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2019 (11) TMI 1705 - HC - CustomsSmuggling - delay in execution of the detention order - allegation was of fraudulent exports made by fictitious firms and the proposed detenu was one of the accused who was arrested and remanded to judicial custody for more than a year - HELD THAT:- The requirement under Article 22(5), as translated in Section 3(3) of the COFEPOSA Act, mandates communication, to a person detained in pursuance of a detention order, of the grounds in which the order has been made, which includes the documents relied on, ordinarily not later than five days. Here, the detention was on 24.01.2019 and the documents were supplied on 28.01.2019, including the CCTV footage. But the video footage was in a compact disc, which, without electronic facilities cannot be viewed. Despite at the earlier instance, this Court interfered with an identical order, merely for reason of not providing such electronic facilities to the detenus, who were in custody no care was taken to ensure such a defect not recurring. 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. It is also noticed that the representations show that the lawyer submitted it on behalf of the detenu, having met the detenu on 06.02.2019, the day on which the communication is said to have been served, which again validates the assertion of the petitioner that it prejudices an effective representation. The culpability of the four persons; ie: the two AICOs, Shajahan and Mohammed Rashid; the last of whom spoke of the detenu herein, is the very relevant, pertinent fact relied on by the Detaining Authority in the impugned order. The documents sought for by the detenu in his application, was on the action taken against those persons and the result of the same or the stage at which those proceedings are. This is a very significant aspect for the detenu, who has been roped in on the basis of the statements given by those persons and the call details of the persons involved, which as we see from the detention order does not go beyond the frequency of the calls made between these persons. The documents sought for by the detenu by reason of his arrest and detention after four years assumes relevance, to be included in his representation to make it effective. Mohammed Zakir was a case in which the documents relied on were served on the detenu after a month, which though is much lesser here; all the same has application since the period of delay or its quantum has no bearing in the teeth of the prescription of five days for such supply. The grounds of delay, (i) in execution of the detention order and (ii) in consideration of the representation, to be not vitiating the order of detention. However, on the non-supply of Ext.P11 decision in the case of the co-noticees and failure to provide sufficient facilitates to view the CCTV footage, it is found that the continued detention of the detenu to be illegal. The detenu is directed to be set at liberty forthwith, if his detention is not required in any other case - application disposed off.
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