TMI Blog2019 (11) TMI 1705X X X X Extracts X X X X X X X X Extracts X X X X ..... d with an identical order, merely for reason of not providing such electronic facilities to the detenus, who were in custody no care was taken to ensure such a defect not recurring. The rigour of preventive detention mandates something more than mere lip-service. If the mandate is not carried out in letter and spirit, then the order gets vitiated. It is also noticed that the representations show that the lawyer submitted it on behalf of the detenu, having met the detenu on 06.02.2019, the day on which the communication is said to have been served, which again validates the assertion of the petitioner that it prejudices an effective representation. The culpability of the four persons; ie: the two AICOs, Shajahan and Mohammed Rashid; the last of whom spoke of the detenu herein, is the very relevant, pertinent fact relied on by the Detaining Authority in the impugned order. The documents sought for by the detenu in his application, was on the action taken against those persons and the result of the same or the stage at which those proceedings are. This is a very significant aspect for the detenu, who has been roped in on the basis of the statements given by those persons and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation to the Detaining Authority by Ext.P5 dated 11.02.2019, one to the Central Government by Ext.P6 dated 12.02.2019 and another by Ext.P7 dated 15.02.2019 to the Advisory Board. The Advisory Board was constituted within five weeks as provided in the Statute, which heard the detenu on 22.03.2019, and affirmed the order of detention, based on which recommendation, Ext.P8 dated 16.04.2019 was issued by the Central Government. Ext.P8 affirmed the order detaining the detenu for a period of one year from 24.01.2019. The representations filed before the Central Government and the Detaining Authority were also rejected thereafter. The detenu is still in custody and his wife challenges his continued detention. 3. Sri. P.A Augustian the learned Counsel appearing for the petitioner assail the order on various grounds relying on precedents. His first challenge is on the delay in execution of the detention order which is stated to be without any reason. The authorities took absolutely no steps to apprehend the detenu and at this point of time, after about four years, there exists no live link with the alleged actions, warranting detention of the detenu; that too on a preventive measure. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India and its officers, stoutly refutes the grounds raised by the wife of the detenu. It is pointed out from the counter affidavit filed by the respondents 1 and 2 that sufficient steps were taken to procure the custody of the detenu. A notification under Section 7(1)(b) was issued on 06.08.2015 and it was published in the Gazette of India dated 07.08.2015 a copy of which is produced as Ext.R1(a). This was also published in two vernacular newspapers, copies of which are produced as Exts.R1(b) and (c) having circulation in the District of Kasaragod, where the detenu has his residence. A report under Section 7(1)(a) of the Act was also filed before the Judicial First Class Magistrate Court II Kanjangad as CMP No.8861/2015 dated 03.11.2014. The detenu was avoiding execution of the order and was absconding. On information of his arrival in Kerala, without delay he was apprehended and detained in the year 2019. It is argued that the detenu had been absconding outside the State and could have been even outside India and his whereabouts could not be traced despite all steps having been taken. 6. It is argued that the detenu definitely was aware of the order passed against him since he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idavit of respondents 1 2. Having refused to view the video footage, he cannot now turnaround and allege prejudice on that count. The non service of Ext.P11, is a fallacious ground, for, the detenu who was absconding, would definitely have had knowledge of the said decision and in any event, it was not one relied on by the Detaining Authority. It is further argued that the video footage did not at all show the detenu and hence there was no requirement to allow him to view it, going by the dictum in Radhakrishnan Prabhakaran v. State of Tamilnadu [ 2000 (9) SCC 170]. There is no prejudice caused as alleged and the detenu was able to make an effective representation. It is urged that there could be no infirmity, irregularity or illegality alleged against the detention order and the same has to be sustained. The learned Government Pleader for the State, Sri K.A Anas relies on Gautam Jain v. Union of India [2017(3) SCC 133] to urge application of the principle of severability to sustain the order of detention. Even if one of the grounds on which the order is passed, is unsubstantiated or the documents pertaining to that, having not been supplied; there are various other materials as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fixture in his house, Gazette notification, publication in vernacular newspapers and the proceedings initiated before the jurisdictional Magistrate. The learned Counsel for the detenu has a contention that it was not incumbent upon the proposed detenu to offer himself for detention. Why should he invite detention was the plea taken. We beg to differ on that aspect, since this is not a game and it involves allegations of infringment of the established laws of a country regulating imports; on which prior summons would have been issued. A dutiful citizen, issued with summons; if innocence was the plea, ought to have appeared before the authorities to place his cards on the table to prove it. The detenu here, cannot feign ignorance of the order and he does not have a case that he was readily available for service of the order. The explanation seems to suggest that the proposed detenu was abroad and he does not also make any attempt to prove that he was very much inside the country, in his native place, carrying on his daily chores, quite oblivious of the detention order. It is very pertinent that after four years, when his presence in the State was detected, the authorities acted quick ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has delayed consideration of the representation, unnecessarily awaiting the report of the Board. It is proper for the government in such situations to await the report of the Board. If the Board finds no material for detention on the merits and reports accordingly, the government is bound to revoke the order of detention. Secondly, even if the Board expresses the view that there is sufficient cause for detention, the government after considering the representation could revoke the detention. 13. Golam Biswas after referring to the quoted text, reaffirmed the principle that every representation received by the Central Government before the final consideration of the matter by the Advisory Board has to be forwarded to the Advisory Board. If the Advisory Board holds that the order is invalid, the Central Government has absolutely no option but to release the detenu. However, even when the Advisory Board affirms the detention order, the Central Government ought to consider the representation filed before it or before the Advisory Board. The Central Government then has the power, if it so decides to release the detenu by revoking the detention order. 14. The representations at E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne Manu. V., an Assistant Central Intelligence Officer [ACIO], was found to have picked up the baggage, who confessed to his having kept the baggage near his seat and taking it out for delivery to one Muhammed Rashid, a travel agent. Muhammed Rashid, when summoned, sang like a canary and admitted the ploy having been undertaken on many dates with the active help of Manu and one another ACIO, Krishnakumar. Muhammed Rashid spoke also of the smuggling having been carried out at the behest of the petitioners husband and two others; one Shajahan and Kunhayankutti. The call records of these persons were examined and Muammed Rashid was found to have constantly called up the various persons involved in the ring of operations. Hence the detection of smuggling by Ijas Abdulla on 14.02.2015, led to the verification of CCTV footage on the earlier date, thus leading to the implication of two ACIOs, who spoke about their outside contact Mohammed Rashid, who in turn gave the full details of the operations of a smuggling ring involving the detenu too. Though the detenu was not in the footage or even Muhammed Rashid, this was the crucial link leading to the allegations, which form the grounds of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been argued by the learned CGSC, that the detenu was aware of the proceedings against his co-noticees. That would be assuming that he is guilty of the offence before he is brought to trial. We say this quite conscious of the fact that establishment of guilt is not the pre-requisite of a preventive detention order, but however, all the mitigating circumstances available to a detenu has to be looked at by the Detaining Authority, the Government, the Advisory Board and this Court, when considering the continued detention. Every mitigating factor has to come to the aid of the detenu. In this context, we notice the observations made by one of us sitting in Division, in paragraph 54 of Thankam v. State of Kerala and Others [2018 KHC 818], which is extracted hereunder: The Courts are quite conscious of the public purpose, an enactment sanctioning preventive detention, seeks to serve and the social menace a detention order intends to curb, at least temporarily. The Courts are equally alive to the gross prejudice caused to a citizen and the arbitrary and vindictive possibilities the onerous provisions offer, to the Officials of the State. It may not be often, but also not infrequently t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenu refused to view the CCTV footage, nothing is placed on record to establish it, but for a statement made in the counter affidavit. Neither an acknowledgement is seen made by the detenu of his refusal, nor even a statement by the Superintendent of Prisons as to the detenu having declined such facility. The statement in the counter affidavit cannot be relied on, without substantiation, especially in cases of preventive detention. The rigour of preventive detention mandates something more than mere lip-service. If the mandate is not carried out in letter and spirit, then the order gets vitiated. We also have to pertinently notice that the representations show that the lawyer submitted it on behalf of the detenu, having met the detenu on 06.02.2019, the day on which the communication is said to have been served, which again validates the assertion of the petitioner that it prejudices an effective representation. 21. We need only notice Ext.P11, and the extracts made from Ichhu Devi Chorario and a host of precedents of the Hon'ble Supreme Court to find the order illegal for reason of the prejudice ocassioned in the failure of the authorities to show the video footage to the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons. The documents sought for by the detenu by reason of his arrest and detention after four years assumes relevance, to be included in his representation to make it effective. Mohammed Zakir was a case in which the documents relied on were served on the detenu after a month, which though is much lesser here; all the same has application since the period of delay or its quantum has no bearing in the teeth of the prescription of five days for such supply. A delay of one day or a month or an year or half does not permit this Court to deviate from the statutory mandate which has more rigour in the case of a preventive detention on a subjective satisfaction, without trial. 23. On the above reasoning we find the grounds of delay, (i) in execution of the detention order and (ii) in consideration of the representation, to be not vitiating the order of detention. However, on the non-supply of Ext.P11 decision in the case of the co-noticees and failure to provide sufficient facilitates to view the CCTV footage, we find the continued detention of the detenu to be illegal. We hence direct that the detenu be set at liberty forthwith, if his detention is not required in any other case. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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