Hiromasa v. The Principal Secretary to the Government, Department of Home, Government Secretariat, Trivandrum; Additional Director, Directorate of Revenue Intelligence; Senior Intelligence Officer, Directorate of Revenue Intelligence

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR WEDNESDAY, THE 16TH DAY OF JULY 2014/25TH ASHADHA, 1936 WP(C).No. 8917 of 2014 (L) --------------------------- PETITIONER(S): -------------------------- HIROMASA, AGED 22 YEARS D/O.SEBASTIAN, VARIKKAMAKKAL HOUSE, CHETTAPALAM P.O. PULPALLY, WAYANAD DISTRICT. BY ADVS.SRI.V.V.RAJA SRI.M.T.SURESHKUMAR RESPONDENTS: ----------- 1. THE PRINCIPAL SECRTARY TO THE GOVERNMENT, DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT, TRIVANDRUM PIN-695001. 2. THE ADDITIONAL DIRECTOR, DIRECTORATE OF REVENUE INTELLIGENCE, PALARIVATTOM COCHIN, PIN-682025. 3. THE SENIOR INTELLIGENCE OFFICER, DIRECTORATE OF REVENUE INTELLIGENCE, CALICUT PIN-673001. BY SRI.C.P.UDAYABHANU SRI. K.A. ABDUL RASHEED, ADGP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 8917 of 2014 (L) --------------------------- ## **APPENDIX** PETITIONER'S EXHIBITS : ---------------------- P1: COPY OF THE ARREST MEMO ISSUED BY THE 3RD RESPONDENT DATED, 9.11.2013. P2: COPY OF THE OCCURRENCE REPORT SUBMITTED BY THE 3RD RESPONDENT BEFORE THE A.C.J.M.(E.O), ERNAKULAM DATED 9.11.2013. P3: COPY OF THE COMMON ORDER DT.21.12.2013 IN CRL.M.C.NO.2360/2013 OF THE SESSIONS COURT, ERNAKULAM. P4: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT DATED 7.1.2014. RESPONDENTS' EXHIBITS: -------------------- R1(a) : A PHOTOCOPY OF THE MAHAZAR DATED 08.11.2013. R1(b) : A PHOTOCOPY OF THE STATEMENT OF THE PETITIONER DATED 08.11.2013. R1(c) : A PHOTOCOPY OF THE STATEMENT OF MS.RAHILA DATED 08.11.2013 RECORDED UNDER SECTION 108 OF THE CUSTOMS ACT,5. R1(d) : A PHTOCOPY OF THE MEDICAL REPORT OF M.HIROMASA DATED 09.11.2013. R1(e) : A PHOTOCOPY OF THE APPLICATION FOR REMAND FILED BEFORE THE HON'BLE ADDITIONAL CHIEF JUDICIAL MAGISTRATE (ECONOMIC OFFENCES), ERNAKULAM ON 09.11.2013 AND REMAND ORDER DATED 09.11.2013. R1(f) : A PHTOCOPY OF THE STATEMENT OF SHRI.SHAHBAS R1(g) : A PHTOCOPY OF THE RECOMMENDATION OF DIRECTORATE OF REVENUE INTELLIGENCE. R1(h) : A PHTOCOPY OF THE DETENTION ORDER NO.17033/SSA4/2014/HOME DATED 25.02.2014. R1(i) : A PHTOCOPY OF THE REPLY TO THE REPRESENTATION VIDE LETTER NO.5081/SS.A4/2014/HOME DATED 06.02.2014. //TRUE COPY// P.A. TO JUDGE ## **THOTTATHIL B.RADHAKRISHNAN & P.B.SURESH KUMAR, JJ.** ----------------------------------------------W.P.(C) Nos. 8917 and 8946 of 2014 ----------------------------------------------Dated this the 16[th] day of July, 2014 ## **J u d g m e n t** ## **Thottathil B. Radhakrishnan,J.** These writ petitions are filed by two persons facing detention orders under the provisions of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, hereinafter called the “COFEPOSA Act”. The challenge extended is at the pre-detention stage. At the time of admission, it was demonstrated with the materials on record that both of them stood covered by bail orders granted by the Court of Session on conditions restricting their movement and other conditions. The Division Bench admitting these matters had granted interlocutory orders permitting the petitioners to be away from detention in terms of the COFEPOSA Act as per the proposed preventive detention orders. Those interlocutory orders have been W.P.(C) 8917/ 2014 & con.case 2 issued by this Court on conditions which are more stringent than that imposed by the Court of Session in the bail orders. 2. During the course of the hearing of these matters on three different occasions, the cardinal points that were placed for consideration can be enumerated as follows: - 1) Does the detaining authority have the right to deny the proposed detenue the order of detention and the grounds on which the said order has been made until the detention order is actually executed ? - 2) What are the grounds available to challenge a preventive detention order at the pre-execution stage ? - 3) In the course of the challenge to the pre-detention order at the pre-execution stage, will it be open to the High Court to direct the detaining authority to disclose the order of detention and the grounds therefor and thereby open up the scope of the attack to be enlarged to other grounds as well? 3. On the basis of the different submissions made by W.P.(C) 8917/ 2014 & con.case 3 the learned counsel appearing for the petitioners, the learned Additional Director General of Prosecution and the learned Special Public Prosecutor for the Directorate of Revenue Intelligence, we think that the issue as to whether the detenue has to actually suffer the enforcement of the detention order to be given its copy and also the grounds for detention is not an issue conclusively decided in the two judgments rendered in relation to **Subhash Popatlal Dave v. Union of India** [ **(2012)7 SCC 533** ] and **Subhash Popatlal Dave v. Union of India** [ **(2014)1 SCC 280** ] and in the case of **Gimik Piotr v. State of Tamilnadu and others [2010 KHC 6043]** as well as **Additional Secretary to the Government of India and others v. Alka Subhash Gadia and another** [ **1992 Supp (1) SCC 496** ] and **Deepak Bajaj v. State of Maharashtra and another [2009 KHC 4327** ]. While the learned Additional Director General of Prosecution has attempted to say that the clear content of Clause 5 of Article 22 of the W.P.(C) 8917/ 2014 & con.case 4 Constitution includes an embargo to the detaining authority issuing the detention order and grounds of detention at any point of time before the actual execution of the detention order, we think that the said issue requires deeper consideration. This cannot be concluded merely because in one of the judgments referred to above, the Lordship of the Apex Court has concluded that one cannot utilise the provisions of the Right to Information Act, 2005 to access such information. The contextual content of Article 22(5) and the guarantee extended to the detenue thereby have to be considered from different angles. However, we think that it is not necessary for us to finally speak on that now since the interim order granted to the petitioners in these cases by the Division Bench has carried the case further and decision on certain question may sometimes academic and not necessarily required to render justice to the parties in the cases in hand. 4. Obviously, without a copy of the detention order W.P.(C) 8917/ 2014 & con.case 5 and the grounds of detention being served on the proposed detenue, it would be inconceivable that we should proceed to hear the matter on grounds as to the contents of the detention order or its grounds. The question as to whether there is due and fair application of mind by the detaining authority on the proposal of the sponsoring authority is also an issue that would fall within this class of arguments. 5. For the present, it would suffice that we treat these two cases as special situations and order that the detention orders and the grounds of detention of the petitioners be served on them on or before 31.07.2014. To enable the petitioners to seek remedy if any available to them, in accordance with law, as against the detention orders and grounds of detention, we make the interlocutory orders granted in these writ petitions absolute on the same terms until the 31[st] of August, 2014. This will be notwithstanding any of the terms and conditions imposed by the Court of Session in the bail orders issued to the W.P.(C) 8917/ 2014 & con.case 6 petitioners herein. We clarify that the procedure that we adopt in this case is only for the purpose of this case and in the very peculiar facts and circumstances noted above and is not an indication of any decision having been rendered by us touching the legal issues that were placed for consideration in relation to Article 22(5) of the Constitution, the provisions of the COFEPOSA Act, the Customs Act and other aspects of the preventive detention orders. Writ petitions are disposed of as above. Sd/- ## **THOTTATHIL B.RADHAKRISHNAN, JUDGE** Sd/- **P.B.SURESH KUMAR, JUDGE** smv