The Bombay High Court has quashed a 1993 detention order and a 2023 order confirming it passed by the Centre against a 62-year-old man over suspicion that he was involved in unauthorised acquisition and transfer of foreign exchange.
The authority had failed to justify execution of the order after 30 years, the HC said on Wednesday.
The man, Abdul Rasheed, was detained on February 28, 2023 for a year under provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA).
He moved the HC challenging the orders of 1993 and 2023.
A division bench of Justices Revati Mohite Dere and Gauri Godse on Wednesday quashed both the orders, saying the detaining authority failed to justify the execution of the detention order passed in 1993.
The bench directed that Rasheed be released forthwith.
The HC, however, stayed its order for two weeks after the Union government sought the stay to appeal against the order in the Supreme Court.
In its order, the high court said no efforts or enquiry was made to trace the petitioner’s whereabouts except for visiting the available address in Mumbai.
“The unexplained and inordinate delay of thirty years in the present case does not justify the preventive custody of the petitioner,” the court said.
It is not even the case of authorities that in the last 30 years, the petitioner was engaged in any prejudicial activity or indulged in any objectionable activity, the HC said.
“In the absence of all the possible steps taken to serve the detention order upon the petitioner, the detaining authority is not justified in executing the detention order after thirty years on the ground that the petitioner was absconding,” it said.
“The detaining authority gives no satisfactory explanation for not executing the order of detention, passed in the year 1993, for a period of thirty years,” the HC said.
The bench said detention under the COFEPOSA is for the purpose of preventing persons from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or preventing smuggling goods, or harbouring a person engaged in such activities.
“Hence, there must be conduct relevant to the formation of the satisfaction having reasonable nexus with the petitioner’s action, which is prejudicial to make an order for detaining him,” the court said.
Rasheed in his plea challenged the May 17, 1993 detention order passed by the Union Ministry of Finance under provisions of the COFEPOSA.
He also challenged the May 24, 2023 order passed by the ministry confirming the 1993 order and directing for his detention for one year.
The 1993 detention order was passed pursuant to the statement recorded of one Umar Ibrahim Mohamad, who was apprehended at the Mumbai airport in November 1992 when he was leaving for Dubai with a substantial amount of foreign currencies allegedly concealed by him.
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The detaining authority then said there was reason to believe that Rasheed was engaged in unauthorised acquisition of foreign exchange and transferring the same surreptitiously out of India.
The authority further alleged that Rasheed had carried out such unauthorised transactions and adversely affected the foreign exchange resources of the country.
Rasheed in his plea said the 1993 detention order has become invalid with the passage of time, as it was not followed substantively and procedurally. He said the authorities had not made any efforts to serve the detention order on him.
The detaining authority claimed the detention order was published in the official gazette.
The HC bench, however, said publication of the order in the official gazette would not amount to sufficient compliance of service of the same upon the petitioner.
