2019 (11) TMI 1734 - HC - Indian Laws

Smuggling - petitioner seeks release of her husband - delay in execution of the detention order - inordinate delay in consideration of the representations - prayer for supply of certain details and materials, not fulfilled - HELD THAT - The first ground urged is on the delay in execution of the detention order, which, admittedly, is about four years. Saeed Zakir Hussain Malik relied on by the detenu, considered the execution of an order after 15 months, which was found to be vitiating the detention itself. There, the 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. He was released on bail on 11.11.2005 and the detention order was passed on 14.11.2006, after an year - The explanation too was merely a statement that steps under Section 7 was taken and several attempts were made to serve the order, by visiting the residence of the proposed detenu; which was found to be lacking. It cannot be held that there is a breakage of the live-link of the prejudicial activities, since the detenu was abroad with facilities to again sent contraband through carriers into this Country, having live contact with persons within the country. Smuggling activities in the various Airports in the State have continued unabated over the years and a person, against whom a detention order was issued for organised smuggling four years back, cannot be said to have turned a new leaf, merely by passage of time, especially when no such mitigating circumstance has been pointed out by the detenu himself. We hence decline the challenge against the order, on the ground of delay in execution of the order. Delay in consideration of the representation - HELD THAT - The representations at Exts. P5 P6 respectively before the detaining authority and the Central Government were dated 11.02.2019 and 12.02.2019 respectively. It is seen from the statement dated 22.11.2019 filed by the CGSC that the materials in support of the detention order were referred to the Advisory Board on 18.02.2019 and the Advisory Board considered the representations as also the materials and made a recommendation dated 28.03.2019 affirming the detention order. The same was received on 08.04.2019 and the Central Government issued Ext. P8 on 16.04.2019. Later on, in consideration of the representation, Exts. P9 P10 were issued respectively by the Central Government and the Detaining Authority - There is hence absolutely no delay in consideration of the representation, since immediately after receipt of the representations by the Central Government, the entire files were transmitted to the Advisory Board. Non- supply of documents, which were required by the detenu, in the representations - HELD THAT - Only notice Ext. P11, and the extracts made from Ichhu Devi Chorario 1980 (9) TMI 270 - SUPREME COURT and a host of precedents of the Hon'ble Supreme Court to find the order illegal for reason of the prejudice occasioned in the failure of the authorities to show the video footage to the detenus are needed. Ext. P11 also, was neither supplied to the detenu here, nor placed before the Advisory Board. We rely on the judgment of another Division Bench in M.P.C. Nazir v. State of Kerala. Therein also the order against one of the detenus, similarly placed and involved in the same transaction of smuggling, which led to the detention of Nazir, was revoked on the recommendation of the Advisory Board - Here, at the stage of consideration of the representation by the Advisory Board, Ext. P11 decision was neither supplied to the detenu or placed before the Board. 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. A delay of one day or a month or an year or half does not permit this Court to deviate from the statutory mandate which has more rigour in the case of a preventive detention on a subjective satisfaction, without trial. The continued detention of the detenu to be illegal - It is required that the detenu be set at liberty forthwith, if his detention is not required in any other case - application allowed.

Summary

Issues Involved:
1. Delay in execution of the detention order.
2. Delay in consideration of the representation.
3. Non-supply of requested documents.
4. Failure to provide facilities to view CCTV footage.

Detailed Analysis:

1. Delay in Execution of the Detention Order:
The petitioner challenged the delay of about four years in executing the detention order against the detenu. The petitioner argued that this delay broke the live link between the alleged smuggling activities and the need for preventive detention, citing the case of *Saeed Zakir Hussain Malik v. State of Maharashtra* [AIR 2012 SC 3235]. The court, however, noted that the delay must be examined based on the facts of each case. It acknowledged that the authorities had taken all possible steps to serve the detention order, including affixture at the detenu’s house, Gazette notification, and publication in vernacular newspapers. The court concluded that the detenu was likely aware of the order and had absconded, thus rejecting the argument that the delay vitiated the detention order.

2. Delay in Consideration of the Representation:
The petitioner contended that there was an inordinate delay in considering the detenu’s representations dated 11.02.2019 and 12.02.2019, which were disposed of only on 18.04.2019. The court referred to precedents, including *Ichhu Devi Choraria v. Union of India* [1980(4) SCC 531] and *K.M. Abdulla Kunhi & B.L. Abdul Khader v. Union of India & Others* [(1991) 1 SCC 476], to determine the necessity of timely consideration. It was found that the representations were forwarded to the Advisory Board, which affirmed the detention order. The Central Government then considered the representations and issued orders on 18.04.2019. The court held that there was no undue delay in the consideration of the representations.

3. Non-supply of Requested Documents:
The detenu requested several documents, including details of proceedings against co-accused and copies of adjudication orders, which were not supplied. The court emphasized the importance of providing all relevant documents to enable the detenu to make an effective representation. It noted that the authorities failed to supply the decision in favor of co-noticees (Ext. P11), which was crucial for the detenu’s defense. The court cited *Shalini Soni v. Union of India* [1980(4) SCC 544] and *Muhammed Zakir V Delhi Administration* [1982(3) SCC 216], highlighting that non-supply of relevant documents vitiates the detention process.

4. Failure to Provide Facilities to View CCTV Footage:
The detenu argued that he was not provided with sufficient facilities to view the CCTV footage, which was a critical piece of evidence. The court noted that while the authorities had directed the Superintendent of Central Prison to provide facilities for viewing the footage, there was no evidence that the detenu was given a genuine opportunity to do so. The court found that the failure to provide such facilities prejudiced the detenu’s ability to make an effective representation. This failure was particularly egregious given that a similar issue had previously led to the setting aside of detention orders against other co-accused in W.A. (Crl.) No. 386/2015.

Conclusion:
The court concluded that while the grounds of delay in execution of the detention order and delay in consideration of the representation did not vitiate the detention order, the non-supply of Ext. P11 and the failure to provide sufficient facilities to view the CCTV footage rendered the continued detention of the detenu illegal. The court directed the immediate release of the detenu, provided his detention was not required in any other case.