1987 (7) TMI 107 - HC - Customs

Summary

Issues Involved:
1. Non-application of mind by the detaining authority.
2. Delay in passing the order of detention.
3. Delay in the execution of the order of detention.

Issue-wise Detailed Analysis:

1. Non-application of Mind by the Detaining Authority:
The petitioner contended that the detaining authority failed to consider the bail applications and the conditional order of release by the High Court at Calcutta. These facts existed prior to the detention order but were not mentioned or considered in the impugned order. The detaining authority's failure to account for these material documents, which had a direct bearing on the subjective satisfaction, amounted to non-application of mind. The judgment referenced the Supreme Court case, Anant Sakharam Raut v. State of Maharashtra, which established that the absence of consideration of bail applications indicates a total absence of application of mind, rendering the detention order invalid. The court concluded that this non-application of mind was sufficient to vitiate the detention order.

2. Delay in Passing the Order of Detention:
The petitioner argued that there was an undue delay of about four months in passing the detention order and a further delay of four months in its service. The respondents claimed that the delay was due to the ongoing investigation, processing at various stages, and translation of documents. However, the court found the explanation unsatisfactory, noting the absence of specific details about the investigation timeline, the number of witnesses examined, and the translation process. The court referenced the case of Smt. Hemlata Kantilal Shah v. State of Maharashtra, which held that delay must be satisfactorily explained by the detaining authority. The court concluded that the unexplained delay of four months was fatal to the detention order.

3. Delay in the Execution of the Order of Detention:
The petitioner highlighted a delay of nearly four months in executing the detention order. The respondents claimed that the petitioner could not be traced, leading to action under Section 7(1)(b) of the COFEPOSA Act. However, the court noted that the petitioner was attending court regularly and meeting the Investigating Officer as directed. The respondents failed to explain how the petitioner could not be traced during this period. The court found the explanation for the delay in execution unconvincing and indicative of a casual approach to an important order of detention. This delay, coupled with the lack of urgency in execution, was deemed sufficient to quash the detention order.

Conclusion:
The court accepted the petition and quashed the order of detention due to the non-application of mind by the detaining authority, unexplained delay in passing the detention order, and the casual approach in executing the order. The petitioner was ordered to be released forthwith unless required to be detained under any other orders of a competent court or authority.