TMI Blog2015 (5) TMI 1041X X X X Extracts X X X X X X X X Extracts X X X X ..... e -execution stage. That is a matter to be considered after the order of detention is executed and the facts are analysed and considered on the basis of the documentary and other material evidence. The individual liberty of a citizen when pitted against the economic security of the country, we have no doubt that the latter shall prevail. The challenge to the order of detention at its pre -execution stage can be entertained only in exceptional circumstances and for cogent reasons and not on the grounds which probably the detenu may be able to sustain while considering the challenge to the order of detention after its execution. Therefore, the petitioner has not made out any exceptional reason to justify the challenge against Ext. P4 order of detention at its pre -execution stage. - Decided against the petitioner - W.P.(C) No. 2161 of 2015 - - - Dated:- 25-5-2015 - K.T.SANKARAN,BABU MATHEW P.JOSEPH JJ. For the Parties : Bechu Kurian Thomas,Enoch David Simon Joel,T.Asaf Ali,Thomas Mathew Nellimoottil JUDGEMENT K.T. Sankaran, J. 1. H . Nazarudeen, the petitioner in W.P.(C) No. 2161 of 2015, challenges Ext. P4 order of detention, No. 27936/SSA1/2005/Home ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (Prevention) Act, 2007 (hereinafter referred to as KAAPA ), 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. The Division Bench held thus: Sub -section (1) of S. 7 of the KAAPA is clear and explicit that the officer arresting a person in pursuance of a detention order shall read out the detention order to the person concerned and shall give him a copy of such order. Nowhere in the Act any provision is made to furnish a copy of the order of detention, the grounds of detention or the supporting documents to the person against whom the order of detention has been made, at any point of time before execution of the order of detention. The sponsoring authority or the detaining authority is not bound to disclose to the person concerned any information in respect of the detention order, at any time before his arrest. No duty is cast on either the sponsoring authority or the detaining authority to furnish copy of any document to the person against whom an order of detention has been made, otherwise than as provided in the KAAPA and under Article 22(5) of the Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at a person against whom an order of detention is passed is entitled to get a copy of the order of detention before he is arrested. The Right to Information Act does not enable the person concerned to get copy of the order of detention at its pre -execution stage. 4. When an order of detention is challenged at its pre -execution stage, the Court can consider that challenge and, for that purpose, can direct production of a copy of the order of detention by the respondent concerned. That is for the purpose of satisfying whether the challenge against the order of detention at the pre -execution stage can be entertained. A party 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. In Ext. P1 show cause notice dated 13.6.2005 issued to the petitioner under S. 124 of the Customs Act, the following facts are stated: On getting information that certain baggages ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that Ext. P4 order has become invalid and is rendered otiose by lapse of time and that the purpose of Ext. P4 order has also been lost by lapse of time . The petitioner himself states in ground (E) of the Writ Petition thus: The situation would have been different had petitioner been an absconder who was evading the execution of the warrant. In the Writ Petition, the petitioner contends, inter alia, as follows: The petitioner hails from Thiruvananthapuram District. He is presently employed in Dubai and he is residing along with his wife and daughter aged six years. In the year 2004, the petitioner was implicated in two cases of smuggling as O.S. No. 34 of 2004 and O.S. No. 746 of 2004 by the Customs Authorities. Though the cases were falsely levelled against the petitioner, he was advised to pay the penalty. The petitioner was served with Ext. P1 show cause notice dated 13.6.2005. The show cause notice was issued only based on the statement of Shamnad. There was nothing to connect the petitioner with the alleged seizure of goods. The petitioner filed an objection to Ext. P1 show cause notice denying the allegations. Since the objection was submitted almost ten years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andrum that he had no connection to the smuggling of electronic balances through the baggage of Sukumaran Rajeev. Then, another summons was issued to him on 25.2.2005 by registered post which came back with the endorsement 'addressee left India'. In the counter affidavit filed by the second respondent, it is also stated that several attempts were made to locate the petitioner and to get a statement from him under S. 108 of the Customs Act. But all those attempts failed. To the show cause notice, the petitioner did not offer any reply. The averments that the petitioner appeared for a personal hearing and he was informed that the proceedings were dropped etc. are false. The summons issued to the petitioner on two occasions were returned stating that he was out of India. It is also stated thus: ... This Department was not at all aware of the Sri. Nazarudeen's visits to India, if at all it happened. If he had been frequently visiting India, then he must have been making his residence at some place other than his actual home.... 7. In the counter affidavit dated 19.1.2015 filed on behalf of respondents 1 and 2, it is stated thus: 12. The order of detent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the grounds of detention prior to his arrest, we are of the view that the right of a detenu to challenge his detention at the pre -execution stage on grounds other than those set out in para 30 of the judgment in Alka Subhash Gadia case (1992 Supp (1) SCC 496), requires further examination. There are various pronouncements of the law by this Court, wherein detention orders have been struck down, even without the apprehension of the detenu, on the ground of absence of any live link between the incident for which the detenu was being sought to be detained and the detention order and also on grounds of staleness. These are issues which were not before the Hon'ble Judges deciding Alka Subhash Gadia case ( : 1992 Supp (1) SCC 496). 9. Accordingly , the Special Leave Petition and the Writ Petitions were listed for final hearing before the Supreme Court. After final hearing, the Supreme Court disposed of the Special Leave Petitions and the Writ Petitions as per the judgment dated 16.7.2013, reported in ( : (2014) 1 SCC 280) (Subhash Popatlal Dave's case II, for convenience). In the majority judgment, the Supreme Court held that the Writ Petitions and the Special Leave Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the order, vis -vis the date on which the order is passed) would not only exonerate the person from the preventive detention order but also result in granting impunity to such person from the subsequent offence committed by him under the provisions such as S. 7(1)(b) of the COFEPOSA Act. 46. Therefore, I am of the opinion that those who have evaded the process of law shall not be heard by this Court to say that their fundamental rights are in jeopardy. At least, in all those cases, where proceedings such as the one contemplated under S. 7 of the COFEPOSA Act were initiated consequent upon absconding of the proposed detenu, the challenge to the detention orders on the live nexus 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. 10. The Supreme Court relied on the decisions in Bhawarlal Ganeshmalji v. State of Tamil Nadu ( : (1979) 1 SCC 465) and Union of India v. Arvind Shergill ( : (2000) 7 SCC 601), where it was held that by passage of time alone the nexus between the object for which the person concerned is sought to be detained and the circumstances in which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the learned counsel for the petitioner in the facts and circumstances of the case. As held by the Supreme Court in ( : (2014) 1 SCC 280) (Subhash Popatlal Dave's case II), an individual against whom an order of preventive detention is issued is under legal obligation to appear before the notified authority once a notification contemplated under S. 7(1)(b) of the COFEPOSA Act is issued. Failure to appear without reasonable excuse would be an offence which would render the defaulter liable for punishment of imprisonment. A citizen who has evaded the process of law shall not be heard to say that his fundamental rights are in jeopardy. The law -breaker is not entitled to take advantage of his own contumacious conduct and claim protection of the freedom. The submission made by the learned counsel for the petitioner that even if the person concerned arrives at any part of India, it should be taken that he was available at the place, cannot be taken as a ground for challenging the order of detention at its pre -execution stage. That is a matter to be considered after the order of detention is executed and the facts are analysed and considered on the basis of the documentary and o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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