9911796707
TMI Blog2021 (10) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... ) and no goods were in fact loaded for onward export, though duty drawback and benefit under the IGST Act are alleged to have been availed. The other dates contained in the time-chart from 11.12.2018 all the way upto the passing of the impugned detention order dated 15.01.2021, which order was served upon the petitioner on 23.01.2021, do not disclose any other prejudicial activity which the petitioner can be said to have undertaken after 11.12.2018. Since, as the record discloses, the last act which the petitioner undertook, and which may amount to prejudicial activity, was on 11.12.2018, but the detention order was passed more than 02 years later on 15.01.2021, it is evident that the live-link or causal connection between the petitioner s preventive detention, meant to forestall the petitioner from indulging in any prejudicial activity, can surely be said to have snapped - the detention order passed on 15.01.2021 and served upon the petitioner on 23.01.2021 cannot be said to be validly based upon alleged prejudicial activity undertaken by the petitioner on 11.12.2018. A gap of more than 02 years between the last alleged prejudicial activity undertaken by the petitioner cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EPOSA Advisory Board is stated to have taken place in Kolkata on 05.03.2021; which however, was adjourned to 24.03.2021. While the writ petition was filed on 13.03.2021, as per the counter affidavit dated 12.04.2021 filed by the respondents, the Advisory Board has rendered a report dated 26.03.2021, in which it has opined that there exist sufficient grounds for the petitioner s detention; and based on that opinion and other material facts, detention order dated 15.01.2021 has been confirmed by the Ministry vid its order 08.04.2021. 5. Other things apart, the petitioner is stated to have suffered a severe brain stroke on 31.10.2019 resulting in hemiplegia right posterior cerebral artery infarct with dystonic spasm left side , which would commonly be understood as paralysis of the left side of the body, leaving him physically incapacitated. Petitioner s Contentions 6. The principal grounds of challenge to the detention order, as canvassed in the petition and in the submissions made by Mr. Neeraj Jain, learned counsel appearing for the petitioner, are the following : a) That though the detaining authority has relied upon statements allegedly made by several persons, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , from the time the petitioner suffered a stroke on 31.10.2019, his medical condition is in any case such that he could not have indulged in any prejudicial activity at all; and the petitioner ought not to be placed under preventive detention in his present medical state. 7. In support of his case, the petitioner has relied upon the following judicial precedents: (i) Khaja Bilal Ahmed, v. State of Telangana and Others cf. 2019 SCC OnLine SC 1657; paras 20-22, on the issue of delay in passing of the detention order, based on stale material; (ii) Licil Antony v. State of Kerala Another cf. (2014) 11 SCC 326; paras 10-11 and 19, on unexplained delay in passing of the detention order; (iii) K. Mayilammal v. The State of Tamil Nadu cf. (2012) SCC OnLine Mad 160; para 10, on the passing of the detention order after a long lapse of time; (iv) M. Kakkammal. v. The Commissioner of Police Another cf. (2009) 2 TNLR 121 (Mad); para 6 on the delay of passing the detention order; (v) Sama Aruna v. State of Telangana Another cf. (2018) 12 SCC 150; paras 16 - 26, on the issue of stale grounds for passing detention order, subjective satisfac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound to have been loaded onto a vehicle, which was registered as a tractor and not a truck; d) That all branch offices of M/s Buller Trades, except the main office in Delhi, were found to have fake or wrong addresses, meaning thereby, that these branches did not exist; e) That summonses were issued to the petitioner on 04 occasions at the address of one of his firms M/s Global Impex, calling him to appear before the concerned officer on 25.06.2019, 16.07.2019, 22.08.2019 and 17.09.2019 but the petitioner failed to comply with such summons, consequent whereupon a criminal complaint was also filed against the petitioner under section 174 of the Indian Penal Code, 1860 ( IPC ); f) That the petitioner was operating under two identities, Naveen Kasera and Naveen Agarwal, which is indicative of his mala-fid approach towards the law. 9. In support of their case, the respondents have placed reliance upon the following judicial precedents : (i) Union of India v. Muneesh Suneja cf. (2001) 3 SCC 92; para 7, on the point that mere delay in passing the order of detention or its execution is not fatal; (ii) Licil Antony v. State of Kerala Another cf. (2014) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attempt to avail duty drawback and benefit under the IGST Act, that would prima-facie amount to smuggling, and consequently to prejudicial activity under the law. This court finds the foregoing explanation sufficient to proceed further to decide the validity of the detention order, without however expressing any final opinion on whether the petitioner s acts and omissions amount to smuggling or to prejudicial activity under the law. On Delay in Passing Detention Order : 12. Before we assess the merits and demerits of the detention order in the petitioner s case, it would be useful to summarise the settled position of law in relation to preventive detention. The following decisions afford a brief conspectus of the legal landscape in that behalf : 12.1. In T.A. Abdul Rahman (supra), the Supreme Court observed as under in relation to delay in issuing a detention order : 10. The conspectus of the above decisions can be summarised thus: The question whether the prejudicial activities 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 activities and the purpose of detention i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able explanation as to why such a delay has occasioned. 28. It is also the duty of the court to investigate whether causal connection has been broken in the circumstance of each case. We are satisfied that in the absence of proper explanation for a period of 15 months in issuing the order of detention, the same has to be set aside. Since, we are in agreement with the contentions relating to delay in passing the detention order and serving the same on the detenue, there is no need to go into the factual details. (emphasis in original) 12.3. In Licil Antony (supra), the Supreme Court further explained that though mere delay is not ground enough to set-aside a detention order, but if detention is premised on grounds that are stale or illusory or lack real nexus with the detention, then the detention order would be liable to be set-aside, in the following words : 19. The conclusion which we have reached is in tune with what has been observed by this Court in M. Ahamedkutty v. Union of India [(1990) 2 SCC 1 : 1990 SCC (Cri) 258]. It reads as follows: (SCC p. 8, para 10) 10. Mere delay in making of an order of detention under a law like COFEPO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o engage in such activities in the immediate future can be taken into account. In Golam Hussain v. State of W.B. [ Golam Hussain v. State of W.B., (1974) 4 SCC 530 : 1974 SCC (Cri) 566 ] this Court observed as follows : (SCC p. 535, para 5) 5. No authority, acting rationally, can be satisfied, subjectively or otherwise, of future mischief merely because long ago the detenu had done something evil. To rule otherwise is to sanction a simulacrum of a statutory requirement. But no mechanical test by counting the months of the interval is sound. It all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation. We have to investigate whether the causal connection has been broken in the circumstances of each case. Suffice it to say that in any case, incidents which are said to have taken place nine to fourteen years earlier, cannot form the basis for being satisfied in the present that the detenu is going to engage in, or make preparation for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in this connection must be grounded on material which is of rationally probative value. * * * * * * 21. Incidents which are old and stale and in which the detenu has been granted bail, cannot be said to have any relevance for detaining a citizen and depriving him of his liberty without a trial. This Court observed the following in Khudiram Das [ Khudiram Das v. State of W.B., (1975) 2 SCC 81 : 1975 SCC (Cri) 435] : (SCC p. 92, para 9) 9. The grounds on which the satisfaction is based must be such as a rational human being can consider connected with the fact in respect of which the satisfaction is to be reached. They must be relevant to the subject-matter of the inquiry and must not be extraneous to the scope and purpose of the statute. If the authority has taken into account, it may even be with the best of intention, as a relevant factor something which it could not properly take into account in deciding whether or not to exercise the power or the manner or extent to which it should be exercised, the exercise of the power would be bad. Partap Singh v. State of Punjab [Partap Singh v. State of Punjab, AIR 1964 SC 72]. If there are to be found in the stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. To address the above aspects, we called upon the respondents to place on record a tabulated summary of the timeline of important dates and events in the present case, to assess whether there was such a live-link and causal connection; and to be sure that the grounds for detention are not stale or illusory and that they bear real nexus with the petitioner s detention. 15. Consequently, the respondents filed a time-chart dated 04.08.2021 setting-out the dates and events that give a complete picture of the goings-on in the matter, from the very first instance when DRI Officers started looking into the questionable exports that the petitioner is alleged to have engaged in. 16. A close and careful perusal of the time-chart discloses that the 'actual activity which the petitioner is alleged to have done was of having exported certain goods only on-paper vid shipping Bill No. 9551237 dated 11.12.2018 , whereby, as the allegation goes, the vehicle carrying goods was found to have been a tractor (presumably, as opposed to a truck or other goods carrier) and no goods were in fact loaded for onward export, though duty drawback and benefit under the IGST Act are alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner cannot be the basis for a justifiable apprehension that the petitioner would indulge again in similar prejudicial activity, to prevent which he should be preventively detained. 21. Preventive detention being drastic State action based only upon suspicion arising from a person s past activity, can be allowed, as the settled legal position mandates, only if there is a live, causal link between a person s past activities and the need for passing of a preventive detention order. A preventive detention order is unsustainable on stale or illusory grounds, which have no real nexus with the past prejudicial activity. Delay in the passing and execution of a preventive detention order not only defeats the very purpose of such order, but more importantly, creates a doubt as to the necessity of adopting such a harsh measure against an individual, whereby the individual s liberty is curtailed on suspicion alone. 22. In the above view of the matter, we do not think that detention order dated 15.01.2021 answers the requirements of the law for preventively detaining the petitioner. 23. We accordingly quash and set-aside order dated 15.01.2021; and we direct that the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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