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2013 (6) TMI 302 - HC - CustomsPreventive detention orders in the case of Rohit Sakhuja and Ajit Singh Chadha @ Romy - detention vide order under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 - whether there was an imminent possibility that Rohit Sakhuja and Ajit Singh Chadha would be released on bail, though they were in judicial custody in the criminal case(s) pending against them? - Held that - The detention orders cannot be sustained as there is a clear lapse and failure on part of the Detaining Authority to examine and consider the pertinent question relating to imminently possibility of the detenu being granted bail in the criminal cases in which they were detained while passing the detention orders. As decided in Binod Singh v. District Magistrate, Dhanbad, Bihar & Ors., (1986 (9) TMI 387 - SUPREME COURT) if a detenu is in police or judicial custody and there is no imminent possibility of his release, the rule is that the power of preventive detention should not be exercised. However, when there is imminent possibility that the person in custody may be released, power of preventive detention can be exercised. As decided in REKHA VERSUS STATE OF T. NADU TR. SEC. TO GOVT. & ANR (2013 (2) TMI 189 - SUPREME COURT OF INDIA) when an order under preventive detention law is under challenge before a court, there are limited grounds or reasons on which it can be invalidated or struck down. The procedural requirements are only safeguards available to the detenu since the court is not expected to go into the subjective satisfaction of the detaining authority. Procedural requirements, as per judicial pronouncements, have to be strictly complied with. Preventive detention is an extreme step which is required and may be justified, but when a detention order does not meet the prescribed parameters and fails to comply with the procedural requirements, the order stands vitiated and has to be struck down. Thus the impugned detention orders are quashed and set aside, however, this order will not affect the criminal cases and various FIRs which are pending against Rohit Sakhuja and Ajit Singh Chadha.
Issues Involved:
1. Validity of preventive detention orders under the COFEPOSA Act. 2. Imminent possibility of release on bail for the detenues. 3. Compliance with procedural requirements for preventive detention. Issue-wise Detailed Analysis: 1. Validity of Preventive Detention Orders under the COFEPOSA Act: The writ petitions challenge the preventive detention orders dated 04.01.2013 under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) for Rohit Sakhuja and Ajit Singh Chadha. The detenues were served with the detention order on 07.01.2013 while in judicial custody. The Central Government confirmed the detention order on 26.03.2013 under Section 8(f) of the COFEPOSA Act and directed detention for one year under Section 10 of the Act. 2. Imminent Possibility of Release on Bail for the Detenues: The primary contention raised was that the detaining authority did not examine whether there was an imminent possibility of the detenues being released on bail. The grounds of detention, particularly paragraph 47, were scrutinized to determine if they met the legal requirements. The Supreme Court's decisions in Binod Singh v. District Magistrate, Dhanbad, Bihar & Ors. and Rekha v. State of Tamil Nadu Through Secretary to Government and Anr. were referenced. The court emphasized that if a detenu is in custody and there is no imminent possibility of release, preventive detention should not be exercised. The court found that the detention orders did not mention any pending bail applications or the likelihood of release on bail, nor did they provide details of similar cases where bail had been granted. 3. Compliance with Procedural Requirements for Preventive Detention: The procedural requirements for preventive detention were examined in light of judicial precedents. The court noted that the grounds of detention must clearly state the imminent possibility of release on bail and provide details of similar cases where bail had been granted. The court found that the detention orders failed to comply with these requirements. The procedural safeguards are crucial as preventive detention is an extreme measure and must be justified with strict adherence to legal standards. Conclusion: The court held that the detention orders did not meet the criteria established in the Supreme Court's decision in Rekha (supra) and quashed the detention orders dated 04.01.2013. The court directed the release of the detenues if they were not required to be detained in any other case. The judgment clarified that this decision would not affect the pending criminal cases and FIRs against the detenues. The procedural requirements for preventive detention must be strictly complied with to uphold the constitutional rights enshrined in Article 21 of the Constitution of India.
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