TMI Blog1995 (2) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... e from one Mohan Singh at Hongkong to whom he was to handover the foreign currency. It is not necessary to refer in detail to other part of his statement except that he was doing this on various visits to Hongkong, Bangkok or Singapore. (3) Scrutiny of the passport revealed that he had gone abroad 11 times w.e.f. 11.2.92 up to 27.11.92(On 17.2.92, 4.3.92, 4.4.92, 19.5.92, 8.6.92, 12.6.92, 13.8.92, 23.8.92, 2.9.92, 2.11.92 and 27.11.92). Petitioner was arrested under the Customs Act and produced before the Acmm, New Delhi on 22.12.92 and remanded to judicial custody up to 5.1.93. The petitioner gave his address as Jg Ii, 50, Vikas Puri, Delhi and H.No. 1304/19 Jhanda Bange Bazar, Ma Sewa, Amritsar and these addresses were found to be false. During inquiry, the place of residence was discovered as Jg Ii 138 Vikaspuri,Delhi and it was found that the house was sold away in September,1992. Bail application was filed on 23.12.92 and rejected on 5.1.93. Judicial custody was extended up to 19.1.93. On another bail application, petitioner was released on 15.1.93 subject to conditions. On 28.1.93, petitioner applied for withdrawal of conditions imposed with reference to his reporting to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the State Government is one under Section 11 and has been rejected by the State Government and it is bad as it refers to the rejection of the earlier representation. (6) We shall deal with the points seriatum. Point 1 (7) From the facts stated above it is clear that the incident occurred on 21.12.92 but the detention order was passed on 28.4.93 by the National Capital Territory of Delhi. Before going into the merits, we shall refer to the legal principles in this behalf. (8) It is well-settled that unexplained delay in passing an order may vitiate an order of detention for it may snap the nexus between the incident and the detention. But there can be no hard and fast rule regarding the length of time which is to be regarded sufficient to snap the nexus. In Shiv Ratan Makim vs. Union of India , the delay of 5 months was held satisfactorily explained. In Abdul Salam vs. Union of India the search was on 17.9.1987 while the detention order was passed on 21.5.1988(nearly after 8 months) it was held that the delay was properly explained and the case law was reviewed. There the case record was received by the sponsoring authority on 1.2.88 and processed. A show cause notice was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the delay occured but that the authority was under no legal liability to inform or satisfy the detenu about the causes for the delay. The detenu was arrested on 9.1.81. In between statements of 11 persons were recorded between 7.4.1981 and then these facts were considered and the detention order was passed on 3.6.81. The delay of five months was held satisfactorily explained. In Syed Farooq Mohd. vs. Union of India the delay of 5 months from 20th July till detention order on 20th December was held explained because samples were sent for test, reports were received from the Customs Department on 29th September, 13th October and 15th November, and then the matter was screened and materials considered. It has further been laid down in Rajendra Kumar Natvarlal Shah vs. State of Gujarat that there is a distinction between delay in complying with safeguards under Article 22(5) of the Constitution and delay in making an order of detention. The rule as to unexplained delay in taking action is not inflexible. It was observed that in cases arising under the Cofeposa, mere delay in passing an order of detention of persons who are posing a serious threat to the economy of the country and there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded as sufficient to snap the nexus. The authorities may sometimes take time for a detailed investigation for action under the Customs Act and also for a criminal prosecution. It may also happen that there is no apprehension as long as the person is in custody in the criminal case and only after he is released on bail, the customs authorities might consider preventive detention necessary and address the detaining authority. It may also be that the detaining authority may take time in calling for particulars from the sponsoring authority, consider the same, place it before the Screening Committee and come to a conclusion later. One cannot say that investigation should have been hurried. The detaining authority is not obliged to explain the delay to the detenu but is obliged to explain the same to the Court. While delay in observing the time limits in regard to safeguards provided by Article 22(5) of the Constitution might vitiate detention, that principle does not apply to delay in passing the order of detention. The latter is a factor relevant only in the context of finding out whether, as a fact, the nexus between the incident and the detention has snapped. Unexplained delay does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o judgments run counter to the reasoning in the Supreme Court judgments referred to earlier, we are unable to follow them in view of Article 141 of the Constitution of India. (11) Coming to the facts in the present case, we find that in the counter-affidavit filed by the Deputy Secretary (Home), it is stated that the incident took place on 21.12.92, and after carrying out investigation, complaint under Sections 132 and 135 was filed in the Court of the Acmm on 22.2.93, the proposal for detention was received from the Customs Department by the Home Department on 17.3.1993, which was examined there. The Customs Department was asked to supply up to date information/documents necessary for passing the detention order. The matter was placed before the Screening Committee on 30.3.93, reply from the Customs Department was received on 16.4.93, the Home Department examined the papers and the case was processed and put up to the Lt. Governor on 19.4.93 through Deputy Secretary (Home) and Secretary (Home) who approved the proposal for detention on 23.4.93 and then the detention order was issued on 28.4.93. It is pointed out that the time was taken for collecting the up to date material nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ither by taking action under Section 7 of Cofeposa or in arresting the detenu when he physically appeared before the Collector of Customs was held to break the proximate link. Where the detenu himself delayed the execution by first moving to the High Court and then to the Supreme Court, the delay cannot be questioned (Subhash Muljimal Gandhi vs. L. Himingliana . In Narendra Punjabhai Shah vs. Union of India 1994 (2) Scale 112, the order was passed on 18.8.92 but served on 24.8.93, after one year. The detenu appeared before the Court on two occasions and order was not served. Explanation that the documents were being translated was not accepted. Even the search at his address referred was only up to 11.12.92 and there was no explanation for the period up to 6.4.93. Hence the delay was held not properly explained. (14) From the aforesaid decisions of the Supreme Court, the following principles can be gathered. Delay in executing a detention order, if satisfactorily explained, cannot vitiate the detention. If the detenu has been absconding or trying to evade arrest till he surrendered after initiation of procedure under Sections 82 and 83 Cr. P.C., the delay cannot be fatal. Mere f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lice conducted raids at the address given by petitioner to the Doctor and found that the petitioner was not residing there. Reports were submitted by police on 21.9.93 and 8.10.93. On 19.10.93, the Assistant Collector gave names/addresses of sureties and the same were sent to police on 27.10.93. One of the sureties was found to have died and the other surety did not provide any clue. Petitioner did not attend proceedings in the Court on 3.1.94. The order was served on 22.2.94 in the Court of Acmm, Delhi. For these facts, we are satisfied that a proper explanation was given and also that petitioner was evading. Hence Point 2 is held against the petitioner. Point 3 : It is argued for the petitioner that some of the documents annexed to the grounds of detention are irrelevant and that the detaining authority has relied on them and hence the detention order is vitiated. Several rulings of learned Single Judges of this Court are cited. The contention is that while the detaining authority might have relied on a large number of relevant documents, it has also relied on certain other documents which have no connection with the offence and contain purely historical or linking facts or f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mehta's case . There the parties were arrested at Cochin for possessing 60 gold biscuits. The grounds were (1) the search and seizure at Room No. 316 of Dwarka Hotel and recovery of 60 gold biscuits, (2) the fact that importation of 60 gold biscuits could not be explained by the detenu, (3) the secretive manner in which the said gold biscuits were kept, and (4) confessions recorded under Section 108 of the Customs Act. It was argued that inasmuch as the retraction of the confession was not placed before the detaining authority the detention order was vitiated. This contention was rejected holding that if the retraction was not placed before the authority, the confession to which it was referable, could be eschewed and that would amount to omitting one of the grounds specified in the detention order. If ground No. (4) goes, the other grounds (1) to (3) - which obviously consisted of facts and inferences - remained and could sustain the order under Section 5-A. It has to be noticed that these other grounds (1) to (3) refer to the same seizure of 60 gold biscuits and still remained. It was held: So even if the statements made under Section 108 by the father, the sons and daug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts relevant to smuggling the detention can be sustained by resort to Section 5-A. (23) There is,however, another aspect where apart from innumerable basic facts or inferences there from (called grounds ), the authority refers to certain documents which are admittedly not offending or adverse to the detenu but have a purely innocuous, redundant or neutral content. These neutral documents might have also been communicated to the detenu along with the grounds of detention. Is the subjective satisfaction vitiated ? Supposing an application by detenu for return of Air Ticket for claiming refund or application for copy of Passport or seeking B class in Jail is also placed before the detaining authority and also communicated to the detenu, is the subjective satisfaction vitiated ? Does it amount to non-application of mind ? (24) Wade, Administrative Law (7th Edition, 1994, pp. 409 to 411) deals with this very question. He says : There are some situations in which the presence of irrelevant motives will not necessarily be fatal. The most obvious are where they do not in fact affect the action taken or where they operate in the complainant's favor (Hanks vs. Minister (1963 [1] Q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Facts relating to preamble or introduction need not be supplied (Dhananjoy Das vs. District Magistrate . Only copies of documents on which order of detention is primarily based should be supplied and not any and every document. All that has to be shown is that any document having bearing on the subjective satisfaction of the detaining authority but not relied upon by him was before the detaining authority at the time he passed the order of detention. (Madan Lal Anand vs. Union of India) . The same principle must, in our view, apply if the facts or documents, placed before the detaining authority give no scope , even according to the detenu, for being relied upon. (27) The argument of the petitioner's counsel in fact contains an inherent contradiction. If the detenu himself contends that the document has nothing to do with the offence and that it is not adverse or incriminating, he cannot at the same time contend that the document has been relied upon by the detaining authority against him. Merely because the detention order uses the word relied , it cannot be said that the documents which have no content were also relied . This aspect we shall explain below further. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... copies of his application for B Class, a Vakalatnama, a list of documents, a medical certificate and bills and other documents which have nothing to do with the offence and then the detention order will be vitiated. Reliance was placed on the Supreme Court decision in Smt. Shalini Soni vs. Union of India where it was said that there was an obligation to apply mind to pertinent and proximate matters only, eschewing the irrelevant and the remote . That was a case of Cofeposa detention. The Supreme Court first held that the application sent by the detenu for copies of various documents also prayed for release and further that non- supply of copies of documents relating to the facts stated in the grounds was a clear violation of Constitutional safeguards under Article 22(5). Communication of grounds , it was stated, implied formulation of grounds by application of mind to the facts and materials before it, that is to say, pertinent and proximate matters in regard to each case and excludes the elements of arbitrariness and automatism . In that context it was said that the mind must be applied to pertinent and proximate matters only eschewing irrelevant and the remote. The Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re not material or relevant and hence the detention order was vitiated. Apart from Shalini Soni's case, the learned Judge referred to other rulings. Ramesh vs. State of Gujarat , referred to therein, related to detention under the Gujarat Prevention of Anti Social Activities Act,1985 and there the Court took into account certain facts in an earlier detention order which was quashed and to a criminal case which ended in acquittal. It was a case of non-application of mind to the quashing of the earlier detention order and to the acquittal in the criminal case. That case did not deal with the question now before us. The other case relied on was C.B. Kahar vs. N.L. Kalra again under the same Gujarat Act where too facts in an earlier detention order which was quashed were relied upon. That case too does not deal with the question before us. Rajendra Prasad vs. State of U.P. (AIR 1975 S.C. 919) related to a case under the Maintenance of Internal Security Act, 1971 and the very decision, while stating that satisfaction must be real and rational and not random divination, clearly says that sufficiency of material is not for the Court. The Court was dealing with offences against public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n there are mass of other relevant facts before the authority - the detention could be held vitiated. The word relied in the detention order must be reasonably construed, in the context of Section 5-A and the relevant documents. It has to be understood in a distributive sense and as referable to the other relevant documents and as not referring to the innocuous, non-prejudicial, historical or casual events. (36) The Supreme Court has stated that the compulsions of the very preservation of the values of freedom or democratic society and of social order might compel a curtailment of individual liberty . To lose our country by a scrupulous adherence to the written law said Thomas Jefferson would be to lose the law itself, with life, liberty and all those who are enjoying with us; thus absurdly sacrificing the end for the means . (Ayya vs. State of U.P.) (Prakash Chandra Mehta's case) (supra). Freedoms must be looked at from a pragmatic and common sense point of view. (Prakash Chandra Mehta's case) (supra). Recently, the Supreme Court stated, whatever may be one's own notions of individual liberty, one must accept the provisions relating to preventive detention in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Saturday, Sunday; 15th was Independent Day (holiday), the representation was considered on 18.8.1994, that the request being one to convene another meeting of the Advisory Board, a letter was addressed on 19.8.1994 to the Board about the request, 20th, 21st were Saturday, Sunday and the Deputy Registrar, High Court wrote on 24.8.1994 that the Board has submitted its Report to Government as time therefore had expired, that 27th, 28th were Saturday Sunday, and on 2.9.1994 the Government received the letter of the High Court and, 3rd 4th September were holidays; and representation was rejected on 7.9.1994. In view of this explanation, we cannot say that there was any unreasonable delay or supine indifference or callousness on the part of the State Government. Point 6 : The point is that the earlier representation dated 21.4.1994 given to the Advisory Board and which came to the State Government was not independently considered and that the State was influenced by the advice of the Board. A plea of delay is also raised. In the counter of the State dated 13.9.1994, it is stated (in Para L) that the representation was considered independently by the detaining authority and rejected o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are,however, not to be understood as having expressed any opinion in regard to the correctness of the above Judgment. (40) So far as application falling under Section 21 of the General Clauses Act is concerned, the position is that the authority which passes the order can revoke its order in exercise of powers under Section 21 of the General Clauses Act. If such an application is kept pending, only mandamus can be issued. If an order is passed and is bad, certiorari alone can be issued. But no question of release by issuing a writ of habeas corpus arises because it is not a case of delay in considering a representation under Section 11. On merits, we do not think that there is any error in the rejection of this third representation on the ground of rejection of an earlier representation and also on the ground that the Advisory Board was referred and they were of the opinion that no further action was called for. Here, it is to be noted that it is not a case of the detaining authority relying upon the opinion of the Board at the time of confirmation of detention under Section 8(f). Here we are at a later stage where a third representation is rejected for the reasons referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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