Unexplained & Inordinate Delay Of 30 Years Doesn’t Justify Preventive Custody: Bombay HC Quashes 1993 Detention Order Executed In 2023

The Bombay High Court has quashed a detention order of 1993 which was executed in the year 2023 saying that the unexplained and inordinate delay of thirty years does not justify preventive custody.

A criminal petition was filed against the detention order of 1993 passed by the Joint Secretary to the Government of India, Ministry of Finance in the exercise of powers conferred under sub-section (1) of Section 3 of the Conservation of Foreign Exchange and Prevention Of Smuggling Activities Act, 1974 (COFEPOSA Act) for detaining the petitioner. The petitioner also challenged the order passed by the Under Secretary to the Government of India, Ministry of Finance, Department of Revenue, in the exercise of the powers conferred by Section 8(f) of the COFEPOSA Act for confirming the detention order of 1993 and directing detention of the petitioner for one year from the date of his detention.

A Division Bench of Justice Revati Mohite Dere and Justice Gauri Godse held, “… there must be conduct relevant to the formation of the satisfaction having reasonable nexus with the petitioner's action, which is prejudicial to make an order for detaining him. The unexplained and inordinate delay of thirty years in the present case does not justify the preventive custody of the petitioner. As held by the Hon’ble Supreme Court in the case of Shafiq Ahmad, the satisfaction of the authorities based on conduct must precede action for prevention based on subjective satisfaction. In the present case, the action based on satisfaction is not commensurate with the situation after thirty years of the detention order.”

The Bench said that it is not even the case of the authorities that in the last thirty years, the petitioner was engaged in any prejudicial activity or has indulged in any objectionable activity.

Advocate Yadunath Bargavan represented the petitioner while APP M.H. Mhatre, Advocate Shreeram Shirsat, and Advocate Alkileshwar Sharma represented the respondents.

In this case, the detaining authority relied upon the search and seizure proceedings under Section 34 of the Foreign Exchange Act 1973 (FERA) and the statements recorded under Section 40 of FERA. A man was apprehended at Mumbai airport in 1992, when he was leaving for Dubai with substantial amount of foreign currencies concealed by him. By referring to the said proceedings, the detaining authority had arrived at a subjective satisfaction that there was reason to believe that the petitioner was engaged in unauthorised acquisition of foreign exchange and transferring the same surreptitiously out of India in violation of the provisions of FERA. The detaining authority further recorded a subjective satisfaction that the petitioner carried out unauthorised transactions and adversely affected the foreign exchange resources of the country.

The detaining authority further recorded that though prosecution under the provisions of FERA was likely to be initiated against the petitioner, the detaining authority was satisfied that unless detained, the petitioner was likely to continue to engage in the activities in future prejudicial to the augmentation of the country’s foreign exchange resources. The detention order of May 1993 was served upon the petitioner in February 2023. Pursuant to the opinion of the Central Advisory Board as per the hearings conducted, the respondent, in the exercise of the powers conferred by Section 8(f) of COFEPOSA Act, confirmed the detention order and directed the detention of the petitioner for one year from the date of his detention.

The High Court after hearing the arguments of the counsel noted, “… we find that the action under Section 7 of the COFEPOSA Act would not be decisive or determinative of the question of whether there was undue delay in serving the order of detention in the present case. In the facts of this case, no attempts had been made to contact or arrest the petitioner. There is no explanation forthcoming for not taking any action to trace the whereabouts of the petitioner, and also, after the gazette publication in the year 1995 under section 7(1)(b) of the COFEPOSA Act, there is no action taken to serve the detention order.”

The issued to be decided before the court was whether there was a delay in the execution of the detention order and whether the inordinate delay of thirty years in the execution of the detention order was explained by the concerned authorities.

“… there is no merit in the submissions supporting the detention order. We find substance in the ground of challenge raised on behalf of the petitioner that the detaining authority has not meticulously followed the procedure to serve the detention order, making it invalid due to the passage of time”, observed the Court.

Accordingly, the High Court allowed the petition and set aside the detention orders.

Cause Title- Abdul Rasheed alias Basheer v. Enforcement Directorate & Ors. (Neutral Citation: 2023:BHC-AS:28400-DB)

Click here to read/download the Judgment