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High Court Of Delhi
SUSHIL KUMAR - Appellant
Versus
UNION OF INDIA - Respondent
CRIMINAL APPEAL 374 of 1992
Decided On : 10/29/1993
COFEPOSA - Detention Order - Grounds for Interference - Wrong Person, Delay in Passing and Execution of Order - Satisfaction of Detaining Authority - Absconding of Detenu - Pre-Execution Stage Challenge. 1. Grounds for Interference with Detention Order at Pre-Execution Stage: - Not passed under the relevant Act. - Against a wrong person. - Passed for a wrong purpose. - On vague, extraneous, and irrelevant grounds. - Passed by an unauthorized authority. 2. Delay in Passing and Execution of Detention Order: - No hard and fast rule for determining undue delay. - Scrutiny of delay and explanation by detaining authority. - Casual connection between prejudicial activities and detention order. 3. Absconding of Detenu: - Delay caused by detenu's absconding does not vitiate detention order. - Satisfaction of detaining authority not doubted.
Fact of the Case:
Petitioner, Sushil Kumar Bhutani, challenged a detention order issued against him under COFEPOSA, alleging substantial and unexplained delay in passing and executing the order, as well as its issuance against a wrong person and on extraneous grounds.
Finding of the Court:
1. The detention order was not passed against a wrong person as evidence showed petitioner's involvement in the business from which smuggled goods were recovered. 2. The delay in passing and executing the detention order was not undue or unexplained, as the authorities made sincere efforts to serve the order on the petitioner, who absconded. 3. The detaining authority had subjective satisfaction in passing the detention order, and the grounds were not stale.
Issues: 1. Whether the detention order was passed against a wrong person. 2. Whether there was substantial and unexplained delay in passing and executing the detention order. 3. Whether the detaining authority had subjective satisfaction in passing the detention order.
Ratio Decidendi: 1. The court held that the detention order was not passed against a wrong person as evidence showed petitioner's involvement in the business from which smuggled goods were recovered. 2. The court found that the delay in passing and executing the detention order was not undue or unexplained, as the authorities made sincere efforts to serve the order on the petitioner, who absconded. 3. The court held that the detaining authority had subjective satisfaction in passing the detention order, and the grounds were not stale.
Final Decision: The court dismissed the writ petition, upholding the detention order.
( 1 ) IN this writ petition the detention order bearing No. F. 5/28/92-Home (P-II) dated 12. 5. 92 passed against Mr. Sushil Kumar Bhutani son of Mr. Madan Lal under section 3 [1] read with section 2 [f] of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,1974 (for short cofeposa ) has been challenged at the preexecution stage.
( 2 ) EARLIER also a criminal writ petition was filed by this petitioner being Cr. W. P. No. 261 of 1992 - Sushil Kumar vs. Union of India and Others - which was dismissed on 29. 6. 1992 as withdrawn.
( 3 ) LEARNED counsel for the petitioner relying upon the decision of the Hon ble Supreme Court in Additional Secretary to the Government of India vs. Alka Subhash Gadia [j. T. 1991 {l}s. C. 549] submitted that the impugned order of detention has been passed for a wrong purpose as there is substantial and unexplained-delay in passing the said order. The order ofdetention is not sustainable as there is substantial and unexplained delay in execution of the said order. The impugned order of detention has been passed on extraneous and. irrelevant grounds and it has been passed against "wrong person.
( 4 ) LEARNED counsel submitted that the Customs Preventive Officers seized certain cameras and photographic goods from M/s Madan Photo Store situated at 21, Kucha Chaudhary, Chandni Chowk, Delhi which is owned by petitioner s father Mr. Madan Lal and Mr. Sushil Kumar, the present petitioner, has nothing to do with p73 the said business. According to him, the said M/s Madan Photo Store is being looked after by his father, Mr. Madan Lal, and the petitioner has nothing to do with the same. According to the learned counsel, rent receipts of these premises are in the name of Mr. Madan Lal, the petitioner s father. The said shop was challaned under the Shops and Establishments Act and it was Mr. Madan Lal, who was imposed a fine by the Metropolitan Magistrate on 27. 7. 91 for violation of the provisions of the said Act. The recovery of the alleged smuggled goods from these premises cannot be made the basis for passing the detention order against this petitioner, Mr. Sushilkumar, who has nothing to do with the business of the said concern, M/s Madan Photo Store. The detention order has been passed against a wrong person.
( 5 ) THE second point raised by the learned counsel for the petitioner is that the premises of M/s Madan Photo Store were searched on 16. 2. 92 but the impugned detention order was passed on 12. 5. 92 i. e. after about 3 months and that there is a substantial and unexplained delay in passing the said order. According to him, the order of detention is not sustainable as there is substantial and unexplained delay in execution of the said order and that the impugned order of detention has been passed on extraneous and irrelevant grounds. According to the learned counsel for the petitioner, even the residential address of the petitioner has been wrongly mentioned in the detention order. According to him, as per the ration card the petitioner s address is B-88, Derawal Nagar, Delhi, but the detention order bears the address as AC-610, Shalimar Bagh, Delhi. The detention order was addressed to the petitioner s father s address and not to the petitioner s address. No efforts were made to serve this detention order at the residential address of the petitioner. Moreover, the incident is of 16. 2. 92 and now we are in October, 1993 and no useful purpose would be served in detaining the petitioner in pursuance of the impugned detention order passed in May, 1992.
( 6 ) MR. P. S. SHARMA, learned Standing Counsel strongly opposed this writ petition and submilted that as the earlier writ petition filed by- this petitioner was dismissed as withdrawn, this second writ petition on the same grounds is not maintainable. He also argued that even assuming that delay in passing the order ofdetention was not satisfactorily explained, it necessarily does not give rise to an infere
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