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TMI Blog2024 (6) TMI 1269X X X X Extracts X X X X X X X X Extracts X X X X ..... he delay by the State Government in disposing of the representation and by the Central and State Governments in communicating such rejection, strikes at the heart of the procedural rights and guarantees granted to the detenu. It is necessary to understand that the law provides for such procedural safeguards to balance the wide powers granted to the executive under the NSA.' A similar stand has been taken in the case of KAMLESHKUMAR ISHWARDAS PATEL VERSUS UOI. [ 1995 (4) TMI 283 - SUPREME COURT ], wherein a question arose for consideration as to when an order for prevention detention is passed by an officer especially empowered to do so by the Central Government or the State Government, is the said officer required to consider the representation submitted by the detenu and a Constitution Bench of the Apex Court has held ' Maybe that the detenu is a smuggler whose tribe (and how their numbers increase!) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hamlet of Ramanathapuram District was involved in smuggling of foreign origin gold from Srilanka through Mandapam Coast and that three persons belonging to the said gang were coming in a blue coloured fishing boat named YAA ALLAH carrying smuggled gold brought from Srilanka through sea and would be landing in the shore area near Mandapam Fishing Harbour. ii) Acting on the specific intelligence, the DRI Officers, Chennai with the help of the Coast Guard boat intercepted the said boat in sea near Mandapam Fishing Harbour on 08.02.2023 and on enquiry, the three persons introduced themselves as Shri.Nagoor Kani of Mandapam, the owner and driver of the boat, Shri.Mohammed Sameer of Maraikayarpattinam and Shri.Sahubar Sathik of Mandapam. All the three admitted that they had collected smuggled gold from a Srilankan boat at high seas and were returning with the smuggled gold in the fishing boat and on seeing the Coast Guard boat, they had dropped the smuggled gold parcel into sea and had marked the location with a GPS unit of brand GARMIN model GPS72H with serial number 1T7033511 for later recovery. iii) On such admission, the Indian Coast Guard Scuba diving and snorkelling team searched ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of seized foreign origin gold items, packing materials and GPS unit were deposited in the Seized Goods Godown, Customs Preventive Unit, Madurai under WHR No.32/2022-23 CPU MDU dated 10.02.2023. The seized boat was deposited at Customs Preventive Unit, Mandapam under WHR No.03/2023-24 dated 09.06.2023. v) All the three were enquired individually on 08.02.2023 and 10.02.2023 and their statements were recorded. Tr.Nagoor Kani being owner of the fishing boat and Mohammed Sameer and Sahubar Sathik being fishermen/coolie claimed to have been engaged by the detenu through some agents for the act of smuggling the gold from Sri Lanka. vi) On the basis of their statements, the agents, by name Jahangeer Abbas and Azaar, who are alleged to have been devised by the detenu to act as agents to involve the fishermen in the smuggling activities, have also been enquired individually on 10.02.2023 and their statements were also recorded. vii) Since the statements recorded from the fishermen and the agents point out the detenu as the mastermind for the smuggling activities, he was also enquired by the DRI officers on 10.02.2023. The statement so recorded from the detenu revealed that he had involve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the package. The officers noticed that the two persons caught by them with the package are Shri.Mohamed Sathik Ali, the detenu and Shri.A.Azharudeen, the main accused persons in the smuggling case involving the seizure of 17.740 kgs of foreign origin gold booked by DRI during February 2023. x) The DRI officers noticed that the package carried together by the detenu and Shri.A.Azharudeen was a blue colour adidas brand jacket made into a bundle by knotting together the cuffs of the jacket. When enquired, they admitted that the blue jacket contained packets of smuggled gold. They had also admitted that the detenu had arrived to the sea shore using a Yamaha Ray ZR Street Rally two-wheeler bearing registration No. TN65 AK8476 and had parked it in the vicinity of the shore and after collecting the smuggled gold, they had planned to return back with the smuggled gold using the said two wheeler. They had further admitted that on noticing the officers, they had attempted to run in the direction of the said two-wheeler carrying the smuggled gold with the intent to use it for fleeing the spot. xi) The officers found that the jacket contained eight cuboid shaped heavily weighing packets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the said gold would offer him commission money. The detenu had previously smuggled gold into India six times in this way. He would get Rs. 80,000/- as commission in this. He would give a portion of this amount to Shri.Azharudeen and the persons in the boat carrying smuggled Gold. On 09.02.2023, 17740.000 grams of foreign origin gold worth Rs. 10,17,29,540/- along with a fishing boat, which was used to carry the said smuggled gold, GPS kit and packing material used to smuggle was seized by DRI officers at Indian Coast Guard Station, Mandapam, Ramanathapuram - 623 518 and six persons, including the detenu and Shri.Azharudeen were involved in this. The detenu and 5 co-accused had been arrested and are currently on conditional bail. This time, Shri.Mevin had contacted the detenu and said that today i.e. 30.05.2023 he had smuggled gold and asked the detenu to send person to come and get it at the GPS point he refers to at sea. The detenu had informed this to Shri Azharudeen and sent three persons to the sea in a boat to get the smuggled gold. Expecting the persons whom the detenu had sent to the sea would return with smuggled gold to Vedhalai shore at around 07:15 pm, the detenu alon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the petitioner much belatedly viz., on 9.11.2023. ii) In the Tamil version of the grounds of detention supplied, the address of the Advisory Board has not been properly mentioned and due to insufficient and improper details, representation dated 20.10.2023 posted on 21.10.2023 to the address indicated therein was returned with the endorsement no such person and thereby the right of the detenu to send the representation has been defeated. iii) In the Tamil version of the grounds of detention served on the petitioner, while indicating the right to represent against the detention, there is mentioning of the word to mean the word representation and thus the petitioner was misled in taking a decision with regard to the further course of action. iv) In the communication of the sponsoring authority to the Advisory Board on 12.10.2023, there is a mention to the effect that no representation has been received from the detenu or on his behalf till 12.10.2023 and thereby the representation dated 29.9.2023 sent by the petitioner to the third respondent and the representation made by the Advocate on behalf of the petitioner through email on 29.9.2023 were burked and not placed before the Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was not disclosed before the Advisory Board. vi) So far as the allegation of delay in forwarding the representation of the petitioner to the sponsoring authority is concerned, the representation submitted by the petitioner on 20.10.2023 was received only on 10.11.2023, which happens to be a Friday. The 11th and 12th November 2023 are Saturday and Sunday. 13th and 15th November 2023 are Restricted Holidays so far as Delhi is concerned and thereby, the representation was forwarded within a reasonable time and there was no inordinate delay giving room for interference by this court. 6. Heard the learned counsel appearing for the parties and perused the materials available on record. 7. A perusal of the records would disclose that though the detention order was passed on 21.9.2023, the detenu was arrested on 27.9.2023 and served with the detention order on the same day and the petitioner, wife of the detenu was served with a copy of the detention order and grounds of detention within a reasonable period of three days, viz., on 30.9.2023, of course, on receipt of the representation dated 29.9.2023 submitted by the her. In this regard, the reply by the second respondent confirming su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rounds of detention, another issue exists with regard to defective translation. While mentioning the name and address of the State Advisory Board, which had resulted in return of the representation submitted by the petitioner with the postal endorsement no such person . 11. In the such circumstances, the allegation made by the Advocate for the of the petitioner in the representation sent through email on 29.9.2023 that the petitioner had been prevented from making an appeal, assumes much significance. Whileso, it may not be proper on the part of the sponsoring authority to make a mention in the communication dated 12.10.2023 made to the Advisory Board to the effect that there is no representation received from the detenu or on his behalf till 12.10.2023. There is also no justification on the part of the respondents to contend that the nature of the representation did not warrant them to place it before the Advisory Board. 12. In Golam Biswas vs. Union of India (2015) 16 SCC 177, a Full Bench of the Apex Court has held as under:- 15. As admittedly, the detenu's representation dated 8-7-2014, pending with the Central Government, the appropriate Government in the case, was not for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e week on Friday and the succeeding two days viz., 11.11.2023 and 12.11.2023 being closed holidays, 13.11.2023 (Monday) and 15.11.2023 (Wednesday) are declared Restricted Holidays for Delhi resulting in dearth of sufficient staff, however, the representation, which was in Tamil was forwarded to the sponsoring authority after getting the translated for parawise comments and subsequently, it was rejected by the sponsoring authority by order dated 27.12.2023 and thereby there is no inordinate delay on the part of the respondents in considering the representation of the petitioner giving room for interference by this court. 15. Having considered the contentions raised by both sides, this court is of the view that though there there is no hard and fast rule fixing any time limit for considering the representation, there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal. 16. Timely and expeditious communication of grounds and disposal of representation in the cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lure of the State Government to comply with the request of the detenu for onward transmission of the representation of the Central Government deprives the detenu of a valuable right to have the detention revoked by the Central Government. ......... ....... 47. By delaying its decision on the representation, the State Government deprived the detenu of the valuable right which emanates from the provisions of Section 8(1) of having the representation being considered expeditiously. As we have noted earlier, the communication of the grounds of detention to the detenu as soon as may be and the affording to the detenu of the earliest opportunity of making a representation against the order of detention to the appropriate Government are intended to ensure that the representation of the detenu is considered by the appropriate Government with a sense of immediacy. The State Government failed to do so. The making of a reference to the Advisory Board could not have furnished any justification for the State Government not to deal with the representation independently at the earliest. The delay by the State Government in disposing of the representation and by the Central and State Governments i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the protection of persons sought to be preventively detained. These safeguards are required to be zealously watched and enforced by the Court . Their rigour cannot be modulated on the basis of the nature of the activities of a particular person. We would, in this context, reiterate what was said earlier by this Court while rejecting a similar submission: Maybe that the detenu is a smuggler whose tribe (and how their numbers increase!) deserves no sympathy since its activities have paralysed the Indian economy. But the laws of preventive detention afford only a modicum of safeguards to persons detained under them and if freedom and liberty are to have any meaning in our democratic set-up, it is essential that at least those safeguards are not denied to the detenus. (See:Rattan Singhv.State of Punjab[(1981) 4 SCC 481 : 1981 SCC (Cri) 853] , SCC at p. 483) 18. In the case on hand, there is a delay of seven days on the part of the detaining authority in forwarding the representation of the petitioner to the sponsoring authority. A feeble stand has been taken on behalf of the respondents contending that the representation was made in Tamil requiring translation and the intervening ..... X X X X Extracts X X X X X X X X Extracts X X X X
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