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Issues Involved:
1. Legality and validity of the declaration made under Section 9(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA Act). 2. Unexplained delay of 9 months in initiating the detention action. Issue-wise Detailed Analysis: 1. Legality and Validity of the Declaration under Section 9(1) of the COFEPOSA Act: The petitioner challenged his detention on the grounds that the declaration made under Section 9(1) of the COFEPOSA Act was not legally valid. According to the Act, a person can be detained for a period longer than three months but not exceeding six months without obtaining the opinion of an Advisory Board, provided the Central Government or its officer, not below the rank of Additional Secretary, is satisfied that such person is involved in smuggling activities in areas highly vulnerable to smuggling. The petitioner argued that the detaining authority must supply the detenu with the material justifying the declaration to enable the detenu to make an effective representation against the declaration. The respondent countered that no fresh material was considered for the declaration and that the same material used for the initial detention order was used for the declaration under Section 9(1). The court noted that no material was furnished to the detenu at the time of the service of the declaration, nor was the detenu informed that the subjective satisfaction for the declaration was based on the same material as the initial detention order. The court referred to the case of Abdulla Mamad Mithani v. State of Gujarat, which held that if the material on which the declaration is based is not furnished to the detenu, the detenu is deprived of the right to make an effective representation, rendering the continued detention invalid. 2. Unexplained Delay of 9 Months in Initiating the Detention Action: The petitioner also contended that the detention order was invalid due to the unexplained delay of nine months between the incident on 7th October 1985 and the detention order dated 2nd July 1986. The court observed that an unreasonably long period between the incident and the detention order could indicate a lack of nexus between the prejudicial activity and the detention order, making the order invalid. The court referred to the Supreme Court's judgment in Hemlata Kanti Lal Shah v. The State of Maharashtra, which stated that delay in passing the detention order must be satisfactorily explained by the detaining authority. The detaining authority's explanation was that the name of the petitioner was proposed for detention on 10th April 1986, and after completing the required formalities, the detention order was issued on 10th June 1986. However, the court found this explanation unsatisfactory, as there was no clear indication of what transpired during the six-month gap between the incident and the proposal for detention. The court noted that most documents and statements were already in existence at the time of the petitioner's arrest, and there was no explanation for the delay in processing the detention order. The court referred to previous judgments, including Bhupinder Singh v. Union of India, where a delay of two and a half months was held to be fatal to the detention order due to a lack of satisfactory explanation. The court concluded that the delay of more than nine months in the present case was fatal to the detention order. Conclusion: The court accepted the petition and quashed the order of detention, ordering the petitioner to be set at liberty forthwith unless required to be detained under orders of any other competent court or authority. The court also emphasized the need for detaining authorities to keep abreast of settled legal propositions and to act with urgency in matters of preventive detention to avoid orders being set aside due to procedural lapses.
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