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TMI Blog2023 (1) TMI 1295X X X X Extracts X X X X X X X X Extracts X X X X ..... , was considered. It is not proposed to deliberate upon those decisions since those are decisions on facts and no proposition of law different from what has been enunciated in the aforesaid decisions was evolved. In ANKIT ASHOK JALAN VERSUS UNION OF IDNIA AND ORS. [ 2020 (3) TMI 248 - SUPREME COURT] the Apex Court held that the consideration for revocation of a detention order is limited to examining whether the order conforms with the provisions of law whereas the recommendation of the Advisory Board is on the sufficiency of material for detention, which alone is either confirmed or not accepted by the appropriate Government. Therefore the detenu cannot be heard to contend that the documents which were not placed before the detaining authority and found not to have a vitiating effect on the subjective satisfaction of that authority should have been supplied to the detenu. In the above background only demand of the detenu for the documents can be considered. The grievance of the petitioner is about non-supply of five items of documents - Those are not relied upon documents. No reference to document No. 1, recording of audio chats between the detenu and Sri. Biju V Joy is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;the COFEPOSA Act'] and to set him at liberty forthwith; and to issue a writ of certiorari declaring that Ext.P8 Detention Order, as well as Ext.P19 Confirmation Order, as unconstitutional, illegal, and unsustainable in law. 2. Ext.P8 is the Detention Order issued by the second respondent under Section 3(1) of the COFEPOSA Act for the detention of Sri. Abdul Raoof. Exhibit P19 is the Confirmation Order issued by the authorised representative of the 1st respondent under Section 8(f) read with Section 10 of the COFEPOSA Act directing to detain him for a period of one year from the date of detention, 06.03.2022. 3. The incidents which culminated in the issuance of Exts.P8 and P19, gatherable from the narration of facts in the Writ Petition, are the following: 3.1. The unaccompanied baggage of one Althaf Moosan Mukri, was checked on 20.04.2021 and inside the compressor of the refrigerator amongst the baggage, contraband gold weighing 14763.300 Grams valued at Rs. 7,16,16,768/-was found and seized. Based on the statement of the passenger, three persons, the father-in-law of the detenu, Sri. Mohammed Ali, the brother of the detenu, Sri. Abdulla S.S. and the Customs G Card ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me to India on 27.12.2021 and he claims that thereafter he has been living in his family house and attending to his normal day-to-day activities. However, neither the respondents nor any other officers under them did not serve the Detention Order against him. 3.8. On 05.03.2022 forenoon the detenu was taken into custody by police officers deputed by the seventh respondent. Ext.P8 order dated 24.08.2021 issued under Section 3(1) of the COFEPOSA Act was served on the detenu. The detenu was taken to the Central Prison, Poojappura where he is under detention. Copies of the Grounds of Detention were served on the detenu on 7.3.22, a copy of which is Ext.P9. Copies of the documents relied upon by the Detaining Authority were also served along with Ext.P9. 3.9. On 24.03.2022 the 1st respondent referred the case of the detenu under Section 8(b) of the COFEPOSA Act to the fourth respondent, the Advisory Board. 3.10. The detenu saying that the voluminous documents served on him contained extremely technical jargon and were beyond his comprehension and he was unable to fathom and that many materials on which the Detaining Authority had placed reliance for his conclusions were not sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is detention; iii) The Sponsoring Authority did not produce necessary documents before the Advisory Board, namely, the representation submitted by the detenu; and iv) Right of the detenu to make representation before the Detaining Authority and the Government was scuttled due to non supply of materials/documents demanded by the detenu whereby he was denied his right guaranteed under Articles 14, 21 and 22(5) of the Constitution of India. 5. Respondents No. 1 and 2 filed a counter affidavit wherein the contention and allegations of the petitioner are denied. It is contended that every document which is relevant has been considered by the Detaining Authority and subjective satisfaction was arrived at on the basis of necessary and sufficient materials. Detention order could not be executed in time solely because the detenu evaded the process of law. He was abroad. He reached India not through a proper channel for travel. He came to India along the Nepal border whereby he could conceal himself from the notice of the authorities and bypass the look out circular issued against the detenu. He did not appear before the authorities, despite issuing the look out circular. He hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me relating to the smuggling of gold in question, on the days preceding the day of seizure ie., 20.04.2021 and also the orders remanding Sri. Althaf M.M, Sri. Muhammed Ali K.T, Sri. Abdulla S.S and Sri. Biju V.Joy who were the co accused, were not produced before the Detaining Authority. It is the submission of the learned Counsel for the petitioner that had those documents/materials been produced, the 2nd respondent would not have arrived at such a subjective satisfaction against the detenu. It is further submitted that by withholding those documents the Sponsoring Authority violated the mandate of Article 22(5) of the Constitution of India and that resulted in infringement of rights of the detenu under Articles 14 and 21 as well. 9. In Motilal Jain v. State of Bihar [ AIR 1968 SC 1509] a Six-Judge Bench of the Apex Court held that individual liberty is a cherished right, one of the most valuable fundamental rights guaranteed by our Constitution to the citizens of this country. If that right is invaded, excepting strictly in accordance with law, the aggrieved party is entitled to appeal to the judicial power of the State for relief. It further held that the interest of the soci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority must place all the relevant facts before the court which should show that the detention is in accordance with the provisions of the Act. The burden of proof to show that the detention is in accordance with the procedure established by law has always been placed by this court on the detaining authority because Article 21 of the Constitution provides in clear and explicit terms that no one shall be deprived of his life or personal liberty except in accordance with procedure established by law. 13. The parameters for arriving at the subjective satisfaction have been delineated by the Apex Court in Gurdev Singh v. Union of India [(2002) 1 SCC 545]. It was 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 and if considered by the Detaining Authority, might have resulted in taking a different view in the matter. The contention was that the Detaining Authority should have taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion, its non-placement affects the subjective satisfaction of the Detaining Authority. This Court has time and again laid down that the Sponsoring Authority should place all the relevant documents before the Detaining Authority. It should not withhold any such document based on his own opinion. All documents, which are relevant, which have bearing on the issue, which are likely to affect the mind of the Detaining Authority should be placed before him. Of course a document which has no link with the issue cannot be construed as relevant. 15. As held by the Apex court whether the documents allegedly withheld by the Sponsoring Authority, want of which is said to have vitiated the detention order, is a question to be decided in the facts and circumstances of each case. The contention of the petitioner is that although the Sponsoring Authority produced the screenshots from the mobile phone of Sri. Biju V. Joy, failed to produce voice chats sent to the detenu on 19.04.2021 and nearby dates. It is contended that those voice chats, if produced, would have established the innocence of the detenu. The learned counsel thus would contend that the findings of the Detaining Authority tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her documents and circumstances. Sri. Biju V.Joy was the customs agent who cleared the baggage of not only Sri. Althaf, the passenger in the present case, but also three passengers in whose baggage gold was transported earlier. The communications between him and the detenu and also documents pertaining their travel placed on record before the detaining authority give support to those facts. On going through the grounds of detention and the relied upon documents, it can be seen that materials sufficient to arrive at a finding regarding involvement of the detenu in the repeated activities of smuggling of gold to India were produced before the Detaining Authority. When such materials were available on record, the contention that audio clippings in the Whatsapp chats between the detenu and Sri. Biju V.Joy and two remand orders of the Magistrate, which never reached in the possession of the Sponsoring Authority, vitiated the subjective satisfaction of the detaining authority is not able to be appreciated. 19. Exts.P17 and P18 are the explanations submitted by the detenu before the Advisory Board. One of the specific contentions taken up in Ext.P17 was that the detenu had requested th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents contended that the documents now projected by the detenu are engineered by him to support his false claim that he was available at his residence, but in reality he was hiding. It is further contended that on 11.02.2022 a notification under Section 7(1)(b) of the COFEPOSA Act was published in the Official Gazette requiring the detenu to surrender before the 6th respondent. The petitioner, in answer to that, would contend that the respondents did not state in the counter affidavits about the issuance of the notification and therefore that plea raised by them now only cannot be reckoned with. The learned counsel for the petitioner would contend that if the detenu knew about the notification, he would not have sent Exts.P5 and P6 reminders referring to Exs.P1 and P2 to the Director General, CEIB and the Detaining Authority. 24. The learned Counsel for the petitioner accordingly would contend that no plausible explanation is offered by respondents 1 to 3 or respondents 6 and 7 as to why the detenu was not arrested till 05.03.2022 on which date he was arrested from his house at Kothamangalam and non-explanation of the delay throws considerable doubt on the genuineness of the subj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e detention and the purpose of detention is snapped and therefore the order of detention becomes invalid. The question immediately arises is whether the respondents could substantiate that there is sufficient explanation for the delay in executing the detention order. The detention order was issued on 24.08.2021. The detenu was admittedly abroad till 29.12.2021. He was arrested on 05.03.2022. Hence the explanation required is for the period from 29.12.2021 till 05.03.2022. 27. In Syed Farooq Mohammad v Union of India [(1990) 3 SCC 537] the facts were that two notices were served, one on the detenu's mother and another on the petitioner's brother directing the petitioner to appear before the Detaining Authority. The petitioner has intentionally absconded and thereby evaded arrest. It was held that, in such circumstances, the delay was properly explained and the link between the grounds of detention and the avowed purpose of detention has not been snapped. 28. In Waheeda Ashraf and others v. Union of India and others [ILR 2021 (3) Ker.751], this Court relied on the principle of law laid down by the Apex Court in Malwa Shah v. State of West Bengal [(1974) 4 SCC 127] and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a bank at Kothamangalam, and he went to court to sign a bail bond are not sufficient indications to show that he has been permanently residing at his own residence and available for being apprehended. 32. He produced Exts.P1 to P6 to show that he was available at his residence. But, only due to the lethargy on the part of the authorities, the detention order was not executed. Those letters were sent in the name of the detenu. He signed the letters and hence he personally might have sent them also. The postal receipts affixed on Exts.P1 and P2 would show that not from the post office where he claimed to have been residing, but from a different post office, those letters were sent. Be that as it may, those documents would not show that he was available at his residence for being intercepted by the revenue authorities or the police. 33. It may be noted that the 2nd respondent published the order of detention in the official gazette dated 11.02.2022. It was a notice asking the detenu to appear before the police for the execution of the detention order. Invoking the provisions of Section 7(1)(b) of the COFEPOSA Act, such a notification was published. The detenu would contend t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such as the one contemplated under Section 7 of the COFEPOSA Act were initiated consequent upon absconding of the proposed detenu, the challenge to the detention orders on the live nexus theory is impermissible. Permitting such an argument would amount to enabling the law breaker to take advantage of his own conduct which is contrary to law. 38. On considering the facts of the case in the light of the law laid down in the aforesaid decisions, we conclude that the contention of the petitioner that the delay in execution of Ext.P8 detention order resulted in invalidating the same is untenable and rejected. Ground No. iii) The Sponsoring Authority did not produce necessary documents before the Advisory Board, namely, the representation submitted by the detenu. 39. The detenu submitted Ext.P12 representation before the Director General, Central Economic Intelligence Bureau, Government of India, New Delhi and Ext.P13 before the Joint Secretary, COFEPOSA, Government of India, New Delhi. The petitioner would allege that those representations along with parawise comments thereon were not submitted before the Advisory Board and therefore the detention order gets vitiated. 40. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 43. It is seen from Ext.P15 that the Detaining Authority considered Ext.P12 representation and rejected the same on 07.04.2022. Ext.P15 was submitted before the COFEPOSA Advisory Board vide letter addressed to the Secretary of the Board dated 07.04.2022. It is seen that Ext.P13, the representation submitted to the Government along with the para-wise comments were also submitted before the Advisory Board as per the same letter dated 07.04.2022. Ext.P16 produced by the petitioner is a copy of that letter. Of course, Ext. P12 was not seen submitted although the order rejecting it was submitted. When Ext.P13, the representation submitted to the Government along with the para-wise comments and Ext.P15 the order rejecting Ext.P12 representation were submitted before the Advisory Board, non-production of Ext.P12 which is a similar representation has no relevance. That cannot have the effect of vitiating the whole process and the contention of the petitioner in that regard has no merits. Ground No. iv) Right of the detenu to make representation before the Detaining Authority and the Government was scuttled due to non supply of materials/documents demanded by the detenu whereby his rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Bench of the Apex Court in State of Punjab v. Jagdev Singh Talwandi [(1984) 1 SCC 596] held that if the order of detention refers to or relies upon any document, statement, or other material, copies thereof have, of course, to be supplied to the detenu. 48. Relying on Powanammal v. State of Tamil Nadu and another [(1999) 2 SCC 413], which is a Three-Judge Bench decision of the Apex Court, the learned Central Government Counsel contended that the detenu has the right to get documents which have not been relied upon in the Grounds of Detention only if such documents have live proximity to the detention and relevance to the grounds for detention. The learned counsel for the petitioner would submit that when the detenu demands documents, which in his estimation, are required for his making an effective representation, non-supply of the same would fail his right guaranteed under Articles under not only 22(5) but also 14 and 21 of the Constitution of India. Reliance has been made in this regard on the decision in Kamla Kanyalal Kushlani v. State of Maharashtra [(1981) 1 SCC 478] where the Apex Court held that preventive detention has to conform to Articles 14 and 21 in addition to A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) this court observed in paragraph No. 19 that the decisions relied on by the respondents were rendered in different set of facts and therefore could not be acted upon. That implies that the applicability or not of the decisions on the point has to be considered independently and in the light of the facts of each case. Needless to say that a decision is an authority for what it decides. 52. The decision in Nushath Koyamu (supra) cannot be said inter partes. It is true that one of the detenues therein was represented by the petitioner in this case. Detenus are different. The matters in issue in Nushath Koyamu were regarding the legality of the orders of detention of Sri. Muhammed Ali K.T, Sri Abdulla S.S and Sri Biju V Joy. On a reading of the said decision, it is seen that all relating to the same incident, but grounds for the detention of different persons are different. The detenu Sri. Abdul Raoof was the person who contracted with the passenger Sri. Althaf and sent the baggage from Dubai to India. If so, he is the person who said to have personally involved in originating the consignment, whereas the other detenus were part of the contingent who said to have dealt with the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, the authority may take reasonable time to make available such documents. The Apex Court, however, emphasised that the obligation of the authority is only to provide copies of those documents, which are relevant. This principle of law is explained by the Apex Court in Kirit Kumar Chaman Lal Kundaliya and J.Abdul Hakeem (supra) is essentially the same. Therefore the right of the detenu to demand relevant documents, besides the relied upon documents, is now well recognised in law. 56. The question is whether the detenu can ask for any and every document. After referring to the previous decisions where the aforesaid principle was laid down, the Apex Court in Powanmal (supra) held that every document and materials which finds a passing reference in the course of narration of facts in the ground of detention need not be supplied. But such documents, non-supply of which would prejudice the detenu in making an effective representation are to be supplied to him. The reason is that non-supply of such documents would amount to denial of the right of being communicated the grounds and being afforded the opportunity of making effective representation against the detention order. 57 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose baggage gold was earlier imported, were considered by the Detaining Authority. There were other materials also. The retraction statements and rebuttal letters were all placed before the Detaining Authority. After considering all such materials, the Detaining Authority arrived at the subjective satisfaction and all such documents were furnished to the detenu. In such circumstances, the finding of this Court in Nushath Koyamu (supra) that the audio chats have relevance in the case of the detenus therein, cannot be followed in this case. 60. As far as the show cause notices sent the co-accused and their replies are concerned there is only passing reference in the grounds in support of Ext.P8 detention order. In such circumstances, the detenu can resort to the plea of invalidity of the detention order for non-supply of those documents only if he substantiates that the non-supply caused prejudice to him. It is also his obligation to explain in what way those documents are relevant for his making representation. 61. Exts.P12 and P13 are the representations submitted by the detenu in which he made requests for those documents as well as Exts.P2, P3 and P6. The detenu did not sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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