TMI Blog2019 (11) TMI 1734X X X X Extracts X X X X X X X X Extracts X X X X ..... ivities, since the detenu was abroad with facilities to again sent contraband through carriers into this Country, having live contact with persons within the country. Smuggling activities in the various Airports in the State have continued unabated over the years and a person, against whom a detention order was issued for organised smuggling four years back, cannot be said to have turned a new leaf, merely by passage of time, especially when no such mitigating circumstance has been pointed out by the detenu himself. We hence decline the challenge against the order, on the ground of delay in execution of the order. Delay in consideration of the representation - HELD THAT:- The representations at Exts. P5 P6 respectively before the detaining authority and the Central Government were dated 11.02.2019 and 12.02.2019 respectively. It is seen from the statement dated 22.11.2019 filed by the CGSC that the materials in support of the detention order were referred to the Advisory Board on 18.02.2019 and the Advisory Board considered the representations as also the materials and made a recommendation dated 28.03.2019 affirming the detention order. The same was received on 08.04.2019 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... illegal - It is required that the detenu be set at liberty forthwith, if his detention is not required in any other case - application allowed. - WP (Crl.) No. 324 of 2019 (S) - - - Dated:- 26-11-2019 - K. Vinod Chandran and V.G. Arun, JJ. For the Appellant: P.A. Augustian, M.A. Baby, Linda M.J. and Jovit Lobo, Advs. For the Respondent : Suvin R. Menon, CGC and K.A. Anas, Government Pleader JUDGMENT K. Vinod Chandran, J. 1. The petitioner seeks release of her husband, Kutty Aboobaker Imthiyaz, detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act). 2. Preventive detention orders similar to the one impugned, Ext. P2, were passed on 28.05.2015 as against a number of persons involved in organized smuggling; many of whom were arrested and detained immediately after the order was passed. Kutty Aboobacker Imthiaz, the detenu with whom we are concerned was detained on 24.01.2019 after about four years. The documents upon which reliance is placed in the order, was supplied to him on 28.01.2019. A communication dated 04.02.2019 speaking of arrangement of facilities for viewing the compact disc, su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts relied on in the detention order; there was no effective steps taken to ensure that he had an opportunity to view the same. In this context it is pointed out that on that compelling ground, the preventive detention order against four of the other accused were set aside by this Court in W.A. (Crl.) No. 386/2015 and connected cases, by a decision produced as Ext. P11. The decision was on 28.01.2016 and the authorities despite being aware of the same, failed to ensure that the detenu had an opportunity to view the video footage which failure was intentional. The fourth ground also arises from that decision; which, it is alleged, was not supplied to the detenu despite his specific request. A Division Bench judgment in W.P. (Crl.) No. 479/2018 dated 12.04.2019, is placed before us to buttress the contention of prejudice caused, by reason of Ext. P11 not being supplied to the detenu or placed before the Advisory Board. Shalini Soni v. Union of India [: 1980(4) SCC 544] and Muhammed Zakir V Delhi Administration 1982(3) SCC 216 are relied on in support of the contention that non supply of relevant documents vitiates the entire process. The learned Counsel urge that the detention order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visory Board, would still have to release the detenu if the Advisory Board advises release of the detenu. It is also argued that the documents sought for in the representation are not relied upon by the detaining authority and there is no statutory mandate to supply them. When applying the mind on the representation, one ground, of requirement of certain documents not relied on in the detention order, cannot be considered in isolation. We reject that contention immediately, since any prayer for information or material on the further proceedings against those involved in the same transaction, is a very relevant aspect, especially in the context of the delay occasioned in executing the detention order. We will further elaborate on this aspect a little later. 7. On the CCTV footage it is pointed out that the authorities had directed the Superintendent Central Prison, Thiruvananthapuram to ensure all facilities for viewing the video footage by the detenu, providing computer or laptop or other electronic devices. The same was communicated to the detenu by Annexure R4(a) and the Superintendent, Central Prison, Thiruvananthapuram also enabled such facilities as per Ext. P4. The receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g been taken on that count it was held, the respondents were not sincere or anxious to serve the order of detention. The explanation too was merely a statement that steps under Section 7 was taken and several attempts were made to serve the order, by visiting the residence of the proposed detenu; which was found to be lacking. 9. We have to immediately notice that the in paragraph 26 Saeed Zakir Hussain Malik held that 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. Though there is no hard and fast rule and no exhaustive guidelines can be laid down in that behalf, however, when there is undue and long delay between the prejudicial activities and the passing of detention order, it is incumbent on the part of the court to scrutinize whether the Detaining Authority has satisfactorily examined such a delay and afforded a reasonable and acceptable explanation as to why such a delay has occasioned (sic). The delay, hence has to be examined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Central Government before it is referred to the Advisory Board. We cannot but respectfully observe that in Ichhu Devi Choraria there is no mention of any reference made to the Advisory Board. In this context we notice the Constitution Bench decision in K.M. Abdulla Kunhi B.L. Abdul Khader v. Union of India Others [(1991) 1 SCC 476]. We make an extract hereunder from paragraph 16 of the Constitution Bench decision: 16. We agree with the observations in Frances Coralie Mullin case[1980 (2) SCC 275],. The time imperative for consideration of representation can never be absolute or obsessive. It depends upon the necessities and the time at which the representation is made. The representation may be received before the case is referred to the Advisory Board, but there may not be time to dispose of the representation before referring the case to the Advisory Board. In that situation the representation must also be forwarded to the Advisory Board along with the case of the detenu. The representation may be received after the case of the detenu is referred to the Board. Even in this situation the representation should be forwarded to the Advisory Board provided the Board h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is the non- supply of documents, which were required by the detenu, in the representations. It was asserted that the non-supply of such documents, which include Ext. P11 decision in favour of the co-noticees, were very relevant factors, which could have made the representation before the Advisory Board more effective. The ground urged of CCTV footage, not being shown to the detenu has to be considered along with that noticed above, of non-supply of documents. In this context we notice the genesis of the entire allegations, leading to the detention order, which is on a singular incident of detection of contraband in the hands of an incoming passenger at the International Airport at Cochin. 16. One Ijas Abdulla, who arrived from Dubai at 22 hrs. on 14.01.2015, was marked for attention, on prior information received. Sans the details, the passenger was accosted and his baggage checked, which revealed four bars of gold weighing 1 Kg. each. The passenger caught red-handed, spilled the beans and spoke of an earlier instance of a similar activity carried out successfully on 07.01.2015. He admitted to have left the bag containing contraband in one of the counters, from where it was to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r: IV. The detenu wants to make a representation before the COFEPOSA Advisory Board. For making an effective Representation the following information and documents may be supplied to me at the earliest. (i) Whether Order of Detention passed against the co-accused Ijaz Adbulla K, E.V. Manu, Muhammed Rasheed, Kunhayan Kutty @ Kutty, Krishna Kumar R. and Shajahan? If yes, were they detained? Did they challenge it before Advisory Board or Court of Law? What were the results? If writ applications filed by them were allowed or dismissed, kindly serve copies of the same. (ii) Did the Customs Department issue any Show Cause Notice in the names of the parties? Did Adjudication taken place and Order passed? If yes, please supply copies of Show Cause Notice, Replies of various parties and Adjudication Order. (iii) Was Shajahan interrogated subsequently after passing of Detention Order? If yes, please supply copy of his statement. iv) Was Kunhayan Kutty @ Kutty interrogated subsequently after passing the Detention Order? If yes, please supply copy of his statement. As these documents are highly essential for preparing an effective ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to view the video footage. We have to notice that the requirement under Article 22(5), as translated in Section 3(3) of the COFEPOSA Act, mandates communication, to a person detained in pursuance of a detention order, of the grounds in which the order has been made, which includes the documents relied on, ordinarily not later than five days. Here, the detention was on 24.01.2019 and the documents were supplied on 28.01.2019, including the CCTV footage. But the video footage was in a compact disc, which, without electronic facilities cannot be viewed. Despite at the earlier instance, this Court interfered 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. 20. The Commissioner of Customs, according to us, very casually made a communication to the Superintendent, Central Prison, Thiruvananthapuram by Ext. R4(a) dated 01.02.2019. The Superintendent was requested to ensure all facilities to the detenu for viewing the CD ROM, in which the CCTV footage is stored as and when desired by him by providing Computer/Laptop or other paraphernalia. The Superintenden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed before them. The authorities rested contend with the casual steps taken; even in the teeth of the declaration made by a Division Bench of the High Court as against the very same allegations and grounds asserted by co-noticees. 22. The principle of severability as argued by the learned Government Pleader propounded in Gautam Jain has no application, since we have found that the video footage is one of the links in the chain of circumstances, which led to the grounds of detention, which, if broken, would result in the very foundation itself being shaken. Shalini Soni held that duty to communicate grounds of detention includes the duty to furnish all pertinent and proximate facts as also materials relied upon by the Detaining Authority while passing the Detention Order. The culpability of the four persons; i.e.: 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 ..... 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