AI Drafter 
TaxTMI 
TaxTMI 
2017 (3) TMI 1070
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....tion has been filed by the brother of the detenue. 3. The necessary facts to be noticed for disposal of the writ petition and as stated by the petitioner in the petition are that the detenue is a resident of Bhatkal, Karnataka. He has completed his B.Com. in the year 2003. Besides his old parents, he has four brothers and two sisters. Initially, the detenue was working as a Sales Executive in Bangalore, however, in the year 2008 he shifted to Dubai in search of a job and better future prospects. At the relevant time, the detenue was working with M/s Richmand General Trading LLC. Simultaneously, the detenue started a small time business wherein he used to trade in electronics and garments. Detenue used to purchase garments from Dubai and used to sell the same to shopkeepers in Bahrain and sometimes customers directly. In order to earn extra money, detenue also used to book online air tickets by charging some commission. Detenue also used to book air tickets of one Ajmal Sheikh in Dubai. 4. On 02.11.2015, detenue was approached by Ajmal Sheikh for booking of an air ticket for one Smt. Shehnaz Laiq Ahmed Ansari. Accordingly, the detenue booked the air ticket in the name of Ms.An....
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....tinued to stay at his native place at Bhatkal, Karnataka when he learnt about an Official Gazette publication in the newspaper at Bhatkal on 05.08.2016 wherein the detenue was required to be detained under the detention order passed on 20.05.2016. Detenue was directed to appear before the Director General of Police, Government of Goa, Panji, within 7 days from the date of the publication. Being a law abiding citizen, the detenue reached Goa on 10.08.2016 and surrendered before the police in compliance with the detention order. On 10.08.2016 itself, the detenue was served with a single page detention order. On the following day, he was served with a list of documents, grounds of detention and other relied upon documents. The detenue has also filed his representation before the Detaining Authority, Central Government and the Advisory Board and had also appeared before the Advisory Board. 8. Various grounds have been raised by Mr. Pradeep Jain, learned counsel for the petitioner in support of his submission that the detention order is wholly unwarranted, per se illegal, unconstitutional being without jurisdiction and having been passed without any application of mind. The submissio....
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....t under the facts and circumstances of the present case is not justified and time and again, the High Court and the Supreme Court have quashed the detention orders which are based solely on a solitary incident without having any other justified grounds. 11. It is next submitted that no document or material has been placed on record by the Detaining Authority except the statement of the detenue as well as of Smt. Shehnaz Laiq Ahmed Ansari to substantiate their allegation that the detenue was in any way connected with the smuggling of gold jewellery. In fact, the detenue has no past history in relation to any alleged smuggling activities or any other illegal activity and detenue has been simply doing his business and job in order to supplement his income for which he had gone to Dubai. 12. In support of this contention, counsel has relied upon the judgment passed in the case of Gimik Piotr v. State of Tamil Nadu and Ors., (2010) 1 SCC 609, wherein it was held as under:- "23. The Act contemplates two situations for exercise of the power of preventive detention viz. to prevent violation of foreign exchange regulations and to prevent smuggling activities. The justification for ....
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....he propensity and potentiality to continue to indulge in such activities in future, the mere fact that on one occasion person smuggled goods into the country would not constitute a legitimate basis for detaining him under the COFEPOSA. This can be gathered from the past or future activities of the said person." 25. In Gurdev Singh v. Union of India [(2002) 1 SCC] this Court held: "20. ... Whether the detention order suffers from nonapplication of mind by the detaining authority is not a matter to be examined according to any straitjacket formula or set principles. It depends on the facts and circumstances of the case, the nature of the activities alleged against the detenu, the materials collected in support of such allegations, the propensity and potentiality of the detenu in indulging in such activities, etc. The Act does not lay down any set parameters for arriving at the subjective satisfaction by the detaining authority. Keeping in view the purpose for which the enactment is made and the purpose it is intended to achieve, Parliament in its wisdom, has not laid down any set standards for the detaining authority to decide whether an order of detention should be passe....
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....not outside India. 16. Reliance is placed on the decision rendered in the case of Moulana Shamshunnisa and others v. Additional Chief Secretary and Others, (2010) 15 SCC 72 and Gimik Piotr (Supra). In Moulana Shamshunnisa (Supra), it has been held as under: "8. In Rajesh Gulati's case (supra), the question that came to be canvassed on behalf of the detenu was that as his passport continued to be in the possession of the customs authorities, there was no question of the appellant travelling abroad or indulging in any smuggling activity. This plea was accepted by this court by observing that it was not the case of the Detaining Authority at any stage that the detenu would be able to continue with his smuggling activities within India, though he could not go abroad his passport having been seized. It was observed thus: "15. ... The conclusion that despite the absence of his passport the appellant could or would be able to continue his activities is based on no material but was a piece of pure speculation on the part of the Detaining Authority. These findings are sufficient to invalidate the impugned detention order and it is not necessary to consider the other issues r....
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....the aforesaid document is extremely vital and relevant for the purpose of the case which, in fact, tilts the very basis and foundation of the subjective satisfaction. Had this document been placed before the Detaining Authority, the mind of Detaining Authority could have been influenced otherwise. It is very strange as to how the sponsoring authority deliberately and intentionally suppressed the aforesaid vital document. It is a settled law that non-placement of vital document vitiates the detention order. 19. It is further contended that besides the above document, in the present case the seizure of goods had taken place on 03.11.2015 vide panchnama dated 03.11.2015, however, no separate seizure memo has been placed or relied upon in the grounds of detention and all what has been placed is a mere panchnama which records that the goods were seized by the Customs Officers. Further, as per the Customs Act, 1962 the show-cause notice had to be issued by 02.05.2016 (i.e. within six months from the date of seizure 03.11.2015), however, neither any show-cause notice has been placed on record nor any application seeking extension of time for issuance of show-cause notice has been place....
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.... the Detaining Authority for execution of the detention order, whereas the detenue was available in his house throughout the time as the detenue was not able to join his office or work for the reason that his passport was taken under custody by the DRI. 25. It is also contended that no Officers of customs or any other authority had any time visited the house of the detenue for the purpose of execution of the detention order. It is the duty of the Detaining Authority to show before the Court as to what effective steps were taken by the Detaining Authority for the purpose of execution of the detention order. Even in the response filed by the respondents, no satisfactory explanation has been given by the respondents as to what effective measures were taken by them to serve the detenue at Bhatkal where the permanent residence of the detenue is situated which was very much in the knowledge of the respondents as is clear from the statement recorded of the detenue. There was a delay of almost 80 days in the execution of the detention order. 26. In support of his arguments, the learned counsel for the petitioner relies upon A. Mohammed Farook v. Jt. Secy. to G.O.I., (2000) 2 SCC 360 ....
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....a proficient manner; that he knew the flight sector of Bahrain to Doha and Doha to Dubai with intricate knowledge of flight timings; that he was taking instructions from Abdul Rehman and his brother Ajmal Sheikh; that he undertook a journey from Bahrain to Dubai especially for the purpose of collecting gold at Dubai and then to act as a carrier of carrying gold from Dubai to Doha, where, by an independent act, he had already planted Mrs. Ansari, facilitating her to travel from Dubai to Doha to enable her to receive gold and then travel to another destination other than Mumbai, where she was scheduled to land. 31. The above facts, if interpreted in the context that he has a track record of being in transit at Doha Airport for 53 times, goes on to show that he is a professional carrier and therefore, a person who is capable of acting with so much precision; he is a potential danger, evocative of his propensity. Mr. Jain, learned ASG, relied upon Madhab Roy alias Madha Roy v. State of West Bengal, AIR 1975 SC 255: (1974) 4 SCC 548 where the issue pertained to detention of a person upon a single solitary incident if carried out with certain expertise, is not to be treated as an isol....
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....strate relied on any ground not communicated to the petitioner, or that in making the order of detention he was guilty of any violation of the statutory provision in Section 8 or of the constitutional safeguard in Article 22(5)." (Emphasis Supplied) 32. Learned ASG further submits that since the act of acting as a carrier was for a monetary consideration of 1000 dirhams, there was bound to be propensity in the act of the detenue, as held by the Supreme Court in the case of Mohammed Sultan v. Joint Secretary of Government, (1991) 1 SCC 144: "7. ....In the grounds of detention reference has been made to the statements dated September 30, 1989 and October 1, 1989, made by the Petitioner before the Customs Officer wherein the Petitioner had stated that his income was not adequate for his maintenance and in order to earn money he had gone to Singapore after obtaining a passport in a false name and at Singapore the Petitioner developed friendship with one Majeed and on assurance given by Majeed that he would bear the cost of the air ticket of the Petitioner amounting to Rs. 5,200/- and would also pay to the Petitioner a sum of Rs. 2,000/- the Petitioner agreed to carry gold bars....
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....nsel has relied upon Maqsood Yusuf Merchant v. Union of India, 2008 (103) DRJ 634 (paragraph 16) to show the scope of S. 188 of Cr.P.C. 36. As regards the detenue‟s argument that under the circumstances of his passport being under custody of the DRI, there was no occasion for the detenue to travel abroad and consequently the detenue will not indulge in any prejudicial activity, it is contended that the same is ill-placed. A smuggling activity with a syndicate does not mean that the detenue should necessarily travel abroad. With contacts developed, such persons can guide other carriers. The fact that the passport was with DRI and also that an application was filed for its release was also considered by the Detaining Authority. Reference of the same can be found at paragraphs 5 and 68 of the Grounds of Detention. This shows due application of mind by the Detaining Authority. 37. It is further contended that the question whether grounds of detention can give rise to the satisfaction required for making the order is beyond the scope of the inquiry of the Court. The same was dealt by the Apex Court in State of Bombay v. Atma Ram, AIR 1951 SC 157. In this case, the Apex Court....
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.... Order, being aware of this fact, clearly shows that it did not regard the application for cancellation of bail to be of any consequence. In the case of Union of India & Ors. v. Arvind Shergill & Anr., AIR 2000 SC 2924, the Apex Court held as follows: "4. The High Court has virtually decided the matter as if it was sitting in appeal on the order passed by the Detaining Authority Action by way of preventive detention is largely based on suspicion and the court is not an appropriate forum to investigate the question whether the circumstances of suspicion exist warranting the restraint on a person. The language of Section 3 clearly indicates that the responsibility for making a detention order rests upon the Detaining Authority who alone is entrusted with the duty in that regard and it will be a serious derogation from that responsibility if the court substitutes its judgment for the satisfaction of that Authority on an investigation undertaken regarding sufficiency of the materials on which such satisfaction was grounded. The court can only examine the grounds disclosed by the Government in order to see whether they are relevant to the object which the legislation has in view, tha....
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....istrate relaxing the conditions for the release of the Petitioner on bail. As a corollary to the said submission it has been urged by the Learned Counsel that the Petitioner was not supplied with the copies of these documents and that this has resulted in denial of the right of the Petitioner to make a representation under Article 22(5) of the Constitution. In support of the aforesaid submission reliance has been placed on the decision of this Court in M. Ahamedkuttyv. Union of India (1990) 2 SCC 1. We find no substance in this contention. The application submitted by the Petitioner before the Additional Chief Metropolitan Magistrate for relaxing the conditions for his release on bail and the order dated October 31, 1989 passed by the Additional Chief Metropolitan Magistrate on the said application whereby the conditions on which the Petitioner was released on bail were relaxed, cannot be regarded as material documents and the failure to produce the same before the Detaining Authority before it passed the order of detention would not vitiate the order of detention. In this connection reference may be made to the decision of this Court in Haridas Amarchand Shah v. K.L. Verma (1989) ....
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.... Detaining Authority: The non consideration of the same by the Detaining Authority would not, therefore, impair the satisfaction arrived at by the Detaining Authority and would not vitiate the order of detention. For the same reason the non-supply of the copies of the same to the Petitioner would not result in denial of the right of the Petitioner to make a representation under Article 22(5) of the Constitution." (Emphasis Supplied) 44. The Supreme Court has gone further ahead and held that the Courts under the Writ Jurisdiction cannot decide on the adequacy of the documents on record of the Detaining Authority. The same is to be as per the subjective satisfaction of the Detaining Authority. This was held in State of Gujarat v. Adam Kasam Bhaya, AIR 1981 SC 2005: (1981) 4 SCC 216 as follows: "6. ... The High Court in its writ jurisdiction under Article 226 of the Constitution is to see whether the order of detention has been passed on any materials before it. If it is found that the order has been based by the detaining authority on materials on record, then the Court cannot go further and examine whether the material was adequate or not, which is the function of an App....
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.... Therefore, the relevance of provision for preventive detention of the antisocial elements indulging in smuggling and violation and manipulation of foreign exchange in COFEPOSA continues even after repeal of FERA. 69. The menace of smuggling and foreign exchange violations has to be curbed. Notwithstanding the many disadvantages of preventive detention, particularly in a country like ours where right to personal liberty has been placed on a very high pedestal, the Constitution has adopted preventive detention to prevent the greater evil of elements imperilling the security, the safety of State and the welfare of the Nation. 70. On the touchstone of constitutional jurisprudence, as reflected by Article 22 read with Articles 14, 19 and 21, we do not think that the impugned provision is rendered unconstitutional. There is no constitutional mandate that preventive detention cannot exist for an act where such act is not a criminal offence and does not provide for punishment. An act may not be declared as an offence under law but still for such an act, which is an illegal activity, the law can provide for preventive detention if such act is prejudicial to State security. After all,....
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.... 48. Mr.Sanjay Jain further submits that the Detaining Authority (either Central or State Government, as the case may be) upon receiving such a proposal after scrutiny by the Screening Committee, considers the case and decides whether the Detention Order needs to be passed. If the Detaining Authority decides to pass the Detention Order, the same is to be served upon the proposed detenue as soon as possible through the Executing Authority. The Executing Authority is the senior-most police officer of the State where the proposed detenue is proposed to be detained, which happens to be the place where the Sponsoring Authority is located or is in the closest proximity. It is for this reason, that the detention orders were first forwarded to the Director General, Goa, where the proposed detenue was proposed to be detained, who in turn sent it to the concerned authorities for the same being served within the local jurisdiction. This is as per the internal guidelines and practice of the Government. In this case, the Sponsoring Authority, till such time the order under Section 7(1)(b) was issued, kept on inquiring from the Executing Authority about the status of the service. The reason why ....
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....he courts may inter alia take into account the expertise shown [Madhab Roy (Supra) (paragraph 2)] as well as the amount of preparation undertaken by the detenue [Mohammed Sultan (Supra) (paragraph 7)]. At the same time, higher standard of proof is required to justify the detention order as the matter involves the curtailing the personal liberty of a person. 53. We proceed to analyse the case of the detenue. Admittedly, the detention order is premised in the smuggling of 10 kg gold jewellery seized at the Dabolin Airport, Goa. The incident took place as under: Time Act Detenue located at Bahrain On 01.11.2015 (Sunday) Before 02:42 AM Detenue booked two tickets for himself: • From Bahrain to Dubai via Doha (same day) • From Dubai to Bahrain via Doha (next day) 07:00 AM to 09:10 AM Detenue travels to Dubai Time Act Carrier/Smt.Ansari already in Dubai holding a direct ticket from Dubai to Mumbai for 15.11.2015 On 02.11.2015 (Monday) Before 01:38 AM Detenue booked new ticket for Smt.Ansari from Dubai to Goa via Doha for the same day. Detenue picks up 10 kg of gold from Abdul....
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....oing, it is clear that the detenue had a vital role to play in the smuggling of goods into India. He showed expertise in flight timings to enable booking of flight tickets in the nick of time. He thereafter ensured the presence of the carrier at the transit point and personally handed over the packet to her. All of this, admittedly, for a consideration of 1000 dirhams. What this reveals is that the detenue, though may not be the king-pin, but was atleast acting as a wazir or bishop, efficiently planning and coordinating the entry of the contraband in India. He cannot be said to be a mere carrier. Accordingly, we are of the opinion that the propensity and potentiality of future activities is manifest as the incident was clearly an organized act perpetrated with great expertise and preparation. 57. Therefore, this ground of the petitioner deserves to be rejected. SUBJECTIVE SATISFATION HAS BEEN INCORRECTLY ARRIVED AT BY THE DETAINING AUTHORITY 58. The next aspect to be considered is as the whether the subjective satisfaction of the detaining authority has been wrongly arrived at? This contention of Mr. Pradeep Jain is premised in the fact that the detenue had voluntarily sur....
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....Court relying upon Rajesh Gulati (Supra) held that since "[t]he Customs Department has retained the passport of the detenu. The likelihood of the appellant indulging in smuggling activities was effectively foreclosed." (paragraph 32). Thereafter, the Supreme Court came to the following conclusion: "35. In our considered view, the submission of the learned counsel for the appellant requires to be accepted. In the instant case as the facts reveal that there was no pressing need to curtail the liberty of a person by passing a preventive detention order. Foreign currency cannot be smuggled as the person cannot move out of the country on account of his passport being impounded. Merely because a person cannot otherwise survive in the country, is no basis to conclude that a person will again resort to smuggling activities, or abetting such activities by staying in the country. There is higher standard of proof required in these circumstances involving the life and liberty of a person. The material provided by the respondents is not enough to justify the curtailment of the liberty of the appellant under an order of preventive detention in the facts and circumstances of the case." ....
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....heres. Sub-clause (i) may be invoked when the detenue himself may smuggle goods, while sub-clause (ii) enables detention of a person who may abet smuggling. In Rajesh Gulati (Supra), Gimik Piotr (Supra) and Moulana Shamshunnia (Supra), the detenue was a carrier of the contraband who had been detained in order to prevent him from indulging in similar activities in the future. To put it differently, the detenue was a "pawn" actually transporting the goods from point "A" to point "B". In such circumstances, the surrendering of passport may go a long way to inhibit or even foreclose his potentiality altogether. 66. That is not the case in the present matter. The detention order in the present matter is under Section 3 (1) (ii) and not Section 3 (1) (i). The relevant portion of the grounds of detention read as under: "70. Considering the fact that you boldly conspired and attempted smuggling of gold as an active member of organized smuggling syndicate through Dabolim Airport, I am satisfied that you have a high propensity and potentiality to indulge in aforesaid prejudicial activities again. I am therefore satisfied that you should be immobilized by detention under COFEPOSA Act, 1....
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....od Yusuf Merchant (Supra) was hearing a case against a detention order at the pre-execution stage. One of the contentions of the counsel for the petitioner therein was that the petitioner "was not resident in India at the relevant time"; the petitioner "at all material times ... was not in India" and all the acts attributable to him "took place outside India." Rejecting the contention, Justice Vikramajit Sen, giving the opinion for the bench, observed as under: "13. With due respect to the Commission, we are unable to find any reasoning behind their conclusion that "even on merits, it can be seen that the applicant had only signed some documents at the instance of the principal offender Sh. Yusuf Dhanani. Sh. Yusuf Dhanani has been heavily penalised for it in the said Final order. Thus on merits too the penalty against this person is not attracted and no prudent adjudicator would order levy of penalty in such facts.....If the contention of the Revenue is accepted then all foreign suppliers, all over the world, who have connived and colluded will (sic. with) for under valuation by raising two sets of invoices should have the subject matter of show cause notice issued by the Custo....
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.... the Petitioner was party to any conspiracy or other fraudulent plan hatched or sought to be implemented by Mr. Dhanani, abettment of a crime committed in India would uncontrovertably be made out. The observation of the Settlement Commission that action has not been taken against a foreigner does not appeal to us. There is no bar in prosecuting any person who has been abetting in a violation of the Customs Act merely because such action may not have been initiated in the past. We are required to pre-judge the entire issue at the pre-execution stage of the detention orders. We must be loathe to do so. ... 16. This discussion would not be comprehensive without a consideration of Section 188 of the Code of Criminal Procedure, 1974 (Cr.P.C). This provision deals with offences committed outside India. In the case of Indian citizens there are no restriction as to the place or situs where the offence has allegedly occurred, whereas non citizens would have to have been aboard an „Indian Flag‟ vessel for the Section to apply. This amply clarifies the observations made by the Settlement Commission pertaining to the non-prosecution of foreigners heretofore in similar matters....
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....render such goods liable to confiscation under section 111 or section 113;" "111. Confiscation of improperly imported goods, etc.- The following goods brought from a place outside India shall be liable to confiscation:- (a) any goods imported by sea or air which are unloaded or attempted to be unloaded at any place other than a customs port or customs airport appointed under clause (a) of section 7 for the unloading of such goods; (b) any goods imported by land or inland water through any route other than a route specified in a notification issued under clause (c) of section 7 for the import of such goods; (c) any dutiable or prohibited goods brought into any bay, gulf, creek or tidal river for the purpose of being landed at a place other than a customs port; (d) any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force; (e) any dutiable or prohibited goods found concealed in any manner in any conveyance; (f) any dutiable or prohibited goods required to be mentioned under the regu....
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....pon the capacity of the Detaining Authority to pass a detention order. It is settled law that the COFEPOSA Act is preventive in nature and not punitive for the acts committed in the past. For the acts perpetrated in the past, which may or may not constitute offences, the law takes its own course. The purpose of detention under the COFEPOSA Act remains to prevent future acts [See Haradhan Saha v. The State of West Bengal and Others, (1975) 3 SCC 198]. It is only for establishing the propensity and potentiality of the detenue that his past antecedents and conduct are taken into account and not otherwise. In a sense, the liberty of the detenue is not taken away for his past but to prevent him for indulging in analogous activities in the future, based upon the propensity and potentiality established from his past. It is irrelevant as to whether such activities were conducted in the territory of India or on foreign land, so long as the subjective satisfaction is correctly arrived at. 73. Accordingly, we find no infirmity on this count as well. NON-PLACEMENT OF VITAL DOCUMENTS 74. Mr. Pradeep Jain has contended that the application seeking the cancellation of bail filed by th....
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....he other would equally vitiate the subjective satisfaction and invalidate the detention order. (Ashadevi v. K. Shivraj, Addl. Chief Secy. to the Govt. of Gujarat, (1979) 1 SCC 222). 30. In the case of Ahamed Nassar v. State of Tamil Nadu (1999) 8 SCC 473, the Supreme Court observed that every conceivable material which is relevant and vital which may have a bearing on the issue, should be placed before the Detaining Authority. The Sponsoring Authority should not keep it back. Para 20 of the said judgment is extracted hereunder:- "20.......... A man is to be detained in the prison based on the subjective satisfaction of the Detaining Authority. Every conceivable material which is relevant and vital which may have a bearing on the issue should be placed before the Detaining Authority. The Sponsoring Authority should not keep it back, based on its interpretation that it would not be of any help to a prospective detenu. The decision is not to be made by the Sponsoring Authority. The law on this subject is well settled; a detention order vitiates if any relevant document is not placed before the Detaining Authority which reasonably could affect it's decision." 31. The preve....
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....ment hence the next date of hearing is fixed on 01.06.2016 in the CJM Court Margao." 80. In view of the stand of the respondents, we find no merit in the said contention of the petitioner. RESORT TO PREVENTIVE DETENTION WHEN ORDINARY LAW IS SUFFICIENT TO DEAL WITH THE SITUATION 81. The next contention of the learned counsel for the petitioner is that the present situation could have been dealt with under the ordinary law of the land and there was no need to resort to the law of preventive detention. 82. Law enabling the State to deprive a person's liberty without trial is clearly draconian in nature and should not be taken lightly by any civilized society. It is a necessary evil to be resorted to in the rarest of circumstances. At the same time, the violation of foreign exchange regulations and smuggling activities may tear apart the very economic fabric of the Nation's economy, which has necessitated statutes such as the COFEPOSA Act. [See Dropti Devi (Supra)]. 83. Prior to dealing with the contentions of the parties, we may trace the development of the law upon the subject. In Biram Chand v. State of U.P., (1974) 4 SCC 573, it was held that recourse to both crimina....
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....ur opinion, Article 22(3)(b) of the Constitution of India which permits preventive detention is only an exception to Article 21 of the Constitution. An exception is an exception, and cannot ordinarily nullify the full force of the main rule, which is the right to liberty in Article 21 of the Constitution. Fundamental rights are meant for protecting the civil liberties of the people, and not to put them in jail for a long period without recourse to a lawyer and without a trial. As observed in R. v. Secy. of State for the Home Deptt., ex p Stafford [(1998) 1 WLR 503 (CA)] : (WLR p. 518 F-G) " ... The imposition of what is in effect a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily with ordinary concepts of the rule of law." ... 21. It is all very well to say that preventive detention is preventive not punitive. The truth of the matter, though, is that in substance a detention order of one year (or any other period) is a punishment of one year's imprisonment. What difference is it to the detenu whether his imprisonment is called preventive or punitive? 22. Mr Altaf Ahmed, learned Senior Counsel for the respondents,....
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....must, however, be construed in the background of the constitutional scheme in Articles 21 and 22 of the Constitution (which we have already explained). Article 22(3)(b) is only an exception to Article 21 and it is not itself a fundamental right. It is Article 21 which is central to the whole chapter on fundamental rights in our Constitution. The right to liberty means that before sending a person to prison a trial must ordinarily be held giving him an opportunity of placing his defence through his lawyer. It follows that if a person is liable to be tried, or is actually being tried, for a criminal offence, but the ordinary criminal law (the Penal Code or other penal statutes) will not be able to deal with the situation, then, and only then, can the preventive detention law be taken recourse to. 34. Hence, the observation in SCC para 34 in Haradhan Saha case [(1975) 3 SCC 198 : 1974 SCC (Cri) 816] cannot be regarded as an unqualified statement that in every case where a person is liable to be tried, or is actually being tried, for a crime in a criminal court a detention order can also be passed under a preventive detention law." (Emphasis Supplied) 86. We may also take note....
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....N ORDER 88. The final aspect to be considered is whether delay of about 80 days in the execution of the detention order can vitiate the subjective satisfaction arrived at by the Detaining Authority? The detention order was passed on 20.05.2016, while the same was not executed until the surrender of the detenue on 10.08.2016. 89. Prior to dealing with the contentions of the parties, we deem it appropriate to revisit the law on the subject. 90. It is settled law that all the authorities should act promptly and leave no stone unturned to give effect to the detention order. Where the authorities show a lackadaisical attitude towards communicating the order, the courts have come to a conclusion that the live link between the order and its execution was „snapped‟ and consequently, the subjective satisfaction having arrived at stood vitiated. 91. In A. Mohammed Farook (Supra), the Supreme Court was dealing with a scenario wherein there was a gap of 40 days in the execution of the detention order and it was contended that all the while the detenue was residing and working in Chennai to the knowledge of the authorities. Since no reasonable explanation was forthcoming....
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....n Circular bearing F.No.671/6/2001-Cus.VIII, Government of India, Ministry of Finance, Department of Revenue, Central Economic Intelligence Bureau, in support of his arguments that the Department has recognised the fact that an order of detention is to be served expeditiously. The circular has also noticed that the sponsoring authority tends to harbour a feeling that they have no further role to play once the detention order has been passed and this notion needs to be dispelled. It has been highlighted in the Circular that the sponsoring authority must keep in mind the fact that their role and objective is not to have a detention order issued but also have the person detained because only then the object and purpose of issuing the detention order is really achieved. It is also contended that there is no satisfactory explanation on behalf of the respondent in this regard. We find no force in the submission of learned counsel for the petitioner. ... 30. No doubt the underlying rule is that once a detention order has been passed every effort is to be made by the Department to ensure service of the detention order on the detenue and in case of unexplained delay, the order is liab....
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....feeling that they have no further role in the matter and it is entirely for the Detaining Authority and the Executive Authority to ensure that the Detention Order is served. This wrong notion needs to be dispelled forthwith. The Sponsoring Authority must keep in mind the fact that their role and object is not confined merely to having a detention order issued but to have a person detained otherwise the very object of issuing the detention order gets defeated. 6. All the Sponsoring Authorities, Executive Authorities and the Detaining Authorities are once again requested that they must ensure that timely action is taken for execution of the detention order after it has been issued. Simultaneously, they should keep detailed records of the efforts made for execution of the Detention order from time to time, as it would be important to convince the Advisory Board/Hon'ble High Courts, if need arises......" (Emphasis Supplied) 33. The detention order is passed as a preventive measure and therefore, its purpose is defeated if the detenue is not detained at the earliest possible opportunity after the alleged act. The actions of the respondents should display a sense of urgen....
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....a mere formality and a futile exercise. 47. The law in this regard is well-settled. After the passing of the detention order, the detaining authority must ensure that the order of detention is served upon the detenue at the earliest opportunity available unless and until respondents are able to give a satisfactory explanation for the reasons of nonexecution of the detention order. 48. In this case, although an explanation is sought to be given but the explanation cannot be accepted as firstly the detenue is a Government servant and he was not absconding and was available and performing his duties at Bhubneswar. Further, material placed on record would show that the detenue continued to perform his duties upto 13.7.2015. Thus, in our view, the order of detention is liable to be quashed as there is unexplained delay in execution of the impugned detention order." (Emphasis Supplied) 96. Accordingly, the present case is also to be decided upon the touchstone of the well-settled law. The contention of the learned counsel for the petitioner is that there was a delay of 80 days in execution of the detention order when it was clearly within the knowledge of the authorities that....
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....istrict Karwar Karnataka forwarding the Detention Order and requesting to detain the said person, marked as "Annexure D-2" 11 15.06.2016 Departmental Officer attended the Court i/r of cancellation of Bail of Smt Shehnaz filed by the Department. The next date of hearing is fixed on 25.07.2016 12 17.06.2016 Letter written to the Superintendent of Police (North Goa) requesting to expedite the matter and submit the action taken report to the ministry, marked as "Annexure D-3" 13 22.06.2016 Departmental Officer attended the Court hearing i/r of cancellation of Bail of Shri Ateef Damda Fakki filed by the Department. The next date of hearing is fixed on 13.07.2016 14 22.06.2016 27.06.2016 30.06.2016 Calls were made to the Office of the SP (North Goa) to enquire about the status of execution. 15 06.07.2016 Ministry asked for the Action Taken Report both from the Sponsoring Authority as well as from the Executing Authority 16 14.07.2016 Comprehensive Action taken Report sent to the Director (COFEPOSA) CEIB New Delhi, marked as "Annexure D-4" 17 25.04.2015 Apart from these, the department had already filed Criminal Misc Ap....
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....f Shri Ibrahim Ateef Damda Fakki dated 09.02.2016 tendered under Section 108 of the Customs Act, 1962 Address A Present House No 765/2A, DF House Bunder Road, IInd Cross Muscat Colony, Kokti Nagar, Bhatkal, Uttara kannada, Karnataka 581320, (New Address) House No 29 DF House Kokti Nagar, I Cross Uttar Kannada, Karnataka-581320 (Old Address) Flat No 2 Khayal Al-Watani (National Tailor) Building, Alras Deira Dubai B Permanent House No 765/2A, DF House Bunder Road, IInd Cross Muscat Colony, Kokti Nagar, Bhatkal, Uttara kannada, Karnataka 581320, C Native Place Bhatkal, Karnataka" 100. From the aforegoing, it is manifest that the authorities were all along aware of the residential address of the detenue, where the detenue alleges to have resided whilst in India. It has been specifically averred in the writ petition that the detenue "was staying at his native place at Bhatkal, Karnataka" and came to know of the detention order only after its publication in a national newspaper on 05.08.2016. There is no reply to this averment. 101. Returning to the chart reproduced in paragraph 102, it is unclear ....