Bombay High Court quashes 1993 detention order executed 30 years later to detain 62-year-old Kerala man

The Bombay High Court on Wednesday set aside a 1993 detention order that was confirmed thirty years later to detain a 62-year-old man from Kerala [Abdul Rasheed v. ED & Anr.].A division bench of Justices Revati Mohite Dere and Gauri Godse observed that there was an unexplained and inordinate delay of almost thirty years in executing the detention order.“The unexplained and inordinate delay of thirty years in the present case does not justify the preventive custody of the petitioner. In the facts of this case, no attempts had been made to contact or arrest the petitioner. There is no explanation forthcoming for not taking any action to trace the whereabouts of the petitioner,” the Court added..The detained man, Abdul Rasheed, was placed under preventive detention in February this year. He was initially arrested at the Mumbai airport on November 20, 1992 when he was leaving for Dubai with a substantial amount of foreign currency concealed. The Enforcement Directorate (ED), which was the detaining authority, concluded that there was reason to believe that Abdul was engaged in the unauthorised acquisition and surreptitious transfer of foreign exchange out of India in violation of the Foreign Exchange Regulation Act (FERA)..Later, the joint secretary of the Ministry of Finance, Revenue Department issued a detention order on May 17, 1993, under the Conservation of Foreign Exchange and Prevention Of Smuggling Activities Act (COFEPOSA Act).This order was confirmed after almost thirty years by the under secretary on May 24, 2023.The 2023 order called for Abdul’s detention for a year from February 28, 2023 when Abdul was placed under preventive detention.Abdul challenged this move before the High Court on the ground that the ED did not make any effort to give him a copy of the detention order..Abdul also argued that he had never absconded in the case.He added that the ED was aware of his whereabouts since 1993 which was evident from Central Advisory Board hearings where both Abdul and the ED were present. Despite this, the ED did not serve him a copy of the detention order on him till February 2023, Abdul's lawyer told the High Court. .The ED claimed that it made efforts since 1993 to serve the detention order on Abdul on several occasions at his last known address. It claimed that the order was also published in the official gazette of India in March 5, 1994 which was sufficient compliance..The Court, however, concluded that placing Abdul in preventive detention after a delay of almost thirty years was not appropriate. “It is not even the case of the authorities that in the last thirty years, the petitioner was engaged in any prejudicial activity or has indulged in any objectionable activity. We find substance in the ground of challenge that the detaining authority has not meticulously followed the procedure to serve the detention order, making it invalid due to the passage of time,” the Court held. .Therefore, it proceeded to quash the detention order. However, on a request by the central government, the order was stayed for two weeks in order to allow the agency to file an appeal before the Supreme Court. .Advocates Yadunath Bargavan, Ratna Bhargavan and Rahul Yadav appeared for Abdul Rasheed.Advocates Shreeram Shirsat, Adithi Rao, Tanveer Khan, Shekhar Mane appeared for the ED.Advocate Alkileshwar Sharma appeared for the Union of India.Additional public prosecutor Madhavi Mhatre appeared for the State..[Read order]