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TMI Blog2022 (11) TMI 937X X X X Extracts X X X X X X X X Extracts X X X X ..... s reached the possession of the Sponsoring Authority. Also, the learned counsel for the petitioner did not point out any fact or circumstance suggesting that on account of inaction on the part of the Sponsoring Authority such records/documents did not come to their possession. The contention of the petitioner regarding non submission of all the four documents cannot be countenanced. None of such documents was in the possession of the Sponsoring Authority. The petitioner could not substantiate that in the absence of such documents, the subjective satisfaction arrived at by the Detaining Authority is vitiated at least prima facie - Ext.P1 order of detention is not liable to be set aside on the ground that the subjective satisfaction arrived at by the Detaining Authority is vitiated for want of consideration of the documents mentioned by the petitioner. The contention of the petitioner in that respect is rejected. Delay in passing the order of detention - HELD THAT:- The Detaining Authority after detailed consideration of all the relevant documents arrived at the conclusions constituting the grounds for detention and resultantly issued Ext.P1. Eight persons were ordered to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be supplied with the material documents on which the reliance is placed by the Detaining Authority for passing the detention order but the detention order will not be vitiated, if the document although referred to in the order is not supplied which is not relied upon by the Detaining Authority for forming its opinion or was made basis for passing the order of detention. Crux of the matter lies in whether the detenu's right to make a representation against the order of detention, is hampered by non-supply of the particular document. The contention of the learned counsel of the petitioner that Ext. P1 is liable to be abrogated for non-supply of the aforesaid documents and the consequent denial of the right of the detenu to make an effective representation is therefore devoid of merits and it is rejected. Delay in disposing the representations - HELD THAT:- The Central Government shall wait before considering the representation of the detenu till the report of the Advisory Board is received, if the representation is received after the case of the detenu has been referred to the Board. Whereas, the Detaining Authority who is a specially empowered officer shall consider and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied upon therein were communicated to the detenu. On receipt of the detention order and the grounds of detention, the detenu submitted representation dated 27.01.2022 to the Joint Secretary (COFEPOSA) and to the Central Government addressed to the Director General, Central Economic Intelligence Bureau. The representations were rejected on 04.02.2022 and 29.03.2022, respectively. Thereupon this Writ Petition under Article 226 of the Constitution of India has been filed, on behalf of the detenu, by his brother. 2. This writ petition was admitted on 08.04.2022. The learned Central Government Counsel entered appearance for respondent Nos.1 to 3. The Deputy Solicitor General of India took notice for the 4th respondent and the learned Government Pleader took notice for the 5th respondent. 3. A counter affidavit dated 19.05.2022 on behalf of respondent Nos.1 to 3 was placed on record by the Deputy Secretary to the Government of India, Central Economic Intelligence Bureau, Department of Revenue, Ministry of Finance. A counter affidavit dated 24.05.2022 for the 4th respondent was placed on record through Deputy Solicitor General of India. The petitioner has filed a reply affidavit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mation notice served , and no such person . During the period he filed an application before this Court for anticipatory bail. But the same was dismissed as withdrawn. 8. The Sponsoring Authority on 06.09.2019 submitted a recommendation for detention of 13 persons under Section 3(1) of the COFEPOSA Act stating to have involved in the smuggling transaction in question. The Detaining Authority on 27.09.2019 holding that there is propensity and potentiality for smuggling goods, abetting the smuggling of goods and dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods by 8 persons among them, issued an orders for their detention, one among whom is Sri. Abdul Hakkim P.P., the detainee herein. 9. The order of detention was not executed soon. Show cause notice dated 07.11.2019 issued to the detenu was received by his brother and father jointly. The postal authorities returned the summons with an endorsement Absent. Intimation to father . Notice asking the detinu to appear was published in the Official Gazette as well as News Papers having circulation in Malappuram and Thiruvananthapuram Districts. The detenu, despite issuing re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary and relevant documents were not placed before the detaining authority for consideration and therefore the subjective satisfaction recorded by the authority is on the wrong premises and vitiated. ii) The detaining authority took four months to pass the detention order. iii) Delay in execution of the order of detention. iv) Copies of all the relied upon and relevant documents were not furnished to the detenu. v) There was inordinate delay in disposing of the representations submitted by the detenu. Ground No. (i) - All relevant and necessary documents were not produced before the detaining authority. 13. In Gurdev Singh v. Union of India [(2002) 1 SCC 545] the Apex Court held that the subjective satisfaction arrived at by the Detaining Authority shall be on consideration of all the relevant materials placed before it by the Sponsoring Authority. In that case, the detainee had no case that the Sponsoring Authority did not place before the Detaining Authority any material in its possession which is relevant and material for the purpose and such material, if considered by the Detaining Authority, might have resulted in taking a different view in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ational Airport, Thiruvananthapuram is the most relevant document to establish the innocence of the detenu insofar as the alleged seizure was not at the exit gate as alleged instead, it was before Sri. Sareena Shaji and Sri. M. Sunil Kumar reached the customs clearance counter. It is contended that had those visuals been produced before the Detaining Authority there could not have been such a subjective satisfaction for the detention. Non-production of the visuals therefore is said to have vitiated Ext. P1. 17. Ext.P11 is a copy of representation said to have submitted by Smt. Sareena Shaji on 17.08.2019 to the Secretary, Ministry of Finance, Government of India as well as the Principal Director General of DRI, which allegedly contain retraction of the confessions she made before the DRI authorities. It is contended that non-consideration of Ext.P11 has also vitiated the subjective satisfaction arrived at by the authority. 18. The learned counsel would submit that the Principal Director General of DRI has considered all the relevant materials before taking a decision on the representation submitted by Sri. M. Sunil Kumar. Since alleged seizure of gold from the possession of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sri. M. Sunil Kumar was to declare possession of gold and take it back, and the seizure was before they reached the customs counter; the CCTV visuals of the exit counter would have relevance. 22. It may be noted that a declaration receipt made before Dubai Customs in respect of 24 Kgs. of gold bars was in the hand bag of Smt. Sareena Shaji, whereas the gold bars were seized from the hand baggage of Sri. M. Sunil Kumar. That alone is enough to negate the contention of the petitioner. Their dubious intention of concealing the gold in their possession is writ large from that fact itself. 23. A perusal of Exts.P2 and P3 would reveal that all the relevant documents sufficient to establish seizure of the gold from the possession of Sri. M. Sunil Kumar at the exit gate in the Airport have been placed before the Detaining Authority. Now, the allegation is regarding non production of CCTV visuals and three other documents which were never in the possession of the Sponsoring Authority. There is nothing on record to probabilise that those records/documents reached the possession of the Sponsoring Authority. Also, the learned counsel for the petitioner did not point out any fact or circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esentation was even submitted by Smt. Sareena Shaji, the contention of the respondents can only be believed. Further, in Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala [(1985) Supp SCC 144] the Apex Court held that if there are other facts independent of the confessional statement which can reasonably lead to the subjective satisfaction, non-production of the retracted confessional statement does not invalidate the order of detention. So, non-production of Ext. P11 at any rate does not affect the legality of Ext.P1 detention order. 26. It is further contended that at the time of production before the Magistrate, Smt. Sareena Shaji and Sri. Sunil Kumar complained against the DRI officials, but copies of such complaints were not submitted before the Detaining Authority or furnished to the detenu. In this regard, the submission of the respondents is that the complaints were not in writing or written down by the Magistrate and in the absence of such a document, the petitioner cannot have such a grievance. It is seen that Smt. Sareena Shaji and Sri. M. Sunil Kumar were sent for medical examination by the Magistrate since they complained of ill treatment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied delay. 29. In Waheeda Ashraf and others v. Union of India and others [ILR 2021 (3) Ker 751], this Court held by placing reliance on the judgment of the Apex Court in Malwa Shah v. State of West Bengal [(1974) 4 SCC 127] that delay in issuing the order of detention by itself is not fatal to the order. The contention of the petitioner in this regard is therefore rejected. Ground No. (iii) - Delay in execution of the order of detention. 30. The order of detention was passed on 27.09.2019. The date of detention is 28.12.2021. Certainly there is delay. The respondents explained the delay by contending that DRI officials took all possible efforts to apprehend the detenu. But only because he absconded from the process of law, the order of detention could not be executed. The respondents would contend that the Sponsoring Authority initiated steps for declaring the detenu absconding and the follow up steps of attachment of his property as provided in Sections 82, 83, 84, 85 and 87 of the Code as allowed under Section 7 of the COFEPOSA Act. From a perusal of the file, it is seen that the order directing surrender which obliges the detenu to appear before the police au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detention alleged by the Detaining Authority and avowed purpose of detention, namely, prevention of smuggling activities. The link is snapped if there is a long and unexplained delay between the date of order of detention and arrest of the detenu. In such cases, an order of detention can be struck down unless grounds indicate a fresh application of mind of the Detaining Authority to the new situation and changed circumstances. But where delay is not only adequately explained but is found to be the result of recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the link not snapped but strengthened. 34. The learned counsel appearing for the petitioner pointed out the following decisions where the delay resulted in setting aside the order of detention to fortify his plea. In Suraiya v. Commissioner and Secretary to Government [1995 Cri.LJ 4088] this Court held that though action under Section 7 of the COFEPOSA Act is not mandatory, the failure to take action under the section gives scope for doubt regarding the assertion that detenu had absconded or concealed himself to avoid the arrest. When the statute prescribes for such an action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the steps taken by the authorities including to declare him absconding as provided in Section 7 of the COFEPOSA Act it is quite evident that he surrendered having left with no possibility for him to evade the process of law and avoid an arrest. 38. The learned DSGI placed reliance on K.T.M.S. Abdul Cader and others v. Union of India [AIR 1977 Madras 386], to contend that the detenu was really absconding. It was held by a Full Bench of the Madras High Court that the primary meaning of the word 'abscond' is to hide and when a person is hiding from his place of residence, he is said to abscond. A person may hide even in his place of residence or away from it and in either case he would be absconding when he hides himself. Therefore, persons who get scent of the action to be taken by the Detaining Authorities and leave the country in order to escape the arm of the law can be said to abscond. The onus of proving that the accused did not abscond for the purpose of avoiding execution of warrant of arrest and that he had no notice of the proclamation issued under Section 87 of the old Criminal Procedure Code (Section 82 of the new Code) lies on the accused. 39. The Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of the present case, it is quite evident that the authorities took all possible steps to procure the presence of the detenu to execute the order. Only because he evaded the process and hid himself the order of detention could not be executed. It is clear from the counter affidavits filed by the respondents and the records made available for our perusal that all possible efforts were taken to execute the order of detention. Steps including publication of notice in the newspapers and declaring the detenu an absconder as contemplated under Section 7(1)(b) of the COFEPOSA Act were taken. Under such circumstances, we find that the delay in the execution of the detention order is satisfactorily explained. Further, it is trite that an absconding detenu cannot cite the delay in the execution of the order to contend that the detention order is liable to be quashed. Ground No. iv) - Copies of all the relied upon and relevant documents were not furnished to the detenu. 44. The petitioner contended that CCTV footages on 13.05.2019 of the exit area in the Airport, Thiruvananthapuram, Ext.P11, decision of the Principal Director General of DRI on the representation submitted by Sr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y for passing the detention order but the detention order will not be vitiated, if the document although referred to in the order is not supplied which is not relied upon by the Detaining Authority for forming its opinion or was made basis for passing the order of detention. Crux of the matter lies in whether the detenu's right to make a representation against the order of detention, is hampered by non-supply of the particular document. 49. In Raishad K.T. v. Union of India and others [ILR 2021 (4) Ker. 158], a similar contention was raised by the petitioner. It was contended that the order of detention was invalid on account of the fact that several crucial materials were not supplied to the detenu along with the grounds of detention, thereby affecting his valuable right to make an effective representation against the order of detention. The grievance was that certain Whatsapp chats, which are referred to in the grounds of detention were not supplied. Non Supply of certain CCTV footages was also complained of taking a specific stand that those documents would prove the innocence of the detenu. 50. In Raishad K.T. (supra) while answering that contention this Court pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Bench of the Apex Court in Kamaleshkumar Ishwardas Patel v. Union of India [(1995) 4 SCC 51] held that where the detention order is made under Section 3 of the COFEPOSA Act by an officer specially empowered for that purpose, the person detained has a right to make a representation to the said officer, and the said officer is obliged to consider the said representation, and the failure on his part to do so would result in denial of the right conferred on the person detained to make a representation. Further, such right of the detenu has been taken to be in addition to the right to make the representation to the Government concerned. 54. In K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union of India [(1991) 1 SCC 476], a Constitution Bench of the Apex Court held that the time imperative for consideration of representation can never be absolute or obsessive. It depends upon the necessities and the time at which the representation is made. The representation may be received before the case is referred to the Advisory Board, but there may not be time to dispose of the representation before referring the case to the Advisory Board. In that situation the representation must a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 24.06.2021, immediately after the Advisory Board rendering its opinion, which was on 15.06.2021. Therefore the question whether the Central Government could wait for the opinion of the Advisory Board before taking the representation for consideration did not crop up before the Court. The delay in disposing of the representation by the State Government and the delay in communicating to the detenu, the fact of rejection of his representation by both the State and Central Governments were found to be reasons sufficient to invalidate the order of detention. The Three-Judge Bench of the Apex Court however reiterated the ratio in Ankit Ashok Jalan (supra). 57. The principle therefore is that the Central Government shall wait before considering the representation of the detenu till the report of the Advisory Board is received, if the representation is received after the case of the detenu has been referred to the Board. Whereas, the Detaining Authority who is a specially empowered officer shall consider and dispose of the representation of the detenu with a sense of immediacy and cannot wait for receipt of the report of the Advisory Board. 58. The representations dated 27.01.2022 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified and there occurred prejudice to the detenu. In Mohinuddin it was held that when the life and liberty of a citizen is involved, it is expected that the Government ensure that the constitutional safeguards embodied in Article 22(5) are strictly observed. The gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws. 62. In Jasbir Singh v. Governor, Delhi and others [(1999) 4 SCC 228] it was held that there is no inflexible Rule that delay in considering the representation in all cases ipso facto would be sufficient to render the detention void. Further what can be held to be an unexplained delay in disposing of the representation would depend upon the facts and circumstances of each case. The right to make a representation is undoubtedly a Constitutional right of the detenu and such a representation should be considered as expeditiously as possible. But what is reasonable expedition will depend upon the facts of each case. 63. In Rajammal v. State of Tamil Nadu [(1999) 1 SCC 417] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Joint Secretary, Home Department, on August 19. On August 20, the Law Department was consulted. The file was placed before the Home Secretary on August 21, who placed it before the Chief Minister. The Chief minister took two days to study the file and ultimately, passed an order rejecting the representation on August 24. The Apex Court after considering the said cronology of events held that the representation made by the detenu was considered by the State Government at all levels, and there was no undue delay in its consideration. 66. In Abdul Salam v. Union of India [(1990) 3 SCC 15] also the question regarding the delay was considered. The representation was made on 27.09.1988 and disposed of by the Central Government on 02.11.1988, i.e., within a month and five days. In the counter-affidavit filed on behalf of the Central Government it is stated that the representation dated 27.09.1988 was received in the COFEPOSA Section of the Ministry of Finance on 10.10.1988 and the representation was in Malayalam. It is also stated that there were some allegations regarding the non-placement of certain documents and non-supply of certain documents to him. Therefore a copy of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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