G. Francis S/O John Lopez v. Secretary, Home Department, Government of Kerala & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE ASHOK MENON** **FRIDAY, THE 20TH DAY OF JULY 2018 / 29TH ASHADHA, 1940 WP(C).No. 20170 of 2018(U) ---------------------------** **PETITIONER(S): -------------** **G. FRANCIS S/O.JOHN LOPEZ, CHRISTHURAJ NIVAS, NILAMEL, NEYYATTINKARA, THIRUVANANTHAPURAM.** **BY ADVS.SRI.CLARANCE MIRANDA SRI.K.PRAMOD** ## **RESPONDENT(S):** ## **-------------** **1. SECRETARY, HOME DEPARTMENT GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695001.** **2. UNDER SECRETARY, HOME(SSA) DEPARTMENT, GOVERNMENT OF KERALA,** - **THIRUVANANTHAPURAM-695001.** **3. SUPERINTENDENT OF CUSTOMS, CUSTOMS PREVENTIVE UNIT, NCU, THIRUVANANTHAPURAM-695001.** **4. INSPECTOR OF CENTRAL EXCISE, CUSTOMS PREVENTIVE AND INTELLIGENCE UNIT, DIVISIONAL OFFICE, THIRUVANANTHAPURAM-695001.** **R1&R2 BY ADDL.DGP SRI.SURESH BABU THOMAS R1-R2 BY SR. GOVERNMENT PLEADER SRI.K.A.ANUS R3-R4 BY ADV. SRI.P.R.SREEJITH, SC, CENTRAL BOARD OF EXCISE AND CUSTOMS R3-R4 BY ADV.SRI.SREELAL N.WARRIER,SC,CENTRAL BOARD OF EXCISE AND CUSTOMS** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 20170 of 2018 (U)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS: ------------------------** **EXHIBIT P1 COPY OF DETENTION ORDER DATED 21/07/1993 RECEIVED UNDER THE RIGHT TO INFORMATION ACT 2005. EXHIBIT P2 READABLE COPY OF EXHIBIT P1 RESPONDENT(S)' EXHIBITS: ----------------------EXHIBIT R1(A) COPY OF THE COMMUNICATION DATED 22.07.1993 SENT BY THE GOVERNMENT EXHIBIT R1(B) COPY OF REPLY DATED 16.08.1993 OF THE UNDER SECRETARY, ON BEHALF OF THE CENTRAL GOVERNMENT. EXHIBIT R1(C) COPY OF THE GOVERNMENT NOTIFICATION NO.38011/SSA1/93/ HOME DATED 18.09.1993, PUBLISHED AS SRO NO.1492/92 DATED 18.09.1993. EXHIBIT R1(D) COPY OF THE REPORT SUBMITTED BY THE GOVERNMENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, NEYYATTINKARA U.S 8(1)(a) OF PITNDPS ACT EXHIBIT R1(E) COPY OF THE COMMUNICATION FROM THE OFFICE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, NEYYATTINKARA. EXHIBIT R1(F) COPY OF THE DIRECTIONS GIVEN TO THE THEN SUPERINTENDENT OF POLICE, THIRUVANANTHAPURAM RURAL.** **/TRUE COPY/** **PA TO JUDGE** _**dkr**_ ## K.VINOD CHANDRAN & ASHOK MENON, JJ. ------------------------------------------- W.P.(C) No. 20170 of 2018 ------------------------------------------Dated this the 20[th] day of July, 2018 ## J U D G M E N T Vinod Chandran, J. A peculiar case in which the detention was not executed for more than 25 years, raises certain interesting questions as to whether the High Court under Article 226 could interfere with the order merely for reason of the delay occasioned. 2. The learned Counsel for the petitioner, on facts, submits that the petitioner along with two other persons were apprehended by the Customs authorities in the premises of a hotel and was booked under the Narcotic Drugs and Psychotropic Substances Act, 1988 for having been in possession of Hashish Oil, intended for sale within the State. On the basis of the recommendation made by the Customs authorities, the State Government had passed the detention order. Two of the accused were apprehended and had already served the detention. The petitioner herein absconded. The trial in the case proceeded and the 1[st] accused was acquitted _WP(C)20170/2018_ 2 holding that the mandatory formalities have been violated. The 2[nd] accused, the petitioner, having absconded, the case was split up and numbered as long pending. The 3[rd] accused died in the year 2015. The petitioner, after surfacing, approached this Court with a petition under Section 482 of the Criminal Procedure Code to quash the complaint against him on the ground of the 1[st] accused having been acquitted in appeal; finding violation of mandatory provisions. This Court in Crl.M.C.No.7722/2016 declined the prayer and directed the petitioner to face trial. The petitioner was released on bail when he was confronted with the detention order in the year 1993, which he seeks to challenge in the present Writ Petition. 3. The learned Counsel for the petitioner submits that the detention order has outlived its validity, by sheer passage of time and there is clear absence of a live proximate link with the alleged activity and the detention, which is a deterrent measure to ensure no further like activity being carried on. It is also argued that there could be no detention now carried out, at this distance of time, without a fresh application of mind. The learned Counsel placed before us (1992) Supp.(1) SCC 496, Addl.Secretary to Government _WP(C)20170/2018_ 3 of India v. Alka Subhash Gadia , wherein the Honourable Supreme Court has laid down specifically the grounds on which there could be interference to the detention orders at the pre-execution stage. Reliance is placed on (2008) 16 SCC 14, Deepak Bajaj v. State of Maharashtra , to argue that the Apex Court, noticing Alka Subhash; expanded the power in so far as declaring it to be not limited only to the grounds mentioned therein. The learned Counsel has relied also on 2010 (2) KHC 923, Mohammad Sajeeb v. State of Kerala, a bench decision of this Court. 4. The learned Government Pleader would argue that the delay cannot vitiate the detention order, passed under Section 4 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (for brevity “PITNDPS Act”). Section 4 enables detention orders to be executed in the same manner as provided for execution of warrant of arrest under the Cr.P.C. Reference is also made to Section 70 of the Cr.P.C. to assert that, as in the case of a warrant, the detention order remains in force unless it is cancelled by the appropriate authority, who issued it. The learned Government Pleader would persuade us not to interfere with the _WP(C)20170/2018_ 4 detention order despite the long delay. The learned Government Pleader relied on (2004) 3 SCC 289, Hare Ram Pandey v. State of Bihar , in which the Honourable Supreme Court has spoken of the manner in which a challenge to a detention order ought to be looked at, in the pre-execution stage, even when there is delay, unexplained or not. The learned Standing Counsel appearing for the Sponsoring Authority also submits that the delay was occasioned only by reason of the conscious act of the petitioner, who absconded both from the trial proceedings as also from the detention order. The petitioner cannot take shelter under his own misdeeds and contumacious conduct to nullify a detention order, which was passed after due consideration of the facts and circumstances. 5. The learned Counsel for the petitioner has a contention that the petitioner was of a unstable mind and he had not absconded willfully. The petitioner had roamed around and had merely come back to his home after a long period, when he was confronted with the fact that there is a detention order pending against him issued 25 years back. As we see from the precedents placed before us, the interference at the pre-execution stage to a _WP(C)20170/2018_ 5 detention order passed by the appropriate Government can be only in special circumstances. We also have to notice that there is absolutely no evidence placed on record by the petitioner as to whether he had actually suffered from any mental illness or that he had not willfully absconded. 6 . Alka Subhash , was concerned with a detention order interfered with by the High Court before it was served. An order of detention was passed against the husband of Alka Subhash, before execution of which he absconded. A notice was issued to show cause why his properties shall not be forfeited to the Central Government, which was served on his wife, who challenged it before the High Court and sought for the detention order, to make a proper challenge. The High Court found that the detention order could be challenged though it was not served on the proposed detenue and there could be a pre-execution challenge made to it. The Honourable Supreme Court, reversing the High Court, specifically declared that the jurisdiction under Articles 226 and 32; discretionary in nature, would not be exercised in a case where the proposed detenue successfully evaded service of the order. The _WP(C)20170/2018_ 6 Honourable Supreme Court also listed out the grounds on which interference is possible at the pre-execution stage, which are as follows: - “(i) that the impugned order is not passed under the Act which it is purported to have been passed. - (ii) that it is sought to be executed against a wrong person - (iii) that it is passed for a wrong purpose. - (iv) that it is passed on vague, extraneous and irrelevant grounds, or - (v) that the authority which passed it had no authority to do so.” 7. In Deepak Bajaj , a two Judge Bench of the Apex Court held that the grounds enumerated in Alka Subhash; a three Judge Bench decision, are only illustrative and not exhaustive. In that case, the interference caused was on the ground of the confessions made by certain persons, which were later retracted from and the retractions intimated to the Director of Revenue Intelligence (DRI). The DRI belonged to the same Department as the Sponsoring Authority and such retractions were never communicated to the Sponsoring Authority. The fact that the very basis for initiating the detention by the Sponsoring Authority; the confessions having been retracted had not been intimated to the Sponsoring Authority was the ground on which interference was caused to the detention order _WP(C)20170/2018_ 7 at the pre-execution stage in Deepak Bajaj . The Division Bench of this Court in Muhammad Sajeeb also interfered with the detention order on the basis of delay, but however, after the detenue was arrested and detained in execution of the order of detention. Hare Ram Pandey relied on by the learned Government Pleader also was concerned with the delay in execution of a detention order only by reason of the anticipated detenue having taken various dilatory tactics to evade service and thus deflect the cause of justice. Therein a detention order of 1995 was challenged in the High Court in the year 1997. Hare Ram Pandey is an authority for the proposition that even in cases of delay in execution of a detention order, the detenue has to necessarily surrender and then take recourse to the remedy of a representation before the appropriate Government under Article 22(5). 8. Alka Subhash reiterated the principle that judicial scrutiny, of a legislation or an administrative order passed, is a part of the basic structure of the Constitution and no order is above judicial scrutiny; even an order of preventive detention. However, it was also remembered that the Parliament could, without violating _WP(C)20170/2018_ 8 the basic structure provide for an alternative institutional mechanism or authority for judicial review. Attempting to reconcile the very valuable and sacrosanct right of liberty of an individual as against the threatened interests of the society and security of the State; particularly in times of peace, it was held so: “ _however vital and sacred the liberty of the individual, for reasons which need not be discussed over again here, the responsible framers of the Constitution although fully conscious of its implications have made a provision for making a law which may deprive an individual of his liberty without first disclosing to him the grounds of such deprivation.”(sic- para 29)_ 9. The general trend we discern from the line of decisions cited before us is that the well accepted principles of self-restrain, in exercising the discretionary power conferred under Article 226 applies squarely even in the case of a preventive detention order before it is executed. The delay in execution, especially on account of the deliberate attempt to evade service and thus refusal to first succumb to the detention order and take recourse to the remedy of a representation under Article 22(5), would not by itself vitiate the order. A person cannot be permitted to take advantage of his own wrongs and a proposed detenue cannot after successfully evading _WP(C)20170/2018_ 9 service of a detention order challenge it on grounds alone of delay in execution; which was of his own making thus defeating the very purpose of a preventive detention order. 10. Even then what assumes significance in the present case is the delay of 25 years which occurred in execution of the detention order. We are not inclined to take the view that the petitioner had not willingly absconded from the trial as also from the execution of the detention order. Be that as it may, we cannot, but, hold that in the facts and circumstances, there necessarily has to be a fresh consideration and an application of mind as to the circumstances existing now as also the antecedents of the petitioner. Considering the very long delay of 25 years and there being no instance of the petitioner having been apprehended for any like offence in the ensuing years, we are of the opinion that the facts and circumstances of this case justify a direction to the Government to consider the representation, even before the detention order is made effective. The counter-affidavit also does not speak of a necessity to execute the order post-haste at this distance of time, on facts or antecedents of the petitioner as existing at present. The _WP(C)20170/2018_ 10 petitioner was also at large and freely moving around for the last two years; as evidenced by the attempt to get quashed the charge against him by the filing of the petition under Section 482 of the Cr.P.C.; in the year 2016. The petitioner being unsuccessful had also appeared before the jurisdictional Court and was released on bail. 11. We notice Section 12 of the PITNDPS Act which confers power on the Government to revoke a detention order at any time. Necessarily, the Government in so considering the representation made by the petitioner, shall take the opinion of the Sponsoring Authority and also the opinion of the District Police Chief under whose jurisdiction the petitioner now resides. In such circumstances, we direct the petitioner to make a representation disclosing the residential address of the petitioner, where he normally resides, within a period of two weeks from the date of receipt of certified copy of the judgment. The Government shall consider the representation within a period of one month from the date of receipt of the same. It is also made clear that if such a representation is not filed within the stipulated time, the authorities would be entitled to bring to effect the detention order. We _WP(C)20170/2018_ 11 perfectly realise that at the pre-execution stage, there is no right conferred on the detenue to make a representation, but we only direct such representation be made, so as to invoke the power under Section 12 of the PITNDPS Act; also looking at the peculiar facts and circumstances of the case. The impugned order shall be kept in abeyance till the consideration is made in accordance with our directions. We also make it clear that the proceedings initiated under the Cr.P.C. for reason of the petitioner having absconded to defeat the detention order shall not be affected by the orders passed by us. The Writ Petition is disposed of. No order as to costs. Sd/K. VINOD CHANDRAN Judge Sd/ASHOK MENON Judge dkr