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TMI Blog2016 (2) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... q Patel was intercepted by the Officers of the Air Intelligence Unit. She was subjected to a personal search in the presence of a gazetted officer and two independent panchas. The search yielded the recovery of a packet wrapped in transparent cello-tape from an artificial cavity pocket that was stitched around the waist of her blue jeans of the brand 'Joe FRESH'. When the transparent cello tape was detached from the packet, 19 bars of gold of 250 grams each were recovered. These had the foreign markings more particularly described in paragraph 2 of the grounds of detention at page 34. On questioning and enquiry, the lady revealed that she had gone to Hyderabad from Mumbai on an early morning Jet Airways flight along with the detenu and his wife Farida (the present Petitioner) and a co-passenger, one Ms. Shabana Habib Shaikh. On their return on the same day by the Air India flight, the packet was handed over to her by an unknown person in the flight who was already seated as a transit passenger from Jeddah to Mumbai via Hyderabad. She received the packet on the detenu's instructions. The monetary consideration and other matters are then detailed in the grounds of detention together ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Affidavit in Reply of the Sponsoring Authority. In that Affidavit in Reply at paragraph 4, the Sponsoring Authority states that there is absolutely no delay on its part. The case was booked on 23rd September 2014 and on the basis of the statements recorded of Ms. Shahin Farooq Patel and Ms. Shabana Habib Shaikh and further investigation in the matter, the detenu was apprehended on 13th February 2015. His statement was recorded and he was arrested on that very day. He was produced before the Additional Chief Metropolitan Magistrate, Mumbai on 14th February 2015. He retracted his statement on the same day. The Additional CMM remanded him to judicial custody. The detenu applied for bail on 14th February 2015, and a reply to the bail application was filed on 20th February 2015 by the Sponsoring Authority. The Sponsoring Authority/Department also rebutted the retraction. The judicial custody of the detenu was extended further. His bail application was rejected on 25th February 2015 and 5th March 2015. The detenu approached the Sessions Court for bail on 5th March 2015. It was rejected on 18th March 2015. Thereafter, the detenu approached this Court and it enlarged him on bail on 1st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is constituted which consists of the Assistant, the Section Officer, the Deputy Secretary and the Principal Secretary (Appeals and Security), Home Department who is empowered with powers of Detaining Authority. This office works only according to the directions given by me. This office scrutinizes the proposal according to the safeguard/procedural guidelines of Government of India and submits for my order. Accordingly when the current proposal was received, it was scrutinized and the Scrutiny Note was submitted by concerned Assistant on 18.04.2015. The Section Officer endorsed it on 18.04.2015 and the Deputy Secretary endorsed it on 20.04.2015 (19.04.2015 was Sunday). I as the Detaining Authority approved the Scrutiny Note on 21.04.2015. The additional information on some points raised in the Scrutiny Note were called by letter dated 21.04.2015. The Sponsoring Authority forwarded the additional information by letter dated 06.05.2015 which was received in this Department on 11.05.2015. There were holidays on 09.05.2015, 10.05.2015 and 17.05.2015 on account of second Saturday and Sunday's. After scrutinizing the information forwarded by the Sponsoring Authority, the scrutinized note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenu was enlarged on bail on 1st April 2015, if the detaining authority on receipt of the proposal on 15th April 2015 does not issue the detention order till 17th July 2015, then we have no alternative but to record our satisfaction that there is indeed a long and unexplained delay sufficient to conclude that the live link is snapped. 8. We find that the scrutiny note was submitted by the assistant concerned on 18th April 2015. The Deputy Secretary endorsed it on 20th April 2015. The Detaining Authority approved the scrutiny note on 21st April 2015. The additional information forwarded by letter dated 6th May 2015 was received in the Department of Home on 11th May 2015. From 11th May 2015 till the issuance of the detention order on 17th July 2015, the explanation is that 9th, 10th and 17th May 2015 were holidays on account of second Saturday and Sundays. We are not concerned with 9th and 10th of May because on that day the additional information was not received at all. The additional information was received on 11th May 2015; yet nothing was done till 17th/18th May 2015. This additional information was scrutinized for the first time after 17th May 2015 and another note was submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union of India and Ors. (2000) 3 SCC 409; para 45 of the AIR report: "Personal liberty is one of the most cherished freedoms, perhaps more important than the other freedoms guaranteed under the Constitution. It was for this reason that the Founding Fathers enacted the safeguards in Article 22 in the Constitution so as to limit the power of the State to detain a person without trial, which may otherwise pass the test of Article 21, by humanizing the harsh authority over individual liberty. Since preventive detention is a form of precautionary State action, intended to prevent a person from indulging in a conduct, injurious to the society or the security of the State or public order, it has been recognised as "a necessary evil" and is tolerated in a free society in the larger interest of security of the State and maintenance of public order. However, the power being drastic, the restrictions placed on a person to preventively detain must, consistently with the effectiveness of detention, be minimal. In a democracy governed by the rule of law, the drastic power to detain a person without trial for security of the State and/or maintenance of public order, must be strictly construed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain Malik was this: that mere delay, i.e., delay per se, in passing a detention order is inconclusive. A Court will examine the types of grounds given for detention and consider whether such grounds could really weight with an office several months later in forming a subjective satisfaction as to the necessity for preventive detention. This, in our view, is the very principle being invoked when we speak of 'the live link being snapped'. This is the causality implicit in our use of the phrase 'credible chain'. The detaining authority is required, as a matter of Constitutional law, to ensure that the live link is not snapped, the credible chain not broken. 13. We also note the overarching reason for this judicial insistence. It is not some arcane legal principle meant to obstruct administration or executive action. It is a judicial principle that is held to be cardinal and essential to our survival as a body politic, firmly rooted in our Constitutional mandate, and in Article 21, the fundamental right to life and personal liberty. These are not rights that are specially created or given to smugglers and drug runners and criminals. They are rights intended for the protection of us al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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