Mohaideen Zabbar Vs. State of Tamil Nadu & Ors  INSC 169 (28 April
Nanavati, M Srinivasan, & N. Santosh Hegde. 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.
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.
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.
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.