P.M. HARI KUMAR versus UNION OF INDIA AND ORS.

Citation: [1995] SUPP. 3 S.C.R. 301 · Decided: 04-09-1995 · Supreme Court of India · Bench: S.C. AGRAWAL · Disposal: Case Allowed

Judgment (excerpt)

P.M. HARi KUMAR 
v. 
UNION OF INDIA AND ORS. 
SEPTEMBER 4, 1995 
(S.C. AGRAWAL AND M.K. MUKHERJEE, JJ.] 
Conservatio11 of Foreign Exchange and Prevention of Smuggli11g Ac-
tivities Act, 1974 : Sections 3( I), 7 and 9. 
Dete11tion order--Unusual and lo11g delay in execution-Sincere and 
eamest eff mts not taken by authmities to se1ve the orde1~No satisfact01y 
explanation given for delayDetention order held vitiated and quashed. 
A 
B 
c 
The question in this petition is° whether the respondents have satis-
factorily explained the delay in executing the detention order passed D 
against the petitioner under section 3(1) of the Conservation of }~oreign 
Exchange and prevention of Smuggling Activities Act, 1974. The petitioner 
was arrested by the customs authorities on March 2, 1990 for smuggling 
silver in gots into India.· On March 6, 1990 he was granted bail by 
Additional Chief Judicial Magistrate (Economic Offences) Ernakulam 
with a specific direction that he should appear before the Assistant Col-
lector, Preventive Detention, Cochin on any two days within a fortnight. 
The High Court rejected the application of Customs Authorities for can-
cellation of bail but directed that the detenu shall not leave Trivandrum 
E 
and Ernakulam without permission of the Court. On July 11, 1990 the 
Government of Kerala passed the impugned detention order. It also F 
passed an order on August 3,1990 under section 7(1)(b) directing the 
petitioner to appear before the Commissioner of Police on the ground that 
detenu was absconding. A report under section 7(l)(a) was forwarded to 
the Chief Judicial Magistrate, Trivandrum who issued a non-bailable 
warrant of arrest and a proclamation under section 82 as well as an order G 
attaching the properties of the detenu under section 83 of the Code of 
Criminal Procedure, 1973. A suit filed by the appellant on November 28, 
1992 for resrtraining the State from arresting the detenu was dismissed 
by the Subordinate Judge, Attingal, but an order of status quo was passed 
which operated from November 30, 1992 to March 5, 1993. On January 11, 
1993 the Customs Authorities filed a criminal complaint in the Court of H 
301 
302 
SUPREME COURT REPORTS (1995] SUPP. 3 S.C.R. 
A 
additional Chief Judicial Magistrate (Economic Offences) Ernakulam. In 
• this case the petitioner sought exemption from personal appearance on 
many occasions. However, before the next date of hearing the accused was 
arrested at the Sahar International Airport, Bombay on July 3, 1994 and 
detained pursuant to the detention order dated July 11,1990. The validity 
B 
c 
of the impugned order was challenged on the ground that there was 
unreasonable ·and unexplained delay of about four years in executing the 
detention order. Several factors were relied on in support of the contention 
that respondents were not sincere and anxious to serve the detention 
order; (i) no attempt was made by the authorities to approach the Court 
for cancellation of petitioner's bail and thereby enforce his production; 
and (ii) petitioner's prayer for exemption from personal appearance was 
not opposed by the authorities. 
In this Court it was claimed by the respondents that a communica-
tion was sent to the residence of detenu which was undelivered. However, 
D 
no such communication was produced before this Court in support of the 
claim. Though the names and addresses of several persons whom the 
police is supposed to have contacted for ascertaining the whereabouts of 
the petitioner were given in the affidavit, the places where they actually 
searched for him were not disclosed. Further it .was the positive case of the 
respondents that during the entire period in question the petitioner was 
E 
staying out of India but neither the passport was produced nor an affidavit. 
was filed to substantiate the claim that the detenu had absconded and gone 
out of the country. A scrutiny of the affidavits filed on behalf of the 
detaining authority and the Commissioner of Police who was entrusted 
with the duty of serving the order of detention also revealed that the entire 
F 
G 
endeavour of the respondents was only to comply with the letters of section 
7 of the Act-and not its spirit-and even in that attempt they failed miserab-
ly. 
Allowing the petition, this Court 
HELD : The detention order is c1uashed. Unquestionably, except 
during the short period from November 30, 1992 to March 5, 1993, when 
the order of status-quo passed by the civil

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