TaxTMI 
TaxTMI 
2016 (5) TMI 556
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.... the detenues are referred to as Rahila and Hiromasa or as detenues. 2. The order of detention was executed on 9.11.2014 and since then Rahila and Hiromasa are under detention. 3. The following facts are discernible from the grounds of detention: On the specific intelligence reports that the detenues (Rahila and Hiromasa) were indulging in smuggling gold to India through various airports acting under the instructions of a gang of Shahbas, Abdul Lais @ Abu Lais and Nabeel, the detenues were intercepted at Calicut International Airport on 8.11.2013 when they alighted by Air India Express Flight No.IX 344 at 4.55 hours. On search of the body of Rahila and Hiromasa, it was found that three gold bars each were concealed around their waist. They had not declared that any dutiable goods were being brought. Rahila was having only 10 UAE Dirham and 500/- with her while Hiromasa was having only 20/- with her. The gold bars were seized, statements under Section 108 of the Customs Act were taken from them and they were arrested. Rahila and Hiromasa were remanded to judicial custody on 9.11.2013. As per the order dated 21.12.2013, bail was granted to them with effect from 28.12.2013 on ce....
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....o be considered from different angles. However, we think that it is not necessary for us to finally speak on that now since the interim order granted to the petitioners in these cases by the Division Bench has carried the case further and decision on certain question may sometimes academic and not necessarily required to render justice to the parties in the cases in hand. 4. Obviously, without a copy of the detention order and the grounds of detention being served on the proposed detenue, it would be inconceivable that we should proceed to hear the matter on grounds as to the contents of the detention order or its grounds. The question as to whether there is due and fair application of mind by the detaining authority on the proposal of the sponsoring authority is also an issue that would fall within this class of arguments. 5. For the present, it would suffice that we treat these two cases as special situations and order that the detention orders and the grounds of detention of the petitioners be served on them on or before 31.07.2014. To enable the petitioners to seek remedy if any available to them, in accordance with law, as against the detention orders and gro....
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.... K.T.Sankaran was a member) held that the person against whom an order of detention under the COFEPOSA Act is passed is not entitled to get a copy of the order of detention at its pre-execution stage. In Nazarudeen's case, the Division Bench held thus: "5. ..... In SubhashPopatlal Dave v. Union of India and another ((2012) 7 SCC 533)), the Supreme Court held that a person against whom an order of detention is passed is not entitled to get the grounds of detention before execution of the order of detention. On the same principle, we are of the view that a person against whom an order of detention is passed is not entitled to get a copy of the order of detention under the Right to Information Act or otherwise. Section 4 of the COFEPOSA Act provides that a detention order may be executed at any place in India in the manner provided for the execution of warrants of arrest under the Code of Criminal Procedure, 1973. Clause (1) of Article 22 of the Constitution of India mandates that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest. In view of clause (3) of Article 22 of the Constitution, this ma....
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....the purpose of smuggling contraband to India. As per the order of bail granted by the Sessions Court, Ernakulam, the detenues were prevented from leaving the State of Kerala without previous permission of the learned Magistrate, till final report is submitted in the case. The detenues were also restrained from entering into any of the international airports in the State of Kerala during that period. The detenues contended that the detaining authority did not properly take note of the conditions of bail, surrender of passport etc. and, therefore, the subjective satisfaction arrived at by the detaining authority is vitiated. 11. We have gone through the grounds of detention. The grounds of detention gives all the details regarding the bail applications, the bail orders, the conditions imposed while granting bail, the surrender of passports and the statements given by the detenues under Section 108 of the Customs Act. The detaining authority after considering all these facts and circumstances, arrived at the subjective satisfaction that the detenues would continue to engage in prejudicial activities in future also, despite the conditions imposed while granting bail. It is to be not....
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....etent criminal court,great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court. 14. In Gimik Piotr v. State of Tamil Nadu and others [(2010) 1 SCC 609] the detenu was a Polish citizen having business in Singapore. When he was intercepted at the Chennai International Airport, it was found that he was having a large amount of foreign currency. It was contended that the detention of the detenu was based on a single, solitary and isolated act of smuggling activity. It was also contended that the passport of the detenu was also seized. The Supreme Court held, on facts, that there was no basis to conclude that the person concerned will again resort to smuggling activities or abetting such activities by staying in the country. However, the Supreme Court held that it is a well settled principle of law that even a single incident is enough to prove the propensity and potentiality of the detenu so as to justify the order of preventive detention. The decisions in Pooja Batra v. Union of India [(2009) 5 SCC 296] and Attorney General of India v Amratlal Prajivandas [(199....
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....l distribution inside the country by avoiding the payment of duty. In this background, absence of passport will not be a handicap to the detenu for his activities in the present case in which the fact situation is different from the one available in Rajesh Gulati's case (AIR 2002 SC 3094). Nor can we confine the meaning of the word 'smuggling' only to going out of country and coming back with goods which are contraband or to evade duty but may encourage such activities as well by dealing in such goods." 18. The specific allegation against the detenues is that they indulged in repeated smuggling activities of similar nature on earlier occasions also within a short span of time and smuggled huge quantities of gold from Dubai to India. Hiromasa is a person who knew things about aircrafts and activities going on in the airports. She was a cabin crew of Air India Express. Rahila is her close friend and she travelled along with Hiromasa during various trips. The allegation is that the detenues have connection with a racket involved in smuggling of huge quantity of gold to India. It is true that the passports of the detenues were seized/surrendered. That would only restrict....
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....14]. 20. In Smt.Santhosh Anand v. Union of India and others [(1981) 2 SCC 420], the Chief Secretary was the detaining authority. A representation was submitted by the detenu to the Chief Secretary. The Chief Secretary submitted the same for orders to the Administrator, his higher authority, who rejected the representation. The Supreme Court held that the representation was not rejected by the detaining authority and as such the constitutional safeguard under Article 22(5) cannot be said to have been strictly observed or complied with. In the case on hand, the representations were not forwarded to any higher authority as occurred in [(1981) 2 SCC 420] and, therefore, the dictum laid down therein would not apply to the present case. 21. In Kamleshkumar Ishwardas Patel v. Union of India and others [(1995) 4 SCC 51], the Supreme Court held thus: "38. Having regard to the provisions of Article 22 (5) of the Constitution and the provisions of the COFEPOSA Act and the PIT NDPS Act the question posed is thus answered: Where the detention order has been made under Section 3 of the COFEPOSA Act and the PIT NDPS Act by an officer specially empowered for that purpose either by t....
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....ntion was illegal. 23. In Babu.M. v. State of Kerala and others [2010 (1) KHC 214], the decision in Lekha Nandakumar v. Government of India [2004 KHC 724 = 2004 (2) KLT 1094] was distinguished and it was held thus: "13. .... The observations extracted above understood properly in the context, according to us, can only mean and insist that the order must be communicated effectively and not that the order as such must be communicated or that the authority which passed the order must himself communicate the order." In Babu's case, it was also held thus: "26. Quality and nature of consideration that a W.P.(Crl) No.115/2015 & W.P.(C) No.5276/2015 representation should receive must certainly depend upon the facts and circumstances of the case. But the irreducible minimum is that it must receive a real and proper consideration. The consideration must not be casual or mechanical. It is desirable 'that a brief expression of the principal reasons is made' (see -- Bhut Nath Mete - para. 23 (supra)). Such consideration must be revealed from the order ordinarily. Of course by production of the relevant files etc. when the order is challenged in judicial review, ....
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....ly satisfied because when the Minister of State for Home considered the representation and rejected it, he was acting for the State Government and the consideration and rejection of the representation was by the State Government. There is no requirement express or implied in any provision of the COFEPOSA Act that the same person who acts for the State Government in making the order of detention must also consider the representation of the detenu. In fact, as pointed out by Chinnappa Reddy, J. in Smt. Kavita v. State of Maharashtra [(1981) 3 SCC 558], "Government business can never get through if the same individual has to act for the Government in every case or proceeding or transaction, however advantageous it may be to do so." Moreover it would really be to the advantage of the detenu if his representation is not considered by the same individual but fresh mind is brought to bear upon it. We do not therefore see any constitutional or legal infirmity in the representation having been considered by the Minister of State for Home." 25. In the present case, the order of detention states that: "Whereas the Government of Kerala is satisfied with respect to the person known ....
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....signed the order of detention, is also the Additional Chief Secretary. 27. The representations submitted by the detenues were considered by the proper authority. The facts and circumstances were considered in detail and the detaining authority did not find any reason to accept the representations and to revoke the order of detention. We do not find any illegality, irregularity or impropriety in the manner in which the representations were rejected by the first respondent. 28. In the decisions of the Supreme Court in Pabitra N. Rana v. Union of India and others [(1980) 2 SCC 338], Julia Jose Mavely v. Union of India and others [AIR 1992 SC 139], Ummu Sabeena v. State of Kerala and others [(2011) 10 SCC 781], Rashid Kapadia v. Medha Gadgil and others [(2012) 11 SCC 745] and Smt.Icchu Devi Choraria v. Union of India and others [(1980) 4 SCC 531], the Supreme Court emphasised the need for considering the representation of the detenu as expeditiously as possible. The right of the detenu to make a representation and to have it considered expeditiously is a constitutional right under Article 22(5). Any unreasonable or unexplainable delay in considering the representation would be fa....
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.... and dispose of the representation before confirming the detention. Answering this question, the Supreme Court held thus: "19. There is no constitutional mandate under Cl, (5) of Article 22, much less any statutory requirement to consider the representation before confirming the order of detention. As long as the Government without delay considers the representation with an unbiased mind there is no basis for concluding that the absence of' independent consideration is the obvious result if the representation is not considered before the confirmation of detention. Indeed, there is no justification for imposing this restriction on the power of the Government. As observed earlier, the Government's consideration of the representation is for a different purpose, namely, to find out whether the detention is in conformity with the power under the statute. This has been explained in Haradhan Saha case, where Ray, C.J., speaking for the Constitution Bench observed that the consideration of the representation by the Government is only to ascertain whether the detention order is in conformity with the power under the law. There need not be a speaking order in disposing of su....
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....tment concerned, and so on. 14. In L.M.S. Ummu Saleema v. B.B. Gujaral [(1981) 3 SCC 317] it was held that there can be no doubt that the representation made by the detenu has to be considered by the detaining authority with the utmost expedition but as observed in Frances Coralie Mullin v. W.C. Khambra, [(1980) 2 SCC 275 at p.279, para 5], "the time-imperative can never be absolute or obsessive." In Madan Lal Anand v. Union of India [(1990) 1 SCC 81], the representation dated 17.1.1989 of the detenu who was detained under COFEPOSA was rejected after more than a month on 20.2.1989. After referring to L.M.S. Ummu Saleema [(1981) 3 SCC 317] it was held that the detaining authority had explained the delay in disposal of the representation and accordingly the order of detention cannot be faulted on that ground. In Kamarunnissa v. Union of India [(1991) 1 SCC 128], the representation made by the detenu on 18.12.1989 was rejected on 30.1.1990 and it was contended that there was inordinate delay in consideration of the representation. In the explanation given in the counter- affidavit filed in reply, it was submitted that considerable period of time was taken by the sponsoring au....
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....delay. The Government is not obliged to wait for the decision of the Advisory Board and it has to consider the representation independently of what the Advisory Board might say. In answer, the learned counsel appearing for the Central Government submitted that in view of the dictum laid down in K.M.Abdulla Kunhi and B.L.Abdul Khader v. Union of India and others [(1991) 1 SCC 476], the contention put forward by the petitioners that there was inordinate delay cannot be upheld. In K.M.Abdulla Kunhi and B.L.Abdul Khader v. Union of India and others [(1991) 1 SCC 476], the Constitution Bench approved the dictum laid down in Frances Coralie Mullin v. W. C. Khambra, [(1980) 2 SCC 275] and held thus: "16. We agree with the observations in Frances Coralie Mullin case [(1980) 2 SCC 275]. The time imperative for consideration of representation can never be absolute or obsessive. It depends upon the necessities and the time at which the representation is made. The representation may be received before the case is referred to the Advisory Board, but there may not be time to dispose of the representation before referring the case to the Advisory Board. In that situation the representati....
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....etenues cannot contend that their constitutional right under Article 22(5) has been infringed. 37. It is submitted that the alleged prejudicial activity was on 8.11.2013, that the order of detention was passed only on 25.2.2014 and it was executed only on 9.11.2014. According to the petitioners, there is delay in passing and executing the order of detention. In the counter affidavit filed by the first respondent, it is stated that the proposal for detention under the COFEPOSA Act was made on 7.1.2014, there was meeting of the Screening Committee on 18.1.2014 and the detention order was issued on 25.2.2014. Rahila and Hiromasa went into hiding on 25.2.2014. On 11.3.2014, directions were issued to execute the detention order and to furnish action taken report by the District Police Chief. On 17.3.2014, he was also directed to constitute a special investigation team to execute the detention order. On 24.3.2014, Writ Petitions were filed by Rahila and Hiromasa challenging the detention orders at their pre-execution stage. On 31.3.2014, this Court issued orders not to arrest them. On 16.7.2014, final judgment was passed in the Writ Petitions. On 27.10.2014, the first respondent filed....
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....nd initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention. Third, where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances." 40. In the light of the decision of the Constitution Bench in Haradhan Shah v. The State of W.B. and others [(1975) 3 SCC 198 = AIR 1974 SC 2154], the contention put forward by the petitioners that whether the detenues have compli....
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....nditions cannot be said to be a vital document. ......." 43. When the persons involved in the smuggling activities were arrested and they were granted bail, they were bound to comply with the conditions of bail. That they complied with the conditions of bail is not a virtue on their part which is to be favourably taken note of by the detaining authority while passing the order of detention or while executing the order of detention. If they violate the conditions of bail, the consequences would follow. That the detenues complied with the conditions of bail and also the conditions imposed in the interim orders passed in the Writ Petitions, would not in any way deter the authorities from executing the order of detention. It is not necessary to revoke the order of detention on that ground before the order of detention is executed. In the present case, the orders passed in the Writ Petitions were stayed by the Supreme Court. Therefore, those orders could be ignored while executing the orders of detention. 44. Sri.P.S.Biju, the learned counsel appearing for the petitioner in W.P.(C) No.5276 of 2015, submitted that Rahila is undergoing detention since 9.11.2014 and the High Court ex....
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....evant factors while arriving at the subjective satisfaction, that the relevant materials were not placed before the detaining authority, that there is no live-link between the prejudicial activity and the order of detention and that the live-link has been snapped, etc. etc. The Court can also hold that the continued detention of the detenu is illegal in certain circumstances, for eg., when the representation of the detenu is not considered expeditiously. However, the High Court does not have the jurisdiction to limit the duration of the detention while disposing of a writ petition challenging the validity of the order of detention or challenging the continued detention under the COFEPOSA Act. Therefore, we reject the submission made by the learned counsel for the petitioner in W.P.(C) No.5276 of 2015 in this regard. 45. Learned Director General of Prosecution submitted that Rahila and Hiromasa were found to have indulged in various smuggling activities within a short duration and that is a relevant consideration in the matter of arriving at the subjective satisfaction by the detaining authority. In Attorney General for India and others v. Amratlal Prajivandas and others [(1994) ....