2014 (5) TMI 288 - SC - FEMA

Appeal Dismissed: Detention Order Upheld Despite Delay and Bail Conditions

The court upheld the High Court's decision, dismissing the appeal challenging the detention order. It found that the delay in passing and executing the ... Order of detention - Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (COFEPOSA) - delay in passing the orders - Held that:- We must bear in mind that distinction exists between the delay in making of an order of detention under a law relating to preventive detention like COFEPOSA and the delay in complying with procedural safeguards enshrined under Article 22(5) of the Constitution. In view of the factual scenario as aforesaid, we are of the opinion that the order of detention is not fit to be quashed on the ground of delay in passing the same. The conclusion which we have reached is in tune with what has been observed by this Court in the case of M. Ahamed kutty v. Union of India, [1990 (1) TMI 72 - SUPREME COURT OF INDIA] Undue and unexplained delay in execution of the order of detention vitiates it, but in the facts of the present case, it cannot be said that such delay has occurred. As stated earlier, the order of detention dated 6th of May, 2013 was served on the detenu on 11th of June, 2013. It is expected of the detaining authority to take recourse to ordinary process at the first instance for service of the order of detention on a detenu and it is only after the order of detention is not served through the said process that recourse to the modes provided under Section 7 of the COFEPOSA are to be resorted. Here, in the present case, that occasion did not arise as the order of detention was served on the detenu on 11th of June, 2013. Therefore, in our opinion, the order of detention cannot be said to have been vitiated on this ground also. We cannot expect the detaining authority to know each and every detail concerning the detenu in different parts of the country. Not only this, the conditions imposed while granting bail to the detenu which we have reproduced above in no way restrains him from continuing with his prejudicial activity or the consequences, if he continues to indulge. We are in agreement with the High Court that the bail order passed by the trial court in Andhra Pradesh is not a crucial and vital document and the omission by the detaining authority to consider the same has, in no way affected its subjective satisfaction. There is no error in the order of detention and the order passed by the High Court, refusing to quash the same. - Decided against the appellant. Issues Involved:1. Delay in passing the order of detention.2. Delay in execution of the order of detention.3. Non-consideration of bail conditions imposed by another court.Detailed Analysis:1. Delay in Passing the Order of Detention:The petitioner argued that there was an inordinate delay in passing the order of detention, which vitiates the same. The last prejudicial activity prompting the detention occurred on 17th November 2012, while the detention order was passed on 6th May 2013. The respondents contended that the delay was sufficiently explained and mere delay does not render the order illegal.The court emphasized that there must be a live link between the prejudicial activity and the order of detention. COFEPOSA deals with individuals engaged in smuggling activities posing a serious threat to the nation's economy and security. The court must take a pragmatic view and consider whether the delay has been satisfactorily explained. If there is undue and long delay without satisfactory explanation, the detention order becomes vulnerable.In this case, the prejudicial activity occurred on 17th November 2012, and the sponsoring authority recommended detention on 17th December 2012. The proposals were received by the detaining authority on 21st December 2012. The detaining authority scrutinized and evaluated the proposals, deciding on 25th January 2013 to place them before the screening committee, which concurred with the recommendation. The detaining authority took the final decision on 15th April 2013, and the order was passed on 6th May 2013. The court found that the delay was satisfactorily explained and the live nexus between the activity and the detention was not snapped.2. Delay in Execution of the Order of Detention:The petitioner contended that the delay in executing the detention order also vitiated it. The order was passed on 6th May 2013 but served on 11th June 2013. The petitioner argued that the detaining authority should have taken recourse to Section 7 of COFEPOSA for an absconding person, which was not done.The court agreed that undue and unexplained delay in executing the order vitiates it but found that in this case, the delay was not undue. The detaining authority is expected to use ordinary processes first before resorting to Section 7. The order was served on the detenu on 11th June 2013, and the court concluded that the delay was not sufficient to vitiate the order.3. Non-consideration of Bail Conditions Imposed by Another Court:The petitioner argued that the detaining authority did not consider the bail conditions imposed by a trial court in Andhra Pradesh, which required the detenu to appear before the police and not tamper with evidence. The petitioner claimed this omission rendered the detention order unconstitutional.The court held that the detaining authority cannot be expected to know every detail about the detenu in different parts of the country. The conditions imposed by the trial court did not restrain the detenu from continuing his prejudicial activities. The High Court found that the bail order was not a crucial and vital document, and its omission did not affect the detaining authority's subjective satisfaction.Conclusion:The court found no error in the order of detention and upheld the High Court's decision, dismissing the appeal. The delay in passing and executing the detention order was satisfactorily explained, and the non-consideration of the bail conditions did not affect the legality of the detention order.