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2023 (1) TMI 1295 - HC - CustomsRights of detenue under COFEPOSA Act - contraband Gold - whether the detenu can ask for any and every document? - HELD THAT - After referring to the various decisions the Apex Court in Powanmal 1999 (1) TMI 538 - SUPREME COURT held that every document and materials which finds a passing reference in the course of narration of facts in the ground of detention need not be supplied. But such documents, non-supply of which would prejudice the detenu in making an effective representation are to be supplied to him. The reason is that non-supply of such documents would amount to denial of the right of being communicated the grounds and being afforded the opportunity of making effective representation against the detention order. The petitioner brought to attention a few decisions of both the Apex Court and different High Courts, where the question, whether non supply of various documents amounted to denial of the right of the detenu having the effect of vitiating the order of detention, was considered. It is not proposed to deliberate upon those decisions since those are decisions on facts and no proposition of law different from what has been enunciated in the aforesaid decisions was evolved. In ANKIT ASHOK JALAN VERSUS UNION OF IDNIA AND ORS. 2020 (3) TMI 248 - SUPREME COURT the Apex Court held that the consideration for revocation of a detention order is limited to examining whether the order conforms with the provisions of law whereas the recommendation of the Advisory Board is on the sufficiency of material for detention, which alone is either confirmed or not accepted by the appropriate Government. Therefore the detenu cannot be heard to contend that the documents which were not placed before the detaining authority and found not to have a vitiating effect on the subjective satisfaction of that authority should have been supplied to the detenu. In the above background only demand of the detenu for the documents can be considered. The grievance of the petitioner is about non-supply of five items of documents - Those are not relied upon documents. No reference to document No. 1, recording of audio chats between the detenu and Sri. Biju V Joy is there in the grounds of detention. Item No. 3, Exts.P2, P3 and P6 are post detention order documents and there could not be any mention of them in the grounds of detention. The other three documents do have casual mentioning, but the Detaining Authority did not rely on them. As far as the show cause notices sent the co-accused and their replies are concerned there is only passing reference in the grounds in support of Ext.P8 detention order. In such circumstances, the detenu can resort to the plea of invalidity of the detention order for non-supply of those documents only if he substantiates that the non-supply caused prejudice to him. It is also his obligation to explain in what way those documents are relevant for his making representation. Exts.P12 and P13 are the representations submitted by the detenu in which he made requests for those documents as well as Exts.P2, P3 and P6. The detenu did not state in what way those documents were relevant in the matter of his making representation. In this Writ Petition also, it is not explained how his right has been prejudiced as a result of non-supply of those documents. When Exts.P2, P3 and P6 were produced by him in this Writ Petition, his demand for those documents appears fallacious. In the case of documents which are relied upon by the Detaining Authority, it is the absolute right of the detenu to get copies within the time prescribed in Section 3(3) of the COFEPOSA Act - The detenu did not state in what way such documents are relevant for him to make his representation and how the non-supply has affected his right to make a meaningful and effective representation. In such circumstances, his attack to the detention order on the ground of non-supply of documents also fails. Petition dismissed.
Issues Involved:
1. Subjective satisfaction of the Detaining Authority. 2. Inordinate delay in executing the Detention Order. 3. Non-production of necessary documents before the Advisory Board. 4. Right to make representation scuttled due to non-supply of materials/documents. Detailed Analysis: Issue 1: Subjective Satisfaction of the Detaining Authority The petitioner argued that the subjective satisfaction of the Detaining Authority was vitiated due to the non-production of relevant documents, particularly WhatsApp audio chats and remand orders. The court referenced several precedents, including Motilal Jain v. State of Bihar and Kamaleshkumar Ishwardas Patel v. Union of India, emphasizing the importance of procedural safeguards in preventive detention cases. The court noted that the Detaining Authority had sufficient materials, such as statements from co-accused and other corroborating documents, to arrive at its conclusion. The court found that the absence of the specific audio chats and remand orders did not vitiate the subjective satisfaction of the Detaining Authority. Issue 2: Inordinate Delay in Executing the Detention Order The petitioner contended that the delay in executing the Detention Order discredited the finding of the Detaining Authority regarding the detenu's propensity for smuggling activities. The court examined the timeline and actions taken by the authorities, noting that the detenu had evaded arrest by traveling through Nepal to bypass immigration checks. The court cited Sk. Serajul v. State of West Bengal and Bhawarlal Ganeshmalji v. State of Tamil Nadu, explaining that the delay was adequately explained due to the detenu's evasive actions. The court concluded that the live and proximate link between the grounds of detention and the purpose of detention was not snapped. Issue 3: Non-production of Necessary Documents Before the Advisory Board The petitioner alleged that the representations submitted by the detenu were not produced before the Advisory Board. The court referenced K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union of India and Ankit Ashok Jalan v. Union of India, which outline the requirements for forwarding representations to the Advisory Board. The court found that the necessary representations and the decision on one of the representations were indeed submitted to the Advisory Board. The non-production of one representation, which was similar to the one submitted, did not vitiate the process. Issue 4: Right to Make Representation Scuttled Due to Non-supply of Materials/Documents The petitioner argued that the non-supply of certain documents infringed on the detenu's right to make an effective representation. The court examined the nature of the documents requested, including audio chats, remand orders, and show cause notices. The court cited State of Punjab v. Jagdev Singh Talwandi and Powanammal v. State of Tamil Nadu, explaining that only documents relied upon or having a live proximity to the grounds of detention need to be supplied. The court found that the requested documents were either not relied upon or not necessary for making an effective representation. The petitioner failed to demonstrate how the non-supply of these documents prejudiced the detenu's rights. Conclusion: The court dismissed the Writ Petition, finding that none of the grounds raised by the petitioner to challenge the validity of the Detention Order and Confirmation Order could be accepted. The court upheld the detention under the COFEPOSA Act, concluding that the procedural safeguards and legal requirements were adequately met.
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