2020 (2) TMI 1318 - HC - Customs

Validity of Detention Order - Smuggling of Gold - inordinate delay in passing the detention order - COFEPOSA Act - HELD THAT - In the case on hand, the last and first prejudicial act recorded against the petitioner was in the month of January, 2014 to July, 2015, whereas the detention order is passed on 2.8.2019, which is after a period of four years. As such test of proximity is not mechanical test by merely counting number of months between the offending acts and the order of detention. But, when there is undue delay, than the Court has to scrutinize whether the detaining authority has satisfactorily examined such a delay occurred. No any reasonable explanation is provided by the detaining authority and in absence of reasonable explanation to show that the casual connection has been broken and it was till alive at the time of passing the detention order and then, it is a matter of fact that no any offence is registered against the petitioner either by Custom Department or State or Central Department about prejudicial activities. The detention order stands vitiated on account of inordinate and unexplained delay in passing detention order - the petitioner shall be released forthwith, if he is not required in any other offence - petition allowed.

Summary

Issues: Challenge to detention order based on inordinate delay in passing the order.

Analysis:
1. The petitioner challenged a detention order dated 2.8.2019 under Article 226 of the Constitution of India, claiming there was no nexus between the alleged illegal activity and the detaining authority's claim. The alleged illegal activity occurred between January 2014 and July 2015, while the detention order was issued in 2019.

2. The detaining authority accused the petitioner and a co-detenue of financing the smuggling of 185 kgs of gold into India between January 2014 and July 2015. Reference was made to a judgment by the Delhi High Court in a similar case where the Supreme Court quashed a detention order due to lack of proximity between the events and the detention order.

3. The High Court emphasized that the test of proximity is not a mechanical count of months between the acts and the detention order. The Court cited a Supreme Court decision stating that undue delay requires scrutiny to determine if the causal connection between the activities and the purpose of detention remains intact.

4. Relying on the judgments in cases involving co-detenues, the Court found that the detention order against the petitioner was vitiated by inordinate and unexplained delay. Consequently, the Court allowed the petition, quashed the detention order, and ordered the petitioner's immediate release unless required in another offense.

5. The Court's decision was based on the principle that the detention order lacked a proximate link between the alleged activities and the order's issuance, following the precedent set in similar cases. The judgment highlighted the importance of examining delays in passing detention orders and ensuring the causal connection between activities and detention remains intact.