TaxTMI 
TaxTMI 
2015 (5) TMI 1041
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....led by Mohamed Iqbal, the father -in -law of Nazarudeen, was argued in detail. Before the arguments concluded, W.P.(C) No. 2161 of 2015 was filed by Nazarudeen himself. Therefore, W.P.(C) No. 19740 of 2014 has become infructuous. Hereinafter H. Nazarudeen is referred to as the petitioner. 2. The petitioner has produced the order of detention as Ext. P4. According to him, he obtained Ext. P4 order under the Right to Information Act. This is disputed by the learned counsel appearing for the respondents. It is not known how the petitioner got a copy of the order of detention before he was arrested. In Subhash Popatlal Dave v. Union of India & Anr. ( : (2012) 7 SCC 533)), the Supreme Court held that since clause (5) of Article 22 of the Constitution provides that the grounds for detention are to be served on a detenu after his detention, the provisions of S. 3 of the Right to Information Act, 2005 cannot be applied to cases relating to preventive detention at the pre -execution stage. The Supreme Court held that S. 3 of the Right to Information Act has to give way to the provisions of clause (5) of Article 22 of the Constitution. Even the provisions relating to production of an arrest....
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.... 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 mandate shall not apply to any person who is arrested or detained under any law providing for preventive detention. Clause (5) of Article 22 of the Constitution provides that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall af....
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....d that on an earlier occasion also, goods were smuggled in the unaccompanied passenger baggage of one Sukumaran Rajeev. He stated that Nazar is involved in the business of importing goods from abroad using passport of Gulf returned passengers. It was found that Nazar is none other than the petitioner Nazarudeen. The petitioner was involved in smuggling activities earlier. Ext. P1 further reveals that a summons dated 10.1.2005 was sent by the Superintendent of CP&IU, Thiruvananthapuram to the petitioner to appear before him. The petitioner sent a telegram stating that he was held up and requested for ten days' time for his appearance. He never appeared thereafter. On 17.1.2005, the petitioner sent a letter to the Superintendent CP & IU, Thiruvananthapuram, in which he stated that he had no connection with the goods seized by Customs. Another summons dated 25.2.2005 was issued to the petitioner by registered post. But the said summons was returned by the postal authorities with an endorsement "addressee had left India". Frequent enquiries made in the locality and the residence of the petitioner revealed that he left India for abroad. It is alleged in Ext. P1 that the petitioner i....
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....ages of the passport was produced as Ext. P3. Only when the police came to his house recently, he came to know about the proceedings and the issuance of Ext. P4 order. The passport of the petitioner was renewed on 12.8.2002 and 14.3.2007 by the Passport Officer, Thiruvananthapuram. On 16.4.2014, the passport of the petitioner was renewed from the Consulate General of India, Dubai. He came to India on several occasions as revealed from Ext. P3. The marriage of the petitioner was solemnized on 7.9.2006 at an auditorium at Beemappally, situated about 500 metres away from Poonthura Police Station. Several persons participated in the wedding. The live link for executing Ext. P4 has been snapped, thus rendering Ext. P4 otiose. Counter affidavits were filed in W.P.(C) No. 19740 of 2014 and those counter affidavits were allowed to be adopted in W.P.(C) No. 2161 of 2015. Apart from stating the facts which led to the initiation of the proceedings, in the counter affidavit filed by the second respondent it is stated thus: "11. It is relevant to submit that before the issuance of the Show Cause notice enough opportunity was given to him to present his case before the investigating officers ....
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....83, 84 and 85 (proclamations in respect of persons absconding and attachment of property) of the Criminal Procedure Code..." 8. In 1992 Supp (1) SCC 496 (Alka Subhash Gadia's case), dealing with the question as to the challenge against the order of detention at its pre -execution stage, the Supreme Court held thus: ".... The courts have the necessary power and they have used it in proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre -execution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandon....
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....his advantage circumventing the order of detention. On the one hand, he can challenge the order of detention at the pre -execution stage on any ground, evade the detention in the process and subsequently would be allowed to raise the plea of long pendency of the detention order which could not be served and finally seek its quashing on the plea that it has lost its live link with the order of detention. This, in my view, would render the very purpose of preventive detention laws as redundant and nugatory which cannot be permitted......." In the separate judgment rendered by Justice J. Chelameswar, concurring with Justice Gyan Sudh Misra, it was held: "43. If a preventive detention order is to be quashed or declared illegal merely on the ground that the order remained unexecuted for a long period without examining the reasons for such non -execution, I am afraid that the legislative intention contained in the provisions such as S. 7(1)(b) of the COFEPOSA Act would be rendered wholly nugatory. Parliament declared by such provision that an (recalcitrant) individual against whom an order of preventive detention is issued is under legal obligation to appear before the notified autho....
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....00) 2 SCC 360); Abdul Rahman v. State of Kerala ( : 1990 (1) KLT 440(SC)) and Sushma Bharadwaj v. Addl. Chief Secretary to Government & Anr. : (2012 (2) KLT SN 5 (C. No. 3) : 2012 (2) KLJ 441). In most of these cases, the Writ Petitions were filed after the execution of the order of detention. We are also of the view that the facts and circumstances in the present case are different from the facts of the case involved in the other cases cited by the learned counsel for the petitioner. 11. In the present case, it is clear that the petitioner deliberately evaded arrest and absconded after getting summons issued by the Superintendent, C.P. & I.U., Thiruvananthapuram on 10.1.2005 and 25.2.2005. The original of Ext. P3 passport produced for our perusal by the petitioner shows that on most of the occasions when the petitioner came to India, he arrived at Bangalore, Mumbai and Chennai airports. The learned counsel for the petitioner submitted that the question is not whether the petitioner was available at his native place but whether he was available in India. The learned counsel submitted that even if the petitioner arrived at Calcutta or Srinagar or any other place in India, it should....