The Supreme Court has said the unreasonable delay and absence of proper explanation in communicating the grounds of detention under COFEPOSA vitiates the order of detention.
"It is clear that if there is unreasonable delay in execution of the detention order, the same vitiates the order of detention," said Justice P. Sathasivam and Justice Ranjan Gogoi in a recent order.
The court said this while setting aside the Bombay High Court ruling of Aug 14, 2008 and quashing the Nov 14, 2006 detention order issued against Shahroz Zakir Hussain Malik after an "inordinate and unreasonable" delay of 15 months.
The executing authority received the detention order issued by Maharashtra government's Principal Secretary (Appeals and Security) to Home Department and Detaining Authority in exercise of powers under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.
However, it was executed on Malik Feb 1, 2008, after a delay of another 14-and-a-half months. Malik was arrested Oct 21, 2005 and got bail Nov 11, 2005.
Malik was accused of involvement in fraudulent exports allegedly made from Nhava Sheva Port under the Drawback Scheme of the Customs Act, 1962 by a syndicate in the name of fictitious firms.
The state sought to cover up the delay contending that it made repeated attempt to serve the detention order on Malik but could not do as he was absconding.
Not impressed, Justice Sathasivan who pronounced the judgment referred to article 22(5) of the constitution and said it "mandates that in the case of preventive detention, it is incumbent on the authority making such order to communicate to the person concerned/detenu the grounds on which the order has been made".
The court said the article makes it clear that "after proper communication without delay, the detenu shall be afforded the earliest opportunity for making a representation against the said order".
Combing through the contention of the state government, the court said: "If the detenu was absconding and was not available for the service of the detention order, the authorities could have taken steps for cancellation of the bail and for forfeiture of the amount deposited."
Noting that the government took no such step, the court held: "If the respondents (state) were really sincere and anxious to serve the order of detention without any delay, it was expected of them to approach the court concerned which granted bail for its cancellation, by pointing out that the detenu had violated the conditions imposed and thereby enforce his appearance or production as the case may be.
"Admittedly, no such steps were taken. Instead it was explained that several attempts were made to serve the copy by visiting his house on many occasions.
"We are also satisfied that no serious efforts were made by police to apprehend the detenu.
"The unreasonable delay in executing the order creates a serious doubt regarding the genuineness of the Detention Authority."
In the absence of any satisfactory explanation for the delay, "we are of the opinion that the detention order must stand vitiated by reason of non-execution thereof within a reasonable time".