2017 (4) TMI 1076 - HC - Customs

Detention of certain persons - There is improper communication of the order of detention and this has vitiated the second facet of Article 22(5) of the Constitution as well - non-furnishing of relied upon documents - non-application of mind - applicability of doctrine of severability - COFEPOSA Act - Held that - The protection under Article 22(5) of the Constitution of India read with Section 3(3) of the COFEPOSA Act requires that the person against whom an order for preventive detention has been passed shall be given the earliest opportunity of making a representation against the order of detention by communicating to him the grounds of detention, thus enabling him to effectively utilise such opportunity. Liberty of individual in terms of the Constitution is not merely a technical matter but a sacrosanct one. The materials disclosed that the detention order and the grounds of detention were served on the respective detenus under due acknowledgment. The list of Relied Upon Documents and copies of the Relied Upon Documents were also served on each detenu. The video footages were also shown to them, as can be seen from the acknowledgments made in writing by each of the detenus in the presence of Jail authorities. The acknowledgment of receipt of the detention order, the grounds of detention, the list of the Relied Upon Documents and the copies of the Relied Upon Documents are signed by each of the detenus and those acknowledgments are counter signed by the Jail authority who was present while those materials were served. If the formalities prescribed by the Constitution and the COFEPOSA Act have been complied with, there would be no further examination by the Court, on an application seeking interference with preventive detention - the orders of detention have been issued on the basis of materials which are not extraneous to the purpose of statutory provisions which have been invoked by the detaining authority and the sponsoring authority. No plea of absence of due application of mind is available on the materials in the cases in hand. No ground exists to interfere with the impugned orders of detention and grant the reliefs as sought for in the writ petitions - petition dismissed - decided against petitioner.

Summary

Issues Involved:
1. Validity of preventive detention orders under COFEPOSA Act.
2. Alleged non-application of mind by the detaining authority.
3. Non-communication of detention orders and grounds in the language known to detenus.
4. Non-furnishing of relied upon documents.
5. Doctrine of severability under Section 5A of the COFEPOSA Act.
6. Adequacy and sufficiency of materials for detention.
7. Alleged delay in passing the detention orders.
8. Personal reasons and non-availability of opportunity to be involved in the activity of the Airport.

Issue-wise Detailed Analysis:

1. Validity of Preventive Detention Orders under COFEPOSA Act:
The petitions challenged the preventive detention of eight individuals under the COFEPOSA Act. The court noted that the proposals for detention were based on cohesive facts and factors, with common grounds of detention for all detenus. The court found that the detention orders, issued on 14.10.2015, were valid as they were based on sufficient materials and facts.

2. Alleged Non-application of Mind by the Detaining Authority:
Petitioners argued that the detention orders revealed non-application of mind. The court examined the original files and found that the detaining authority had duly considered the materials placed by the sponsoring authority. The court concluded that there was no lack of application of mind by the detaining authority.

3. Non-communication of Detention Orders and Grounds in the Language Known to Detenus:
Petitioners contended that the English version of the detention orders was served without contemporaneous Malayalam translations, depriving the detenus of their right to make an effective representation. The court found that the grounds of detention and relied upon documents were served in both English and Malayalam, and the detenus had acknowledged understanding the reasons for their detention in Malayalam. The court held that there was no breach of Article 22(5) of the Constitution in this regard.

4. Non-furnishing of Relied Upon Documents:
Petitioners argued that the relied upon documents were not furnished, affecting their right to make an effective representation. The court found that the list of relied upon documents and copies were served on each detenu, along with video footages. The court held that the materials communicated were sufficient for the detenus to make a representation.

5. Doctrine of Severability under Section 5A of the COFEPOSA Act:
Petitioners contended that Section 5A does not apply to the "heads" of detention but only to the grounds of detention. The court interpreted the detention order as engaging in abetting, smuggling, and transporting smuggled goods in future. The court held that the doctrine of severability applied and the detention orders were valid.

6. Adequacy and Sufficiency of Materials for Detention:
The court reiterated that adequacy or sufficiency of materials is not a matter for judicial review in preventive detention cases. The court found that the materials on record were sufficient for the detaining authority to arrive at a subjective satisfaction for issuing the detention orders.

7. Alleged Delay in Passing the Detention Orders:
Petitioners argued that there was an inordinate delay in passing the detention orders, which snapped the live and proximate link between the alleged prejudicial activity and the detention order. The court did not find the delay sufficient to vitiate the detention orders.

8. Personal Reasons and Non-availability of Opportunity to be Involved in the Activity of the Airport:
Petitioners pointed out personal reasons and bail conditions that precluded them from entering the airport. The court held that these factual situations did not preclude the detaining authority from entering satisfaction as to the requirement of passing the detention orders.

Conclusion:
The court dismissed the writ petitions, holding that the preventive detention orders were valid and based on sufficient materials. The court found no breach of constitutional provisions or statutory requirements in the issuance and communication of the detention orders.