2016 (6) TMI 1183 - HC - Customs

Detention order - Smuggling of gold - Held that - at the time of recording of the statement under Section 108 of the Customs Act and at the stage when a show cause notice was issued to the detenue, copies of these CDs were provided to him and simply because the detenue was aware of what was the material which was contained in the CDs cannot be accepted. In the case of Pawanammal v. State of Tamil Nadu & Ors., reported at 1999 (1) TMI 538 - SUPREME COURT , the Supreme Court explained the distinction between the document, which has been relied upon by a detaining authoring on the grounds of detention in comparison to a document, which may find a mere reference in the grounds of detention. Merely because the CDs provided to the detenue along with the show cause notice or he was shown the CCTV footage at the time of recording of the statement under Section 108 of the Customs Act, in our view cannot take the place of providing the mechanism for viewing the CDs in view of the settled law of the land - Petition allowed.

Issues Involved:
1. Subjective satisfaction of the detaining authority.
2. Delay in passing the detention order.
3. Delay in execution of the detention order.
4. Non-placement of vital documents before the detaining authority.
5. Violation of Article 22(5) of the Constitution due to non-supply of relied upon documents.
6. Non-supply of CCTV footage to the detenue.
7. Invocation of preventive detention when ordinary law was available.
8. Consideration of the detenue's representation by the appropriate authority.
9. Delay in forwarding the detenue's communication and representation.

Detailed Analysis:

1. Subjective Satisfaction of the Detaining Authority:
The petitioner argued that the detaining authority lacked subjective satisfaction while passing the detention order, rendering it illegal. The court examined whether all relevant documents were placed before the detaining authority. It was found that the detaining authority was aware of the detenue's transfer to Bhubaneswar, thus dismissing the claim of non-placement of relevant documents.

2. Delay in Passing the Detention Order:
The petitioner contended that there was an unexplained delay in passing the detention order, which was issued nine months after the incident. The court noted that the proposal for preventive detention was sent on 02.11.2014 and sanctioned on 19.11.2014, but the order was passed only on 31.03.2015. The court found this delay to be significant and indicative of a lack of urgency in addressing the alleged prejudicial activities.

3. Delay in Execution of the Detention Order:
The petitioner argued that there was an inordinate delay in executing the detention order, which was issued on 31.03.2015 but executed only on 28.12.2015. The court scrutinized the timeline and efforts made by the authorities to execute the order. The court found the delay inexcusable, especially since the detenue was in active service and his whereabouts were known. This delay was held to vitiate the detention order.

4. Non-Placement of Vital Documents Before the Detaining Authority:
The petitioner claimed that vital documents, including transfer orders, were not placed before the detaining authority. The court found that the detaining authority was indeed aware of the transfer, as evidenced by the reply to the show cause notice and other communications. Therefore, this ground was not upheld.

5. Violation of Article 22(5) Due to Non-Supply of Relied Upon Documents:
The petitioner argued that the detenue's right under Article 22(5) was violated as he was not provided with legible copies of documents and the means to view the CDs. The court emphasized that the right to make an effective representation is a constitutional right. The failure to provide a CD player to view the CCTV footage was a serious lapse, preventing the detenue from making an effective representation. This was held to be a violation of Article 22(5).

6. Non-Supply of CCTV Footage to the Detenue:
The petitioner contended that the detenue was not provided with the means to view the CCTV footage, which was heavily relied upon in the grounds of detention. The court found that the detaining authority's reliance on the CCTV footage without providing the detenue the means to view it constituted a violation of his rights. The court emphasized that mere prior viewing during the investigation was insufficient.

7. Invocation of Preventive Detention When Ordinary Law Was Available:
The petitioner questioned the invocation of preventive detention when ordinary law was available. The court did not specifically address this issue in detail, as the other grounds were sufficient to quash the detention order.

8. Consideration of the Detenue's Representation by the Appropriate Authority:
The petitioner argued that the representation was not considered by the appropriate authority. The court found that the representation was forwarded to the Advisory Board, but the failure to provide the means to view the CDs hampered the detenue's ability to make an effective representation.

9. Delay in Forwarding the Detenue's Communication and Representation:
The petitioner claimed that there was a delay in forwarding the detenue's communication and representation. The court did not specifically address this issue in detail, as the other grounds were sufficient to quash the detention order.

Conclusion:
The court quashed the detention order F.No.673/05/2015-CUS.VIII dated 31.03.2015 due to unexplained delays in passing and executing the order, and the violation of the detenue's right under Article 22(5) of the Constitution by not providing the means to view the CCTV footage. The detenue was ordered to be released forthwith unless wanted in any other case.

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