New Delhi: Delay in passing preventive detention order or its execution by authorities vitiates the whole process as it is unconstitutional, the Supreme Court has ruled.
A bench of justices P Sathasivam and Ranjan Gogoi passed the ruling, upholding the appeal of Saeed Zakir Hussain Malik challenging detention of his brother Shahroz Zakir by Customs authorities under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA).
The charge against the detune related to certain alleged fraudulent exports transaction in the name of fictitious firms along with some other persons to unlawfully earn several crores of rupees under the duty drawback scheme.
He was arrested on October 21, 2005 and released on bail on November 11, 2005. While the detune was on bail, it was only more than a year later on November 14, 2006, a detention order was passed against him by the Principal Secretary Home, (Appeals and Security) Maharashtra.
Further it was only on February 1, 2008, after a delay of over 14 months, the said order was served upon the detune for its execution.
Malik challenged the order on the ground that it was vitiated as the entire process was carried out after considerable delay, but the Bombay High Court dismissed his plea, following which he appealed in the apex court.
Upholding the appeal the apex court said the authorities failed to serve the detention order promptly as per Article 22(5) of the Constitution which says, "When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order."