IMPORTANT POINTS
The confusion created in the mind of the detenu, by the mere service of the three documents, without even a covering letter disclosing the purpose for which it was served, vitiated the order. It was observed that unlike punitive incarceration after a full fledged trial; preventive detention is on the subjective satisfaction of the detaining authority, which requires strict compliance of procedural safeguards. A casual or random approach leads to infringement of these safeguards, thus vitiating the very order of detention.

JUDGMENT :

VINOD CHANDRAN, J.

1. The wife of a detenu and the father of another detenu is before us challenging the detention under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 [for brevity "COFEPOSA Act"]. The wife had unsuccessfully challenged her husband-Faisal's earlier detention, on similar allegations, which stood confirmed in W.P(Crl.) No.351 of 2017. Faisal, undeterred, has been again indulging in smuggling activities, asserts the Directorate of Revenue Intelligence ['DRI' for brevity] and the Union of India, respectively the detaining and affirming authority under the COFEPOSA Act. The other detenu, Adnan Khalid, is an operative of Faisal, who was caught at the Airport, though not red- handed, allegedly passing on the contraband, to a Customs official. The parties have various contentions, which are almost similar in nature. We refer to the detenu by their names and the official respondents as detaining authority and the Union of India, in the judgment.

2. We have heard Sri.M.Ajay on behalf of Faisal and Sri.P.A.Augustian on behalf of Adnan Khalid. Central Government Counsel Sri.S.Manu argues for the detaining authority and Sri.Jaishankar V.Nair, CGC for the Union of India and the 2nd respondent.

3. Sri.M.Ajay specifically put forth his grounds of challenge with reference to the memorandum. It is argued that there is clear failure to supply documents that were relied on in the detention order produced at Exhibit P2 in his writ petition and also those further documents essential for a proper consideration by the Advisory Board, as sought for in Exhibit P13. Exhibit P13 has been rejected curtly and without any grace, mistaking it as a representation, while it was a request for supply of documents. Stress is laid on non-supply of CCTV footage, which is the crucial link establishing the seizure of the contraband at the Airport, which gave rise to the summoning of Faisal and other persons and resulted in their preventive detention. It is urged that the CCTV footage ought to have been supplied and facilities provided to view it. Curiously, mere printouts which were undecipherable, were supplied along with the documents. The printouts of the footage purportedly showing Adnan Khalid and the officer of the Customs, who is alleged to have stealthily obtained the contraband from Adnan Khalid and hid it in his body, was a completely dark photo copy.

4. Reference is made to the documents supplied, which were handed over across the Bar, which also contains the original seal of the detaining authority. It is contended that a mere reading of the detention order would indicate that the detaining authority has completely gone by the surmises and conjectures made by the sponsoring authority and there is total absence of application of mind. The satisfaction to be entered by the detaining authority, in the case of preventive detention though subjective, it should emanate from the records available before the detaining authority. The detention orders are vitiated for total non application of mind.

5. With considerable force it is argued that the detaining authority has to provide the detenu his valuable right to make representation under Article 22 of the Constitution, an effective one, which has not been done. This is accentuated by the curtailment of the liberty and freedom of an individual, on subjective satisfaction of an authority of the Central Government, the sole basis for the detention. The expediency with which the representation has to be considered is also urged. Reference was made to the decisions of the Apex Court, which held that when the matter is referred to an Advisory Board, the Government should await the decision of the Board before consideration of a representation. It is submitted that the declaration was made first in a case, in which the advise was received in the morning of a day, when the Board was scheduled to meet at noon on the same day. There could never be a delay in consi