Delay in discharging an order by govt. authorities cannot be a reason for quashing the order itself: High court of Delhi

In cases when government authorities have passed a detention order of an individual, such detention order cannot be cancelled merely because there has been a delay in the execution of such an order and the delay does not vitiate the order itself.  This was decided in the case of Harmeet Singh  Vs. Union Of India, Central Economic Intelligence & Ors [W.P.(Crl.) 1166/2020 & Crl.M.A. 10239/2020]  in The High Court Of Delhi by double bench consisting of Hon’ble  Justice Vipin Sanghi and  Hon’ble Justice Rajnish Bhatnagar.

The present writ petition was made to assail the Detention Order issued against the petitioner by Respondent – Joint Secretary, COFEPOSA, Government of India under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The facts of the case are that on the basis of certain specific intelligence contraband items such as drones, foreign branded cigarettes etc. were recovered from the petitioner.  When questioned, he admitted he had bought the items to sell in the Indian market and gain profits, and revealed, smuggling similar contraband items into the Indian Territory.

The submission advanced by counsel on behalf of the petitioner is that the impugned Detention Order was issued after an inordinate delay of 1 year and 4 months, or about 490 Days, and that this long delay is fatal to the Detention Order, for which reliance was placed on Licil Antony Vs. State of Kerala & Anr, (2014) 11 SCC 326.

The Respondents have defended their action, and it is contended that there is no delay in either sending the fresh proposal for detention. They submit that they have been pursuing the matter with utmost diligence, and have been investigating the case against the petitioner with a proactive approach, and no delay has been caused. It was also contended that Consequent upon the forensic examination of the mobile phone of the petitioner which unearthed additional facts, and incriminating materials, a fresh proposal dated 13.03.20 was forwarded by the Sponsoring Authority to the CEIB, Department of Revenue, Ministry of Finance, for preventive detention of petitioner for being a repeat offender.

The court observed that prima-facie it could not be concluded that the Detention Order is belated, or that the live-link between the prejudicial activity – on the basis of which the Detention Order had been passed, and the object of detention i.e. the need to detain the petitioner to prevent him from undertaking similar prejudicial activity in future, has been snapped.

A Detention Order can validly be assailed even at the pre-execution stage, though on limited grounds. This position was recognized by the Supreme Court in Additional Secretary to Government of India and Others Vs. Smt. Alka Subhash Gadia and Anr, (1992) Supp 1 SCC 496, which enlists some of the grounds on which the Detention Order could be assailed even prior to execution.

The court finally said that “on a careful examination of all the facts present before us, we find that the aforesaid timeline satisfactorily explains and justifies the time taken by the Respondents in undertaking investigation, which finally culminated in passing of the impugned Detention Order. Non-appearance of petitioner, and non-appearance of even his authorized representative shows that the endeavor of the petitioner was merely to drag the matter and delay the forensic examination of his mobile phone for as long as it could be done”. On this basis the petition was dismissed by the court.

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