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2015 (5) TMI 1041 - KERALA HIGH COURT

2015 (5) TMI 1041 - KERALA HIGH COURT - TMI - Order of detention at the pre-execution stage - Petitioner deliberately evaded arrest and absconded after getting summons issued by the Superintendent - Whether the petitioner was available in India - Petitioner submitted that even if the he arrived at Calcutta or Srinagar or any other place in India, it should be taken that he was available in India. Also the freedom of the citizen is paramount and his freedom cannot be denied on the mere fact that .....

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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 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 shal .....

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oner - 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 dated 30.6.2005, of the Government of Kerala, Home (SSA) Department, issued under S. 3(1)(i) and 3(1)(ii) of the Conservation of Foreign Exchange and Pr .....

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ion was issued. The question of maintainability of the Writ Petition filed by Mohamed Iqbal, the father -in -law of Nazarudeen, was argued in detail. Before the arguments concluded, W.P.(C) No. 2161 of 2015 was filed by Nazarudeen himself. Therefore, W.P.(C) No. 19740 of 2014 has become infructuous. Hereinafter H. Nazarudeen is referred to as the petitioner. 2. The petitioner has produced the order of detention as Ext. P4. According to him, he obtained Ext. P4 order under the Right to Informatio .....

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to cases relating to preventive detention at the pre -execution stage. The Supreme Court held that S. 3 of the Right to Information Act has to give way to the provisions of clause (5) of Article 22 of the Constitution. Even the provisions relating to production of an arrested or detained person, contained in clauses (1) and (2) of Article 22 of the Constitution, have in their application been excluded in respect of a person detained under any preventive detention law. In Mariamma Antony v. State .....

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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 e .....

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rson against whom an order of detention is issued under S. 3 of COFEPOSA Act is not entitled to get a copy of the order of detention, grounds of detention or any document relied upon by the detaining authority, before the order of detention is executed. It is true that in Additional Secretary to the Government of India v. Alka Subhash Gadia ( : 1992 Supp. (1) SCC 496) and in Subhash Popatlal Dave v. Union of India & Anr. ( : (2012) 7 SCC 533) the Supreme Court held that an order of detention .....

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wise. 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 .....

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r the 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 arr .....

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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 foll .....

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nquiry revealed that one Shamnad was involved in the incident. In the statement given by Shamnad, he stated that copy of the passport of Jose Antony was handed over to one Nazar of Beemappally for the purpose of importing goods from abroad using the copy of the said passport. Shamnad also stated that on an earlier occasion also, goods were smuggled in the unaccompanied passenger baggage of one Sukumaran Rajeev. He stated that Nazar is involved in the business of importing goods from abroad using .....

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ner sent a letter to the Superintendent CP & IU, Thiruvananthapuram, in which he stated that he had no connection with the goods seized by Customs. Another summons dated 25.2.2005 was issued to the petitioner by registered post. But the said summons was returned by the postal authorities with an endorsement "addressee had left India". Frequent enquiries made in the locality and the residence of the petitioner revealed that he left India for abroad. It is alleged in Ext. P1 that the .....

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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 Dist .....

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d. 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 back, the petitioner does not have a copy of the objection submitted by him. An abstract of the objection is produced as Ext. P2. The petitioner was called for a hearing before the second respondent. During the hearing, the petitioner was informed that the proceedings were dropp .....

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P3. Only when the police came to his house recently, he came to know about the proceedings and the issuance of Ext. P4 order. The passport of the petitioner was renewed on 12.8.2002 and 14.3.2007 by the Passport Officer, Thiruvananthapuram. On 16.4.2014, the passport of the petitioner was renewed from the Consulate General of India, Dubai. He came to India on several occasions as revealed from Ext. P3. The marriage of the petitioner was solemnized on 7.9.2006 at an auditorium at Beemappally, si .....

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s relevant to submit that before the issuance of the Show Cause notice enough opportunity was given to him to present his case before the investigating officers but he chose to stay away from the reach of law. Then, a summons was issued to him requiring his appearance before the Superintendent Customs Preventive & Intelligence Unit, Trivandrum on 10.01.2005. The petitioner responded through a telegram stating that he could not make himself available on that day and asked for an extension by .....

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cate 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 Sr .....

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n (1) of S. 7 of the COFEPOSA Act, Government have notified an order dated 04.10.2005 in the official gazette directing the said person to appear before the District Police Chief, Thiruvananthapuram at his office within 30 days from the date of publication of the order. However, the warrantee had not surrendered/appeared before the authority as stipulated in the order. Therefore Government have initiated action under S. 7(1)(a) of the Act and a report in writing was made on 29.11.2005 to the Chi .....

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een pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre -execution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose, (iv) that it is passed on vague, extraneou .....

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3) (Subhash Popatlal Dave's case I, for convenience), a three Judges Bench of the Supreme Court held: "48. In such circumstances, while rejecting Mr. Rohatgi's contention regarding the right of a detenu to be provided with 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), re .....

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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 Petitions are liable to be dismissed. The main question considered by .....

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se of time specially when the detenu is allowed to challenge the order of detention even before the order of detention is served on him, he would clearly be offered with a double -edged weapon to use to his advantage circumventing the order of detention. On the one hand, he can challenge the order of detention at the pre -execution stage on any ground, evade the detention in the process and subsequently would be allowed to raise the plea of long pendency of the detention order which could not be .....

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d for a long period without examining the reasons for such non -execution, I am afraid that the legislative intention contained in the provisions such as S. 7(1)(b) of the COFEPOSA Act would be rendered wholly nugatory. Parliament declared by such provision that an (recalcitrant) 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. We ha .....

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punity 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 .....

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and the circumstances in which he was ordered to be detained would not be snapped and if the delay was found to be the result of the recalcitrant or refractory conduct of the person concerned in evading arrest, mere is warrant to consider the link "not snapped but strengthened". The learned counsel for the petitioner relied on the decisions of the Supreme Court in Sunil Fulchand Shah v. Union of India & Ors. ( : (2000) 3 SCC 409); Naresh Kumar Goyal v. Union of India & Ors. ( : .....

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LT SN 5 (C. No. 3) : 2012 (2) KLJ 441). In most of these cases, the Writ Petitions were filed after the execution of the order of detention. We are also of the view that the facts and circumstances in the present case are different from the facts of the case involved in the other cases cited by the learned counsel for the petitioner. 11. In the present case, it is clear that the petitioner deliberately evaded arrest and absconded after getting summons issued by the Superintendent, C.P. & I.U .....

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r Srinagar or any other place in India, it should be taken that the petitioner was available in India and, therefore, non -execution of the order of detention on those occasions would be a ground for challenging the order of detention at its pre -execution stage. The learned counsel also submitted that the freedom of the citizen is paramount and his freedom cannot be denied on the mere fact that he had gone abroad. We are not inclined to accept the submission made by the learned counsel for the .....

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