1997 (8) TMI 526 - HC - FEMA

Court upholds detention order, deems valid. No rights infringement. Delay justified. Preventive detention necessary.

The court dismissed the petition challenging a detention order, finding that there was no non-application of mind, the blurred document did not affect the ... - Issues Involved:1. Non-application of mind in the detention order.2. Illegibility of documents affecting the detenu's right to make a representation.3. Delay between the last offending incident and the issuance of the detention order.4. Disparity between the detention order and the grounds of detention.5. Necessity of preventive detention despite the detenu being on bail.Detailed Analysis:1. Non-application of Mind in the Detention Order:The petitioner contended that the inclusion of paragraph 29 in the detention order indicated non-application of mind by the detaining authority. Paragraph 29 mentioned procedural instructions for translating and serving the detention order. The court examined the original file and found that the detaining authority had personally corrected and signed the draft order, indicating careful consideration. The court concluded that paragraph 29 showed utmost care in ensuring compliance with legal provisions and did not indicate non-application of mind.2. Illegibility of Documents Affecting the Detenu's Right to Make a Representation:The petitioner argued that a blurred portion of a document (page 175) affected his right to make an effective representation under Article 22(5) of the Constitution. The court noted that the blurred portion was part of a remand application and did not contain essential information that was not already provided in other legible documents. The court found that the detenu had not raised any grievance about the blurred document before making his representation. The court held that the partial blurriness did not violate the detenu's rights and did not affect the validity of the detention order.3. Delay Between the Last Offending Incident and the Issuance of the Detention Order:The petitioner contended that the 11-month delay between the last incident (15th December 1995) and the detention order (11th November 1996) indicated that the live link between the offending act and the propensity to commit future acts was broken. The court examined the steps taken during the investigation and found that the delay was satisfactorily explained. The court referred to Supreme Court judgments indicating that mere lapse of time does not necessarily break the live link if the delay is properly explained. The court concluded that the time lag did not vitiate the detention order.4. Disparity Between the Detention Order and the Grounds of Detention:The petitioner argued that the detention order referred to 'smuggling goods' under section 3(1)(i) of the COFEPOSA Act, while the grounds referred to activities under section 3(1)(iii) ('engaging in transporting or concealing or keeping smuggled goods'). The court examined the grounds of detention and found that the detenu was involved in the entire smuggling operation, including the initial conspiracy, removal of the container, and attempts to open it. The court held that the grounds of detention were not limited to section 3(1)(iii) and clearly indicated involvement in 'smuggling goods.' The court rejected the contention of disparity.5. Necessity of Preventive Detention Despite the Detenu Being on Bail:The petitioner contended that since he was released on bail on 8th January 1996, there was no necessity for preventive detention on 11th November 1996. The court noted that the detaining authority had recorded satisfaction that the detenu was likely to engage in future smuggling activities based on past conduct. The court held that preventive detention could be justified even if the detenu was on bail, provided there was material to support the likelihood of future prejudicial activities. The court found that the detaining authority had sufficient grounds for the detention order.Conclusion:The court found no merit in any of the contentions raised by the petitioner. The rule was discharged, and the petition was dismissed.