2016 (2) TMI 203 - HC - Indian Laws

Validity of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 ( COFEPOSA for short) - delay in passing the detention order - Held that - On the ground of delay, we are satisfied that the order of detention is vitiated by an enormous and unexplained delay. This Court and the Hon ble Supreme Court on a number of occasions have criticized the approach of the Sponsoring Authorities and especially of the Detaining Authorities. If these authorities are indeed sincere about apprehending smugglers, checking smuggling and taking further steps to prevent its perpetuation, then they ought to have paid heed to the repeated warnings of the country s highest Court. Instead, we are deeply troubled to see absolutely no change in their approach. The time consumed for scrutiny, evaluation and a detailed analysis of proposals received from the Sponsoring Authority should not be so much as would enable the live link to be snapped, the credible chain broken and the very purpose of the detention proposed itself defeated. After the detenu was enlarged on bail on 1st April 2015, if the detaining authority on receipt of the proposal on 15th April 2015 does not issue the detention order till 17th July 2015, then we have no alternative but to record our satisfaction that there is indeed a long and unexplained delay sufficient to conclude that the live link is snapped. Court will examine the types of grounds given for detention and consider whether such grounds could really weight with an office several months later in forming a subjective satisfaction as to the necessity for preventive detention. This, in our view, is the very principle being invoked when we speak of the live link being snapped . This is the causality implicit in our use of the phrase credible chain . The detaining authority is required, as a matter of Constitutional law, to ensure that the live link is not snapped, the credible chain not broken. It is in these circumstances, while reminding the Detaining Authority as also the Sponsoring Authority of their duties and responsibilities, we have no other alternative but to quash and set aside the detention order as admittedly it is vitiated by a delay of three months and four days. Thus The detention order is quashed and set aside.

Summary

Issues Involved:
1. Delay in passing the detention order.
2. Validity of the detention order under COFEPOSA.
3. Procedural adherence by the Detaining Authority.

Detailed Analysis:

1. Delay in Passing the Detention Order:
The primary issue raised by the Petitioner was the delay in passing the detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). The detenu was apprehended on 23rd September 2014, and the detention order was issued on 17th July 2015, served on 4th August 2015. The Petitioner argued that the delay of 10 months from the incident and 5 months after the detenu's inculpatory statement rendered the detention order stale and remote. The Affidavit in Reply by the Sponsoring Authority and the Detaining Authority attempted to justify the delay by detailing the procedural steps and holidays involved. However, the Court found these explanations unsatisfactory, noting that the delay was enormous and unexplained, thus snapping the live link and breaking the credible chain necessary for preventive detention.

2. Validity of the Detention Order under COFEPOSA:
The Court emphasized that preventive detention under COFEPOSA is a drastic measure intended to prevent smuggling activities and must be executed with urgency and precision. The Court criticized the approach of the Sponsoring and Detaining Authorities, highlighting that their tardiness undermined the purpose of the detention. The Court referenced Supreme Court judgments, including Dropti Devi v. Union of India and Sunil Fulchand Shah v. Union of India, underscoring the necessity for strict adherence to procedural guidelines and the importance of maintaining a live link between the incident and the detention order.

3. Procedural Adherence by the Detaining Authority:
The Court scrutinized the procedural adherence by the Detaining Authority, noting that the time taken for scrutiny, evaluation, and analysis of the proposal from the Sponsoring Authority was excessive. The Detaining Authority's Affidavit detailed the procedural steps and holidays, but the Court found these explanations inadequate. The Court emphasized that actions curtailing personal liberty must be swift and accurate, with no margin for error or tardiness. The Court reiterated the importance of adhering to Constitutional and statutory safeguards in matters of preventive detention, as emphasized in Supreme Court judgments such as Saeed Zakir Hussain Malik v. State of Maharashtra.

Conclusion:
The Court quashed the detention order due to the unexplained delay of three months and four days, which vitiated the order. The Court made the rule absolute in terms of prayer clause (a), ordering the immediate release of the detenu if not required in any other case. The Court did not consider other grounds challenging the detention order due to its decision on the delay issue.