PETITIONER:
AHAMED MOHAIDEEN ZABBAR
Vs.
RESPONDENT:
STATE OF TAMIL NADU AND ORS.
DATE OF JUDGMENT: 28/04/1999
BENCH:
G.T. NANAVATI, M SRINIVASAN, & N. SANTOSH HEGDE.
JUDGMENT
NANAVATI, J. -----------
This petition is filed under Article 32 of
the Constitution of India challenging the order of
detention passed by the Government of Tamil Nadu, on
23.11.98, under Section 3 of the Conservation of
Foreign Exchange and Preservation of Smuggling
Activities Act, 1974. Pursuant to this detention
order, the detenu was detained on 28.1.99.
It is not necessary to state the facts in
detail as this petition deserves to be allowed on
the ground that there was undue delay in passing the
detention order. The order of detention has been
passed as the detenu was found to be smuggling 23
gold biscuits weighing 2679.5 grams into India on
8.12.97 itself and again on 19.12.97 when his
further statement was recorded. The contention
raised by the learned counsel for the petitioner is
that even then, the order of detention came to be
passed as late as on 23.11.98, that is, after 11
months and 15 days. It was further submitted by him
that the satisfaction of the detaining authority
regarding the need to immediately detain him with a
view to prevent him from continuing the prejudicial
activity was therefore not genuine. He further
submitted that because of this defect, the order of
detention stands vitiated and the continued
detention of the detenu should be declared as
illegal.
In reply to this contention, the State
Government in its counter has stated that the show
cause notice was issued to the detenu under the
Customs Act on 4.5.98 and the adjudication
proceedings were over on 9.1.98. The State
Government, therefore, did not proceed with the
proposal till then and took up the proposal for
consideration only thereafter. The order of the
Ministry of Law in that behalf was obtained on
2.11.98 and the grounds of detention were framed on
18.11.98 and the order of detention was passed on
23.11.98. No other explanation has been given by
the State Government for not passing the detention
order earlier. The State Government has not
explained why it thought it necessary to wait till
the adjudication proceedings before thee customs
authorities were over since that was not necessary
for exercising the power under the COFEPOSA Act. In
absence of any satisfactory explanation as to why
the State Government did not exercise the power
earlier, it has to be held that delay in passing the
order of detention was unreasonable. It will also
have to be held that the explanation of the
detaining authority as regards immediate need of
detaining the detenue was not genuine.
The order of detention therefore stands
vitiated and is quashed hereby. The Writ Petition is
allowed accordingly. The detenu is order to be
released immediately, if not required to be kept in
prison in some other case.