TMI Blog2016 (4) TMI 1247X X X X Extracts X X X X X X X X Extracts X X X X ..... traction. The detention order is being passed as if the detenu I Om Prakash attempted to bring 23 kilograms of gold without proper declaration and it is also mentioned in the grounds of detention, however the declaration card was neither placed before the detaining authority nor supplied to the detenu despite asked for in the representation dated 29.09.2015. In the counter affidavit, it is stated that the documents relied upon were supplied to the detenu. However, in the rejection order dated 28.10.2015, nothing is mentioned about supply of declaration card - It is settled law that the detaining authority should furnish all relevant and relied upon documents to the detenu to enable him to make effective representation. Further all documents which are relevant which would have bearing on the issue, which are likely to affect the mind of the detaining authority should be placed before it. In this case, the detention order would disclose that the detaining authority relies on the declaration card. However, it was neither placed before the detaining authority nor supplied to the detenu to make further representation to the advisory board. Impoundment of passport of detenues - the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents of detenus dated 23.06.2014, they were taken into custody and they were produced before the learned Judicial Magistrate, Alandur for remand. While in remand, the detenus filed application seeking bail on 24.06.2014. That was dismissed on 07.07.2014. Two separate bail applications were filed by the detenus on 11.07.2014, which came to be dismissed on 22.07.2014. Third such applications were filed before the learned Judicial Magistrate, Alandur on 24.07.2014, in which bail was granted on 04.08.2014. Finally, a show cause notice was issued to the detenus as to why the foreign currencies and gold bars/ornaments should not be confiscated. Even before a reply could be given to the said show cause notice, the impugned order of detention came to be passed on 22.07.2015. In pursuance of the said detention order, the detenus have been in the Central Prison, Puzhal, Chennai. [e] In this regard, on 29.06.2015, the detenus made a representations to the State, Central detaining authority by Regd. Post and contending that the detention order is arbitrary and the same should be withdrawn. The State Government, however, rejected the representation on 03.09.2015, thereby declining to withd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the detaining authority and after considering the same, the detention order was passed; that the detention order is not passed solely based on the inculpatory statements of the detenus, but also based on recovery of contrabands from the detenus; that the detaining authority has supplied all the documents relied upon by him, so the contention that the documents were not supplied cannot be countenanced and that the detenus, by giving false and misleading statements have diverted the attention of the investigating officer. As the sponsoring authority could be able to complete the investigation only in the month of April 2015, he immediately sent proposals in the month of May 2015 and the detention order came to be passed by the authority in July 2015 and the delay is explained in the counter. 6. The learned Additional Public Prosecutor while adopting the arguments advanced by the learned Additional Solicitor General of India would further submit that the delay is explained in the counter and even assuming that there was a delay, the mere delay in passing the detention order itself would not vitiate the detention order. It is further urged that despite impounding of the passp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days, from the date of detention. 9. Article 22 of the Constitution contains substantive limitations and procedural safeguards. The COFEPOSA Act does not lay down any parameters for arriving at the subjective satisfaction by the detaining authority. The parliament, in its wisdom has not laid down any set of standards for detaining authority to decide whether an order of detention should be passed against a person. However, unbridled power shall not be exercised arbitrarily and while arriving at subjective satisfaction, the detaining authority have to take into consideration all relevant facts, which shall reflect in the detention order. Further, the detenu should be afforded the earliest opportunity to make a representation against the order and to satisfy the mandatory requirement, the detaining authority ought to supply not only the detention order, but also the documents relied upon to arrive subjective satisfaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Tamil Nadu], this Court has held as follows - 4. It is not in dispute that at the time of arrest the detenu made a confession statement accepting the guilt, however, he retracted the same and sent a letter to the sponsoring authority highlighting the circumstances under which he was forced to make such confession statement. A perusal of the grounds of detention clearly shows that the detaining authority failed to record his opinion on the inculpatory statement and the rejection of retraction letter. In similar circumstances, the Courts have repeatedly held the detention order is vitiated. 13. The Hon'ble Supreme Court in 2006 (4) SCC 792 [K.S.Nagamuthu v. State of Tamil Nadu and others] quashed the order of detention holding that the letter of retraction has not been considered by the detaining authority before passing the order of detention. 14. In the case on hand, it is not in dispute that the detenus, in their bail applications have retracted the inculpatory statements given to the authorities. But, in paras 11 12 of the counter affidavit filed by the first respondent, it is stated that the detenus have given voluntary statements and no retractions of stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of detention has been issued after such a long time. The said question has also not been examined by the Authorities before issuing the order of detention. 21. The question as regards delay in issuing the order of detention has been held to be a valid ground for quashing an order of detention by this Court in T.A. Abdul Rahman v. State of Kerala stating: (SCC pp. 748-49, paras 10-11) 10. The conspectus of the above decisions can be summarised thus: The question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard-and-fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of detention o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h attempted to bring 23 kilograms of gold without proper declaration and it is also mentioned in the grounds of detention, however the declaration card was neither placed before the detaining authority nor supplied to the detenu despite asked for in the representation dated 29.09.2015. In the counter affidavit, it is stated that the documents relied upon were supplied to the detenu. However, in the rejection order dated 28.10.2015, nothing is mentioned about supply of declaration card. 22. It is settled law that the detaining authority should furnish all relevant and relied upon documents to the detenu to enable him to make effective representation. Further all documents which are relevant which would have bearing on the issue, which are likely to affect the mind of the detaining authority should be placed before it. In this case, the detention order would disclose that the detaining authority relies on the declaration card. However, it was neither placed before the detaining authority nor supplied to the detenu to make further representation to the advisory board. 23. In similar facts, in 2008 (2) MLJ Crl.379 [Remya anr. v. State of T.N. And anr.], this Court, relying upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... activities by staying in the country. There is higher standard of proof required in these circumstances involving the life and liberty of a person. The material provided by the respondents is not enough to justify the curtailment of the liberty of the appellant under an order of preventive detention in the fact and circumstances of the case. 26. In 2012 (2) MLJ (Crl.) 721 [Shaik Rahamathullah v. Secretary to Government of T.N. Ors.] this Court, following the decisions in AIR 2010 SC 924, cited supra, quashed the detention order. 21. Therefore, we are of the considered view that there is no material placed before the detaining authority to show that even though the passport had been impounded there is likelihood of the detenu indulging in smuggling activities in future. In the absence of such acceptable materials to come to the subjective satisfaction the order of detention is vitiated and liable to be set aside. 27. The learned Additional Public Prosecutor urged that the Hon'ble Supreme Court in 2002 (10) SCC 448 [Sitthi Zuraina Begum v. Union of India Ors.] rejected the contention that the factum of seizure of passport would be a handicap for the detenu for hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a casual and mechanical manner. Overemphasis cannot be placed on real and proper consideration . What has to be seen by the competent authority is that the materials are placed before him and such materials come within the purview of the statute and it must show that there has been subjective satisfaction. The word satisfaction need not be used while rejecting the representation. To elaborate, the consideration by the competent authority the government is to ascertain essentially whether the order is in consonance with the power conferred under the law and the allegations made against the detenu come within the purview of the said law. The real and proper consideration by the appropriate government means the order of rejection should indicate that there has been subjective satisfaction by the competent authority to reject the representation. As has been held in John Martin (supra), there cannot be zealous scrutiny of the representation for the purpose of deciding whether the detention of the petitioner is justified. In the said case, analyzing the principle stated in Haradhan Saha (supra), it has been reiterated that the order need not be a speaking order and non-speaking order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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