1990 (6) TMI 80 - HC - Customs

Summary

Issues:
Challenge to legality and validity of detention order under COFEPOSA Act due to delay in issuance of order after seizure of contraband gold.

Analysis:
The habeas corpus petition was filed challenging the detention order issued under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The petitioner, claiming to be the detenu's father, contested the legality and validity of the detention order issued by the 4th Respondent. The detention order was served upon the detenu on 19th March 1990. The incident leading to the detention occurred on 21st May 1989 when Customs Officers intercepted the detenu at Sahar Air Port along with two panchas, resulting in the seizure of 240 gold bars. Despite the seriousness of the seizure, there was a significant delay of nearly 9 months in issuing the impugned detention order. The detenu had been arrested, produced before the Metropolitan Magistrate, and granted bail on 28th June 1989, which was known to the detaining authority. The detaining authority was criticized for the delay in issuing the detention order, with the petitioner arguing that the live link was broken, and there was no need for preventive detention after such a long delay. The detaining authority's approach was questioned for lack of seriousness and non-application of mind, rendering the satisfaction behind the detention order as sham and not genuine.

The detaining authority filed an affidavit in reply, attempting to explain the delay by stating that additional documents were called for, leading to the delay. However, the Court found the explanation unsatisfactory, considering it a whitewash that could not justify the delay in issuing the detention order. The Court held that the delay in issuing the detention order tainted the subjective satisfaction of the detaining authority regarding the preventive action against the detenu. Consequently, the petition succeeded, and the impugned detention order dated 22nd February 1990 was quashed and set aside. The detenu was ordered to be set at liberty forthwith, if not required in any other case. No costs were awarded in this matter.