Preventive detention can’t be sustained on stale or illusory grounds: HC

PTI, Sep 30, 2021, 7:33 PM IST

New Delhi: The Delhi High Court Thursday said that an order of preventive detention cannot be sustained on “stale or illusory grounds” which have no real nexus with past prejudicial activity.

A bench of Justices Siddharth Mridul and Anup J Bhambhami said that since preventive detention is a drastic action based only upon suspicion, it can be allowed only if there is a live, causal link between the person’s past activities and the need for detention.

“A preventive detention order is unsustainable on stale or illusory grounds, which have no real nexus with the past prejudicial activity,” the bench stated.

“Preventive detention being drastic State action based only upon suspicion arising from a person’s past activity, can be allowed, as the settled legal position mandates, only if there is a live, causal link between a person’s past activities and the need for passing of a preventive detention order,” it added.

The bench made the observations while setting aside an order of preventive detention passed against a person under the anti-smuggling law.

In the present case, the petitioner was put under preventive detention under the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 after a detention order was issued in January 2021 on the ground that he was allegedly “controlling a syndicate involved in effecting fraudulent exports and imports in order to evade Customs duty and earn undue export benefits including IGST refunds through 33 non-existent and/or dummy firms”.

Considering the material on record, the court observed that while the detention order was passed in January, the last act which the petitioner undertook, and which may amount to prejudicial activity, was two years ago i.e. in December 2018.

The court said it was evident that the live-link or causal connection between the petitioner”s preventive detention, meant to forestall him from indulging in any prejudicial activity, had snapped.

“Delay in the passing and execution of a preventive detention order not only defeats the very purpose of such order but more importantly, creates a doubt as to the necessity of adopting such a harsh measure against an individual, whereby the individual”s liberty is curtailed on suspicion alone,” it said.

“We accordingly quash and set-aside order dated 15.01.2021, and we direct that the petitioner be released from custody forthwith unless his custody is required in any other matter,” the court ordered.

The court clarified that it was not expressing any final opinion on whether the acts and omissions alleged to have been committed by the petitioner amounted to smuggling or to prejudicial activity under the law.

The Centre defended the detention order on the ground that the petitioner was operating under two identities which indicated his malafide approach towards the law.

It was alleged that the petitioner was involved in fraudulent transactions through several dummy firms and purportedly exported goods worth over Rs 145 crore under 133 shipping bills but no export remittances were realised against them.

Customs duty drawback in the sum of over Rs 3 crore and benefit of over Rs 12 crore was availed under the Integrated Goods & Services Tax Act, 2017, the court was informed.

The petitioner contended that the detention order suffered from non-application of mind and there was no cogent material to show that he indulged in any prejudicial activity after December 2018.