Page 161 - ELT_15th August 2020_Vol 373_Part 4

2020 ] MISIRIYA v. GOVERNMENT OF KARNATAKA 495

detention order has been made has absconded or is concealing himself so
that the order cannot be executed, the government may -
(a) make a report in writing of the fact to a Metropolitan Magis-
trate or a Magistrate of the first class having jurisdiction in the
place where the said person ordinarily resides; and thereupon
the provisions of Sections 82, 83, 84 and 85 of the Code of
Criminal Procedure, 1973 (2 of 1974), shall apply in respect of
the said person and his property as if the order directing that
he be detained were a warrant issued by the magistrate;
(b) by order notified in the Official Gazette direct the said person
to appear before such officer, at such place and within such
place and within such period as may be specified in the order;
and if the said person fails to comply with such direction, he
shall, unless he proves that it was not possible for him to com-
ply therewith and that he had, within the period specified in
the order, informed the officer mentioned in the order of the
reason which rendered compliance therewith impossible and
of his whereabouts, be punishable with imprisonment for a
term which may extend to one year or with fine or with both.
(2) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), every offence under clause (b) of sub-section (1)
shall be cognizable.”
Apparently, none of that has been done. The said ground is answered by
the Learned Government Advocate to contend that the appropriate Government
has not taken a decision as to whether the detenu is absconding or not. We are of
the view that such an explanation by the State is unacceptable. After the issuance
of an order of preventive detention the detenu requires to be arrested forthwith.
If not, the procedure under Section 7 of the COFEPOSA Act requires to be com-
plied with. They have failed to do so. The contention of the Learned Government
Advocate runs contrary to the facts of the case. Therefore, such a contention can-
not be accepted.
8. The Hon’ble Supreme Court in the Judgment in the case of Manju
Ramesh Nahar v. Union of India and Others reported in (1999) 4 SCC 166, have
clearly stated that when the respondents have not furnished the information in
detail of any steps to execute the order of preventive detention, the detention
itself becomes illegal. That if persons who are responsible for execution of the
order sleep over the order and do not execute the same, it would reflect upon the
satisfaction of the detaining authority and would be exhibitive of the fact that the
immediate necessity of passing that order was wholly artificial or non-existent.
The same set of facts are present herein also. Except narrating the various steps
taken by him to go to the house of the detenu and meet his wife etc., there is
nothing tangible that has been done by the State.
9. The case relied upon by the Learned Government Advocate in the
case of Vinod Chawla v. Union of India and Others reported in (2006) 7 SCC 337, in
our considered view, runs contrary to the interest of the State. In para-16, it was
indicated that an application under Section 7(1)(b) of COFEPOSA Act was pub-
lished in the Official Gazettee on 23-3-1997 and also in a leading English and
Hindi newspapers on 4-10-1997. An application under Section 7(l)(a) of the Act
was also moved before the Court of ACMM for initiating proceedings under Sec-
tion 82 and 83 of Cr.PC. where proclamation was made on 3-12-1997 asking him
EXCISE LAW TIMES  15th August 2020  161