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TMI Blog2015 (8) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... friend of the detenu and as such interested in the life and personal liberty of the detenu. 2. Learned counsel for the petitioner states that the petitioner has raised several grounds in assailing the impugned order, however, the principal ground being urged is ground (1) in paragraph 4 of the petition. This ground is as regards the unexplained delay in the issuance of the detention order. It is urged that the impugned order has been issued after a lapse of 7 months from the date when the detenu was arrested and thus the same stands vitiated on the ground of unexplained and inordinate delay. 3. Learned counsel for the petitioner has drawn our attention to the grounds of detention to point out that the detenu was intercepted on 11th April 2014 by the Officers of the Customs at CSI Airport, Mumbai when the detenu had arrived from Dubai. The detenu was holding a Indian Passport issued at Dubai which was valid up to 9th March 2024. The detenu had cleared himself through the green channel and was intercepted by Customs Sepoy at the exit gate. The detenu was dressed in a uniform and was carrying a black colored back sack. On being asked whether the detenu was carrying any gold in the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ening Committee for consideration on 17th June 2014 on which day a meeting of the Committee was fixed. Minutes of the COFEPOSA screening committee were issued on 18th June 2014 wherein the screening committee approved the proposal as received by the COFEPOSA section on 20th June 2014. After getting approval of the screening committee 4 sets of the proposal, brief facts and index of relied upon documents were prepared and the same were submitted on 26th June 2014, to the Principal Secretary (Appeals and Security) Home Department of the Government of Maharashtra. In paragraph 5 it is stated that thereafter further generated documents were sent to the Office of the Detaining authority namely the Principal Secretary (Appeals and Security) Home Department on 4th August 2014 and 18th August 2014. 5. Learned counsel for the petitioner submits that the dates as appearing in paragraph 4 and 5 of the affidavit-in-reply filed on behalf of the Sponsoring authority shows that there is no explanation for the delay between the period 26th June 2014 to 4th August 2014. Our attention is thereafter drawn to the explanation for the further delay as sought to be furnished in the affidavit-in-reply fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 17.11.2014 and the then Deputy Secretary endorsed it on 18.11.2014. After considering the proposal and the further generated documents and after being subjectively satisfied that there are sufficient reasons to issue the Detention order against the detenu, the Detaining Authority dictated the Detention order and the grounds of detention. After finalization, the Detaining Authority issued the Detention order along with grounds of detention and the Relied Upon Documents on 15.12.2014 which is after a span of almost 5 ½ months from the date of receipt of proposal. Thus the contention of the petitioner that the Detention order was issued after an inordinate and inexcusable delay of 7 months is not true." On the above averments, learned counsel for the petitioner contends that the manner in which the detaining authority has dealt with the proposal clearly show the lax attitude in complying with the principles of detention law and which speak volumes against any subjective satisfaction being reached warranting detention of the detenu. Learned counsel for the petitioner submits that the detaining authority called for additional information from the sponsoring authority by a let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned APP in supporting the case of the detaining authority that there is no delay in passing the detention order has drawn our attention to the grounds as contained in paragraph 14 appearing at page 43A of the Paper Book which reads thus: "14. Whatever time was required for scanning the proposal containing about 96 pages, and formulating the grounds for issuing the detention order was for the purpose of better verification of the material placed before me and applying my mind and arriving at subjective satisfaction. Therefore, I am satisfied that the nexus between the date of incident and passing of the detention order as well as the object of your detention has been maintained." 8. Learned APP has drawn our attention to the contents of paragraph 4 and 5 of the replyaffidavit filed on behalf of the detaining authority to contend that utmost care has been taken by the detaining authority and which clearly shows that there was no undue delay in passing an order of detention and that the live link or nexus between the prejudicial activity had not been snapped. Learned APP has also drawn our attention to certain observations as made in the detention order to contend that even prior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approval the detaining authority called for additional information by a letter dated 9th September 2014 and as the same was not received, reminder letters were issued on 20th September 2014 and 17th October 2014. The detaining authority has stated that the sponsoring authority further by its letter dated 7th October 2014 forwarded incorrect information and therefore, a third reminder was issued on 20th October 2014 to which the sponsoring authority forwarded information by a letter dated 5th November 2014 as received by the detaining authority on 17th November 2014. The Assistant in the Office of the detaining authority submitted information on 17th November 2014 to the Section Officer who then endorsed the same to the Deputy Secretary on 17th November 2014 who endorsed it on 18th November 2014 to the detaining authority. It is the case of the detaining authority that thereafter the detaining authority after being subjectively satisfied that there are sufficient reasons to issue the detention order dictated an order and finalized the same along with grounds of detention on 15th December 2014. This also took about one month apart from the earlier delay. 12. A careful analysis of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The COFEPOSA being held to be a valid piece of legislation by the highest Court does not mean that the caution administered while upholding it has to be ignored. There is a vast difference between the legality and validity of such enactments and that being upheld and its implementation being subjected to constitutional safeguards guaranteed vide Article 22 of the Constitution of India. None can tinker with those safeguards or interfere with the same by making detention orders casually, lightly and mechanically. Eventually, the power to make such orders is coupled with a duty. That is to subserve larger public interest. All concerned should note that their lackadaisical attitude harms public good and is counter productive if such orders of detention are set aside. 13. We are of the clear opinion that the explanation which has been rendered by the respondents is not a satisfactory explanation. The authorities cannot play with the liberty of a citizen in such a casual manner. The authorities also have no 'carte blanche' to be not diligent and casual in dealing with issues concerning of curtailment of liberty of a person and pass a belated order preventively detaining a perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foreign liquor on 29th/30th December 1986. In this case what weighed with the Supreme Court was that when the appellant moved an anticipatory bail application, there was no proposal to arrest the appellant. When the appellant was arrested on 2nd February 1987 and on the same day he made a statement admitting the facts. In the meanwhile, the proposal to detain the appellant was placed before the District Magistrate. The District Magistrate on a careful consideration of the material on record that he was satisfied that it was necessary to make an order of detention, under section 3 (2) of the COFEPOSA Act, passed the detention order on 28th May 1987. In the aforesaid set of facts, where the appellant had admitted the case against him the Supreme Court observed that there being no explanation for the delay between 2nd February 1987 and 28th May 1987 could not give rise to the legitimate inference that the subjective satisfaction arrived at by the District Magistrate was not genuine or that the grounds were stale or illusory or that there was no rational connection between the grounds and the impugned order of detention. Moreover, in paragraph 12 of the decision the Supreme Court has c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the detaining authority upon such scrutiny and evaluation decided on 25th January 2013 to place the proposals before the screening committee and forwarded the same to it on 1st February 2013. The Supreme Court observed that if one expects care and caution in scrutiny and evaluation on the proposals, time taken by the detaining authority to place the proposal before the screening committee it cannot be said in the facts of the case there is an inordinate delay. The meeting of the scrutiny committee had taken place on 1st February 2013 and final call was to be taken by the detaining authority, which was expected to scrutinise,evaluate and analyze all the material in detail and after the said process, the detaining authority decided on 15th April 2013 to detain the detenu. In these facts, the time taken for coming to the decision was held to have been sufficiently explained. The Supreme Court however, in holding so in para 18 of the said decision has observed as under: 18. " 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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