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2020 (10) TMI 185 - HC - CustomsRelease of detenue - Smuggling - electronic goods - whether delay in passing the detention order would vitiate the detention order? - HELD THAT - There is nothing on record to indicate the steps taken or the efforts made by the executing authority to execute the order of detention between the period from March 3, 2020 to June 8, 2020. The executing authority has only stated that they visited the address mentioned in the detention order on February 25, 2020 and March 3, 2020 when they found the premises have been demolished for construction of SRA project. Further, they stated that they visited the mobile shop of the petitioner s brother on these two dates viz. February 25, 2020 and March 3, 2020 when they found the shop to be closed. Except for this no material is produced on the basis of which it can be said that the police authorities made reasonable efforts to locate the petitioner and apprehend him and yet they were not successful in finding him out - In the facts of the present case, it is not possible for us to accept the bare and vague contention of the executing authority that the detenu had absconded in the absence of bringing materials on record about efforts made to trace out the detenu during the period from March 3, 2020 to May 28, 2020. For the period from March 3, 2020 upto May 28, 2020, we find no serious efforts were made by the police authorities to apprehend the detenu and no materials are placed on record to indicate the steps taken. It is not stated where they looked for him and what inquiries were made by the police authorities to find his whereabouts. No materials are produced on the basis of which it can be said that the police authorities had made reasonable efforts to locate the petitioner and apprehend him and yet they were not successful in finding him out. Thus, this delay in execution of the detention order remains unexplained. The unreasonable delay in executing the order creates a serious doubt regarding the genuineness of the Detaining Authority as regards the immediate necessity of detaining the petitioner in order to prevent him from carrying on the prejudicial activity referred to in the grounds of detention. Hence, the inevitable conclusion would be that the Respondents were not serious in detaining the Petitioner under the preventive law of COFEPOSA. The detention order is set aside - petition allowed - decided in favor of petitioner.
Issues Involved:
1. Delay in passing the detention order. 2. Delay in executing the detention order. 3. Impact of COVID-19 on the necessity of the detention order. Issue-wise Detailed Analysis: 1. Delay in Passing the Detention Order: The petitioner challenged the detention order under Article 226 of the Constitution of India, citing inordinate delay in its issuance. The petitioner was released on bail on November 6, 2019, but the detention order was passed on February 14, 2020, and executed on July 2, 2020. The petitioner argued that the delay lacked explanation, relying on the Supreme Court's decision in SMF Sultan Abdul Kader vs. Joint Secretary to Government of India. The Detaining Authority justified the delay, stating that the proposal for detention was received on January 24, 2020, and the Central Screening Committee (CSC) held a meeting on February 5, 2020, leading to the issuance of the detention order on February 14, 2020. The court found the delay satisfactorily explained, referencing the Supreme Court's ruling in Union of India vs. Muneesh Suneja, which allows for delays if adequately justified. 2. Delay in Executing the Detention Order: The petitioner contended that the delay in executing the detention order from February 14, 2020, to July 2, 2020, was undue and unexplained. The Detaining Authority argued that the petitioner was absconding, and all possible steps were taken to execute the order. The police made efforts on multiple dates, but the petitioner was not traceable. Proclamation under Section 7(1)(b) of the COFEPOSA Act was issued on June 8, 2020. The court examined the efforts made by the police and found that there were gaps in the explanation, particularly between March 3, 2020, and June 8, 2020. The court cited the Supreme Court's decisions in Kadhar Naina Ushman vs. Union of India and K.P.M. Basheer vs. State of Karnataka, emphasizing that unexplained delays in execution create doubts about the genuineness of the detention order. The court concluded that the delay in execution was not satisfactorily explained, rendering the detention order vulnerable. 3. Impact of COVID-19 on the Necessity of the Detention Order: The petitioner argued that the COVID-19 pandemic and the suspension of international flights rendered the detention order unnecessary. The court referred to the Circular dated August 31, 2020, issued by the Director General of Civil Aviation, which allowed international flights on selected routes. The court held that the temporary suspension of flights due to COVID-19 did not sever the live nexus between the petitioner's past conduct and the need for detention. The precautionary suspension of flights was not a valid ground to challenge the detention order. Conclusion: The court allowed the petition, quashed the detention order, and directed the release of the petitioner, citing the unexplained delay in executing the detention order as the primary reason. The judgment emphasized the need for a genuine and immediate necessity for detention, which was undermined by the delay in execution.
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