TaxTMI 
TaxTMI 
2016 (6) TMI 1183
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.... can be considered, we deem it appropriate to notice some of the relevant facts which have given rise to the filing of the present writ petition. 4. As per the petition, during July 1993 detenue joined the Indian Navy as a Sailor and got promoted at various sensitive and important posts during the service and finally he retired as a Petty Officer in the year 2008. During his service there had been no adverse remarks and he received various certificates of his high performance. Thereafter, on 29.10.2008, detenue soon after his retirement from Indian Navy was selected and he joined Intelligence Bureau (IB). 5. As per the petition, the detenue was subsequently posted to Goa Airport as Assistant Central Intelligence Officer (ACIO-II) in the immigration department under the supervision of Intelligence Bureau. Further, detenue got promoted to the post of ACIO-I in the month of June, 2014. 6. On 07.07.2014 while the detenue was on duty as Wing In-charge in the immigration department, it was reported that an incident of arrest of four persons had taken place on the allegation of smuggling of gold by the Customs Department. Out of four persons, three of them were passengers of Flig....
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....nue has been placed as Noticee no.6 and the said show cause notice was issued in connection with the alleged incident of gold smuggling on 7.7.2014 at Goa Airport. The allegations made against the detenue in the show cause notice were that there had been exchange of phone calls between the detenue and one Sh. Javed Mohammad Sheikh who is Assistant Manager of Minar Travels, Goa during the alleged date of incident. The said Minar Travels used to arrange travel facilities like VISA, Tickets, intimation about arrival and departure timings helped in immigration services to their clients being passengers of the chartered flights. Airport entry pass to all the sections had been issued by the competent airport authority to said Javed Mohammad Sheikh for rendering the aforesaid services. Due to the nature of his job Sh. Javed became familiar and friendly with the officials of the airport and used to exchange calls with the officials of the airport. On 7.7.2014 there had been exchange of mobile calls between said Javed and the detenue who was on duty as I.B. officer at the said airport at Goa when the incident of smuggling of gold took place by three passengers who arrived by flight no QR522....
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....rl) 400/2015 challenging the impugned detention order at the pre-execution stage. It is the case of the petitioner that the detaining authority had filed a detailed counter affidavit in the above writ petition. The High Court of Kerala dismissed the above writ petition with the observation that the appropriate stage to file the writ petition was after surrendering. 15. After the dismissal of the WP (Crl).400/2015, the detenue challenged the above order by way of filing a Special Leave Petition before the Supreme Court of India as SLP 10372/2015 and the Supreme Court of India dismissed the above SLP upholding the order in the writ petition filed before the High Court of Kerala. Thereafter, the detenue surrendered before the Goa police, at Vasco-police station, Vasco Goa on 28.12.2015. 16. The detenue is presently detained in Sub Jail, Sada, Goa since 28.12.2015. On 29.12.2015 the officials of the sponsoring authority (Superindendent of Customs) had served the ground of detention and relied upon documents to the detenue. At the time of acknowledging the relied upon documents, the detenue had submitted a written representation, stating that some of the relied upon documents are ....
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....f the detenue was considered by the appropriate authority, i.e., the person passing the detention order? I. Whether the delay on the part of respondent no. 3 in forwarding the communication and representation of the detenue amounts to violation of the Fundamental Right of the detenue? 18. Mr. Jain submits that the present detention order has been passed in gross violations of the guidelines issued by the detaining authority in matters of preventive detention. Mr. Jain further submits that there has been no subjective satisfaction by the detaining authority and the detention order has been passed for illegal and unlawful purposes. Counsel submits that the detenue was transferred on 28.11.2014 to SIB, Bhubaneswar, Orissa and by a subsequent order dated 10.12.2014, the detenue was relieved from his post at the Airport w.e.f. 15.12.2014. This transfer order was passed on the basis of a request sent by the sponsoring authority. Counsel has also contended that that there has been a long and ordinary delay in passing the impugned detention order. It is contended that the basic principle of passing the detention order is to nab the concerned person and break the live link of....
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....efore us. The first ground raised by Mr. Jain is that relevant documents were not placed before the detaining authority by the sponsoring authority. Mr. Jain has contended that there is a serious lapse on the part of the sponsoring authority in not placing the relevant records/documents before the detaining authority. It is submitted that the Supreme Court in the case of Ashadevi wife of Copal Ghermal Mehta (Detenu) v. K. Shivraj, Addl. Chief Secretary to the Govt. of Gujarat and Anr., reported at [1979] 1 SCC 222 held that "If material or vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order are not placed before or are not considered by the detaining authority, it would vitiate its subjective satisfaction rendering the detention order illegal." 22. Mr. Jain submits that the sponsoring authority did not place before the sponsoring authority the communications by which the detenue stood transferred to SIB, Bhubaneswar, Orissa. 23. Mr. Jain submits that the sponsoring authority has miserably failed to produce the above said letters before the detaining authority. If the same were pl....
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....mentioned about the whereabouts of his official place of duties. Counsel submits that it is very much apparent and evident on record that both the sponsoring authority and the detaining authority were fully aware of the whereabouts of the detenu but admittedly no efforts were made to send the detention order at Bhuwaneshwar for its execution. No efforts were made to ensure execution of the detention order therefore the live link from the date of incident is snapped and renders the detention order invalid. It is also pointed out that the detention order was not executed till the surrendering of the detenu on 28.12.2015. The above long and unexplained delay in executing the above detention order vitiates the order and the purpose of passing the detention order itself was vitiated, by the inordinate delay in execution of the detention order. Therefore, the subjective satisfaction is invalid. 28. Mr. Jain points out that as per Annexure 23, the detention order was passed on 31.03.2015 and the master copy thereof reached the sponsoring authority on 02.04.2015 itself. Thereafter the sponsoring authority sent all the documents for execution to the executing authority on 05.05.2015, i.e....
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....5 Meeting with DIG (Goa) additional photos and brochure with details of Proposed Detenu (PD) handed over. Thereafter, the officer working under the Sponsoring Authority i.e. Commissioner of Customs, Goa is constantly liaisoning with the Executing authority i.e. the officers working under the Director General of Police, Govt. of Goa, which is also duly manifested in the following office records: - 9. 01.06.2015 It has been recorded vide file noting dated 01.06.2015; 1) The ASI Crime Branch has contacted the undersigned asking for the present address as well as place of posting of Shri Gireesh Advalalath Meethal, then Immigration Inspector. 2) I contacted the office of the Chief Immigration Officer to get these details, who after two days or persuasion gave me a phone No. 06742391671 said to be pertaining to the Estt. Section SIB, Bhubaneshwar Orissa. On contacted, they refused to divulge these particulars unless a formal request is made, they did not even share their office address. 3) In view of above, a letter to Commissioner (Immigration) New Delhi is placed opposite for signatures please. 10. 01.06.2015 Joint Commissio....
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....ed against the petitioner remained unexecuted; the Joint Secretary (CFEPOSA) in exercise of powers conferred by Clause (b) of sub-section (1) of Section 7 of the Act directed the above said person vide her Order No. 673/03/2015-Cus.VIII dated 29.06.2015 to appear before the Director General of Police, Government of Goa, Panaji within 7 days of the publication of this order in the Official Gazette. The said order has been published in the official gazette on 30.06.2015. 15. 03.07.2015 Customs Department at Goa received a letter No.7/C-4/2015(278)-3537 dated 25.06.2015 from the Assistant Director Intelligence Bureau (Ministry of Home Affairs) Government of India communicating the present (of Bhubaneshwar) and permanent residential address (of Kerala) of the said PD, but his office address was still not communicated. 16. 07.07.2015 The 4th and 5th being Saturday and Sunday the said addresses were communicated to the Goa Police vide this office letter of even Number dated 07.07.2015. 17. 13.07.2015 In pursuance of the said order dated 29.06.2015, the said notice has been published in following newspapers : 1) The Navhind Times Goa edition (English) d....
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....In addition thereto he also appeared before the learned Additional Chief Metropolitan Magistrate on February 25, 1999 and March 25, 1999 when his case was listed before him. Despite the availability of the petitioner as indicated above the detaining authorities took no steps to execute the order. It is because of this delay in executing the order, it is stated that apprehension entertained by detaining authority as regards the likelihood of future activities of the petitioner being prejudicial under the COFEPOSA Act were neither real nor genuine and therefore the impugned order is nothing but a punitive. This inordinate delay and unreasonable delay in executing the detention order has vitiated the subjective satisfaction of the detaining authority. 5. ...... 6. The Detaining Authority vide its supplementary affidavit has corrected the mistake in its earlier affidavit to the effect that the petitioner might have appeared in different case. It is now admitted position that the petitioner appeared before the Metropolitan Magistrate in the very same case arising out of his arrest pursuant to the action initiated by the Enforcement Directorate, Chennai on 17.3.1998/18.....
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....on order." 35. In the case of SMF Sultan Abdul Kader v. Joint Secretary to Govt. of India & Ors., reported at (1998) 8 SCC 343, more particularly in para 2, Supreme Court held as under: "2. It is not necessary to state the facts leading to the of the detention order as we are inclined to allow this petition on the second ground raised by Mr, K.K. Mani, learned counsel for the petitioner. The order of detention was passed on 14.3.1996. The petitioner came to be detained on 7.8.1997. The contention raised by Mr. Mani is that there was undue delay in execution of the order and that clearly indicates that there was no genuine satisfaction on the part of the detaining authority regarding the necessity of immediate detention of the petitioner in order to prevent him from committing and continuing to commit the prejudicial activity alleged against him. In reply to this contention raised by the petitioner what the detention order could not be executed immediately as the petitioner was absconding. ..... No material has been produced on the basis of which it can b said that the police authorities had made reasonable efforts to locate the petitioner and apprehend....
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....d by this Court in Nizamuddin v. The State of West Bengal, [1975] 2 SCR 593. The question involved therein was under s. 3(2) of the Internal Security Act, 1971. There was delay of about two and a half months in detaining the petitioner pursuant to the order of detention and the Court considered that unless the delay was satisfactorily explained, it would throw considerable doubt on the genuineness of the subjective satisfaction of the Distt. Magistrate recited in the order of detention. Mr. Justice Bhagwati, as the learned Chief Justice then was, speaking for the Court observed at page 595 of the report that it will be reasonable to assume that if the Distt. Magistrate was really and genuinely satisfied after proper application of mind to the materials before him that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner, he would have acted with greater promptitude in securing the arrest of the petitioner immediately after invoking of the order of detention, and the petitioner would not have been allowed to remain at large for such a long period of time to carry on his nefarious activities. It is, however, not the law that when....
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....executing the detention order has been considered rather seriously by the Courts for the reason that delay clearly indicates that there is no genuine satisfaction on the part of the detaining authority regarding the necessity of immediately detaining the person in order to prevent him from committing and continuing to commit the prejudicial activities alleged against him. Wherever the explanation rendered is found to be genuine, the same has been accepted by the court. 38. Applying the law laid down to the facts of the present case, it may be kept in mind that the petitioner at the time of the incident was posted at Goa Airport as Assistant Central Intelligence Officer(ACIO-I) in the Immigration Department under the supervision of Intelligence Bureau. On 07.07.2014, he was on duty as Wing In-charge in the Immigration Department. It is also not in dispute and as per the Annexure-23, the sponsoring authority sent two communications both dated 23.12.2014 to Director, Dabolim Airport and also to Commissioner (Immigration), New Delhi respectively wherein the Airport Authorities were instructed not to permit the detenu to enetr the Dabolim Airport. In the second letter of even date th....
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....at on 1.6.2015, ASI Crime Branch was contacted and he was asked for the present address and place of posting of the detenue. It is also pointed out by Mr.Ahluwalia that on 12.10.2015 proceedings under Sections 82 and 83 Cr.P.C. were also initiated against the detenue. 44. It has also been explained that after two days of persuasion, the particulars were provided and thereafter on 23.6.2015 the Superintendent of Police (South Goa), vide his letter no.F.SP/EOC/50/2015 informed the Ministry that the detention order issued against the detenue (Gireesh A.M.) had been forwarded to the District Police Chief, Kozikhode (Rural), Vatakara, Kerala, on 20.6.2015 with the request to take necessary action at their end as per the order. 45. It may be noted that this exercise was futile and an eye wash as even in the record of the detaining authority the detenue stood transferred to Bhubaneswar and all steps taken to serve this detention order to the detenue at a place where he was not posted shows complete nonapplication of mind. Knowing fully well that he was working for gain at Bhubaneswar and sending any communication at the address at Kerala was a mere formality and a futile exercise. ....
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.... a violation of his right under Article 22(5) of the Constitution of India. He submits that considering the above facts, it is quite evident that the detaining authority had committed grave injustice towards the detenu and on that score also the detention order is liable to be quashed. The counsel submits that non-supply of the above said documents has also prejudiced the Constitutional right of the detenu to effectively represent his case before the Advisory Board. 51. Mr.Ahluwalia, learned counsel for respondents no.1 and 2, submits that this ground urged by the petitioner is not available to the petitioner as at the time when his statement was recorded under Section 108 of the Customs Act, the CCTV footage was shown to the detenue, which stands duly acknowledged by him in the statements and he did not dispute either the authenticity of the CCTV footage or his presence at the place where the CCTV footage was being shot. Mr.Ahluwalia further submits that the petitioner has failed to show any prejudice having been caused to him and also that CDs were provided to him along with the show cause notice at the pre-detention stage and, thus, the petitioner was well aware about the con....
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....n effective, timely and meaningful consideration of the case fo the detenu. This requirement as has been essentially recognized and mandated by two decisions of the Constitution Bench of this Court, does not, in any way, undermine the appropriate Government's authority to consider and dispose of such representation of any detenu under the preventive detention law. The right of the Central Government or for that matter any appropriate Government to consider and dispose of a representation of a detenu, preventively detained, has to be harmoniously construed with the obligation cast on it to forward a pending representation to the Advisory Board as has been consistently held Jayanarayan Sukul (supra) and K.M. Abdulla Kunhi and B.L. Abdul Khader (supra)." 55. The submission of learned counsel for the respondents is without any force. In the absence of any evidence, this submission of the learned counsel for respondents no.1 and 2 cannot be entertained as there is no material placed before us to show that the detenue had access to any electronic device on which CDs could have been watched. 56. Moreover, Mr.Jain has pointed out that CD player was provided to a code tenue to enable ....
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....form part of the relied upon documents. 58. The law is well settled. Article 22(2) of the Constitution provides (1) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention, communicate to the detenue the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenue the earliest opportunity of making a representation against the order of detention. Thus, the detenue has a right to receive documents taken into consideration by the detaining authority while formulating the terms of detention and non-supply of each and every document does not provide a ground for setting aside the detention order. The detenue, therefore, has a right to be supplied with material documents, on which reliance is placed and not a document referred to in the order, which is not relied upon for forming the opinion or made the basis of passing of the detention order. In case an audio file is heard prior to the passing of the detention order by the detenue is not reason enough to supply the CD or the player to enable him to hear or know the same. The audio/video files are primary evidence and are documents as defin....
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....ity and in spite of written request, audio file was not made available nor played. In paras 6, 16 to 26, it was held by the Court as under: "6. The petitioner has raised the following contentions challenging the detention order:- (i) There is inexplicable and enigmatic long delay in passing of the detention order. The consignment was seized in April, 2013 and premises of the detenue were searched on 13th June, 2013. The order of detention was passed after 10 months on 16th April, 2014. (ii) Detenue has not been supplied CD of the CCTV video footage of the McDonalds restaurant, Kamla Nagar. (iii) The forensic experts have not confirmed that the detenue could be heard in the incriminating and inculpatory conversation in audio file 2. (iv) Voice samples of the detenue and Chandan Kumar Jain do not form part of the relied-upon documents. Without examining the voice samples, the detaining authority should not have passed the detention order. (v) Detenue has not been supplied the audio file/CD relied upon by the detaining authority. Inspite of written request of the detenue, the audio file has not been made available and played. ....
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....es in the same. The grounds of evidence bring out the role of the detenue and are not limited to the audio file. Further all documents relied upon while passing the said detention order and framing the grounds of detention were supplied. Therefore, the contention lacks merit and deserves rejection. Reliance is placed upon a decision of the Supreme Court in Radhakrishnan Prabhakaran v. State of T.N. 2009 SCC 170 to the effect that there is no legal requirement of every document mentioned in the detention order, should invariably be supplied to the detenue . What is important is that the copies of only such documents as has been relied upon by the detaining authority for reaching the satisfaction have to be supplied. In J. Abdul Hakeem v. State of Tamil Nadu (2005) 7 SCC 70, the Supreme Court referred to several earlier judgments and has held that the detenue has a right to receive documents taken into consideration by the detaining authority while formulating the terms of detention and non-supply of each and every document does not provide a ground for setting aside the detention order. The detenue, therefore, has a right to be supplied with material documents, on which reliance is ....
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....down-loaded. In this context, it is submitted that there was no reason and cause for the detenue to record a conversation, highlighting the conversation itself mentions that the telephone of the detenue and Chandan Kumar Jain was already tapped. These facts could have been ascertained and incongruities highlighted only on examining and hearing the audio file. 20. The detaining authority, it has been accepted by the respondents during the arguments, had heard the audio file and also the sample voice recording. It is therefore contended by the petitioner that contrary to the pleadings, in the counter-affidavit dated 20th April, 2015 and the assertion in the detention order, the detaining authority, for formation of opinion, had heard the two files to reach and form her conclusion that the detenue was one of the two persons in the said conversation. It is submitted that the assertion that the audio file and voice sample were not the primary evidence is wrong and incorrect. The audio files should have been provided. 21. We have referred to the said contentions on behalf of the detenue only to highlight the submission made that failure to supply the audio file of the c....
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....nt in the recorded conversation. 23. Recorded conversations or tape records of speeches are documents as defined in Section 3 of the Evidence Act [see Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC 17]. Audio and video tapes are considered and can be clinching and authoritative evidence. They could be the primary evidence about an event or any happening. In some cases, like the present case, they may turn out to be the most crucial piece of evidence. However, the Courts, before relying upon audio or video tapes, exercise caution as electronic evidence are susceptible to tampering and alterations by transposition, excision, etc. These may be difficult to detect and, therefore, care and guardedness has to be exercised to rule out possibility of any kind of tampering, alterations, etc. Standard of proof about its authenticity and accuracy has to be more stringent as compared to documentary evidence. In Tukaram S. Dighole Vs. Manikrao Shivaji Kokate, (2010) 4 SCC 329, the Supreme Court while dealing with an election petition has referred to the following case law on the subject:- "24. In Yusufalli Esmail Nagree v. State of Maharashtra, this Cou....
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....d and stored evidence used in contempt proceedings had come up for consideration. In the said decision, on the question of voice identification, reference was made to the decision of the Supreme Court in Ram Singh Vs. Col. Ram Sing, 1985 Supp SCC 61 and the following paragraph was quoted:- "32. Thus, so far as this Court is concerned the conditions for admissibility of a tape-recorded statement may be stated as follows: (1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker. (2) The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence-direct or circumstantial. (3) Every possibility of tampering with or erasure of a part of a tape-recorded statement must be ruled out otherwise it may render the said statement out of conte....
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.... only. That allegation against the appellant is raised only subsequently. Be that as it may, the only basis for supporting the allegation is the conversation that is said to be recorded by the voice recorder. The Directorate of Forensic Science Laboratories, State of Maharashtra vide Annexure B Report has stated that the conversation is not in audible condition and, hence, the same is not considered for spectrographic analysis. The learned counsel for the respondents submit that the conversation has been translated and the same has been verified by the panch witnesses. Admittedly, the panch witnesses have not heard the conversation, since they were not present in the room. As the voice recorder is itself not subjected to analysis, there is no point in placing reliance on the translated version. Without source, there is no authenticity for the translation. Source and authenticity are the two key factors for an electronic evidence, as held by this Court in Anvar P.V. v. P.K. Basheer (2014) 10 SCC 473." (emphasis supplied) 26. We have referred to these decisions which relate to contempt, election, civil or criminal proceedings, for the reasons that they set out and e....
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....e (5) of Article 22 of the Constitution of India that :- "(5) 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 afford him the earliest opportunity of making a representation against the order." Therefore, it is imperative that the detaining authority has to serve the grounds of detention which include also all the relevant documents which had been considered in forming the subjective satisfaction by the detaining authority before making the order of detention and referred to in the list of documents accompanying the grounds of detention in order to enable the detenu to make an effective representation to the Advisory Board as well as to the detaining authority. Therefore, the non supply of legible copy of this vital document i.e. Panchnama dated February 12, 1988 in spite of the request made by the detenu to supply the same renders the order of detention illegal and bad. This Court in Mehrunissa Versus State of Maharashtra has observed that : (SCC p.710) "The d....
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.... document merely finds a reference in the order of detention or among the grounds thereof. In such a case, the detenue's complaint of non-supply of document has to be supported by prejudice caused to him in making an effective representation. What applies to a document, would equally apply to furnishing translated copy of the document in the language known to and understood by the detenue, should the document be in a different language." 63. Further in the case of Mehrunissa v. State of Maharashtra, reported at (1981) 2 SCC 709, a similar defence was raised that copies of documents were not supplied to the detenue as the detenue was already aware of the contents of the documents. The Supreme Court held that the detenue is entitled to be supplied with copies of all the material documents instead of having to rely upon his memory in regard to the contents of the documents. The relevant observation made by the Apex Court reads as under: "The principal submission made by Miss Rani Jethamalani, learned Counsel for the petitioner, in this application for the issue of writ of habeas corpus is that copies of material documents referred to in the grounds of detention were no....
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....trol Bureau, Mumbai Zonal Unit received information from a source who provided audio cassette, recording of telephonic conversation between Shri Satya Prakash Bahl @ S.P. Bahl and one "Haji Khan" of Pakistan regarding shipment. In this conversation, Shri S.P. Bahl, inter alia, informed Haji Khan that the contents of the fax he received was not readable and asked Haji Khan to fax it again with "Attention Mr. Kumar". Shri Bahl also alerted Haji Khan not to speak on his residential number "3038". On enquiry from him, Haji Khan replied that total is 35 and further added that it is three and a half. To Haji Khan's query as to where the money will be paid, Shri Bahl replied that the money may be paid at Dubai or in India or at Peshawar." (6) In paragraphs 23 and 25 it has been further stated as under: "23.1have carefully gone through all the documents referred to hereinabove. On the basis of the statements and documents mentioned hereinabove, I have no hesitation in arriving at the conclusion that Shri Satya Prakash Bahl @ S.P. Bahl had engaged himself in the procurement, storage and abetting in the export from India of narcotic drugs. 25.While passing the ....
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....udio cassette was not relied upon document. The non supply of which could have caused no prejudice to the interest of the petitioner". (11) It has been repeatedly laid down by the Supreme Court that an opportunity to make a representation against the order of detention necessarily implies that the detenu is informed of all that has been taken into account against him, it means that the detenu Is to be informed not merely of inferences of fact but all the inferences of facts plus factual material. Whether the documents concerned, are referred to, relied upon, or taken into consideration by Detaining Authority, they must be supplied to the detenu as part of the grounds as far as possible to enable the detenu to make an effective representation immediately on receiving the grounds of detention. Delay in complying this requirement would in validate the order of detention. [Smt.Shalini Soni v. Union of India and Ors., ; Tushar Thakkar v. Union of India and Ors., ; S.Gurdip Singh v. Union of India & Ors., ; Mehdi Mohd. Zowli v. State of Maharashtra, , and Kirti Kumar v. Union ofIndia, . (12) If material or vital facts which would have bearing on the issue and influence ....