TMI Blog2000 (4) TMI 831X X X X Extracts X X X X X X X X Extracts X X X X ..... is driver Madhavan were the only occupants. There was no luggage. When questioned, the detenu gave contradictory replies. Since there was no sufficient light and safety, the car was brought to the Customs Office at Salem for a detailed scrutiny. The officers enquired from both the occupants as to whether they had any concealed gold bars. The occupants replied in negative. Thereafter, the car was searched thoroughly and it was found that inside the air-filter of the car four packets were placed, which were covered by a newspaper and a nylon rope. Each packet was found containing ten gold bars. On enquiry, the occupants stated that they were not having any customs duty paid document or any valid document for licit transportation/possession/transportation of gold bars in question. The total weight of the gold was 4665.600 gms and it was valued at ₹ 20,60,000. The gold bars were seized on the reasonable belief that the gold bars, which were of foreign origin, were smuggled into India without payment of custom duty. The white colour contessa car was also seized. 3. It is further suggested in the grounds that a statement of B.C. Madhavan was recorded on 28.1.1999 under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter dated 2.2.1999 that the stock position of gold with Parasmal as on 25.1.1999 was nil and that the Parasmal, in his statement dated 29.1.1999, had stated that he was a gold bullion dealer and that on 27.1.1999, the detenu had come to him at 6.00 P.M. and asked for gold bars but, since the detenu was told that Parasammal would not be in a position to deliver 40 gold biscuits, he left the place and that the Parasmal did not know as to where the detenu went therefrom. 6. The grounds then make a reference to the telegram sent by the wife of the detenu and the petitioner herein dated 29.1.1999 in which, she claimed that the bills were available for the gold bars seized. There is also a reference to her subsequent letter dated 30.1.1999 that the gold bars were purchased through Parasmal from a shop, viz. Maruthi Bullion and that the gold bars were hidden in the air-filter of the car for security sake and that when the detenu had asked for two bills, he was told that they would be given later. Since the detenu was a regular customer in business, he accepted the gold bars with a request to give the bills later and that the statement of the detenu was not a voluntary statement. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o jewellery shop under the name and style of M/s. Prabha Jewellery, Main Road, Devangere. 11. It is then pointed out that the detenu and Madhavan were arrested on 28.1.1999 and were produced before the Judicial Magistrate-1, Salem and were sent to judicial custody, which was extended ultimately upto 8.4.1999. A bail application was also filed but the same was dismissed. The petition for return of the car was also dismissed. The bail petitions made to the Chief Judicial Magistrate, Salem and the High Court were also dismissed on 10.2.1999 and 19.3.1999 respectively. Lastly, it is suggested that the conditional bail was granted to the detenu on 30.3.1999 and the conditions of the bail were modified by order dated 19.5.1999. 12. In paragraph 10 of the grounds It is stated: Gold is a notified item under Section 123 of the Customs Act, 1962. Since, on demand, you have not been able to produce valid document for licit import or possession of the gold under seizure and thus failed to discharge the burden of proof as required under Section 123 of the Customs Act, 1962, the said goods (gold) were rendered liable to confiscate and the act of omission on your part in this regard amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court judgment and suggests that there was, in reality, no prejudice caused as the detenu is a qualified person and had been given a full opportunity to explain his stand before the Advisory Board. (iii) Lastly, he contends that it is a misnomer to say that the order has been passed on the erroneous notion of law. He pointed out that the detention order could well be passed on the basis of the legal provision such as Section 123 of the Customs Act. 15. In support of his first contention Mr.B. Kumar, learned senior counsel pointed out that in this case, the incident had taken place on 28.1.1999 when the gold bars were seized. He urges that all the investigation was over as the grounds revealed that there, is nothing which was being done by the Department after they came to know about the sale transaction and also about the fact that the bills which were issued by M/s. Maruthi Bullion Associates were in the name of non-existent persons. Mr. Kumar taken us through the grounds again and again in order to show that all the statements stood recorded upto 4.3.1999, that is barely within the time span of one month and a week. He points out that even if it was true that the detenu was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve link between the prejudicial activities and the purpose of detention is snapped is depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay between the prejudicial activities and the passing of the detention order, the court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the Court has to investigate whether the casual connection has been broken in the circumstances of each case. 18. In Anand Prakash's case, AIR1990SC516 the delay of even three months was held to be fatal. However, the learned Standing Counsel for the Central Government argues that that was a case based on a single incident and more particularly the detention has been passed und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effected on 28.1.1999 and the investigation was carried out which resulted in collection of further documents and the further developments of remand extension petitions, bail petitions and the petition for relaxation of bail conditions took place and the last of the document was dated 19.5.1999. The stand is taken that the proposal was sent by the sponsoring authority to the Ministry on 3.6.1999 and the Screening Committee had approved the proposal in a meeting held on 17.6.1999. It, is then suggested that the minutes of the approval of the Screening Committee were received on 5.7.1999 and eventually the detention order came to be passed on 14.7.1999. Thus the only plea which is taken is that of investigation. 21. Now, it has already been seen from the facts above that there is absolutely no investigation after 4.3.1999. Even if the time is stretched, it can be stretched upto 30.3.1999 when the detenu was ordered to be released on bail but, in our opinion, even that period would be of no consequence and merely because the bail was granted on 30.3.1999, it could not be by itself a reasonable explanation as to why the authorities did not act. After all, the authorities could alwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut that in this case, the Advisory Board held its meetings on 16.9.1999. He also points out that a show cause notice under Section 124 of the Customs Act was served on the detenu on 22.7.1999 and that show cause notice was replied to by the detenu on 3.8.1999. In this show cause notice a clear allegation was made that the gold-bars which were carried by the detenu were smuggled gold-bars and that the detenu had engaged himself in smuggling activities. The learned counsel points out that a detailed reply was given to this show cause notice by the detenu on 3.8.1999. Even driver Madhavan also gave a reply to this notice on 26.8.1999. The learned counsel points out that these replies were never put before the Advisory Board by the concerned authorities. A ground to that effect has been raised by way of an amendment. 23. In their counter-affidavit, the respondent Central Government points out that such a show cause notice was, in fact, served on 24.7.1999 while the detenu was in jail but before that itself, the detention order was already passed on 14.7.1999 and, therefore, there was no question of the said show cause notice being considered by the detaining authority so far there c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed not have been placed before the Advisory Board. In this behalf, the learned counsel for the petitioner took a very clear stand that these documents were extremely relevant and material documents. He points out that the said documents clarified the stand on facts as also on law by the detenu regarding the possession of the gold-bars and, therefore, these documents were extremely relevant documents and could have helped the Advisory Board to come to the conclusion whether there was in fact any justification for passing the order of detention or not. Unfortunately, this aspect has not been countered by the respondents and then it is a tacit admission that the documents were relevant and material documents. In this behalf, our attention was invited to the decisions of this Court in K. V. Jesudasan v. State of Tamil Nadu, 1989 Cri. L.J. 637. H.C.P. No.1459 of 1999, decided on 23.4.1996 as also the H.C.P. Ho.1672 of 1998, decided on 17.3.1999, to the last judgment one of us (V.S. Sirpurkar, J.) was a party. In all these cases, the principle is accepted that even in spite of the documents coming into being after the passing of the order of detention, if such documents are relevant and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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