2015 (8) TMI 697 - HC - Customs

Delay in issuance the detention orders Validity of proceedings under COFEPOSA Act Petitioner was detained on grounds of possessing 12 gold bars without declaration All goods were confiscated and detenu was taken into arrest It was alleged by petitioner that inordinate delay of seven months in issuing detention order was not satisfactorily explained by respondent Held that - After considering facts, it was evident that delay in issuing detention order has occurred at every stage Neither sponsoring authority nor detaining authority were serious enough in issuing detention order expeditiously to prevent detenu in future from indulging into smuggling of goods as well from engaging in transportation and concealing and keeping smuggled goods As per communication between sponsoring and detaining authority, it proposed that detenu was not found indulged into smuggling / adverse activities Link between date of incident in question i.e. 11th May, 2014 and detention order dated 16th December, 2014 which came to be executed on 8th January, 2015 was snapped For said reasons detention order was vitiated on point of delay and therefore, deserves to be quashed and set aside Decided in favour of Petitioner.

Summary

Issues Involved:
1. Delay in issuing the detention order.
2. Explanation of delay by the authorities.
3. Legal precedents on delay and preventive detention.

Issue-Wise Detailed Analysis:

1. Delay in Issuing the Detention Order:
The petitioner challenged the detention order dated 16th December 2014, arguing that there was an inordinate delay of about seven months from the incident date (11th May 2014) to the issuance of the detention order. The petitioner contended that this delay vitiated the detention order as it snapped the "live link" between the incident and the detention, rendering the order stale and remote in time. The petitioner relied on the Supreme Court's decision in T.A. Abdul Rahman v. State of Kerala, which emphasized that undue and unexplained delay in issuing a detention order can indicate that the detaining authority was not genuinely satisfied about the necessity of detention.

2. Explanation of Delay by the Authorities:
The respondent authorities provided affidavits explaining the delay. The Customs Commissionerate of CSI Airport, Mumbai (Sponsoring Authority) detailed the procedural steps taken from the incident date to the proposal submission date (26th June 2014). The Home Department, Government of Maharashtra (Detaining Authority) explained the subsequent steps, including the scrutiny of documents, requests for additional information, and internal processing, leading up to the issuance of the detention order on 16th December 2014. However, the court found several unexplained gaps in the timeline, including delays of 24 days, 18 days, 15 days, 11 days, 27 days, 22 days, and 4 days at various stages of the process. These unexplained delays indicated a lack of seriousness in issuing the detention order expeditiously.

3. Legal Precedents on Delay and Preventive Detention:
The court considered several legal precedents. The petitioner cited the Supreme Court's decision in Adishwar Jain v. Union of India, which held that unexplained delays in issuing a detention order can vitiate the order. The respondent authorities relied on Rajendrakumar Natvarlal Shah v. State of Gujarat, which stated that mere delay does not necessarily invalidate a detention order if the delay is satisfactorily explained. The court also referred to Licil Antony v. State of Kerala, which emphasized the need for a "live link" between the prejudicial activity and the detention order, and the necessity of satisfactorily explaining any delay.

Conclusion:
The court concluded that the delay in issuing the detention order was not satisfactorily explained by the respondent authorities. The unexplained delays at various stages indicated a lack of urgency and seriousness in preventing the detenu from engaging in smuggling activities. Additionally, the court noted that the sponsoring authority had informed the detaining authority that the detenu had not engaged in any smuggling activities after the proposal submission, further weakening the case for preventive detention. Consequently, the court held that the detention order was vitiated due to the delay and quashed the order, directing the release of the detenu.

Order:
(I) The Petition is allowed.
(II) The impugned order dated 16th December 2014 is quashed and set aside. The Petitioner is directed to be released forthwith, if not required in any other case.