2015 (9) TMI 1494 - HC - FEMA

Court Upholds Detention Order with Justifications for Delay, Document Supply, and Preventive Measures

Bhawani Verma Versus UOI

The court upheld the detention order, noting the satisfactory explanations for procedural delays and the detaining authority's subjective satisfaction ... Detention order challenged - Held that:- The language of Section 5A of COFEPOSA makes it abundantly clear that if the order of detention is made on two or more grounds, the said order of detention shall be deemed to have been separately on each ground and accordingly the detention order shall not be deemed to be invalid merely because one or some of the grounds is or are invalid. In the present case, the bail applications relating to co-accused Manjunath, although was not supplied to the detenue along with the relied upon documents, RUD 32 i.e. bail application No.551/2015 within the prescribed time, but it was supplied on 02.06.2015 and this would not vitiate the detention order as it had been filed before the filing of the representation by the detenue. More the reason, the bail application of co-accused Manjunath is not the ground for detention of the detenue In the present case, the detention order has been passed on 27.04.2015 on the grounds mentioned in para 37.1 and does not have any mention about the bail application of co-accused Manjunath. The bail application filed by co-accused Manjunath does not have any bearing on the grounds of detention, however the order passed in the bail application has already been supplied and even the copy of the bail application has been supplied immediately after serving the detention order along with the grounds of detention, without causing any delay in filing the representation. We have reached the conclusion that the grounds of detention constitute a separate and independent ground under Article 22(5) of the Constitution of India read with Section 5A of COFEPOSA. The said grounds can be separated by applying the principle of segregation. The said grounds and the detention do not suffer from any infirmity.In view of the aforesaid reasons, we do not find any merit in the present writ petition Issues Involved:1. Delay in passing the detention order.2. Subjective satisfaction of the detaining authority regarding the likelihood of bail.3. Withholding of complaint filing and sanction order from the detaining authority.4. Non-placement and non-supply of relevant documents to the detaining authority and detenue.5. Incomplete or illegible documents served to the detenue.6. Justification for invoking preventive detention law.7. Non-consideration of ordinary law of the land.8. Non-decision on the detenue's representation.Issue-wise Detailed Analysis:1. Delay in Passing the Detention Order:The petitioner argued that the delay of about six months from the date of the alleged activity to the passing of the detention order was unacceptable in preventive detention matters. The respondents explained the delay by detailing the procedural steps and investigations undertaken, including approvals from the Screening Committee and necessary formalities. The court found the explanation satisfactory, noting that preventive detention orders require thorough investigation and sufficient time for the detaining authority to examine evidence and apply their mind. The court referenced the Supreme Court's observation in Licil Antony v. State of Kerala, emphasizing that satisfactorily explained delays do not vitiate detention orders.2. Subjective Satisfaction of the Detaining Authority Regarding the Likelihood of Bail:The petitioner contended that the detaining authority's assumption of the detenue's likelihood of release on bail was baseless, as no bail application was filed or pending. The respondents argued that the detaining authority was aware of the detenue's custody status and the potential for bail under Section 167 Cr.P.C. if no complaint was filed within 60 days. The court upheld the detaining authority's satisfaction, noting that the detenue's past conduct indicated a high potential for continued prejudicial activities if released on bail. The court referenced the Supreme Court's criteria in Huidrom Konungjal Singh v. State of Manipur, which were met in this case.3. Withholding of Complaint Filing and Sanction Order from the Detaining Authority:The petitioner argued that the DRI withheld the complaint filing and sanction order from the detaining authority to secure the detention order. The court found no evidence of malafide intention or withholding of documents by the DRI. It noted that the detaining authority and the authority filing the complaint were different, and the complaint was not filed until the time of passing the detention order. The court dismissed the argument, emphasizing that the process of detention was initiated within the prescribed time.4. Non-placement and Non-supply of Relevant Documents to the Detaining Authority and Detenue:The petitioner argued that relevant documents were not placed before the detaining authority and that many supplied documents were incomplete or illegible, impeding the detenue's right to make an effective representation. The respondents countered that all relevant documents relied upon by the detaining authority were duly supplied to the detenue. The court found compliance with Section 3(3) of COFEPOSA and Article 22(5) of the Constitution, noting that the documents were served within the prescribed time.5. Incomplete or Illegible Documents Served to the Detenue:The petitioner claimed that incomplete or illegible documents were supplied, violating the detenue's constitutional right to make an effective representation. The court acknowledged that certain documents were supplied later but noted that these were not relied upon for the detention order. The court referenced Section 5A of COFEPOSA, which allows for the separation of grounds, and found that the detention order was not vitiated by the alleged deficiencies.6. Justification for Invoking Preventive Detention Law:The petitioner argued that the detaining authority failed to consider why ordinary law was insufficient to deal with the situation. The court found that the grounds for the detention order detailed the necessity for preventive detention, considering the detenue's past conduct and potential for continued prejudicial activities.7. Non-consideration of Ordinary Law of the Land:The petitioner contended that the detaining authority did not apply its mind to why ordinary law was inadequate. The court found that the detaining authority had considered the detenue's past conduct and the likelihood of continued prejudicial activities, justifying the invocation of preventive detention law.8. Non-decision on the Detenue's Representation:The petitioner argued that the representation dated 18.05.2015 was not decided until the filing of the petition. The respondents countered that the representation was considered and decisions were communicated on 25.05.2015 and 02.06.2015. The court found no merit in this argument, noting that the representation was duly considered.Conclusion:The court dismissed the writ petition, finding no merit in the arguments presented. The detention order was upheld based on the detailed grounds and the satisfaction of the detaining authority regarding the likelihood of the detenue's release on bail and potential for continued prejudicial activities.