The Delhi High Court set aside the detention order against the United Arab Emirates (UAE) based NRI accused of Smuggling Gold.
The detenu, Mohd Nashruddin has been a non-resident Indian citizen based in UAE and has been engaged in trading in gold/gold jewellery in/from UAE in the name and style of M/s. M.N. Khan Jewellers (FZE).
The petition under Article 226 of the Constitution of India, essentially in the nature of a writ of habeas corpus, has been instituted on behalf of Mohammed Nashruddin Khan, praying for quashing of a detention order under Section 3(1) of the Conservation of Foreign Exchange And Prevention of Smuggling Activities Act, 1974 (COFEPOSA), and for a further direction that he be set at liberty forthwith.
Mr. Sourabh Kirpal, Senior Counsel appearing on behalf of the petitioner that there has been a delay in deciding Representation by the Central Government as the petitioner was detained on 12.10.2020; the petitioner filed representation dated 27.10.2020 with the Detaining Authority and with the Central Government (DG, CEIB); the Detaining Authority rejected the representation made by the petitioner vídé Memorandum dated 09.11.2020; however, the DG CEIB, did not deal with the representation of the detenu expeditiously and instead made a Reference dated 10.11.2020 in terms of Section 8(b) of COFEPOSA to the Central Advisory Board.
The Central Advisory Board gave its opinion that there existed sufficient grounds for the detention of the petitioner. Basis the opinion of the Central Advisory Board, the Central Government, in the exercise of powers under Section 8(f) of COFEPOSA, confirmed the Detention Order. Representation of the petitioner was rejected vídé Memorandum. Peculiarly, the order confirming the detention was passed 03 days prior to rejection of the Representation. This shows the complete non-application of mind by the Central Government while dealing with the petitioner’s representation.
The division bench of Justice Siddharth Mridul and Justice Anup Jairam Bhambhani said that well settled that the right of the detenu to make a representation and have it considered by the appropriate Government with the expedition, is a constitutional right under Article 22(5) of the Constitution of India and any unreasonable and unexplained delay in considering the representation is fatal to the continued detention of the detenu.
The court held that there has been an inordinate and unexplained delay on the part of the Central Government in deciding the statutory representation filed by the detenu.
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