TaxTMI 
TaxTMI 
2015 (4) TMI 985
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.... the Conservation Of Foreign Exchange and Prevention Of Smuggling Activities Act, 1974 ( for short 'the COFEPOSA Act') with a view to prevent him from smuggling goods. By the said order dated 27th February, 1989 it was directed to detain the detenu in the custody of the Central Prison at Mumbai. 2. In pursuance of the said order dated 27th February, 1989 passed by the Respondent No.2 under Section 3(1) of the COFEPOSA Act, the police authorities of the Respondent No.4, State of Kerala, executed the said order on 25th February, 2015 through Perinthalmanna Police Station, District Malappuram, State of Kerala and the detenu is subsequently sent to and is lodged in the Arthur Road Central Prison at Mumbai on 2nd March, 2015. The circum....
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.... learned APP for Respondent No.3 at length and have also perused the record produced by the learned counsel appearing for the respective parties. 4. The learned counsel appearing for the Petitioners has confined her challenge to ground Nos.(iii) and (iv) of paragraph 5 of the Petition, which deals with the delay in execution of the detention order, without prejudice to various other grounds which she has raised while assailing the order of detention. 5. In response to the Petition, Dr. Kiran Kumar Karlapu, Assistant Commissioner of Customs, COFEPOSA Cell (AIU), CSI Airport, Mumbai has filed a counter affidavit dated 26th March, 2015 on behalf of the Respondent Nos.1 and 2 and opposed the Petition. 6. The learned counsel appearing for the....
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....992) 1 SCC 434 and in particular paragraph Nos.7, 9, 11 and 18 which read as under : "7. Needless to emphasize that an order of detention is not a curative or reformative or punitive action but a preventive action, the avowed object of which being to prevent the antisocial and subversive elements from imperiling the welfare of the country or the security of the nation or from disturbing the public tranquility or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances etc. As it is borne out from the preamble of the COFEPOSA Act under the provisions of which the present detention order has been passed, the detention order under this Act is made with an object of preventing "th....
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.... order bad and invalid because the 'live and proximate link' between the grounds of the detention and the purpose of detention is snapped in arresting the detenu. A question whether the delay is unreasonable and stands unexplained depends on the facts and circumstances of each case." 8. As stated herein above, Dr. Kiran Kumar Karlapu, Assistant Commissioner of Customs, COFEPOSA Cell (AIU), CSI Airport, Mumbai has filed an affidavit in reply dated 26th March, 2015 for and on behalf of the Respondent Nos.1 and 2. In response to ground No.(ii), (iii) and (iv) of the Petition, the said authority has stated that though the detention order was issued on 27th February, 1989, the detenu - Mohammed Ali Vengadan intentionally and deliberatel....
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....ordinate delay in execution of the Detention Order' but owing to it, the detention order cannot be said to be inoperative and invalid because the detenu intentionally evaded his detention and concealed himself so that the order could not be executed. We appreciate the impartial and rational stand taken by the affiant in the said affidavit dated 26th March, 2015, thereby admitting the fact that there is an inordinate delay in execution of the detention order dated 27th February, 1989. In our considered opinion, this itself is sufficient to vitiate the execution of the detention order after lapse of about more than 25 years. 10. Reverting back to the case in hand, as we have stated herein above, there is an inordinate delay of about 26 y....
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....e apprehension that the detenu was likely to act in any manner prejudicial to public order. The order, therefore is bad and must go". 12. In the present case, the circumstances indicate that the detaining authority, after passing the detention order dated 27th February, 1989 was indifferent in securing the detenu by not taking proper action with great caution. It further appears that the police authorities of the Respondent No.4 were also not prompt in their action in executing the said detention order and the execution of the said detention order was unduly delayed, which allowed the detenu to remain at large for a long period and has consequently defeated the very purpose of the impugned order. The Respondent Nos.1 and 2 have failed to s....