1990 (4) TMI 67 - HC - Customs

Summary

Issues:
1. Delay in exercising power of detention under COFEPOSA Act.
2. Delay in execution of the order of detention.

Analysis:

Issue 1: Delay in exercising power of detention under COFEPOSA Act
The judgment pertains to a case where the detaining Authority passed an order of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 after a significant delay. The detenu was intercepted in March 1989 with contraband gold, released on bail, and the order of detention was issued in November 1989, approximately 8 1/2 months later. The detaining Authority justified the delay by citing the filing of the complaint before the Magistrate and other administrative procedures. However, the Court found the explanation unacceptable. It emphasized that the power to detain a person should be exercised based on the apprehension of future illegal activities, not merely due to past conduct. The Court held that the delay in exercising the power of detention was fatal to the detention order's validity, leading to the quashing of the order.

Issue 2: Delay in execution of the order of detention
While the judgment primarily focused on the delay in exercising the power of detention, it briefly mentioned the delay in executing the order of detention. However, due to the finding on the first issue, the Court did not delve deeply into this aspect. The Court highlighted that the detaining Authority's apprehension of the detenu continuing to engage in smuggling activities did not justify the significant delay in passing the order of detention. The Court emphasized that detention should not be a mechanical response based solely on past conduct but should be based on a genuine apprehension of future illegal activities. Consequently, the Court quashed the order of detention and directed the detenu's immediate release.

In conclusion, the High Court of Bombay, in this judgment, emphasized the importance of timely exercise of the power of detention under the COFEPOSA Act based on a genuine apprehension of future illegal activities. The Court held that significant delays in passing such orders render them invalid and ordered the release of the detenu in this case.