2015 (8) TMI 675 - HC - Customs

Detention orders Inordinate delay Petitioner challenges impugned order 2nd respondent directing detenu to be preventively detained with view to prevent him in future from smuggling of goods as well as engaging in transporting and concealing and keeping smuggled goods Held that - detention proposal was forwarded to detaining authority on 26th June 2014 and that further generated documents were sent to detaining authority on 14th August 2014 No explanation in affidavit by sponsoring authority as regards to delay from 26th June 2014 to 14th August 2014, also affidavit was completely silent on effect of further generated documents being forwarded to detaining authority Detaining authority after being subjectively satisfied that there were sufficient reasons to issue detention, finalized same along with grounds of detention on 15th December 2014, about one month apart from earlier delay There was delay of about 7 months from date of arrest till date of passing of detention order which was not satisfactorily explained Explanation rendered by respondents was not satisfactory and authorities cannot play with liberty of citizen in such casual manner As principle of law, unexplained and inordinate delay in passing of detention order would vitiate detention order Thus, order of detention quashed Detenu to be released Decided in favour of petitioner.

Summary

Issues Involved:
1. Unexplained delay in issuance of the detention order.
2. Subjective satisfaction of the detaining authority.
3. Compliance with procedural safeguards under preventive detention laws.

Issue-wise Detailed Analysis:

Unexplained Delay in Issuance of the Detention Order:
The principal ground raised by the petitioner is the unexplained delay in the issuance of the detention order. The detention order was issued seven months after the detenu was arrested. The petitioner argues that this delay is inordinate and unexplained, thus vitiating the detention order. The detenu was intercepted on 11th April 2014, and a detailed examination led to the recovery of 13 gold bars weighing 1 kg each and 2 gold bars weighing 10 tolas each, totaling 13232 grams. The detenu's statement was recorded on 11th May 2014 under section 108 of the Customs Act, 1962, and he was arrested the same day. He was released on bail on 1st July 2014. The sponsoring authority forwarded the proposal to the COFEPOSA cell on 2nd June 2014, and the screening committee approved it on 17th June 2014. However, there is no explanation for the delay between 26th June 2014 and 4th August 2014. The detaining authority's affidavit also fails to provide a satisfactory explanation for the delay, stating that additional information was requested and reminders were sent, but no clear reason for the delay is given. The court found that the delay of about seven months from the date of arrest to the date of passing the detention order is not satisfactorily explained, thus snapping the live link between the prejudicial activity and the need for detention.

Subjective Satisfaction of the Detaining Authority:
The petitioner contends that the detaining authority was not subjectively satisfied with the proposal submitted on 26th June 2014, as evidenced by the extended correspondence seeking additional information. The detaining authority's affidavit states that the proposal was scrutinized, and additional information was called for multiple times, showing a lack of subjective satisfaction. The court observed that the manner in which the proposal was handled, including the preparation of scrutiny notes and endorsements by various officers, indicates a lackadaisical attitude and absence of any live link or nexus between the prejudicial activity and the need for detention. The court emphasized that the power to make detention orders must be exercised diligently and not casually.

Compliance with Procedural Safeguards:
The petitioner relied on several Supreme Court decisions to argue that unexplained and inordinate delay in passing a detention order vitiates the order. The court agreed with the petitioner, stating that the authorities cannot play with the liberty of a citizen in a casual manner. The court highlighted that the delay in passing the detention order shows that the live link between the prejudicial activity and the purpose of detention is snapped. The court also noted that the authorities' explanations for the delay were not satisfactory or reasonable. The court distinguished the present case from other Supreme Court decisions cited by the respondents, where the delay was satisfactorily explained.

Conclusion:
The court found that the detention order is vitiated by unexplained and inordinate delay. The petition succeeded, and the detention order was quashed. The detenu was ordered to be released forthwith if not required in any other case. The court deemed it unnecessary to deal with other grounds on which the detention order was challenged, given the finding on the delay issue.