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Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, -COFEPOSA – Detention orders passed on sound principles and enquiry – except the administrative compulsory consumption of time no delay was occurred – granting of bail by regular courts was not the criteria to considered while ordering Detention = Apex court too dismissed the appeal = LICIL ANTONY ….. APPELLANT VERSUS STATE OF KERALA & ANR. …. RESPONDENTS = 2014 (April.Part ) http://judis.nic.in/supremecourt/filename=41416

   Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, -COFEPOSA  – Detention orders passed on sound principles and enquiry – except the administrative compulsory consumption of time no delay was occurred – granting of bail by regular courts was not the criteria to considered while ordering Detention = Apex court too dismissed the appeal =

declined to quash the order of detention passed  under

    Conservation of Foreign Exchange and Prevention of Smuggling Activities

    Act, 1974, hereinafter referred to as “COFEPOSA”,  =

Prejudicial activity which prompted the

    sponsoring authority to recommend for detention  of  the  detenu  under

    COFEPOSA had taken place on 17th of  November,  2012.   

The  allegation

    related to export of red sanders through International Container Trans-

    shipment Terminal. 

The sponsoring authority took some time to determine

    whether the prejudicial activity of  the  detenu  justifies  detention.

    During the inquiry it transpired that the detenu and  two  others  were

    part of a well-organised gang operating in smuggling of red sanders  in

    India and abroad.  

It is only thereafter  that  on  17th  of  December,

    2012, the sponsoring authority made recommendation for the detention of

    the detenu and two others under Section  3  of  the  COFEPOSA. 

 As  the

    allegation had  international  ramification,  the  time  taken  by  the

    sponsoring authority in making recommendation  cannot  be  said  to  be

    inordinate.  

The proposals of the sponsoring authority were received in

    the office of the detaining authority on 21st of  December,  2012.   As

    detention affects the liberty of a citizen, it has  to  be  scrutinised

    and  evaluated  with  great  care,  caution  and  circumspection.   

The

    detaining authority upon such scrutiny and evaluation decided  on  25th

    of January, 2013 to place the proposals before the screening  committee

    and forwarded the same to it on 1st of February, 2013.   

If one expects

    care and caution in scrutiny and evaluation of the proposals, the  time

    taken by the detaining authority to  place  the  proposals  before  the

    screening committee cannot be said to have been taken after  inordinate

    delay.  

The meeting of the screening committee took  place  on  1st  of

    February, 2013 in which the cases of the detenu and the two others were

    considered.  

The screening committee concurred with the  recommendation

    of the sponsoring authority.  As  stated  by  the  respondents  in  the

    counter  affidavit,  the  record  of  the  sponsoring  authority,   the

    screening committee and other materials consisted of over  1000  pages.

    As the final call was to be taken by the detaining  authority,  it  was

    expected to scrutinise, evaluate  and  analyse  all  the  materials  in

    detail.  

After the said process, the  detaining  authority  decided  on

    15th of April, 2013 to detain the detenu  and  two  others.   The  time

    taken for coming to  the  decision  has  sufficiently  been  explained.

    After the decision to detain the detenu and two others was taken, draft

    grounds were prepared and approved on 19th of April, 2013.  

As  one  of

    the detenue was a Tamilian, the grounds of detention were translated in

    Malyalam and Tamil which  took  some  time  and  ultimately  sufficient

    number of copies and the documents relied on were prepared  by  3rd  of

    May, 2013. 

Thereafter, the order of detention was  passed  on  6th  of

    May, 2013.

 

           From what we have stated above, it cannot be said that there  is

    undue delay in passing the  order  of  detention  and  the  live  nexus

    between the prejudicial activity has snapped. 

We  cannot  expect  the  detaining

    authority to know each  and  every  detail  concerning  the  detenu  in

    different parts of the country. 

 Not only this, the conditions  imposed

    while granting bail to the detenu which we have reproduced above in  no

    way restrains him from continuing with his prejudicial activity or  the

    consequences, if he continues to indulge.  

We are in agreement with the

    High Court that the bail order passed by  the  trial  court  in  Andhra

    Pradesh is not a crucial and vital document and  the  omission  by  the

    detaining authority to consider the same has, in no  way  affected  its

    subjective satisfaction.

 

          From the conspectus of what we have observed, we do not  find  any

    error in the order of detention and the order passed by the High Court,

    refusing to quash the same.  In the result, we do not find any merit in

    the appeal and the same is dismissed accordingly.

 

     2014 (April.Part ) http://judis.nic.in/supremecourt/filename=41416

CHANDRAMAULI KR. PRASAD, PINAKI CHANDRA GHOSE

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO._872 OF 2014
(@SPECIAL LEAVE PETITION (CRL.) No.988 of 2014)
LICIL ANTONY ….. APPELLANT
VERSUS

STATE OF KERALA & ANR. …. RESPONDENTS

 
J U D G M E N T

 

 

Chandramauli Kr. Prasad

Petitioner Licil Antony happens to be the wife of detenu Antony
Morris and aggrieved by the order dated 6th of November, 2013 passed by
a Division Bench of the Kerala High Court in Writ Petition (Criminal)
No. 412 of 2013 declining to quash the order of detention passed under
Conservation of Foreign Exchange and Prevention of Smuggling Activities
Act, 1974, hereinafter referred to as “COFEPOSA”, has preferred this
special leave petition.

 
Leave granted.

 
Shorn of unnecessary details, facts giving rise to the present
appeal are that on the allegation that the appellant’s husband Antony
Morris, hereinafter referred to as the detenu, intended to export red
sanders through International Container Trans-shipment Terminal, was
arrested on 17th of November, 2012 by the Directorate of Revenue
Intelligence and a case was registered against him. He was released on
bail by the Additional Chief Judicial Magistrate (Economic Offences),
Ernakulam. The Directorate of Revenue Intelligence, hereinafter
referred to as ‘DRI’, by its letter dated 17th of December, 2012 made
recommendation for the detenu’s detention besides two others under
Section 3 of the COFEPOSA alleging that they are part of a well-
organised gang operating in smuggling of red sanders in India and
abroad. The proposals of the DRI, hereinafter referred to as the
sponsoring authority, were received in the office of the detaining
authority on 21st of December, 2012. The detaining authority after
scrutiny and evaluation of the proposals and the documents, decided on
25th of January, 2013 to place the proposals before the screening
committee and forwarded the same to it on 1st of February, 2013. The
proposals of the detenu’s detention along with two others were
considered by the screening committee which concurred with the
recommendation of the sponsoring authority. The detaining authority
considered the facts and circumstances of the case as also the reports
of the sponsoring authority and the screening committee and other
materials running over 1000 pages and took decision on 15th of April,
2013 to detain the detenu and two others. Draft grounds for detention
in English were approved on 19th of April, 2013 and as one of the
detenue was a Tamilian, time till 3rd of May, 2013 was taken for
translation of the documents relied on in Malyalam and Tamil and for
preparation of sufficient number of copies. Ultimately, with a view to
prevent the detenu from engaging in the smuggling of goods, the
detaining authority passed order of detention dated 6th of May, 2013.
It was served on the detenu on 11th of June, 2013. The grounds of
detention dated 8th of May, 2013 were made available to the detenu on
13th of June, 2013. The detenu was produced before the Advisory Board,
which found sufficient grounds for his continued detention and,
accordingly, the detaining authority issued order dated 24th of August,
2013, and confirmed the order of detention for a period of one year
with effect from 11th of June, 2013, the date of detention.

It is relevant here to state that detenu was earlier arrested in
connection with Kallur Police Station FIR No.57 of 2012 under Section
29 and 32 of A.P. Forest Act, 1937; Section 29 of the Wildlife
Protection Act, 1972; Section 55(2) of the Biological Diversity Act,
2002; Rule 3 of the A.P. Sandalwood and Red Sanders Wood Transit Rules,
1969 and Section 379 of the Indian Penal Code. Judicial Magistrate
(First Class), Pakala by order dated 30th of November, 2012 released
him on bail and while doing so directed him to appear before the
concerned police station on specified days.

 
The appellant challenged her husband’s detention before the High
Court in a writ petition. By the impugned order the same has been
dismissed.

 
Mr. Raghenth Basant, learned counsel for the appellant submits
that there is inordinate delay in passing the order of detention and
that itself vitiates the same. He points out that the last prejudicial
activity which prompted the detaining authority to pass the order of
detention had taken place on 17th of November, 2012; whereas the order
of detention has been passed on 6th of May, 2013. He submits that
delay in passing the order has not been explained.

 
Mr. M.T. George, learned counsel appearing on behalf of the
respondents does not join issue and admits that the sponsoring
authority wrote about the necessity of preventive detention in its
letter dated 17th of December, 2012 for the prejudicial activity of the
detenu which had taken place on 17th of November, 2012 and the order of
detention was passed on 6th of May, 2013 but this delay has
sufficiently been explained. He submits that mere delay itself is not
sufficient to hold that the order of detention is illegal.

 
We have given our thoughtful consideration to the rival
submissions and we have no doubt in our mind that there has to be live
link between the prejudicial activity and the order of detention.
COFEPOSA intends to deal with persons engaged in smuggling activities
who pose a serious threat to the economy and thereby security of the
nation. Such persons by virtue of their large resources and influence
cause delay in making of an order of detention. While dealing with the
question of delay in making an order of detention, the court is
required to be circumspect and has to take a pragmatic view. No hard
and fast formula is possible to be laid or has been laid in this
regard. However, one thing is clear that in case of delay, that has to
be satisfactorily explained. After all, the purpose of preventive
detention is to take immediate steps for preventing the detenu from
indulging in prejudicial activity. If there is undue and long delay
between the prejudicial activity and making of the order of detention
and the delay has not been explained, the order of detention becomes
vulnerable. Delay in issuing the order of detention, if not
satisfactorily explained, itself is a ground to quash the order of
detention. No rule with precision has been formulated in this regard.
The test of proximity is not a rigid or a mechanical test. In case of
undue and long delay the court has to investigate whether the link has
been broken in the circumstances of each case.

There are a large number of authorities which take this view
and, therefore, it is unnecessary to refer to all of them. In the case
of Adishwar Jain v. Union of India (2006) 11 SCC 339, this Court
observed as follows:

“8. Indisputably, delay to some extent stands explained. But, we
fail to understand as to why despite the fact that the proposal
for detention was made on 2-12-2004, the order of detention was
passed after four months. We must also notice that in the
meantime on 20-12-2004, the authorities of the DRI had clearly
stated that transactions after 11-10-2003 were not under the
scrutiny stating:

“… In our letter mentioned above, your office was requested
not to issue the DEPB scripts to M/s Girnar Impex Limited and
M/s Siri Amar Exports, only in respect of the pending
application, if any, filed by these parties up to the date of
action i.e. 11-10-2003 as the past exports were under
scrutiny being doubtful as per the intelligence received in
this office. This office never intended to stop the export
incentives occurring to the parties, after the date of action
i.e. 11-10-2003. In the civil (sic) your office Letter No.
B.L.-2/Misc. Am-2003/Ldh dated 17-5-2004 is being referred
to, which is not received in this office. You are, therefore,
requested to supply photocopy of the said letter to the
bearer of this letter as this letter is required for filing
reply to the Hon’ble Court.”

 
9. Furthermore, as noticed hereinbefore, the authorities of
the DRI by a letter dated 28-2-2005 requested the bank to
defreeze the bank accounts of the appellant.

10. The said documents, in our opinion, were material.

11. It was, therefore, difficult to appreciate why order of
detention could not be passed on the basis of the materials
gathered by them.

12. It is no doubt true that if the delay is sufficiently
explained, the same would not be a ground for quashing an order
of detention under COFEPOSA, but as in this case a major part of
delay remains unexplained.”

 
Further, this Court had the occasion to consider this question
in the case of Rajinder Arora v. Union of India, (2006) 4 SCC 796 in
which it has been held as follows:

“20. Furthermore no explanation whatsoever has been offered
by the respondent as to why the order of detention has been
issued after such a long time. The said question has also not
been examined by the Authorities before issuing the order of
detention.

 
21. The question as regards delay in issuing the order of
detention has been held to be a valid ground for quashing an
order of detention by this Court in T.A. Abdul Rahman v. State
of Kerala (1989) 4 SCC 741 stating: (SCC pp. 748-49, paras 10-
11)

“10. 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 that would be applicable under all
circumstances and no exhaustive guidelines can be laid down
in that behalf. It follows that the test of proximity is not
a rigid or mechanical test by merely counting number of
months between the offending acts and the order of
detention. However, when there is undue and long delay
between the prejudicial activities and the passing of
detention order, the court has to scrutinise whether the
detaining authority has satisfactorily examined such a delay
and afforded a tenable and reasonable explanation as to why
such a delay has occasioned, when called upon to answer and
further the court has to investigate whether the causal
connection has been broken in the circumstances of each
case.

 
11. Similarly when there is unsatisfactory and
unexplained delay between the date of order of detention and
the date of securing the arrest of the detenu, such a delay
would throw considerable doubt on the genuineness of the
subjective satisfaction of the detaining authority leading
to a legitimate inference that the detaining authority was
not really and genuinely satisfied as regards the necessity
for detaining the detenu with a view to preventing him from
acting in a prejudicial manner.”

22. The delay caused in this case in issuing the order of
detention has not been explained. In fact, no reason in that
behalf whatsoever has been assigned at all.”

Bearing in mind the principles aforesaid, we proceed to examine
the facts of the present case. Prejudicial activity which prompted the
sponsoring authority to recommend for detention of the detenu under
COFEPOSA had taken place on 17th of November, 2012. The allegation
related to export of red sanders through International Container Trans-
shipment Terminal. The sponsoring authority took some time to determine
whether the prejudicial activity of the detenu justifies detention.
During the inquiry it transpired that the detenu and two others were
part of a well-organised gang operating in smuggling of red sanders in
India and abroad. It is only thereafter that on 17th of December,
2012, the sponsoring authority made recommendation for the detention of
the detenu and two others under Section 3 of the COFEPOSA. As the
allegation had international ramification, the time taken by the
sponsoring authority in making recommendation cannot be said to be
inordinate. The proposals of the sponsoring authority were received in
the office of the detaining authority on 21st of December, 2012. As
detention affects the liberty of a citizen, it has to be scrutinised
and evaluated with great care, caution and circumspection. The
detaining authority upon such scrutiny and evaluation decided on 25th
of January, 2013 to place the proposals before the screening committee
and forwarded the same to it on 1st of February, 2013. If one expects
care and caution in scrutiny and evaluation of the proposals, the time
taken by the detaining authority to place the proposals before the
screening committee cannot be said to have been taken after inordinate
delay. The meeting of the screening committee took place on 1st of
February, 2013 in which the cases of the detenu and the two others were
considered. The screening committee concurred with the recommendation
of the sponsoring authority. As stated by the respondents in the
counter affidavit, the record of the sponsoring authority, the
screening committee and other materials consisted of over 1000 pages.
As the final call was to be taken by the detaining authority, it was
expected to scrutinise, evaluate and analyse all the materials in
detail. After the said process, the detaining authority decided on
15th of April, 2013 to detain the detenu and two others. The time
taken for coming to the decision has sufficiently been explained.
After the decision to detain the detenu and two others was taken, draft
grounds were prepared and approved on 19th of April, 2013. As one of
the detenue was a Tamilian, the grounds of detention were translated in
Malyalam and Tamil which took some time and ultimately sufficient
number of copies and the documents relied on were prepared by 3rd of
May, 2013. Thereafter, the order of detention was passed on 6th of
May, 2013.

From what we have stated above, it cannot be said that there is
undue delay in passing the order of detention and the live nexus
between the prejudicial activity has snapped. As observed earlier, the
question whether the prejudicial activity 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 activity and the purpose
of detention is snapped depends on the facts and circumstances of each
case. Even in a case of undue or long delay between the prejudicial
activity and the passing of detention order, if the same is
satisfactorily explained and a tenable and reasonable explanation is
offered, the order of detention is not vitiated. We must bear in mind
that distinction exists between the delay in making of an order of
detention under a law relating to preventive detention like COFEPOSA
and the delay in complying with procedural safeguards enshrined under
Article 22(5) of the Constitution. In view of the factual scenario as
aforesaid, we are of the opinion that the order of detention is not fit
to be quashed on the ground of delay in passing the same. The
conclusion which we have reached is in tune with what has been observed
by this Court in the case of M. Ahamedkutty v. Union of India, (1990) 2
SCC 1. It reads as follows:

“10…….. Mere delay in making of an order of detention under
a law like the COFEPOSA Act enacted for the purpose of dealing
effectively with persons engaged in smuggling and foreign
exchange racketeering who, owing to their large resources and
influence, have been posing a serious threat to the economy and
thereby to the security of the nation, the courts should not
merely on account of the delay in making of an order of
detention assume that such delay, if not satisfactorily
explained, must necessarily give rise to an inference that there
was no sufficient material for the subjective satisfaction of
the detaining authority or that such subjective satisfaction was
not genuinely reached. Taking of such a view would not be
warranted unless the court finds that the grounds are stale or
illusory or that there was no real nexus between the grounds and
the impugned order of detention. In that case, there was no
explanation for the delay between February 2, and May 28, 1987,
yet it could not give rise to legitimate inference that the
subjective satisfaction arrived at by the District Magistrate
was not genuine or that the grounds were stale or illusory or
that there was no rational connection between the grounds and
the order of detention.”

Mr. Basant, then assails the order of detention on the ground of
its delayed execution. He points out that the order of detention was
passed on 6th of May, 2013 whereas it was served on the detenu on 11th
of June, 2013. He submits that had the detenu been absconding, the
appropriate Government ought to have taken recourse to Section 7 of the
COFEPOSA. Section 7 of the COFEPOSA confers power on the detaining
authority to make a report to a competent Magistrate in relation to an
absconding person so as to apply the provisions of Section 82, 83, 84
and 85 of the Code of Criminal Procedure. It also provides for
publication of an order in the Official Gazette, directing the detenu
to appear. It is an admitted position that no such report or
publication was made. Accordingly, Mr. Basant submits that the order
of detention is vitiated on the ground of delay in its execution also.
In support of the submission he has placed reliance on a large number
of authorities. We are entirely in agreement with Mr. Basant that
undue and unexplained delay in execution of the order of detention
vitiates it, but in the facts of the present case, it cannot be said
that such delay has occurred. As stated earlier, the order of
detention dated 6th of May, 2013 was served on the detenu on 11th of
June, 2013. It is expected of the detaining authority to take recourse
to ordinary process at the first instance for service of the order of
detention on a detenu and it is only after the order of detention is
not served through the said process that recourse to the modes provided
under Section 7 of the COFEPOSA are to be resorted. Here, in the
present case, that occasion did not arise as the order of detention was
served on the detenu on 11th of June, 2013. Therefore, in our opinion,
the order of detention cannot be said to have been vitiated on this
ground also.

Lastly, Mr. Basant submits that the detenu was arrested in a case
at Andhra Pradesh and while granting bail, the trial court at Andhra
Pradesh put following conditions:

“7) The petitioner/accused No.4 shall appear and sign before the
concerned Station House Officer in between 10.30 AM to 2.00 PM
on the first week Wednesday of every succeeding month for a
period till the date of filing of charge sheet or until further
orders and co-operate with the Investigating Officer.

 
8) The petitioner/accused No.4 shall not tamper with the
evidence of prosecution witnesses in any way.”

 
Mr. Basant submits that the order granting bail to the detenu and
the conditions put have not been considered by the detaining authority,
while passing the order of detention. He submits that an order of
preventive detention deprives a citizen of his precious fundamental
right of liberty and as such, the detaining authority erred in passing
the order of detention without considering the same. Mr. George,
however, submits that as the said order was passed by the trial court
at Andhra Pradesh, it was not within the knowledge of the detaining
authority. In any view of the matter, according to him, the same has no
relevance in decision making process and, therefore, the omission to
consider that will not render the order of detention unconstitutional.
On thoughtful consideration of the rival submissions, the plea put
forth by Mr. George commends us. We cannot expect the detaining
authority to know each and every detail concerning the detenu in
different parts of the country. Not only this, the conditions imposed
while granting bail to the detenu which we have reproduced above in no
way restrains him from continuing with his prejudicial activity or the
consequences, if he continues to indulge. We are in agreement with the
High Court that the bail order passed by the trial court in Andhra
Pradesh is not a crucial and vital document and the omission by the
detaining authority to consider the same has, in no way affected its
subjective satisfaction.

From the conspectus of what we have observed, we do not find any
error in the order of detention and the order passed by the High Court,
refusing to quash the same. In the result, we do not find any merit in
the appeal and the same is dismissed accordingly.

 
………………………………………………………………J.

 

(CHANDRAMAULI KR. PRASAD)

 
………………………………………………………………J.

(PINAKI CHANDRA GHOSE)

 
NEW DELHI,
APRIL 15, 2014.
———————–
3

 

 

 

 

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