1994 (8) TMI 267 - SC - FEMA

Whether a detenu or anyone on his behalf is entitled to challenge an order of detention without the detenu submitting or surrendering to it and if so what will be the nature scope and extent of such challenge? Held that - Appeal dismissed. It is undoubtedly true that an unusual delay in execution of an order of detention if not satisfactorily explained may persuade the court to draw such an inference. There is however no scope for drawing such an inference in this case as the delay here has been occasioned not by any omission or commission on the part of the detaining authority. On the contrary it is the appellant who has delayed the execution by first moving the Bombay High Court and then this Court. That apart the respondents have asserted that though this Court had not passed any interim order against execution of the order it could not be served as the appellant was absconding

Summary

Issues:
Challenge to detention order without surrendering, Allegations of assault and illegal detention, Purpose of detention order, Absurdity of smuggling allegation, Delay in execution of detention order.

Analysis:

Challenge to detention order without surrendering:
The appellant challenged the detention order under COFEPOSA without surrendering to it. The court considered the scope of pre-execution challenge to detention orders. Referring to the case of Addl. Secy., Govt. of India v. Alka Subhash Gadia, the court highlighted limited grounds for interference at the pre-execution stage. The court emphasized that the power of judicial review before execution is restricted to specific circumstances, such as wrong person, wrong purpose, or vague grounds.

Allegations of assault and illegal detention:
The appellant alleged that the Customs Officers fabricated a smuggling case against him through assault, illegal detention, and coercion. The court examined medical reports and timelines to assess the veracity of these claims. Despite the appellant's contentions, the court found disputed factual issues that couldn't be resolved at that stage. The court also addressed the legality of the detention period and the necessity for prompt production before a magistrate.

Purpose of detention order:
The appellant argued that the detention order was passed for a wrong purpose, aiming to harass and humiliate him. The detaining authority denied these allegations, emphasizing the legality of the detention based on suspicions of smuggling activities. The court held that even if procedural lapses occurred, they wouldn't invalidate the detention order unless proven wrongful or illegal detention.

Absurdity of smuggling allegation:
The appellant raised concerns about the feasibility of the smuggling allegations based on physical evidence. The court examined photographs presented by the appellant but found the arguments unsubstantiated. The court emphasized that the validity of the detention order isn't dependent on the accuracy of the smuggling allegations but on the detaining authority's satisfaction of potential smuggling activities.

Delay in execution of detention order:
The appellant contended that the prolonged delay in executing the detention order rendered it punitive rather than preventive. The court rejected this argument, citing the appellant's legal actions causing delays and the claim of absconding. The court highlighted that delays caused by legal proceedings don't automatically render the detention punitive if justified by circumstances.

In conclusion, the court dismissed the appeal after a detailed analysis of the contentions raised by the appellant regarding the detention order under COFEPOSA.