TMI Blog2016 (2) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... the very purpose of the detention proposed itself defeated. After the detenu 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. 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. It is in these circumstances, while reminding the Detaining Authority as also the Sponsoring Authority of their duties and responsibilities, we have no other alternative but to quash and set aside the detention order as admittedl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds of detention. These statements were recorded on and after 23rd September 2014. Another similar case is referred to in paragraph 5. Details were received with regard to mobile phones on 4th February 2015 and 5th February 2015. Using these details the detenu and his wife, the Petitioner before us, were located. The statement of the detenu s wife, the Petitioner before us, was recorded on 19th February 2015. In the Petition the ground of delay taken as one of the challenges to the preventive detention order is summarized at pages 8, 9 and 10 as under: (i) The Petitioner says and submits that on or about 23.09.2014, the gold were seized from two ladies Shahin Patel and Shabana Shaikh. The detenu was arrested by the officer A.I.U. on 13.02.2015 and was granted bail on 01.04.2015. The statement of the detenu were recorded on 13.02.2015. The Petitioner says and submits that assuming whilst denying that impugned order of detention was warranted to be issue promptly and vigilantly after the alleged incident and soon after the seizure of gold and when the two woman have given inculpatory statement on 23.09.2014 involving the detenu. The Petitioner says and submits that instead, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he COFEPOSA cell for drawing up a proposal on 4th March 2015. The proposal was prepared on 12th March 2015 and placed before the Chief Commissioner of Customs on 13th March 2015. Approval was obtained on 26th March 2015 and there were further steps taken of forwarding it to the Screening Committee on 31st March 2015. The Screening Committee on 10th April 2015 approved the proposal. The approval was received from the COFEPOSA section on 15th April 2015. That is how the proposal was forwarded to the Detaining Authority on 15th April 2015. 6. The Detaining Authority in the Affidavit in Reply makes bold to say that there is only a delay of three months and four days between the date of receipt of this proposal and the order of detention. The Affidavit then claims that once the proposal was received prompt action was taken by the Detaining Authority. The Detaining Authority tries to explain the steps taken by inviting our attention to the role of several officers and subordinates through whose hands such files pass. The Affidavit makes interesting reading and, therefore, we reproduce paragraph 6 thereof: 6. With reference to paragraph No. 5(i), (vii) and (viii) of the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary endorsed it on 19.05.2015. There were holidays on 23.05.2015, 24.05.2015 and 31.05.2015 on account of Fourth Saturday and Sunday s. On 02.06.2015, I as the Detaining Authority directed to get some details of the case from the Sponsoring Authority. The letter was sent to the Sponsoring Authority on 03.06.2015. The Sponsoring Authority forwarded the information by letter dated 10.06.2015 which was received in this Department on 24.06.2015. After scrutinizing the information forwarded by the Sponsoring Authority, the same was submitted by the section officer on 26.06.2015. There were holidays on 27.06.2015 and 28.06.2015 on account of Fourth Saturday and Sunday. This note was endorsed by the Deputy Secretary on 29.06.2015. After considering the proposal and after subjective satisfaction, on 01.07.2015, I as the Detaining Authority directed to take the dictation. The Detention Order was finally issued on 17.07.2015. The detention order was thus issued after a span of 3 months and 4 days from the date of receipt of proposal. In fact, the time which has been spent by me as the Detaining Authority shows the sincere efforts to satisfy myself as to the need of detaining the detenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tary endorsed it on 19th May 2015. The explanation then is that there were holidays on 23rd, 24th and 31st May 2015. On 2nd June 2015, the Detaining Authority directed that some further details of the case be got from the Sponsoring Authority. The letter was sent to the Sponsoring Authority on 3rd June 2015. Thus, from 19th May 2015 till 2nd June 2015, there was no meaningful action taken. A letter was sent to the Sponsoring Authority on the Detaining Authority s direction on 3rd June 2015. The Sponsoring Authority forwarded the information by its letter dated 10th June 2015, which was received in the Department on 24th June 2015. After scrutiny of this information by the Sponsoring Authority, it was submitted by the Section Officer on 26th June 2015. Then again holidays on 27th and 28th June 2015 are said to have presented difficulty. The Deputy Secretary endorsed this note on 29th June 2015 and, thereafter, the Detaining Authority satisfied himself on 1st July 2015 and directed dictation to be taken. The Detention Order was finalised on 17th July 2015. We do not believe these explanations are satisfactory, nor are we persuaded to hold that there is no delay or that such delay as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alously attempted to preserve and protect the liberty of a citizen. However, where individual liberty comes into conflict with an interest of the security of the State or public order, then the liberty of the individual must give way to the larger interest of the nation . (Emphasis added) 10. In Dropti Devi, the Supreme Court also noted the minority open, though dissenting on the question of law (Dropti Devi, supra, para 45.1 of the AIR report; per G.T. Nanavati J.) : 45.1. In the minority opinion, G.T. Nanavati, J. although differed with the view of majority on the question of law but he also noted: the distinction between preventive detention and punitive detention has now been well recognised. Preventive detention is qualitatively different from punitive detention/sentence. A person is preventively detained without a trial but punitive detention is after a regular trial and when he is found guilty of having committed an offence. The basis of preventive detention is suspicion and its justification is necessity. The basis of a sentence is the verdict of the court after a regular trial. When a person is preventively detained his detention can be justified only so ..... X X X X Extracts X X X X X X X X Extracts X X X X
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