TMI Blog2016 (5) TMI 556X X X X Extracts X X X X X X X X Extracts X X X X ..... etenues and they were released on bail on conditions. That the detenues surrendered their passports and that they were restrained from moving out of the State was also considered by the detaining authority, as evident from the grounds of detention. The fact that the detenues complied with the conditions of bail or the orders passed in the Writ Petitions is not a matter to be considered by the detaining authority after passing the order of detention and before executing the order of detention, and that too when the detenues tried their best to avoid execution of the orders of detention. We are not inclined to accept the contentions put forward by the petitioners in this regard. When the persons involved in the smuggling activities were arrested and they were granted bail, they were bound to comply with the conditions of bail. That they complied with the conditions of bail is not a virtue on their part which is to be favourably taken note of by the detaining authority while passing the order of detention or while executing the order of detention. If they violate the conditions of bail, the consequences would follow. That the detenues complied with the conditions of bail and also t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent under Sections 3(1)(i) and 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'COFEPOSA Act'). W.P.(Crl) No.5276 of 2015 is filed by P.Rasheeda, mother of Rahila Cheerayi, challenging the order of detention dated 25.2.2014 issued by the first respondent under Sections 3(1)(i) and 3(1)(iii) of the COFEPOSA Act. Hereinafter, the detenues are referred to as Rahila and Hiromasa or as detenues. 2. The order of detention was executed on 9.11.2014 and since then Rahila and Hiromasa are under detention. 3. The following facts are discernible from the grounds of detention: On the specific intelligence reports that the detenues (Rahila and Hiromasa) were indulging in smuggling gold to India through various airports acting under the instructions of a gang of Shahbas, Abdul Lais @ Abu Lais and Nabeel, the detenues were intercepted at Calicut International Airport on 8.11.2013 when they alighted by Air India Express Flight No.IX 344 at 4.55 hours. On search of the body of Rahila and Hiromasa, it was found that three gold bars each were concealed around their waist. They had not declared that any dutiab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detention order, we think that the said issue requires deeper consideration. This cannot be concluded merely because in one of the judgments referred to above, the Lordship of the Apex Court has concluded that one cannot utilise the provisions of the Right to Information Act, 2005 to access such information. The contextual content of Article 22(5) and the guarantee extended to the detenue thereby have to be considered from different angles. However, we think that it is not necessary for us to finally speak on that now since the interim order granted to the petitioners in these cases by the Division Bench has carried the case further and decision on certain question may sometimes academic and not necessarily required to render justice to the parties in the cases in hand. 4. Obviously, without a copy of the detention order and the grounds of detention being served on the proposed detenue, it would be inconceivable that we should proceed to hear the matter on grounds as to the contents of the detention order or its grounds. The question as to whether there is due and fair application of mind by the detaining authority on the proposal of the sponsoring authority is also an issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r) took the view that a person sought to be detained under Section 3 of the Kerala Anti Social Activities (Prevention) Act, 2007, is not entitled to get a copy of the order of detention, grounds of detention or document relied on by the detaining authority, before execution of the order of detention. In Nazarudeen v. State of Kerala [2015 (3) KLT 148], a Division Bench of this Court (in which Justice K.T.Sankaran was a member) held that the person against whom an order of detention under the COFEPOSA Act is passed is not entitled to get a copy of the order of detention at its pre-execution stage. In Nazarudeen's case, the Division Bench held thus: 5. ..... In SubhashPopatlal Dave v. Union of India and another ((2012) 7 SCC 533)), the Supreme Court held that a person against whom an order of detention is passed is not entitled to get the grounds of detention before execution of the order of detention. On the same principle, we are of the view that a person against whom an order of detention is passed is not entitled to get a copy of the order of detention under the Right to Information Act or otherwise. Section 4 of the COFEPOSA Act provides that a detention order may be ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny merit in the contention put forward by the petitioners that they were prejudiced by not supplying the copy of the order of detention and the grounds of detention before execution of the order of detention. 10. The learned counsel for the petitioners submitted that the passports of Rahila and Hiromasa were seized/surrendered and, therefore, there is no likelihood of their going abroad for the purpose of smuggling contraband to India. As per the order of bail granted by the Sessions Court, Ernakulam, the detenues were prevented from leaving the State of Kerala without previous permission of the learned Magistrate, till final report is submitted in the case. The detenues were also restrained from entering into any of the international airports in the State of Kerala during that period. The detenues contended that the detaining authority did not properly take note of the conditions of bail, surrender of passport etc. and, therefore, the subjective satisfaction arrived at by the detaining authority is vitiated. 11. We have gone through the grounds of detention. The grounds of detention gives all the details regarding the bail applications, the bail orders, the conditions impose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... four corners of the relevant law. The law of preventive detention is not intended for the purpose of keeping a man under detention when under the ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention. When a person is enlarged on bail by a competent criminal court,great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court. 14. In Gimik Piotr v. State of Tamil Nadu and others [(2010) 1 SCC 609] the detenu was a Polish citizen having business in Singapore. When he was intercepted at the Chennai International Airport, it was found that he was having a large amount of foreign currency. It was contended that the detention of the detenu was based on a single, solitary and isolated act of smuggling activity. It was also contended that the passport of the detenu was also seized. The Supreme Court held, on facts, that there was no basis to conclude that the person concerned will again resort to smuggling activities or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not a man of such affluence as to make so many trips out of the country unless they be in the context of his business activities. Therefore, considering the number of trips he had made out of the country, the volume of goods seized now and the prima facie misdeclaration of value, an inference can be drawn that the detenu was a part of bigger network in bringing the goods for commercial distribution inside the country by avoiding the payment of duty. In this background, absence of passport will not be a handicap to the detenu for his activities in the present case in which the fact situation is different from the one available in Rajesh Gulati's case (AIR 2002 SC 3094). Nor can we confine the meaning of the word 'smuggling' only to going out of country and coming back with goods which are contraband or to evade duty but may encourage such activities as well by dealing in such goods. 18. The specific allegation against the detenues is that they indulged in repeated smuggling activities of similar nature on earlier occasions also within a short span of time and smuggled huge quantities of gold from Dubai to India. Hiromasa is a person who knew things about aircr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dulla Kunhi and B.L.Abdul Khader v. Union of India and others [(1991) 1 SCC 476], Ummu Sabeena v. State of Kerala and others [(2011) 10 SCC 781], Rashid Kapadia v. Medha Gadgil and others [(2012) 11 SCC 745], Smt.Icchu Devi Choraria v. Union of India and others [(1980) 4 SCC 531], Lekha Nandakumar v. Government of India [2004 KHC 724] and Babu.M. v. State of Kerala and others [2010 (1) KHC 214]. 20. In Smt.Santhosh Anand v. Union of India and others [(1981) 2 SCC 420], the Chief Secretary was the detaining authority. A representation was submitted by the detenu to the Chief Secretary. The Chief Secretary submitted the same for orders to the Administrator, his higher authority, who rejected the representation. The Supreme Court held that the representation was not rejected by the detaining authority and as such the constitutional safeguard under Article 22(5) cannot be said to have been strictly observed or complied with. In the case on hand, the representations were not forwarded to any higher authority as occurred in [(1981) 2 SCC 420] and, therefore, the dictum laid down therein would not apply to the present case. 21. In Kamleshkumar Ishwardas Patel v. Union of India and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered by the Joint Secretary, Central Economic Intelligence Bureau, Department of Revenue, Ministry of Finance, New Delhi. The order passed by the Joint Secretary was not sent to the detenu, but a communication was sent stating about the factum of rejection of the representation. It was held that there was no proper disposal of the representation and, on that ground, the continued detention was illegal. 23. In Babu.M. v. State of Kerala and others [2010 (1) KHC 214], the decision in Lekha Nandakumar v. Government of India [2004 KHC 724 = 2004 (2) KLT 1094] was distinguished and it was held thus: 13. .... The observations extracted above understood properly in the context, according to us, can only mean and insist that the order must be communicated effectively and not that the order as such must be communicated or that the authority which passed the order must himself communicate the order. In Babu's case, it was also held thus: 26. Quality and nature of consideration that a W.P.(Crl) No.115/2015 W.P.(C) No.5276/2015 representation should receive must certainly depend upon the facts and circumstances of the case. But the irreducible minimum is that it must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be the instrumentality, whether P. V. Nayak or the Minister of State for Home, it would be the State Government which would be considering and dealing with the representation. The only requirement of Art. 22 (5) is that the representation of the detenu must be considered by the detaining authority which in the present case is the State Government and this requirement was clearly satisfied because when the Minister of State for Home considered the representation and rejected it, he was acting for the State Government and the consideration and rejection of the representation was by the State Government. There is no requirement express or implied in any provision of the COFEPOSA Act that the same person who acts for the State Government in making the order of detention must also consider the representation of the detenu. In fact, as pointed out by Chinnappa Reddy, J. in Smt. Kavita v. State of Maharashtra [(1981) 3 SCC 558], Government business can never get through if the same individual has to act for the Government in every case or proceeding or transaction, however advantageous it may be to do so. Moreover it would really be to the advantage of the detenu if his representation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cryptic orders. The representations were rejected and the communications were signed by the Additional Secretary for the Additional Chief Secretary to the Government. The from address shown in the orders rejecting the representations shows that it was from the Additional Chief Secretary. There is no dispute that the Principal Secretary, Home and Vigilance, who signed the order of detention, is also the Additional Chief Secretary. 27. The representations submitted by the detenues were considered by the proper authority. The facts and circumstances were considered in detail and the detaining authority did not find any reason to accept the representations and to revoke the order of detention. We do not find any illegality, irregularity or impropriety in the manner in which the representations were rejected by the first respondent. 28. In the decisions of the Supreme Court in Pabitra N. Rana v. Union of India and others [(1980) 2 SCC 338], Julia Jose Mavely v. Union of India and others [AIR 1992 SC 139], Ummu Sabeena v. State of Kerala and others [(2011) 10 SCC 781], Rashid Kapadia v. Medha Gadgil and others [(2012) 11 SCC 745] and Smt.Icchu Devi Choraria v. Union of India and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) SCC 219: AIR 1970 SC 675; Frances Coralie Mullin v. W. C. Khambra, 1980 (2) SCC 275; Rama Dhondu Borade v. V. K. Saraf, Commissioner of Police, 1989 (3) SCC 173; and Aslam Ahmed Zahire Ahmed Shaik v. Union of India, 1989 (3) SCC 277. 30. In Abdulla Kunhi's case, the Supreme Court also considered the question whether the Government should consider and dispose of the representation before confirming the detention. Answering this question, the Supreme Court held thus: 19. There is no constitutional mandate under Cl, (5) of Article 22, much less any statutory requirement to consider the representation before confirming the order of detention. As long as the Government without delay considers the representation with an unbiased mind there is no basis for concluding that the absence of' independent consideration is the obvious result if the representation is not considered before the confirmation of detention. Indeed, there is no justification for imposing this restriction on the power of the Government. As observed earlier, the Government's consideration of the representation is for a different purpose, namely, to find out whether the detention is in conformity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... each case having regard to the volume and contents of the grounds of detention, the documents supplied along with the grounds, the inquiry to be made by the officers of different departments, the nature of the inquiry, the time required for examining the various pleas raised, the time required in recording the comments by the authorities of the department concerned, and so on. 14. In L.M.S. Ummu Saleema v. B.B. Gujaral [(1981) 3 SCC 317] it was held that there can be no doubt that the representation made by the detenu has to be considered by the detaining authority with the utmost expedition but as observed in Frances Coralie Mullin v. W.C. Khambra, [(1980) 2 SCC 275 at p.279, para 5], the time-imperative can never be absolute or obsessive. In Madan Lal Anand v. Union of India [(1990) 1 SCC 81], the representation dated 17.1.1989 of the detenu who was detained under COFEPOSA was rejected after more than a month on 20.2.1989. After referring to L.M.S. Ummu Saleema [(1981) 3 SCC 317] it was held that the detaining authority had explained the delay in disposal of the representation and accordingly the order of detention cannot be faulted on that ground. In Kamarunnissa v. Uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, submitted that the decision of the three Judge Bench of the Supreme Court in Pabitra N. Rana v. Union of India and others [(1980) 2 SCC 338] is an authority for the proposition that the detaining authority is not entitled to wait for the opinion of the Advisory Board but it has to take its decision on the representation without the least possible delay. The Government is not obliged to wait for the decision of the Advisory Board and it has to consider the representation independently of what the Advisory Board might say. In answer, the learned counsel appearing for the Central Government submitted that in view of the dictum laid down in K.M.Abdulla Kunhi and B.L.Abdul Khader v. Union of India and others [(1991) 1 SCC 476], the contention put forward by the petitioners that there was inordinate delay cannot be upheld. In K.M.Abdulla Kunhi and B.L.Abdul Khader v. Union of India and others [(1991) 1 SCC 476], the Constitution Bench approved the dictum laid down in Frances Coralie Mullin v. W. C. Khambra, [(1980) 2 SCC 275] and held thus: 16. We agree with the observations in Frances Coralie Mullin case [(1980) 2 SCC 275]. The time imperative for consideration of representation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including the opinion of the Advisory Board. If the Central Government disposes the representation after considering all these materials, it cannot be faulted. It is true that in that process, there occurred some delay but that delay is explained. The representation was considered in a meaningful manner by the Central Government. Therefore, the detenues cannot contend that their constitutional right under Article 22(5) has been infringed. 37. It is submitted that the alleged prejudicial activity was on 8.11.2013, that the order of detention was passed only on 25.2.2014 and it was executed only on 9.11.2014. According to the petitioners, there is delay in passing and executing the order of detention. In the counter affidavit filed by the first respondent, it is stated that the proposal for detention under the COFEPOSA Act was made on 7.1.2014, there was meeting of the Screening Committee on 18.1.2014 and the detention order was issued on 25.2.2014. Rahila and Hiromasa went into hiding on 25.2.2014. On 11.3.2014, directions were issued to execute the detention order and to furnish action taken report by the District Police Chief. On 17.3.2014, he was also directed to constitute a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act. Second, the fact that the Police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under the Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention. Third, where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order. Fourth, the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nge. On the other hand, release on bail is a stronger ground showing that the detenu who is not in custody is likely to indulge in the prejudicial activities again. The conditions imposed would show that the detenu could move about freely in the vast area of Calcutta Municipal Corporation and therefore this order of release on bail with conditions cannot be said to be a vital document. ....... 43. When the persons involved in the smuggling activities were arrested and they were granted bail, they were bound to comply with the conditions of bail. That they complied with the conditions of bail is not a virtue on their part which is to be favourably taken note of by the detaining authority while passing the order of detention or while executing the order of detention. If they violate the conditions of bail, the consequences would follow. That the detenues complied with the conditions of bail and also the conditions imposed in the interim orders passed in the Writ Petitions, would not in any way deter the authorities from executing the order of detention. It is not necessary to revoke the order of detention on that ground before the order of detention is executed. In the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons detained. The scheme of the COFEPOSA Act shows that the Court has no authority to revoke an order of detention. The Court can exercise its jurisdiction under Article 226 of the Constitution of India to hold that the order of detention is illegal on various grounds, namely, that the detaining authority did not apply its mind to the relevant factors while arriving at the subjective satisfaction, that the relevant materials were not placed before the detaining authority, that there is no live-link between the prejudicial activity and the order of detention and that the live-link has been snapped, etc. etc. The Court can also hold that the continued detention of the detenu is illegal in certain circumstances, for eg., when the representation of the detenu is not considered expeditiously. However, the High Court does not have the jurisdiction to limit the duration of the detention while disposing of a writ petition challenging the validity of the order of detention or challenging the continued detention under the COFEPOSA Act. Therefore, we reject the submission made by the learned counsel for the petitioner in W.P.(C) No.5276 of 2015 in this regard. 45. Learned Director Gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to make so many trips out of the country unless they be in the context of his business activities. It was held that considering the number of trips the detenu had made out of the country, the volume of goods seized and the prima facie mis-declaration of value, an inference can be drawn that the detenu was a part of the bigger network in bringing the goods for commercial distribution inside the country by avoiding payment of duty. 47. In the counter affidavits filed by the first respondent, the details of the various trips made by Rahila and Hiromasa to Dubai and from there to India for the period from 8.1.2013 to 8.11.2013 have been given. At the time when they were arrested, they were not having sufficient money to pay duty. They were not employed abroad. They did not stay abroad for the required period to enable them to bring gold to India. Rahila and Hiromasa did not produce any document to show that the gold brought by them was by lawful means. The inference possible from these circumstances is that it is likely that they are part of a smuggling racket. Of course, at this stage, the Court is not expected to arrive at any conclusive finding as to whether the detenues are gu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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