1988 (8) TMI 278 - HC - FEMA

Summary

Issues:
1. Delay in passing the order of detention.
2. Lack of supporting material for the detenu being a frequent visitor to Dubai.

Analysis:
1. The judgment by the High Court of Bombay dealt with a case where the Secretary to the Government of Maharashtra, Home Department, issued an order of detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The detenu, who was found with concealed gold bars, challenged the order of detention. The key issue raised was the significant delay in passing the order of detention. The incident occurred in March 1987, but the order was issued in March 1988. The court found merit in the argument that the delay broke the live-link between the incident and the need for detention. Despite the detaining authority's explanation of the timeline, the court held that the delay was unjustified, undermining the necessity for the detention order. Consequently, the court ruled that the order of detention could not be upheld due to the unjustifiable delay.

2. Another crucial issue raised in the judgment was the lack of supporting material for the claim that the detenu was a frequent visitor to Dubai. The grounds of detention mentioned the detenu's frequent visits to Dubai, but no substantial evidence was presented to substantiate this claim before the detaining authority. The court agreed with the detenu's counsel that this statement lacked supporting material and was not backed by any evidence provided to the detaining authority. The detaining authority's reliance on undisclosed information led to infirmities in the order of detention. The court concluded that the order of detention was flawed and unsustainable due to the absence of concrete supporting material for the claim of the detenu being a frequent visitor to Dubai.

In conclusion, the High Court of Bombay, comprising Pendse and Tipnis, JJ., quashed the impugned order of detention due to the unjustified delay in passing the order and the lack of supporting material for the detenu's alleged frequent visits to Dubai. The detenu was directed to be released immediately following the court's decision.