Detention Order A Preventive Measure, Sense Of Urgency Is Must, Failure To Serve/ Detain At Earliest Possible Defeats Its Purpose: Delhi High Court

The Delhi High Court has observed that the purpose of detention order is a preventive measure and if the detenu is not served or detained at the earliest possible, keeping in view the spirit of Article 22(5) of the Constitution of India, the purpose is defeated.

A division bench comprising of Justice Siddharth Mridul and Justice Anoop Kumar Mendiratta quashed the detention order issued under sec. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) to detain the petitioner in custody for a period of one year.

Apart from challenging the detention order, the petitioner had also challenged the further order under sec. 7(1)(b) of the COFEPOSA Act, 1974 directing him to appear before the Commissioner of Police, Delhi within seven days of the publication of the detention order.

The latter order reflected that the petitioner was required to be detained and kept in Tihar Jail, New Delhi with a view to prevent him from smuggling of goods, abetting the smuggling of goods and engaging in transporting or concealing or keeping smuggled goods in future.

The impugned Preventive Detention Order was yet to be served on the petitioner. The Court had earlier observed that despite the detention order, the same was not executed upon the petitioner on behalf of the official respondents, and accordingly, it was said that no coercive action be taken against the petitioner.

The Court was of the view that vital facts placing the firms under Denied Entry List (DEL) and not placing the same before the Detaining Authority have a significant and direct bearing on the subjective satisfaction of the Detaining Authority regarding necessity to detain as the same foreclosed any future possibility of petitioner in indulging in any prejudicial activity.

"As such, there appears to be lack of any genuine and real necessity to again apprehend and detain the petitioner for alleged preventive purpose and the detention order is liable to be quashed on this ground alone as the subjective satisfaction of the Detaining Authority in issuing detention order stands vitiated," the Court said.

It further said that no justified reasons were disclosed by the respondent for non-service of detention order on the petitioner. In the aforesaid backdrop, the Court noted that despite opportunities to serve the detention order, neither the Detaining Authority nor the Executing Agency as well as Sponsoring Authority was diligent or responsible to serve the detention order on the petitioner.

"There is absolutely no reasonable justification for non-service of detention order dated 26.03.2019 on the petitioner, from 28.03.2019 to 05.04.2019, despite the petitioner being available to the authorities. No serious attempt appears to have been made by the respondents to serve the detention order soon after the same was made and the same is in complete defiance of constitutional mandate. The purpose of a detention order is preventive in nature and not punitive. As such, strict compliance of the procedural safeguards is fatal to the case of respondents as there was no diligent effort to serve the detention order," it added.

The Court also observed:

"In the facts and circumstances, we are of the considered view that the purpose of detention order is a preventive measure and if the detenu is not served or detained at the earliest possible, keeping in view the spirit of Article 22(5) of the Constitution of India, the purpose is defeated."

The Court further opined that a sense of urgency needs to be exhibited by the respondents, if the preventive detention order is to be justified.

"The entire exercise for service of detention order appears to have been undertaken in a casual and cavalier manner, which, in our considered view is fatal to the case of the respondents. The non placement of the vital fact that the firms had been placed in Denied Entry List (DEL) before the Detaining Authority prior to passing of detention order also vitiates the subjective satisfaction of the Detaining Authority," the Court said.

Accordingly, the plea was allowed.

Case Title: ABHISHEK GUPTA v. UNION OF INDIA & ORS.

Citation: 2022 LiveLaw (Del) 488

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