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2015 (4) TMI 985 - BOMBAY HIGH COURT

2015 (4) TMI 985 - BOMBAY HIGH COURT - TMI - Detention of petitioner - Prevention of smuggling of goods - Held that:- Detaining authority, after passing the detention order dated 27th February, 1989 was indifferent in securing the detenu by not taking proper action with great caution. It further appears that the police authorities of the Respondent No.4 were also not prompt in their action in executing the said detention order and the execution of the said detention order was unduly delayed, whi .....

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hority in passing the detention order and consequently renders the detention order bad and invalid because of the 'live and proximate link' between the grounds of detention and the purpose of detention is snapped in arresting the detenu. The Petition, therefore, deserves to be allowed thereby setting at liberty the detenu forthwith - Decided in favour of appellant. - Criminal Writ Petition No. 961 of 2015 - Dated:- 9-4-2015 - B. R. Gavai And A. S. Gadkari,JJ. For the Appellants : Ms Priy .....

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n Of Smuggling Activities Act, 1974 ( for short 'the COFEPOSA Act') with a view to prevent him from smuggling goods. By the said order dated 27th February, 1989 it was directed to detain the detenu in the custody of the Central Prison at Mumbai. 2. In pursuance of the said order dated 27th February, 1989 passed by the Respondent No.2 under Section 3(1) of the COFEPOSA Act, the police authorities of the Respondent No.4, State of Kerala, executed the said order on 25th February, 2015 throu .....

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e facts of the present case are not required to be reproduced and /or narrated herein as we are inclined to dispose of the present Petition on a short ground, viz. whether there was an unreasonable and inordinate delay in executing the order of detention from the date of passing of the detention order till its execution thereby creating a considerable doubt on the genuineness of the subjective satisfaction of the detaining authority as regards the necessity to detain the detenu particularly in v .....

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yanka Ghosh, learned counsel appearing for the Petitioners, Ms. Rati Amrolia, learned APP for the Respondent Nos.1 and 2 i.e. Union of India and Joint Secretary, Government of India and Mr. Yagnik, learned APP for Respondent No.3 at length and have also perused the record produced by the learned counsel appearing for the respective parties. 4. The learned counsel appearing for the Petitioners has confined her challenge to ground Nos.(iii) and (iv) of paragraph 5 of the Petition, which deals with .....

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itted that no subjective satisfaction is recorded by the detaining authority for execution of the detention order after an inordinate delay of about 26 years and hence, execution of the detention order by the detaining authority is without application of mind, arbitrary and not maintainable in law. She submitted that in fact at present no fruitful purpose would be served, as there exists no such likelihood of this detenu in involving any activities of smuggling. In view of ground No.(iv) raised .....

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ention order is executed after an inordinate delay of about 26 years. She, therefore, urged before us that as the live link between the issuance of the detention order and its execution is snapped, the detention order may be quashed and set aside. 7. The learned counsel appearing for the Petitioners in support of her contention relied on the decision of the Supreme Court in the case of P.U. Iqbal v. Union of India and others reported in (1992) 1 SCC 434 and in particular paragraph Nos.7, 9, 11 a .....

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orne out from the preamble of the COFEPOSA Act under the provisions of which the present detention order has been passed, the detention order under this Act is made with an object of preventing "the violations of foreign exchange regulations and smuggling activities which are having an increasingly deleterious effect on the national economy" and thereby posing "a serious effect on the security of the country". "9. In view of the above object of the preventive detention, .....

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ect of delay in arresting a detenu has been examined by this Court in a series of decisions and this Court has laid down the rule in clear terms that an unreasonable and unexplained delay in securing a detenu and detaining him vitiates the detention order." "18. It is manifestly clear from a conspectus of the above decisions of this Court, that the law promulgated on this aspect is that if there is unreasonable delay between the date of the order of detention and the date of arrest of .....

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nd circumstances of each case." 8. As stated herein above, Dr. Kiran Kumar Karlapu, Assistant Commissioner of Customs, COFEPOSA Cell (AIU), CSI Airport, Mumbai has filed an affidavit in reply dated 26th March, 2015 for and on behalf of the Respondent Nos.1 and 2. In response to ground No.(ii), (iii) and (iv) of the Petition, the said authority has stated that though the detention order was issued on 27th February, 1989, the detenu - Mohammed Ali Vengadan intentionally and deliberately evade .....

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oes not hold any water as the detenu has conveniently camouflaged himself from the clutches of law. It is further stated in paragraph 6 of the said affidavit that the action under the COFEPOSA Act is a preventive detention and it has no bearing on any other law or Act time being in force in India. He has further stated that to prevent a person from carrying out further smuggling activities, action under COFEPOSA is necessary. 9. It is to be noted here that though the said authority has stated th .....

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delay in execution of the Detention Order' but owing to it, the detention order cannot be said to be inoperative and invalid because the detenu intentionally evaded his detention and concealed himself so that the order could not be executed. We appreciate the impartial and rational stand taken by the affiant in the said affidavit dated 26th March, 2015, thereby admitting the fact that there is an inordinate delay in execution of the detention order dated 27th February, 1989. In our consider .....

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le, but is inordinate and stands unexplained by all the authorities concerned. In our considered opinion, the clearly apathetic attitude and the oblivious conduct of the police authorities of the Respondent No.4 in not acting promptly in securing the detenu has rendered the order of detention invalid. The explanation offered by the Respondent Nos.1 and 2 by its affidavit dated 26th March, 2015 that the detenu intentionally and deliberately evaded his detention and concealed himself so that the o .....

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