2019 (11) TMI 1705 - HC - Customs

Smuggling - delay in execution of the detention order - allegation was of fraudulent exports made by fictitious firms and the proposed detenu was one of the accused who was arrested and remanded to judicial custody for more than a year - HELD THAT - The requirement under Article 22(5) as translated in Section 3(3) of the COFEPOSA Act mandates communication to a person detained in pursuance of a detention order of the grounds in which the order has been made which includes the documents relied on ordinarily not later than five days. Here the detention was on 24.01.2019 and the documents were supplied on 28.01.2019 including the CCTV footage. But the video footage was in a compact disc which without electronic facilities cannot be viewed. Despite at the earlier instance this Court interfered with an identical order merely for reason of not providing such electronic facilities to the detenus who were in custody no care was taken to ensure such a defect not recurring. The rigour of preventive detention mandates something more than mere lip-service. If the mandate is not carried out in letter and spirit then the order gets vitiated. It is also noticed that the representations show that the lawyer submitted it on behalf of the detenu having met the detenu on 06.02.2019 the day on which the communication is said to have been served which again validates the assertion of the petitioner that it prejudices an effective representation. The culpability of the four persons; ie the two AICOs Shajahan and Mohammed Rashid; the last of whom spoke of the detenu herein is the very relevant pertinent fact relied on by the Detaining Authority in the impugned order. The documents sought for by the detenu in his application was on the action taken against those persons and the result of the same or the stage at which those proceedings are. This is a very significant aspect for the detenu who has been roped in on the basis of the statements given by those persons and the call details of the persons involved which as we see from the detention order does not go beyond the frequency of the calls made between these persons. The documents sought for by the detenu by reason of his arrest and detention after four years assumes relevance to be included in his representation to make it effective. Mohammed Zakir was a case in which the documents relied on were served on the detenu after a month which though is much lesser here; all the same has application since the period of delay or its quantum has no bearing in the teeth of the prescription of five days for such supply. The grounds of delay (i) in execution of the detention order and (ii) in consideration of the representation to be not vitiating the order of detention. However on the non-supply of Ext.P11 decision in the case of the co-noticees and failure to provide sufficient facilitates to view the CCTV footage it is found that the continued detention of the detenu to be illegal. The detenu is directed to be set at liberty forthwith if his detention is not required in any other case - application disposed off.

Summary

Issues Involved:
1. Delay in execution of the detention order.
2. Delay in consideration of the representations.
3. Non-supply of relevant documents and materials.
4. Failure to provide facilities for viewing CCTV footage.

Detailed Analysis:

1. Delay in Execution of the Detention Order:
The petitioner challenged the delay in executing the detention order against her husband, who was detained under the COFEPOSA Act. The order was passed on 28.05.2015 but was executed only on 24.01.2019. The petitioner argued that the delay of about four years vitiated the detention as there was no live link between the alleged actions and the need for preventive detention. The court, however, found that the authorities had taken all possible steps to serve the order, including affixture at the detenu's residence, Gazette notification, and publication in vernacular newspapers. The court held that the detenu was likely aware of the order and had been absconding, thus justifying the delay. The court noted that the smuggling activities continued unabated, and the detenu's involvement in organized smuggling four years back could not be dismissed merely due to the passage of time.

2. Delay in Consideration of the Representations:
The petitioner claimed there was an inordinate delay in considering the representations dated 11.02.2019 and 12.02.2019, which were disposed of only on 18.04.2019. The court referred to the Constitution Bench decision in K.M. Abdulla Kunhi & B.L. Abdul Khader v. Union of India, which stated that the government could await the Advisory Board's report before considering the representation. The court found that the representations were forwarded to the Advisory Board, which affirmed the detention order on 28.03.2019. The Central Government issued its decision on 16.04.2019, and the representations were subsequently rejected. The court concluded that there was no undue delay in the consideration of the representations.

3. Non-Supply of Relevant Documents and Materials:
The detenu requested certain documents and materials, including a decision in favor of co-noticees and details of proceedings against them, which were not supplied. The court emphasized the importance of providing all pertinent and proximate facts to the detenu to make an effective representation. The court noted that the non-supply of the decision in favor of co-noticees (Ext.P11) caused prejudice to the detenu. The court held that the authorities failed to ensure that the detenu had access to all relevant documents, which vitiated the detention process.

4. Failure to Provide Facilities for Viewing CCTV Footage:
The petitioner argued that the detenu was not provided with adequate facilities to view the CCTV footage, which was a crucial link in the chain of evidence. The court observed that the authorities had directed the Superintendent of Central Prison to provide facilities for viewing the footage, but there was no evidence that the detenu was given a genuine opportunity to view it. The court found that the failure to provide such facilities, despite a prior court decision on a similar issue, amounted to a violation of the detenu's rights. The court held that the authorities' casual approach in this regard led to the vitiation of the detention order.

Conclusion:
The court dismissed the grounds of delay in execution and consideration of representations but found the non-supply of relevant documents and failure to provide facilities for viewing CCTV footage to be significant issues. The court declared the continued detention of the detenu illegal and ordered his immediate release, if not required in any other case. The judgment emphasized the need for strict compliance with statutory and constitutional provisions in cases of preventive detention.