TMI Blog2011 (1) TMI 1566X X X X Extracts X X X X X X X X Extracts X X X X ..... and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act ) when the impugned detention order was passed; 2. Some documents which had allegedly been relied upon by the detaining authority had not been supplied to the petitioner; 3. Despite a specific request having been made in the representation dated 17.06.2010, the documents had not been supplied; 4. There was inordinate and unexplained delay in the passing of the detention order; and 5. The grounds of detention did not indicate any prejudicial activities after the petitioner, an Indian Citizen, who had been residing in Dubai, UAE for 14 years, returned to India on 24.05.2009. 3. Mr A.S. Chandhiok, the learned Additional Solicitor General of India, responding to the five points of challenge submitted that:- 1. The detaining authority was well aware that the petitioner was in custody under the NDPS Act and that there was a distinct possibility that, as the charge-sheet had not been filed, the petitioner may get bail-on-default as the end of the period of 180 days was fast approaching and, if released on bail, there was imminent danger that the petitioner would disappear; 2. The documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard to the procedural elements embedded in section 8 of the COFEPOSA Act. Hence, according to Mr Chandhiok, since the present petition is only directed against the detention order and not against the confirmatory order under section 8(f) of the COFEPOSA Act, it is not maintainable. 4. Mr Kumar, arguing for the petitioner, replied to the maintainability argument by submitting that the opinion of the Advisory Board is not an adjudication as there is no lis inter parties; there are no indicia of judicial proceedings the proceedings are not open to public and the petitioner has no right of cross-examination. He submitted that there is no merger of the detention order with the opinion of the Advisory Board or with the order of the Government under section 8(f) of the COFEPOSA Act. The confirmation only confirms the detention order and only continues the detention under the original detention order. Therefore, according to Mr Kumar, it is the detention order itself which is to be challenged even after the Advisory Board s opinion and confirmatory order of the appropriate Government. Sequence of events:- 5. At this stage, it would be pertinent to set out the sequence of rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sionary jurisdiction in respect of the detention order. It is only a constitutional safeguard and it is to that extent the detention order is subject to the opinion of the Advisory Board. It may be regarded as interim only with regard to the continuance of the detention beyond the period of three months being predicated upon the Advisory Board reporting that there is in its opinion sufficient cause for such detention. The detention order passed under section 3(1) of COFEPOSA does merge with the opinion of the Advisory Board or for that matter with the order of the government under section 8(f). In State of Madras v. Madurai Mills Co. Ltd.:(1967) 1 SCR 732, the Supreme Court held:- But the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior Tribunal and the other by a superior Tribunal, passed in an appeal on revision, there is a fusion of merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. In our opinion, the application of the doctrine depends on the nature of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view. In the backdrop of these pronouncements, we fail to see as to how the detention order could be regarded as having merged with either the opinion of the Advisory Board or the confirmatory order of the government under section 8(f) of the COFEPOSA Act. The nature of jurisdiction which is exercised by the Advisory Board is that of a Constitutional safeguard in respect of preventive detention. Its jurisdiction is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of appointments and its determinative nature in transfers introduces the judicial element in the process, and is itself a sufficient justification for the absence of the need for further judicial review of those decisions, which is ordinarily needed as a check against possible executive excess or arbitrariness. Plurality of judges in the formation of the opinion of the Chief Justice of India, as indicated, is another inbuilt check against the likelihood of arbitrariness or bias, even subconsciously, of any individual. The judicial element being predominant in the case of appointments, and decisive in transfers, as indicated, the need for further judicial review, as in other executive actions, is eliminated. The reduction of the area of discretion to the minimum, the element of plurality of judges in formation of the opinion of the Chief Justice of India, effective consultation in writing, and prevailing norms to regulate the area of discretion are sufficient checks against arbitrariness. [emphasis supplied] There is no parallel between appointments of Supreme Court and High Court Judges and transfers of High Court Judges on the one hand and the opinion of the Advisory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned and submit the same within eleven weeks from the date of detention of the person concerned; (d) when there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board; (e) a person against whom an order of detention has been made under this Act shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board, and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified shall be confidential; (f) in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith. Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved as under:- 24. The representation of a detenu is to be considered. There is an obligation on the State to consider the representation. The Advisory Board has adequate power to examine the entire material. The Board can also call for more materials. The Board may call the detenu at his request. The constitution of the Board shows that it is to consist of Judges or persons qualified to be Judges of the High Court. The constitution of the Board observes the fundamental of fair play and principles of natural justice. It is not the requirement of principles of natural justice that there must be an oral hearing. Section 8 of the Act which casts an obligation on the State to consider the representation affords the detenu all the rights which are guaranteed by Article 22(5). The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law. The Board, on the other hand, considers whether in the light of the representation there is sufficient cause for detention. 25. The representation is to be considered by the Advisory Board by following the substance of natural justice as far as it is consistent with the nature of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visory Board s report was against the workers. Subsequently, after their release from detention, the services of the said dock workers were terminated on the understanding that the detention orders, in substance, amounted to orders of conviction. In support of the termination, it was urged that the Advisory Board consisted of persons of eminent status and undoubted impartiality and, so, the fact that the representations made by the respondents were not accepted by the Advisory Board and that their detention was confirmed by the State Government in consultation with the Advisory Board, was enough to justify the termination orders. Though the context is slightly different, the Supreme Court in the said decision did clearly spell out the nature of proceedings before the Advisory Board in the following words:- It is obvious that the Advisory Board does not try the question about the propriety or validity of the citizen s detention as a court of law would; indeed, its function is limited to consider the relevant material placed before it and the representation received from the detenu, and then submit its report, to the State Government within the time specified by Section 10(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detention despite the fact that the detenu is already in detention. The expression compelling reasons in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. Again, in Kamarunnissa v. Union of India: (1991) 1 SCC 128, it was held: 13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufficient to sustain the order of detention. There was, therefore, no sufficient compliance with the requirements as laid down by this Court. These are the reasons for which while allowing the appeal we directed the release of the appellant by order dated 13-12-2005. 13. In this light, let us examine the facts of the present case. The petitioner was arrested on 06.12.2009 for alleged violations of the NDPS Act and was remanded to judicial custody. A case was also registered against the petitioner under the PML Act on 08.12.2009, in which, the petitioner got bail on 12.02.2010. The period of 180 days as referred to in section 167(2) CrPC read with section 36A(4) of the NDPS Act was to expire on 04.06.2010. Since the investigation had not been completed, the Narcotics Control Bureau applied for extension under the proviso to section 36A(4) of the NDPS Act on 25.05.2010. The Special Judge (NDPS), however, dismissed the application on 04.06.2010. In the meanwhile, on 02.06.2010, when the said application for extending the custody period was pending, the impugned detention order was passed and was served upon the petitioner on 03.06.2010. The grounds of detention were supplied to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions through a wide hawala network. It is also alleged that the petitioner resided in Dubai from 1995 till May, 2009, when he returned to India without any valid documents. The petitioner had also refused to give his statement to the enforcement directorate. So, it would be reasonable to assume that the detaining authority had it in mind that if released on bail, the petitioner would disappear. 16. In these circumstances, we feel that the detention order cannot be faulted on the ground that the petitioner was already in custody. It is not a case of non-application of mind on this aspect. The detaining authority was aware that the petitioner was in custody and that his release on bail was imminent. Point No.2 - Some documents which had allegedly been relied upon by the detaining authority had not been supplied to the petitioner 17. It was contended that several documents have been referred to and relied upon in paragraph 52 of the grounds of detention but they have not been supplied to the petitioner and, as such, his right to make an effective representation has been seriously impaired and, the only consequence of which is, that his continued detention is illegal. The s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to in these paras. Further, according to detenu own admission he is contesting the cases instituted against him. Thus, it appears that the plea of the respondents is that, as the petitioner was aware of the said circumstances mentioned in paragraph 52, there was no need to supply any documents in relation thereto. It is also clear that the said documents, as a fact, were not supplied to the petitioner. It has not been denied in the counter-affidavit that circumstances and documents in relation thereto mentioned in para 52 of the grounds of detention were not taken into consideration. Although these documents are not to be found in the list of relied upon documents, they have, in fact, been referred to and taken into consideration by the detaining authority. We do not agree with the submission of Mr Chandhiok that these documents, which the learned counsel for the petitioner referred to as having been relied upon by the detaining authority, were merely part of the narration of incidents and did not enter into the subjective satisfaction of the detaining authority. Preventive detention is based on the extrapolation of past events. It is upon a consideration of those events, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effective representation immediately instead of waiting for the documents to be supplied with. The question of demanding the documents was wholly irrelevant and the infirmity in that regard was violative of constitutional safeguards enshrined in Article 22(5). Of course, it is not any and every document which is mentioned in the grounds of detention which has to be supplied to the detenu. Only those documents as are relied upon by the detaining authority have to be furnished and their non-supply would be fatal to the continued detention. However, documents which are merely referred to by the detaining authority in passing or as a mere narrative need not be supplied to the detenu. And, their non-supply would not be fatal to the detention unless the detenu can spell out some prejudice having been caused to him on account of their non-supply. This position in law is evident from the following observations of the Supreme Court in Powanammal v. State of T.N.: (1999) 2 SCC 413:- 9. However, this Court has maintained a distinction between a document which has been relied upon by the detaining authority in the grounds of detention and a document which finds a mere reference in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been communicated to the petitioner. In response, the detaining authority, has not denied specifically or even by implication that the facts and documents mentioned in paragraph 52 of the grounds of detention were not considered or relied upon by her. On the contrary, she suggests, in the counter-affidavit, that the references to past cases are reinforced by the alleged non-denial by the petitioner that those cases had been instituted against him and that he was contesting those cases. It is evident that the reference to the alleged past incidents in paragraph 52 of the grounds of detention was not merely casual, en passant or as part of a mere narration of events. In our view, those events entered the mind of the detaining authority and shaped her subjective satisfaction. The documents relating thereto were not shown in the list of relied upon documents but, that does not alter the position. If they were in fact relied upon for the purposes of forming the satisfaction, they ought to have been supplied to the detenu irrespective of their not being shown in the list of relied upon documents. 20. Since, the documents were not supplied, the detenu s right to make an effective r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.2007 in regard to 3 Show Cause Notices under FERA FEMA, issued to Shri Bimal Kumar Jain others in connection with the export of chalk powder declaring as bulk drug made to M/s Kumar Trading Company, Dubai owned by Shri Naresh Kumar Jain and Discovery General Trading LLC, UAE. 24. It was, therefore, contended that only the said note was relied upon for the observations in the grounds of detention and, since, the said note was supplied to the petitioner, he could not make any grievance about the non-supply of requested documents. The learned counsel for the petitioner rejoined by submitting that in paragraph 50(c)(iv) of the grounds of detention there is a specific mention of NEPROXEN , whereas, the note dated 26.04.2007 does not bear any reference to NEPROXEN. Then, he asked, how did the detaining authority have knowledge about NEPROXEN? 25. It is true that the said note dated 26.04.2007, does not mention NEPROXEN. Clearly, if the detaining authority suggests that her knowledge qua NEPROXEN is derived from the said note dated 26.04.2007, then that is not correct. One possibility is that she could have derived that information from some other document. But, if so, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the nexus has disappeared. 28. According to the learned counsel for the petitioner there was inordinate delay in the passing of the detention order. He submitted that search and seizure operations were conducted in September, 2009 and the statements were recorded in October, 2009 but, the detention order was passed after a delay on 02.06.2010. It was submitted that even processing of the detention order took over 5 months from January to June, 2010. 29. In order to take a view with regard to the plea of delay in passing the order of detention it would be necessary to examine the steps taken by the respondents during the alleged period of delay. From the counter-affidavit it is apparent that a composite detention proposal for detaining the petitioner and his four other alleged associates was received from the Directorate of Enforcement, New Delhi (the sponsoring authority) on 13.10.2010. The meeting of the Screening Committee was held on 05.02.2010. The final draft of the minutes of the meeting were approved by all the members and signed on 15.02.2010. The minutes were put up before the detaining authority on 16.02.2010 who directed that the proposal be processed. Thereaf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l safeguards such as supply of grounds and documents, consideration of the representation etc.,. While there is no scope for any laxity in the latter case, there can be some play-in-the-joints , as it were, in the former. This distinction is well settled as would be apparent from the Supreme Court decision in Rajendrakumar Natvarlal Shah v. State of Gujarat: (1988) 3 SCC 153, wherein it was observed as under:- 10. Viewed from this perspective, we wish to emphasise and make it clear for the guidance of the different High Courts that a distinction must be drawn between the delay in making of an order of detention under a law relating to preventive detention like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and the delay in complying with the procedural safeguards of Article 22(5) of the Constitution. It has been laid down by this Court in a series of decisions that the rule as to unexplained delay in taking action is not inflexible. Quite obviously, in cases of mere delay in making of an order of detention under a law like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 enacted for the purpose of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icial activity of the detenu and the purpose for which the order of detention is issued is snapped, and being stale there was no justification for issuance of an order of detention. In the facts and circumstances of this case, we are satisfied that the details furnished by the detaining authority provide sufficient explanation for the time taken in issuing the order of detention. We are also satisfied that the detaining authority was conscious of the fact that the matter required immediate attention, but in view of the voluminous record which had to be scanned and scrutinised before issuance of the order of detention, the order could not be issued earlier. 31. In the light of the of the foregoing discussion, we are of the view that there was no inordinate or unexplained delay in the passing of the detention order in this case. In any event, there is nothing to suggest that the time spent in the above exercise was such that it resulted in the detention becoming stale or in the snapping of the link between the alleged prejudicial activity and the detention. Point No.5 - The grounds of detention did not indicate any prejudicial activities after the petitioner, an Indian Citi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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