2008 (8) TMI 989 - HC - Indian Laws

Summary

Issues Involved:
1. Delay in execution of the detention order and its justification.
2. Impact of delay on the validity of the detention order and the detenu's release.
3. Burden of proof regarding the detenu's availability for service of the detention order.

Issue-Wise Detailed Analysis:

1. Delay in Execution of the Detention Order and its Justification:
The court examined whether the detaining and executing authorities satisfactorily explained the delay in executing the detention order. The detenu was arrested on 21st October 2005, released on bail on 11th November 2005, and the detention order was issued on 14th November 2006 but served only on 1st February 2008. The authorities argued that the detenu was absconding, making repeated attempts to serve the order futile. Actions under sections 7(1)(a) and 7(1)(b) of The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, were taken, including issuing a notification in the Official Gazette and apprehending certain persons based on secret intelligence, which eventually led to the detenu's identification and service of the order.

2. Impact of Delay on the Validity of the Detention Order and the Detenu's Release:
The court deliberated whether the delay in execution alone could invalidate the detention order. It was emphasized that the detenu cannot benefit from his own wrong, such as absconding to evade service. The court referenced various judgments, including those from the Supreme Court, establishing that if the delay is due to the detenu's actions, the link between the detenu's prejudicial activities and the detention order remains intact. The authorities' efforts to serve the order, despite the detenu's non-traceability, were deemed sufficient to uphold the detention order.

3. Burden of Proof Regarding the Detenu's Availability for Service of the Detention Order:
The court analyzed the shifting burden of proof. Initially, the detaining and executing authorities must prove they made all possible efforts to serve the detention order. Once a notification under section 7(1)(b) is issued, the burden shifts to the detenu to demonstrate that he was not absconding and had informed the authorities of his whereabouts. The court concluded that the detenu failed to meet this burden, as he did not comply with the notification requirements nor informed the authorities of his whereabouts within the specified time.

Conclusion:
The court found that the authorities had taken all necessary steps to serve the detention order promptly and that the delay was justified due to the detenu's absconding. The detenu's failure to comply with the legal requirements under section 7(1)(b) further validated the authorities' actions. Consequently, the detention order was upheld, and the petition was dismissed. The court also dismissed the argument regarding the lack of efforts to cancel the detenu's bail, aligning with previous judgments on similar contentions.