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1987 Supreme(Del) 290
High Court Of Delhi
P.SUSHEELAN - Appellant
Versus
COMMR.AND SECY.(HOME), GOVT.OF KERALA - Respondent
CRI.W.P 54 of 1987
Decided On : 08/10/1987
M.M.ABDUL KHADER, MALINI PODVAL, P.SUBRAMANIAM POTI, PILLAI, RANJAN MUKHERJEE, REBECA GEORGE
Unexplained delay between the incident and the order of detention, and the non-supply of material justifying the declaration under S. 9(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, can invalidate the order of detention.
Headnote:
CONSERVATION OF FOREIGN EXCHANGE AND PREVENTION OF SMUGGLING ACTIVITIES ACT - S. 9(1) - DETENTION - DELAY IN INITIATING ACTION - EXPLANATION - VALIDITY - COURT'S ANALYSIS AND CONCLUSION - RATIO DECIDENDI - FINAL DECISION: 1. The declaration made under S. 9(1) of the Act has the effect of extending the period within which a reference must be made to the Advisory Board from 5 weeks to 4 months and 2 weeks and extending the maximum period of detention from one year to two years from the date of detention. 2. The declaration is based on the subjective satisfaction of the Central Government or its specially empowered officer, and it is imperative for the said authority to supply the detenu with the material justifying the declaration. 3. Non-supply of basic material on which the declaration is founded would deprive the detenu of his right to make an effective representation before the Advisory Board and would be fatal to his continued detention. 4. The order of detention was based on a solitary incident that occurred 9 months before the order was passed, and the detaining authority failed to provide a satisfactory explanation for the delay. 5. The delay of 9 months in initiating the action is unexplained and unreasonable, and it snaps the nexus between the incident and the order of detention, rendering the order invalid. 6. The detaining authorities must act swiftly and in accordance with the settled propositions of law laid down by the courts to ensure the validity of detention orders. RATIO DECIDENDI: 1. The declaration under S. 9(1) of the Act must be accompanied by the material justifying the declaration to enable the detenu to make an effective representation. 2. Unexplained delay between the incident and the order of detention can invalidate the order, as it breaks the nexus between the two. FINAL DECISION: The petition is allowed, and the order of detention is quashed. The petitioner is to be set at liberty forthwith unless required to be detained under the orders of any other competent court or authority.
Fact of the Case:
The petitioner was arrested on 2nd July 1986 under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, based on an incident that occurred on 7th October 1985. The petitioner challenged his detention on several grounds, including the delay in initiating the action and the non-supply of material justifying the declaration made under S. 9(1) of the Act.
Finding of the Court:
The court found that the detaining authority failed to provide a satisfactory explanation for the delay of 9 months in initiating the action against the petitioner. The court also held that the declaration made under S. 9(1) of the Act was not accompanied by the material justifying the declaration, which deprived the petitioner of his right to make an effective representation.
Issues: 1. Whether the delay of 9 months in initiating the action against the petitioner was justified. 2. Whether the declaration made under S. 9(1) of the Act was valid without the supply of material justifying the declaration.
Ratio Decidendi: 1. Unexplained delay between the incident and the order of detention can invalidate the order, as it breaks the nexus between the two. 2. The declaration under S. 9(1) of the Act must be accompanied by the material justifying the declaration to enable the detenu to make an effective representation.
Final Decision: The petition is allowed, and the order of detention is quashed. The petitioner is to be set at liberty forthwith unless required to be detained under the orders of any other competent court or authority.
( 2 ) IT is the case of the petitioner that on 1-7-86, one Police constable attached to the office of the Deputy Superintendent of Police, Pathanamthitta came to his residence and informed that he should appear before the D. S. P. on the next day. Immediately, he presented himself before the D. S. P. at 11 A. M. He was arrested and orders issued under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, hereinafter referred to as the Act, were served. He was detained and sent to the Central Prison, Trivandrum. During his detention, the Addl. Secretary to the Government of India, passed an order u/s. 9 (1) of the Act on 23-7-1986. The final order of the State Government for the continued detention of the petitioner for a period of 2 years was passed and issued on 17-11-1986.
( 3 ) BY way of filing the present petition, the petitioner has challenged his detention/ continued detention on several grounds but I think this petition can be disposed of on two-fold contention bearing on the legality and validity of the declaration made u/s. 9 (1) of the Act and the unexplained delay of 9 months for initiating the action. In order to appreciate the scope of the arguments, one has first to keep in mind the scheme of the Act. Section 9 of the Act was substituted by the Amendment Act No. 58 of 1984 which came into force with effect from 31st July, 1984. Under the newly incorporated S. 9 (1) of the Act, "any person in respect of whom an order of detention is made before the 31st day of July, 1987, can be detained without obtaining the opinion of an Advisory Board for a period longer than 3 months but not exceeding six months from the date of his detention where order of detention has been made with a view to preventing the detenu from smuggling goods or abetting the smuggling of goods or engaging in transporting or concealing or keeping smuggled goods, provided the Central Government or its officer not below the rank of additional Secretary, specially empowered for this purpose is satisfied that such person :
(A) smuggles or is likely to smuggle goods into, out of or through any area highly vulnerable to smuggling; or (b) abets or is likely to abet the smuggling of goods into, out of or through any area highly vulnerable to smuggling; or (c) engages or is likely to engage in transporting or concealing or keeping smuggled goods in any area highly vulnerable to smuggling and makes a declaration in that behalf of within 5 weeks of the detention of such person. " Sub-sec. (2) of S. 9 effects certain amendments in cls. (b), (c) and (f) of S. 8 of the Act. Under cl. (b), the appropriate government has to make a reference to the Advisory Board within 5 weeks from the date of detention. Under cl. (i) of sub-sec. (2) of S. 9, the period of 5 weeks is extended to 4 months and 2 weeks. Again under Cl. (c) of S. 8, the Advisory Board has to opine whether or not there is a sufficient cause for the detention of the person concerned and submit its report within 11 weeks from the date of detention. By ame
