Delhi High Court
Manish Gadodia vs Union Of India & Anr. on 4 December, 2014
Author: Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 30.10.2014
Judgment delivered on: 04.12.2014
% W.P.(Crl.) 1695/2014
MANISH GADODIA
..... Petitioner
Through: Mr. Vikram Chaudhri, Senior
Advocate with Mr. Sanjay Agarwal,
Mr. Shorab Kirpal, Mr. Raktim
Gogoi, & Mr. Wattan Sharma,
Advocates.
versus
UNION OF INDIA & ANR.
..... Respondents
Through: Mr. Sanjay Jain, ASG along with Mr.
Sanjeev Narula, CGSC and Mr. Ajay
Kalia, Advocates for respondent no.
1/ UOI.
Mr. S.K. Dubey & Mr. Rajmangal
Kumar, Advocate for respondent no.
2/ DRI.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J.
1. The petitioner has preferred the present writ petition under Article 226
of the Constitution of India to seek a writ of Certiorari - to quash the
detention order bearing No. F. NO. 673/06/2014-CUS VIII dated 25.07.2014
(hereinafter referred to as 'the detention order') passed under Section 3(1) (i)
& 3(1) (iii) of the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 (COFEPOSA Act) against Sh. Anil Gadodia
(detenue) - the Petitioners brother, and a direction to set at liberty the
detenue from detention.
2. The Joint Secretary to the Govt. of India, Shri Harmeet S. Singh,
passed the detention order in respect of the detenue, therein stating that the
detaining authority is satisfied that the detenue be detained "with a view to
preventing him from smuggling of goods and in transportation &
concealment of the smuggled goods in future.........".
3. The Grounds of Detention (GoD), inter alia, state that an intelligence
was received by the officers of Directorate of Revenue Intelligence (DRI),
Jaipur, that a syndicate is involved in illegal storage and then export of red
sanders (which is a prohibited item under Appendix II of the CITES
(Convention on International Trade in Endangered Species of Wild Fauna
and Flora) and as per import-export policy, 2009-14, their export in any
form is prohibited). The detenue - Mr. Anil Gadodia is allegedly the
kingpin of the syndicate involved in export of red sanders.
4. The respondents claim that on 28.09.2013, five containers were
examined and in four of them red sanders was found, apart from marble.
The four containers were placed under seizure. Searches were
simultaneously conducted, inter alia, at various premises in Delhi, Mundra
and Jaipur by the DRI, which resulted in recovery of, inter alia, red sanders
apart from documents, etc.
5. The statement of, inter alia, the detenue was recorded on 28.09.2013
and 29.09.2013, wherein he allegedly admitted to having supplied illegally
procured red sanders for export through containers. The detenue, however,
subsequently retracted from his statement on 30.09.2013.
6. On 29.09.2013, the detenue was arrested under Section 104 of the
Customs Act, 1962 by the DRI, Jaipur for allegedly having committed an
offence under Section 132, 135(a), 135(b) and 135(c) of the Customs Act,
1962.
7. DRI, Jaipur filed the complaint against the detenue and others on
28.11.2013, where the matter is pending prosecution before the learned
Metropolitan Magistrate (MM), Jaipur. After a period of 5 months, the
detenue was granted bail by the Court of Session Judge, Jaipur vide its order
dated 22.02.2014.
8. On 25.07.2014, the detention order was passed under Section 3 (1) (i)
& (iii) of COFEPOSA Act. Thereafter, on 13.08.2014, the police served
upon the detenue the one page detention order dated 25.07.2014 (in English
language). On the same day he was brought to the police station and was
kept in custody. Subsequently, the detenue was taken to Tihar Jail and ever
since he has been lodged in it.
9. The petitioner has pleaded several grounds to challenge the detention
order against the detenue. However, at the stage of arguments only some of
these grounds were highlighted - which are being discussed. On 20.08.2014,
the detenue was served with the Grounds of Detention (GoD) along with the
other documents i.e. after the expiry of around 7 days.
10. Learned Counsel for the petitioner submits that there is an
unexplained and immense delay of about 8 months in passing of the
detention order. The prosecution in respect of the alleged recovery of red
sanders - which took place on 28.09.2013, was lodged on 28.11.2013 -
meaning thereby, that the investigation was complete, while the detention
order was passed only on 25.07.2014 and, therefore, on account of the
aforesaid delay, the live link between the alleged occurrence - namely the
recovery of red sanders, and the object of detention, stood snapped. It is
pointed out that the detenue had been granted bail on 22.02.2014. However,
the detention order was passed only on 25.07.2014, i.e. five months after the
detenue was set at large.
11. Learned counsel further submits that there was unexplained delay
even in service of the detention order after it was made. He submits that
there is no explanation as to why it was not served forthwith after it was
passed. It is argued that the detenue was available at his given address and
was not in the hiding. The detenue, in fact, appeared before the Court in the
pending prosecution case on 04.08.2014. No attempt was made to serve the
detention order on the detenue on the said date.
12. Learned Counsel further urges that the GoD and "Relied upon"
Documents (RuD) had been supplied to the detenue after expiry of around 7
days from the date of detention. The detention order was served on
13.08.2014 to the detenue while the GoD along with the RuD was served
only on the intervening night of 19.08.2014 and 20.08.2014. The said act of
the respondents is in contravention of Section 3(3), COFEPOSA Act read
with Article 22(5), Constitution of India as it mandates that documents are to
be furnished within 5 days, and in the present case there were no exceptional
circumstances.
13. Further, the petitioner had requested for the translation of the
documents in Hindi which were served on 23.08.2014, and as late as on
02.10.2014, which has prejudiced/ hampered the right of the detenue to
effectively make a representation against his detention.
14. Learned counsel sought to place reliance on the following decisions to
support his case:
i. Hem Lall Bhandari vs. State of Sikkim, (1987) 2 SCC 9;
ii. Parmod Kumar vs. Lt. Governor, 89 (2001) DLT 34;
iii. Khundrakpam Nimai Singh vs. District Magistrate, (2006) CrLJ
410;
iv. Tsering Dolkar vs. Administrator, Union Territory of Delhi, (1987)
2 SCC 69;
v. Kamlesh Kumar Lahwardas Patel vs. Union of India, (1995) 4 SCC
51;
vi. C.B. Gautam vs. Union of India, (1993) 1 SCC 78;
vii. Ibrahim Ahamad Bhatti vs. State of Gujarat, (1982) 3 SCC 440;
viii. State of Rajasthan vs. Talib Khan, (1996) 11 SCC 3;
ix. A. Mohd. Farook vs. Jt. Secy. To G.O.I, (2000) 2 SCC 360;
x. Rajinder Arora vs. Union of India, (2006) 4 SCC 796;
xi. Adishwar Jain vs. Union of India, (2006) 11 SCC 339;
15. Learned counsel also places reliance on Guidelines issued for
implementation of COFEPOSA i.e. 'Procedural safeguards/ requirements to
be observed to avoid delay in execution of detention order' dated
21.02.2007.
16. The respondents have opposed the petition. Learned ASG, appearing
for the respondents, to explain the time taken for passing the detention order
on 25.07.2014 - although the prosecution was lodged against the petitioner
on 28.11.2013, submitted that it took time to scrutinize the documents and,
thereafter, for the Detaining Authority to arrive at his subjective satisfaction
with regard to passing of the order of detention. He further submits that the
detenue is indulging in illicit smuggling of red sanders on a large scale,
which is harmful to the national economy and the environment. Thus,
having regard to the nature of the activities of the detenue, the Court would
not be justified in interfering with the detention order.
17. Learned ASG submits that the detention order is not liable to be
quashed on the ground of delay in service of the GoD, since there were
exceptional circumstances existing in the present case, and the GoD
documents were served on the detenue on 20.09.2014, i.e. well within the
period of 15 days prescribed under Section 3(3), COFEPOSA read with
Article 22, Constitution of India. In this regard, he has sought to draw the
attention of this Court to the exceptional circumstances set out in the reply
filed by respondents, which reads as follows:
"With respect to the contentions raised in this para it is
submitted that the contention that documents have not been
supplied to the detenue "as soon as possible" from the date of
detention nor within a period of five days as provided under
Section 3(3) of the COFEPOSA Act, 1974 is, not tenable as
Section 3(3) of COFEPOSA Act, 1974 also permits service of
grounds of detention 'in exceptional circumstances and for the
reasons to be recorded in writing' within a period of fifteen
days, from the date of detention. Exceptional circumstances
emerged in view of the following:-
Detention was affected on 13-14/08/2014 and TELEX
communication to that effect was sent by the executing
authority (Delhi Police) to the office of detaining
authority on 14/08/2014 [copy annexed as ANNEXURE -
'A'] and on 14/08/2014, the ADJ (COFEPOSA) was on
tour to Kolkata for attending hearing before Hon'ble
Advisory Board (COFEPOSA) in another matter. No
information to that effect was sent from executing
authority to the sponsoring authority (SA).
In the matter, it is pertinent to note that, the central
government offices at Delhi and Jaipur (where regional
office of DRI is located and was coordinating with
executing authority in the matter) remained closed for
four (04) days due to holidays from 15/08/2014 to
18/08/2014. 15/08/2014 (on account of Independence
day), 16/08/2014 &17/08/2014 (being Saturday &
Sunday respectively) and 18/08/2014 (on account of
Janmasthmi).
It was on 19/08/2014 at around 4 pm that, DRI Jaipur
was enquired telephonically about the progress made
after detention of detenue (sic) on 14/08/2014 (as got
known from per telex message "PNDLIPHDP_82"
received from Delhi Police on 14/08/2014 as well as
letter No. l/SCJ-1/AS(CT)/2014/2129 dated 14.08.2014
received on 19/08/2014 from Jail Superintendent, Tihar,
New Delhi [copy annexed as ANNEXURE - 'B']. As
such, the grounds of detention could not be served to Shri
Anil Gadodia within the stipulated period of five days in
terms of Section 3 (3) of the COFEPOSA Act, 1974.
However, when it came to the knowledge of the
sponsoring authority, immediate efforts were made and
the grounds of detention and relied upon documents
could be served to the detenue on 20/08/2014. As such, it
is evident that only so much time has, elapsed in
communicating the grounds of detention and relied upon
documents to the detenue, which is required for transit
from Jaipur to Central Jail, Tihar.
Thus, according to Section 3 (3) of the COFEPOSA, Act,
grounds of detention are required to be made "as soon as"
after the detention and not immediately, as contended in the
petition. The phrase "as soon as" is undoubtedly based on
belief of rationality and as such Section 3 (3) of COFEPOSA
Act, 1974 contemplates a period of five days within the meaning
of phrase "as soon as" in ordinary circumstances and period of
15 days in exceptional circumstances. In the instant case the
exceptional circumstances have emerged in view circumstances
detailed in this para."
18. Learned ASG submits that the detention order under COFEPOSA
Act, 1974, to prevent him from engaging in prejudicial activities in future.
He further submits that the High Court of Rajasthan had rejected the bail
application of the detenue on 09.12.2013, as it was of the opinion that it is
very difficult to rule out the possibility that the detenue would indulge in
similar activities, if he is released on bail.
19. Learned ASG places reliance on M. Ahamedkutty vs. Union of India,
(1990) 2 SCC 1, to urge that the test of proximity is not a rigid one or can a
mechanical calendar test be blindly applied by merely counting the number
of months and days between the offending act and the order of detention. He
further places reliance on Daku Devi W/o Baburam Choudhary vs. State of
Tamil Nadu, H.C.P. No. 590 of 2004, decided on 21.09.2004, wherein the
Madras High Court observed that in case of exceptional circumstances, the
phrase "as soon as" translates to mean "for reasons to be recorded in writing
not later than fifteen days, from the date of detention".
20. Having heard learned counsel for the parties and considered the
submissions in the light of the parties, we are of the view that the impugned
order of detention suffers from the vice of unexplained delay in the passing
and service of the detention order. We are also satisfied that Article 22(5) of
the Constitution stands violated on account of delay beyond 5 days in
service of the GoD upon the detenue with the RuD, and that the respondents
have failed to disclose exceptional circumstances to justify service of the
GoD and documents when they were served.
21. We find merit in the submission of learned counsel for the petitioner
that there was unexplained delay in passing of the detention order. After the
alleged seizure of red sanders from the possession and custody of the
detenue on 28/29.09.2013 and conduct of investigation, the complaint was
filed under Section 132 and 135 of the Customs Act on 28.11.2013. Thus,
the investigation was complete by the said date.
22. Further, the show cause notice under the Customs Act was issued to
the detenue on 24.03.2014, which clearly establishes that the material
evidence required for passing of the detention order were available to the
Detaining Authority and inspite of the same, he did not pass the detention
order till 25.07.2014. In the present case, the detention order was passed
after a delay of about 8 months, which has defeated the purpose of the
detention as it was to prevent the detenue from acting in a prejudicial
manner by indulging in the prohibited trade. Thus, the live link had already
broken by the time the detention order was passed belatedly on 25.07.2014.
23. Another aspect that requires consideration is that after the detenue
was granted bail on 25.02.2014. Although the Central Screening Committee
had considered the proposal for preventive detention, and approved it on
12.02.2014, the Detaining Authority filed for cancellation of bail rather than
passing the detention order to prevent the detenue from carrying out such
prejudicial activities. Further, there are no valid reasons disclosed by the
respondents as to why the detention order was passed only on 25.07.2014,
i.e. after about 5 months of grant of bail when the proposal was approved by
the Central Screening Committee on 12.02.2014.
24. In this regard, reliance may be placed on Rajinder Arora (supra) and
Adishwar Jain (supra), which followed the decision of the Supreme Court
in T.D. Abdul Rahman v. State of Kerala, AIR 1990 SC 225, wherein the
Supreme Court observed as follows:
"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".
(Emphasis supplied)
25. The Detaining Authority even delayed the execution of the detention
order passed on 25.07.2014. The detenue was served with the same only on
13.08.2014 i.e. after about 19 days. It is evident from the facts of the case
that the detenue had been available all along; rather he even attended the
hearing in the prosecution case on 04.08.2014, when he could have been
served with the detention order. The respondents have not disclosed that
any attempt was made to serve the detention order soon after it had been
made. It is not the respondents case that the detenue was avoiding service of
the detention order. In fact, the same was served upon him at his residence.
26. The purpose of a detention order is preventive in nature and not
punitive. Therefore, there must be strict compliance of the procedural
safeguards in every case of preventive detention.
27. In A. Mohd. Farook (supra), the detention order was passed on
25.02.1999, however, it was executed by the Detaining Authority on
05.04.1999. Although the detenue was present in the Court of Addl. Chief
Metropolitan Magistrate on 25.02.1999 and 25.03.1999, but neither the
Detaining Authority, nor the Executing Authority served the detention order
on the detenue, at the earliest. In these circumstances, the Supreme Court
held as follows:
"9. There is catena of judgments on this topic rendered by this
Court wherein this Court emphasised that the detaining
authority must explain satisfactorily the inordinate delay in
executing the detention order otherwise the subjective
satisfaction gets vitiated. Since the law is well settled in this
behalf we do not propose to refer to other judgments which
were brought to our notice.
10. As indicated earlier the only explanation given by the
detaining authority as regards the delay of 40 days in executing
the detention order is that despite their efforts the petitioner
could not be located at his residence or in his office and
therefore the order could not be executed immediately. No
report from the executing agency was filed before us to indicate
as to what steps were taken by the executing agency to serve the
detention order. In the absence of any satisfactory explanation
explaining the delay of 40 days, we are of the opinion that the
detention order must stand vitiated by reason of non execution
thereof within a reasonable time. From Annexure P.2 (the
proceeding sheet of the M.M. Court Madras) it appears that the
petitioner (accused) was present in the court of Additional
Chief Metropolitan Magistrate on 25.2.1999 as well on
25.3.1999. Despite such opportunities neither the detaining
authority nor the executing agency as well as sponsoring
authority were diligent to serve the detention order on the
petitioner at the earliest. In this view of the matter, we are of
the opinion that the subjective satisfaction of the detaining
authority in issuing detention order dated February 25, 1999 is
vitiated. It is in these circumstances it is not possible for us to
sustain the detention order."
28. Similarly, in the present case, there is a delay of 19 days in executing
the detention order. It is no more res integra that the Detaining Authority
must explain satisfactorily the inordinate delay in executing the detention
order, otherwise the subjective satisfaction gets vitiated.
29. The respondents have sought to explain the delay in execution of the
detention order in their reply in the following terms:
"With respect to the contentions raised here, it is submitted that
the Detention Order dated 25.07.2014 was sent to the
Commissioner of Police, New Delhi for execution and the
detention order moved from detaining authority to Delhi Police
Head Quarter and finally to P.S. Sabzi Mandi. As such, there
are many stages, which took its own time due to procedural
requirement. Thus, there is no apparent or unreasonable delay
in execution of detention order. It is also pertinent to mention
that Shri Anil Gadodia was granted bail and according to the
conditions of bail Shri Anil Gadodia was required to cause his
personal appearance every month in first week either at DRI
office situated at Jaipur or at DRI office situated at Delhi.
However, Shri Anil Gadodia did not cause his personal
appearance in first week of August in DRI office at Jaipur or
Delhi for which departmental counsel has been asked to file
application for cancellation of bail.
Besides, summon was issued to Shri Anil Gadodia on
15.07.2014 to appear on 24.07.2014 in connection with case of
Red Sanders booked at Delhi against him. However, instead of
complying the summons, Shri Anil Gadodia requested for
another date preferably 04.08.2014. Accordingly, he was issued
another summon to appear on 01.08.2014. However, Shri Anil
Gadodia vide fax letter dated 01.08.2014 informed the Senior
Intelligence Officer, DRI, Jaipur that he is physically unable to
move and requested to condone his personal appearance on
04.08.2014, though detenue came to Jaipur on 04.08.2014 and
faced the trial on 04.08.2014 in the Court of CMM (Eco. Off.),
Jaipur but he did not appear in DRI office to comply the
summons as well as cause his appearance in DRI office in
terms of bail condition. "
30. The aforesaid explanation furnished by the respondent is most
unsatisfactory. The respondents have adopted a wishy washy approach by
stating "As such, there are many stages, which took its own time due to
procedural requirement". As to what are these so called "many stages" or
"procedural requirement" has not been explained. It is not even explained
as to what is meant by "took its own time". The counter affidavit of the
respondents shows that the respondents treated the aspect of service of
detention order as a routine matter. It is abundantly clear to us as there was
no sense of urgency displayed by the respondents in execution of the
detention order once it was passed. Merely because the detenue may not
have appeared before the DRI, Jaipur or DRI, Delhi in the first week of
August or in response to the summons issued to him on 15.07.2014,
requiring his appearance on 24.07.2014, or 01.08.2014, it does not follow
that the detenue was evading the service of the detention order. It appears
that the respondents were content with keeping the detention order in their
pocket in the hope that the same would be served upon the detenue when he
appears in the DRI office at Jaipur or Delhi, but no effort was made to locate
the detenue and serve him with the detention order at his residential address.
31. Pertinently, it is not disputed that the detenue appeared in the Court of
CMM, Jaipur on 04.08.2014. There is absolutely no explanation offered as
to why the detention order was not served upon him on the next date. The
respondents have themselves tendered in Court a time chart showing the
chronological sequence of events in respect of the detenue. In this
chronological chart at sl. No.108, it is disclosed that on 01.08.2014, a letter
was written by SA to DGP Rajasthan with a copy to the Ministry, informing
that if the detention order has not been executed till then, the same could be
executed against the detenue on 04.08.2014 when he had to appear before
the CMM, Jaipur. In this background, the failure of the respondents to serve
the detenue with the detention order on 04.08.2014 is, in our view, fatal.
32. The petitioner also placed reliance on the 'Procedural safeguards/
requirements to be observed to avoid delay in execution of detention order'
dated 21.02.2007. The relevant portion is extracted below:
"4. Despite these clear instructions, instances have come to
the notice of this Ministry where even though the detenu was
available at his own address, no real effort had been made to
locate the detenu and execute the detention order. The Hon'ble
Supreme Court has held in a no. of cases that if the
authorities did not make sincere and honest efforts and take
any urgent or effective steps the service of the detention order
on the detenu, the order of the detention is liable to be set
aside.
5. It is generally noticed that the Sponsoring Authorities
who originally move the proposal, somehow develop a lax
attitude after a detention order based on their proposal has
been issued. They tend to harbour a feeling that they have no
further role in the matter and it is entirely for the Detaining
Authority and the Executive Authority to ensure that the
Detention Order is served. This wrong notion needs to be
dispelled forthwith. The Sponsoring Authority must keep in
mind the fact that their role and object is not confined merely
to having a detention order issued but to have a person
detained otherwise the very object of issuing the detention
order gets defeated.
6. All the Sponsoring Authorities, Executive Authorities
and the Detaining Authorities are once again requested that
they must ensure that timely action is taken for execution of
the detention order after it has been issued. Simultaneously,
they should keep detailed records of the efforts made for
execution of the Detention order from time to time, as it would
be important to convince the Advisory Board / Hon'ble High
Courts, if need arises......"
(Emphasis Supplied)
33. The detention order is passed as a preventive measure and therefore,
its purpose is defeated if the detenue is not detained at the earliest possible
opportunity after the alleged act. The actions of the respondents should
display a sense of urgency in the matter of passing of, and execution of the
detention order, if the preventive detention is to be justified. In the present
case, the entire exercise undertaken by the respondents appears to be rather
casual and cavalier.
34. The third limb of the argument was pertaining to violation of Section
3(3), COFEPOSA Act, 1974 read with Article 22(5), Constitution of India.
In this respect, the petitioner had urged that there were no exceptional
circumstances which could have been the reason for delay in supplying the
GoD as well as RuD. The detention order was served on 13.08.2014 while
the GoD and the RuD were served on the detenue in Tihar Jail only during
the intervening night of 19.08.2014 and 20.08.2014. Thus, there can be no
doubt that the GoD and the RuD were not served within five days of the
service of the detention order. The only hope for the respondents to save the
detention order in these circumstances would be by disclosing such
exceptional circumstances as would explain the reasons why the GoD and
the RuD could not be served within five days of the service of the detention
order. The Supreme Court in Parmod Kumar (supra) has held as follows:
"8. In view of the high pedestal on which personal liberty is
pressed, even smallest of unexplained delay in disposal of the
writ petition is considered to be breach of constitutional
protection afforded to a citizen. Reading of Sub-section (3) of
Section 3 of the Act, makes it clear that in the normal course
communication of the grounds on which order of detention has
been directed, has to be made as soon as may be after the
detention, but ordinarily not later than five days. Only in
exceptional circumstances and for reasons to be recorded in
writing, it is to be done not later than fifteen days. There can be
no relaxation of the maximum period of fifteen days, even for
exceptional circumstances. The time imperative is inbuilt in the
provision itself and the legislative intent, is apparent even from
a bare reading of the provision. The object for setting out the
limits is apparent. The constitutional mandate is for grant of
immediate opportunity to detenu to make a representation. It is
inconceivable that any representation, much less an effective
representation can be made with detenu not being
communicated that grounds of detention. The utmost expedition
with which representation has to be disposed of has to be
preceded by expeditious communication of the grounds of
detention, for which legislature has provided a time-frame.
When detaining authority delays in furnishing grounds of
detention to a detenu, there is denial of an opportunity of
making the representation contemplated under Article 22(5) of
the Constitution.
9. In the case at hand, undisputedly the grounds were
served later than fifteen days. No exceptional circumstances
have been highlighted even for extending the period to fifteen
days. According to Fruk & Waanall's Standard Dictionary
"exceptional" means "of a nature to be excepted, constituting
or relating to an exception, unusual uncommon". According to
Murray's New English Dictionary "of the nature of forming an
exception, out of the ordinary course, unusual, special". If the
extended period upto fifteen days have to be availed, exceptions
have to be spelt out and reasons why the circumstances are
exceptional have to be recorded."
35. The service of GoD and the RuD is a constitutional right and
communication of the same has to be made within the prescribed period to
enable the detenue to make a representation. Only in cases where there are
exceptional circumstances does the law permit extension from the prescribed
period of 5 days upto 15 days. In the present case, the so called exceptional
circumstances furnished by the respondent have been set out herein above.
In our view, the same cannot, under any circumstance, be classified as
"exceptional circumstances". Admittedly, the detaining authority was
informed of the execution of the detention order on 14.08.2014. Merely
because the ADJ (COFEPOSA) was then on Kolkata for attending a hearing
before the Advisory Board in another matter cannot be an excuse for the
detaining authority in not taking steps for service of the GoD and the RuD
upon the detenue at the earliest and positively within the period of 5 days. It
is not the respondents case that apart from the ADJ (COFEPOSA), there are
no other officers working in the office of the detaining authority. The
failure of the executing authority to intimate the sponsoring authority of the
detention of the detenue on 13.08.2014 cannot be cited as an excuse to
defeat the fundamental rights of the detenue. These are all matters of
internal management of the respondents. If such like excuses were to be
accepted as "exceptional circumstances", in every case of preventive
detention, the respondents would be able to justify the delay in service of
GoD and RuD as some or the other officer in the office of either the
detaining authority or the sponsoring authority or the executing authority
would be either on leave or out of town for one or the other reason.
Similarly, the closure of the Central Government offices between
15.08.2014 to 18.08.2014 is hardly an excuse which could be accepted as
giving rise to an exceptional circumstance. The respondents should have
been aware of the fact that they are heading for a long weekend and since
the executing authority, admittedly, informed that the detention order had
been executed on 13/14.08.2014, on 14.08.2014 itself the GoD and the RuD
should have been served on the detenue without any delay.
36. In Hem Lall Bhandari (supra), the detenue was preventively detained
on 29.09.1986 and kept in custody till 30.09.1986 in Bombay, before he was
taken to Delhi. On 02.10.1986, under the orders of the Supreme Court, the
detenue was produced before the CMM, Delhi. The Supreme Court had
ordered that the CMM, Delhi might release him on bail, if he thought fit.
Consequently, CMM, Delhi granted him bail on 01.10.1986, and thereafter,
he returned to Bombay. The respondent claimed that the officer was given
the grounds of detention to serve them to the detenue on 03.10.1986, who
made efforts to serve them on 03.10.1986, 04.10.1986 and 05.06.1986, but
all efforts failed. The officer returned to Gangtok on 06.10.1986. The
grounds were served thereafter on 14.10.1986. In this background, the
Supreme Court examined the reasons as to why the GoD was served only on
14.10.1986. The Court observed as follows:
"13. In this case there is no acceptable or satisfactory
explanation as to what the officer did after October 6, 1986.
This inaction after October 6, 1986 till October 14, 1986, by
itself is sufficient for us to hold that Section 8(1) has been
violated by the officer concerned and on that ground alone the
order of detention has to be quashed.
14. An attempt was made by the counsel for the respondents
to contend that the delay in communicating the grounds of
detention caused in this case has to be condoned and the rigour
of the Section relaxed since the detenu had been released on 2-
10-1986, and hence not in detention. This according to us is a
specious plea which cannot stand legal scrutiny. If this
contention is to be extended to its logical conclusion it would be
clothing the authorities with powers to delay communication of
the ground of detention indefinitely, whenever a detenu secures
from a Court of law either bail or parole. To accept this
contention would be to destroy the effect of the mandate of the
Section. As indicated earlier, the mandate enacted in the
Section is a safety valve for a citizen who is robbed of his
liberty and to disable the authorities from manipulating the
grounds of detention. The Section has to be interpreted
literally. No relaxation is permissible. If the original time of 5
days has to be extended, such extension must be supported by
an order recording reasons. If reasons are not so corded the
order of detention will automatically fail. Even if reasons are
recorded they have to inspire confidence in the Court and are
subject to legal scrutiny. If the reasons are unsatisfactory,
Courts would still quash the order of detention."
(Emphasis supplied)
37. In the light of the aforesaid discussion, we cannot accept the
respondents' plea that exceptional circumstances existed in the facts of this
case to justify the service of the GoD and the RuD beyond the period of five
days.
38. So far as the submission of the petitioner with regard to delay in
furnishing of the Hindi translation of the RuD is concerned, we may observe
that the respondents have pointed out that on earlier occasions, the detenue
had addressed letters in English and even stated that he can read, write and
understand English language. Thus, it appears that there is a real controversy
as to, whether or not the detenue bonafidely required translations of the GoD
and the RuD to be able to make an effective representation. We do not
propose to get into this aspect in the light of the aforesaid discussion, since
the detention cannot be sustained on account of serious infirmities - firstly,
on account of passing of the detention order; secondly, on account of delay
in execution of the detention order, and; thirdly, on account of delay in
service of the GoD and the RuD upon the detenue post the detention.
39. In view of the aforesaid discussion, we allow the present writ petition
and quash the detention order dated 25.07.2014 passed by the respondents
under Sections 3(1) of the COFEPOSA Act; the petitioner shall be set at
liberty forthwith.
VIPIN SANGHI, J
S. RAVINDRA BHAT, J
DECEMBER 04, 2014
