9911796707
TMI Blog2014 (5) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... June, 2013. It is expected of the detaining authority to take recourse to ordinary process at the first instance for service of the order of detention on a detenu and it is only after the order of detention is not served through the said process that recourse to the modes provided under Section 7 of the COFEPOSA are to be resorted. Here, in the present case, that occasion did not arise as the order of detention was served on the detenu on 11th of June, 2013. Therefore, in our opinion, the order of detention cannot be said to have been vitiated on this ground also. We cannot expect the detaining authority to know each and every detail concerning the detenu in different parts of the country. Not only this, the conditions imposed while granting bail to the detenu which we have reproduced above in no way restrains him from continuing with his prejudicial activity or the consequences, if he continues to indulge. We are in agreement with the High Court that the bail order passed by the trial court in Andhra Pradesh is not a crucial and vital document and the omission by the detaining authority to consider the same has, in no way affected its subjective satisfaction. There is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision on 15th of April, 2013 to detain the detenu and two others. Draft grounds for detention in English were approved on 19th of April, 2013 and as one of the detenue was a Tamilian, time till 3rd of May, 2013 was taken for translation of the documents relied on in Malyalam and Tamil and for preparation of sufficient number of copies. Ultimately, with a view to prevent the detenu from engaging in the smuggling of goods, the detaining authority passed order of detention dated 6th of May, 2013. It was served on the detenu on 11th of June, 2013. The grounds of detention dated 8th of May, 2013 were made available to the detenu on 13th of June, 2013. The detenu was produced before the Advisory Board, which found sufficient grounds for his continued detention and, accordingly, the detaining authority issued order dated 24th of August, 2013, and confirmed the order of detention for a period of one year with effect from 11th of June, 2013, the date of detention. It is relevant here to state that detenu was earlier arrested in connection with Kallur Police Station FIR No.57 of 2012 under Section 29 and 32 of A.P. Forest Act, 1937; Section 29 of the Wildlife Protection Act, 1972; Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity. If there is undue and long delay between the prejudicial activity and making of the order of detention and the delay has not been explained, the order of detention becomes vulnerable. Delay in issuing the order of detention, if not satisfactorily explained, itself is a ground to quash the order of detention. No rule with precision has been formulated in this regard. The test of proximity is not a rigid or a mechanical test. In case of undue and long delay the court has to investigate whether the link has been broken in the circumstances of each case. There are a large number of authorities which take this view and, therefore, it is unnecessary to refer to all of them. In the case of Adishwar Jain v. Union of India (2006) 11 SCC 339, this Court observed as follows: 8. Indisputably, delay to some extent stands explained. But, we fail to understand as to why despite the fact that the proposal for detention was made on 2-12-2004, the order of detention was passed after four months. We must also notice that in the meantime on 20-12-2004, the authorities of the DRI had clearly stated that transactions after 11-10-2003 were not under the scrutiny stating: In our letter m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... each case. No hard-and-fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the causal connection has been broken in the circumstances of each case. 11. Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nise, evaluate and analyse all the materials in detail. After the said process, the detaining authority decided on 15th of April, 2013 to detain the detenu and two others. The time taken for coming to the decision has sufficiently been explained. After the decision to detain the detenu and two others was taken, draft grounds were prepared and approved on 19th of April, 2013. As one of the detenue was a Tamilian, the grounds of detention were translated in Malyalam and Tamil which took some time and ultimately sufficient number of copies and the documents relied on were prepared by 3rd of May, 2013. Thereafter, the order of detention was passed on 6th of May, 2013. From what we have stated above, it cannot be said that there is undue delay in passing the order of detention and the live nexus between the prejudicial activity has snapped. As observed earlier, the question whether the prejudicial activity of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live link between the prejudicial activity and the purpose of detention is snapped depends on the facts and circumstances of each case. Even in a case of undue or long del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 7 of the COFEPOSA. Section 7 of the COFEPOSA confers power on the detaining authority to make a report to a competent Magistrate in relation to an absconding person so as to apply the provisions of Section 82, 83, 84 and 85 of the Code of Criminal Procedure. It also provides for publication of an order in the Official Gazette, directing the detenu to appear. It is an admitted position that no such report or publication was made. Accordingly, Mr. Basant submits that the order of detention is vitiated on the ground of delay in its execution also. In support of the submission he has placed reliance on a large number of authorities. We are entirely in agreement with Mr. Basant that undue and unexplained delay in execution of the order of detention vitiates it, but in the facts of the present case, it cannot be said that such delay has occurred. As stated earlier, the order of detention dated 6th of May, 2013 was served on the detenu on 11th of June, 2013. It is expected of the detaining authority to take recourse to ordinary process at the first instance for service of the order of detention on a detenu and it is only after the order of detention is not served through the said pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
