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Delhi High Court quashes businessman's detention

Staff Reporter

NEW DELHI: The Delhi High Court has quashed the detention of a businessman under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, saying that it is vitiated as the sponsoring authority did not place all the relevant facts before the detaining authority.

The businessman, Sunny Kanodia, was detained by the Customs Department following information that he, along with others, was involved in smuggling activities. The Department's sleuths had later also raided offices of these persons and seized documents.

Kanodia was detained in July last year. The grounds mentioned for his detention were pendency of his prosecution in the case and his previous two times detention. However, the businessman in his petition contested his earlier detentions saying one detention order was later stayed while the other was quashed.

On pendency of his prosecution, the petitioner said no documents regarding the prosecution proceedings were supplied to him.

Earlier, the detaining authority had relied on the pendency of prosecution as a ground for detention of Kanodia but later denied it.

“Lapse on part of detaining authority'

Quashing the detention order, a Division Bench of the Court comprising Justice B. D. Ahmed and Justice Manmohan Singh said: “It is argued by counsel for the detenue that as per the knowledge of the detenue, no prosecution was filed in the case, however, the detaining authority relied on pendency of the prosecution proceedings, without supplying particulars thereof. Under these circumstances, we agree with the counsel for the detenue that the claim of the detaining authority regarding the pendency of prosecution in absence of either any sanction under Section 137(3) of the Customs Act, 1962, exhibits absolute casualness and serious lapse on the part of the detaining authority.”

“In our opinion there can be no two views about it that the pendency of prosecution is one of the most relevant circumstances which the detaining authority must consider carefully as the object of preventive detention being to intercept a person before he does something and to prevent him from doing and not to punish for having done something, it is imperative on the part of the detaining authority to be vigilant. An indifferent attitude on the part of the authority defeats the very purpose of the preventive action, which otherwise has serious consequences from the stand point of the person detained, for it deprives him of his personal liberty, which is impermissible except in accordance with the procedure established by law... For these reasons, we are of the opinion that the detention order is liable to be set aside,” the Bench said.

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