Madras High Court Quashes Lawyer’s Detention Under COFEPOSA, Says Live And Proximate Link Had Snapped

While setting aside a preventive detention order made by the State for detention of a lawyer in connection with smuggling under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974, the Madras High Court noted that the live and proximate link between grounds of detention and purpose of detention had snapped. Justice M Sundar and Justice R Sakthivel noted that while the proposal was made by the Sponsoring Authority on November 6, 2010, the detention order was made by the Detaining Authority only on December 30, 2010, after nearly eight weeks. Thus, relying on the Supreme Court ruling in Sushanta Kumar Banik Vs. State of Tripura & others, the court observed that the live and proximate link had snapped. “In the case on hand, from the tabulation supra, more particularly S.Nos.4 and 7 thereat, we have no hesitation in saying that Banik's principle applies, impugned preventive detention order is vitiated as 'live and proximate link' between the grounds of detention and purpose of detention has snapped,” the court observed. The petitioner contended that though the preventive detention order was based on the statements given by two importers in 2010, these importers were not detained and that the order was an attempt to interfere with the professional work of the petitioner, who is a practicing lawyer. Senior Advocate Abdul Hameed, appearing for the petitioner, also argued that in the Detention order, the authority had recorded that the anticipatory bail petition was pending whereas the same was already dismissed on the date of the detention order. Thus, it was argued that the subjective satisfaction was impaired. It was also contended that there was a delay in considering the representation of the petitioner. Though the Additional Public Prosecutor argued that as per Section 5 of COFEPOSA Act, the grounds were not severable, the court noted that for the section to kick in, the detention order should have been made at least on two grounds. “In other words, preventive detention order should have been made on atleast two out of five grounds, for Section 5-A of COFEPOSA Act to be attracted. In the case on hand, paragraph No.5 of grounds of impugned preventive detention order (extracted and reproduced supra and alluded to supra) makes it clear that impugned preventive detention order has been made only on one ground and therefore, Section 5-A of COFEPOSA Act does not apply,” the court observed. With respect to delay in considering representation, the court noted that though the representation was made on June 24, 2023, there were unexplained lapses while considering the representation. Emphasising that considering the representation against preventive detention order was sacrosanct to the constitutional safeguards, the court added that violation of these safeguards vitiated the detention order. “These leaps i.e., unexplained leaps are good enough to say that there has been delay in considering the representation sent qua impugned preventive detention order. Considering the representation qua any preventive detention order is a sanctus/sacrosanct constitutional safeguard ingrained in Article 22(5) of Constitution of India and violation of the same leads to vitiation of the impugned preventive detention order, leaving it liable for being dislodged in a habeas legal drill,” the court said. This respect to non-application of mind, the court accepted the petitioner’s submission that the detaining authority had proceeded on the basis that the anticipatory bail petition was pending while it had already been dismissed. Thus, holding that the preventive detention order had been vitiated, the court allowed the habeas corpus petition and directed the petitioner to be released. Counsel for Petitioner: Mr.Abdul Hameed Senior counsel for Mr.S.Elambharathi Counsel for Respondent: Mr.A.Gokulakrishnan Additional Public Prosecutor for R1 & R3 Mr.R.Rajesh Vivekanantham, Deputy Solicitor General of India assisted by Mr.E.Raj Thilak Additional Public Prosecutor for R2 Citation: 2023 LiveLaw (Mad) 278 Case Title: S Zahir Hussain v The State and Others Case No: HCP No. 1333 of 2023Click here to read/download the order

Madras High Court Quashes Lawyer’s Detention Under COFEPOSA, Says Live And Proximate Link Had Snapped

Upasana Sajeev

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