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Synopsis

The Bombay High Court has recently quashed and set aside a detention order passed by the Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, in 1993 against a 62-year-old man from Kerala.

The division bench of the Bombay High Court comprising Justice Revati Mohite Dere and Justice Gauri Godse was hearing the petition filed by Abdul Rasheed who was arrested in February 2023.

The detention order was passed under the Conservation of Foreign Exchange and Prevention Of Smuggling Activities Act, of 1974.

The petitioner was apprehended at Mumbai airport on 20th November 1992, when he was leaving for Dubai with a substantial amount of foreign currencies concealed by him. However he was subsequently released on bail.

The counsel for the petitioner contended that no efforts were made by the detaining authority to serve the detention order by following the procedure prescribed under the COFEPOSA Act.

He added that the record would show that the petitioner was never absconding, and the case of the detaining authority that as the petitioner was absconding, the detention order of the year 1993 could not be served upon the petitioner is baseless.

He also contended that the detention order passed in the year 1993 could not have been served upon the petitioner in the year 2023 on the ground that the petitioner was absconding.

The ED argued that there was no substance in the ground of challenge raised by the petitioner. It was also argued that there is a presumption that the petitioner had knowledge of the detention order, and the burden shifted on him to justify his absence.

The ED also submitted that since the petitioner was not traceable, the detention order was ultimately executed on 28 February 2023, and he was detained.

While quashing the detention order the division bench noted that, “The unexplained and inordinate delay of thirty years in the present case does not justify the preventive custody of the petitioner. As held by the Hon’ble Supreme Court in the case of Shafiq Ahmad, the satisfaction of the authorities based on conduct must precede action for prevention based on subjective satisfaction. In the present case, the action based on satisfaction is not commensurate with the situation after thirty years of the detention order. It is not even the case of the authorities that in the last thirty years, the petitioner was engaged in any prejudicial activity or has indulged in any objectionable activity,” the order reads.

The high court also observed that no attempt was made no attempts had been made to contact or arrest the petitioner.   

“In the facts of this case, no attempts had been made to contact or arrest the petitioner. There is no explanation forthcoming for not taking any action to trace the whereabouts of the petitioner, and also, after the gazette publication in the year 1995 under section 7(1)(b) of the COFEPOSA Act, there is no action taken to serve the detention order,” the bench noted.

Therefore, the bench concluded that the substance in the ground of challenge raised on behalf of the petitioner that the detaining authority had not meticulously followed the procedure to serve the detention order, making it invalid due to the passage of time.

Advocate Yadunath Bargavan, Advocate Ratna Bhargavan and Advocate Rahul Yadav appeared for Abdul Rasheed.

Advocate Shreeram Shirsat, Advocate Adithi Rao, Advocate Tanveer Khan, and Advocate Shekhar Mane appeared for the ED.

Additional public prosecutor Madhavi Mhatre appeared for the State.

Advocate Alkileshwar Sharma appeared for the Union of India.

Case title: Abdul Rasheed vs ED & Anr