TMI Blog2014 (12) TMI 942X X X X Extracts X X X X X X X X Extracts X X X X ..... pproved it on 12.02.2014, the Detaining Authority filed for cancellation of bail rather than passing the detention order to prevent the detenue from carrying out such prejudicial activities. Further, there are no valid reasons disclosed by the respondents as to why the detention order was passed only on 25.07.2014, i.e. after about 5 months of grant of bail when the proposal was approved by the Central Screening Committee on 12.02.2014. The Detaining Authority even delayed the execution of the detention order passed on 25.07.2014. The detenue was served with the same only on 13.08.2014 i.e. after about 19 days. It is evident from the facts of the case that the detenue had been available all along; rather he even attended the hearing in the prosecution case on 04.08.2014, when he could have been served with the detention order. The respondents have not disclosed that any attempt was made to serve the detention order soon after it had been made. It is not the respondents case that the detenue was avoiding service of the detention order. In fact, the same was served upon him at his residence. - The purpose of a detention order is preventive in nature and not punitive. Therefore, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t he can read, write and understand English language. Thus, it appears that there is a real controversy as to, whether or not the detenue bonafidely required translations of the GoD and the RuD to be able to make an effective representation. We do not propose to get into this aspect in the light of the aforesaid discussion, since the detention cannot be sustained on account of serious infirmities - firstly, on account of passing of the detention order; secondly, on account of delay in execution of the detention order, and; thirdly, on account of delay in service of the GoD and the RuD upon the detenue post the detention. - Decided in favour of assesse. - WP (Crl) No.1695/2014 - - - Dated:- 4-12-2014 - S. Ravindra Bhat And Vipin Sanghi,JJ. For the Petitioner : Mr Vikram Chaudhri, Sr. Adv. Mr Sanjay Agarwal, Mr Shorab Kirpal, Mr Raktim Gogoi Mr Wattan Sharma, Adv. For the Respondents : Mr Sanjay Jain, ASG, Mr Sanjeev Narula, CGSC, Mr Ajay Kalia, Adv. Mr S K Dubey Mr Rajmangal Kumar, Adv. JUDGMENT Vipin Sanghi, J. 1. The petitioner has preferred the present writ petition under Article 226 of the Constitution of India to seek a writ of Certiorari - to quash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hs, the detenue was granted bail by the Court of Session Judge, Jaipur vide its order dated 22.02.2014. 8. On 25.07.2014, the detention order was passed under Section 3 (1) (i) (iii) of COFEPOSA Act. Thereafter, on 13.08.2014, the police served upon the detenue the one page detention order dated 25.07.2014 (in English language). On the same day he was brought to the police station and was kept in custody. Subsequently, the detenue was taken to Tihar Jail and ever since he has been lodged in it. 9. The petitioner has pleaded several grounds to challenge the detention order against the detenue. However, at the stage of arguments only some of these grounds were highlighted - which are being discussed. On 20.08.2014, the detenue was served with the Grounds of Detention (GoD) along with the other documents i.e. after the expiry of around 7 days. 10. Learned Counsel for the petitioner submits that there is an unexplained and immense delay of about 8 months in passing of the detention order. The prosecution in respect of the alleged recovery of red sanders - which took place on 28.09.2013, was lodged on 28.11.2013 - meaning thereby, that the investigation was complete, while th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC 3; . ix. A. Mohd. Farook vs. Jt. Secy. To G.O.I, (2000) 2 SCC 360; x. Rajinder Arora vs. Union of India, (2006) 4 SCC 796; xi. Adishwar Jain vs. Union of India, (2006) 11 SCC 339; 15. Learned counsel also places reliance on Guidelines issued for implementation of COFEPOSA i.e. Procedural safeguards/ requirements to be observed to avoid delay in execution of detention order dated 21.02.2007. 16. The respondents have opposed the petition. Learned ASG, appearing for the respondents, to explain the time taken for passing the detention order on 25.07.2014 - although the prosecution was lodged against the petitioner on 28.11.2013, submitted that it took time to scrutinize the documents and, thereafter, for the Detaining Authority to arrive at his subjective satisfaction with regard to passing of the order of detention. He further submits that the detenue is indulging in illicit smuggling of red sanders on a large scale, which is harmful to the national economy and the environment. Thus, having regard to the nature of the activities of the detenue, the Court would not be justified in interfering with the detention order. 17. Learned ASG submits that the detention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such, the grounds of detention could not be served to Shri Anil Gadodia within the stipulated period of five days in terms of Section 3 (3) of the COFEPOSA Act, 1974. - However, when it came to the knowledge of the sponsoring authority, immediate efforts were made and the grounds of detention and relied upon documents could be served to the detenue on 20/08/2014. As such, it is evident that only so much time has, elapsed in communicating the grounds of detention and relied upon documents to the detenue, which is required for transit from Jaipur to Central Jail, Tihar. Thus, according to Section 3 (3) of the COFEPOSA, Act, grounds of detention are required to be made as soon as after the detention and not immediately, as contended in the petition. The phrase as soon as is undoubtedly based on belief of rationality and as such Section 3 (3) of COFEPOSA Act, 1974 contemplates a period of five days within the meaning of phrase as soon as in ordinary circumstances and period of 15 days in exceptional circumstances. In the instant case the exceptional circumstances have emerged in view circumstances detailed in this para. 18. Learned ASG submits that the detention order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 8 months, which has defeated the purpose of the detention as it was to prevent the detenue from acting in a prejudicial manner by indulging in the prohibited trade. Thus, the live link had already broken by the time the detention order was passed belatedly on 25.07.2014. 23. Another aspect that requires consideration is that after the detenue was granted bail on 25.02.2014. Although the Central Screening Committee had considered the proposal for preventive detention, and approved it on 12.02.2014, the Detaining Authority filed for cancellation of bail rather than passing the detention order to prevent the detenue from carrying out such prejudicial activities. Further, there are no valid reasons disclosed by the respondents as to why the detention order was passed only on 25.07.2014, i.e. after about 5 months of grant of bail when the proposal was approved by the Central Screening Committee on 12.02.2014. 24. In this regard, reliance may be placed on Rajinder Arora (supra) and Adishwar Jain (supra), which followed the decision of the Supreme Court in T.D. Abdul Rahman v. State of Kerala, AIR 1990 SC 225, wherein the Supreme Court observed as follows: 10. The conspectus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, there must be strict compliance of the procedural safeguards in every case of preventive detention. 27. In A. Mohd. Farook (supra), the detention order was passed on 25.02.1999, however, it was executed by the Detaining Authority on 05.04.1999. Although the detenue was present in the Court of Addl. Chief Metropolitan Magistrate on 25.02.1999 and 25.03.1999, but neither the Detaining Authority, nor the Executing Authority served the detention order on the detenue, at the earliest. In these circumstances, the Supreme Court held as follows: 9. There is catena of judgments on this topic rendered by this Court wherein this Court emphasised that the detaining authority must explain satisfactorily the inordinate delay in executing the detention order otherwise the subjective satisfaction gets vitiated. Since the law is well settled in this behalf we do not propose to refer to other judgments which were brought to our notice. 10. As indicated earlier the only explanation given by the detaining authority as regards the delay of 40 days in executing the detention order is that despite their efforts the petitioner could not be located at his residence or in his office and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asked to file application for cancellation of bail. Besides, summon was issued to Shri Anil Gadodia on 15.07.2014 to appear on 24.07.2014 in connection with case of Red Sanders booked at Delhi against him. However, instead of complying the summons, Shri Anil Gadodia requested for another date preferably 04.08.2014. Accordingly, he was issued another summon to appear on 01.08.2014. However, Shri Anil Gadodia vide fax letter dated 01.08.2014 informed the Senior Intelligence Officer, DRI, Jaipur that he is physically unable to move and requested to condone his personal appearance on 04.08.2014, though detenue came to Jaipur on 04.08.2014 and faced the trial on 04.08.2014 in the Court of CMM (Eco. Off.), Jaipur but he did not appear in DRI office to comply the summons as well as cause his appearance in DRI office in terms of bail condition. 30. The aforesaid explanation furnished by the respondent is most unsatisfactory. The respondents have adopted a wishy washy approach by stating As such, there are many stages, which took its own time due to procedural requirement . As to what are these so called many stages or procedural requirement has not been explained. It is not eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e service of the detention order on the detenu, the order of the detention is liable to be set aside. 5. It is generally noticed that the Sponsoring Authorities who originally move the proposal, somehow develop a lax attitude after a detention order based on their proposal has been issued. They tend to harbour a 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional mandate is for grant of immediate opportunity to detenu to make a representation. It is inconceivable that any representation, much less an effective representation can be made with detenu not being communicated that grounds of detention. The utmost expedition with which representation has to be disposed of has to be preceded by expeditious communication of the grounds of detention, for which legislature has provided a time-frame. When detaining authority delays in furnishing grounds of detention to a detenu, there is denial of an opportunity of making the representation contemplated under Article 22(5) of the Constitution. 9. In the case at hand, undisputedly the grounds were served later than fifteen days. No exceptional circumstances have been highlighted even for extending the period to fifteen days. According to Fruk Waanall s Standard Dictionary exceptional means of a nature to be excepted, constituting or relating to an exception, unusual uncommon . According to Murray s New English Dictionary of the nature of forming an exception, out of the ordinary course, unusual, special . If the extended period upto fifteen days have to be availed, exceptions have to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.09.1986 and kept in custody till 30.09.1986 in Bombay, before he was taken to Delhi. On 02.10.1986, under the orders of the Supreme Court, the detenue was produced before the CMM, Delhi. The Supreme Court had ordered that the CMM, Delhi might release him on bail, if he thought fit. Consequently, CMM, Delhi granted him bail on 01.10.1986, and thereafter, he returned to Bombay. The respondent claimed that the officer was given the grounds of detention to serve them to the detenue on 03.10.1986, who made efforts to serve them on 03.10.1986, 04.10.1986 and 05.06.1986, but all efforts failed. The officer returned to Gangtok on 06.10.1986. The grounds were served thereafter on 14.10.1986. In this background, the Supreme Court examined the reasons as to why the GoD was served only on 14.10.1986. The Court observed as follows: 13. In this case there is no acceptable or satisfactory explanation as to what the officer did after October 6, 1986. This inaction after October 6, 1986 till October 14, 1986, by itself is sufficient for us to hold that Section 8(1) has been violated by the officer concerned and on that ground alone the order of detention has to be quashed. 14. An attempt w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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