2016 (5) TMI 556 - HC - Customs

Seeking direction for quashing of detention order - Indulged in repeated smuggling activities of similar nature on earlier occasions also within a short span of time and smuggled huge quantities of gold from Dubai to India - Seizure of gold bars - Petitioner contended that he would be entitled to get copy of the order of detention and the grounds of detention before he is arrested and detained so that the order of detention could be challenged at its pre-execution stage effectively and with full knowledge of the facts and circumstances - 8, 11, 18, 27, 37 Held that - the contention of the appellant is unsustainable. In the light of the decision of the Constitution Bench in Haradhan Shah v. The State of W.B. and others 1974 (8) TMI 104 - SUPREME COURT , the contention put forward by the petitioners that whether the detenues have complied with the conditions on which bail was granted should have been considered before executing the order of detention, is without any substance. The grounds of detention mentions about the arrest of the detenues, the fact that bail applications were moved by the detenues and they were released on bail on conditions. That the detenues surrendered their passports and that they were restrained from moving out of the State was also considered by the detaining authority, as evident from the grounds of detention. The fact that the detenues complied with the conditions of bail or the orders passed in the Writ Petitions is not a matter to be considered by the detaining authority after passing the order of detention and before executing the order of detention, and that too when the detenues tried their best to avoid execution of the orders of detention. We are not inclined to accept the contentions put forward by the petitioners in this regard. When the persons involved in the smuggling activities were arrested and they were granted bail, they were bound to comply with the conditions of bail. That they complied with the conditions of bail is not a virtue on their part which is to be favourably taken note of by the detaining authority while passing the order of detention or while executing the order of detention. If they violate the conditions of bail, the consequences would follow. That the detenues complied with the conditions of bail and also the conditions imposed in the interim orders passed in the Writ Petitions, would not in any way deter the authorities from executing the order of detention. It is not necessary to revoke the order of detention on that ground before the order of detention is executed. In the present case, the orders passed in the Writ Petitions were stayed by the Supreme Court. Therefore, those orders could be ignored while executing the orders of detention. In the counter affidavits filed by the first respondent, the details of the various trips made by Rahila and Hiromasa to Dubai and from there to India for the period from 8.1.2013 to 8.11.2013 have been given. At the time when they were arrested, they were not having sufficient money to pay duty. They were not employed abroad. They did not stay abroad for the required period to enable them to bring gold to India. Rahila and Hiromasa did not produce any document to show that the gold brought by them was by lawful means. The inference possible from these circumstances is that it is likely that they are part of a smuggling racket. Of course, at this stage, the Court is not expected to arrive at any conclusive finding as to whether the detenues are guilty. But, at the same time, the Court is not entitled to shut its eyes to certain hard realities. The sharp increase in the smuggling activities in the State of Kerala is also a relevant factor to be taken note of. The propriety and legality of the subjective satisfaction arrived at by the detaining authority is to be tested taking into account these factors as well. Therefore, we do not find any ground to hold that the orders of detention against Rahila and Hiromasa are illegal or their continued detention is illegal. - Decided against the petitioner

Summary

Issues Involved:
1. Entitlement to pre-execution copy of detention order and grounds.
2. Validity of subjective satisfaction of the detaining authority.
3. Impact of bail conditions and passport seizure on detention necessity.
4. Delay in disposing of representations.
5. Delay in passing and executing the detention order.
6. Compliance with bail conditions and its impact on detention.
7. Judicial authority to limit the detention period.

Issue-wise Detailed Analysis:

1. Entitlement to pre-execution copy of detention order and grounds:
The petitioners contended that they were entitled to receive copies of the detention order and grounds before their arrest to challenge the detention effectively. However, the court held this contention unsustainable, citing the Supreme Court's decision in Subhash Popatlal Dave v. Union of India [(2012) 7 SCC 533], which established that individuals are not entitled to the grounds of detention before the order's execution. The court reaffirmed this position, emphasizing that the Right to Information Act does not grant such pre-execution rights.

2. Validity of subjective satisfaction of the detaining authority:
The petitioners argued that the detaining authority did not properly consider the bail conditions and passport seizure, thus vitiating the subjective satisfaction. The court reviewed the grounds of detention and found that the detaining authority had considered all relevant facts, including bail conditions and prior smuggling activities. The court concluded that the subjective satisfaction was reasonable and not vitiated, and it is not the court's role to substitute its views for those of the detaining authority.

3. Impact of bail conditions and passport seizure on detention necessity:
The petitioners claimed that the seizure of passports and bail conditions prevented the detenues from engaging in smuggling activities, making detention unnecessary. The court disagreed, noting that the detaining authority considered these factors and still found a likelihood of continued prejudicial activities. The court cited several Supreme Court cases, including Sitthi Zuraina Begum v. Union of India [AIR 2003 SC 323], to support the view that passport seizure does not necessarily prevent smuggling activities.

4. Delay in disposing of representations:
The petitioners argued that the delay in disposing of their representations violated their constitutional rights. The court examined the timeline and found that the representations were considered and disposed of without unreasonable delay. The court referenced the Constitution Bench decision in K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union of India [(1991) 1 SCC 476], which allows for some delay if properly explained and if the representation is considered meaningfully.

5. Delay in passing and executing the detention order:
The petitioners contended that there was an undue delay in passing and executing the detention order. The court reviewed the sequence of events and found that the delay was primarily due to the petitioners' legal actions, including obtaining interim orders from the High Court. The court held that the detenues could not take advantage of delays caused by their own actions, referencing Union of India v. Amrit Lal Manchanda [AIR 2004 SC 1625].

6. Compliance with bail conditions and its impact on detention:
The petitioners argued that their compliance with bail conditions should have been considered before executing the detention order. The court cited Haradhan Shah v. The State of W.B. [(1975) 3 SCC 198], stating that compliance with bail conditions does not preclude the execution of a detention order. The court emphasized that the detaining authority had considered the bail conditions and still found detention necessary.

7. Judicial authority to limit the detention period:
The petitioners requested the court to limit the detention period, arguing that the time already served was sufficient. The court rejected this request, stating that it does not have the authority to limit the detention period under the COFEPOSA Act. The court explained that the appropriate government and the Advisory Board have the authority to determine the detention period, as outlined in the COFEPOSA Act.

Conclusion:
The court dismissed the writ petitions, finding no grounds to declare the detention orders or the continued detention of the detenues illegal. The court upheld the detaining authority's subjective satisfaction and found no undue delay in disposing of the representations or executing the detention orders. The court also clarified its lack of jurisdiction to limit the detention period under the COFEPOSA Act.