TMI Blog2013 (6) TMI 710X X X X Extracts X X X X X X X X Extracts X X X X ..... santalinus, is native to the Indian sub-continent. It is much in demand in certain overseas markets, particularly for some of its extracts. Its export from India being banned, it presents a lucrative market for smugglers. 3. In substance, the detaining authority's factual narrative runs thus: The Jawaharlal Nehru Port at Nhava Sheva, across the harbour from Mumbai, is a major port that handles a high volume of shipping containers. Some time before April 2012, the Customs and JNPT authorities had specific intelligence information that, around 28th April 2012, a criminal syndicate was likely to attempt smuggling red sanders out of JNPT in Container No. ESPU 202611, destined for Dubai. The contraband was, it was learned, sought to be exported as 'factory stuffed goods'. 4. At JNPT, officers kept watch. They located the container mounted on a trailer truck, Registration No: MH-04-CA-2224. This was one in a queue of trucks loaded with containers due for export through JNPT's NSICT Terminal (now known as DP World). On a preliminary enquiry, Gorde and two others --one of whom was the trailer truck driver -- allegedly admitted there were red sanders in the container. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e satisfaction as to those grounds. Gorde and Khan were both served with their respective orders of detention on 21st February 2013. Both detention orders are of that date. On the same day, both detenus were also served with the grounds of detention in their respective cases, as well as a list of documents each (also of the same date). These document lists contained the many statements and documents said to have been placed before the detaining authority, the 2nd Respondent, and on which she is said to have relied while issuing the impugned detention orders. 8. Mrs. Ansari founds her challenge to the detention orders on two principal grounds. The first of these is that there is an inordinate delay of about nine months in issuing the detention orders. This delay is insufficiently explained. Between the time of their release on bail on 2nd May 2012, and the service of the detention order on 21st February 2013, neither detenu had been noticed adversely by Marine and Preventive officers, or any other authority. The live link was therefore snapped, and the credible chain, if any, broken. The second ground is that, from the list of documents sent by the 2nd Respondent to the detenus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is denied that there is inordinate and inexcusable delay of 9 months in issuing the Order of Detention against the detenu. ... 10. We find this explanation far from satisfactory. To begin with, there is initial delay of about six months from 2nd May 2012, when the detenus were granted bail, to 22nd October 2012, when the detaining authority received the sponsoring authority's proposal. There is not even an attempt to explain this delay. What also emerges is that there is no material at all to show that in the six-month period from 2nd May 2012 to 22nd October 2012, no Marine or Preventive officer, nor any other authority, took any adverse notice of the detenu. There was no apprehension noted during that period of either detenu engaging or being imminently likely to engage in any act covered by COFEPOSA. No application was made for cancellation of either detenu's bail or for their arrest in the interregnum. It is true that the detaining authority cannot be said to have unconscionably delayed matters in calling for further documents and including them in the list of documents relied on, a period that ends on 5th December 2012, but what follows in the explanation is far l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... situation. 13. These principles must inform all orders of preventive detention. Expedition, despatch, urgency and the apprehension of imminent danger on the part of the authorities are clearly the sine-qua-non of preventive detention. If a person is to be deprived of his liberty for an anticipated crime, then action must be taken swiftly, not in a leisurely manner. Mrs. Ansari is, in our view, therefore right in her assertion that the inordinate delay, wanting a satisfactory explanation, had snapped the live link between the alleged prejudicial activity and the proposed preventive detention . Sunil Baburao Shirsat v Satish Sahney, (1996) 2 Mah LJ 765 14. The second broad submission canvassed by Mrs. Ansari relates to the documentary and factual material on which the detaining authority arrived at a subjective opinion for formulating her grounds for detention. It is not in dispute that there was a large volume of documentation, running into some 581 pages. Paragraph 4 of the 2nd Respondent's Affidavits in Reply in both Petitions discloses that when the proposal papers were placed before the 2nd Respondent on 1st November 2012, the 2nd Respondent perused these and called ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isfaction. 16. Mrs. Pai drew our attention to paragraph 6 of the Affidavits in Reply. Here, the 2nd Respondent states that she scanned all the documents and material herself and thereafter formulated the grounds of detention. Two sentences later comes this denial: 6.... I deny that after receiving the additional documents, I have rescinded the grounds of detention which were earlier formulated and had once again reconsidered the documents for issuing the Order of Detention against the detenu. 17. At best, this phrasing is infelicitous. It lends itself to multiple, conflicting interpretations. Does it mean that grounds of detention were in fact earlier formulated, but not rescinded on receipt of additional information and material, and that the additional documents were not reconsidered? Or does it mean, as Mrs. Pai would have it, that no grounds were earlier formulated, and that the material was considered only once, when all of it was received? Despite a great deal of careful scrutiny and lengthy arguments, we found ourselves unable to determine what exactly this sentence/denial intended to convey. We therefore requested Mrs. Pai for the office file pertaining to the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds that the detenus' reply to the Show Cause Notices was sent only to the adjudicating authority, i.e., the Commissioner of Customs (Exports), JNPT, Nhava Sheva, Navi Mumbai and not to the Sponsoring Authority, and therefore was not placed before the detaining authority. 20. This only muddies already turbid waters. It is, for one thing, to be expected that the reply would be sent to the authority who issued the show-cause notices, viz., the Commissioner of Customs (Exports), JNPT, Nhava Sheva, Navi Mumbai. The Sponsoring Authority is also from the same authority or agency, viz., Customs, and it is merely obfuscatory to suggest that the Commissioner of Customs (Exports) and the Sponsoring Authority operate in isolated spheres, insulated from each other. Even more peculiar is the fact that the replies are dated 22nd October 2012. That is the date on which the Sponsoring Authority's proposal, dated 19th October 2012, i.e., of a date three days prior to the detenus' Advocate's reply, was received at the Detaining Authority's office. This can only mean that show-cause notice was treated as an idle formality, and that the detention proposal had already been prepare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply nor the file put this beyond doubt. As we have noted, the documents were not all received by the 2nd Respondent till as late as 28th January 2013. Between that date and 21st February 2013, the 2nd Respondent lists some five days as holidays. If, in fact, there was a piecemeal consideration, this is entirely unsustainable and, on its own, vitiates the detention order. Rakesh Sherpalsingh Rana v State of Maharashtra, 2001 (1) Mh.L.J. 495, para 7; Ashwinkumar B. Malari v The State of Maharashtra Ors, 1987 (3) Bom.C.R.11, para 2. Mrs. Ansari is correct in her submission that the law requires the detaining authority to apply his or her mind to the material before formulating the grounds for detention, and the record must reflect such an application of mind or, at any rate, must not show a non-application of mind. Jai Singh v State of J K, (1985) 1 SCC 561 There must be an application of mind to pertinent and proximate matters in regard to each individual case and all elements of arbitrariness and automatism must be exscinded. Prakash Mehta v/s. Commissioner and Secretary, Government of Kerala and others, AIR 1986 SC 687. It is, as the Supreme Court held in Rajesh Vashdev Adnan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urvey, Andrew Harding, John Hatchard, ed., Martinus Nijhoff Publishers. 26. Preventive detention laws like COFEPOSA have been held to serve a wide social objective, Dropti Devi Anr vs Union Of India Ors, (2012) 2012 (7) SCC 499 and we are mindful, too, of the gravity of the offences with which these two detenus are charged, and that red sanders smuggling now seems to be the handiwork of a criminal syndicate, as is evident from other cases recently before this court. Maya Ajit Satam v State of Maharashtra, 2012 114 (5) Bom.L.R. 2969; Sangita Deepak Jare v State of Maharashtra and Ors, 2012 All MR (Cri) 3190. But whatever be the social impetus of a preventive detention law, it cannot be wider than the constitutionally-mandated guarantee of the fundamental right to personal liberty under Article 21 of the Constitution. Under our constitutional jurisprudence, Articles 21 and 22 together constitute an integrated code in matters relating to personal liberty and preventive detention. Jaswal, PS; supra. It follows, therefore, that any action that curbs that fundamental right must conform, and conform exactly, to the contours of A.22(5) and that is why courts so jealously protect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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