IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(Crl.).No. 53 of 2010(S) 1. S.MUHAMMAD SAJEEB, AGED 30 YEARS, Petitioner Vs 1. STATE OF KERALA, REPRESENTED BY Respondent 2. THE CITY POLICE COMMISSIONER, 3. THE POLICE ASSISTANT COMMISSIONER, 4. THE SUPERINTENDENT OF CENTRAL EXCISE, 5. THE CHAIRMAN, ADVISORY BOARD, 6. SPECIAL SECRETARY-CUM DIRECTOR For Petitioner :SRI.P.K.SAJEEV For Respondent :SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI The Hon'ble MR. Justice [ENTITY] The Hon'ble MRS. Justice [ENTITY] Dated :09/06/2010 O R D E R [ENTITY] & [ENTITY], JJ. * * * * * * * * * * * * * [CASE NUMBER] Dated this the 9th day of June 2010 JUDGMENT
Basant,J Does the delay in execution of the warrant of preventive detention vitiate the order of detention and continued detention? This is the question that comes up before us for consideration in this case.
2. The petitioner in this writ petition prays for the issue of a writ of habeas corpus to produce his brother [ENTITY], who is detained under the provisions of [SECTION] of The [ACT] (hereinafter referred to as [ACT]).
3. One [ENTITY] was intercepted by the Air Customs Officials at the Trivandrum Airport when he was about to proceed to Mali on 06/03/1999. He was found to be in possession of 168.1 gms of morphin (heroin), a narcotic drug. He was interrogated. On the clues received from him, one [ENTITY] was also interrogated. Statements of the said [ENTITY] dated 7/3/1999 and 24/4/1999 were recorded. Statements of the said [ENTITY] dated 29/4/1999 and 7/5/1999 were also recorded. Shri [ENTITY], the detenu herein, was not available to be interrogated. On 1/6/1999, a complaint was filed alleging the commission of offence under the [ACT] by the said [ENTITY] and the [ENTITY]. Still later, Ext.P7 order of detention under [SECTION] of the [ACT] was passed on 17/7/1999. The detenu's presence could not be secured in the criminal prosecution launched against him before the Sessions Court alleging commission of the offence punishable under the [ACT]. The order of detention dated 17/7/1999 could not be executed till 9/11/2009. At long last, the detenu was arrested on 9/11/2009 after the elapse of about a decade from the date of the order of detention. He continues in custody on the strength of the said order of detention. The order of detention stands confirmed by the Government under law after the Advisory Board rendered an opinion in favour of continuance of the detention.
4. Before us, Sri.[ENTITY] the learned counsel for the petitioner, and Shri [ENTITY], the learned Prosecutor for the Customs and Central Excise Department and the learned Public Prosecutor have advanced their arguments.
5. The learned counsel for the petitioner assails the impugned order on the following grounds:
1) The long gap of time between 6/3/1999(the date of the alleged offence under the [ACT]) and 17/7/1999, (the date of the order of detention) vitiates the impugned order of detention.
2) The enormous gap of time between 17/7/1999, (the date of the order of detention) and 9/11/2009, (the date of detention), vitiates the order of detention and the continued detention.
3) Failure on the part of the detaining authority to consider the crucial and vital circumstance - that [ENTITY], who is alleged to have been abetted by the detenu in the commission of the offence under [ACT], has been acquitted by the court after trial and such acquittal has already been upheld in appeal by this Court before choosing to belatedly execute the order of detention, vitiates the detention.
4) There is non-compliance with the mandate of [SECTION] of the [ACT].
5. The initial subjective satisfaction entertained by the detaining authority is vitiated for want of proper application of mind.
6. We have heard counsel in detail. In the view which we propose to take on grounds 2 and 3, we do not think it necessary to consider the challenge raised on the other grounds in detail. We shall proceed to consider grounds 2 and 3 together in detail.
7. It is trite that unexplained unreasonable delay in the execution of an order of detention shall vitiate the subjective satisfaction entertained by the detaining authority. In the instant case, the gap of time is too long, i.e. 17/7/1999 to 9/11/2009. Does this long gap of time in the execution of the order vitiate the order of detention and the subsequent detention? This is the crucial question that we have to consider.
8. It will be apposite straight away to take note of the fact that much water has flown under the bridge during this gap of time from 17/7/1999 to 9/11/2009. Counsel points out that by the complaint dated 1/6/1999, prosecution was initiated against the said [ENTITY] and the detenu. The detenu was not available to face trial. Trial against the said [ENTITY] had proceeded. By Ext.P2 judgment dated 5/12/2001, the Special Judge for trial of cases under the [ACT], Thiruvananthapuram had found the said [ENTITY] not guilty and acquitted him. Long later, an appeal was preferred against the said judgment of acquittal in favour of the said [ENTITY] by the prosecution and the learned single Judge of this Court, by judgment dated 23/1/2009, had found the judgment of acquittal to be valid and proper. The learned counsel for the appellant contends that these crucial circumstances have not been considered by the detaining authority before the warrant was belatedly executed on 9/11/2009.
9. The learned counsel for the petitioner Sri [ENTITY] argues that there is not only an inordinate, enormous and unexplained delay in the execution of the order of detention, there is also crucial and vital non application of mind to the intervening circumstances which had come into existence after the passing of the order and before its execution. Counsel, in these circumstances, argues that the detenu is entitled to the benefit of such delay in execution and non-application of mind afresh to the changed circumstances and the altered situation before execution of the warrant.
10. The law on the point appears to be well settled. In [ENTITY] v. Additional Chief Secretary to Government, 2009(4)K.L.T.550, this Court has considered in detail the circumstances under which a detenu is entitled to take advantage of the gap of time between the date of the order and the date of its execution. Later in [ENTITY] v. State of Kerala, 2010(1)K.L.T.132, this Court had occasion to consider the need/requirement of fresh application of mind to the changed circumstances and the altered situation when there is such delay in the execution of the order of detention.
11. Following the decision of the Supreme Court in [ENTITY] v. State of Tamil Nadu [AIR 1979 SC 541] and [PRECEDENT] it was held in paragraph 19 of [ENTITY] (Supra) that where there is such a long gap of time between the order and its execution, the detaining authority is entitled to, nay obliged to, consider the materials afresh by a proper application of mind to decide whether under the new situation and changed circumstances, the order of detention deserves to be executed. In [ENTITY] (Supra), we had referred to the law on the question of delay in execution and summarised the same as follows:
"There must be a live and proximate link between the grounds of detention alleged by the detaining authority and avowed purpose of detention, namely, prevention of smuggling activities. The link is snapped if there is long and unexplained delay between date of order of detention and arrest of detenu. In such cases, an order of detention can be struck down unless grounds indicate a fresh application of mind of the detaining authority to the new situation and changed circumstances."
"If there is unreasonable delay between date of order of detention an date of arrest of detenu, such delay unless satisfactorily explained throws a considerable doubt on the genuineness of the requisite subjective satisfaction of the detaining authority in passing detention order and consequently render detention order bad and invalid because the live and proximate link between grounds of detention and the purpose of detention is snapped in not arresting detenu."
12. We must immediately remind ourselves that in [ENTITY] (Supra), the Supreme Court had clearly held that "where delay is not only adequately explained but is found to be the result of recalcitrant or refractory conduct of detenu in evading arrest, there is warrant to consider the link not snapped but strengthened."
13. There can thus be no semblance of doubt on the principles of law that are applicable.
14. We hence have got to consider
i) Whether there has been long and unreasonable delay in the execution of the order of detention?
ii) Whether the explanation offered for the delay is reasonable and acceptable?
iii) Has there been recalcitrant and refractory conduct on the part of the detenu in evading arrest?.
iv) Has there been fresh application of mind by the detaining authority to the new situation and changed circumstances before belatedly executing the order of detention?
15. A brief reference to facts may be adequate and proper in the circumstances. The petitioner had averred clearly in the writ petition that there has been long and enormous delay in the execution of the order of detention. Much pleadings are not necessary as the gap of time is yawning and enormous - 17/7/1999 to 09/11/2009, exceeding a decade. The respondents take the stand that the detenu has been absconding. He was not available to face the trial along with the co-accused, the above said [ENTITY]. The case against the detenu had to be split up and transferred to the long pending cases. That case was recalled from the list of long pending cases only after the detenu was detained after his arrest on 09/11/2009. That complaint was filed on 01/06/1999 and till the date of arrest in execution of the order of detention on 09/11/2009, the detenu was an absconding accused in that proceedings.
16. The learned counsel for the petitioner contends that mere sweeping statements that the accused was absconding, will not serve the purpose and the burden is heavy on the detaining and executing authorities to explain what reasonable steps have been taken to execute the order of detention during this long interregnum. The mere fact that the accused person has been absconding in one pending criminal case is no reason mechanically to come to the conclusion that reasonable efforts have been made by the detaining and executing authorities to execute the order of detention. In this context, the learned counsel for the petitioner relies on Exts.P15 and P16 produced by him to satisfy the court convincingly that all through the detenu was present and was available, if the respondents were serious in their desire to execute the warrant. That was a prosecution pending before the First Additional Sessions Judge, Thiruvananthapuram in which the detenu faced indictment for offences punishable inter alia under [SECTION] [ACT] He stood trial. He was ultimately found not guilty and acquitted. Ext.P16 order sheet maintained by the Assistant Sessions Court would reveal that he had appeared before the Sessions Court in response to summons on 25/11/2005 and was available throughout the trial till he was, in his presence, found not guilty and acquitted on 25/8/2006. Relying upon this, the learned counsel for the petitioner argues that it was certainly not a case of the detenu making himself scarce or absconding. In the light of Exts.P15 and P16, a contention cannot lie in the mouth of the respondents that the detenu was absconding or was not available in the locality, contends the learned counsel for the petitioner.
17. As against this, the learned Prosecutor for the Central Excise and Customs Department submits that execution of the warrant of arrest remained in the realm of the local police. It was up to them to execute the order of detention. The needful has been done by the Central Excise and Customs Department. That department is unable to explain the circumstances under which the order of detention could not be executed. Steps were being taken from time to time to remind the local police officials of the need and their duty to execute the warrant, contends the learned Prosecutor for the Central Excise and Customs Department.
18. The learned Government Pleader contends that even though the gap of time is long, the fact remains that the detenu was taking law in his own hands and deliberately absconding. The learned counsel relies on the decision in [ENTITY] (Supra) and argues that this is a classic case of recalcitrant and refractory conduct on the part of the detenu in evading arrest. The learned Government Pleader submits that Ext.P16 cannot lead a court to the conclusion that the detenu was not absconding or was not evading arrest in execution of the order of detention. That was a totally different case. It was being prosecuted by a different authority. That prosecution was pending before a different court though in the same city. In these circumstances, the fact that the detenu had appeared in that case, cannot by itself, clinch the issue or tilt the scales in favour of the detenu, argues the learned Government Pleader.
19. No pleadings have been raised specifically and no documents whatsoever have been produced to satisfy this Court that necessary steps have been taken by the officials concerned reasonably to apprehend the detenu. The learned Government Pleader, placing reliance on the files, argues that attempts were made periodically to verify the presence of the detenu and effect his arrest. The learned Government Pleader, with the help of the file that he has, argues that necessary steps under Section 8(1)
(a) and [SECTION] of the [ACT] have been taken. Surprisingly, we find not a semblance of a plea to that effect anywhere in the statements filed by the respondents. The gazette notification allegedly effected under [SECTION] has not been placed before court nor is that available even in the file. In a case like the instant one, where the gap of time is yawning and enormous, we must certainly expect the respondents to plead and establish that reasonable steps had been taken to ensure execution of the order of detention and the same failed due to the refractory and recalcitrant attitude of the detenu. That burden must rest squarely on the shoulders of the respondents. More so, in a case where, by materials produced before court (Exts.P15 and P16), the detenu has been able to establish beyond controversy that he was not absconding and was actually present before another Sessions Court in the same city to face trial in another prosecution. We must unhesitatingly hold in these circumstances that the burden on the respondents to plead and establish to the satisfaction of the court that reasonable steps were taken to apprehend the detenu in execution of the order of detention has not been discharged by the respondents.
20. What perhaps worries us all the more is the fact that acquittal of the co-accused by the trial court and upholding of the judgment of acquittal by the appellate court have become a reality before the order of detention was belatedly executed. We reckon those as very important change in circumstances. The substratum of the subjective satisfaction entertained against the detenu is that the other accused, that is the said [ENTITY] committed the offence under the [ACT] and the detenu abetted the commission of that offences. When the substratum is lost by the acquittal of the co-accused, whom the detenu is alleged to have abetted and such judgment of acquittal is upheld by the superior court in appeal and such acquittal has become final by Ext.P3 judgment dated 23/1/2009, it is elementary and reasonable for the detaining authority, before executing the order of detention dated 17/7/1999 on 09/11/1999, to apply its mind to the new situation and the changed circumstances. That having not been done, it must be held that the belated execution of the order of detention after elapse of a period exceeding a decade without fresh application of mind to such new situation and changed circumstances is vitiated. The acquittal of the co- accused may not by itself be binding or final. It may not ipso facto, in all cases vitiate the proceedings against the detenu. But definitely fresh application of mind to the need for detention presently on the basis of an order of detention passed a decade earlier, in the new situation and changed circumstances appears to be unavoidable. The failure/omission to consider the same does definitely vitiate the detention.
21. We must note that we are dealing with the freedom and liberty of an individual. Preventive detention is accepted by refined systems of law as an unavoidable evil in the interests of safety and security of the nation. It must be ensured that procedural safeguards are adequately complied with before such an order of detention is approved by the court. Such constitutional concern and commitment to the core values of freedom and liberty cannot be ignored or over looked by a court merely because the same are pressed into service on behalf of alleged offenders like the detenu in the instant case. In the instant case, the long gap of time exceeding one decade between the order of detention and its execution, the want of pleadings and materials to satisfy the court that reasonable steps as contemplated by law have been undertaken to apprehend the detenu, the admitted availability of the detenu before another court for a long period of time during the interregnum to face indictment, the acquittal of the co-accused by the trial court and the upholding of the judgment by the appellate court, the fact that the subjective satisfaction is founded on the only circumstance that such co-accused was abetted by the detenu, the want of fresh application of mind to the changed circumstances and the new situation which have emerged did not precede the belated execution of the order of detention, do all cumulatively lead us to the conclusion that the order of detention is vitiated and the detention deserves to be interfered with.
22. It is perhaps very evident that the detenu did not appear and face the prosecution along with the co-accused. He was certainly making himself scarce in that prosecution. No element of doubt is available on that aspect. It is conceded that the case against him was split up and was transferred to the long pending cases and the same was recalled only after the detenu was arrested and detained in execution of the order of detention on 17/7/1999. The mere fact that the detenu did not appear in one prosecution cannot, ipso facto, lead to the conclusion that he was absconding in such a manner as to be unavailable for execution of the order of detention even after reasonable steps were taken by the respondents. Though dissatisfied that the detenu had not appeared before the Sessions Court in the prosecution under the [ACT], we are unable to reckon that circumstance as a sufficient answer to the criticism that necessary care, caution and earnestness were not displayed by the executing officials to apprehend the detenu in execution of the order of detention.
23. In the view which we have chosen to take on grounds 2 and 3, we feel it unnecessary to advert to the various other grounds raised in challenge.
24. In the result,
a) This writ petition is allowed.
b) Further detention of the detenu in execution of the order of detention dated 17/07/1999 is set aside.
c) The detenue shall forthwith be produced before the court before which [CASE NUMBER] (Special Court for [ACT]) and his further detention shall be only in pursuance of the orders issued by the Special Court.
d) Needless to say, if his detention is required in any other cases, the orders of such courts shall also be followed.
e) The Registry shall forthwith communicate this direction to the prison authorities.
([ENTITY], JUDGE) ([ENTITY], JUDGE) jsr [ENTITY] & [ENTITY], JJ.
ORDER/JUDGMENT 29/07/2009