Bajrangi Kumar Tarbe and Another vs The Union of India (UOI) and Others

S. Ali Ahmad, J.—There are two petitioners in this case. An order dated 3-1-1986 was passed for their detention under Sub-section (1)(iii) to Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short "the Act"). It appears that they evaded arrest until 13-8-1987 when they were arrested in connection with some other case. While the petitioners were in jail, the order and the ground of detention was served on them on 18-8-1987. Against that order they filed representations on 2-9-1987 which was disposed of on 28-9-1987. They were, later on, produced before the Advisory Board and on their recommendation, the petitioners have been directed to be kept in detention till 17-8-1988. Thereafter, this application was filed for quashing of the order of detention.

The allegation against the petitioners is quite serious. It is said that they were smuggling gold along with others and they were arrested almost red-handed. After medical examination, it was discovered that they had retained the gold in their rectum which was taken out under medical care. The grounds are not vague and on that basis their detention cannot be challenged. But it appears that although the petitioners were taken into custody after nine months of the order of detention was passed, but this fact was not brought to the notice of the authority concerned that even on that day their detention was necessary to prevent their activities. This aspect was mandatory as has been said in several decisions of the Supreme Court. On account of this infirmity, the petitioners cannot be allowed to be detained any longer. The order of detention therefore, is quashed and the writ application is allowed.