2011 (11) TMI 664 - HC - Customs

Summary

Issues Involved:
1. Delay in initiating the proposal for detention.
2. Detention Orders issued despite no similar prejudicial activities post-bail.
3. Consideration of alternative measures to detention.
4. Non-application of mind by the Detaining Authority.
5. Variance between activities in Detention Orders and Grounds of Detention.
6. Delay in deciding the representation by the Detaining Authority and the State Government.
7. Language barrier and communication of Grounds of Detention.
8. Non-disclosure of material facts to the Detaining Authority.

Analysis of Judgment:

1. Delay in Initiating the Proposal for Detention:
The petitioners argued that there was a delay in initiating the proposal for detention. However, this ground was not pursued during the hearing due to a recent decision in Shamsher Singh S/o. Balwinder Singh v. the State of Maharashtra, where similar grounds were rejected.

2. Detention Orders Issued Despite No Similar Prejudicial Activities Post-Bail:
The petitioners contended that the Detention Orders should not have been issued as the detenues had not indulged in similar activities after being released on bail. This argument was also not pursued during the hearing for the same reason as above.

3. Consideration of Alternative Measures to Detention:
The petitioners argued that the Detaining Authority failed to consider alternative measures instead of issuing Detention Orders. This argument was not pursued during the hearing.

4. Non-application of Mind by the Detaining Authority:
The petitioners claimed that the Detaining Authority did not apply its mind as the Detention Orders were passed within one day of receiving the proposals. The court found that the scrutiny of the proposals began on 1st June 2011 and culminated in the order dated 20th July 2011. The Detaining Authority had examined the proposals over a period and not just in one day.

5. Variance Between Activities in Detention Orders and Grounds of Detention:
The petitioners argued that there was a variance between the activities mentioned in the Detention Orders and those in the Grounds of Detention. The court noted that although the Detention Orders referred to all activities under Section 3(1) of the COFEPOSA Act, the Grounds of Detention only supported activities under clauses (ii) and (v). The court held that the Detention Orders were saved by Section 5-A of the COFEPOSA Act, which allows for the severability of grounds.

6. Delay in Deciding the Representation by the Detaining Authority and the State Government:
The petitioners contended that there was an unexplained delay in deciding the representation. The court examined the timeline and found that the representation was processed continuously without any inaction or indifference. The delay was explained as being due to procedural requirements and holidays.

7. Language Barrier and Communication of Grounds of Detention:
In the case of Detenu Waghmare, it was argued that he did not understand English, and the Grounds of Detention were not explained to him in Marathi. The court found that the detenu had previously communicated in English and had a workable knowledge of the language. The court rejected this ground, stating that the detenu had not been denied the opportunity to make a representation.

8. Non-disclosure of Material Facts to the Detaining Authority:
In the case of Detenu Dhakne, it was argued that the suspension of the C.H.A. licence was not disclosed to the Detaining Authority. The court held that the suspension of the licence was not a criterion for the detenu's propensity to indulge in prejudicial activities. The Detaining Authority's subjective satisfaction was based on the material before her, and the suspension of the licence did not affect this satisfaction.

Conclusion:
All three petitions were dismissed. The court found that the Detention Orders were valid and that the Detaining Authority had applied its mind based on the material before it. The procedural delays were justified, and the language barrier argument was not substantiated. The original records were ordered to be returned to the Public Prosecutor.