ABULAIS @ ABDUL LAISE S/O M.P.C. NASSER v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **TUESDAY, THE 15TH DAY OF NOVEMBER 2016/24TH KARTHIKA, 1938** **WP(C).No. 31214 of 2016 (B) ----------------------------** **PETITIONER:** **-------------** **ABULAIS @ ABDUL LAISE** **S/O M.P.C. NASSER, AGED 32 YEARS, RESIDING AT AL MAMZAR, DUBAI, UNITED ARAB EMIRATES, REPRESENTED BY HIS FATHER AND POWER OF ATTORNEY HOLDER M.P.C. NAZIR, S/O LATE ABU, AGED 61 YEARS, ELAVANCHALIL HOUSE, KODUVALLY POST, KOZHIKODE DISTRICT, PIN:673572.** **BY ADVS.SRI.P.K.RAVISANKAR SRI.S.JAMAL** **RESPONDENTS:** **--------------** **1. STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY, HOME AND VIGILANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN:698001.** **2. ADDITIONAL DIRECTOR** **DIRECTORATE OF REVENUE INTELLIGENCE, PALARIVATTOM POST, COCHIN-682025.** **3. SENIOR INTELLIGENCE OFFICER DIRECTORATE OF REVENUE INTELLIGENCE, CALICUT 673001.** **R2-R3 BY ADV. SRI.S.MANU, CGC, DIRECTORATE OF REVENUE INTELLIGENCE, KERALA R1 BY ADV. SRI.K.V.SOHAN, STATE ATTORNEY BY SRI.S.MANU, CGC, DIRECTORATE OF REVENUE INTELLIGENCE BY Sr.GOVERNMENT PLEADER SRI.M.S.BREEZ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 31214 of 2016 (B)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **----------------------EXHIBIT P1: TRUE COPY OF THE ORDER NUMBER 16519/SS A4/2014/HOME DATED 25.2.2014 ISSUED BY THE IST RESPONDENT DETAINING SHAHBAS MOHAMMED.** **EXHIBIT P2: TRUE COPY OF THE GROUNDS OF DETENTION ON THE BASIS OF WHICH EXHIBIT P1 IS ISSUED.** **EXHIBIT P3: TRUE COPY OF THE JUDGMENT DATED 21.11.2014 IN WPC NO.11648 OF 2014 OF THIS HONOURABLE COURT.** **EXHIBIT P4: TRUE COPY OF THE ORDER NO.16519/SS A4/2014/HOME DATED 19.10.2015, ISSUED BY THE IST RESPONDENT.** **EXHIBIT P5: TRUE COPY OF THE STATEMENT GIVEN BY THE SHAHBAS MOHAMMED UNDER SECTION 108 OF THE CUSTOMS ACT.** **EXHIBIT P6: TRUE COPY OF THE STATEMENT GIVEN BY CHEERAYIL RAHILA UNDER SECTION 108 OF THE CUSTOMS ACT.** **EXHIBIT P7: TRUE COPY OF THE STATEMENT GIVEN BY THE HIROMASA V.S. UNDER SECTION 108 OF THE CUSTOMS ACT.** **EXHIBIT P8: TRUE COPY OF THE MAHAZAR DATED 13.11.2014 PREPARED BY THE 3RD RESPONDENT.** **RESPONDENTS' EXHIBITS** **----------------------EXT.R1(a) : TRUE COPY OF NOTIFICATION PUBLISHED AS SRO NO.340/14 DATED 31.5.14 IN OFFICIAL GAZETTE.** **//TRUE COPY//** **P.A.TO JUDGE** **ami/** ## **“C.R.”** ## **THOTTATHIL B.RADHAKRISHNAN & DEVAN RAMACHANDRAN, JJ. -----------------------------------------------** W.P.(C)No.31214 of 2016 **-----------------------------------------------** Dated this the 15[th] day of November, 2016 ## **J U D G M E N T** ## Thottathil B.Radhakrishnan, J. - 1.A preventive detention order issued under Conservation of Foreign and Prevention of Smuggling Activities Act, 1974 is challenged at the pre-execution stage, purportedly on behalf of the person covered by the impugned detention order, stated to be presently resident of Dubai, represented by a person claiming to be his father and holder of his power of attorney. - 2.Heard the petitioner's learned counsel and the learned State Attorney on behalf of the State Government, the detaining authority which issued the impugned order for detention of the person who is arrayed as the petitioner. - 3.Petitioner's learned counsel made reference to different relevant dates and argued that the impugned order for detention cannot be further enforced and it is liable to be ## W.P.(C)No.31214/16 :-2-: annulled for one or more among the five grounds enumerated by the Apex Court in **Additional Secretary to the Government of India and others v. Alka Subhash Gadia and another [1992 Supp (1) SCC 496]** . In particular, he referred to the grounds stated in paragraph 30 of that precedent to buttress his submission that the detention order could be challenged at pre-detention stage when it is shown that it is passed on a wrong premise and on vague, extraneous and irrelevant grounds. Reference was also made to the ratio of the judgments in **Subhash Popatlal Dave-I v. Union of India [(2012)7 SCC 533]** and **Subhash Popatlal Dave-II v. Union of India [(2014)1 SCC 280]** . - 4.The learned State Attorney pointed out that the contents of Clause 5 of Article 22 of the Constitution clearly tend to show that the detention order in the case in hand cannot be challenged at pre-execution stage. He takes this stand on the plea that the two grounds mentioned as available to the petitioner from **Alka Subhash Gadia** (supra) are not applicable to the case in hand. ## W.P.(C)No.31214/16 :-3-: - 5.An occurrence was detected on 9.11.2013 by the Officers, enforcing provisions of the Customs Act, 1962 and other relevant statutes. Certain persons were arrested. On 13.11.2013, there was a search in the residential premises of the petitioner, in India. The sponsoring authority's recommendation was received by the detaining authority on 7.1.2014. The detention order was issued on 15.3.2014. The fact of the matter remains that the detention order was not enforced evidently, because the petitioner remains out of India. - 6.As noted in **Dave-II** (supra), the legislature was conscious of the fact that it can happen in some cases that the execution of the preventive detention order could be scuttled by the proposed detenu either by concealing himself or by absconding from the process of law. This is among the rationale behind the introduction of Section 7 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, “COFEPOSA Act”, for short, as it now stands; as enunciated by Their Lordships through the **Dave-II** (supra). ## W.P.(C)No.31214/16 :-4-: - 7.We also have to bear in mind the word of 'caution', sounded through the judgment in **Dave-II** (supra) that every Judge of constitutional courts vested with the authority to adjudicate the legality of any State action challenged on the ground that such action is inconsistent with civil liberties guaranteed under the Constitution, must always keep in mind while exercising such authority, the prescribed principle quoted in that judgment from **American Communications Association v. Douds** - **[339 US 382 (1950)]** , which reads as follows: - “The task of this Court to maintain a balance between liberty and authority is never done, because new conditions today upset the equilibriums of yesterday. The see-saw between freedom and power makes up most of the history of governments, which, as Bryce points out, on a long view consists of repeating a painful cycle from anarchy to tyranny and back again. The court's day-to-day task is to reject as false, claims in the name of civil liberty which, if granted, would paralyse or impair authority to defend existence of our society, and to reject as false claims in the name of security which would undermine our freedoms and open the way to oppression.” - 8.Bearing the aforesaid in mind and also taking a cue from the fact that the grounds of detention would always relate to ## W.P.(C)No.31214/16 :-5-: different components attributed to the conduct of the proposed detenu, we see that the specious argument that the live link is lost from the date of the so-called detection on 9.11.2013 or from 13.11.2013, i.e., the date of search, does not hold good. We say this because, the mere fact that the detaining authority took around 1½ months to conclude on the request of the sponsoring authority would not by itself deprive the potency of the sponsor's view or the conclusion that the detaining authority had arrived at, on the basis of the materials which the sponsoring authority relied upon. - 9.The 'live link connectivity theory', from the date of last prejudicial activity to the date of detention or to the date of passing of the detention order, may be relevant in some cases. But, in matters where it is predominantly apparent that the activity attributed to the petitioner involves multi-national efforts across the frontiers of the Nation, it cannot be easily said that the live link is lost merely because of the passage of time or the non-availability of the person within the Indian jurisdiction. ## W.P.(C)No.31214/16 :-6-: 10.As already noted, the fact that the petitioner is out of India, may itself be the reason for the delay in executing the detention order. The counter affidavits on behalf of the Departments show that after the issuance of the detention order, all actions were taken under Section 7 of the COFEPOSA Act, including by issuance of appropriate process, also with publication calling for appearance of the petitioner to surrender. The properties of the petitioner have also been put to attachment and other distress action under the provisions of Cr.P.C. Hence, the time from the date of the so-called prejudicial activity on 9.11.2013 and the detention order on 15.3.2014; or the still shorter period from the date of search on 13.11.2013, till the date of the detention order; cannot be treated as any cognizable delay to hold that the impugned detention order has diffused itself by passage of time or that the said order of detention has been rendered stale with passage of time. - 11.The challenge levied against the impugned preventive detention order under COFEPOSA Act is unsustainable, though it is yet to be executed. This writ petition therefore fails. W.P.(C)No.31214/16 :-7-: In the result, this writ petition is dismissed. Sd/- **THOTTATHIL B.RADHAKRISHNAN JUDGE** Sd/- **DEVAN RAMACHANDRAN JUDGE** ami/15.11.16 //True copy// P.A.to Judge