2022 (11) TMI 222 - HC - Customs

Validity of detention order - malice in law - COFEPOSA - Inordinate and unexplained delay in passing of the impugned detention order - absence of subjective satisfaction and non-placement of vital documents by the sponsoring authority and/or non-consideration thereof by the detaining authority and non-supply thereof to detenu - detention vitiated in view of the violation of settled mandate of law and procedure - Non-application of mind by detaining authority while passing the detention order - Inchoate and incomplete investigation - Non-compliance of procedural safeguards/requirements - HELD THAT - The Hon ble Supreme Court in Ankit Ashok Jalan 2020 (3) TMI 248 - SUPREME COURT , has, in no uncertain terms carved out a distinction with respect to the determination of a representation, received after reference to the Advisory Board, sent to the detaining authority and to the appropriate government. It was observed that since the judgment in K.M.Abdulla Kunhi 1991 (1) TMI 244 - SUPREME COURT had dealt with a situation where the detaining authority was the appropriate Government itself, the principle laid down there would not be applicable in a case where the detaining authority and the appropriate Government are distinct - It was therefore held in Ankit Ashok Jalan that if the law is now settled that a representation can be made to the specially empowered officer who had passed the order of detention in accordance with the power vested in him and the representation has to be independently considered by such detaining authority, the principles concerned adverted to in para 16 of the decision in K.M. Abdulla Kunhi would not be the governing principles for such specially empowered officer. In the present case, the representation made to the detaining authority, i.e., respondent no. 2 on 02.03.2022, who was specially empowered officer passing the order of detention, was decided on 15.03.2022, without waiting for the opinion of the Advisory Board or confirmation of the detention order by the Central Government. The second representation dated 10.03.2022 made by the detenu to the Central Government, i.e, respondent no. 3 was received by the latter after the reference being made to the Central Advisory Board and decided on 09.05.2022, i.e., after receipt of the said opinion and confirmation of the detention order by the Central Government - the detention order cannot be quashed on the ground urged on behalf of the detenu that there was inordinate and unexplained delay on the part of the Central Government, i.e., respondent no. 3 in deciding the representation dated 10.03.2022. The present writ petition is dismissed and disposed of accordingly.

Summary

Issues Involved:
1. Malice in law and fact.
2. Inordinate and unexplained delay in passing the detention order.
3. Delay in deciding the representation by the Central Government.
4. Absence of subjective satisfaction and non-placement of vital documents.
5. Use of the word "or" in the detention order.
6. Violation of settled mandate of law and procedure.
7. Non-application of mind by the detaining authority.
8. Inchoate and incomplete investigation.
9. Non-compliance with procedural safeguards.

Detailed Analysis:

1. Malice in Law and Fact:
The petitioner alleged that the detention order was issued with malice in law and fact. However, the court did not find substantial evidence to support this claim. The detention order was upheld as legally and constitutionally valid, passed by the competent authority with due application of mind.

2. Inordinate and Unexplained Delay in Passing the Detention Order:
The petitioner argued that there was an inordinate and unexplained delay in passing the detention order. The court examined the timeline of events and found no unreasonable delay that would vitiate the detention order.

3. Delay in Deciding the Representation by the Central Government:
The petitioner contended that the Central Government delayed deciding his representation dated 10.03.2022, which violated his constitutional rights under Article 22(5). The court noted that the representation was received on 11.03.2022, and the matter had already been referred to the Central Advisory Board on 24.02.2022. The representation was decided on 09.05.2022, after receiving the opinion of the Advisory Board. The court referred to the Supreme Court's decision in Ankit Ashok Jalan vs. Union of India, which allows the government to await the Advisory Board's report before deciding on the representation. Therefore, the court held that there was no inordinate delay.

4. Absence of Subjective Satisfaction and Non-Placement of Vital Documents:
The petitioner claimed that the detaining authority did not have subjective satisfaction and that vital documents were not placed before the authority. The court found that the detaining authority had arrived at subjective satisfaction based on the material facts and circumstances of the case. There was no evidence to support the claim of non-placement of vital documents.

5. Use of the Word "or" in the Detention Order:
The petitioner argued that the use of the word "or" in the grounds of detention rendered the order vague and ambiguous. The court did not find this argument compelling enough to vitiate the detention order.

6. Violation of Settled Mandate of Law and Procedure:
The petitioner alleged that the detention was vitiated due to the violation of settled legal mandates and procedures. The court examined the procedures followed and found that they were in compliance with the legal requirements.

7. Non-Application of Mind by the Detaining Authority:
The petitioner contended that the detaining authority did not apply its mind while passing the detention order. The court found that the detaining authority had duly applied its mind and that the order was based on a careful consideration of the material facts.

8. Inchoate and Incomplete Investigation:
The petitioner argued that the investigation was inchoate and incomplete. The court found that sufficient grounds existed for the detention based on the material available at the time of passing the order.

9. Non-Compliance with Procedural Safeguards:
The petitioner claimed that there was non-compliance with procedural safeguards. The court examined the procedural aspects and found that the detention order complied with the necessary safeguards and requirements.

Conclusion:
The court dismissed the writ petition, upholding the detention order as legally and constitutionally valid. The arguments presented by the petitioner were found to be without merit, and the detention order was confirmed.