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2022 (11) TMI 937 - HC - CustomsDetention of detenue - smuggling activity - All relevant and necessary documents were not produced before the detaining authority - Delay in passing the order of detention - Delay in execution of the order of detention - Copies of all the relied upon and relevant documents were not furnished to the detenu - Delay in disposing the representations. All relevant and necessary documents were not produced before the detaining authority - HELD THAT - A perusal of Exts.P2 and P3 would reveal that all the relevant documents sufficient to establish seizure of the gold from the possession of Sri. M. Sunil Kumar at the exit gate in the Airport have been placed before the Detaining Authority. Now, the allegation is regarding non production of CCTV visuals and three other documents which were never in the possession of the Sponsoring Authority. There is nothing on record to probabilise that those records/documents reached the possession of the Sponsoring Authority. Also, the learned counsel for the petitioner did not point out any fact or circumstance suggesting that on account of inaction on the part of the Sponsoring Authority such records/documents did not come to their possession. The contention of the petitioner regarding non submission of all the four documents cannot be countenanced. None of such documents was in the possession of the Sponsoring Authority. The petitioner could not substantiate that in the absence of such documents, the subjective satisfaction arrived at by the Detaining Authority is vitiated at least prima facie - Ext.P1 order of detention is not liable to be set aside on the ground that the subjective satisfaction arrived at by the Detaining Authority is vitiated for want of consideration of the documents mentioned by the petitioner. The contention of the petitioner in that respect is rejected. Delay in passing the order of detention - HELD THAT - The Detaining Authority after detailed consideration of all the relevant documents arrived at the conclusions constituting the grounds for detention and resultantly issued Ext.P1. Eight persons were ordered to be detained in connection with the same incident. The detailed narration of grounds for detention contained in Ext. P2 and voluminous documents enlisted in Ext. P3 would show that a detailed investigation was required before initiating steps under section 3(1) of the COFEPOSA Act against the detenu and his co-indictees. Many persons, including the detenu, did not appear before the authorities in time or ever, for the purpose of investigation despite issuing repeated notices/summons. The Detaining Authority was bound to consider all the connected documents before passing that common order. After considering the chronology of incidents from 13.05.2019, the date of arrest and seizure till the culmination of the proceedings for issuance of the detention order on 27.09.2019, we are convinced that there occurred no unjustified delay. In WAHEEDA ASHRAF AND ORS. VERSUS THE UNION OF INDIA AND ORS. 2021 (4) TMI 1248 - KERALA HIGH COURT this Court held by placing reliance on the judgment of the Apex Court in MALWA SHAW VERSUS THE STATE OF WEST BENGAL 1974 (2) TMI 96 - SUPREME COURT that delay in issuing the order of detention by itself is not fatal to the order. The contention of the petitioner in this regard is therefore rejected. Delay in execution of the order of detention - HELD THAT - It is quite evident that the authorities took all possible steps to procure the presence of the detenu to execute the order. Only because he evaded the process and hid himself the order of detention could not be executed. It is clear from the counter affidavits filed by the respondents and the records made available for our perusal that all possible efforts were taken to execute the order of detention. Steps including publication of notice in the newspapers and declaring the detenu an absconder as contemplated under Section 7(1)(b) of the COFEPOSA Act were taken. Under such circumstances, we find that the delay in the execution of the detention order is satisfactorily explained. Further, it is trite that an absconding detenu cannot cite the delay in the execution of the order to contend that the detention order is liable to be quashed. Copies of all the relied upon and relevant documents were not furnished to the detenu - HELD THAT - In J. ABDUL HAKEEM VERSUS STATE OF TAMIL NADU 2005 (8) TMI 381 - SUPREME COURT the Apex Court held that the detenu has a right to be supplied with the material documents on which the reliance is placed by the Detaining Authority for passing the detention order but the detention order will not be vitiated, if the document although referred to in the order is not supplied which is not relied upon by the Detaining Authority for forming its opinion or was made basis for passing the order of detention. Crux of the matter lies in whether the detenu's right to make a representation against the order of detention, is hampered by non-supply of the particular document. The contention of the learned counsel of the petitioner that Ext. P1 is liable to be abrogated for non-supply of the aforesaid documents and the consequent denial of the right of the detenu to make an effective representation is therefore devoid of merits and it is rejected. Delay in disposing the representations - HELD THAT - The Central Government shall wait before considering the representation of the detenu till the report of the Advisory Board is received, if the representation is received after the case of the detenu has been referred to the Board. Whereas, the Detaining Authority who is a specially empowered officer shall consider and dispose of the representation of the detenu with a sense of immediacy and cannot wait for receipt of the report of the Advisory Board - The representations dated 27.01.2022 sent by the detenu by e-mail were received by the authorities on 28.01.2022. From the perusal of the files, it is seen that on 03.02.2022, the sponsoring authority has submitted para-wise comments on the representations and the representation was rejected by the Detaining Authority on 4.2.2022. Ext.P10 is the memorandum sent by Director (COFEPOSA) informing the detenu that his representation was rejected by the detaining authority on 4.2.2022. In the matter of consideration of the representation by the Detaining Authority, therefore, there is absolutely no delay and the petitioner has no allegation of delay also in that regard. The facts would reveal that there was no lethargy on the part of the authorities of the Central Government and no inordinate delay in disposing of Ext.P4 representation submitted by the detenu. Therefore the contention of the learned counsel for the petitioner in this respect also is untenable. None of the grounds put forward by the petitioner to challenge validity of Ext.P1 and to abrogate it can be accepted - Petition dismissed.
Issues Involved:
1. Non-production of all relevant documents before the detaining authority. 2. Delay in passing the order of detention. 3. Delay in execution of the order of detention. 4. Non-furnishing of all relied upon and relevant documents to the detenu. 5. Delay in disposing of the representations submitted by the detenu. Issue-wise Detailed Analysis: 1. Non-production of all relevant documents before the detaining authority: The petitioner argued that the detaining authority did not consider all necessary documents, specifically CCTV footage from the airport, a representation by Smt. Sareena Shaji retracting her confession, a decision by the Principal Director General of DRI, and complaints against DRI officials. The court referenced the Supreme Court's decision in Gurdev Singh v. Union of India, emphasizing that the subjective satisfaction of the detaining authority should be based on all relevant materials. However, it was found that the CCTV footage and other documents were not in the possession of the sponsoring authority, and there was no evidence suggesting otherwise. The court also noted that the absence of these documents did not vitiate the subjective satisfaction of the detaining authority, as other facts independently supported the detention order. 2. Delay in passing the order of detention: The petitioner contended that the four-month delay in passing the detention order was unjustified. The court reviewed the chronology of events and determined that the delay was due to the need for a detailed investigation and the non-cooperation of the detenu and other involved persons. The court cited Waheeda Ashraf v. Union of India, which held that delay in issuing a detention order is not inherently fatal. The court concluded that the delay was justified and did not invalidate the detention order. 3. Delay in execution of the order of detention: The detention order was issued on 27.09.2019 but executed only on 28.12.2021. The respondents explained that the delay was due to the detenu absconding and evading arrest. The court referenced Bhawarlal Ganeshmalji v. State of Tamil Nadu, which established that delay caused by the detenu's evasive actions does not invalidate the detention order. The court found that the authorities took all possible steps to apprehend the detenu, including declaring him an absconder and publishing notices in newspapers. Therefore, the delay in execution was satisfactorily explained and did not affect the validity of the detention order. 4. Non-furnishing of all relied upon and relevant documents to the detenu: The petitioner argued that the non-supply of certain documents, including CCTV footage and para-wise comments submitted by the sponsoring authority, prejudiced the detenu's right to make an effective representation. The court referred to Ankit Ashok Jalan v. Union of India, which held that the detenu is entitled only to documents relied upon by the detaining authority. Since the contested documents were not relied upon for the detention order, their non-supply did not vitiate the order. The court also cited Radhakrishnan Prabhakaran v. State of Tamil Nadu, emphasizing that only documents relied upon by the detaining authority must be supplied to the detenu. 5. Delay in disposing of the representations submitted by the detenu: The petitioner claimed that there was an inordinate delay in disposing of the representations submitted by the detenu. The court noted that the representations were promptly processed by the detaining authority and the Central Government. The court cited Kamaleshkumar Ishwardas Patel v. Union of India, which held that the detenu has a right to have their representation considered expeditiously. The court found that the representations were disposed of without undue delay, considering the time required for processing and holidays. Therefore, the delay did not invalidate the detention order. Conclusion: The court dismissed the writ petition, finding that none of the grounds presented by the petitioner were sufficient to invalidate the detention order. The subjective satisfaction of the detaining authority was not vitiated, the delays in passing and executing the detention order were justified, and the non-supply of certain documents did not prejudice the detenu's rights.
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