Bombay HC Seeks Explanation for Delay in Execution of Order Under COFEPOSA

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A division bench of Bombay High Court consisting of Justice S.S. Shinde and M.S. Karnik passed an order on 1st October 2020 in the case of Suresh Gulabchand Jaiswal v. Union of India & Others in which the court interpreted the aspect of delay in execution of order under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA)

FACTS OF THE CASE

The petitioner, along with others, was travelling to Mumbai from Hong Kong via New Delhi on 3rd September. On 4th September, they were caught by the custom officials on the ground of smuggling laptops, mobiles and other electronic gadgets. The authorities seized the items under section 111 of Customs Act. The petitioner, along with other accused, was presented before the judicial magistrate on 9th September. The magistrate sent him to judicial custody for 14 days. On 6th November, he was released by Chief Metropolitan Magistrate on bail. However, authorities subsequently detained him under COFEPOSA to prevent him from smuggling in India as it was believed that he was a part of a cartel which was involved in smuggling goods in India. 

ARGUMENT ON BEHALF OF PETITIONER

The counsel for the petitioner submitted before the court the following arguments:

  1. There was inordinate delay by the authority to pass the detention order. 
  2. The petitioner was released on 6th November 2019. The order of detention was passed on 21st February, and the same was executed on 2nd July 2020. Hence there is an inordinate unexplainable delay by the authority. The court relied on SMF Sultan Abdul Kader vs Joint Secretary to Government of India and others.
  3. The order which was passed on 14th February that there is an apprehension that the petitioner may again smuggle the goods does not hold ground because after that the government imposed a lockdown and international commercial flights were also not allowed. Hence the “live and proximate link that must exist between the past conduct of a person and the imperative need to detain him” does not exist here. The court upheld the principle in Sama Aruna vs State of Telangana and another

ARGUMENT ON BEHALF OF RESPONDENT

The counsel for the respondent submitted before the court the following arguments:

  1. There was no inordinate delay in passing the order of detention. 
  2. The detaining authority applied its full mind to arrive at the subjective satisfaction that there is an apprehension of the crime being committed again. 
  3. If there was an inordinate delay, then the reason was that the petitioner was absconding and hence he is solely liable for such delay. The argument was based on the case, Union of India and others vs Muneesh SunejaLicil Antony vs State of Kerala & Anr.

CONSIDERATION BY COURT

The court gave the following observations:

  1. In the Muneesh Suneja case, the apex court held that if the authorities can explain the reason for the delay, then the detention order is valid. 
  2. The argument of the petitioner that the international flights are not being allowed during the pandemic cannot be sustained as the flights were permitted on specific routes and no complete restriction was there.
  3. Mere delay in execution of order won’t vitiate the trial and the same was held in KPM Basheer Vs. State of Karnataka and Anr.
  4. There was nothing on record to prove that the authorities took reasonable steps in executing the detention order. 

DECISION OF THE COURT

The court held that since the authorities were not able to explain the delay in execution of the detention order satisfactorily, the petitioner would be released from the preventive detention. 


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