2013 (6) TMI 710 - HC - Customs

If additional documents were received; when the grounds of detention were formulated; and whether the 2nd Respondent considered the documents piecemeal which would be impermissible or only considered all documents together.

Summary

Issues Involved:
1. Delay in issuing detention orders.
2. Consideration of all relevant documents by the detaining authority.
3. Application of mind by the detaining authority.
4. Fundamental right to personal liberty.

Issue-wise Detailed Analysis:

1. Delay in Issuing Detention Orders:
The court analyzed the nine-month delay between the release on bail (2nd May 2012) and the issuance of the detention orders (21st February 2013). The detaining authority received the proposal from the sponsoring authority on 22nd October 2012, six months after the bail, without any explanation for this delay. The court found this delay unsatisfactory, noting that no adverse notice was taken of the detenus during this period, and no application for bail cancellation was made. The court emphasized that mere delay is not necessarily fatal, but unreasonable and unexplained delay, as in this case, is. The court cited Hemlata Kantilal Shah v State of Maharashtra and Saeed Zakir Hussain Malik v State of Maharashtra to support its decision that the delay was inordinate and insufficiently explained, thereby snapping the "live link" between the alleged prejudicial activity and the preventive detention.

2. Consideration of All Relevant Documents by the Detaining Authority:
The court scrutinized whether all relevant documents were considered by the detaining authority. The detaining authority called for additional documents on 1st November 2012, which were received on 27th November 2012. However, there was ambiguity regarding whether these documents were considered together or in a piecemeal manner. The court noted that the reply to the show-cause notice, a crucial document, was not placed before the detaining authority. This omission was significant as the reply might have influenced the subjective satisfaction of the detaining authority. The court found that the detaining authority's process was disjointed and lacked proper application of mind.

3. Application of Mind by the Detaining Authority:
The court emphasized that the detaining authority must apply their mind to the entirety of the material before formulating the grounds for detention. The court found that the detaining authority's actions suggested a lack of proper application of mind, as there was no clarity on when the grounds for detention were finalized and whether all documents were considered. The court cited Jai Singh v State of J&K and Prakash Mehta v/s. Commissioner and Secretary, Government of Kerala and others to underline the necessity of a thorough application of mind by the detaining authority.

4. Fundamental Right to Personal Liberty:
The court reiterated that any action curbing the fundamental right to personal liberty under Article 21 of the Constitution must conform to the requirements of Article 22(5). The court highlighted that preventive detention laws must balance the need for public order with the protection of individual liberties. The court concluded that the procedural failures in this case undermined the constitutionally mandated safeguards, necessitating judicial intervention.

Conclusion:
The court found the delay in issuing the detention orders inordinate and insufficiently explained. The detaining authority failed to consider all relevant documents and did not apply their mind properly. The court emphasized the importance of protecting the fundamental right to personal liberty and ensuring that preventive detention laws are applied in a manner that conforms to constitutional safeguards. Consequently, the court quashed the detention orders and directed the release of the detenus.