By TIOL News Service

NEW DELHI, APR 16, 2014: PETITIONER Licil Antony 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 declining to quash the order of detention passed under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, "COFEPOSA", has preferred this special leave petition.

On the allegation that the appellant's husband Antony Morris, 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 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.

The 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.

The counsel for 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.

The Supreme Court observed,

Delay in Detention Order and consequences : 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.

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 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.

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.

Delayed execution . Counsel 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.

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.

Fact of Bail by a Court in AP not considered by the detaining authority, while passing the order of detention: Counsel 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.

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 in no way restrains him from continuing with his prejudicial activity or the consequences, if he continues to indulge. 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.

The Supreme Court did not find any error in the order of detention and the order passed by the High Court, refusing to quash the same. No merit in the appeal. Dismissed

(See 2014-TIOL-37-SC-COFEPOSA)