Subscription   Feedback   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Articles Highlights TMI Notes SMS News Newsletters Calendar Imp. Links Database Experts Contact us More....
Extracts
Home List
← Previous Next →

Leema Sebastian Versus State of Kerala

2016 (5) TMI 556 - KERALA HIGH COURT

Seeking direction for quashing of detention order - 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 - Seizure of gold bars - Petitioner contended that he would be entitled to get copy of the order of detention and the grounds of detention before he is arrested and detained so that the order of detention could be challenged at its pre-execution stage effectively and with full .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

. The grounds of detention mentions about the arrest of the detenues, the fact that bail applications were moved by the detenues 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 c .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ditions 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 neces .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

and Hiromasa are illegal or their continued detention is illegal. - Decided against the petitioner - WP(Crl.).No. 115 of 2015 (S) & W.P.(C) No.5276 of 2015 - Dated:- 21-8-2015 - MR. K.T.SANKARAN AND MR. B.SUDHEENDRA KUMAR For the Petitioner : Adv. Sri.C.P.Mohammed Nias For the Respondent : Sri.P.K.Ramkumar, Addl.CGSC Versus Director General Of Prosecution Sri.Asaf Ali JUDGMENT K.T.SANKARAN, J. Since common questions of fact and law are involved, these Writ Petitions are being disposed of by thi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d 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 airpo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

aving only 20/- with her. The gold bars were seized, statements under Section 108 of the Customs Act were taken from them and they were arrested. Rahila and Hiromasa were remanded to judicial custody on 9.11.2013. As per the order dated 21.12.2013, bail was granted to them with effect from 28.12.2013 on certain conditions. The grounds of detention also reveals that the allegation is that Rahila and Hiromasa smuggled gold to India from Dubai on 30.7.2013 and 19.9.2013 as well. The further allegat .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ention and grounds of detention before the execution of the order of detention. A Division Bench of this Court granted interim order of stay of execution of the order of detention on conditions that they shall stay within the local limits of the police station of their residence, they shall report before the Station House Officer concerned on every day and that they shall not contact the other accused in the case. Those Writ Petitions were disposed of by the judgment dated 16.7.2014 by another D .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rned Additional Director General of Prosecution has attempted to say that the clear content of Clause 5 of Article 22 of the Constitution includes an embargo to the detaining authority issuing the detention order and grounds of detention at any point of time before the actual execution of the 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 t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ecessarily 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 that would f .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he 31st of August, 2014. ......" 5. The judgment of this Court in W.P.(C) Nos.8917 and 8946 of 2014 was challenged by the first respondent before the Supreme Court in S.L.P.Nos.27662 and 27663 of 2014. The Supreme Court stayed the impugned judgment of this Court until further orders, as per the order dated 27.10.2014. Thereafter, Rahila and Hiromasa were arrested in execution of the order of detention on 9.11.2014. 6. Heard Sri.C.P.Mohammed Nias and Sri.P.S.Biju, the learned counsel appeari .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

forward by the writ petitioners are discussed below. 8. It is submitted that a person sought to be detained under the COFEPOSA Act would be entitled to get copy of the order of detention and the grounds of detention before he/she is arrested and detained so that the order of detention could be challenged at its pre-execution stage effectively and with full knowledge of the facts and circumstances. We are of the view that this contention is unsustainable. In Subhash Popatlal Dave v. Union of Ind .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

, 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

. Section 4 of the COFEPOSA Act provides that a detention order may be executed at any place in India in the manner provided for the execution of warrants of arrest under the Code of Criminal Procedure, 1973. Clause (1) of Article 22 of the Constitution of India mandates that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest. In view of clause (3) of Article 22 of the Constitution, this mandate shall not apply to any .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e Constitution that a person against whom an order of detention has been passed under the preventive detention laws should be supplied with a copy of the order of detention before the order is executed. In the nature of the scheme of the preventive detention laws and in the nature of the object sought to be achieved by such preventive detention, it cannot be assumed that a person against whom an order of detention is passed is entitled to get a copy of the order of detention before he is arreste .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

y against whom an order of detention is passed cannot insist that he should get a copy of the order of detention before he is arrested, in order to enable him to challenge the same under Article 226 of the Constitution of India and for the purpose of production of the same before Court. There is no such right vested in the person against whom an order of detention is passed." 9. In view of the principles laid down in the aforesaid decisions, we do not find any merit in the contention put fo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d 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 h .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he conditions imposed while granting bail. It is to be noted that the conditions of bail are specifically made operative only till the final reports are filed. The detaining authority took note of the previous instances of smuggling of huge quantities of gold by the detenues under the instructions of a powerful gang, who also smuggled huge quantities of gold to India. It cannot be held that the subjective satisfaction arrived at by the detaining authority is vitiated. The Court is not entitled t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Narain Singh v. State of Bihar and others [(1984) 3 SCC 14], Gimik Piotr v. State of Tamil Nadu and others [(2010) 1 SCC 609] and Moulana Shamshunnisa and others v. Additional Chief Secretary and others [(2010) 15 SCC 72] in support of their aforesaid contention. 12. In Rajesh Gulati v. Govt. of NCT of Delhi and another [(2002) 7 SCC 129], the detenu had allegedly smuggled 40 mobile telephones. According to the detenu, he was only an employee of M/s.B.D.Denim. The passport of the detenu was seiz .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

jeopardised unless his case falls squarely within the 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 exe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 abetting such activities by staying in the country. However, the Supreme Court held that it is a well settled principle of law that even a single incident is enough to prove the propensity and potentiality of the detenu so as to justify the order .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n in the counter affidavit filed by the first respondent and submitted that indisputable documents would reveal that during the period from 8.1.2013 to 8.11.2013, Rahila and Hiromasa made more than twenty trips to Dubai and from there to India. They were having only tourist visa. Hiromasa was a cabin crew of Air India Express. It is submitted that on various occasions, Rahila unauthorisedly brought 23 kg. of gold while Hiromasa brought 16 kg. of gold to India from abroad. The learned Director Ge .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Section 3(1)(iii) of the COFEPOSA Act. The learned Director General of Prosecution also relied on the decision of the Supreme Court in Sitthi Zuraina Begum v. Union of India and others [AIR 2003 SC 323]. 17. In Sitthi Zuraina Begum v. Union of India and others [AIR 2003 SC 323], the Supreme Court held thus: "9.The stand of the department is that whether there can be detention on a solitary instance would depend on the facts and circumstances of each case, on the magnitude of the case and ot .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 enco .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ring various trips. The allegation is that the detenues have connection with a racket involved in smuggling of huge quantity of gold to India. It is true that the passports of the detenues were seized/surrendered. That would only restrict their travel abroad. That would not restrict their movements within the State of Kerala. The conditions of bail would be in operation only till final report is filed. Therefore, after final report is filed, the detenues could freely travel anywhere in India. Se .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ve satisfaction arrived at by the detaining authority that the detenues are likely to indulge in prejudicial activity of similar nature and that with a view to preventing them from engaging in transporting or concealing or keeping smuggled goods an order of detention is required, is vitiated. 19. The petitioners contended that the representations dated 16.12.2014 submitted by the detenues were disposed of on 28.1.2015 and 29.1.2015 and there is unexplained delay in the matter of disposal of the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Union of India and others [(1995) 4 SCC 51], Smt.Santhosh Anand v. Union of India and others [(1981) 2 SCC 420], 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], K.M.Abdulla 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 Indi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e 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 others [(1995) 4 SCC 51], the Supreme Court held thus: & .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r the said representation and the failure on his part to do so results in denial of the right conferred on the person detained to make a representation against the order of detention. This right of the detenu is in addition to his right to make the representation to the State Government and the Central Government where the detention order has been made by an officer specially authorised by a State Government and to the Central Government where the detention order has been made by an officer spec .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

eme Court also noticed that in one of the cases considered therein, in the grounds of detention, the detenu was only informed that he could make a representation to the Central Government or the Advisory Board. The detenu was not informed that he could make a representation to the officer who had made the order of detention. As a result, the detenu could not make a representation to the officer who made the order of detention. It was held that the order of detention is, accordingly, liable to be .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ecretary 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 und .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ase. But the irreducible minimum is that it must receive a real and proper consideration. The consideration must not be casual or mechanical. It is desirable 'that a brief expression of the principal reasons is made' (see - Bhut Nath Mete - para. 23 (supra)). Such consideration must be revealed from the order ordinarily. Of course by production of the relevant files etc. when the order is challenged in judicial review, the requisite satisfaction can be induced in the mind of the Court th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ditional Director General of Prosecution, the contention before the Supreme Court was that the representation of the detenu must be considered by the same person who passed the order of detention and that non- consideration of the representation by a person other than the person who passed the order of detention would be illegal and invalid. Answering the contention, the Supreme Court held that the order of detention would indicate that it was not made by the particular officer in his individual .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tate Government and either it could be disposed of by P. V. Nayak acting for the State Government under the earlier Standing Order dated 18th July 1980 or the Minister of State for Home could dispose it of under the later Standing Order dated 18th July 1980. Whether P. V. Nayak considered the representation and disposed it of or the Minister of State for Home did so would be immaterial, since both had authority to act for the State Government and whatever be the instrumentality, whether P. V. Na .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ion 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

is satisfied with respect to the person known as ......... Now, therefore, in exercise of powers conferred by section 3(1)(i) and 3(1)(iii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act, 52 of 1974), the Government of Kerala direct that ....... be detained and kept in custody in the Central Prison, Thiruvananthapuram." The order of detention is passed by the State Government. Paragraph 64 of the grounds of detention makes the position .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e Principal Secretary to the Govt. of Kerala, Home (SSA) Dept., Govt. Secretariat, Trivandrum; b. Representation meant for the Central Government, should be addressed to the Secretary to the Govt. of India, Ministry of Finance, Dept. of Revenue, 6th Floor, "B" Wing, Janpath Bhavan, Janpath, New Delhi 110 001; and c. Representation meant for the Advisory Board should be addressed to the Chairman, COFEPOSA Advisory Board, High Court of Kerala, Ernakulam and the same should be forwarded t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tations. The orders rejecting the representations are not 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

C 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 others [(1980) 4 SCC 531], the Supreme Court emphasised the need for considering the representation of the detenu as expeditiously as possible. The right of the detenu to make a representation and to have it considered expeditiously is a constitution .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

a Kunhi and B.L.Abdul Khader v. Union of India and others [(1991) 1 SCC 476], a Constitution Bench of the Supreme Court considered the requirement of considering the representation without delay and held as follows: "12. The representation relates to the liberty of the individual, the highly cherished right enshrined in Article 21 of our Constitution. Clause (5) of Article 22 therefore, casts a legal obligation on the Government to consider the representation as early as possible. It is a c .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement however, is that there should not be supine indifference slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ment 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ved that the consideration of the representation by the Government is only to ascertain whether the detention order is in conformity with the power under the law. There need not be a speaking order in disposing of such representation. There is also no failure of justice by the order not being a speaking order. All that is necessary is that there should be real and proper consideration by the Government." 31. Sri.P.K.Ramkumar, the learned counsel appearing for the Central Government produced .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nts from the detaining authority, it is stated that the opinion from the Advisory Board is awaited. Sri.P.K.Ramkumar submitted that immediately after the opinion of the Advisory Board was communicated, the representation was disposed of. He relied on the Constitution Bench decision of the Supreme Court in K.M.Abdulla Kunhi and B.L.Abdul Khader v. Union of India and others [(1991) 1 SCC 476] and submitted that in the light of this factual data, there is no unexplainable delay in the matter of con .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ith the question of delay in the matter of disposal of representation, the Supreme Court held thus: "13. The contention raised cannot be judged by any straight jacket formula divorced from facts. This has to be examined with reference to the facts of 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 exa .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r 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. Union of India [(1991) 1 SCC 128], the repre .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

be taken into consideration. The contention was repelled by this Court and it was observed that consulting the authority which initiated the proposal can never be said to be an unwarranted exercise. It was further emphasized that whether the delay in considering the representation has been properly explained or not would depend upon the facts of each case and cannot be judged in vacuum. Similarly, in Birendra Kumar Rai v. Union of India [(1993) 1 SCC 272], the petitioner made a representation a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

them as the principle is well settled that there should be no inaction or lethargy in consideration of the representation and where there is a proper explanation for the time taken in disposal of representation even though it may be long, the continued detention of the detenu would not be rendered illegal in any manner." 34. In the light of the dictum laid down by the Constitution Bench in K.M.Abdulla Kunhi and B.L.Abdul Khader v. Union of India and others [(1991) 1 SCC 476] and the decisio .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

. The time imperative for consideration of representation can never be absolute or obsessive. It depends upon the necessities and the time at which the representation is made. The representation may be received before the case is referred to the Advisory Board, but there may not be time to dispose of the representation before referring the case to the Advisory Board. In that situation the representation must also be forwarded to the Advisory Board along with the case of the detenu. The represent .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

for the Government in such situations to await the report of' the Board. If the Board finds no material for detention on the merits and reports accordingly, the Government is bound to revoke the order of detention. Secondly, even if the Board expresses the view that there is sufficient cause for detention, the Government after considering the representation could revoke the detention. The Board has to submit its report within eleven weeks from the date of detention. The Advisory Board may h .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the Advisory Board. It will have to be dealt with and disposed of by the Government as early as possible." 36. It is true that the dictum laid down in paragraph 16 of the decision in Abdulla Kunhi's case relates to the consideration of the representation by the State Government. However, the Central Government would be justified in calling for the remarks of the detaining authority and taking into account the developments in respect of the case including the opinion of the Advisory Boar .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tion 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

led Special Leave Petitions before the Supreme Court challenging the judgment of the High Court and on getting stay, the orders of detention were executed on 9.11.2014. It is submitted that there is no delay in passing the order of detention as well as in executing the order of detention. After passing the order of detention, the orders could not be executed only because Rahila and Hiromasa approached the High Court and got interim orders staying execution of the orders of detention. Only on get .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

y about the delay in execution of the orders of detention. 38. The learned counsel for the petitioners submitted that bail was granted to the detenues on stringent conditions; stringent conditions were also imposed by the High Court while granting interim orders in the Writ Petitions filed by the detenues challenging the orders of detention at the pre-execution stage. It is submitted that the conditions were being complied with by the detenues. These circumstances were not taken note of by the d .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

is liable to be tried in a criminal Court for the 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 informatio .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

te 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 of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances." 40. In the light of the decision of the Constitution Bench in Haradhan Shah v. The State of W.B. and others [(1975) 3 SCC 198 = AIR 197 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the detention order. 42. In Noor Salman Makani v. Union of India and others [AIR 1994 SC 575], the Supreme Court considered the question whether the conditions on which bail was granted to the detenu should be considered while declaring the detention order. The Supreme Court held: "6. ...... The detention order itself was passed when the detenu was in jail and the detaining authority noted this fact and being satisfied that there was every possibility of his being released on bail, passed t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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. Tha .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tion. 44. Sri.P.S.Biju, the learned counsel appearing for the petitioner in W.P.(C) No.5276 of 2015, submitted that Rahila is undergoing detention since 9.11.2014 and the High Court exercising the jurisdiction under Article 226 of the Constitution of India would be justified in holding that the period already undergone in detention would be sufficient to meet the purpose. We are of the view that the submission made by the learned counsel for the petitioner cannot be entertained. The order of det .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

opinion as to whether or not there is sufficient cause for the detention of the person concerned, as provided in clause (c) of Section 8 of the COFEPOSA Act. Clause (f) of Section 8 provides that in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Adv .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

from the date of detention or the specified period, whichever period expires later. A detention order may, at any time, be revoked or modified, as provided in Section 11 of the COFEPOSA Act. Section 12 provides for temporary release of the persons 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 var .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he 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 General of Prosecution submitted that Rahila and Hiromasa were foun .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s of such a nature as to indicate that it is an organised act or a manifestation of organised activity. The gravity and nature of the act is also relevant. The test is whether the act is such that it gives rise to an inference that the person would continue to indulge in similar prejudicial activity. That is the reason why single acts of wagon- breaking, theft of signal material, theft of telegraph copper wires in huge quantity and removal of railway fish plates were held sufficient. Similarly, .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

who act in concert with other persons and quite often such activity has international ramifications. These acts are preceded by a good amount of planning and organisation. They are not like ordinary law and order crimes. If, however, in any given case a single act is found to be not sufficient to sustain the order of detention that may well be quashed but it cannot be stated as a principle that one single act cannot constitute the basis for detention. On the contrary, it does. In other words, i .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

what is new what is new
  ↓     bird's eye view     ↓  


|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version