Mohamed Refaydeen Abdul Vahab vs The Joint Secretary To The Government Of ... on 31 July, 2024

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Madras High Court

Mohamed Refaydeen Abdul Vahab vs The Joint Secretary To The Government Of ... on 31 July, 2024

The petitioner herein is the detenu viz., Mohamed Refaydeen Abdul Vahab, aged 26 years, S/o.Sri Abdul Vahab, COFEPOSA.No.5457, now Page 2 of 10 https://www.mhc.tn.gov.in/judis HCP.No.952 of 2024 detained at Central prison, Puzhal, Chennai, has come forward with this petition challenging the detention order passed by the first respondent dated 22.03.2024 slapped on him, in exercise of the powers conferred under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974).

2. Heard the learned counsel for the petitioner, as well as the learned Additional Public Prosecutor appearing for the respondents.

3. Though several grounds are raised in the petition, the learned counsel for the petitioner submitted that there is an inordinate delay in passing the order of detention.

4. In the instant case, the detenu was arrested on 30.01.2024 and thereafter, the detention order came to be passed on 22.03.2024. This fact is not disputed by the learned Additional Public Prosecutor.

5. Mr.Gokulakrishnan, learned Additional Public Prosecutor, by placing reliance on Paragraph Nos.13 and 14 of the counter affidavit filed Page 3 of 10 https://www.mhc.tn.gov.in/judis HCP.No.952 of 2024 by the first respondent and submitted that the delay in passing the Detention Order has been appropriately explained.

6. We are not in agreement with the explanation rendered by the first respondent for the inordinate delay in Paragraph Nos.13 and 14 of his counter affidavit which reads as follows:

"13.The evidences were analysed and Spicejet Limited was called for information, which corroborated the evidences available/emerged ensuring that they are fit to launch COFEPOSA Act, 1985 against the detenue. Hence, a proposal for considering the preventive detention of Shri Mohamed Refaydeen Abdul Vahab under the provisions of COFEPOSA Act, 1974 was sent by DRI, CZU on 05.03.2024 and the same was received by the office of the Joint Secretary (COFEPOSA) on 07.03.2024. Considering the merits of the case and evidences available, the Central Screening Committee, Ministry of Finance, Delhi had approved the launching of COFEPOSA on 13.03.2024.

14.It is further submitted that the detention order was passed against Mohamed Refaydeen Abdul Wahab on 22.03.2024 and the same was executed on Page 4 of 10 https://www.mhc.tn.gov.in/judis HCP.No.952 of 2024 23.03.2024. The allegations made by the detenue that there was an inordinate delay of 59 days in passing the detention order and abused the process of process of court is baseless. The DRI has made sincere efforts to gather documents, proofs and other evidences against the detenue and only after establishing the grounds, concluded the launching of COFEPOSA Act, 1985."

7. From the above said explanations rendered by the Detaining Authority, it could be seen that from the date of arrest till the detention order was passed there is an inordinate delay, more particularly, when the approval for launch of COFEPOSA was made on 13.03.2024 and the Detaining Authority has passed the detention order only on 22.03.2024 and this intervening period has also not been explained anywhere in the counter. Therefore, we are of the view that there is an unexplained and inordinate delay in passing the detention order.

8. In the case of 'Sushanta Kumar Banik Vs. State of Tripura', reported in '2022 LiveLaw (SC) 813', when there was an inordinate delay from the date of proposal till passing of the detention order and likewise, Page 5 of 10 https://www.mhc.tn.gov.in/judis HCP.No.952 of 2024 between the date of detention order and the actual arrest, the Hon'ble Supreme Court had held that the live and proximate link, between the grounds and the purpose of detention, stands snapped in arresting the detenu. The relevant observation of the Hon'ble Supreme Court is extracted hereunder:-

“20. It is manifestly clear from a conspectus of the above decisions of this Court, that the underlying principle is that if there is unreasonable delay between the date of the order of detention & actual arrest of the detenu and in the same manner from the date of the proposal and passing of the order of detention, such delay unless satisfactorily explained throws a considerable doubt on the genuineness of the requisite subjective satisfaction of the detaining authority in passing the detention order and consequently render the detention order bad and invalid because the “live and proximate link” between the grounds of 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.”

9. Drawing inspiration from the judgment in Sushanta Kumar Banik's case, a co-ordinate Bench of this Court in the case of 'Gomathi Page 6 of 10 https://www.mhc.tn.gov.in/judis HCP.No.952 of 2024 Vs. Principal Secretary to Government and Others', reported in '2023 SCC OnLine Mad 6332', had held that when there is an inordinate delay from the date of arrest/date of proposal till the order of detention, the live and proximate link between them would also stand snapped and thereby, had quashed the detention order on this ground.

10. In yet another case i.e., in 'Nagaraj Vs. State of Tamil Nadu', reported in '(2018) 3 MWN (Cri) 428', this Court had held that the delay of 36 days in passing the detention order after the arrest of the detenu would snap the live and proximate link between the grounds and purpose of detention. Hence, in view of the unexplained and inordinate delay in passing the order of detention, after the arrest of the detenu, the detention order in the present case, is liable to be quashed.

11. Accordingly, the detention order passed by the first respondent on 22.03.2024 in F.No.PD 12001/12/2024, is hereby set aside and the Habeas Corpus Petition is allowed. The detenu viz., Mohamed Refaydeen Abdul Vahab, aged 26 years, S/o.Sri Abdul Vahab, COFEPOSA.No.5457, now detained at Central prison, Puzhal, Chennai, is directed to be set at Page 7 of 10 https://www.mhc.tn.gov.in/judis HCP.No.952 of 2024 liberty forthwith, unless his confinement is required in connection with any other case.

                                                                [M.S.R., J]        [S.M., J]
                                                                          31.07.2024
                    Index: Yes/No
                    Internet:Yes/No
                    Neutral Citation: Yes/No

                    Tsg




                    To

1.The Joint Secretary to the Government of India, Ministry of Finance, Department of Revenue, (Cofeposa Unit), Central Economic Intelligence Bureau, Janpath Bhavan, B-Wing, 6th Floor, Janpath, New Delhi – 100 001.

2.The Director General Central Economic Intelligence Bureau, Government of India, Ministry of Finance, Department of Revenue, Janpath Bhavan, B-Wing, 6th Floor, Janpath, New Delhi – 100 001.

Page 8 of 10 https://www.mhc.tn.gov.in/judis HCP.No.952 of 2024

3.The Superintendent of Prison, Central Priosn, Puzhal, Chennai.

4.The Senior Intelligence Officer, Directorate of Revenue Intelligence, No.27, G.N.Chetty Road, T.Nagar, Chennai – 600 017.

5.The Public Prosecutor, High Court, Madras.

Page 9 of 10 https://www.mhc.tn.gov.in/judis HCP.No.952 of 2024 M.S.RAMESH, J.

and SUNDER MOHAN, J.

Tsg H.C.P.No.952 of 2024 31.07.2024 Page 10 of 10 https://www.mhc.tn.gov.in/judis

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