TaxTMI 
TaxTMI 
2014 (12) TMI 942
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.... that the detaining authority is satisfied that the detenue be detained "with a view to preventing him from smuggling of goods and in transportation & concealment of the smuggled goods in future.........". 3. The Grounds of Detention (GoD), inter alia, state that an intelligence was received by the officers of Directorate of Revenue Intelligence (DRI), Jaipur, that a syndicate is involved in illegal storage and then export of red sanders (which is a prohibited item under Appendix II of the CITES (Convention on International Trade in Endangered Species of Wild Fauna and Flora) and as per import-export policy, 2009-14, their export in any form is prohibited). The detenue - Mr. Anil Gadodia is allegedly the kingpin of the syndicate involved in export of red sanders. 4. The respondents claim that on 28.09.2013, five containers were examined and in four of them red sanders was found, apart from marble. The four containers were placed under seizure. Searches were simultaneously conducted, inter alia, at various premises in Delhi, Mundra and Jaipur by the DRI, which resulted in recovery of, inter alia, red sanders apart from documents, etc. 5. The statement of, inter alia, the detenue ....
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....hat there is no explanation as to why it was not served forthwith after it was passed. It is argued that the detenue was available at his given address and was not in the hiding. The detenue, in fact, appeared before the Court in the pending prosecution case on 04.08.2014. No attempt was made to serve the detention order on the detenue on the said date. 12. Learned Counsel further urges that the GoD and "Relied upon" Documents (RuD) had been supplied to the detenue after expiry of around 7 days from the date of detention. The detention order was served on 13.08.2014 to the detenue while the GoD along with the RuD was served only on the intervening night of 19.08.2014 and 20.08.2014. The said act of the respondents is in contravention of Section 3(3), COFEPOSA Act read with Article 22(5), Constitution of India as it mandates that documents are to be furnished within 5 days, and in the present case there were no exceptional circumstances. 13. Further, the petitioner had requested for the translation of the documents in Hindi which were served on 23.08.2014, and as late as on 02.10.2014, which has prejudiced/ hampered the right of the detenue to effectively make a representation aga....
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....ontention that documents have not been supplied to the detenue "as soon as possible" from the date of detention nor within a period of five days as provided under Section 3(3) of the COFEPOSA Act, 1974 is, not tenable as Section 3(3) of COFEPOSA Act, 1974 also permits service of grounds of detention 'in exceptional circumstances and for the reasons to be recorded in writing' within a period of fifteen days, from the date of detention. Exceptional circumstances emerged in view of the following:- - Detention was affected on 13-14/08/2014 and TELEX communication to that effect was sent by the executing authority (Delhi Police) to the office of detaining authority on 14/08/2014 [copy annexed as ANNEXURE - 'A'] and on 14/08/2014, the ADJ (COFEPOSA) was on tour to Kolkata for attending hearing before Hon'ble Advisory Board (COFEPOSA) in another matter. No information to that effect was sent from executing authority to the sponsoring authority (SA). - In the matter, it is pertinent to note that, the central government offices at Delhi and Jaipur (where regional office of DRI is located and was coordinating with executing authority in the matter) remained closed for four (04) days due to....
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.... and days between the offending act and the order of detention. He further places reliance on Daku Devi W/o Baburam Choudhary vs. State of Tamil Nadu, H.C.P. No. 590 of 2004, decided on 21.09.2004, wherein the Madras High Court observed that in case of exceptional circumstances, the phrase "as soon as" translates to mean "for reasons to be recorded in writing not later than fifteen days, from the date of detention". 20. Having heard learned counsel for the parties and considered the submissions in the light of the parties, we are of the view that the impugned order of detention suffers from the vice of unexplained delay in the passing and service of the detention order. We are also satisfied that Article 22(5) of the Constitution stands violated on account of delay beyond 5 days in service of the GoD upon the detenue with the RuD, and that the respondents have failed to disclose exceptional circumstances to justify service of the GoD and documents when they were served. 21. We find merit in the submission of learned counsel for the petitioner that there was unexplained delay in passing of the detention order. After the alleged seizure of red sanders from the possession and custod....
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....tween the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the court has to investigate whether the causal connection has been broken in the circumstances of each case. 11. Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner". (Emphasis supplied) 25. The Detaining Authority even delayed the execution of the detention order passed on 25.07.2014. The detenue was served with the same only on 13.08.2014 i.e. after about 1....
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....te such opportunities neither the detaining authority nor the executing agency as well as sponsoring authority were diligent to serve the detention order on the petitioner at the earliest. In this view of the matter, we are of the opinion that the subjective satisfaction of the detaining authority in issuing detention order dated February 25, 1999 is vitiated. It is in these circumstances it is not possible for us to sustain the detention order." 28. Similarly, in the present case, there is a delay of 19 days in executing the detention order. It is no more res integra that the Detaining Authority must explain satisfactorily the inordinate delay in executing the detention order, otherwise the subjective satisfaction gets vitiated. 29. The respondents have sought to explain the delay in execution of the detention order in their reply in the following terms: "With respect to the contentions raised here, it is submitted that the Detention Order dated 25.07.2014 was sent to the Commissioner of Police, New Delhi for execution and the detention order moved from detaining authority to Delhi Police Head Quarter and finally to P.S. Sabzi Mandi. As such, there are many stages, which took i....
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....ention order. It appears that the respondents were content with keeping the detention order in their pocket in the hope that the same would be served upon the detenue when he appears in the DRI office at Jaipur or Delhi, but no effort was made to locate the detenue and serve him with the detention order at his residential address. 31. Pertinently, it is not disputed that the detenue appeared in the Court of CMM, Jaipur on 04.08.2014. There is absolutely no explanation offered as to why the detention order was not served upon him on the next date. The respondents have themselves tendered in Court a time chart showing the chronological sequence of events in respect of the detenue. In this chronological chart at sl. No.108, it is disclosed that on 01.08.2014, a letter was written by SA to DGP Rajasthan with a copy to the Ministry, informing that if the detention order has not been executed till then, the same could be executed against the detenue on 04.08.2014 when he had to appear before the CMM, Jaipur. In this background, the failure of the respondents to serve the detenue with the detention order on 04.08.2014 is, in our view, fatal. 32. The petitioner also placed reliance on th....
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....Article 22(5), Constitution of India. In this respect, the petitioner had urged that there were no exceptional circumstances which could have been the reason for delay in supplying the GoD as well as RuD. The detention order was served on 13.08.2014 while the GoD and the RuD were served on the detenue in Tihar Jail only during the intervening night of 19.08.2014 and 20.08.2014. Thus, there can be no doubt that the GoD and the RuD were not served within five days of the service of the detention order. The only hope for the respondents to save the detention order in these circumstances would be by disclosing such exceptional circumstances as would explain the reasons why the GoD and the RuD could not be served within five days of the service of the detention order. The Supreme Court in Parmod Kumar (supra) has held as follows: "8. In view of the high pedestal on which personal liberty is pressed, even smallest of unexplained delay in disposal of the writ petition is considered to be breach of constitutional protection afforded to a citizen. Reading of Sub-section (3) of Section 3 of the Act, makes it clear that in the normal course communication of the grounds on which order of dete....
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....rity was informed of the execution of the detention order on 14.08.2014. Merely because the ADJ (COFEPOSA) was then on Kolkata for attending a hearing before the Advisory Board in another matter cannot be an excuse for the detaining authority in not taking steps for service of the GoD and the RuD upon the detenue at the earliest and positively within the period of 5 days. It is not the respondents case that apart from the ADJ (COFEPOSA), there are no other officers working in the office of the detaining authority. The failure of the executing authority to intimate the sponsoring authority of the detention of the detenue on 13.08.2014 cannot be cited as an excuse to defeat the fundamental rights of the detenue. These are all matters of internal management of the respondents. If such like excuses were to be accepted as "exceptional circumstances", in every case of preventive detention, the respondents would be able to justify the delay in service of GoD and RuD as some or the other officer in the office of either the detaining authority or the sponsoring authority or the executing authority would be either on leave or out of town for one or the other reason. Similarly, the closure of....