P.G. Ajithkumar, J.

1. The Joint Secretary to the Government of India in the Ministry of Finance (Department of Revenue) on 27.09.2019 in exercise of the powers under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for brevity 'the COFEPOSA Act') issued Ext. P1 ordering to detain Sri Abdul Hakkeem P.P. @ Abdul Hakkim P.P. and keep him in custody in the Central Prison and Correctional Home, Thiruvananthapuram. The order was executed on 28.12.2021. In compliance with the provisions of Section 3(3) of the COFEPOSA Act read with Clause (5) of Article 22 of the Constitution of India the grounds of detention along with the documents mentioned and relied upon therein were communicated to the detenu. On receipt of the detention order and the grounds of detention, the detenu submitted representation dated 27.01.2022 to the Joint Secretary (COFEPOSA) and to the Central Government addressed to the Director General, Central Economic Intelligence Bureau. The representations were rejected on 04.02.2022 and 29.03.2022, respectively. Thereupon this Writ Petition under Article 226 of the Constitution of India has been filed, on behalf of the detenu, by his brother.

2. This writ petition was admitted on 08.04.2022. The learned Central Government Counsel entered appearance for respondent Nos. 1 to 3. The Deputy Solicitor General of India took notice for the 4th respondent and the learned Government Pleader took notice for the 5th respondent.

3. A counter affidavit dated 19.05.2022 on behalf of respondent Nos. 1 to 3 was placed on record by the Deputy Secretary to the Government of India, Central Economic Intelligence Bureau, Department of Revenue, Ministry of Finance. A counter affidavit dated 24.05.2022 for the 4th respondent was placed on record through Deputy Solicitor General of India. The petitioner has filed a reply affidavit dated 29.06.2022 in answer to the counter affidavits filed on behalf of respondent Nos. 1 to 4.

4. Heard the learned counsel appearing for the petitioner, the learned Deputy Solicitor General of India, the Central Government Counsel and also the learned Government Pleader. Perused the records relating to the whole procedure, which are made available through the learned Central Government Counsel.

5. Following the arrest of Smt. Sareena Shaji and Sri M. Sunil Kumar, and seizure from their possession 24998.61 grams of gold worth Rs. 8,17,45,455/- on 13.05.2019 by the officers of the Revenue Intelligence, Thiruvananthapuram and the ensued investigation, the action against the detenu was initiated.

6. The sequels leading to the action for detention of the detenu are the following:

Based on specific intelligence, two passengers viz. Shri Sunil Kumar Mohanakumaran Thampi and Smt. Sareena Shaji, who arrived at Trivandrum International Airport on 13.05.2019 from Dubai were intercepted at the exit gate of Customs Arrival Hall by the officers of DRI. Their baggage were searched. From the two hand baggage of Shri Sunil Kumar 25 numbers of Gold bars of 24 Carat purity, totally weighing 24998.61 grams valued at Rs. 8,17,45,455/- were seized and from the hand baggage of Smt. Sareena Shaji seized a Declaration Receipt made before Dubai Customs in respect of 24 Kgs. of gold in her name. Voluntary statements of both Shri Sunil Kumar Mohanakumaran Thampi and Smt. Sareena Shaji were recorded under Section 108 of the Customs Act, 1962, wherein both of them admitted those facts and revealed that they were members of a smuggling syndicate which smuggled gold through Thiruvananthapuram International Airport. Smt. Sareena Shaji admitted that gold was being smuggled with the help of a Customs Officer and that gold was being smuggled for one Hakkeem, a native of Malappuram. Whereabouts of Shri Hakkeem were claimed traced and it was revealed that Shri Abdul Hakkeem P.P., the detenu, was working as Manager of a wholesale jewellery firm viz M/s. PPM Chains in Thiruvananthapuram, and that he is the nephew of Sri Muhammed Ali Haji P.P., Director of the firm M/s. PPM Chains.

7. Based on such revelations summons was repeatedly issued to the detenu to appear for the purpose of investigation. Two summons sent to him by post were returned with the endorsements, "absent. intimation notice served", and "no such person". During the period he filed an application before this Court for anticipatory bail. But the same was dismissed as withdrawn.

8. The Sponsoring Authority on 06.09.2019 submitted a recommendation for detention of 13 persons under Section 3(1) of the COFEPOSA Act stating to have involved in the smuggling transaction in question. The Detaining Authority on 27.09.2019 holding that there is propensity and potentiality for smuggling goods, abetting the smuggling of goods and dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods by 8 persons among them, issued an orders for their detention, one among whom is Sri Abdul Hakkim P.P., the detainee herein.

9. The order of detention was not executed soon. Show cause notice dated 07.11.2019 issued to the detenu was received by his brother and father jointly. The postal authorities returned the summons with an endorsement 'Absent. Intimation to father'. Notice asking the detinue to appear was published in the Official Gazette as well as News Papers having circulation in Malappuram and Thiruvananthapuram Districts. The detenu, despite issuing repeated summons and show cause notices and publications, did not oblige. It is stated that all the efforts to enforce his attendance failed. Hence the order of detention could not be executed in time. On the direction of the Detaining Authority, the Sponsoring Authority filed a petition on 23.11.2020 before the Judicial Magistrate of the First Class-I, Parappanangadi under Section 7 of the COFEPOSA Act for initiating proceedings to declare him absconding as provided in Section 82 of the Code of Criminal Procedure, 1973 and to take the necessary follow up action. While the said proceedings were in progress, Kerala Police executed the detention order and Sri Abdul Hakkim P.P. was lodged in the Central Prison and Correctional Home, Thiruvananthapuram on 28.12.2021.

10. On 30.12.2021, the grounds for detention and copies of relied upon documents (RUDs) were furnished to the detenu. On 17.01.2022, the matter relating to detention was referred to the COFEPOSA Advisory Board as provided in Section 8 of the COFEPOSA Act. While so, on 28.01.2022, representation of the detenu dated 27.01.2022 to the 1st respondent, addressed to the Director General, Central Economic Intelligence Bureau was submitted. A similar representation was received by the Joint Secretary, COFEPOSA by email dated 28.01.2022 and by post on 31.01.2022. On 03.02.2022, the sponsoring authority submitted para wise comments on the representation to the detaining authority, the 2nd respondent. The Detaining Authority on 04.02.2022 rejected the representation of the detenu and communicated that fact to him.

11. The matter was placed before the COFEPOSA Advisory Board for its report under Section 8 of the Act on 17.01.2022. On 04.02.2022, the Detaining Authority forwarded the representation along with comments thereof to the Advisory Board. The Advisory Board forwarded its opinion to the Government on 11.03.2022. Upon consideration of the opinion of the Advisory Board, the Government confirmed detention of Sri Abdul Hakkim P.P. for one year from 28.12.2021. On 29.03.2022, the Government rejected the representation of the detenu dated 27.01.2022 and the detenu was intimated that fact on 30.03.2022.

12. The petitioner assails the order of detention, Ext. P1 on many grounds. The essential grounds for attack which are pursued by the learned counsel appearing for the petitioner are:

"i) All the necessary and relevant documents were not placed before the detaining authority for consideration and therefore the subjective satisfaction recorded by the authority is on the wrong premises and vitiated.

ii) The detaining authority took four months to pass the detention order.

iii) Delay in execution of the order of detention.

iv) Copies of all the relied upon and relevant documents were not furnished to the detenu.

v) There was inordinate delay in disposing of the representations submitted by the detenu.

Ground No. (i) - All relevant and necessary documents were not produced before the detaining authority."

13. In Gurdev Singh v. Union of India (2002) 1 SCC 545] the Apex Court held that the subjective satisfaction arrived at by the Detaining Authority shall be on consideration of all the relevant materials placed before it by the Sponsoring Authority. In that case, the detainee had no case that the Sponsoring Authority did not place before the Detaining Authority any material in its possession which is relevant and material for the purpose and such material, if considered by the Detaining Authority, might have resulted in taking a different view in the matter. The contention was that the Detaining Authority should have taken further steps before being satisfied that a case for detention under the COFEPOSA Act has been made out against the detenu. The Apex Court observed that whether the detention order suffers from non application of mind by the Detaining Authority is not a matter to be examined according to any straight jacket formula or set principles. It depends on the facts and circumstances of the case, the nature of the activities alleged against the detenu, the materials collected in support of such allegations, the propensity and potentiality of the detenu in indulging in such activities, etc. The Act does not lay down any set parameters for arriving at the subjective satisfaction by the Detaining Authority. It was accordingly held that keeping in view the purpose for which the enactment is made and the purpose it is intended to achieve, the Parliament in its wisdom, has not laid down any set standards for the Detaining Authority to decide whether an order of detention should be passed against a person. The matter is left to the subjective satisfaction of the Competent Authority".

14. In view of the said proposition of law, the scope of interference of this Court under Article 226 of the Constitution of India with an order of detention with reference to the merits or otherwise of the qualitative analysis made by the Detaining Authority before reaching its subjective satisfaction is very limited. This Court cannot sit in appeal on the order of detention. Bearing that in mind we proceed to consider this contention of the petitioner.

15. Following are the documents withheld or omitted to be produced before the Detaining Authority;

(1) CCTV footages on 13.05.2019 of the exit gate in the Airport, Thiruvananthapuram;

(2) Ext. P11; it is a copy of representation submitted by Smt. Sareena Shaji on 17.08.2019 which allegedly contain retraction of the confessions she made before the DRI authorities;

(3) Decision of the Principal Director General of DRI on the representation submitted by Sri M. Sunilkumar; and

(4) Copies of the complaint against DRI officials submitted by Smt. Sareena Shaji and Sri M. Sunil Kumar before the Magistrate at the time of their production.

16. The learned counsel for the petitioner would submit that the CCTV visuals on 13.05.2019 collected from the International Airport, Thiruvananthapuram is the most relevant document to establish the innocence of the detenu insofar as the alleged seizure was not at the exit gate as alleged instead, it was before Sri Sareena Shaji and Sri M. Sunil Kumar reached the customs clearance counter. It is contended that had those visuals been produced before the Detaining Authority there could not have been such a subjective satisfaction for the detention. Non-production of the visuals therefore is said to have vitiated Ext. P1.

17. Ext. P11 is a copy of representation said to have submitted by Smt. Sareena Shaji on 17.08.2019 to the Secretary, Ministry of Finance, Government of India as well as the Principal Director General of DRI, which allegedly contain retraction of the confessions she made before the DRI authorities. It is contended that non-consideration of Ext. P11 has also vitiated the subjective satisfaction arrived at by the authority.

18. The learned counsel would submit that the Principal Director General of DRI has considered all the relevant materials before taking a decision on the representation submitted by Sri M. Sunil Kumar. Since alleged seizure of gold from the possession of him and Smt. Sareena Shaji led to the initiation of proceedings, decision of the Principal Director General of DRI on the representation submitted by Sri M. Sunil Kumar has a decisive impact while taking a decision whether or not Sri Abdul Hakkeem was to be detained. Hence the same should have been part of the documents relied upon by the Sponsoring Authority. As regards the copies of the complaints said to have been submitted by Smt. Sareena Shaji and Sri M. Sunil Kumar against DRI officials before the Magistrate also similar contentions are raised by the learned counsel for the petitioner.

19. The learned Deputy Solicitor General of India opened up his submissions stating that this is the biggest ever haul of gold smuggling in the history of Kerala and a well knit syndicate had been working behind it. Regarding non-production of CCTV footage the learned DSGI submitted that, as averred in the counter affidavit of respondents 1 to 3, no such CCTV footage was in the custody of the Sponsoring Authority for being placed before the Detaining Authority. As regards Ext. P11, decision of the Principal Director General of DRI on the representation submitted by Sri M. Sunilkumar, and the complaints against DRI officials by Smt. Sareena Shaji and Sri M. Sunil Kumar also, a similar stand has been taken by the respondents.

20. Items No. 315 and 316 in the list of RUDs, Ext. P3 are the copies of orders of the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam directing the Commandant, CISF to produce CCTV visuals of 13.05.2019 before the Court. There is however, nothing on record to show that those visuals were ever given to the Sponsoring Authority. The definite stand taken by the respondents is that seizure of contraband from the possession of Smt. Sareena Shaji and Sr. M. Sunil Kumar was effected at the exit gate in the presence of independent witnesses and on preparing seizure mahazar. Statements of several witnesses were seen recorded in this regard and the copies placed before the Detaining Authority.

21. Section 80 of the Customs Act, 1962 says that a passenger who brought article which is dutiable or the import of which is prohibited can make a true declaration under Section 77, and in that case the officer may detain such article for the purpose of being returned to him on his leaving India. So, if the intention of Smt. Sareena Shaji and Sri M. Sunil Kumar was to declare possession of gold and take it back, and the seizure was before they reached the customs counter; the CCTV visuals of the exit counter would have relevance.

22. It may be noted that a declaration receipt made before Dubai Customs in respect of 24 Kgs. of gold bars was in the hand bag of Smt. Sareena Shaji, whereas the gold bars were seized from the hand baggage of Sri M. Sunil Kumar. That alone is enough to negate the contention of the petitioner. Their dubious intention of concealing the gold in their possession is writ large from that fact itself.

23. A perusal of Exts. P2 and P3 would reveal that all the relevant documents sufficient to establish seizure of the gold from the possession of Sri M. Sunil Kumar at the exit gate in the Airport have been placed before the Detaining Authority. Now, the allegation is regarding non production of CCTV visuals and three other documents which were never in the possession of the Sponsoring Authority. There is nothing on record to probabilise that those records/documents reached the possession of the Sponsoring Authority. Also, the learned counsel for the petitioner did not point out any fact or circumstance suggesting that on account of inaction on the part of the Sponsoring Authority such records/documents did not come to their possession.

24. In A. Sowkath Ali v. Union of India (2000) 7 SCC 148] the Apex Court considered the question whether withholding of a retraction statement where confession statement is produced would vitiate the decision of the Detaining Authority. The Apex Court held in Paragraph No. 20 of the said decision thus:

"20. There can be no doubt, it was not necessary, while considering the case of the petitioner-detenu, to place all or any of the document which is relevant relied in the proceedings of a co-accused, but where the Sponsoring Authority opts out of his own volition to place any document of the other co-detenu, not merely as a narration of fact but reiterating in details the confession made by him, then it cannot be said it would not prejudice the case of the detenu. If this has been done it was incumbent for the Sponsoring Authority to have placed their retraction also. xxxxx What was the necessity of reproducing the details of the confessional statement of another co-accused in the present case If the Sponsoring Authority would not have placed this then possibly no legal grievance could have been made by the detenu. But once the Sponsoring Authority having chosen to place the confessional statement, then it was incumbent on it to place the retraction also made by them. In our considered opinion, its non-placement affects the subjective satisfaction of the Detaining Authority. This Court has time and again laid down that the Sponsoring Authority should place all the relevant documents before the Detaining Authority. It should not withhold any such document based on his own opinion. All documents, which are relevant, which have bearing on the issue, which are likely to affect the mind of the Detaining Authority should be placed before him. Of course a document which has no link with the issue cannot be construed as relevant."

25. As pointed out above, CCTV visuals in question were not in the possession of the Sponsoring Authority. Regarding Ext. P11, the respondents contended that they did not come across such a document. Ext. P11 was produced by the petitioner. How the petitioner got that copy and whether it was really sent, etc. are not divulged. In the absence of anything further to show that such a representation was even submitted by Smt. Sareena Shaji, the contention of the respondents can only be believed. Further, in Prakash Chandra Mehta v. Commissioner and Secretary, Government of Kerala  (1985) Supp SCC 144] the Apex Court held that if there are other facts independent of the confessional statement which can reasonably lead to the subjective satisfaction, non-production of the retracted confessional statement does not invalidate the order of detention. So, non-production of Ext. P11 at any rate does not affect the legality of Ext. P1 detention order.

26. It is further contended that at the time of production before the Magistrate, Smt. Sareena Shaji and Sri Sunil Kumar complained against the DRI officials, but copies of such complaints were not submitted before the Detaining Authority or furnished to the detenu. In this regard, the submission of the respondents is that the complaints were not in writing or written down by the Magistrate and in the absence of such a document, the petitioner cannot have such a grievance. It is seen that Smt. Sareena Shaji and Sri M. Sunil Kumar were sent for medical examination by the Magistrate since they complained of ill treatment by DRI officials. But there is nothing on record to show that the Magistrate had received any written complaint or he had written down the complaint or had taken any proceedings in that matter. Every document relating to their production before the Magistrate, remand, etc. was included in the RUDs. In short, it cannot be said that there was such a document for a copy of which could be placed before the Detaining Authority.

27. Going by the law laid down in A. Sowkath Ali (supra), we are of the view that the contention of the petitioner regarding non submission of all the four documents cannot be countenanced. None of such documents was in the possession of the Sponsoring Authority. The petitioner could not substantiate that in the absence of such documents, the subjective satisfaction arrived at by the Detaining Authority is vitiated at least prima facie. We therefore hold that Ext. P1 order of detention is not liable to be set aside on the ground that the subjective satisfaction arrived at by the Detaining Authority is vitiated for want of consideration of the documents mentioned by the petitioner. The contention of the petitioner in that respect is rejected.

Ground No. (ii) - Delay in passing the order of detention

28. The allegation regarding the delay in issuing order of detention has been explained by respondent Nos. 1 to 4. The Detaining Authority after detailed consideration of all the relevant documents arrived at the conclusions constituting the grounds for detention and resultantly issued Ext. P1. Eight persons were ordered to be detained in connection with the same incident. The detailed narration of grounds for detention contained in Ext. P2 and voluminous documents enlisted in Ext. P3 would show that a detailed investigation was required before initiating steps under section 3(1) of the COFEPOSA Act against the detenu and his co-indictees. Many persons, including the detenu, did not appear before the authorities in time or ever, for the purpose of investigation despite issuing repeated notices/summons. The Detaining Authority was bound to consider all the connected documents before passing that common order. After considering the chronology of incidents from 13.05.2019, the date of arrest and seizure till the culmination of the proceedings for issuance of the detention order on 27.09.2019, we are convinced that there occurred no unjustified delay.

29. In Waheeda Ashraf and others v. Union of India and others ILR 2021 (3) Ker 751], this Court held by placing reliance on the judgment of the Apex Court in Malwa Shah v. State of West Bengal (1974) 4 SCC 127] that delay in issuing the order of detention by itself is not fatal to the order. The contention of the petitioner in this regard is therefore rejected.

Ground No. (iii) - Delay in execution of the order of detention.

30. The order of detention was passed on 27.09.2019. The date of detention is 28.12.2021. Certainly there is delay. The respondents explained the delay by contending that DRI officials took all possible efforts to apprehend the detenu. But only because he absconded from the process of law, the order of detention could not be executed. The respondents would contend that the Sponsoring Authority initiated steps for declaring the detenu absconding and the follow up steps of attachment of his property as provided in Sections 82, 83, 84, 85 and 87 of the Code as allowed under Section 7 of the COFEPOSA Act. From a perusal of the file, it is seen that the order directing surrender which obliges the detenu to appear before the police authorities for execution was published in two newspapers; one in Malayalam and the other in English, besides the Gazette notification. Despite all such efforts, the detenu eluded from the process of law.

31. The contentions of the petitioner on the other hand is that he was very much available in his house and he pointed out the following aspects in support of that plea:

1) he cast vote in Assembly elections;

2) he took COVID vaccination;

3) he received the Show Cause Notice and appeared through lawyer in the Adjudication Proceedings;

4) he was taking care of his pregnant wife; and

5) he himself surrendered before the Police.

32. In Bhawarlal Ganeshmalji v. State of Tamil Nadu (1979) 1 SCC 465], the Apex Court explained that there must be a live and proximate link between the grounds of detention alleged by the Detaining Authority and the purpose of detention, namely, prevention of smuggling activities. The link would be treated as snapped if there is a long and unexplained delay between the date of the order of detention and the arrest of the detenu. In such a case the order of detention may have to be struck down unless the grounds indicate a fresh application of the mind of the Detaining Authority to the new situation and the changed circumstances. It was also held that where the delay is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the 'link' not snapped but strengthened. This principle has been reiterated in Mukesh Tikaji Bora v. Union of India (2007) 9 SCC 28].

33. In Zainaba K. v. Union of India and others ILR 2000 (1) Ker.207], this Court following the principle laid down in Bhawarlal Ganeshmalji (supra) held that in view of the object of preventive detention, it becomes very imperative on the part of the Detaining Authority as well as the executing authorities to be very vigilant and keep their eyes skinned but not to turn a blind eye in securing the detenu and executing the detention order because any indifferent attitude on the part of the Detaining Authority or executing authority will defeat the very purpose of the preventive action and turn the detention order as a dead letter and frustrate entire proceedings. 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 a long and unexplained delay between the date of order of detention and arrest of the 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. But where delay is not only adequately explained but is found to be the result of recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the link not snapped but strengthened.

34. The learned counsel appearing for the petitioner pointed out the following decisions where the delay resulted in setting aside the order of detention to fortify his plea. In Suraiya v. Commissioner and Secretary to Government 1995 Cri.L.J. 4088] this Court held that though action under Section 7 of the COFEPOSA Act is not mandatory, the failure to take action under the section gives scope for doubt regarding the assertion that detenu had absconded or concealed himself to avoid the arrest. When the statute prescribes for such an action against a recalcitrant person the failure to have recourse to the same cannot be overlooked as a mere omission especially in a case where there is inordinate delay between the order of detention and its execution.

35. In Suraiya (supra) marriage of the detenu was on 19.07.1992 at the Muslim Association Hall, Nandavanam, Thiruvananthapuram. For more than five years the detenu was at large. No acceptable material to hold that he had gone abroad was placed before court. It was in such circumstances it was held that the only conclusion possible was that there was no cogent explanation as to the delay in executing the order of detention, and that it was not possible to say that there existed genuine apprehension that the detenu would likely continue in the smuggling activities.

36. In Manju Ramesh Nahar v. Union of India (1999) 4 SCC 116], the detention order was passed on 03.02.1997 but it was executed only on 23.04.1998. The Apex Court after considering the events in between held that except making a vague allegation that the appellant was absconding and was apprehended on 23.04.1998 when the order was executed against him, the respondents have not given details of any steps that might have been taken in the meantime to execute the order against Ramesh Nahar. They could have taken appropriate steps under Section 7 of the Act for securing the arrest of the husband of the appellant, but did not. The order of detention was therefore held to be invalid.

37. In this case, specific contention of the respondents is that the detenu was absconding from the very date of seizure on 13.05.2019 and for that reason alone the order of detention could not be executed. Steps taken to procure his presence have been narrated in the objection. Except during March 2020 till August 2020, the period during which the Country and entire system were at standstill on account of COVID-19 pandemic there has been tireless efforts to get the presence of the detenu. The instances pointed out by the detenu to contend that he was very much available, namely, he cast vote in Assembly elections, he took COVID vaccination, he received the Show Cause Notice (it was received by his brother and father) and he was taking care of his pregnant wife are not proof of showing that he was accessible and available to be apprehended. It is true that he himself surrendered before the Police. From the steps taken by the authorities including to declare him absconding as provided in Section 7 of the COFEPOSA Act it is quite evident that he surrendered having left with no possibility for him to evade the process of law and avoid an arrest.

38. The learned DSGI placed reliance on K.T.M.S. Abdul Cader and others v. Union of India  AIR 1977 Madras 386], to contend that the detenu was really absconding. It was held by a Full Bench of the Madras High Court that the primary meaning of the word 'abscond' is to hide and when a person is hiding from his place of residence, he is said to abscond. A person may hide even in his place of residence or away from it and in either case he would be absconding when he hides himself. Therefore, persons who get scent of the action to be taken by the Detaining Authorities and leave the country in order to escape the arm of the law can be said to abscond. The onus of proving that the accused did not abscond for the purpose of avoiding execution of warrant of arrest and that he had no notice of the proclamation issued under Section 87 of the old Criminal Procedure Code (Section 82 of the new Code) lies on the accused.

39. The Apex Court in Kartarey v. State of Uttar Pradesh (1976) 1 SCC 172] held that it is wrong to say that the detenu, Baljeet never absconded. The facts of the case would show that contrary to what Baljeet has said in his examination before the Court, the Investigating Officer testified that Baljeet was found hiding in a chhappar in the village from where he was arrested. In that context, the Apex Court held that to be an 'absconder' in the eye of law, it is not necessary that a person should have run away from his home, it is sufficient if he hides himself to evade the process of law, even if the hiding place be his own home.

40. In Bhawarlal Ganeshmalji (supra) the order of detention was made on 19.12.1974. The detenu was found to be absconding. Action was taken pursuant to Section 7 of the COFEPOSA Act and he was proclaimed as a person absconding under Section 82 of the Code of Criminal Procedure. The proclamation was published in several leading English and local language daily newspapers. His photograph was exhibited in cinema halls. Reward of Rs. 5000/- was also announced for apprehension. Despite all this effort, he could not be arrested until he surrendered on 1st February 1978. The Apex Court on considering the steps taken by the authorities to nab the detenu, the Court rejected his submission based on the delay in the execution of the order of detention.

41. In Syed Farooq Mohammad vs. Union of India (1990) 3 SCC 537] the facts were that two notices were served, one on the petitioner's mother and another on the petitioner's brother directing the petitioner to appear before the Detaining Authority. The petitioner has intentionally absconded and thereby evaded arrest. It was held that, in such circumstances, the delay was properly explained and the link between the grounds of detention and the avowed purpose of detention has not been snapped.

42. In Waheeda Ashraf and others v. Union of India and others  ILR 2021 (3) Ker.751], this Court after referring to principle of law laid down by the Apex Court in Malwa Shah v. State of West Bengal  (1974) 4 SCC 127] and Mukesh Tikaji Bora v. Union of India  (2007) 9 SCC 28] held that, insofar as an absconding detenu is concerned, the live link between the incident and the purpose of detention was not snapped but strengthened on account of the conduct of the detenu.

43. In the facts of the present case, it is quite evident that the authorities took all possible steps to procure the presence of the detenu to execute the order. Only because he evaded the process and hid himself the order of detention could not be executed. It is clear from the counter affidavits filed by the respondents and the records made available for our perusal that all possible efforts were taken to execute the order of detention. Steps including publication of notice in the newspapers and declaring the detenu an absconder as contemplated under Section 7(1)(b) of the COFEPOSA Act were taken. Under such circumstances, we find that the delay in the execution of the detention order is satisfactorily explained. Further, it is trite that an absconding detenu cannot cite the delay in the execution of the order to contend that the detention order is liable to be quashed.

Ground No. iv) - Copies of all the relied upon and relevant documents were not furnished to the detenu.

44. The petitioner contended that CCTV footages on 13.05.2019 of the exit area in the Airport, Thiruvananthapuram, Ext. P11, decision of the Principal Director General of DRI on the representation submitted by Sri M. Sunil Kumar and copies of the complaint against DRI officials submitted by Smt. Sareena Shaji and Sri M. Sunil Kumar before the Magistrate were withheld by the Sponsoring Authority and thereby escaped consideration by the Detaining Authority. The learned counsel for the petitioner would contend that apart from the said documents para-wise comments submitted by the sponsoring authority before the Advisory Board also was not furnished to the detenu and that had prejudiced his right to represent and therefore, Ext. P1 does require interference.

45. The contention of the respondents is that the Sponsoring Authority was not in possession of the first four documents and that there was no need of supplying copy of the para-wise comments submitted by the Sponsoring Authority before the Advisory Board to the detenu.

46. In Ankit Ashok Jalan v. Union of India (2020) 16 SCC 127] the Apex Court held that the consideration for revocation of a detention order is limited to examining whether the order conforms with the provisions of law whereas the recommendation of the Advisory Board is on the sufficiency of material for detention, which alone is either confirmed or not accepted by the appropriate Government. Therefore the detenu cannot be heard to contend that the documents which were not placed before the Detaining Authority and found not to have a vitiating effect on the subjective satisfaction of that authority should have been supplied to the detenu. In paragraph number 27 herein before we found that non-production of the four documents mentioned by the detenu, before the Detaining Authority did not have the effect of vitiating Ext. P1.

47. The Apex Court in Radhakrishnan Prabhakaran v. State of Tamil Nadu and others (2000) 9 SCC 170]. held at paragraph 8:

"We make it clear that there is no legal requirement that a copy of every document mentioned in the order shall invariably be supplied to the detenu. What is important is that copies of only such of those documents as have been relied on by the Detaining Authority for reaching the satisfaction that preventive detention of the detenu is necessary shall be supplied to him"

48. In J. Abdul Hakeem v. State of Tamil Nadu (2005) 7 SCC 70] the Apex Court held that the detenu has a right to be supplied with the material documents on which the reliance is placed by the Detaining Authority for passing the detention order but the detention order will not be vitiated, if the document although referred to in the order is not supplied which is not relied upon by the Detaining Authority for forming its opinion or was made basis for passing the order of detention. Crux of the matter lies in whether the detenu's right to make a representation against the order of detention, is hampered by non-supply of the particular document.

49. In Raishad K.T. v. Union of India and others ILR 2021 (4) Ker. 158], a similar contention was raised by the petitioner. It was contended that the order of detention was invalid on account of the fact that several crucial materials were not supplied to the detenu along with the grounds of detention, thereby affecting his valuable right to make an effective representation against the order of detention. The grievance was that certain Whatsapp chats, which are referred to in the grounds of detention were not supplied. Non Supply of certain CCTV footages was also complained of taking a specific stand that those documents would prove the innocence of the detenu.

50. In Raishad K.T. (supra) while answering that contention this Court placed reliance on the rule enunciated by the Apex Court in Kirti Kumar Chamanlal Kundaliya v. Union of India (1981) 2 SCC 436] where it was held that the question as to whether the materials supplied are sufficient to enable the making of effective representations which, is a right guaranteed under the Constitution, will depend on the facts of each case. There is no charm in the expressions "relied on", "referred to", or "based upon" documents. The Court proceeded to hold that the detenu has the right to receive all documents which are relied upon in the grounds of detention and such other documents/materials to enable him to make an effective representation against the order of detention. The Court after referring to the observations in Waheeda Ashraf ILR 2021 (3) Ker.751] held,-

"It is clear from the grounds of detention that no CCTV footage has been relied upon or referred to sustain the order of detention. That being the position, we are of the clear view that when the Court is concerned only with the subjective satisfaction of the detaining authority based on materials relied upon or referred to in the grounds of detention, the question of supply of CCTV footage in order to prove the innocence of the detenu is really not a part of the right conferred on him under Art. 22(5) of the Constitution of India. If the materials referred to and relied upon are sufficient to reach a subjective satisfaction regarding the requirement of detention, no other material is required to be provided to the detenu. The right to make a representation must be based on the materials referred to, or relied upon, by the detaining authority to reach its subjective satisfaction."

51. We concur with the said view. The contention of the learned counsel of the petitioner that Ext. P1 is liable to be abrogated for non-supply of the aforesaid documents and the consequent denial of the right of the detenu to make an effective representation is therefore devoid of merits and it is rejected.

Ground No. v) - Delay in disposing the representations

52. The detenu submitted representations dated 27.01.2022 before the Detaining Authority and the Central Government. Needless to say that the right to represent before the Detaining Authority and the Government and to get the representations decided without delay is the indubitable right of the detenu.

53. A Constitution Bench of the Apex Court in Kamaleshkumar Ishwardas Patel v. Union of India(1995) 4 SCC 51] held that where the detention order is made under Section 3 of the COFEPOSA Act by an officer specially empowered for that purpose, the person detained has a right to make a representation to the said officer, and the said officer is obliged to consider the said representation, and the failure on his part to do so would result in denial of the right conferred on the person detained to make a representation. Further, such right of the detenu has been taken to be in addition to the right to make the representation to the Government concerned.

54. In K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union of India (1991) 1 SCC 476], a Constitution Bench of the Apex Court held that the time imperative for consideration of representation can never be absolute or obsessive. It depends upon the necessities and the time at which the representation is made. The representation may be received before the case is referred to the Advisory Board, but there may not be time to dispose of the representation before referring the case to the Advisory Board. In that situation the representation must also be forwarded to the Advisory Board along with the case of the detenu. The representation may be received after the case of the detenu is referred to the Board. Even in this situation the representation should be forwarded to the Advisory Board provided the Board has not concluded the proceedings. In both the situations there is no question of consideration of the representation before the receipt of report of the Advisory Board. Nor it could be said that the Government has delayed consideration of the representation, unnecessarily awaiting the report of the Board. It is proper for the Government in such situations to await the report of the Board. If the Board finds no material for detention on the merits and reports accordingly, the Government is bound to revoke the order of detention. Secondly, even if the Board expresses the view that there is sufficient cause for detention, the Government after considering the representation could revoke the detention.

55. The question regarding delay in disposal of representations of the detenu was taken up as one of the grounds to invalidate the order of detention in Ankit Ashok Jalan vs. Union of India (2020) 16 SCC 127]. A three Judge Bench of the Apex Court explained the rationale of the law laid down in Abdulla Kunhi (supra) and the majority decision on the above aspect is contained in paragraph No. 23, which reads as follows:

"23. It must also be borne in mind that in all cases, the appropriate Government would be acting in two capacities; one while considering the representation and the other while taking appropriate decision after a report is received from the Advisory Board that there is sufficient cause for detention. Since the decision would be required to be taken in these two capacities, it was observed in K.M. Abdulla Kunhi  (1991) 1 SCC 476], that it would be proper for the appropriate Government to wait till the report is received from the Advisory Board in cases dealt with in paragraph 16 of the decision. But such may not be the case with the Detaining Authority who is a specially empowered officer."

56. A similar question arose for consideration of another three-Judge Bench of the Apex Court in Sarabjeet Singh Mokha v. The District Magistrate, Jabalpur 2021 (13) SCALE 250]. In that case, the representation of the detenu dated 18.05.2021 was disposed of by the Central Government on 24.06.2021, immediately after the Advisory Board rendering its opinion, which was on 15.06.2021. Therefore the question whether the Central Government could wait for the opinion of the Advisory Board before taking the representation for consideration did not crop up before the Court. The delay in disposing of the representation by the State Government and the delay in communicating to the detenu, the fact of rejection of his representation by both the State and Central Governments were found to be reasons sufficient to invalidate the order of detention. The Three-Judge Bench of the Apex Court however reiterated the ratio in Ankit Ashok Jalan (supra).

57. The principle therefore is that the Central Government shall wait before considering the representation of the detenu till the report of the Advisory Board is received, if the representation is received after the case of the detenu has been referred to the Board. Whereas, the Detaining Authority who is a specially empowered officer shall consider and dispose of the representation of the detenu with a sense of immediacy and cannot wait for receipt of the report of the Advisory Board.

58. The representations dated 27.01.2022 sent by the detenu by e-mail were received by the authorities on 28.01.2022. From the perusal of the files, it is seen that on 03.02.2022, the sponsoring authority has submitted parawise comments on the representations and the representation was rejected by the Detaining Authority on 4.2.2022. Ext. P10 is the memorandum sent by Director (COFEPOSA) informing the detenu that his representation was rejected by the detaining authority on 4.2.2022. In the matter of consideration of the representation by the Detaining Authority, therefore, there is absolutely no delay and the petitioner has no allegation of delay also in that regard.

59. The Central Government received the representation from the detenu on 28.01.2022. The Sponsoring Authority submitted para-wise remarks on the representations on 03.02.2022. By that time, the matter was pending before the Advisory Board having it been referred on 17.01.2022. Therefore the Government waited for the report of the Advisory Board. On a perusal of the relevant files, it is seen that immediately on receipt of the report of the Advisory Board, the Central Government on 21.03.2022 in exercise of its powers under Section 8(f) of COFEPOSA Act confirmed the order of detention. It was accordingly ordered that Sri Abdul Hakkeem P.P. @ Abdul Hakkim P.P. shall be detained for a period of one year from 28.12.2021. Thereafter, the representation was considered by the Director General, CEIB and disposed of as per the order dated 29.03.2022. On the very next day, i.e., on 30.03.2022, the detenu was informed as per Ext. P9 memorandum that his representation to the Central Government was rejected. Therefore, in the light of the law laid down in the aforesaid decisions, the obligation cast on the respondents is to explain the delay from 14.03.2022 till 29.03.2022.

60. The learned counsel appearing for the petitioner would submit that having the para-wise comments on the representation been submitted as early as on 03.02.2022, the time taken for disposal of the representation by the Government is inordinate and that necessarily vitiates Ext. P1. Therefore, it is contended that continued detention of the detenu is illegal and he is liable to be released forthwith.

61. The petitioner placed reliance on Mohinuddin v. District Magistrate, Beed (1987) 4 SCC 58] in order to contend that the delay occasioned in this case is unjustified and there occurred prejudice to the detenu. In Mohinuddin it was held that when the life and liberty of a citizen is involved, it is expected that the Government ensure that the constitutional safeguards embodied in Article 22(5) are strictly observed. The gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws.

62. In Jasbir Singh v. Governor, Delhi and others (1999) 4 SCC 228] it was held that there is no inflexible Rule that delay in considering the representation in all cases ipso facto would be sufficient to render the detention void. Further what can be held to be an unexplained delay in disposing of the representation would depend upon the facts and circumstances of each case. The right to make a representation is undoubtedly a Constitutional right of the detenu and such a representation should be considered as expeditiously as possible. But what is reasonable expedition will depend upon the facts of each case.

63. In Rajammal v. State of Tamil Nad (1999) 1 SCC 417] the Apex Court held that if delay was caused on account of any indifference or lapse in considering the representation, such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the delay, if any, in disposing the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned.

64. In Rajammal (supra) the Government, which received remarks from different authorities, submitted the relevant files before the Under Secretary for processing it on the next day. The Under Secretary forwarded it to the Deputy Secretary on the next working day. Thus there is some explanation for the delay till 09.02.1998. Thereafter the file was submitted before the Minister who received it while he was on tour. The Minister passed the order only on 14.02.1998. Though there is explanation for the delay till 09.02.1998, there was no explanation whatsoever for the delay which occurred thereafter. Merely stating that the Minister was on tour and hence he could pass orders only on 14.02.1998 is not a justifiable explanation, when the liberty of a citizen guaranteed under Article 21 of the Constitution is involved. Absence of the Minister at the Headquarters is not sufficient to justify the delay, since the file could be reached the Minister with utmost promptitude in cases involving the vitally important fundamental right of a citizen. Further detention of the detenu was accordingly held illegal.

65. In Fitrat Raza Khan v. State of U.P.  (1982) 2 SCC 449] the petitioner made a representation dated August 8, 1981, through the Superintendent, Central Jail, Moradabad. It was actually handed over to the Superintendent, Central Jail, on August 10, 1981, and he, on the same day, sent it to the District Magistrate. The District Magistrate forwarded the representation together with his comments to the Home Secretary on August 13, 1981. The representation was received in the Home Department the next day. It could not be attended to on August 15, which was the Independence Day, and on the 16th, being a Sunday. The representation was scrutinised in the Secretariat for three days between the 17th and the 19th, and the notings on the file were made. The file was perused by the Joint Secretary, Home Department, on August 19. On August 20, the Law Department was consulted. The file was placed before the Home Secretary on August 21, who placed it before the Chief Minister. The Chief minister took two days to study the file and ultimately, passed an order rejecting the representation on August 24. The Apex Court after considering the said chronology of events held that the representation made by the detenu was considered by the State Government at all levels, and there was no undue delay in its consideration.

66. In Abdul Salam v. Union of India  (1990) 3 SCC 15] also the question regarding the delay was considered. The representation was made on 27.09.1988 and disposed of by the Central Government on 02.11.1988, i.e., within a month and five days. In the counter-affidavit filed on behalf of the Central Government it is stated that the representation dated 27.09.1988 was received in the COFEPOSA Section of the Ministry of Finance on 10.10.1988 and the representation was in Malayalam. It is also stated that there were some allegations regarding the non-placement of certain documents and non-supply of certain documents to him. Therefore a copy of the representation was sent to the Sponsoring Authority, i.e., Collector of Customs, Cochin on that very day and the comments from the Collector of Customs, Cochin dated 25.10.1988 were received in the COFEPOSA Section on 27.10.1988 and that the Additional Secretary examined them and with his comments, they were forwarded to the Minister of State for Revenue on 31.10.1988, since 29th and 30th October, 1988 were holidays. The Minister of State for Revenue with his comments forwarded the representation on the same day, i.e., 31.10.1988 to the Finance Minister. The Finance Minister considered and rejected the representation on 01-11-1988 and the file was received in the Office on 02-11-1988 and on the same day, a memorandum rejecting the representation was sent to the detenu. From the said facts the Apex Court held that the representation was considered most expeditiously and there is no "negligence or callous inaction or avoidable red-tapism". The contention regarding delay was accordingly rejected.

67. In the light of the law laid down in the aforesaid decisions, we may now consider whether there has been inordinate delay on the part of the Central Government in disposing of Ext. P4 representation. Report dated 10.03.2022 of the COFEPOSA Advisory Board was seen sent along with a covering letter dated 11.03.2022 and was received by the Central Government on 14.03.2022. From the files made available for our perusal, we find that the representation of the detenu was immediately processed. 17.03.2022 was a restricted holiday and 18.03.2022 was a holiday in connection with Holi. 19.03.2022 and 20.03.2022 were also holidays being Saturday and Sunday. On 21.03.2022, the Finance Minister confirmed the order of detention. On receipt of the order of confirmation, the matter was placed before the Director General of CIEB for consideration. 26.03.2022 and 27.03.2022 were holidays being Saturday and Sunday. Immediately thereafter on 29.03.2022, the Director General after considering the representation in the light of the comments submitted by the Sponsoring Authority and other materials on record rejected it. On the very next day, 30.03.2022, the detenu was informed of the rejection of his representation. The above facts would reveal that there was no lethargy on the part of the authorities of the Central Government and no inordinate delay in disposing of Ext. P4 representation submitted by the detenu. Therefore the contention of the learned counsel for the petitioner in this respect also is untenable.

To sum up, none of the grounds put forward by the petitioner to challenge validity of Ext. P1 and to abrogate it can be accepted. Therefore the writ petition fails. Accordingly it is dismissed.