COFEPOSA - Unexplained delay in passing and service of detention order - Also delay beyond 5 days in service of Grounds of Detention upon detenue with Relied upon Documents - Exceptional circumstances to justify delay absent - Detention order set aside: HC
By TIOL News Service
NEW DELHI, DEC 16, 2014: THE petitioner has preferred a writ petition under Article 226 of the Constitution of India to seek a writ of Certiorari - to quash the detention order passed under Section 3(1) (i) & 3(1) (iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) against his brother, and a direction to set at liberty the detenue from detention.
It is the case of the Petitioner that there is an unexplained and immense delay of about 8 months in passing of the detention order. The prosecution in respect of the alleged recovery of red sanders - which took place on 28.09.2013, was lodged on 28.11.2013 - meaning thereby, that the investigation was complete, while the detention order was passed only on 25.07.2014 and, therefore, on account of the aforesaid delay, the live link between the alleged occurrence - namely the recovery of red sanders, and the object of detention, stood snapped. It is pointed out that the detenue had been granted bail on 22.02.2014. However, the detention order was passed only on 25.07.2014, i.e. five months after the detenue was set at large.
The Petitioner contended that the Grounds of Detention (GoD) and Relied upon Documents (RuD) had been supplied to the detenue after expiry of around 7 days from the date of detention. The detention order was served on 13.08.2014 to the detenue while the GoD along with the RuD was served only on the intervening night of 19.08.2014 and 20.08.2014. The said act of the respondents is in contravention of Section 3(3), COFEPOSA Act read with Article 22(5), Constitution of India as it mandates that documents are to be furnished within 5 days, and in the present case there were no exceptional circumstances.
After hearing both sides, the High Court allowed the Writ Petition by holding that:
Impugned order of detention suffers from the vice of unexplained delay in the passing and service of the detention order. Article 22(5) of the Constitution stands violated on account of delay beyond 5 days in service of the Grounds of Detention upon the detenue with the Relied upon Documents and that the respondents have failed to disclose exceptional circumstances to justify service of the GoD and documents when they were served.
The show cause notice under the Customs Act was issued to the detenue on 24.03.2014, which clearly establishes that the material evidence required for passing of the detention order were available to the Detaining Authority and in spite of the same, he did not pass the detention order till 25.07.2014. The detention order was passed after a delay of about 8 months, which has defeated the purpose of the detention as it was to prevent the detenue from acting in a prejudicial manner by indulging in the prohibited trade. Thus, the live link had already broken by the time the detention order was passed belatedly on 25.07.2014.
The service of GoD and the RuD is a constitutional right and communication of the same has to be made within the prescribed period to enable the detenue to make a representation. Only in cases where there are exceptional circumstances does the law permit extension from the prescribed period of 5 days upto 15 days. In the present case, the so called exceptional circumstances furnished by the respondent cannot, under any circumstance, be classified as "exceptional circumstances".
(See 2014-TIOL-2244-HC-DEL-COFEPOSA)
