shifting the burden onto the detenu. The Court referred to Article 22(5) of the Constitution of India, which mandates prompt communication of the grounds of detention to the detenu and the earliest opportunity for making a representation. Citing precedents like P.M. Hari Kumar vs. Union of India and Others, SMF Sultan Abdul Kader vs. Jt. Secy., to Govt. of India and Others, and A. Mohammed Farook vs. Jt. Secy. to G.O.I and Others, the Court emphasized the necessity of serving the detention order without undue delay. The Court found that the authorities did not make sincere and earnest efforts to serve the order promptly, as they failed to cancel the bail or forfeit the bail amount deposited by the detenu. The reasons provided by the authorities were deemed unacceptable and unsatisfactory, leading to the conclusion that the delay in executing the detention order vitiated the detention itself. 2. Delay in Passing the Detention Order: The appellant argued that there was an unreasonable and inordinate delay of 15 months in passing the detention order after the DRI recorded the statement of Vijay Mehta on 03.08.2005 and arrested the detenu on 21.10.2005. The Court highlighted that such delays could render the incident stale and break the nexus or proximity between the incident and the detention order. The Court referred to several cases, including Lakshman Khatik vs. The State of West Bengal, T.V. Abdul Rahman vs. State of Kerala and Others, and Pradeep Nilkanth Paturkar vs. S. Ramamurthi and Others, which established that unexplained delays in passing detention orders could vitiate the detention. The Court concluded that the delay of 15 months in passing the detention order was not satisfactorily explained, thereby vitiating the detention itself. The Court emphasized that the Detaining Authority must provide a reasonable and acceptable explanation for the delay, failing which the subjective satisfaction required for detention would be compromised. Summary: The Supreme Court found that both the delay in executing the detention order and the delay in passing the detention order were unreasonable and unexplained, thereby vitiating the detention. The Court quashed the detention order dated 14.11.2006 and set aside the High Court's judgment dated 14.08.2008. The appeal was allowed, and no further direction for the detenu's release was required as the detention period had already expired.
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