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The Delhi High Court has held that "delay in the passing and execution of a preventive detention order defeats the very purpose of such order" and set aside an order of preventive detention passed against one Naveen Kasera under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPESA).

The bench consisting of Hon'ble Justice Siddharth Mridul and Hon'ble Justice Anup Jairam Bhambhani was hearing a petition filed under Articles 226 and 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973. 

The petitioner Naveen Kasera alias Naveen Agarwal, challenged a detention order made against him under Section 3(1) of the COFEPESA whereby he was put under preventive detention, having been taken into custody on Jan 20. 

While the detention order stated various reasons for the detention, the High Court noted that it was alleged that Kasera “…. is 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….”

PETITIONER'S CONTENTIONS

Kasera contended that though the detaining authority had relied upon statements allegedly made by several persons, none of the statements provided any reasonable basis to infer Kasera's involvement in any prejudicial activity; and there was nothing to show that the detaining authority arrived at any subjective satisfaction to warrant his detention.

He further stated that the only transaction disclosed against him was one where he had allegedly attempted to export goods “on paper” without actually exporting anything, with the intent of illegally availing duty drawback. He said that even in the given transaction, no proceedings were infact initiated against him and not even a show cause notice was issued. 

His principal ground of challenge was that there was an inordinate and unexplained delay in the passing of the detention order, which proceeded on the heels of a show cause notice, however, the issuance of the show cause notice itself suffered from inordinate and unexplained delay. 

COURT’S VIEW 

After a detailed hearing on the case, the court proceeded to quash the preventive detention order without commenting on the merits of the case after delving into the following two issues:

i. Whether there was a live-link or a causal connection between the prejudicial activity, in which Kasera was alleged to have indulged, and the passing of the detention order; and 

ii. Whether the grounds on which the detention order was premised were “stale” or “illusory” or had “no real nexus” with the need to place him under prevention detention.

Examining a time chart on the activities of the accused till the date of passing of the impugned detention order, the court said, the same "does not disclose any prejudicial activity other than the one on Dec 11, 2018."

Therefore the bench said, “Since, as the record discloses, the last act which the petitioner undertook, and which may amount to prejudicial activity, was on Dec 11, 2018, but the detention order was passed more than 02 years later on Jan 15, 2021, it is evident that the live-link or causal connection between the petitioner’s preventive detention, meant to forestall the petitioner from indulging in any prejudicial activity, can surely be said to have snapped.”

Further, the court said, if the only activity specifically alleged against the petitioner was the one on Dec 11, 2018, "the ground for detention arising therefrom is clearly stale, illusory and lacks real nexus with a detention order passed more than 02 years later, on Jan 15, 2021.”

Opining that a gap of more than 2 years between the last alleged prejudicial activity undertaken by the petitioner cannot be the basis for a justifiable apprehension that the petitioner would indulge again in similar prejudicial activity, to prevent which he should be preventively detained, it quashed the detention order.

It also noted that, "Preventive detention being drastic State action based only upon suspicion arising from a person's past activity, can be allowed...only if there is a live, causal link between a person's past activities and the need for passing of a preventive detention order", and held that, "A preventive detention order is unsustainable on stale or illusory grounds, which have no real nexus with the past prejudicial activity."

Case Title: Naveen Kasera Alias Naveen Agarwal V Union Of India Secretary Ministry Of Finance