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2016 (1) TMI 192 - KERALA HIGH COURT

2016 (1) TMI 192 - KERALA HIGH COURT - TMI - Smuggling of Gold into India - Proceeding under COFEPOSA Act - detention order - The Writ Petition has been filed challenging the order of detention at its pre-execution stage, after having withdrawn the Writ Petition filed by him before the Delhi High Court for the same relief. - Held that:- Learned counsel for the petitioner submitted that steps under Section 7 of the COFEPOSA Act were illegally taken and there was no ground at all for initiating su .....

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rned. A step taken to secure the presence of the person against whom an order of detention is issued cannot be the basis for challenging the order of detention at its pre-execution stage. We reject the contention raised by the petitioner. - Decided against the petitioner. - WP(Crl.).No. 400 of 2015 (S) - Dated:- 20-10-2015 - MR.K.T.SANKARAN AND MR. RAJA VIJAYARAGHAVAN V, JJ. FOR THE PETITIONER : SRI.NIRMAL. S SMT.VEENA HARI FOR THE RESPONDENT : SRI.P.K.RAMKUMAR BY SRI.N.NAGARESH, ASSISTANT SOLIC .....

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challenge the detention order at appropriate stage. Recording that statement, the Writ Petition was dismissed as withdrawn. For the sake of convenience, the order dated 18.8.2015 passed by the Delhi High Court is extracted below: Learned counsel for petitioner seeks permission to withdraw the present petition, with liberty to challenge/ impugn the detention order at an appropriate stage. In view of the statement made, the petition is dismissed as withdrawn. 2. Thereafter, the present Writ Petiti .....

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y abetted smuggling of 19.491 kgs. of gold into India on 7.7.2014 for his personal benefit and monetary gain. It was alleged that the petitioner has been associated with a well organized smuggling syndicate and he assisted smuggling of gold from abroad by providing information of flights and passengers. It was also alleged that the petitioner was involved in such activities even before. According to the respondents, it has come out that the petitioner was in constant touch with the mastermind of .....

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gain on 2.3.2015 and remained at Bhubaneswar till 5.4.2015. He again took casual leave for five days from 6.4.2015 to 10.4.2015. Again he went on half pay leave on medical ground from 4.5.2015 to 29.5.2015. From 13.7.2015 the petitioner went on leave for fifteen days and a further request for extension of leave on medical ground was made by him. 5. The present Writ Petition was filed before this Court on 18.9.2015. It is averred in the Writ Petition that he contacted his friends in Goa, who info .....

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and who was intercepted at Dabolim Airport on 7.7.2014. The petitioner stated that he went through the grounds of detention which contained the probable grounds of detention in so far as it relates to the petitioner as well. 6. The Writ Petition has been filed challenging the order of detention at its pre-execution stage, after having withdrawn the Writ Petition filed by him before the Delhi High Court for the same relief. 7. Sri.Nirmal S., the learned counsel appearing for the petitioner, submi .....

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ds, namely, (a) by the passage of time from the date of prejudicial activity to the date of the order of detention, and (b) passage of time from the order of detention till date. 8. Sri.P.K.Ramkumar, the learned counsel appearing for the respondents, submitted that the present Writ Petition is not maintainable since the Delhi High Court did not grant to the petitioner permission to file another Writ Petition. The learned counsel also submitted that what was sought to be reserved while withdrawin .....

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the order of detention. 10. Ext.P15, the order dated 18.8.2015 passed by the Delhi High Court in W.P.(Crl) No.1707 of 2015, shows that the Writ Petition was sought to be withdrawn by the petitioner reserving the liberty to challenge the order of detention at an appropriate stage (emphasis supplied). The stage at which the Writ Petition was filed before the Delhi High Court was the stage before the execution of the order of detention. At that stage, the Delhi High Court did not interfere with the .....

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ention. 11. We are not going into the question whether the Delhi High Court had granted the permission sought for. The order does not indicate that such a permission was granted. However, we assume that the permission sought for by the petitioner was granted by the Delhi High Court, though not specifically stated in the operative portion of the order. We are not disposing of the Writ Petition on the ground that the Delhi High Court did not grant permission to the petitioner to challenge the orde .....

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h, another person involved in the incident) were over and the Delhi High Court reserved the case for judgment on that day. The petitioner had sought permission to withdraw the Writ Petition filed by him before the Delhi High Court on 18.8.2015. It is not clear whether W.P.(Crl) No.1386 of 2015 also came up for hearing on 18.8.2015 before the Delhi High Court and therefore, it is also not very clear whether the petitioner sought permission to withdraw the Writ Petition filed by him before the Del .....

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swar and after having shifted from Bhubaneswar to Kerala, probably on getting information that he was about to be arrested, the petitioner cannot be permitted to have another round of litigation before the Kerala High Court only on the ground that he has set up his residence in Kerala. The order of detention was issued by the Joint Secretary, Government of India, Ministry of Finance, Department of Revenue, New Delhi and the petitioner rightly approached the Delhi High Court for appropriate relie .....

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The question whether the live-link between the prejudicial activity and the order of detention has been snapped is a matter to be considered while considering the validity of the detention order after its execution. Likewise, the question whether because of passage of time between the prejudicial activity and the order of detention and the passage of time after the date of order of detention till today, is also a matter to be considered on facts after the order of detention is executed. 15. In S .....

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lack of 'live nexus' are cases where the detention orders were executed but not cases of nonexecution of the detention orders for a long lapse of time after such orders came to be passed. ...... ....... ....... 43. If a preventive detention order is to be quashed or declared illegal merely on the ground that the order remained unexecuted for a long period without examining the reasons for such non-execution, I am afraid that the legislative intention contained in the provisions such as S .....

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exus theory is impermissible. Permitting such an argument would amount to enabling the law-breaker to take advantage of his own conduct which is contrary to law. 47. Even in those cases where action such as the one contemplated under Section 7 of the COFEPOSA Act is not initiated, the same may not be the only consideration for holding the order of preventive detention illegal. This Court in Shafiq Ahmad v. District Magistrate, Meerut [(1989) 4 SCC 556)], held so and the principle was followed su .....

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