Madras High Court frees lawyer, quashes preventive detention order issued under COFEPOSA Act 13 years ago

The Madras High Court recently directed State authorities to release S Zahir Hussain, a lawyer who was arrested and remanded to judicial custody in June this year based on a preventive detention order issued against him under the Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act in 2010..In an order passed on September 19, a Bench of Justices M Sundar and R Sakthivel quashed and set aside the preventive detention order issued by the Tamil Nadu government in December 2010, after holding that such order had been issued without any application of mind..The Bench also took into account the fact that there had been an unaccountable delay between initiating an inquiry against Hussain and issuing the preventive detention order against him. It was further noted that Hussain was finally arrested by the Directorate of Revenue Intelligence (DRI) almost 13 years after such preventive detention order was issued.“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. In the case on hand, from the tabulation supra, more particularly S.Nos.4 and 7 thereat, we have no hesitation in saying that Banik's principle applies, impugned preventive detention order is vitiated as 'live and proximate link' between the grounds of detention and purpose of detention has snapped,” the judgment said..While Hussain had been accused of importing imitation stones after undervaluing them to evade duty tax, a proposal for issuing a detention order against him was made by the State in November 2010. Such detention order was finally issued after a delay of eight weeks. Hussain filed a plea in the High Court seeking interim stay on the order, which was granted on November 8, 2011.However, before the matter could be taken up for final hearing by the Madras High Court, the case bundle went missing. It was finally traced in January this year, when a division bench of the High Court confirmed the detention order.A division bench of Justices PN Prakash and Anand Venkatesh had at the time refused to extend the interim relief granted to Husain, saying he could not take advantage of the inexplicable delay irrespective of whose fault it was.Hussain was then arrested by the DRI in June 2023..Hussain had also filed a habeas corpus petition that was heard by the Bench of Justices Sundar and Sakthivel and on which the present order quashing the preventive detention order was passed..Senior Counsel Abdul Hameed and Advocate S Elambharathi appeared for Hussain.Additional Public Prosecutor A Gokulakrishnan, Deputy Solicitor General of India R Rajesh Vivekanantham and Additional Public Prosecutor E Raj Thilak appeared for the State government and the DRI..[Read Order]