TaxTMI 
TaxTMI 
TaxTMI 
2019 (11) TMI 1734
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....as also served on the detenu on 06.02.2019 by and through the Superintendent Central Prison, Thiruvananthapuram. The detenu through his Advocate made a representation to the Detaining Authority by Ext. P5 dated 11.02.2019, one to the Central Government by Ext. P6 dated 12.02.2019 and another by Ext. P7 dated 15.02.2019 to the Advisory Board. The Advisory Board was constituted within five weeks as provided in the Statute, which heard the detenu on 22.03.2019, and affirmed the order of detention, based on which recommendation, Ext. P8 dated 16.04.2019 was issued by the Central Government. Ext. P8 affirmed the order detaining the detenu for a period of one year from 24.01.2019. The representations filed before the Central Government and the Detaining Authority were also rejected thereafter. The detenu is still in custody and his wife challenges his continued detention. 3. Sri. P.A. Augustian the learned Counsel appearing for the petitioner assail the order on various grounds relying on precedents. His first challenge is on the delay in execution of the detention order which is stated to be without any reason. The authorities took absolutely no steps to apprehend the detenu and at thi....
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....ately releasing the detenu on the aforesaid compelling grounds. 5. The learned Central Government Standing Counsel ('CGSC') Sri Suvin R Menon, representing Union of India and its officers, stoutly refutes the grounds raised by the wife of the detenu. It is pointed out from the counter affidavit filed by the respondents 1 and 2 that sufficient steps were taken to procure the custody of the detenu. A notification under Section 7(1)(b) was issued on 06.08.2015 and it was published in the Gazette of India dated 07.08.2015 a copy of which is produced as Ext. R1(a). This was also published in two vernacular newspapers, copies of which are produced as Exts. R1(b) and (c) having circulation in the District of Kasaragod, where the detenu has his residence. A report under Section 7(1)(a) of the Act was also filed before the Judicial First Class Magistrate Court II Kanjangad as CMP No. 8861/2015 dated 03.11.2014. The detenu was avoiding execution of the order and was absconding. On information of his arrival in Kerala, without delay he was apprehended and detained in the year 2019. It is argued that the detenu had been absconding outside the State and could have been even outside Ind....
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.... by the detenu on 06.02.2019. It is argued that the detenu expressed disinclination to view the footage, purportedly on legal advice, which fact is averred in the counter affidavit of respondents 1 & 2. Having refused to view the video footage, he cannot now turnaround and allege prejudice on that count. The non service of Ext. P11, is a fallacious ground, for, the detenu who was absconding, would definitely have had knowledge of the said decision and in any event, it was not one relied on by the Detaining Authority. It is further argued that the video footage did not at all show the detenu and hence there was no requirement to allow him to view it, going by the dictum in Radhakrishnan Prabhakaran v. State of Tamilnadu [2000 (9) SCC 170]. There is no prejudice caused as alleged and the detenu was able to make an effective representation. It is urged that there could be no infirmity, irregularity or illegality alleged against the detention order and the same has to be sustained. The learned Government Pleader for the State, Sri K.A. Anas relies on Gautam Jain v. Union of India [2017(3) SCC 133] to urge application of the principle of severability to sustain the order of detention. E....
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....0. On facts here, as has been pointed out by the learned CGSC, every possible steps were taken by the authorities to serve the copy of the order on the detenu including affixture in his house, Gazette notification, publication in vernacular newspapers and the proceedings initiated before the jurisdictional Magistrate. The learned Counsel for the detenu has a contention that it was not incumbent upon the proposed detenu to offer himself for detention. Why should he invite detention was the plea taken. We beg to differ on that aspect, since this is not a game and it involves allegations of infringement of the established laws of a country regulating imports; on which prior summons would have been issued. A dutiful citizen, issued with summons; if innocence was the plea, ought to have appeared before the authorities to place his cards on the table to prove it. The detenu here, cannot feign ignorance of the order and he does not have a case that he was readily available for service of the order. The explanation seems to suggest that the proposed detenu was abroad and he does not also make any attempt to prove that he was very much inside the country, in his native place, carrying on hi....
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....oceedings. In both the situations there is no question of consideration of the representation before the receipt of report of the Advisory Board. Nor it could be said that the government has delayed consideration of the representation, unnecessarily awaiting the report of the Board. It is proper for the government in such situations to await the report of the Board. If the Board finds no material for detention on the merits and reports accordingly, the government is bound to revoke the order of detention. Secondly, even if the Board expresses the view that there is sufficient cause for detention, the government after considering the representation could revoke the detention. 13. Golam Biswas after referring to the quoted text, reaffirmed the principle that every representation received by the Central Government before the final consideration of the matter by the Advisory Board has to be forwarded to the Advisory Board. If the Advisory Board holds that the order is invalid, the Central Government has absolutely no option but to release the detenu. However, even when the Advisory Board affirms the detention order, the Central Government ought to consider the representation filed bef....
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....Customs authorities scanned the CCTV footage, near the Counter where he is said to have abandoned the baggage on 07.01.2015 and detected the 'thief' was within the ship. One Manu. V., an Assistant Central Intelligence Officer [ACIO], was found to have picked up the baggage, who confessed to his having kept the baggage near his seat and taking it out for delivery to one Muhammed Rashid, a travel agent. Muhammed Rashid, when summoned, sang like a canary and admitted the ploy having been undertaken on many dates with the active help of Manu and one another ACIO, Krishnakumar. Muhammed Rashid spoke also of the smuggling having been carried out at the behest of the petitioners husband and two others; one Shajahan and Kunhayankutti. The call records of these persons were examined and Muhammed Rashid was found to have constantly called up the various persons involved in the ring of operations. Hence the detection of smuggling by Ijas Abdulla on 14.02.2015, led to the verification of CCTV footage on the earlier date, thus leading to the implication of two ACIOs, who spoke about their outside contact Mohammed Rashid, who in turn gave the full details of the operations of a smuggling....
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....ase supply copy of his statement. As these documents are highly essential for preparing an effective and purposeful Representation, it is requested that the same may be supplied to me at the earliest. V) The detenu reserves his right to make a detailed Representation, if necessary, after receiving the above documents." 18. It cannot be presumed as has been argued by the learned CGSC, that the detenu was aware of the proceedings against his co-noticees. That would be assuming that he is guilty of the offence before he is brought to trial. We say this quite conscious of the fact that establishment of guilt is not the pre-requisite of a preventive detention order, but however, all the mitigating circumstances available to a detenu has to be looked at by the Detaining Authority, the Government, the Advisory Board and this Court, when considering the continued detention. Every mitigating factor has to come to the aid of the detenu. In this context, we notice the observations made by one of us sitting in Division, in paragraph 54 of Thankam v. State of Kerala and Others [2018 KHC 818], which is extra....
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....ll facilities to the detenu for viewing the CD ROM, in which the CCTV footage is stored as and when desired by him by providing Computer/Laptop or other paraphernalia. The Superintendent too carried out lip-service, by a verbatim, vernacular reproduction of Ext. R4(a); by Ext. P4 dated 04.02.2019. The five days as statutorily mandated ended on 29.01.2019. Exts. R4(a) & P4 were served on the detenu only on 06.06.2019. Though it has been argued that the detenu refused to view the CCTV footage, nothing is placed on record to establish it, but for a statement made in the counter affidavit. Neither an acknowledgement is seen made by the detenu of his refusal, nor even a statement by the Superintendent of Prisons as to the detenu having declined such facility. The statement in the counter affidavit cannot be relied on, without substantiation, especially in cases of preventive detention. The rigour of preventive detention mandates something more than mere lip-service. If the mandate is not carried out in letter and spirit, then the order gets vitiated. We also have to pertinently notice that the representations show that the lawyer submitted it on behalf of the detenu, having met the dete....