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2016 (11) TMI 1394 - HC - CustomsChallenge to detention order - can detention order be challenged at pre-execution stage? - Held that - the fact that the petitioner is out of India may itself be the reason for the delay in executing the detention order - the time from the date of the so-called prejudicial activity on 9.11.2013 and the detention order on 15.3.2014; or the still shorter period from the date of search on 13.11.2013 till the date of the detention order; cannot be treated as any cognizable delay to hold that the impugned detention order has diffused itself by passage of time or that the said order of detention has been rendered stale with passage of time - challenge levied against the impugned preventive detention order under COFEPOSA Act is unsustainable though it is yet to be executed - petition dismissed - decided against petitioner.
Issues: Challenge to preventive detention order under COFEPOSA Act at pre-execution stage
Analysis: 1. The petitioner challenged a preventive detention order issued under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 at the pre-execution stage. The petitioner claimed to represent the person covered by the detention order, who was stated to be residing in Dubai. The petitioner argued that the detention order was passed on wrong premises and vague grounds, citing relevant legal precedents such as Additional Secretary to the Government of India v. Alka Subhash Gadia and others, Subhash Popatlal Dave-I v. Union of India, and Subhash Popatlal Dave-II v. Union of India. 2. The State Attorney representing the detaining authority contended that the detention order could not be challenged at the pre-execution stage based on the provisions of Clause 5 of Article 22 of the Constitution. The State Attorney argued that the grounds for challenge mentioned in the Alka Subhash Gadia case were not applicable to the present case. 3. The sequence of events leading to the detention order was detailed, including the detection of an occurrence by Customs Act enforcement officers, arrests of certain individuals, a search at the petitioner's residential premises, and the subsequent issuance of the detention order. It was noted that the detention order was not enforced as the petitioner was out of India. 4. The court considered the legislative intent behind the COFEPOSA Act, highlighting the provision of Section 7 to address situations where the execution of a preventive detention order could be hindered by the detenu absconding. The court emphasized the importance of maintaining a balance between civil liberties and authority, citing relevant principles from legal precedents. 5. The court rejected the petitioner's argument that the live link between the prejudicial activity and the detention order was lost due to the passage of time or the petitioner's absence from Indian jurisdiction. It was noted that actions were taken under Section 7 of the COFEPOSA Act to execute the detention order, including attaching the petitioner's properties and issuing processes for surrender. 6. Ultimately, the court found the challenge against the preventive detention order to be unsustainable at the pre-execution stage. The writ petition was dismissed, stating that the detention order had not diffused itself or become stale with the passage of time.
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