TMI Blog2013 (11) TMI 1738X X X X Extracts X X X X X X X X Extracts X X X X ..... g in the recovery of a huge quantity of Red sanders. Statements of several persons were recorded by the DRI and from these statements, details of the active role played by the detenu in the smuggling of Red sanders through Cochin Port were disclosed. Accordingly, the detenu was summoned and his statement under Section 108 of the Customs Act was recorded. It is stated that in his statement, the detenu is alleged to have admitted his involvement in the smuggling of red sanders. Thereafter, proceedings under the COFEPOSA Act were initiated for the detention of three persons including the detenu and finally, by Ext. P1 order dated 6.5.2013, the detenu was ordered to be detained under Section 3(1)(ii) and 3(1)(iii) of the COFEPOSA Act. Pursuant to Ext. P1 order, he was detained on 11.6.2013 and he is undergoing detention. It is in this background, the detenu's wife has filed this writ petition seeking to set aside Ext. P1 order of detention and to set the detenu at liberty by the issuance of a writ of habeas corpus. 2. We heard the learned counsel for the petitioner and the learned Government Pleader appearing for the respondents. The first contention raised by learned counsel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention, counsel placed reliance on the judgment of this court in K.V. Ashraf V. State of Kerala (2001 (2) KLT SN 47). In this case, this Court dealt with the obligation of the detaining authority to consider a bail order passed in favour of the detenu. 7. In this context, there are numerous precedents both of the Apex Court and of various High Courts including this Court, which consistently lay down the principle that while passing an order of preventive detention, which deprives a citizen of his precious fundamental right of liberty, the detaining authority has the duty to consider with due application of mind each of the relevant facts and documents. If it is shown that there was failure on the part of the detaining authority, a constitutional court is duty bound to interfere with the order of detention and uphold the fundamental rights of the detenu. Therefore, the essential question which calls for consideration is whether there has been any failure on the part of the detaining authority in adverting to any relevant factual details or vital documents. 8. In so far as this case is concerned, the contention of the learned counsel for the petitioner is regarding the non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond part of his contention was that the show cause notice issued on 2.5.2013 was neither placed before the detaining authority nor considered by him. In support of this contention, learned counsel placed considerable reliance on the Apex Court judgment in M. Ahamed Kutty V. Union of India (1990 (47) ELT 188), Madras High Court judgment in Rehamath Nisha V. State of Tamil Nadu (CDJ 2012 MHC 106 (Madura Bench) and the judgment of Delhi High Court in Sunny Kannodia V. Uol (WP (Crl.) No. 1854 of 2010). In the context of this contention also, we re-iterate that if we are satisfied that the show cause notice dated 2.5.2013 was a vital or relevant document, the omission of the sponsoring authority to make available that document to the detaining authority and the failure of the detaining authority in adverting to the same, would render the order of detention unconstitutional. Before dealing with that issue, we shall examine whether the judgments relied on by the learned counsel for the petitioner are of any assistance to him. 12. In so far as the judgment in the case of M. Ahamed Kutty (supra) is concerned, what is relied on is paragraph 18 of the judgment. The relevant portion of para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such a document before the Advisory Board, the court found that it invalidated the detention order. Therefore, what is to be seen is whether the show cause notice in this case was a relevant document. 16. The third judgment relied on by learned counsel for the petitioner is that of Delhi High Court in WP (Crl.) No. 1854 of 2010. This again is a case where the detention order was challenged on the basis that the sponsoring authority had failed to place on record, vital information/document for the consideration of the detaining authority, which reflected non application of mind by the detaining authority. It was also held that non-supply of such documents to the detenu would infringe his rights guaranteed under Article 22(5) of the Constitution to make an effective representation against the detention order. Here again, the question which arises to be considered is the relevancy of the documents in question. 17. In the light of the settled legal principles, it can be concluded that the tenability of the contention raised by the learned counsel for the petitioner would depend upon the question whether the show cause notice dated 2.5.2013, which was not produced or considered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtract paragraphs 7 and 8 of the judgment, which read thus:- 7. The Court has a duty to see whether the non supply of any document is in any way prejudicial to the case of the detenu. The High Court has not examined as to how the non supply of the documents called for had any effect on the detenu and/or whether non supply was prejudicial to the detenu. Merely because copies of some documents have been supplied they cannot by any stretch of imagination be called as relied upon documents. 8. While examining whether non supply of a document would prejudice a detenu the Court has to examine whether the detenu would be deprived of making an effective representation in the absence of a document. Primarily, the copies which form the ground for detention are to be supplied and non supply thereof would prejudice to the detenu. But documents which are merely referred to for the purpose of narration of facts in that sense cannot be termed to be documents without the supply of which the detenu is prejudiced. 20. For the aforesaid reasons, we are not impressed by the argument of the learned counsel for the petitioner that the non consideration of the bail order or the show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformation, either from the appropriate Government or from any person concerned with the proceedings before it. If that be so, it was well within the powers of the Advisory Board to receive any documents in addition to those forwarded by the Government under Section 8(b) of the Act. 24. In so far as this case is concerned, the pleadings contained in paragraph 18 of the writ petition itself show that while submitting the show cause notice to the Advisory Board, copy was served and acknowledgment was obtained both from the detenu and his Advocate. Therefore, not only that the Advisory Board was statutorily empowered to receive additional documents, but also such reception of additional material was fully in compliance with the principles of natural justice. Further, there is no case for the petitioner that once the show cause notice was produced before the Board, any request was made either by the detenu or his counsel for time to make submissions based on the notice. In such a situation, it is too late in the day for the petitioner to now contend that the detenu was prejudiced by the production of show cause notice before the Advisory Board. We therefore have no hesitation to rej ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Section 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. 99. Even in those cases where action such as the one contemplated under Section 7 of the COFEPOSA Act is not initiated, the same may not be the only consideration for holding the order of preventive detention illegal. This Court in Shafiq Ahmad v. District Magistrate, Meerut (1989) 4 SCC 556 : (AIR 1990 SC 220) held so and the principle was followed subsequently in M. Ahamed kutty v. Union of India Anr. (1990) 2 SCC 1, wherein this Court opined that in such cases, the surrounding circumstances must be examined. 100. In both Shafiq Ahmad and Ahamedkutty's cases, these questions were examined after the execution of the detention order. Permitting an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 3(1)(ii) and 3(1)(iii) of COFEPOSA Act 1974 the detaining authority issued detention order against Shri. Antony Morris vide order No. 7017/SSA4/2013/Home dated 6.5.2013. Therefore the detention order passed by the Detaining Authority is a valid one and in order. All constitutional safeguards and statutory procedures with regard to preventive detention have been scrupulously complied with in the case of the detenu. It is very pertinent to note that since it is a matter affecting the personal liberty of an individual either the Screening Committee or the detaining authority cannot show any sort of haste in passing order of detention. Any unnecessary haste in passing an order of detention will result deprivation of personal liberty of an individual guaranteed by the constitution. Hence there was no delay in passing the order of detention as alleged by the petitioner. 20. It is further submitted that the detenu was totally emboldened in fleeing from justice as there was no condition for granting bail. Ever since his release on bail and anticipation of order of detention he has been concealing himself from arrest. There was no delay in execution of detention order. The de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the voluminous records that were placed before the different authorities who have considered the matter prior to the issuance of Ext. P1. Considering the different processes that it has undergone, we are satisfied that the delay, if any, in passing Ext. P1 order stands explained. 30. In so far as the delay in execution of the order is concerned, explanation thereof is contained in para 20 extracted above. Reading of the above paragraph would show that it was only on account of the fact that the detenu had concealed himself from arrest that the respondents had to take several steps thereafter to secure his arrest. As indicted by the Apex court in its judgment in Subhash Popatlal Dave's case (supra), this Court cannot permit those who have evaded the process of law to say that the fundamental rights are in jeopardy on account of the delay, which they themselves have caused. Therefore, we are not prepared to accept the case now canvassed by the learned counsel for the petitioner that Ext. P1 order is vitiated on the ground of delay. It was then contended by the learned counsel for the petitioner that the Advisory Board did not review the allegations against him by permitting t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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