9911796707
TMI Blog2013 (2) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... kha vs. State of Tamil Nadu [ 2011 (4) TMI 1217 - SUPREME COURT OF INDIA] if the ordinary law of the land (the Penal Code and other penal statutes) can deal with a situation, recourse to a preventive detention law will be illegal. Principle emanating from the frame work of the Constitution of India assuring personal liberty and giving fundamental rights to each citizen of India is that the order of the preventive detention being exceptional measure by way of social defence ought to be used with great deal of care and circumspection. Applying the principle to the case on hand it is concluded that the impugned order of preventive detention passed in the present case is faulty, caution less and unsustainable Preventive detention orders qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etenue was arrested. Statement of the detenue was recorded again on 05-09-2011 and on 31-01-2012. Detenue was released on Bail on 22-08-2011. The impugned detention order was issued after inordinate and inexcusable delay on 13-05-2012 i.e. 9 months and 21 days. Even after the show cause notice the impugned order was delayed by two months. Thus detention is challenged as malafide, null and void. 4. It is argued on behalf of the detenue that he had in details explained his innocence in his statement recorded by the investigating agency that the goods found belonged to Syed Ali Syed Madar which were packed by him in the place of Mr. Karim Baba place on his way to Dubai Airport. Sayed Ali was known to the detenue and therefore he had no o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the passport. The impugned order is criticized on the ground that it is mala fides as the authority failed to apply its mind to the fact that action normal punitive law can adequately meet the ends of justice in this case and action under the law of preventive detention was not at all warranted. The action under the law of preventive detention is taken as a last resort, and not by by passing the action under normal punitive laws. It is urged that, the authority concerned, therefore failed to record its subjective satisfaction as a condition precedent to the exercise of power for to order preventive detention. It erred to supplant the extraordinary order of preventive detention to the normal punitive process of prosecution for the offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent case, likelihood of the detenu travelling to foreign country illegally without the passport was remote. In view of the law laid down in the aforesaid decisions, the detention order is based only on clause (i) of Section 3(1) of the COFEPOSA Act, the order of detention deserves to be set aside. 8. The Apex Court in Rekha vs. State of Tamil Nadu Through Secretary to Government and Anr., (2011) 5 SCC 244. in paragraph 29 of the said decision observed as under: 29. Preventive detention is, by nature, repugnant to democratic ideas and an anathema to the rule of law. No such law exists in the USA and in England (except during war time). Since, however, Article 22(3)(b) of the Constitution of India permits preventive detention, we cann ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
