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2020 (2) TMI 1366 - HC - FEMAPreventive detention - Powers in relation to absconding persons - COFEPOSA Act - delay in detaining the detenu - whether the detenu is absconding? - HELD THAT:- Ground is answered by the Learned Government Advocate to contend that the appropriate Government has not taken a decision as to whether the detenu is absconding or not. We are of the view that such an explanation by the State is unacceptable. After the issuance of an order of preventive detention the detenu requires to be arrested forthwith. If not, the procedure under Section 7 of the COFEPOSA Act requires to be complied with. They have failed to do so. The contention of the Learned Government Advocate runs contrary to the facts of the case. Therefore, such a contention cannot be accepted. The Hon’ble Supreme Court in the Judgment in the case of Manju Ramesh Nahar v. Union of India and Others [1999 (3) TMI 658 - SUPREME COURT] have clearly stated that when the respondents have not furnished the information in detail of any steps to execute the order of preventive detention, the detention itself becomes illegal. That if persons who are responsible for execution of the order sleep over the order and do not execute the same, it would reflect upon the satisfaction of the detaining authority and would be exhibitive of the fact that the immediate necessity of passing that order was wholly artificial or non-existent. The same set of facts are present herein also. Except narrating the various steps taken by him to go to the house of the detenu and meet his wife etc., there is nothing tangible that has been done by the State. The case relied upon by the Learned Government Advocate in the case of Vinod Chawla v. Union of India and Others [2006 (8) TMI 521 - SUPREME COURT] in our considered view, runs contrary to the interest of the State - contention with regard to the delay in detaining the detenu cannot be accepted. However, in the instant case, the same has not happened. No effort is made by the State under Section 7 of the COFEPOSA Act. There is no publication or proclamation. Therefore, in the absence of complying with the provisions of Section 7 of the Act, the further detention of the detenu becomes illegal. In this case nothing seems to have been done. The provisions of Section 7 have not been followed. There is no effort made by the State. Even the reasoning assigned by them cannot be accepted. It cannot be said that there was any effort by the State in making any arrest. The contention of the Learned Government Advocate that the State has to be satisfied that he is absconding cannot be accepted, especially in view of the fact that he was arrested six months after the order of detention. Hence, the petition requires to be allowed. Under these circumstances, no further contentions are advanced by the petitioner’s Counsel. Writ Petition Habeas Corpus is allowed. The further detention of the detenu is held to be illegal. The detenu directed to be released from custody forthwith, if he is not required in any other case/s.
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