There Cannot Be Any Hard And Fast Rule For Passing Detention Order Under COFEPOSA ACT: Delhi High Court

  • Shruti Kakkar
  • 04:05 PM, 18 Feb 2021

The Delhi High Court, while recently dismissing a petition filed on the ground of quashing detention order due to delay in execution, has observed that there cannot be any hard and fast rule about the time within which the order of detention under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 should necessarily be passed from the date of discovery of the continued involvement of the detenu in the prejudicial activity.

"Each case would have to be examined on its own merits both in relation to the involvement of the detenu/ proposed detenu, its nature and scale, the period for which the detenu/proposed detenu is involved in the prejudicial activity, and the explanation furnished by authorities concerned for the time lapse between the date of the discovery of prejudicial activity and the date of the passing of the Detention Order," Division Bench of Justice Vipin Sanghi and Justice Rajnish Bhatnagar noted.

In the present matter, the Petitioner was interrupted at the IGI Airport upon their arrival from overseas for smuggling items, such as drones, gold and cigarettes in commercial quantities. His statement and others were recorded under Section 108 of the Customs Act, 1962, and he was arrested on 03.02.2019. On 06.04.2019, the Petitioner was released on statutory bail due to the investigating agency's inability to file the chargesheet within 60 days. 05.06.2020, a fresh proposal to preventively detain the Petitioner was issued by Respondent No.2 June 2020, under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. After that, the Petitioner has filed a writ petition assailing the Detention Order on the ground that the Respondent Authorities have not been able to execute the Detention Order prior to, and even after filing of the present writ petition. Thus, the Petitioner has not yet been served with either the Detention Order, or the Grounds of Detention, or the Relied upon Documents.

The Petitioner's counsel contended that the impugned Detention Order was issued after an inordinate delay of 1 year and four months, or about 490 Days. He further argued that this long delay was fatal to the consequent detention as the nexus/live link between the prejudicial activity and the purpose of detention snapped due to the delay.

On the other hand, the respondent's counsel argued that the aspect of delay in passing the Detention Order could not be gone into since the detention order was at the pre-execution stage.

The Bench observed that on limited grounds, a detention order can be assailed validly at pre execution stage.  Reliance was placed on Supreme Court’s judgement in Additional Secretary to Government of India and Others Vs. Smt. Alka Subhash Gadia and Anr, (1992) Supp 1 SCC 496, which enlisted some of the grounds on which the Detention Order could be assailed even prior to execution. Further reliance was placed on Deepak Bajaj v. State of Maharashtra and Another, (2008) 16 SCC in which it was observed that those grounds are illustrative, and not exhaustive and was also State of Maharashtra & Ors. v. Bhaurao Punjabrao Gawande,(2008) 3 SCC 613 in which the Supreme Court observed that,

As a general rule, an order of detention passed by a Detaining Authority under the relevant 􏰅preventive detention􏰆 la􏰇w cannot be set aside by a writ court at the pre-execution or pre-arrest stage unless the court is satisfied that there are exceptional circumstances specified in Alka Subhash Gadia [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301] . The Court must be conscious and mindful of the fact that this is a 􏰅suspicious jurisdiction􏰆 i.e. jurisdiction based on suspicion and an action is taken 􏰅􏰇with a vie􏰇w to preventing􏰆 a person from acting in an􏰈 manner prejudicial to certain activities enumerated in the relevant detention law. Interference by a court of law at that stage must be an exception rather than a rule and such an exercise can be undertaken by a writ court with extreme care, caution and circumspection. A detenu cannot ordinarily seek a writ of mandamus if he does not surrender and is not served with an order of detention and the grounds in support of such order.

Thus the Court while relying upon the decision of Mohd. Nashruddin Khan v. Union of India & Ors, W.P.(CRL). Nos. 786/2020 in which it was observed that, “􏰅69. In our view, the aforesaid satisfactorily explains and justifies the time consumed in mooting the proposal for detention of the petitioners under the COFEPOSA Act and for consideration of the said proposal, firstly, by the Central Screening Committee, and thereafter, by the Detaining Authority. The time lapse, in our view, is not such as to lead to the inference that the live-link between the prejudicial activity of the petitioners, which was discovered in April 2019, and the object of detention, namely, to prevent them from indulging in such prejudicial activity, stood snapped. Pertinently, it is not the case of either of these petitioners that they have discontinued their ostensible business of dealing in gold and gold jewellery. In our view, the observations in Muneesh Suneja (supra) are attracted to the facts of these cases. We also agree with the submission of Mr. Mahajan that petitioners reliance on Rajinder Arora (supra) is misplaced for the reasons advanced by Mr. Mahajan and recorded hereinabove. Therefore, we reject this submission of Mr. Chaudhri.􏰆”, dismissed the petition.

Case Title: Harmeet Singh V. Union Of India, Through Its Secretary, Ministry Of Finance, Department Of Revenue, Central Economic Intelligence & Ors.

Law Point/Statute Involved: Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974

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