Madras HC Quashes Preventive Detention Order Issued 13 Years Ago Under The COFEPOSA Act Against A Lawyer
The Madras High Court has quashed a preventive detention order issued under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) against a lawyer 13 years ago.
The Court reiterated that the ‘live and proximate link’ between the grounds and purpose of preventive detention had snapped due to an unreasonable delay of eight weeks while referring to the Banik's principle in the case of Bhawarlal Ganeshmalji v State of Tamil Nadu [(1979) 1 SCC 465].
“The delay in making of impugned preventive detention order i.e., time consumed between the date of proposal for detention by Sponsoring Authority and the actual date of making of impugned preventive detention order was considered, it relied on Bhawarlal Ganeshmalji ratio and it was held that 'live and proximate link' between the grounds of detention and purpose of detention has snapped”, the Bench comprising Justice M Sundar and Justice R Sakthivel observed.
Senior Advocate Abdul Hameed appeared for the Petitioner, Additional Public Prosecutor A Gokulakrishnan appeared for Respondents no 1 and 3, Deputy Solicitor R Rajesh Vivekanantham and Additional Public Prosecutor Raj Thilak appeared for Respondent no 2.
The Petitioner was accused of importing imitation stones after undervaluing them to evade duty tax. The State proposed a detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) in November 2010. Such a detention order was finally issued after a delay of eight weeks. Meanwhile, the Petitioner had filed a plea in the High Court seeking an interim stay on the order, which was granted on November 8, 2011. However, the case bundle went missing before the matter could be concluded. When the bundle was discovered, the Division Bench affirmed the detention order. The Petitioner had also approached the Supreme Court, wherein his Special Leave Petition was dismissed. A Writ Petition of habeas corpus was filed seeking the production of the Petitioner along with the records of the detention order passed by Respondent no 1.
The Court asserted that there was an unaccountable delay between initiating an inquiry against Petitioner and issuing the preventive detention order. The Court observed that he was finally arrested by the Directorate of Revenue Intelligence (DRI) almost 13 years after such a preventative detention order was issued.
The Court observed that there was a delay in considering the representation sent qua impugned preventive detention order. The Court held that a delay in considering the representation violates Article 22(5) of the Constitution, which is a sacrosanct constitutional safeguard.
The Bench noted, “In the light of the narrative thus far, we have no difficulty in sustaining the second point also and saying that there is a delay in considering the representation and consequent breach of Article 22(5) of the Constitution of India safeguard and therefore, impugned preventive detention order deserves to be dislodged on this ground also”.
Accordingly, the Court allowed the Petition and set aside the impugned order.
Cause Title: S Zahir Hussain v. The State
