TMI Blog2020 (12) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... e detention order did not break at that stage as he never deterred from indulging in the said activities even after passing of the said detention order and in being full knowledge of the same. Hence, the live link remains always active and the respondents have been able to satisfactorily explain that there was no inordinate delay in passing of the detention order which might have resulted in snapping the link between the illegal and detrimental activities of the detenue and the detention order. The next ground agitated on behalf of the petitioner is that there is variance in the subjective satisfaction of the Detaining Authority - HELD THAT:- As per the respondents, there is no variance so as to confuse the detenue. All the grounds which lead to issuance of impugned detention order have been specifically laid down in the grounds of detention served upon the petitioner - In view of this and the details given in the grounds of detention, there cannot be any confusion in the mind of the petitioner/detenue, which might have deprived him of his legal right to submit his detailed representation. The next ground raised on behalf of the petitioner/detenue is that vital documents w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Court on the basis of the bond executed by him before the Jail Superintendent at Vishakhapatnam. It is reiterated that the detenue has not surrendered before a Court in Delhi, where he was declared as a proclaimed offender and he failed to appear despite his undertaking, so these judgments are of no help to his cause. One last ground taken is that due to the pandemic and deteriorating medical condition of the detenue, he being a senior citizen and patient of diabetes and hypertension, he may be ordered to be released by this Court. In this regard, it is to be noted that although, the petitioner had made a representation before the High-Power Committee appointed by the High Court of Delhi for his release and has taken other steps before the Authorities, but it was not found to be a fit case for his interim release. Similar is our considered view. This Court arrives at a considered conclusion that the preventive detention order passed by the Joint Secretary, COFEPOSA under Section 3 (1) of COFEPOSA does not suffer from any illegality and is not liable to be quashed - Petition dismissed. - W.P.(CRL.) 780/2020& CM APPL. 5786/2020, 6704/2020 & 7107/2020 - - - Dated:- 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority and the order was passed at the instance of the Sponsoring Authority (DRI). (viii) Request of the petitioner for supply of documents made through representation dated 20th February, 2020 was rejected in mechanical manner on 6th March, 2020. (ix) The prayer of the petitioner for his temporary release under Section 12 of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (hereinafter referred to as COFEPOSA Act ) in view of the pandemic was also rejected on extraneous grounds. 2. The brief history as mentioned in the writ petition is that the petitioner was arrested by DRI, Kolkata on 23rd July, 2015 in respect to certain enquiries under the Customs Act, 1962 and he was bailed out on 5 th August, 2015.The petitioner was again arrested by DRI officers from Delhi Zone on 9thAugust, 2015 for certain investigations. The petitioner approached this Court by filing Writ Petition (Criminal) No.1898/2015 and as directed, he applied for bail before the learned CMM, New Delhi and he was granted bail on 23rd September, 2015 by that court. The petitioner came to know that a proposal dated 6th October, 2015 was sponsored by DRI officials for his dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d application was returned with objections vide order dated 20th September, 2019. On 23rd September, 2019, the application pending before learned CMM, Patiala House Courts, New Delhi under Section 70(2) Cr.P.C. was dismissed. On 30th September, 2019, an application was moved before learned CMM, Patiala House Courts, New Delhi by DRI for issuance of production warrants and directions to Jail Superintendent, Vishakhapatnam to produce the petitioner and accordingly the production warrant was issued on 1st October, 2019 for 23rd October, 2019. Since, the petitioner was not produced by the Jail Superintendent, Vishakhapatnam before the learned CMM, Patiala House Courts, New Delhi, hence a fresh production warrant was issued, directing his production on 26th November, 2019. In the meantime, on 11th November, 2019, the petitioner was admitted to default bail in terms of Section 167(2) of Cr.P.C. by the Court of Additional Metropolitan Sessions Judge, Vishakhapatnam, as no charge sheet was filed against him within a period of 60 days. The petitioner further states that although he was informed by the jail authorities that there was some production warrant against him but since there was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interrogation by Enforcement Directorate (ED) and as the detention order was executed, he also placed additional grounds to challenge the detention order. The said petition was disposed of on 24th February, 2020 to enable the petitioner to file a fresh petition and accordingly the petitioner filed a fresh petition bearing Writ Petition (Criminal) No.88/2020 before the Hon ble Supreme Court on which notice was issued on 6th March, 2020, returnable after 2 weeks. On 12th March, 2020, the petitioner received a communication from Deputy Secretary, Government of India, informing him that his representation for supply of relied upon documents/material dated 20th February, 2020 was rejected. 7. As per petitioner, his wife also made a representation dated 29th March, 2020 to the High-Powered Committee of this Court praying for release of the petitioner on account of outbreak of COVID-19, but no response was received. Even request of under Section 12 of COFEPOSA Act made by wife of the petitioner for his temporary release on account of outbreak of COVID-19 was made to the relevant authority but without any positive outcome. The writ petition pending before the Hon ble Supreme Court was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icial custody on 10th August, 2015 by learned CMM, Patiala House Courts, New Delhi. He was released on bail on 23rd September, 2015 on the conditions that he shall not leave the country without the permission of the Court; he shall not induce/threaten the witness or tamper with the evidence; he shall join the investigation as and when required and he shall surrender his passport. 10. It has been further mentioned in the counter affidavit that on the basis of the investigation and evidence on record, a proposal dated 6th October, 2015 for preventive detention of the detenue under COFEPOSA Act, 1974 was forwarded by DRI to CEIB, Ministry of Finance. The Central Screening Committee, after receiving further inputs on the proposal, passed the detention order dated 30th December, 2015 under Section 3(1) of the COFEPOSA Act, 1974 against the detenue and the said order was forwarded to Executing Authority, i.e., Commissioner of Police, Delhi Police and it is evident that there is no delay between the prejudicial activity and passing of the detention order. Thereafter, the petitioner absconded for approximately 4 years and the impugned detention order was finally executed on 4th February ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ressed to the officer in charge of Vishakhapatnam, Central Jail. The said order was delivered to the concerned Jailer at Vishakhapatnam on 3rd October, 2019. On 23rd October, 2019, the Delhi Police officials appeared before the Court of learned CMM, Patiala House Courts, New Delhi to execute the detention order but neither the detenue was produced nor any report was submitted by Vishakhapatnam Jail Authorities. Another production warrant was issued on 24th October, 2019 by learned CMM, Patiala House Courts, New Delhi directing the Jailer to produce the detenue on 26th November, 2019 and the said production warrant was duly served upon the Jailer, Central Jail, Vishakhapatnam. In both these production warrants, the Jail Superintendent, Vishakhapatnam was directed to produce the detenue before learned CMM, Patiala House Courts, New Delhi butneither the detenue was produced, nor any report was filed by Vishakhapatnam Central Jail Authorities. Moreover, the Jail Authorities did not inform the Court Authorities at Vishakhapatnam and Patiala House Courts before releasing Shri B.K. Goyal. 12. On 27th November, 2019, learned CMM at Patiala House Courts, New Delhi observed that a reply w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riginal detention order along with instructions to the Executing Authority under intimation to DRI. 14. It is further submitted by respondents that the impugned detention order was passed by Detaining Authority on the basis of facts, evidence and materials available after arriving at subjective satisfaction regarding propensity and potentiality of the petitioner to engage further in prejudicial activities and his previous involvement only shows the antecedent of the detenue. The statement made by respondent No.3 regarding no coercive actions to be taken has no relevance to the independent proceedings vide order dated 30th December, 2015 for preventive detention being undertaken by the Ministry under COFEPOSA Act, 1974. Reference has been made to order dated 22nd August, 2016 in Writ Petition No. 548/2016 where it was noted that it was open to the respondents to take all measures as per law to execute the detention order under COFEPOSA Act. So, in view of the above, the statement dated 11th January, 2016 has no bearing on the impugned detention order. The Customs Act, 1962 is a special Act having provisions with regard to summons, search, seizure and arrest. Registration of FIR i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned CMM, Patiala House Courts, New Delhi on 23rd September, 2019 on the ground that he was already declared a PO and his mere arrest under provisions of IPC is no ground for recalling of proceedings under Section 7 of COFEPOSA Act. 16. As per respondents, in Writ Petition (Criminal) No.40/2019 filed before the Hon ble Supreme Court, it was suppressed that the detenue and his son were declared as proclaimed offenders by the Court of learned CMM, Patiala House Courts, New Delhi. An affidavit dated 31st January, 2019 was filed with Notarial Services Attorney in Thailand and as such the petitioner had defaulted the bail condition under which bail was granted to him on 23rd September, 2015 as he had neither informed the Court nor the Investigating Officer. In Writ Petition (Criminal) No.2554/2018, the Hon ble High Court vide order dated 22nd November, 2019 directed the Joint Secretary, Ministry of Finance to file a personal affidavit explaining the reason for not serving the detention order and an affidavit to this effect was taken on record on 16th December, 2019 and the said writ petition was dismissed as not pressed. The representation dated 1st April, 2020 was rejected on 8th Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d July, 2015 recorded by DRI, Kolkata, the petitioner had remained in jail for about 8-9 months under COFEPOSA proceedings in the year 2004-05. He was again booked under COFEPOSA in 2007 and remained in jail for about 5 months. Further he was booked under COFEPOSA in 2009 and remained in jail for 6-7 months. 18. It is stated by respondents that mere reference to previous detention orders could not vitiate a fresh detention order. The present detention order is based on the facts which came to thelight subsequently and it is not based on the earlier detention orders, although their reference was given. The order of detention and the grounds for detention have been issued strictly as prescribed under Section 3 of COFEPOSA Act by due application of mind based on the material facts available on records and after due consideration thereof, keeping in view the circumstances of the case, the nature of activities, the material collected, the propensity and potentiality of the petitioner to indulge in such activities and subjective satisfaction of the Detaining Authority is elaborated in the grounds of detention. The petitioner did not cooperate with DRI during investigation by evading a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Act, 1962 even before passing of the detention order. The conduct of DRI is deplorable and even this Court was not informed that the detention order was passed against the detenue. It is submitted that alleged past absconsionsof the detenue cannot obviate the respondents to justify the legality of the detention order when it was passed and the lapses in execution thereof. The petitioner has also pointed out towards present circumstances on account of COVID-19 pandemic and medical condition of the detenue. 20. In response thereto, permission was sought by the respondents and the same was granted to place on record a sur-rejoinder in which stand of the respondents has been reiterated. It has been pointed out that although production warrants were issued by learned CMM, Patiala House Courts, New Delhi, which were delivered to Superintendent/Jailer, Vishakhapatnam who failed to ensure the presence of the detenue before the Court at New Delhi. The statement dated 11th January, 2016 given by the counsel for DRI could not have been considered in respect of proceedings under the COFEPOSA Act as in the entire writ petition there was no reference of the COFEPOSA Act. In the order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ef Metropolitan Magistrate at Vishakhapatnam and the letters written by DRI to the Jail Superintendent, Vishakhapatnam have been also produced on record. 23. Lengthy arguments were addressed by both the sides and the written submissions were submitted. The learned senior counsel Mr. Vikram Chaudhary, appearing for the detenue has submitted that there had been a grave lapse in execution of the detention order from 11th September, 2019 till 11th November, 2019 and moreover, the original order of detention was not traceable as the same was lost since March, 2016. He submitted that petitioner had voluntarily surrendered before CMM, Vishakhapatnam on 9th September, 2019 and on 11th September, 2019, Detaining Authority was informed about his surrender at Vishakhapatnam with specific particulars. On 12th September, an application was moved before CMM for closure of proceedings under Section 7 of COFEPOSA Act. On service of the said application on DRI, it came in the notice of the Sponsoring Agency. On 12th September 2020 itself, the Detaining Authority had informed DRI to execute the detention order. On 18th September, 2019 information was sent to Commissioner of Police regarding surre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 11th November 2019 over phone and discussed the release of detenue. No officer of DA, DRI or Police was present to execute the detention order. However, detenue had executed a personal bond to appear before CMM, Patiala House Courts, New Delhi as and when required. The detenue took various legal steps to approach different Courts, however, on 4th February, 2020, scanned photocopy of the detention order was executed and detenue was sent to Tihar Jail. Mr. Vikram Chaudhary learned Senior Advocate has submitted that the Detaining Authority was aware that the petitioner had surrendered on 11th September, 2019 itself. However, after 8 days, a sham application was moved before the Court of CMM, Vishakhapatnam, which was an eyewash, but on that date no one was in possession of the original detention order. The application was returned on 20th September, 2019 itself, raising various objections but nothing was done to meet the objections of the CMM, Vishakhapatnam even after procurement of production warrants from New Delhi Court. After about 27 days from 11th September, 2019, DCP Rohini informed that detention order was not traceable and he requested for issuance of fresh detention order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Courts, New Delhi. Vide order dated 1st October, 2019, a production warrant against the detenue was issued for 23rd October, 2019, but he was not produced despite service of the production warrant on the Jailer of the Central Prison at Vishakhapatnam. Fresh production warrant was issued on 23rd October, 2019, which was delivered to Jailer, Central Prison, Vishakhapatnam on 2nd November, 2019. The date fixed for production of detenue was 26th November, 2019 but, in the meantime, the petitioner was released on default bail on 11th November, 2019. As per the respondents, it is the admitted position that the petitioner was not only aware of the production warrant for 26th November, 2019 but he had also executed a bond before Superintendent of Central Jail, Vishakhapatnam undertaking to produce himself before the learned CMM, Patiala House Courts, New Delhi on 26th November, 2019. But the petitioner failed to appear before the concerned Court on 26th November, 2019. The respondents had taken steps against the Jailer, Central Prison, Vishakhapatnam before the concerned Court. They have taken all possible steps in accordance with law without any delay and pursued the matter with utmost ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioner was aware about the steps being taken to issue the detention order even before the stage when the said order was issued. The submission of proposal dated 6th October, 2015 by DRI before the Detaining Authority was well within his knowledge and through his wife, he approached this Court by filing Writ Petition (Criminal) No.3106/2015 for quashing of the said proposal of detention. The said petition was disposed of as having been filed at pre-mature stage. Thereafter, again the petitioner had approached this Court for quashing of the detention order at pre-execution stage but he never took any steps to surrender before the respondents or the Court concerned in Delhi. It is pertinent to mention here that earlier the detenue was arrested by DRI, Kolkata on 23rd July, 2015 in a different case. He was granted bail on 5th August, 2015 and subsequently, he was arrested by respondent No. 3 on 9th August, 2015 and he was granted bail on 23rd September, 2015 on certain conditions, one of which was that he shall not leave the country. It has not been denied that the petitioner did not comply with the said condition and as a consequence thereto, he was declared a proclaimed offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duction warrants were promptly delivered to Jailer at Vishakhapatnam on 3rd October, 2019 but the detenue was not produced before the Court of learned CMM, Patiala House Courts, New Delhi on 23rd October, 2019 by the Superintendent of Central Jail, Vishakhapatnam. On the said date, the CMM, Patiala House Courts, New Delhi again issued fresh production warrants for producing the detenue on 26th November, 2019. The said production warrant was delivered to the Jail Superintendent, Central Prison, Vishakhapatnam on 2nd November, 2019. However, the petitioner was admitted to default bail on 11th November, 2019 as no charge sheet was filed against him at Vishakhapatnam within the prescribed 60 days period in terms of Section 167(2) Cr.P.C. The grudge of the petitioner is that no Officer of DRI or Delhi Police was present at the jail gate to serve him with the detention order. However, there is no explanation of the petitioner as to why he failed to appear before the Court of CMM, Patiala House Courts, New Delhi on 26th November, 2019 despite executing a personal bond giving undertaking to do so. Copy of the said personal bond was filed on record by respondents and the same has been repro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishakhapatnam failed to produce the petitioner before the Court of learned CMM, Patiala House Courts, New Delhi and accordingly another warrant of production was issued for 26th November, 2019. As mentioned earlier, the petitioner was released from jail on 11th November, 2019 and he failed to honor his undertaking to appear before the Court of learned CMM on 26th November, 2019. Hence, the blame lies at the door of the petitioner for causing all possible delay in execution of the detention order and this burden can not be shifted to the respondents. 30. In support of the main ground taken by learned senior Advocate appearing for the petitioner that there was an inordinate delay in execution of the detention order, he has relied upon the judgment of Hon ble Supreme Court, in the matter of Saeed Zakir Hussain Malik v. State of Maharashtra Ors. (2012) 8 SCC 233 wherein it was held that if there is unreasonable delay in execution of the detention order, the same vitiates the order of detention. The Detaining Authority must explain satisfactorily the inordinate delay in executing the detention order, otherwise, the subjective satisfaction gets vitiated. In Saud Nihal Siddiqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Here again, the Hon ble Supreme Court has held that the non-explanation of the delay throws considerable doubt on the genuineness of the subjective satisfaction of the Detaining Authority vitiating the validity of the order of detention but 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. However, when there is undue and long delay, the Court has to scrutinize whether the Detaining Authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation. In the present case, in our view, since the detenue himself had avoided the service of the detention order and he was not traceable during the relevant period, and after securing the bail from the Court of the learned CMM, Patiala House Courts, New Delhi and in violation of the conditions set therein, the detenue had left the country for considerable period and he continued to indulge in the unlawful activities resulting in registration of another case at Vishakhapatnam and the act of his surrendering before the Court at Vishakhapatnam instead of surrendering before the concerned Authorities or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. State 1960 SCC Online Raj. 240 in which it was held that where the seal of the Magistrate was absent on the warrant, the said warrant of arrest is illegal. This judgment is not applicable to the facts of the case. It is nowhere the case of the petitioner that the detention order was not bearing the requisite signature or seal of the Detaining Authority. Rather, the case of the petitioner is that the original detention order was lost and he could not have been served with a scanned photocopy of the detention order. As mentioned earlier, there are instances where either the Court files or certain order sheets of the Court might have got misplaced and under those circumstances, even the Court records are re-constructed on the basis of photocopies. Similarly, in the present case, when it was reported along with a missing report that the original detention order was not traceable, the Detaining Authority had issued a scanned photocopy of the said order to the Executing Agency which had executed the said detention order and it cannot be a case that once the original detention order is lost, the detenue cannot be detained. 33. Learned senior Advocate for the petitioner has furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose and the subjective satisfaction was arrived on the basis of irrelevant or extraneous facts in utter disregard to purpose and procedure of preventive detention law, under those circumstances, the Court has duty to enquire whether the decision of the Authority is based on the relevant material as laid down by the statute. Reliance has been also placed on the judgment in Kamla Kanyalal Khusalini v. State of Maharashtra(1981) 1 SCC 748 , wherein it was held that all the necessary safeguards laid down by the Constitution under Article 21 and Article 22(5) should be complied with fully and strictly and any departure from any of the safeguards would make order of detention as void. The procedure has to be just and reasonable and a real and meaningful opportunity has to be granted to the detenue to explain his case to the Detaining Authority in his representation. On the other hand, Learned counsel for the respondent has relied upon the judgment of the Hon ble Supreme Court in the matter of Radhakrishnan Prabhakaran v. State of Tamil Nadu (2000) 9 SCC 170 in support of his contention that it is not for the Court to substitute its satisfaction to that of the Detaining Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from October to March, 2015. Show-cause notice was issued to the detenue on 2nd April, 2015 and in response thereto, he had deposited certain amounts in June, 2015. The petitioner was arrested by the officials of DRI, Kolkata on 23rd July, 2015 from where he was bailed out on 5th August, 2015. He was again arrested on 9th August, 2015 by the officials of DRI, Delhi Zone and after collection of the entire material and after going through the statements and documents available with DRI, the proposal for his detention was forwarded by DRI on 6th October, 2016. The said proposal was considered by the Central Screening Committee on 27th October, 2015, which was again held on 5th November, 2015 and certain inputs were called for from DRI. The said inputs were supplied and accordingly impugned detention order dated 30th December, 2015 was passed. It is pertinent to mention here that the link between the illegal and detrimental activities of the detenue and the detention order did not break at that stage as he never deterred from indulging in the said activities even after passing of the said detention order and in being full knowledge of the same. Hence, the live link remains always activ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Detaining Authority. The documents on which reliance was placed were supplied to the detenue and mere reference to certain instances for the purpose of completion of narration would not entitle the detenue to the copies of the same as the said documents were not relied upon. Reference in this regard has been made to the judgment in the matter of Madan Lal Anand v. UOI Anr. (1990) 1 SCC 81 and the same judgment as relied upon by the learned counsel for the petitioner namely Kamarunnissa v. UOI Anr. (supra). In our view, the relevant documents which were required for subjective satisfaction of the Detaining Authority wereduly placed before the Detaining Authority for consideration and on the basis of those documents, the Detaining Authority came to a conclusion that the detention order is necessary to be issued for preventive detention of the petitioner, so as to ensure that he does not indulge in illegal and detrimental activities and copies of the said documents have been supplied to the petitioner running into more than 600 pages as stated by the learned counsel for the respondent. However, each and every document referred to but not relied upon by the Detai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon the judgment in the matter of Binod Singh v. District Magistrate, Dhanbad, Bihar Ors. (1986)4 SCC 416 to support the contention that once the detenue is in custody, purpose of detention ceases to exist. Further it is submitted that the proclamation proceedings end as soon as a person surrenders or is arrested as held by Punjab Haryana High Court in Diksha Puri v. State of Haryana CRM-M 359/2012 decided on 16th October, 2012 . As per the petitioner, he had not violated the spirit of purported self-bond as he had moved an application for recall of the warrants. We do not agree with the learned counsel for the petitioner as mere moving an application for recall of the warrant cannot be a substitute of his personal presence before the Court on the basis of the bond executed by him before the Jail Superintendent at Vishakhapatnam. It is reiterated that the detenue has not surrendered before a Court in Delhi, where he was declared as a proclaimed offender and he failed to appear despite his undertaking, so these judgments are of no help to his cause. 41. Although, the petitioner has referred to procedural infractions, gravity of allegations having no meaning and dela ..... X X X X Extracts X X X X X X X X Extracts X X X X
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