A IRUDAYANATHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) UNDUE and unexplained delay in serving the order of detention has snapped the live-link between the prejudicial activities of the detenu and the urgent need to prevent him in future indulging in similar activities and has thereby rendered the order of detention void. The order of detention in the instant case, which is passed under section 3 (1) (iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) was passed on 29th January, 1991. The same was, however, served on the detenu on 24th June, 1994 i. e. after a lapse of 3 years and 5 months. During the interregnum period there were several dates of remand which are spread over the period from 20th March, 1991 to 6th January, 1994 when a complaint against the detenu was filed. On 28th March, 1991, the detenu who was then on bail, did not attend the Court. However, on that day the prosecution itself made an application for extension of bail and the bail was accordingly extended upto 1st April, 1991. Similarly, applications for extension of bail was made by the prosecution on the following dates viz.

(2.) IT is pointed out on behalf of the respondents that the action against the detenu under section 7 (1) (a) (b) of the COFEPOSA Act was initiated against the detenu on 18th October, 1991. It is the contention of the respondents that the action was necessitated as the detenu was absconding. The grounds of detention contain the poslal address of the detenu. Hence this is not a case where the whereabouts of the detenu were not known. No particulars are furnished as to the steps taken for tracing the detenu at the given address. In any event, there has been a delay of about nine months even for initiating action under section 7 (1) (a) and (b) of the Act. No explanation whatsoever is forth coming for this delay. In our view, the aforesaid delay in serving the order of detention on the detenu will vitiate the order of detention. This will render the continued detention of the detenu illegal. We, therefore, set aside the detention order passed on 29th January, 1991.

(3.) FOR the aforesaid reasons, the petition succeeds. We set aside the detention order passed on 29th January, 1991. The petitioner-detenu is directed to be released forthwith unless required in some other case. Rule is made absolute. Petition allowed.