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TMI Blog2021 (2) TMI 915X X X X Extracts X X X X X X X X Extracts X X X X ..... was asked to appear on 30.05.19. He did not appear. Another summons dated 06.06.19 was issued on 12.06.19. He appeared on 12.06.19. However, the petitioner did not cooperate. He did not provide the code to unlock his mobile phone on his own. He feigned ignorance and loss of memory with respect to the password/ code that left the respondents with no other option but to look for avenues to unlock the mobile phone even without the petitioner providing the password/ code. The respondents have stated that, ultimately, it was found that the mobile phone of the petitioner could be unlocked at the Cyber Laboratory of DRI, Mumbai. The respondents have stated that DRI, Mumbai is not a part of Air Customs. Thus, the submission that the respondents ought to have been aware of the existence of its facility at DRI, Mumbai to unlock the mobile phone of the petitioner, cannot be accepted on the basis of assumptions that the petitioner would like us to draw. The petitioner was sent a letter dated 20.11.2019 informing that Forensic Examination of his mobile phone would be conducted at DRI, Mumbai on 25.11.2019. That letter could not be served on the petitioner, since he was not found residing on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brother of the petitioner is purported to be the kingpin of the smuggling ring which allegedly caused immense economic loss to the country. The CSC and the Detaining Authority found the evidence against him to be sufficient to proceed against him in 2019 itself, which resulted in the passing of the Detention Order dated 11.03.19 against him. To justify the preventive detention of the petitioner in the assessment of the Detaining Authority, the Respondents had to collect evidence against the present petitioner, including recovering the relevant data from his mobile phone instrument, which took considerable time for reasons attributable primarily to the petitioner himself. No merit in the assertions of the petitioner. We, accordingly, dismiss the petition - W.P.(CRL.) 1166/2020 & CRL.M.A. 10239/2020 - - - Dated:- 16-2-2021 - HON'BLE MR. JUSTICE VIPIN SANGHI AND HON'BLE MR. JUSTICE RAJNISH BHATNAGAR Petitioner Through: Mr. Siddharth Aggarwal, Mr. Arjun Dewan, Mr. Sowjahnya Shankaran and Mr. Shahryar Khan, Advocates Respondent Through: Mr. Amit Mahajan, CGSC with Mr. Dhruv Pande, Mr. Gitesh Chopra and Mr. Kritagya Kumar Kait, Advocates for R-1 and R-2. Mr. Satish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thene then wrapped with Black colour polythene (without any Tag) and one hand bag containing 18 Dandas of Benson Hedges Cigarette (without tag); ii. Boarding Pass of Flight No. KU 381 dated 01.02.2019 (Kuwait to Delhi) having seat No. 2H; iii. Indian Passport No. Z5317414 issued on 16.01.2019.; iv. One Vivo Y53 Mobile Phone having Vodafone Sim No. 8860253525 as disclosed by Pax; v. AED 300/- vi. 02 bottles of Chivas Regal 12 YO whisky. vii. Personal effect old and used 3. After effecting recoveries, a Panchnama was prepared and total value of Benson Hedges cigarettes recovered from the Petitioner was ₹ 7,14,000/- (Seven Lakh Fourteen Thousand Rupees only). The total value of the recovered and seized goods from these four passengers was calculated to be ₹ 1,09,74,500/-. 4. On 2nd February, 2019, the Statements of the Petitioner, along with others were recorded under Section 108 of the Customs Act, 1962. The petitioner claims that his statement given on 2nd February, 2019 was self-incriminating in nature, and given under force and coercion. As per the Arrest Memo, the Petitioner was arrested on 3rd February 2019 at 10:15 pm, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 20.01.2020 at Mumbai and its forensic examination was conducted. The same led to the recovery of incriminating documents/materials, and the petitioner was summoned again. His statement was again recorded under Section 108 of the Customs Act, 1962 on 31.01.20. Thereafter, a fresh proposal to preventively detain the petitioner was forwarded by the Sponsoring Authority, dated 13.03.2020. On 05 June, 2020, the impugned Preventive Detention Order bearing No. PD-12002/05/20-COFEPOSA was issued against the Petitioner by Respondent No.2 under Section 3 of the COFEPOSA Act. 10. Since the petitioner moved this petition at the pre-execution stage, he sought interim protection against execution of the Detention Order during pendency of this writ petition. We rejected the said application vide our order dated 04.08.2020, observing that the petitioner s statement under Section 108 of Customs Act, 1962, recorded as late as on 31.01.2020, which he claimed was recorded under duress and coercion, had never been retracted. Moreover, the said statement had not been placed on record. Therefore, we prima-facie could not conclude that the Detention Order is belated, or that the live-link between t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive detention. It is argued that the delay in the passing of a Detention Order is fatal to the consequent detention, as the nexus/ live link between the prejudicial activity and the purpose of detention snapped due to the delay which - in this case, is more than 16 months. 13. Reliance is placed on Licil Antony Vs. State of Kerala Anr, (2014) 11 SCC 326. Our attention is also drawn to Rajinder Arora versus Union of India, (2006) 4 SCC 796, wherein the Hon ble Supreme Court had quashed the Detention Order, as there was delay of approximately 10 months. 14. Mr. Aggarwal further submits that the only justification now offered by the respondents is that they could unlock the mobile phone instrument of the petitioner only in January, 2020. The forensic examination of the mobile phone was conducted only on 20.01.2020, after being seized from the petitioner on the night of 1st February 2019. The submission of Mr. Aggarwal is that the inordinate time taken by the respondents to unlock the mobile phone instrument of the petitioner when that facility was available with them, cannot be taken benefit of by the respondents to justify the immense delay. There is no explanation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rstly, the aspect of delay in passing the Detention Order should not be gone into, and secondly, in any event, there is no merit in the said pleas of the petitioner. 18. The timeline of the developments in the matter from the initial stage of recovery of contraband items, to the last stage of the issuance of the impugned Detention Order is sought to be explained by the Respondents. The proposals of Sponsoring Authority for the preventive detention of the petitioner herein under the COFEPOSA Act, 1974 were initially sent in February 2019. They were considered by the Central Screening Committee (CSC) in its meeting held on 26.02.2019, and the Sponsoring Authority was apprised of the need to gather further evidence connected with the offences of smuggling of contraband items by the petitioner so as to consider the proposal in future. In this regard, letters dated 7.3.2019, 23.4.2019, 31.5.2019, 6.9.2019, 5.12.2019 and 2.1.2020 were sent to the Sponsoring Authority. The proposal was reconsidered by CSC in its meeting held on 05.02.2020 for its disposal, and that proposal was disposed off. The disposal was communicated to the Sponsoring Authority vide letter dated 13.2.2020. Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity and the passing of Detention Order, the order of detention is not vitiated if the delay is satisfactorily explained. The following extract of the judgment in Licil Antony (supra) is relied upon by the respondents: 7. Mr Raghenth Basant, learned counsel for the appellant submits that there is inordinate delay in passing the order of detention and that itself vitiates the same. He points out that the last prejudicial activity which prompted the detaining authority to pass the order of detention had taken place on 17-11-2012; whereas the order of detention has been passed on 6-5-2013. He submits that delay in passing the order has not been explained. 8. Mr. M.T. George, learned counsel appearing on behalf of the respondents does not join issue and admits that the sponsoring authority wrote about the necessity of preventive detention in its letter dated 17-12-2012 for the prejudicial activity of the detenu which had taken place on 17-11-2012 and the order of detention was passed on 6-5-2013 but this delay has sufficiently been explained. He submits that mere delay itself is not sufficient to hold that the order of detention is illegal. 9. We have given our thoughtful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... faction of the detaining authority or that such subjective satisfaction was not genuinely reached. Taking of such a view would not be warranted unless the court finds that the grounds are stale or illusory or that there was no real nexus between the grounds and the impugned order of detention. In that case, there was no explanation for the delay between 2-2-1987 and 28-5-1987, yet it could not give rise to 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 order of detention. (emphasis supplied) 22. Mr. Mahajan submits that the Supreme Court in Licil Antony (supra) was mindful of the ratio laid down in Rajinder Arora (supra), and yet held that delay in passing of Detention Order would not be fatal. He also submits that the facts of Rajinder Arora (supra) were completely different from the present case, since in the said case, the Detention Order was quashed on the ground of delay in execution of the Detention Order for which no reasonable explanation was tendered, and not on the ground of delay in pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court is satisfied that there are exceptional circumstances specified in Alka Subhash Gadia [1992 Supp (1) SCC 496 : 1992 SCC (Cri) 301]. The Court must be conscious and mindful of the fact that this is a suspicious jurisdiction i.e. jurisdiction based on suspicion and an action is taken with a view to preventing a person from acting in any manner prejudicial to certain activities enumerated in the relevant detention law. Interference by a court of law at that stage must be an exception rather than a rule and such an exercise can be undertaken by a writ court with extreme care, caution and circumspection. A detenu cannot ordinarily seek a writ of mandamus if he does not surrender and is not served with an order of detention and the grounds in support of such order. 26. Mr. Siddharth Agarwal, learned counsel on behalf of the petitioner, has argued that there is inordinate and unexplained delay in passing of the Detention Orders. In support of this submission, our attention is drawn to the fact that the petitioner was intercepted on the intervening night of 1st and 2nd February, 2019, and as per the arrest memo, he was apprehended on 3rd February, 2019. Yet, the Detention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich would further establish his involvement in the acts of smuggling. This led to issuance of summons to the petitioner dated 21.05.19, but the petitioner failed to appear. Hence, summons dated 06.06.19 was issued, in response to which the petitioner appeared on 12.06.19. The petitioner appeared, but claimed that he did not remember the password of his mobile phone. Hence forensic examination of the same could not be conducted. 29. Since the password to the mobile phone belonging to the petitioner could not be recovered, efforts were made to find a laboratory capable of unlocking and conducting forensic examination of the contents of the petitioner s mobile phone, even in absence of the password. Letter dated 20.11.19 was issued, informing the petitioner about the forensic examination to be conducted at DRI, Mumbai, on 25.11.19. The letter remained unserved since the petitioner could not be found at his given address. After the petitioner gave his new address, another letter dated 17.01.20 was issued informing him about the date of the forensic examination i.e. 20.01.20. The letter also mentioned that in case the petitioner, or his authorized representative does not appear on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de. The respondents have stated that, ultimately, it was found that the mobile phone of the petitioner could be unlocked at the Cyber Laboratory of DRI, Mumbai. The respondents have stated that DRI, Mumbai is not a part of Air Customs. Thus, the submission that the respondents ought to have been aware of the existence of its facility at DRI, Mumbai to unlock the mobile phone of the petitioner, cannot be accepted on the basis of assumptions that the petitioner would like us to draw. The petitioner was sent a letter dated 20.11.2019 informing that Forensic Examination of his mobile phone would be conducted at DRI, Mumbai on 25.11.2019. That letter could not be served on the petitioner, since he was not found residing on the given address. The fact that the petitioner did not intimate the change of his address or his definite address where he could be found, itself shows that the conduct of the petitioner was evasive. The petitioner was sent another letter dated 17.01.2020 at his new address in Ramesh Nagar informing him that forensic examination of his mobile phone would be undertaken at DRI, Mumbai on 20.01.2020. He was put to notice that, in case, he did not appear, either himsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the prejudicial activity in which the petitioner was found involved on 1-2.02.2019 and the purpose and object of detention, when the detention order was passed on 05.06.2020, was broken. Mere passage of time between the date of the prejudicial activity and the date on which the detention order came to be passed when the said passage of time has been sufficiently explained by the respondents, cannot lead to the definite conclusion with regard to the snapping of the nexus between the two. 35. Mr. Agarwal has sought to rely upon the judgement of Sumita Dev Bhatacharya (supra) where this court had proceeded to quash the Detention Order on the ground of gross delay in passing of the Detention Order, since the delay remained to be unexplained from the counter affidavit and submission of the Respondent Authorities. There cannot be any hard and fast rule in relation to the time period within which the order of detention should necessarily be passed from the date of discovery of the continued involvement of the detenue in the prejudicial activity. Each case would have to be examined on its own merits both in relation to the involvement of the detenue/ proposed detenue, its nature and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y found the evidence against him to be sufficient to proceed against him in 2019 itself, which resulted in the passing of the Detention Order dated 11.03.19 against him. To justify the preventive detention of the petitioner in the assessment of the Detaining Authority, the Respondents had to collect evidence against the present petitioner, including recovering the relevant data from his mobile phone instrument, which took considerable time for reasons attributable primarily to the petitioner himself. 37. In our recent decision in Mohd. Nashruddin Khan v. Union of India Ors, W.P.(CRL). Nos. 786/2020, decided on 11.09.20, we have rejected similar arguments on behalf of the petitioners, relying on Licil Antony (supra) and Muneesh Suneja (supra). The relevant paragraph is reproduced hereinbelow: 69. In our view, the aforesaid satisfactorily explains and justifies the time consumed in mooting the proposal for detention of the petitioners under the COFEPOSA Act and for consideration of the said proposal, firstly, by the Central Screening Committee, and thereafter, by the Detaining Authority. The time lapse, in our view, is not such as to lead to the inference that the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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