1985 (8) TMI 232 - HC - Indian Laws

Detention order declared invalid due to lack of consideration for detenu's prior extension.

The Bombay High Court declared a detention order under the COFEPQSA Act invalid in a 1987 case. The detenu, residing abroad since 1974, faced pending ... Writ jurisdiction Issues:1. Validity of the detention order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPQSA Act).2. Challenge to the detention order on various grounds, including the detenu-designate staying away from India and the petitioner's locus to challenge the order.3. Consideration of a preliminary objection raised by the respondents regarding challenging the detention order under Article 226 of the Constitution.4. Validity of the detention order in light of specific references to previous court orders and the circumstances surrounding the detenu-designate's stay abroad.Detailed Analysis:1. The judgment by the Bombay High Court pertains to a petition challenging a detention order made under the COFEPQSA Act in 1987. The detenu-designate, an individual of Indian origin who later acquired British nationality, had been residing abroad since 1974. The detention order was issued on 10th July 1987 against the detenu-designate, referred to as Sayed Ahmed, who had pending cases against him in India related to Customs Act offenses. The petitioner, the detenu-designate's brother, challenged the detention order on various grounds, seeking to invalidate it.2. The respondents raised a preliminary objection, arguing that the detenu-designate staying away from India meant that the detention order could not be questioned through a petition under Article 226 of the Constitution until he surrendered. The petitioner's counsel contended that the kinship between the petitioner and the detenu-designate provided the former with the standing to challenge the detention order. Additionally, concerns were raised regarding the potential application of the Smugglers and Foreign Exchange Manipulators (Forfeiture of property) Act, 1976 (SAFEMA), which could impact the petitioner's interests due to the detenu-designate's situation.3. The court considered the objections raised and focused on the implications of the SAFEMA on the petitioner's interests, leading to the conclusion that the petitioner had the right to question the detention order based on the potential jeopardy posed by the authorities invoking SAFEMA. This aspect was deemed sufficient to establish the petitioner's standing to challenge the detention order under Article 226.4. The court further analyzed the validity of the detention order, highlighting a crucial flaw in its issuance. Reference was made to a court order from 8th July 1986, granting the detenu-designate an extension of six months to return to India. It was noted that this extension was not considered by the detaining authority when issuing the detention order on 10th July 1986. Given the circumstances where the detenu-designate was unable to return to India due to visa issues, the court found no justification for the detention order, as the detenu was not likely to engage in prejudicial activities upon return. This flaw in the detention order led the court to rule in favor of the petitioner, making the petition prayers absolute and voiding the detention order.In conclusion, the judgment delves into the legality and procedural aspects of the detention order, addressing the petitioner's locus to challenge the order and highlighting the critical flaw in its issuance, ultimately leading to the order being declared invalid by the Bombay High Court.