2020 (2) TMI 1366 - HC - FEMA

Preventive detention - Powers in relation to absconding persons - COFEPOSA Act - delay in detaining the detenu - whether the detenu is absconding? - HELD THAT - Ground is answered by the Learned Government Advocate to contend that the appropriate Government has not taken a decision as to whether the detenu is absconding or not. We are of the view that such an explanation by the State is unacceptable. After the issuance of an order of preventive detention the detenu requires to be arrested forthwith. If not, the procedure under Section 7 of the COFEPOSA Act requires to be complied with. They have failed to do so. The contention of the Learned Government Advocate runs contrary to the facts of the case. Therefore, such a contention cannot be accepted. The Hon ble Supreme Court in the Judgment in the case of Manju Ramesh Nahar v. Union of India and Others 1999 (3) TMI 658 - SUPREME COURT have clearly stated that when the respondents have not furnished the information in detail of any steps to execute the order of preventive detention, the detention itself becomes illegal. That if persons who are responsible for execution of the order sleep over the order and do not execute the same, it would reflect upon the satisfaction of the detaining authority and would be exhibitive of the fact that the immediate necessity of passing that order was wholly artificial or non-existent. The same set of facts are present herein also. Except narrating the various steps taken by him to go to the house of the detenu and meet his wife etc., there is nothing tangible that has been done by the State. The case relied upon by the Learned Government Advocate in the case of Vinod Chawla v. Union of India and Others 2006 (8) TMI 521 - SUPREME COURT in our considered view, runs contrary to the interest of the State - contention with regard to the delay in detaining the detenu cannot be accepted. However, in the instant case, the same has not happened. No effort is made by the State under Section 7 of the COFEPOSA Act. There is no publication or proclamation. Therefore, in the absence of complying with the provisions of Section 7 of the Act, the further detention of the detenu becomes illegal. In this case nothing seems to have been done. The provisions of Section 7 have not been followed. There is no effort made by the State. Even the reasoning assigned by them cannot be accepted. It cannot be said that there was any effort by the State in making any arrest. The contention of the Learned Government Advocate that the State has to be satisfied that he is absconding cannot be accepted, especially in view of the fact that he was arrested six months after the order of detention. Hence, the petition requires to be allowed. Under these circumstances, no further contentions are advanced by the petitioner s Counsel. Writ Petition Habeas Corpus is allowed. The further detention of the detenu is held to be illegal. The detenu directed to be released from custody forthwith, if he is not required in any other case/s.

Summary

Issues: Delay in arrest of detenu under preventive detention order

Analysis:
1. The petitioner, the wife of the detenu, challenged the delay in the arrest of her husband after a preventive detention order was issued on 21-2-2019, and he was arrested on 10-8-2019. The petitioner contended that the unexplained delay rendered the detention order illegal, citing the Supreme Court's ruling in Manju Ramesh Nahar v. Union of India.

2. The respondent, represented by the State, argued that adequate reasons for the delay were provided through a memo filed by the DRI and an affidavit from the Deputy Superintendent of Police, CID. They relied on the Supreme Court's decision in Vinod K. Chawla v. Union of India, emphasizing that if a person evades service of the detention order, the delay in arrest does not invalidate the detention.

3. The Court examined Section 7 of the COFEPOSA Act, which outlines procedures for absconding persons. The Court noted that the State failed to follow the prescribed procedures under Section 7, as no steps were taken to execute the detention order promptly or declare the detenu as absconding. The State's explanation regarding the detenu's status was deemed unacceptable.

4. Referring to precedents like Manju Ramesh Nahar v. Union of India and Vinod Chawla v. Union of India, the Court emphasized that the failure to execute the detention order promptly reflects negatively on the satisfaction of the detaining authority, rendering the detention illegal. The Court found that the State's actions did not comply with the necessary legal procedures.

5. The Court rejected the State's reliance on the case of Bhawarlal Ganeshmalji v. State of Tamil Nadu, where actions were taken pursuant to Section 7 for an absconding accused. In contrast, in the present case, no efforts were made by the State to follow the provisions of Section 7, leading to the conclusion that the detenu's further detention was illegal.

6. Ultimately, the Court allowed the writ petition, declaring the detenu's continued detention as illegal and ordering his immediate release, emphasizing the importance of following legal procedures for preventive detention orders. The Court directed the Registry to communicate the order to the relevant authorities for necessary action.