1995 (9) TMI 386 - SC - Indian Laws

Detention order quashed for unexplained delay, lack of authority satisfaction. Release ordered unless wanted elsewhere.

P.M. HARI KUMAR Versus U.O.I.

P.M. HARI KUMAR Versus U.O.I. - 1996 AIR 70, 1995 (3) Suppl. SCR 301, 1995 (5) SCC 691, 1995 (6) JT 331, 1995 (5) SCALE 132 Issues Involved:1. Delay in executing the detention order2. Staleness of the grounds for detention3. Validity of the declaration under Section 9 of the ActIssue-wise Detailed Analysis:1. Delay in Executing the Detention Order:The primary issue addressed by the court was the unreasonable and unexplained delay of about four years in executing the detention order dated July 11, 1990. The petitioner was kept under detention since July 3, 1994, pursuant to the order made under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, with the purpose of preventing him from smuggling goods. The petitioner's counsel argued that the delay demonstrated a lack of proper application of mind by the detaining authority, indicating that there was no real and genuine satisfaction about the necessity of detaining the petitioner.The court found merit in this contention, noting that the respondents failed to take effective steps to apprehend the petitioner promptly. The court observed that the authorities did not move the Court for cancellation of bail despite the petitioner violating bail conditions, nor did they insist on the petitioner's personal presence in the criminal case filed against him. The court emphasized that the entire endeavor of the respondents appeared to comply with the letter of Section 7 of the Act rather than its spirit. The court concluded that the respondents did not make sincere and earnest efforts to serve the detention order, thus the delay was not satisfactorily explained.2. Staleness of the Grounds for Detention:Although the court did not find it necessary to address this issue in detail, the petitioner's counsel argued that the grounds for the detention order were stale, as the alleged smuggling activity occurred about four months prior to the order. This argument was based on the principle that detention should be based on recent activities to justify the preventive measure.3. Validity of the Declaration under Section 9 of the Act:The third contention was that the declaration under Section 9 of the Act was invalid as it did not indicate that the declaring authority was aware of the delay in serving the detention order and was satisfied that the petitioner needed to be kept in continued detention despite the lapse of time. However, the court did not delve into this issue since the first contention regarding the delay was accepted.Conclusion:The court quashed the impugned order of detention due to the unexplained delay in its execution, which indicated a lack of genuine satisfaction by the detaining authority. The court ordered the release of the detenu unless he was wanted in another case. The petition was allowed.