2010 (3) TMI 904 - HC - FEMA

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as COFEPOSA ). The detention order has not been executed - basis of challenging the detention order.

Issues Involved:
1. Violation of Fundamental Rights under Article 14, 19, and 21 of the Constitution.
2. Lack of basis for inferring any act of omission or commission by the detenu.
3. Inordinate delay in issuance of the detention order.
4. Non-placement of vital and material documents before the Detaining Authority.
5. Detention order passed on irrelevant, extraneous, vague, and non-existent grounds.

Detailed Analysis:

1. Violation of Fundamental Rights under Article 14, 19, and 21:
The petitioner argued that exercising the powers under Section 3(1) of COFEPOSA violates the fundamental rights of the detenu, as FEMA makes it a civil compoundable offense. The court, however, referred to the Supreme Court's decision in Union of India Vs. Venkateshan (2002) 5 SCC 285, which clarified that the enactment of FEMA does not prevent the authorities from passing a detention order under COFEPOSA.

2. Lack of Basis for Inferring Any Act of Omission or Commission:
The petitioner contended that the Detaining Authority failed to recognize that there was no basis for inferring any act of omission or commission by the detenu. The court emphasized the principles laid down in Alka Subhash Gadia, which permit interference at the pre-execution stage only in exceptional cases. The court also clarified that the detenu does not have the right to the order of detention or the grounds thereof before the order is executed.

3. Inordinate Delay in Issuance of the Detention Order:
The petitioner argued that there was an abnormal delay in passing the detention order, which vitiates the order. The court examined the timeline and found that the delay was justified and explained. The court noted that the authorities did not want to pass the order in haste and needed sufficient material to support the detention. The court concluded that the time taken was due to due diligence and thorough examination of the case.

4. Non-placement of Vital and Material Documents:
The petitioner claimed that vital documents, including letters of retraction and representations, were not placed before the Detaining Authority. The court found that the letters of retraction were considered by the Detaining Authority. Regarding the representation dated 25.06.2009, the court noted that it was addressed to the Member (Customs) and was not received by the Sponsoring Authority or the Detaining Authority. The court held that the representation did not raise new issues that were not already considered.

5. Detention Order Passed on Irrelevant, Extraneous, Vague, and Non-existent Grounds:
The petitioner argued that the detention order was based on irrelevant and non-existent grounds. The court emphasized that the grounds of detention and the material relied upon are not served upon the detenu at the pre-execution stage, and thus, the detenu cannot challenge the order on merits at this stage. The court reiterated that such a challenge is permissible only after the order is executed.

Conclusion:
The court dismissed the writ petition, finding no merit in the contentions raised by the petitioner. The court clarified that any observations made in the judgment would not prejudice the petitioner when challenging the detention order appropriately after its execution. The court emphasized the limited jurisdiction at the pre-execution stage and refrained from deeper scrutiny into the merits of the grounds of detention.

← Previous Next →