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2015 (9) TMI 1192 - DELHI HIGH COURT

2015 (9) TMI 1192 - DELHI HIGH COURT - TMI - Petitioner challenges at pre-detention stage his detention - Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 (COFEPOSA) - smuggling of gold. - absence of "live link" due to time gap between the detention order dated 31st March, 2015 and the occurrence on 7th July, 2014 - Held that:- While deciding the issue whether the proposed deteun has absconded, the courts would have to examine the factual matrix. - in the facts of the prese .....

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cluding the question of "live link" etc. could be appropriate and properly examined and decided first under the normal statutory provisions. Case for interference at the pre-detention stage under the exceptions is not made out. - Decided against the petitioner. - WP (CRL.) No. 1386/2015 - Dated:- 31-8-2015 - Sanjiv Khanna And R. K. Gauba, JJ. For the Petitioner : Mr Sudhir Nandrajog, Sr. Adv. with Mr Amanpreet Singh Rahi and Ms Kiran Bhardwaj, Advs. For the Respondent : Mr Sanjay Jain, ASG with .....

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ioner contends that the detention order deserves quashing at the pre-detention stage, in the absence of "live link" due to time gap between the detention order dated 31st March, 2015 and the occurrence on 7th July, 2014, which is the substratum and foundation of the detention order. The "live link" snapped once the petitioner ceased to be an employee of M/s.Minar Travels Pvt. Ltd. in January, 2015. The monetary transactions in the year 2012 -13, by way of loans between the pe .....

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reafter no attempt and effort was made to serve the order of detention and detain the petitioner. It is asserted that the petitioner had not absconded and in fact had appeared, on being summoned, before the Enforcement Directorate at Goa on 04.06.2015. Petitioner s wife had also fully cooperated and was questioned by the Enforcement Directorate on 02.06.2015. Lastly, on merits it is submitted that the petitioner had signed application forms for access to the airport as an employee of M/s.Minar T .....

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Committee, the Bureau of Civil Aviation issues all area entry pass. M/s.Minar Travels Pvt. Ltd. had applied for renewal of pass in the name of Sheikh Mohammed Javid, as entry to the airport was required and necessary even after the chartered flights had stopped for attending to the leftover passenger from Russia, who could be flying out on regular basis. Reliance is placed upon the decision dated 29.5.2015 of this High Court in Pankaj Kumar Shukla Vs. Union of India & Ors. [WP(Crl.)No.827/20 .....

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th the note of caution and specifically highlight that the challenge to the detention order under COFEPOSA Act, is at the pre-detention stage. The Supreme Court in Smt.Alka Subhash Gadia (Supra) had examined whether a person is entitled to challenge a detention order without submitting or surrendering to it, by filing a writ petition under Article 32 or 226 of the Constitution of India. The Supreme Court rejected the contention that at the pre-detention stage a person or a detenu against whom de .....

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not have any entitlement to be given a copy of the order of detention without first surrendering or at the pre-execution stage, for there is no provision in the Constitution or law under which such right can be established. Secondly, the courts in exercise of writ jurisdiction in genuine cases can quash a detention at the pre-execution stage, but they are not obliged to do so, nor would it be proper for them to do so, save in exceptional cases. Exercise of Writ Jurisdiction, though wide and untr .....

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ngrained and ensure that the extraordinary power is used sparingly and not in routine. Thus, the Superior Courts have necessary power, and in proper cases can strike down and interfere at the pre-detention stage, albeit the said power or discretion should not be exercised except when the said courts are satisfied: (i) the impugned order is not passed under the Act, under which it is purported to have been passed; (ii) is sought to be executed against the wrong person; (iii) is passed for a wrong .....

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re treated as sacrosanct in Sayed Taher Bawamiya Vs. Govt. of India (2000) 8 SCC 630 wherein the five exceptions or grounds were held to be exhaustive. However, in Subhash Popatlal Dave (1) (Supra), three Judges of the Supreme Court observed: "45. Nowhere in Alka Subhash Gadia case has it been indicated that challenge to the detention order at the pre-execution stage, can be made mainly on the aforesaid exceptions referred to hereinabove. By prefacing the five exceptions in which the courts .....

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he other hand, the Hon ble Judges clearly indicated that the refusal to interfere on any other ground did not amount to the abandonment of the said power. 47. ……….The exercise of powers vested in the superior courts in judicially reviewing executive decisions and orders cannot be subjected to any restrictions by an order of the court of law. Such powers are untrammelled and vested in the superior courts to protect all citizens and even non-citizens, under the Constitution, a .....

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ment, with specific reference to the quotation from paragraph 48, Mr.Sanjay Jain, learned Additional Solicitor General has submitted and in our opinion erroneously that the court can only examine whether any "live link" exists between the incident for which the detenu is sought to be detained and the detention order. In other words, a detention order at pre-detention stage can be only challenged on the ground of staleness i.e. delay. This is not the purport of the observations made by .....

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o the time period or gap between the date of detention order and the execution of the detention order. 6. The "live link" or connection between the incident and the date on which the detention order is passed and thereafter from the date when the detention order was passed till it is executed are the cornerstone and edifice which sustains the act and mandate of detention. Unreasonable and unexplained delay can vitiate the act of detention, for an order in the latter case would ceased t .....

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and when there is unexplained time-gap and delay there is no justification to hold that the subjective satisfaction of the detaining authority meets the Constitutional requirements. Further, there must be a "live link" and connection which should permeate and be discernible from the reasons or ground of detention consistent with the satisfaction of the State that the preventive detention order is required to be passed. 7. On the question of "live link" on merits, J. Chelames .....

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entively detained is always subjective. Nonetheless, the legality of such subjective satisfaction is held by this Court to be amenable to the judicial scrutiny in exercise of the jurisdiction conferred under Articles 32 and 226 of the Constitution on certain limited grounds. xxxxxxx 38. It is the settled position of law declared by this Court in a number of cases that absence of live nexus between material forming the basis and the satisfaction (opinion) of the State that it is necessary to prev .....

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ith the reason i.e. the formation of belief and the order of detention. Reliance by the respondents on the last portion of paragraph 38 is misconceived. The argument overlooks that invoking writ jurisdiction and exercise of, and success in a writ jurisdiction are two separate aspects. The question raised in Subhash Popatlal Dave (2) (Supra) was somewhat different as is clear from paragraph 29 and 39 of the judgment of J. Chelameswar, J., which are as under: "29. The core question in these m .....

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can be automatically applied to the question of the legality of the execution of the preventive detention orders where there is a considerable time-gap between the passing of the order of preventive detention and its execution is the real question involved in these matters." This is also lucid and beyond doubt, when we refer to paragraph 3 of the judgment authored by Gyan Sudha Mishra, J. the relevant portion of which reads: "3. However, the next important question that has cropped up .....

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t;live nexus" when there is a considerable time gap as the proposed detenu had absconded or evaded execution of the detention order. 8. In the immediately preceding paragraph i.e. paragraph 2, Gyan Sudha Mishra, J. has made it clear and explicit that the Supreme Court in Subhash Popatlal Dave (1) (Supra) had held that an order of preventive detention can be challenged beyond or for reasons other than the five grounds enumerated in Smt.Alka Subhash Gadia (Supra) even at the pre-execution sta .....

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circumstances glaringly untenable at the pre-execution stage. 49. The question whether the five circumstances specified in Alka Subhash Gadia case are exhaustive of the grounds on which a pre-execution scrutiny of the legality of preventive detention order can be undertaken was considered by us earlier in the instant case. We held that the grounds are not exhaustive. But that does not persuade me to hold that such a scrutiny ought to be undertaken with reference to the cases of those who evaded .....

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able reasons for delay in execution of a preventive detention order as; (a) abscondence of the proposed detenu and (b) apathy of the authorities responsible for implementation of the preventive detention order. The aforesaid distinction between the two is significant, for they may have different consequences when a proposed detenu files a writ petition at the pre detention stage. In cases which fall in the first category, the proposed detenu would indeed face an uphill, if not an impossible task .....

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visions of Sections 82 to 85 of the Code of Criminal Procedure, 1973 for attachment of the property of the proposed detenu and perhaps even its confiscation in an appropriate case. Under Clause (b) the State can issue notification in the official gazette for directing the proposed detenu to appear before an officer specified in the notification at such place or time and on failure to comply with the notified direction without reasonable cause, an offence punishable with imprisonment for a term o .....

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egate the exercise of writ jurisdiction and convert it into a haven for those, who do not have any respect for law. In such cases delay in execution of the detention order does not snap or break the link. This is exactly the reason and the core of the judgment by Gyan Sudha Mishra, J. Thus, abscondence by the proposed detenu from the process of law, would entail rejection of the plea or ground that the "live link" has severed because of the long time gap between the date of detention o .....

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ection 1 of Section 7 has been passed, it must be noticed. An order under Clause (a) and (b) to the Sub-section 1 of Section 7 carries with it, necessary sanctity and consequences. However, we would observe and hold that in a given case in spite of an order under Clauses (a) and (b) of Sub-section 1 to Section 7, the proposed detenu can show and establish that he had not absconded from due process of law. To this extent when the proposed detenu belies and contests that he had not absconded, he w .....

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ution agency regarding abscondence or conduct of the petitioner. This we say with regret is not justified and is completely unacceptable. An exercise or approval without report and details as to the cause and reason for non-execution of the detention order would be an arbitrary exercise and contrary to the Rule of Law. It would reflect non-application of mind. Non compliance of an Order under Section 7(1) (b) has penal consequences and can constitute an offence. In the present case, we record th .....

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of Union of India, Department of Revenue, Ministry of Finance that abscondence would be established, even if the is lapse or fault is entirely on the part of the executing authority or the sponsoring authority in ensuring enforcement is mis-placed and has to be summarily rejected. Such pleas cannot be countenance and accepted in view of the authoritative pronouncement of the Supreme Court in Subhash Popatlal Dave (2) (Supra), wherein distinction is drawn between apathy of the authorities respon .....

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f abscondence, without taking into account the order under Clause (b) of Sub-Section 1 to Section 7 of the COFEPOSA Act. The detaining authority i.e. Union of India, Department of Revenue, Ministry of Finance by the letter dated 13th May, 2015 had asked the sponsoring authority i.e. the Commissioner of Customs, Goa to inform them about the efforts made by them to execute the detention order dated 31st March, 2015. The Superintendent of Police (South Goa) vide his letter dated 16th June, 2015, wh .....

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was found to be locked. We have no doubt in our mind that the aforesaid report establishes that the petitioner was aware and knew about the detention order dated 31st March, 2015 and was trying to conceal and remain underground so that he is not detained and served with the detention order. Possibly he was taking legal advice to move the court, which took him about a month as the present writ petition was filed on 4th July, 2015. It has been highlighted and brought to our notice that Subhash Po .....

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ecessarily show and indicate greater culpability. Abscond means to go away secretly or illegally and hurriedly to escape from custody or avoid arrest. In the context of the issue raised in Subhash Popatlal Dave (2) (Supra) and the present case, as would be in other cases, the question of abscondence would have to be examined and determined on facts of each case. 15. We are also not impressed with the argument on behalf of the petitioner that the absdondence is contra-indicated for the petitioner .....

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e writ petition primarily for the reason that the petitioner has not been able to make an exceptional ground, to accept the present writ petition at the pre-detention stage. We do not agree with the counsel for the petitioner that there is lack of perceptible live nexus and link between the events on 7th July, 2014 and the detention order dated 31st March, 2015 for the connection snapped on account of the time gap between the two dates and delay in execution of the detention order dated 31st Mar .....

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application of mind and examination. Detention order cannot be passed in haste and hurry without evidence justifying such action. The detention order would not become stale because of the time gap between the occurrence which becomes the substratum of the detention order, if the authorities can explain the reason and cause for the period in question. The respondents have explained the time between 31st March, 2015 to 5th May, 2015 as 3000 papers had to be photocopied and CDs and other electroni .....

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uot; etc. could be appropriate and properly examined and decided first under the normal statutory provisions. Case for interference at the pre-detention stage under the exceptions is not made out. 17. Similarly we do not think that there is any justification and reason for us to interfere at the pre-detention stage under exception No.(iv) as per Smt.Alka Subhash Gadia (Supra). Exception (iv) as carved out, stipulates that interference is possible if the impugned order is passed on vague, extrane .....

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, but existence of the reasons and their connect and nexus with the statutory and constitutional preconditions which justify preventive detention. The said exercise is undertaken in a limited way for the order of preventive detention does not partake character of punishment, but is by way of pre-caution to prevent future mischief and, therefore, to some extent would always depends upon suspicion or anticipation. Power of interference under exception (iv) of Smt.Alka Subhash Gadia (Supra) at pre- .....

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orating and noting in detail the assertions made in the grounds of detention order as the same has not been served on the petitioner. However, we note and record what we have before us are the contentions raised by the petitioner, show cause notice issued by the Customs Authorities under Section 124 of the Customs Act, 1962 and the petitioner s response. The contentions and the pleas raised by the petitioner do not carve out an overtly exceptional case, which would justify quashing of the detent .....

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