TaxTMI 
TaxTMI 
2015 (9) TMI 1192
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion order. The "live link" snapped once the petitioner ceased to be an employee of M/s.Minar Travels Pvt. Ltd. in January, 2015. The monetary transactions in the year 2012 -13, by way of loans between the petitioner / his wife and Sheikh Mohammed Javid, were too distinct in time to show any connection or involvement of the petitioner and the gold smuggling in 2014. The said transactions were duly disclosed in the income-tax returns. The "live link" also came apart due to delay in execution of the detention order dated 31st March, 2015, as the said detention order and grounds of detention were dispatched to the executing authority only on 5th May, 2015, after a gap of about 35 days and thereafter no attempt and effort was made to serve the order of detention and detain the petitioner. It is asserted that the petitioner had not absconded and in fact had appeared, on being summoned, before the Enforcement Directorate at Goa on 04.06.2015. Petitioner"s wife had also fully cooperated and was questioned by the Enforcement Directorate on 02.06.2015. Lastly, on merits it is submitted that the petitioner had signed application forms for access to the airport as an employee of M/s.Minar Tra....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rded in writing within fifteen days from the date of detention. Similarly, a detenu does not have any entitlement to be given a copy of the order of detention without first surrendering or at the pre-execution stage, for there is no provision in the Constitution or law under which such right can be established. Secondly, the courts in exercise of writ jurisdiction in genuine cases can quash a detention at the pre-execution stage, but they are not obliged to do so, nor would it be proper for them to do so, save in exceptional cases. Exercise of Writ Jurisdiction, though wide and untrammeled by external restrictions, is by very nature discretionary, extra-ordinary and an equitable jurisdiction. It is to be used sparingly and in circumstances where no other efficacious remedy is available. Self-evolved judicial proclamation requires that the aggrieved person must first follow the concerned law and exhaust all statutory remedies before approaching the Supreme Court or the High Court under Articles 32 or 226 of the Constitution. The self-imposed internal restraints are firmly ingrained and ensure that the extraordinary power is used sparingly and not in routine. Thus, the Superior Court....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 48. ............There are various pronouncements of the law by this Court, wherein detention orders have been struck down, even without the apprehension of the detenu, on the ground of absence of any live link between the incident for which the detenu was being sought to be detained and the detention order and also on grounds of staleness. These are issues which were not before the Hon.ble Judges deciding Alka Subhash Gadia case" 5. Referring to this judgment, with specific reference to the quotation from paragraph 48, Mr.Sanjay Jain, learned Additional Solicitor General has submitted and in our opinion erroneously that the court can only examine whether any "live link" exists between the incident for which the detenu is sought to be detained and the detention order. In other words, a detention order at pre-detention stage can be only challenged on the ground of staleness i.e. delay. This is not the purport of the observations made by the Supreme Court in the case of Subhash Popatlal Dave (1) (Supra). This contention of the respondents relying upon their "understanding" of the observations recorded in the concurring majority judgments in Subhash Popatlal Dave (2) (Supra) is....
X X X X Extracts X X X X
X X X X Extracts X X X X
....les 32 and 226 of the Constitution on certain limited grounds. xxxxxxx 38. It is the settled position of law declared by this Court in a number of cases that absence of live nexus between material forming the basis and the satisfaction (opinion) of the State that it is necessary to preventively detain a person is definitely fatal to the preventive detention order. All those cases where the courts have quashed the orders of preventive detention on the theory of lack of "live nexus" are cases where the detention orders were executed but not cases of non-execution of the detention orders for a long lapse of time after such orders came to be passed." Observations in paragraph 35 and fist part of paragraph 38 are with specific reference to the "Live Link" with the reason i.e. the formation of belief and the order of detention. Reliance by the respondents on the last portion of paragraph 38 is misconceived. The argument overlooks that invoking writ jurisdiction and exercise of, and success in a writ jurisdiction are two separate aspects. The question raised in Subhash Popatlal Dave (2) (Supra) was somewhat different as is clear from paragraph 29 and 39 of the judg....
X X X X Extracts X X X X
X X X X Extracts X X X X
....against detention order prior to its execution". This Court also took note of the fact that such an inquiry had indeed been undertaken by the courts in a very limited number of cases and in circumstances glaringly untenable at the pre-execution stage. 49. The question whether the five circumstances specified in Alka Subhash Gadia case are exhaustive of the grounds on which a pre-execution scrutiny of the legality of preventive detention order can be undertaken was considered by us earlier in the instant case. We held that the grounds are not exhaustive. But that does not persuade me to hold that such a scrutiny ought to be undertaken with reference to the cases of those who evaded the process of law." 9. We would also reject the contention of Mr.Sanjay Jain, Additional Solicitor General that the majority judgment in Subhash Popatlal Dave (2) (Supra) holds that if an order under Section 7(1) Clauses (a) and (b) has been passed, this would per se bar and prohibit the proposed detenu from claiming any relief in a writ petition at the pre-detention stage. We must elaborate and explain. J. Chelameswar, J. in Subhash Popatlal Dave (2) (Supra) paragraph 40 has analyzed probabl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t the "live link" has severed because of the long time gap between the date of detention order and its execution. Deliberate or intentional abscondence would have adverse consequences and could result in rejection of the writ petition at the pre-detention stage. However, whether or not there is abscondence is another aspect and has to be first deciphered and decided before the said negative conclusion follows. 11. While deciding the issue whether the proposed deteun has absconded, the courts would have to examine the factual matrix. When an order under any of the two clauses of Sub-section 1 of Section 7 has been passed, it must be noticed. An order under Clause (a) and (b) to the Sub-section 1 of Section 7 carries with it, necessary sanctity and consequences. However, we would observe and hold that in a given case in spite of an order under Clauses (a) and (b) of Sub-section 1 to Section 7, the proposed detenu can show and establish that he had not absconded from due process of law. To this extent when the proposed detenu belies and contests that he had not absconded, he would not be foreclosed or denied his right to urge that he had not absconded or evaded service / arrest. We....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of abscondence, without taking into account the order under Clause (b) of Sub-Section 1 to Section 7 of the COFEPOSA Act. The detaining authority i.e. Union of India, Department of Revenue, Ministry of Finance by the letter dated 13th May, 2015 had asked the sponsoring authority i.e. the Commissioner of Customs, Goa to inform them about the efforts made by them to execute the detention order dated 31st March, 2015. The Superintendent of Police (South Goa) vide his letter dated 16th June, 2015, which was received by the detaining authority on 26th June, 2015, had informed that they had visited the residence of the petitioner at Villa No.04, Karma Garden, Chicalim, Vasco on 1st June, 2015 and 2nd June, 2015, but he was not found at the given address. The wife of the detenu was contacted and had disclosed that the petitioner was at Delhi taking care of his ailing parents. Goa Police had then visited the residence of the petitioner on 6th June, 2015 and 9th June, 2015, when the house at Goa was found to be locked. We have no doubt in our mind that the aforesaid report establishes that the petitioner was aware and knew about the detention order dated 31st March, 2015 and was trying to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t the respondents in the reply have set out in detail the material which had to be first collected in the investigation to ascertain involvement of different persons in the smuggling of gold. The persons involved had to be discerned and evidence collated. This as per the respondents took time as statements had to be recorded, facts had to be verified and documentary material collected. Each stage required application of mind and examination. Detention order cannot be passed in haste and hurry without evidence justifying such action. The detention order would not become stale because of the time gap between the occurrence which becomes the substratum of the detention order, if the authorities can explain the reason and cause for the period in question. The respondents have explained the time between 31st March, 2015 to 5th May, 2015 as 3000 papers had to be photocopied and CDs and other electronic evidence prepared. 10 detenus had to be served, and this was a time consuming exercise. We have noted these facts and assertions made by the respondents to hold and observe that a case for quashing the detention order at the pre-detention stage is not made out. It is certainly not an excep....