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TMI Blog2021 (4) TMI 1248X X X X Extracts X X X X X X X X Extracts X X X X ..... these rights jealously. It is our duty and privilege to see that rights which were intended to be fundamental are kept fundamental and to see that neither Parliament nor the executive exceed the bounds within which they are confined by the Constitution when given the power to impose a restricted set of fetters on these freedoms; and in the case of the executive, to see further that it does not travel beyond the powers conferred by Parliament. We are here to preserve intact for the peoples of India the freedoms which have now been guaranteed to them and which they have learned through the years to cherish, to the very fullest extent of the guarantee, and to ensure that they are not whittled away or brought to nought either by Parliamentary legislation or by executive action." Vivian Bose. J. in Ram Singh v. State of Delhi AIR 1951 SC 270 1. We are in these writ petitions concerned with the personal liberty of detenues under the COFEPOSA Act. Their relatives have come forth with these petitions seeking their immediate release through the issuance of a writ of Habeas Corpus. Inasmuch as the learned counsel for the petitioners as well as the respondents advanced lengthy arguments be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Part III. This was designed to fulfill the aspiration of the Indian people to enjoy the same extent of personal freedom in India, as were enjoyed by their colonial masters in England. More importantly, the thrust of the protection of fundamental rights is in respect of each individual so as to bring about an egalitarian society where all citizens were equally free. Liberty is therefore no longer the sole preserve of a select few in society. The guarantee against violation of fundamental rights is achieved not only through negative obligations imposed on the State, not to interfere with the liberties of citizens, but also through the positive obligation imposed on the State to protect the citizens rights from encroachment by society. Preventive Detention-a jurisdiction of suspicion: 5. Art. 21 of our Constitution states that no person shall be deprived of his life or personal liberty except according to procedure established by law. As an express limitation on legislative power, the Article envisages that the word "law" contained therein has the same meaning as the American phrase "due process of law", meaning thereby a law which hears before it condemns, which proceeds upon inq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly do so, but only in accordance with the provisions of the constitution and the law, and if there is a breach of any such provision, the rule of law requires that the detenu must be set at liberty, however wicked or mischievous he may be. It is therefore that when an application for a writ of Habeas corpus is filed before us, we feel duty bound to satisfy ourselves that all the safeguards provided by the law have been scrupulously observed, and the citizen is not deprived of his personal liberty otherwise than in accordance with law. While considering such applications, our courts do not follow strict rules of pleading, and often relax the rigour of the evidentiary rules governing burden of proof. The detaining authority, on the other hand, is called upon to place all materials before the court to show that the detention is legal and in conformity with the mandatory provisions of the law authorizing such detention. Preventive Detention-Procedural Safeguards: 7. Art. 22(4) of our constitution mandates that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless an Advisory Board constituted in accordance wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds of detention, without any delay, flows directly as a necessary corollary from the right conferred on the detenu to be afforded the earliest opportunity of making a representation against the detention, because unless the former right is available, the latter cannot be meaningfully exercised. If the grounds of detention, as above, were not furnished to the detenu within the time permitted under the law, the continued detention of the detenu would be illegal and void. [Smt. Icchu Devi Choraria v UOI & Ors - 1980 (4) SCC 531; Ramachandra A Kamat v UOI & Ors - 1980 (2) SCC 270] 10. We believe in this connection that the reference to 'grounds of detention' in Art. 22(5) of our constitution, as well as in S. 3 of the COFEPOSA Act, must be taken as alluding to the train of thought in the detaining authority, leading from a consideration of the offensive acts/omissions attributed to the detenu, to the formation of the opinion that the detenue ought to be detained in order to prevent the commission of prejudicial acts in future. An effective communication of the grounds for detention must therefore include a communication of the reasons that weighed with the detaining auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al detention. This is not to say that the court would substitute its opinion for that of the detaining authority or objectively assess the material considered by the said authority. The court would only ascertain as to whether any relevant material existed, on the basis of which the detaining authority could have arrived at his subjective satisfaction through a proper application of mind to the said material. A reviewing authority can satisfy itself of the application of mind by the detaining authority only by looking at the reasons furnished for the detention by the said authority. Unexplained delay vitiates detention: 12. The procedural safeguards envisaged for the detenu also mandate that the communication of the grounds of detention, as also the consideration of the representation of the detenu against the order of detention, have to be within the time prescribed by the statute. An unexplained delay at any stage, commencing from the passing of the detention order to its execution and thereafter, during the stages of making of the representation by the detenu and a consideration of the same by the detaining authority, sponsoring authority and the advisory board, will vitiate t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity with the power under the law. The board, on the other hand, considers the representation and the case of the detenu to examine whether there is sufficient cause for the detention. In that sense, the consideration by the board is an additional safeguard and not a substitute for consideration of the representation by the Government. [10 K. M. Abdullah Kunhi and B.L. Abdul Khader v UOI - 1991 (1) SCC 476; Ankit Ashok Jalan v UOI & Ors - 2020 (16) SCC 127] 14. Bearing in mind the aforesaid principles, we proceed to examine the facts in the individual cases before us. The fate of the detenues, and their claim for restoration of their personal liberty, will depend upon our findings on the following issues viz. (i) Whether there was a significant lapse of time between the last prejudicial act of the detenu and the order of detention passed in relation to him? An unexplained delay in passing the order of detention would cast doubts on the genuineness of the subjective satisfaction of the detaining authority that informed the order of detention. (ii) Whether there was any significant and unexplained delay in the execution of the detention order through an arrest of the detenu? An une ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 'the DRI'). 17. The basic facts & the submissions of the learned counsel for the parties in each of the Writ Petitions, the contentions raised, the precedents relied upon and our findings on each of the contentions are as follows: W.P.(Crl.) 255 of 2020: 18. The petitioner is the mother of one Mohammed Mahasin who has been detained pursuant to Ext. P1 order of detention issued by the 2nd respondent on 31-03-2017. Though the detention order was issued on 31-03-2017, the aforesaid Mohammed Mahasin (hereinafter referred to as 'detenue') was arrested and detained under that order only on 12/13-07-2020. On 15-02-2016 the detenue was apprehended at Bangalore with about 45 cartons of imported cigarettes having a market value of Rs. 40,50,000/- and an international price/value of Rs. 19,44,000/-. The statement recorded from the detenue at that time revealed that the said consignment of cigarettes had been imported through Cochin Port after concealing the same in a consignment of gypsum powder. The detenue was granted bail on 16-02-2016, which came to be cancelled on 19-02-2016 on account of non-compliance of bail conditions. On being further remanded, the detenue remai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 31-03-2017 was executed only on 12-07-2020 is sufficient to establish that the very purpose of passing an order of preventive detention became unattainable since such orders are issued to prevent the detenue from engaging in prejudicial activities for the period specified in the order of detention. He would submit that no proper explanation has been given regarding the inordinate delay in executing the order of detention. He refers to the judgment of the Supreme Court in Indradeo Mahato v. State of West Bengal AIR 1973 SC 1062 to contend that a long gap between the order of detention and the actual detention shows that there was no real and genuine apprehension that the detenue was likely to act in a manner prejudicial to public interest in the manner specified under Section 3 of the Act. He refers to the judgment of the Bombay High Court in Smt. Najama v. State of Maharashtra and others 1996 (1) Bom.CR 181 to contend that the failure to apprehend the detenue within a reasonable time from the order of detention, and the casual and lethargic manner in which the authorities have attempted to serve the order of detention, shows that there was a complete absence of reasons to curtail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under Article 22(5) of the Constitution of India. The learned counsel then contends, with reference to the judgment of a Division Bench of the Madras High Court in A. Vellanai Pandian v. Collector, that non-placing of materials before the Advisory Board (in particular the order-in-original following the adjudication of the Bangalore incident that took place on 15-02-2016) vitiated the order of detention. 22. After the hearing in this case was concluded, the learned counsel for the petitioner placed an argument note in which certain additional contentions have been raised. In particular these additional contentions are (i) that there is a delay of nearly 4 ½ years in initiation of prosecution against the detenue; (ii) that non-cancellation of the bail order vitiates the order of detention; (iii) that even in the absence of a specific representation addressed to the detaining authority, the representation before the advisory board ought to have been considered and disposed of by the detaining authority; (iv) the failure to supply certain pages of the bail order which is relied upon document vitiates the order of detention; and (v) that the delay in disposal of Exhibit P 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aji Bora (supra) also placed reliance on its earlier judgment in Bhawarlal Ganeshmalji v. State of Tamil Nadu and others 1979 Crl. LJ 462 where it was held that, insofar as an absconding detenue is concerned, the live link between the incident and the purpose of detention was not snapped but strengthened on account of the conduct of the detenue. In reply to the contention of the learned counsel for the petitioner, that the authorities could have served the grounds of detention immediately on the issuance of Exts. P1 & P2, the learned counsel submits that the time for serving the grounds of detention had been validly extended though Ext. P3 on account of the COVID-19 pandemic and that, unlike in the case of Ext. P1 & P2, the contents of the grounds of detention could not have been made known to the detenue immediately on the serving of Exts. P1 & P2 or within the period of 5 days as contemplated in Section 3(iii) of the COFEPOSA Act. 24. The learned Government Pleader appearing for the State of Kerala vehemently opposed the contentions raised on behalf of the detenue and detailed the steps taken by the authorities to execute the order of detention. He would submit that the delay in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order of detention and its execution would in certain cases demonstrate that there was no live link between the alleged prejudicial activity and the requirement of keeping someone in preventive detention to prevent him from engaging in similar prejudicial activity. Our reading of the precedent suggests that this is an aspect that has to be determined on the facts of each case. In the facts of the present case, it is not disputed that for the entire period from the date of the detention order, until and up to the date of execution of the detention order, the detenue was abroad. It is clear from the affidavits filed by the respondents that efforts were taken to execute the order of detention and that steps as contemplated under Section 7(1)(b) of the COFEPOSA Act were initiated. Under such circumstances, we fail to see how there was any unexplained delay in the execution of the detention order in the instant case. Further, it is trite that an absconding detenue cannot cite a delay in the execution of the order to contend that the detention order must be quashed on that ground. 27. The next question to be considered is whether there was any delay in serving the grounds of detention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bail order vitiates the order of detention is based entirely on the decision of the Supreme Court in P.M. Hari Kumar v. Union of India (1995) 5 SCC 691. A reading of the judgment in Harikumar (supra) suggests that the decision was one made with reference to the peculiar facts of that case. We cannot read the said judgment as having laid down any absolute principle that failure to apply for, or obtain, cancellation of the bail obtained by the detenue in regular criminal proceedings vitiates the order of detention. We therefore reject this contention. 30. The contention that even in the absence of a specific representation addressed to the detaining authority, the representation before the advisory board ought to have been considered and disposed by the detaining authority also does not appeal to us, in the facts and circumstances of this case. Amir Shad Khan v. L. Hmingliana (1991) 4 SCC 39, on which reliance is placed in support of this contention, was a case where the detenue had made a request to the Detaining Authority to take out copies of his representation and forward them to the Central Government for consideration. It was held that the failure to do so vitiated the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etention has to be considered and decided by the detaining authority and the consideration by the Advisory Board was an additional requirement implied by reading together clauses 4 and 5 of Article 22. In the said case the Central Government was the detaining authority and, therefore, in that case the Court held that the representation though may not have been addressed to the Advisory Board but the same was also required to be considered by the Central Government. We fail to understand how the aforesaid ratio can be held to be applicable in the present case where the detaining authority was the Lt. Governor of Delhi. In such a case if the representation had not been addressed to the Central Government even though indicated in the grounds of detention then it cannot be said that any representation made by the detenu to the Advisory Board ought to have been considered by the Central Government. That apart the detenu also did file a representation to the Central Government on 22-6-1994 and the same was disposed of by the Central Government on 12-7-1995 and, therefore, in the said premises, the question of infraction of the constitutional right of the detenu because of the representat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrespective of the fact whether the representation is addressed to the detaining authority or to the Advisory Board or to both. The mode of address is only a matter of form which cannot whittle down the requirement of the constitutional mandate in Article 22(5) enacted as one of the safeguards provided to the detenu in case of preventive detention." After referring to the decision of the Constitution Bench in Kamleshkumar Ishwardas Patel (1995) 4 SCC 51 it was held:- 26. The decisions of this Court whereupon reliance has been placed by the High Court, therefore, nowhere state that copy of the representation made by the detenu to one authority must be placed before all the authorities and all such authorities also should consider and pass orders on those representations, though really not made to any one of them." Coming to the facts of this case, we must notice that as in Jasbir Singh (supra), the detenue in this case had made separate representations to the detaining authority and to the Central Government. That apart we also notice that the representation before the advisory board was not made by the detenue but by the petitioner in this case (mother of the detenue). Neither t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the facts of the present case, satisfies the requirements of Article 22(5) of the Constitution of India. 32. The next issue is whether Ext. P.12 & P.13 representations made by the petitioner, after the matter was considered by the Advisory Board, were expeditiously considered by the authorities concerned. This is also an issue not pleaded in the Writ petition. However, for reasons already indicated we are inclined not to apply strict rule of pleadings in considering a matter relating to the personal liberty of a citizen. The learned counsel for the petitioner submits that the detenue had submitted Ext. P12 representation to the 1st respondent and exhibit P 13 representation to the 2nd respondent. The representations are dated 14-10-2020. They have been considered and disposed of by the 2nd respondent on 4-11-2020 and by the 1st respondent, on 6-11-2020. In so far as the representation to the 1st respondent is concerned, that representation was received by the 1st respondent through e-mail, on 15-10-2020. Comments of the detaining authority and the sponsoring authority were sought on 16.10.2020. The sponsoring authority provided its comments on 23-10-2020 and the detaining auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gularly engaged in the smuggling of gold into India. On the basis of a lookout notice, Abdussameem was arrested on 4-3-2019 while attempting to fly out of Bangalore Airport. A raid carried out at the residential premises of Abdussameem resulted in the recovery of certain documents/diaries that contained details of gold smuggled into India from 25-12-2018. The diary/records were apparently maintained by Faisal, brother of Abdussameem. Both Abdussameem and Faisal were questioned on 4-3-2019/5-3-2019 and their statements were recorded. Their arrest was recorded on the evening of 5-3-2019, and they were produced before the competent Magistrate at Thalassery, on 6-3-2019. On 23-3-2019, they were released on bail by the Additional Chief Judicial Magistrate (Economic Officers), Ernakulam. For the purposes of this case it would be relevant to note that in July, 2019, applications were filed by both Abdussameem and Faisal for modification of the bail conditions. On 18-7-2019, orders of detention under the COFEPOSA Act were issued against both Abdussameem and Faisal. It is stated that, though a counter affidavit was filed by the DRI officials on 23-7-2019, resisting the application filed for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered in terms of the law laid down in Ankit Ashok Jalan (supra). By Ext. P15 order dated 16-9-2020, Faisal was informed that, in view of the opinion of the Advisory Board, the order of detention had been confirmed in terms of Section 8(f) of the COFEPOSA Act (See Ext. P15 in W.P.(Crl.) No. 279/2020). The orders of detention issued against Abdussameem and Faisal are challenged in separate writ petitions (W.P.(Crl.) No. 279/2020 relates to the detention of Faisal and W.P.(Crl.) No. 280/2020 relates to the detention of Abdussameem). Since the issues and contentions in these two cases are similar we deem it appropriate to consider them together. 37. The first ground of challenge to the order of detention is that there was non-supply of certain relied upon documents that vitiates the order of detention. The learned counsel for the petitioner submits that the request made by both Abdussameem and Faisal for supply of documents in order to make an effective representation was rejected without any application of mind. In the case of Faisal, the request for documents was considered as a representation under Art. 22(5) of the Constitution of India and rejected by Ext. P8 in W.P. (Crl.) No. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in which the Supreme Court held that the communication of grounds and materials cannot be done in a casual manner; (iv) Ramchandra A. Kamat v. Union of India and others (1980) 2 SCC 270, where the Supreme Court held that in order to make additional representation, the detenu is entitled to obtain information relating to the grounds of detention, and that, if there is undue delay in furnishing statements and documents referred to in the grounds of detention, the right to make an effective representation is denied; (v) Smt. Icchu Devi Choraria v. Union of India and Others (1980) 4 SCC 531, where it was established that the detenu is entitled not merely to a bare recital of the grounds of detention, but copies of the documents, statements and other materials relied upon in the grounds of detention, in order to constitute a proper compliance with clause (5) of Art. 22 and sub-section (3) of Section 3 of the COFEPOSA Act and that, if such materials were not supplied, the order of detention would be vitiated; (vi) Mangalbhai Motiram Patel v. State of Maharashtra and others AIR 1968 SC 1509, where it was held, following Ramchandra A. Kamat (supra), that all the documents relied upon, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detention and not with all materials (relied upon documents etc.) in order to enable him to make an effective representation. He submits that this is clear from paragraphs 7 and 8 of the judgment in the aforesaid case, where a distinction has been made by the Supreme Court in respect of a request for supply of documents referred to in the grounds of detention, and other documents requested for by the detenu. It is also pointed out that, in paragraph 10 of the aforesaid judgment, it is clarified that, for the purposes of making an additional representation, the detenu need have only copies of statements and documents relied on in the grounds of detention and not all the documents that are referred to in the grounds of detention. He therefore submits that, following the development of the law on the subject, decisions such as Atma Ram (supra) & Ramchandra A. Kamat (supra) must not be read in the manner that the learned counsel for the petitioner wants us to read it. The learned counsel has placed reliance on L.M.S Ummu Saleema v. B.B. Gujaral and Others (1981) 3 SCC 317, Radhakrishnan Prabhakaran v. The State of TamilNadu and Others (2000) 9 SCC 170, State of TamilNadu and Others v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; Batcha, Talwandi & J. Abdul Hakeem (all of which are referred to supra), on which considerable reliance was placed by the learned counsel for the respondents, also do not take a different view. In the facts of these cases, the request for documents is Exhibit P7 in WP (Crl.) 279/2020 and Exhibit P6 in WP (Crl.) 280/2020. These representations are substantially similar in nature save that certain additional materials are also sought for in Exhibit P6 in WP (Crl.) 280/2020. Reference to the grounds of detention supplied to each of the petitioners in these cases (Ext. P.4 in WP (Crl.) 279/2020 and Exhibit P3 in WP (Crl.) 280/2020) show that they begin with the narration of the facts presented by the sponsoring authority. The consideration by the detaining authority is contained in paragraphs 2 to 13 of Ext. P4 in WP (Crl.) 279/2020 and again in paragraphs 2 to 13 Exhibit P3 in WP (Crl.) 280/2020. Keeping in mind the fact that the law requires only the subjective satisfaction of the detaining authority, and keeping in mind the fact that the jurisdiction to detain under a law providing for preventive detention is 'a jurisdiction of suspicion' we have examined Ext. P4 in WP (Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial activities and the purpose of detention has clearly snapped. The learned counsel places reliance on S.K. Serajul v. State of West Bengal (1975) 2 SCC 78; Manju Ramesh Nahar v. Union of India and Others (1999) 4 SCC 116; Kadhar Naina Ushman v. Union of India and Others (2008) 17 SCC 725; Saeed Zakir Hussain Malik v. State of Maharashtra and Others (2012) 8 SCC 233 and T.A. Abdul Rahman v. State of Kerala and others (1989) 4 SCC 741 where it has been held that the delay in execution of the detention order was found to vitiate the order of detention. The learned counsel for the petitioners would also submit that there was no mention about the order of detention in the counter affidavit filed in the applications for modification of bail conditions, even though the said counter affidavit was filed after the date on which the detention orders were issued. The learned counsel for the petitioners would further submit that the fact that the summons issued by the customs authorities had been duly served on the detenues shows that they were very much available at their house and were not absconding. He says that the lackadaisical attitude in the execution of the detention order clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 7 of the COFEPOSA Act, was issued on 21-11-2019. This was followed by a paper publication issued on 29-1-2020. Summons' for appearance were issued on 25-2-2020, 28-2-2020 & 3-3-2020. Admittedly, these summons' were duly served although the aforesaid Faisal failed to respond to them. On 9-3-2020, an application for the cancellation of bail was also filed before the Economic Offences Court and the order was executed on 1-7-2020. In the case of the detenue in W.P. (Crl.) No. 279/2020 (Abdusameem), the order of detention is dated 18-7-2019. A gazette notification as contemplated under Section 7 of the COFEPOSA Act, was issued on 21-11-2019. This was followed by a paper publication issued on 29-1-2020. A lookout circular was issued on 5-2-2020. Summons' were issued for appearance on 25-2-2020, 28-2-2020 & 3-3-2020. Admittedly these summons' were duly served but the aforesaid Abdusameem failed to respond to them. On 9-3-2020 an application for the cancellation of bail was also filed before the Economic Offences Court and on 10-3-2020, a report under Section 7(1)(a) of the COFEPOSA Act was also filed before that Court. The order of detention was executed on 29-5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs (1971) 3 SCC 896, which holds that the delay of 16 days is fatal unless there is justifiable explanation when the personal liberty of citizens is in question and the person concerned has been detained without trial, on Venugopal v. State of Kerala and Others 2015(4) KHC 601, where it was held by a Division Bench of this Court that the delay from the date of submission of the representation to the date of disposal and communication of the same to the detenu should be explained by the detaining authority, on Ratten Singh and Another v. State of Punjab and Others (1981) 4 SCC 481, where it was held that the delay was occasioned in the hands of the Jail Superintendent in forwarding a representation to the Central Government, vitiated the order of detention, on Pebam Ningol Mikoi Devi v. State of Manipur and Others (2019) 9 SCC 618, where seven days in forwarding the representation to the Central Government was found to vitiate the order of detention, on Vijay Kumar v. State of Jammu and Kashmir and Others (1982) 2 SCC 43, where again delay in 14 days in transmitting the representation and 19 days in consideration was held as delay for which there was no satisfactory explanation resu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of on the same day i.e. 13-7-2020. Abdusameem thereafter filed Ext. P14 representation before the Central government which was received by the officers concerned on 18-8-2020. Comments were sought regarding the same from the sponsoring authority on 20-8-2020. The comments of the sponsoring authority were received on 28-8-2020 (Friday) at 5.51 P.M. The representation was rejected by a memorandum dated 31-8-2020 (Ext. P.18). Ext. P.15 representation addressed to the detaining authority was received by that authority on 13-8-2020 through e-mail. Comments were sought from the sponsoring authority on 14-8-2020. The hard copy of the representation was received on 18-8-2020 by the detaining authority. The comments from the sponsoring authority were received on 23-8-2020 (a Sunday). The representation was rejected on 26-8-2020 through Ext. P.17. The request for parole for Abdusameem was received by the competent officers of the central government on 18-8-2020. Comments were requested for from the jail authority on 20-8-2020. The comments of the Jail authorities were received on 23-8-2020. The request was disposed of on 25-8-2020 a memo to this effect was issued on 26-8-2020. 47. It is s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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