2021 (4) TMI 1248 - HC - Indian Laws

Seeking immediate release of detenues - subjective satisfaction of legal detention by detaining authority - whether there was any delay in either issuing the order of detention or executing it? - HELD THAT - In the facts of the present case, it is not disputed that for the entire period from the date of the detention order, until and up to the date of execution of the detention order, the detenue was abroad. It is clear from the affidavits filed by the respondents that efforts were taken to execute the order of detention and that steps as contemplated under Section 7(1)(b) of the COFEPOSA Act were initiated. Under such circumstances, we fail to see how there was any unexplained delay in the execution of the detention order in the instant case - Further, it is trite that an absconding detenue cannot cite a delay in the execution of the order to contend that the detention order must be quashed on that ground. Whether there was any delay in serving the grounds of detention, in the facts and circumstances of this case? - HELD THAT - The detaining authority has, in paragraph 26 referred to the bail orders dated 16-2-2016 and 1-6-2016 for the purpose of establishing that the detenue had not stopped prejudicial activities even after the first incident at Bangalore and had continued with such activities. It is also noted that the bail conditions are likely to be relaxed and that they were not sufficient to prevent the detenu from committing prejudicial activities. Apart from contending that certain pages of the 'bail order' are not available in the documents served together with the grounds of detention, there is no pleading or contention regarding the issue. Even assuming that the case put forth by the detenue is correct, we are unable to find that the non-supply of the 4 pages of the bail order has in any manner affected the right of the detenue to make an effective representation. The detenue also did not make a request for the supply of any document. He also did not raise this issue before the advisory board. For these reasons we reject the contention of the detenue that he was not served with clear copies of all the relied upon documents amongst the documents supplied to him - the communication of grounds, in the facts of the present case, satisfies the requirements of Article 22(5) of the Constitution of India. Whether Ext. P.12 P.13 representations made by the petitioner, after the matter was considered by the Advisory Board, were expeditiously considered by the authorities concerned? - HELD THAT - Both the representations have been disposed of with reasonable expedition and that the detention order is not vitiated in any manner on account of the alleged delay in disposal of the Ext. P.12 P.13 representations. Period of detention of the detenue - HELD THAT - The detenue was detained on 12-07-2020 and Ext. P1 order of detention was served on him on 13-07-2020. In Ext. P11 order, the detention is seen confirmed for a period of one year from 22-07-2020. It is stated that this was on account of the fact that on account of the COVID-19 pandemic the detenue was undergoing quarantine for the period from 12/13-07-2020 to 22-07-2020 and therefore that the period of detention should be counted from 22-07-2020 - the detenue having been detained in terms of Ext. P1 order of detention, on 12-07-2020, the period of one year has to be counted with effect from 12-07-2020 and not from 22-07-2020 as stated in Ext. P11 order. W.P.(Crl.) Nos. 279 280 of 2020 Smuggling - Gold - non-supply of certain relied upon documents - HELD THAT - The law regarding supply of documents requires no re-iteration at our hands. Our summation of the law at the inception of this judgment shows that it is well settled that the detenue has the right to receive all the relied upon documents and also such other documents that may be necessary to enable him to make a proper and effective representation against the order of detention. That said, the question as to whether there was, in fact, a failure to supply any relied upon document is a matter to be determined on a case-to-case basis - Keeping in mind the fact that the law requires only the subjective satisfaction of the detaining authority, and keeping in mind the fact that the jurisdiction to detain under a law providing for preventive detention is 'a jurisdiction of suspicion' we have examined Ext. P4 in WP (Crl.) 279/2020 and Exhibit P3 in WP (Crl.) 280/2020 to determine whether the non-supply of documents requested for therein has prevented the detenues from making a proper representation, which is a right guaranteed under Art. 22(5) of the Constitution. Substantial delay in the execution of the detention order - HELD THAT - There is absolutely no delay in the disposal of the various representations detailed. Petition disposed off.

Summary

Issues Involved:
1. Delay between the last prejudicial act and the order of detention.
2. Delay in the execution of the detention order.
3. Timely service of grounds of detention.
4. Completeness of the communication of grounds of detention.
5. Sufficiency of the grounds of detention to enable representation.
6. Expeditious consideration of the representation by authorities.
7. Subjective satisfaction of the detaining authority based on relevant material.

Analysis:

1. Delay Between the Last Prejudicial Act and the Order of Detention:
The court examined whether there was a significant lapse of time between the last prejudicial act and the issuance of the detention order. It was found that the delay was justified due to the detailed investigation required to establish the detenu's involvement in organized smuggling activities. The court held that there was no culpable delay that would vitiate the order of detention.

2. Delay in the Execution of the Detention Order:
The court assessed whether there was an unexplained delay in executing the detention order. It was noted that the detenu was abroad during the period in question, and steps were taken under Section 7(1)(b) of the COFEPOSA Act to execute the order. The court concluded that the delay was justified and did not vitiate the detention order.

3. Timely Service of Grounds of Detention:
The grounds of detention were served within the extended time limit due to the COVID-19 pandemic. The court held that the extension was valid and did not violate the right guaranteed under Article 22(5) of the Constitution of India.

4. Completeness of the Communication of Grounds of Detention:
The court found that the non-supply of certain pages of the bail order did not affect the detenu's right to make an effective representation. The detenu did not request the missing documents or raise the issue before the advisory board. Therefore, the communication of grounds was deemed complete and in compliance with Article 22(5).

5. Sufficiency of the Grounds of Detention to Enable Representation:
The court held that the grounds of detention were sufficient to enable the detenu to make a representation. The detaining authority's subjective satisfaction was based on relevant material, and the reasons for detention were adequately communicated.

6. Expeditious Consideration of the Representation by Authorities:
The representations submitted by the detenu were considered and disposed of expeditiously by the authorities. The court found no delay in the consideration of representations that would vitiate the detention order.

7. Subjective Satisfaction of the Detaining Authority Based on Relevant Material:
The court emphasized that the detaining authority must provide reasons for its subjective satisfaction based on the material scrutinized. The court found that the detaining authority had adequately demonstrated an application of mind and provided sufficient reasons for the detention.

Separate Judgments:
- W.P.(Crl.) No. 255 of 2020: The court dismissed the petition but clarified that the detention period should be counted from 12-07-2020.
- W.P.(Crl.) Nos. 279 & 280 of 2020: The court allowed the petitions, finding that the non-supply of relied-upon documents and the delay in the execution of the detention orders vitiated the detention. The detenus were ordered to be released forthwith.

Conclusion:
The court's judgment highlights the importance of procedural safeguards in preventive detention cases under the COFEPOSA Act. The court meticulously examined each issue to ensure that the detenu's fundamental rights were not violated. The judgment underscores the need for timely and complete communication of grounds of detention and the expeditious consideration of representations to uphold the rule of law.