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TMI Blog2018 (11) TMI 1887X X X X Extracts X X X X X X X X Extracts X X X X ..... cretary on behalf of the first respondent-Government of India for the grounds of detention stated at Ext.P2 running into 77 pages. 2. The petitioner was, therefore, before us with this writ of Habeas Corpus directing the respondents herein to produce Faisal, the detenu, before this Court and to release him; and also for issuance of a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to the originals of Ext.P1 order of detention and Ext.P2 grounds and to quash the same. The detenu is now released but the writ petition is still pressed since the order of detention if allowed to stand could lead to other consequences. 3. The grounds which had been agitated to assail Exts.P1 and P2 are as follows:- (i) That the actual detention was made after a long lapse of time of about two years and that there was no live-link to detain the detenu as he has not been involved in any case subsequent to the passing of Ext.P1 detention order. (ii) That the abnormally vague grounds of detention running into 77 pages makes it obscure; (iii) A reading of Ext.P2 grounds of detention would indicate that there are no specific grounds or materials in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der dated 28.07.2017. It is submitted that the detenu was apprehended only on 06.05.2017, though Exts.P1 and P2 were passed in the year 2015, and that the purposeful delay in executing the order of detention and the delay has snapped the live-link between the order of detention and the actual purpose of detention, which by itself would indicate that there was no necessity for the execution of the detention order. It is also submitted that there has been no involvement of the detenu in any similar case during this period of two years. The learned Senior Counsel has also submitted that the detenu has not got an opportunity to file a proper representation and as a result of which there is violation of Article 22(5) of the Constitution of India. The learned Senior Counsel relies on Ext.P5 copy of a document registered on 04.01.2016 at Muvattupuzha Sub Registrar's office by the detenue in person, to impress upon us that the detenue was not absconding as alleged by the Government. 6. Reliance is placed on a Division Bench decision of this Court in 2017 (2) KHC 231 (DB) [Fazeela Salim v. Joint Secretary to the Government of India COFEPOSA Unit & Others], wherein it is held that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said that the live link is lost merely because of the passage of time or the non - availability of the person within the Indian jurisdiction." 9. The second ground urged by the learned Senior Counsel for the petitioner is that Ext.P2 grounds of detention runs into 77 pages and that it is abnormally vague and that there are no specific grounds or materials in support of those grounds, for apprehension of the detenu and his confinement, except for a few bald statements which, according to the learned Senior Counsel, were insufficient to order detention under the COFEPOSA Act. 10. Under Section 3 of the COFEPOSA Act, it is the subjective satisfaction of the authorized authority to pass an order of detention with respect to a person with a view to preventing that person from acting in any manner prejudicial to the conservation or augmentation of the foreign exchange or with a view to preventing him inter-alia from smuggling goods or abetting the smuggling of goods. 11. The learned Senior Counsel argues that a reading of Ext.P2 does not include any direct involvement of the detenu in the alleged smuggling of Gold. It was on 24.05.2015 that one Salim Melathu Makkar, who arrived by Sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was only once that he was apprehended and his interrogation led to the involvement of the detenu indulging in abetting of smuggling Gold from UAE to India. Apart from Salim, statements of Lal.G, Manager of M/s.Creative Tours and Travels, was recorded, who had made arrangements for the issuance of the tickets for the carriers to fly. Siraj T.K., BWFS Staff and one Ashiq M.Shanavas were all questioned in this regard. The statements of all those witnesses would indicate the involvement of the detenu Faisal P.A. which has resulted in 113 KGs of Gold being smuggled into India not only by the detenu but also his brother Noushad P.A. based in Muvattupuzha, who was actively involved in recruiting persons as carriers of Gold. The said Noushad was involved in arranging the tickets for the carriers trough the aforementioned travel agency and was also proceeded against under COFEPOSA Act. 13. It is true that Ext.P2 gives a rather elaborated version of the involvement of the detenu especially considering the huge network unearthed by the authorities, which had been carrying on these subversive activities for quite a long period of time. However, a careful reading of the order would bring to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amp Supervisor with an agency carrying out ground handling work declared his involvement with the racket as also his direct contact with the brother-in-law of Salim and spoke of the modus operandi in carrying out the smuggling activities. Shinoy K. Mohandas a Deputy Manager in the said flight service agency spoke on his direct contact with the kingpins of the racket, including Fazil,the brother-in-law of Salim and Noushad the brother of the detenu. Though all these persons except the Manager of the travel agency, filed retraction statements, the records recoverd from the travel agency and the corroboration by the Manager speaks of the involvement of the detenu, who had been elusive with the others. 15. A summons served on the detenu was not responded to and an anticipatory bail application was filed jointly by the detenu and the brother-in-law of Salim. One Siraj T.K., who was working as a Customer Service Agent in the very same flight services agency confessed to his active involvement in the racket and stated that at least five times the detenu had recieved the Gold from him, which he recovered from the various places inside the Airport were the carriers on instructions conceal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Gold may have been smuggled into India. A wide intricate network was operating involving the ground handling staff of the airport, unemployed youth and even security personnel. An adjudication under the provisions of the Customs Act, 1962 as well as under the COFEPOSA Act does not require the standard of proof, which is normally required for the conviction of a person who stands on trial before a criminal court for whatever offence he has been charge-sheeted against. Adjudicatory process in a preventive detention is only a fact finding process by which the authorities need to be satisfied subjectively, that the person against whom the adjudication is initiated has been involved in actual smuggling or abetting in the smuggling of contraband. No proof beyond reasonable doubt is essential for the passing of an order of detention. 17. We are also not in agreement with the learned Senior Counsel for the petitioner regarding the propriety of the communication of the order of detention to the detenu. As we have already observed, the detenu was not available for the detention order to be executed. He had been served with the first notice. Thereafter, he had absconded and did not volu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding circumstances. The live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken to have been snapped in this case. A detention order which is founded on stale incidents, must be regarded as an order of punishment for a crime, passed without a trial, though purporting to be an order of preventive detention. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing it." 20. We cannot discern a snapping of the livelink here, especially since the accused was absconding despite repeated summons. We rely on AIR 1990 SC 225 [Abdul Rahman V. State of Kerala]; wherein the Hon'ble Supreme Court held thus; "11. 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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