Full Judgment Text
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PETITIONER:
MANJU RAMESH NAHAR
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT: 31/03/1999
BENCH:
S.Saggur Ahmad, R.P.Sethi
JUDGMENT:
S. SAGHIR AHMAD, J
Leave granted.
The order of detention dated 3.2.1997 passed under
Section 3 of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974 (hereinafter
referred to as the "Act’), under which Ramesh Nahar, husband
of the appellant was detained, was challenged before the
Bombay High Court in a writ petition filed under Article 226
of the Constitution but the petition was dismissed on
23.12.1998. It is this judgment which is challenged in this
appeal. We have heard learned counsel for the parties. Mr.
R.K. Jain, learned senior counsel appearing on behalf of
the appellant has contended that though the order of
detention was passed on 3.2.1997, it was executed after more
than a year on 23.4.1998 without there being any explanation
for the delay in executing the order. This delay, it is
submitted, should be treated to have vitiated the order.
Before dealing with the point raised by Mr. R.K. Jain, we
may point out that individual liberty is one of the most
valuable fundamental rights guaranteed by the Constitution
to the citizens of this country. Nearly three decades ago,
this Court had pointed out in Motilal Jain vs. State of
Bihar & Ors. AIR 1968 SC 1509 = 1968 (3) SCR 587 that the
interest of the society is no less important than that of
the individual. It was also observed that the provisions of
the Constitution for safeguarding the interests of the
society harmonise the liberty of the individual with social
interests. In another case, namely SK Abdul Karim & Ors.
vs. State of West Bengal 1969(2) SCJ 381 = AIR 1969 SC 1028
= 1969 (3) SCR 479 = 1969 (1) SCC 433, it was indicated that
while the Constitution has recognised the necessity of laws
as to preventive detention, it has also provided certain
safeguards to mitigate their harshness by placing fetters on
the legislative powers conferred on this topic. Article 22
lays down the permissible limits of legislation empowering
preventive detention and further prescribes the minimum
procedure that must be included in any law permitting
preventive detention. The Act provides for preventive
detention. Section 3 gives power to the Central Govt. or
the State Govt. or any officer of the Central or the State
Govt. of the specified status, to pass, with respect to any
person with a view to preventing him from acting in any
manner prejudicial to the conservation or augmentation of
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foreign exchange or with a view to preventing him from
smuggling activities specified therein or harbouring persons
engaged in smuggling activities, an order directing that
such person be detained. The action under this Section can
be taken only on ’satisfaction’. The further requirement is
that the order should have been passed for preventing that
person from carrying on the prejudicial activities. This
implies that as soon as the Govt. or its officer feels
satisfied that an order under this Section is necessary, it
has to be passed and implemented forthwith so that the
prejudicial activities carried on by the person against whom
the order has been passed, may be stopped immediately or at
the earliest. This object can be achieved if the order is
immediately executed. If, however, the authorities or those
who are responsible for the execution of the order, sleep
over the order and do not execute the order against the
person against whom it has been issued, it would reflect
upon the "satisfaction" of the detaining authority and would
also be exhibitive of the fact that the immediate necessity
of passing that order was wholly artificial or non-existent.
In T.A. Abdul Rahman vs.State of Kerala & Ors. AIR 1990 SC
225 = 1989 (3) SCR 945 = 1989 (4) SCC 741, it was held as
under : "Similarly when there is unsatisfactory and
unexplained delay between the date of order of detention and
the date of securing the arrest of the detenu, such a delay
would throw considerable doubt on the genuineness of the
subjective satisfaction of the detaining authority leading
to a legitimate inference that the detaining authority was
not really and genuinely satisfied as regards the necessity
for detaining the detenu with a view to preventing him from
acting in a prejudicial manner. In P.M. Harikumar vs.
Union of India & Ors. 1995 (5) SCC 691 = AIR 1996 SC 70,
the view was reiterated and it was held that unexplained
delay in the execution of the order of detention would
vitiate the order. In another decision in SMF Sultan Abdul
Kader vs. Jt.Secy. to Govt. of India & Ors., (1998) 8 SCC
343 = JT 1998 (4) SC 457, to which one of us ( Saghir Ahmad,
J) was a member, the unexplained delay in the execution of
the order of detention was held ’fatal.’ If the instant case
is examined in the light of the above principles, it would
be noticed that in the counter affidavit filed by the
respondents in this case, the delay in execution of the
order has been explained as under : "....Further in spite
of efforts made by the Sponsoring Authority and the the
Police Officials of the P.C.B., Mumbai, the detenue would
not be apprehended as he was absconding. Finally the
detenue was apprehended and the Detention Order was served
on 23.4.1998......" Except making a vague allegation that
the appellant was absconding and was apprehended on
23.4.1998 when the order was executed against him, the
respondents have not given details of any steps that might
have been taken in the meantime to execute the order against
Ramesh Nahar. They could have taken appropriate steps under
Section 7 of the Act or even under the provisions of
Criminal Procedure Code for securing the arrest of the
husband of the appellant. The detention order was passed on
3.2.1997 but it was executed on 23.4.1998. Obviously, the
effect of non-execution of the order was that the
authorities themselves gave liberty to the detenu to carry
on his earlier activities giving rise, in that process, to a
question whether the activities complained of were really
prejudicial activities within the meaning of Section 3 of
the Act. As pointed out above, the execution of the order
of detention long after it was passed would have the effect
of vitiating the order as also the "satisfaction" of the
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authorities who passed that order. For the reasons set out
above, the appeal is allowed and the order of detention
passed under Section 3 of the Act is quashed with the
direction that Ramesh Nahar, husband of the appellant, shall
be set at liberty forthwith, unless his detention is
required in connection with some other case. WRIT PETITION
(CRL. NO. 30 OF 1999 The Writ Petition is dismissed as
having become infructuous.