2017 (3) TMI 1070 - HC - Customs

Detention order quashed for delay, detenue to be released; other grounds rejected.

Atikur Rahaman Versus Union Of India & Anr.

Atikur Rahaman Versus Union Of India & Anr. - TMI Issues Involved:1. Detention Order Based on a Solitary Incident2. Subjective Satisfaction of the Detaining Authority3. Non-Placement of Vital Documents4. Violation of Article 22(5) of the Constitution of India read with Section 3(3) of the COFEPOSA Act5. Sufficiency of Ordinary Law to Deal with the Situation6. Delay in Execution of the Detention OrderDetailed Analysis:Detention Order Based on a Solitary Incident:The petitioner argued that the detention order was based on a solitary incident of handing over a packet containing gold jewelry to Smt. Shehnaz Laiq Ahmed Ansari at Doha Airport. The petitioner contended that the detenue was not involved in any smuggling activities and had no past history of such activities. The court noted that a single act could justify a detention order if it indicated organized activity or potential for future similar activities. The court found that the incident involved extensive planning and coordination, demonstrating the detenue's propensity and potentiality to indulge in future smuggling activities. Therefore, the court rejected the petitioner's argument on this ground.Subjective Satisfaction of the Detaining Authority:The petitioner contended that the detaining authority's subjective satisfaction was wrongly arrived at, given that the detenue had voluntarily surrendered his passport and could not travel abroad. The court distinguished this case from others where the detention order was under Section 3(1)(i) of the COFEPOSA Act, noting that the present case was under Section 3(1)(ii) for abetting smuggling. The court found that the detenue's role involved planning and coordination, which could continue even without a passport. Thus, the court upheld the subjective satisfaction of the detaining authority.Non-Placement of Vital Documents:The petitioner argued that the application for cancellation of bail was not placed before the detaining authority, which was a vital document. The court found that the detaining authority was aware of the pendency of the application through a letter dated 17.05.2016. Therefore, the court found no merit in the petitioner's argument on this ground.Violation of Article 22(5) of the Constitution of India read with Section 3(3) of the COFEPOSA Act:The petitioner argued that the grounds of detention and relied upon documents were incomplete or illegible, impeding the detenue's right to make an effective representation. However, this ground was not pressed at the time of hearing, and the court did not address it further.Sufficiency of Ordinary Law to Deal with the Situation:The petitioner contended that the ordinary law of the land was sufficient to deal with the situation, and there was no need to invoke preventive detention. The court noted that preventive detention is a necessary evil to prevent greater harm to the nation's economy and security. The court found that the detenue's activities were of a serious nature and required preventive detention to prevent future smuggling activities. Therefore, the court rejected the petitioner's argument on this ground.Delay in Execution of the Detention Order:The petitioner argued that there was an unexplained delay of about 80 days in executing the detention order, which vitiated the subjective satisfaction of the detaining authority. The court found that the authorities were aware of the detenue's address but failed to take effective measures to execute the order promptly. The court concluded that the delay snapped the live link between the order and the subjective satisfaction, thereby vitiating the detention order. Consequently, the court quashed the detention order on this ground.Conclusion:The court quashed the detention order on the ground of unexplained delay in its execution, while rejecting the petitioner's arguments on all other grounds. The detenue was ordered to be released forthwith unless wanted in any other case.