Madras High Court Directs State authorities to release lawyer arrested based on a preventive detention order issued under COFEPOSA Act in 2010

S.Zahir Hussain v/s The State and Ors. [H.C.P.No.1333 of 2023]

The Madras High Court directed the State authorities to release the lawyer arrested based on a preventive detention order issued under the COFEPOSA Act in 2010.

The division bench of Justice M.Sundar and Justice R.Sakthivel observed that preventive detention order should have been made on at least two out of five grounds, for Section 5-A of COFEPOSA Act to be attracted. In the case on hand, paragraph No.5 of grounds of impugned preventive detention order made it clear that impugned preventive detention order has been made only on one ground and therefore, Section 5-A of COFEPOSA Act does not apply. 

While proceeding in the matter the bench took Banik’s principle point first i.e., ‘live and proximate link’ between the grounds of detention and purpose of detention having snapped.

The controversy came into light when the impugned preventive detention order has been made by the Detaining Authority under Section 3(1) ‘The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. 

The detenu was arrested on 30.05.2023.

In his campaign against the impugned preventive detention order, Senior counsel submitted that the statements given in 2010 by two importers who imported decorative items (glass) is the substratum qua impugned preventive detention order but the importers have not been detained.

Further it was contended that the habeas corpus petitioner is a practising Advocate and the impugned preventive detention order is an attempt to interfere with the professional work of the petitioner.

The court while considering the submissions stated that as regards Banik’s principle, which arises under ‘Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988’, the same is reiteration of time honoured Bhawarlal Ganeshmalji case principle. The delay in making of impugned preventive detention order i.e., time consumed between the date of proposal for detention by Sponsoring Authority and the actual date of making of impugned preventive detention order was considered, it relied on Bhawarlal Ganeshmalji ratio and it was held that ‘live and proximate link’ between the grounds of detention and purpose of detention has snapped.

It was observed by the bench that that the Banik’s principle applies in the instant case, impugned preventive detention order is vitiated as ‘live and proximate link’ between the grounds of detention and purpose of detention has snapped.

The court held that as the impugned preventive detention order has been made on only

one of three grounds vide Section 3(1) of COFEPOSA Act, the aforementioned one point will suffice to dislodge the impugned preventive detention order in a habeas legal drill.

Further, the bench said that “there is a delay in considering the representation and consequent breach of Article 22(5) of the Constitution of India safeguard and therefore, impugned preventive detention order deserves to be dislodged on this ground also”.

The court held that impugned preventive detention order is vitiated and the same is liable to be dislodged in the habeas legal drill.