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Supreme Court Issues Notice On Centre’s Challenge To Kerala HC Judgement Which Quashed Preventive Detention Under COFEPOSA Act

first_imgTop StoriesSupreme Court Issues Notice On Centre’s Challenge To Kerala HC Judgement Which Quashed Preventive Detention Under COFEPOSA Act Radhika Roy19 Nov 2020 3:13 AMShare This – xThe Supreme Court on Thursday issued notice in a special leave petition filed by the Union of India challenging a Kerala High Court judgment which quashed the preventive detention orders passed against two person under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) was quashed. A Bench comprising of Justices DY Chandrachud and Indu…Your free access to Live Law has expiredTo read the article, get a premium account.Your Subscription Supports Independent JournalismSubscription starts from ₹ 599+GST (For 6 Months)View PlansPremium account gives you:Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.Subscribe NowAlready a subscriber?LoginThe Supreme Court on Thursday issued notice in a special leave petition filed by the Union of India challenging a Kerala High Court judgment which quashed the preventive detention orders passed against two person under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA) was quashed. A Bench comprising of Justices DY Chandrachud and Indu Malhotra heard Additional-Solicitor General KM Natraj who submitted that the Kerala High Court had exceeded its jurisdiction under Article 226 by substituting the subjective satisfaction of the Detaining Authority with its own wisdom. Accordingly, the Supreme Court proceeded to issue notice in the special leave petition Union of India vs Beevikunju and others. By the judgment delivered on February 19, 2020, a division bench of Justices K Vinod Chandran and V G Arun of the High Court had quashed the detention of Adnan Khalid and Faisal PA who were held for alleged gold smuggling. The case pertains to the detention which arose from the seizure of contraband from the body of a Customs official, while he was smuggling out about 3 kilograms of gold hidden between his legs and held up by four briefs that he was wearing. The official, on being caught, confessed that he had received the contraband from one of the accused, Adnan Khalid. Statements recorded from Khalid and the official revealed a ring operating within the Airport. The Kerala High Court then noted that an earlier case, relating to the second accused, Faisal, consisted of a different modus operandi being employed, with an active involvement of a Customs official. The High Court, after taking into consideration the submissions of the Counsels and the material placed before it, stated that there was a requirement of a connecting link insofar as the finding with respect to a smuggling ring in which Faisal was the kingpin and Khalid was the main co-ordinator, other than the depositions alone, despite having evidentiary value under Section 108 of COFEPOSA. The Court further noted that video footage that was relied upon by the Detaining Authority in both the detaining orders for Khalid and Faisal should have been supplied to the detenu with the facility provided for viewing the same. Additionally, other crucial corroborating material and documents looking into for arriving at the satisfaction of the Detaining Authority were also not supplied. Referring to the case of Arvind Shergill (2000), the Kerala High Court observed that the Court had the power to examine the grounds in the detention order to see whether they were relevant to the objective of the legislation, and if the subjective satisfaction of the authority was based on relevant grounds. In the instant case, the High Court found that the satisfaction arrived at was not substantiated by the documents on record which had been supplied to the detenu. “The need for supply of documents relied on and the necessity for the detaining authority to arrive at a subjective satisfaction of the need for a preventive detention on the basis of substantiating material against the proposed detenu, as supplied by the sponsoring authority are established principles; spoken of by the Hon’ble Supreme Court. We, hence, find the detention order to be bad and both the detenu are liable to be released fortwith”. A stern observation was also made by the High Court on the lack of grasp of the relevant law by the Detaining Authorities and the casual manner in which the detention orders are passed. Noting that preventive detention matters consisted of technicalities, the Court stated that “strict adherence, hence is called for and we find very many of the detaining authorities not being properly educated on the law regarding the subjective satisfaction to be entered in ordering preventive detention.””Though distinguished from an objective satisfaction, a subjective satisfaction also has to be on substantiating materials, which are also to be supplied to the detenu. Otherwise the orders will be vitiated for non-supply of the relevant documents relied on or as in this case there being no application of mind”. On that note, the Kerala High Court had allowed the habeas petitions petitions of the detenu and ordered for their expeditious release.Click Here To Download Order[Read Order] Read the Kerala HC judgment hereNext Storylast_img read more

Supreme Court Refuses To Stay Non-Bailable Warrant Issued By UP Court Against AAP MP Sanjay Singh In ‘Hate Speech’ Cases

first_imgTop StoriesSupreme Court Refuses To Stay Non-Bailable Warrant Issued By UP Court Against AAP MP Sanjay Singh In ‘Hate Speech’ Cases Mehal Jain2 Feb 2021 12:17 AMShare This – xThe Supreme Court on Tuesday refused to stay the Non-Bailable Warrant issued against AAP Rajya Sabha MP Sanjay Singh in connection with FIRs for ‘hate speech’ at his press conference at Lucknow, UP in August last year. In a press conference, on 12.08.2020, he made certain statements regarding which an FIR was lodged with the Police Station Hazratganj, Lucknow, under Sections 153-A, 153-B,…Your free access to Live Law has expiredTo read the article, get a premium account.Your Subscription Supports Independent JournalismSubscription starts from ₹ 599+GST (For 6 Months)View PlansPremium account gives you:Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.Subscribe NowAlready a subscriber?LoginThe Supreme Court on Tuesday refused to stay the Non-Bailable Warrant issued against AAP Rajya Sabha MP Sanjay Singh in connection with FIRs for ‘hate speech’ at his press conference at Lucknow, UP in August last year. In a press conference, on 12.08.2020, he made certain statements regarding which an FIR was lodged with the Police Station Hazratganj, Lucknow, under Sections 153-A, 153-B, 501, 505(1), 505(2) IPC. After investigation, the Investigating Officer filed a charge sheet on 07.09.2020 under the aforesaid sections. Vide order dated 17.09.2020 the State government granted sanction for prosecution of the petitioner under section 196 CrPC. On 04.12.2020, the Additional Sessions Judge, the designated Special Judge MP/MLA Court, Lucknow took cognisance and issued summons to the applicant.The said order was challenged in a petition under Section 482 CrPC before the Allahabad High Court.The bench headed by Justice Ashok Bhushan was hearing Singh’s SLP against the Allahabad High Court order of January 21, rejecting the challenge to the said order.In a separate writ petition, Singh has moved the Supreme Court seeking quashing of multiple FIRs lodged against him in various districts of Uttar Pradesh, saying they have been “maliciously instituted to unleash political vendetta”.”On the 21st, the matter was argued before the HC. We had sought exemption (from the trial court). But instead of exempting, a non-bailable warrant has been issued for today!”, urged Senior Advocate Vivek Tankha for the petitioner.”Let the judgment (of the High Court) be placed on record…unless we see the judgment, we cannot pass any order…”, said Justice Bhushan.”The judgment of the HC is on sanction and cognisance…the order of the Trial Court is on record! We said the petitioner is a MP and look at the complaint made! And the NBW has been issued for today!”, pressed Mr. Tankha.”No, today we will not pass any order”, said the bench, listing the matter for the next week, directing that the HC judgment be brought on record in the meantime.In dismissing Singh’s plea, the HC had on January 21 noted that By the impugned order, sanction has been granted by the State Government for prosecution for offences under Section 153-A, 153-B, 501, 505(1), 505(2) IPC. However, the order wrongly mentions Section 197 CrPC as the relevant provision.”Even though it has not been pleaded in the text of the petition, the counsel for the applicant has submitted that since the sanction for prosecution has been granted under Section 197 CrPC, the order stands vitiated as the appropriate section is Section 196 CrPC”, the HC recorded. “In a situation where an authority has a power in law, the the mere reference to a wrong provision of law in the order does not vitiate the order”, it held. So far as the second submission that the sanction under Section 196 CrPC should have been granted by the Chairman of the Rajya Sabha is concerned, the HC noted that the wording of Section 196 CrPC clearly indicates that the power to grant sanction for prosecution is vested in both the Central Government and the State Government. The said provision uses the word “or” which means that either one out of the Central Government or the State Government can grant the sanction as the case may be.” So far as the sanction order is concerned, the order shows that after due application of mind sanction has been accorded. Mere wrong mention of provision does not affect its validity. The impugned order of cognizance is found to be just and legal. No perversity could be shown in the order taking cognisance”, ruled the HC.BackgroundAs per PTI reports, Singh said he had conducted a press conference at Lucknow of Uttar Pradesh on August 12, last year wherein he had alleged that the state government was favouring one particular caste over the others.In the said press conference, the petitioner had merely raised certain social issues, namely neglect and apathy of the government towards a certain class of society, he said in his writ petition filed through advocate Sumeer Sodhi.The AAP leader said after the press conference, multiple FIRs were registered against him at the instance of the BJP’s members in various police stations in different districts of Uttar Pradesh.Singh said the writ petition has been filed by him for direction to quash the FIRs registered against him, as these FIRs are manifestly attended with malafides and have been maliciously instituted to unleash political vendetta against the petitioner and to harass him.The said FIRs have been filed against the petitioner out of the malice and sheer political vendetta with intent to coerce, harass and intimidate the petitioner as a part of larger ploy to muzzle the opposition leaders, from speaking up against the government of Uttar Pradesh, Singh’s application said.The Rajya Sabha MP further claimed that the content of the said FIRs are verbatim similar and have been filed across several districts across a length of more than 700 kilometres of the state on the same day within a span of a few hours. He said he is aware of eight FIRs filed in eight districts including at Lucknow, Sant Kabir Nagar, Khiri, Bagpat, Muzaffarnagar, Basti and at Aligarh.The petitioner submits that the identical FIRs have been filed across several districts across the entire length of the State of Uttar Pradesh pointing very clearly to the fact that FIRs are only aimed at harassing the petitioner and his political associates, he said.Singh contended that the said FIRs are a threat to the petitioner’s exercise of the right to free speech, right to assemble peacefully; right to move freely throughout the territory of India which are guaranteed under Article 19 of the Indian Constitution.The press conference was an exercise through which the petitioner was raising pertinent social and political issues, and the said FIRs have been filed with the sole intention to stifle the voice of opposition which is fundamental to a functional democracy, he added.He said the FIRs filed against him are “frivolous, baseless, vexatious and are figments of imagination of the complainant and the police department”.It is pertinent to mention that there has not been even a single incident of violence or disharmony as a result of the statements made by the petitioner in the press conference and the said multiple FIRs are in teeth of the settled law enunciated by the top court in various verdicts, where it has been held that there can be no second FIR with respect to same offence.Singh said free and fair elections are a part of the basic structure of the Constitution and any attempt to prevent the opposition from taking part in campaigning or raising pertinent political and social issues is an assault on the basic structure of the Constitution.He alleged that FIRs have been registered against him on the directions of the Officer of Additional Chief Secretary (Home) to the Station in-charge of the several police stations as per the information and genuine belief of the petitioner.The state machinery in complete derogation of their duties and responsibilities conferred upon it by law have been involved in mounting undue pressure upon the petitioner by threatening to take coercive action against the petitioner in order to make him succumb to their unbridled envy, Singh added.He said the sole aim of the state machinery is to prevent the petitioner from campaigning in Uttar Pradesh and from carrying out political activities there in the run up to the elections in 2022.In light of the aforesaid, the petitioner prays that the aforesaid FIRs registered against him be quashed as they are nothing but an abuse of process aimed at stifling the voice of opposition in a democracy and the petitioner’s fundamental rights,” he said.Alternatively, he also sought transfer of the FIRs lodged in connection with the press conference of August 12, 2020 and related political activities of the petitioner outside of Uttar Pradesh.Subscribe to LiveLaw, enjoy Ad free version and other unlimited features, just INR 599 Click here to Subscribe. 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