TMI Blog1990 (1) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the detenu to be set at liberty in this case. Appeal is allowed and the detenu is to be set at liberty - 49 of 1990 - - - Dated:- 31-1-1990 - S. Ranganathan and K.N. Saikia, JJ. [Judgment per : K.N. Saikia, Member (J)]. - Special leave granted. After the Appellant landed at Trivandrum Airport from Abu Dhabi, he was intercepted by the customs officials detecting that he smuggled 13 gold sheets weighing 1280 gms. valued at Rs. 4,26,240/- concealed inside the plywood panels of his blue suitcase which was seized along with his two passports, old and new. He was arrested on 31-1-1988 and was produced before the Chief Judicial Magistrate (Economic Offences) Ernakulam who remanded him to judicial custody till 12-2-1988. On 12-2-1988 he was granted bail on condition inter alia, that he would report before the Superintendent (Intelligence) Air Customs, Trivandrum on every Wednesday until further orders, and that he would not change his residence without prior permission of Court to "25-2-1988." The impugned detention order dated 25-6-1988 was passed by the Home Secretary, Government of Kerala. It stated that the Government of Kerala was satisfied with respect to the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds urged in the writ petition before the High Court have also been added in this petition and the writ petition itself has been annexed as Vol. II to the Special Leave Petition. 3. The main grounds on which the detention order is being challenged by the learned counsel for the appellant Mr. C.S. Vaidyanathan, inter alia, are that after the event there was inordinate delay in passing the detention order which showed that there was no genuine need for detention of the appellant; that there was inordinate and unexplained delay of 38 days in execution of the detention order; that all the documents and materials, particularly the appellant's bail application, the bail order, the show cause notice and his reply thereto were not placed before the detaining authority; that these documents and the fact that the appellant's old and new passports were seized and without those it would not be possible for the appellant to carry on smuggling were not brought to the notice of the declaring authority and that there was non-application of mind. 4. Mr. T.T. Kunhikannan, the learned counsel for the State of Kerala submits, inter alia, that there was no such delay between the date of detection a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered to be fit for detention under the COFEPOSA Act. It is submitted for the State that thorough investigation of the case was required on the part of the Customs authorities both for the proceedings under the Customs Act and for prosecution in the criminal Court, and as such the proposal could not have been hurried through. These facts have not been shown to be untrue. Under the above circumstances can it reasonably be held that the nexus between the Smuggling Act and the detention order was snapped or that the grounds became stale? 6. Where the seemingly long time taken for passing the detention order after the prejudicial act is the result of full and detailed investigation and consideration of the facts of the case, the ground cannot be held to be remote and the detention cannot be held to be bad on that ground. In Ashok Narain v. Union of India (1982) 2 SCC 437, where the detenu was apprehended for breach of Foreign Exchange Regulation in February 1981 and without launching any prosecution the detenu was detained in October, 1981 the passage of time being the result of full and detailed consideration of facts and circumstances of the case after thorough examination at variou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of detention under a law like the COFEPOSA Act enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence, have been posing a serious threat to the economy and thereby to the security of the nation, the courts should not merely on account of the delay in making of an order of detention assume that such delay, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. Taking of such a view would not be warranted unless the Court finds that the grounds are stale or illusory or that there was no real nexus between the grounds and the impugned order of detention. In that case, there was no explanation for the delay between February 2, and May 28,1987, yet it could not give rise to legitimate inference that the subjective satisfaction arrived at by the District Magistrate was not genuine or that the grounds were stale or illusory or that there was no rational connection between the grounds and the order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re not known and that the C.I. had been instructed to make all possible efforts to apprehend the warrantee. On 2-8-1988 the Superintendent of Police, Malapuram sent a wireless message to the Home Secretary stating that the detention order had been served on the detenu on 2-8-1988 at his residence and his acknowledgement obtained and he had been sent to the Central Prison, Trivandrum. Mr. Vaidyanathan's submission that the detenu could not have been absconding in view of his reporting as required by the bail order is not acceptable. The second condition in the bail order said : "that he will not change residence without prior permission of Court to 25-2-1988". There was no mention regarding the period thereafter. There is also no statement in the affidavit to the effect that the detenu was all along available at his residence or that he had not changed it. But even assuming that he was residing there, there is no reason to disbelieve the statement of the police that they were unable to find him earlier than they actually did. 12. Where the passage of time is caused by the detenu himself by absconding, the satisfaction of the detaining authority cannot be doubted and the detention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he detenu was arrested on October 2, 1988. The submission was that there was inordinate delay in arresting the petitioner pursuant to the order and that it indicated that the order was not based on a bona fide and genuine belief that the action or conduct of the petitioner were such that the same were prejudicial to the maintenance of public order. Sabyasachi Mukherji, J., as my Lord the Chief Justice then was, observed that whether there was unreasonable delay or not would depend upon the facts and circumstances of a particular situation and if in a situation the person concerned was not available and could not be served, then the mere fact that the action under Section 7 of the Act had not been taken, would not be a ground for holding that the detention order was bad. Failure to take action even if there was no scope for action under Section 7 of the COFEPOSA Act, would not by itself be a decisive or determinative of the question whether there was undue delay in serving the order of detention. 14. In Shafiq's case the affidavit affirmed by the detaining authority showed that several raids of the petitioner's premises for the service of the order dated 15-4-1988 were conducted a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut he did not report this immediately and mentioned it to the detaining authority only on 27-7-1988. He was obviously not aware that, under the terms of the bail order, the detenu had to report every week at the Customs Office. If he had reported his difficulty earlier or if the detaining authorities had apprised him of the terms of the bail order, it would have been possible to have had the detention order served earlier. These communication gaps should, we think, be avoided since it is of the very essence of a detention order to have it served at the earliest. While we have accepted the explanation tendered in the present case for this delay, we would like the State to ensure that such delays do not occur as, apart from giving the detenus a ground for attacking the detention order, such delay really tends to frustrate and defeat the very purpose of preventive detention. 17. The next submission of counsel was that the detaining authority should have realised that the seizure of the detenu's passports was by itself sufficient to restrain the detenu's smuggling activities, if any, and refrained from passing the order of detention. We see no force in this contention. This was no do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to bear in mind that the detenu is in jail and has no access to his own documents. In Mohd. Zakir v. Delhi Administration (1982) 2 SCC 216 it was reiterated that it being a constitutional imperative for the detaining authority to give the documents relied on and referred to in the order of detention pari passu the grounds of detention, those should be furnished at the earliest so that the detenu could make an effective representation immediately instead of waiting for the documents to be supplied with. The question of demanding the documents was wholly irrelevant and the infirmity in that regard was violative of Constitutional safeguards enshrined in Article 22(5). 20. It is also imperative that if the detenu was already in jail the grounds of detention are to show the awareness of that fact on the part of the detaining authority, otherwise there would be non-application of mind and detention order vitiated thereby. In the instant case though the order of detention ex-fade did not mention of the detenu having been in jail, in paragraph 3 of the grounds of detention it was said that he was arrested by the Superintendent (Intelligence) Air Customs, Trivandrum on 31-1-1988 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... materials were before it, it has not allowed them to influence its satisfaction. The Court is entitled to examine the correctness of this statement and determine for itself whether there were any other basic facts or materials, apart from those admitted by it, which could have reasonably influenced the decision of the detaining authority and for that purpose, the Court can certainly require the detaining authority to produce and make available to the Court the entire record of the case which was before it. That is the least the Court can do to ensure observance of the requirements of law by the detaining authority." 22. From the decision in Ramesh Yadav v. District Magistrate, Etah Ors. (1985) 4 SCC 232, it can be said that the facts of the detenu having been in jail and his being granted bail are by themselves not enough to justify the passing of the detention order. In that case it was mentioned in the grounds of detention : "At this time you were detained in the District Jail, Mainpuri and you have filed an application for bail in the court of law which is fixed for hearing on September 17,1984, and there is positive apprehension that after having bail you will come out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted a relevant and important material was fatal to the subsequent detention order on ground of non-application of mind. If the detaining authority considered that order one could not state with definiteness which way his subjective satisfaction would have reacted and it could have persuaded the detaining authority to desist from passing the order of detention. If in the instant case the bail order on condition of the detenu's reporting to the Customs authorities was not considered the detention order itself would have been affected. Therefore, it cannot be held that while passing the detention order the bail order was not relied on by the detaining authority. In S. Gurdip Singh v. Union of India (1981) 1 SCC 419, following Ichhu Devi Choraria v Union of India (supra) and Smt. Shalini Soni v. Union of India, 1981 (1) SCR 962, it was reiterated that if the documents which formed the basis of the order of detention were not served on the detenu along with the grounds of detention, in the eye of law there would be no service of the grounds of detention and that circumstance would vitiate his detention and make it void ab initio. 25. Mr. Kunhikannan relies on Haridas Amarchand Shah v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing authority, which meant that the show cause notice, the reply thereto, and the seizure list of the passports were not placed before him. 28. The declaration made under Section 9 of the COFEPOSA Act by the Additional Secretary to the Government of India on 23-8-1988 reads as under : "Whereas Shri M. Ahamed Kutty S/o Shri Cheriya Saidukutty has been detained on 2-8-1988 in pursuance of order No. 35158/SSAI/88/Home dated 25-6-1988 of the Government of Kerala made under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 with a view to preventing him from smuggling gold; And whereas I, the undersigned, specially empowered in this behalf by the Central Government, have carefully considered the grounds of detention and the material served on the detenu; Now, therefore, I, the undersigned, hereby declare that I am satisfied that the aforesaid Shri Ahamed Kutty S/o Shri Cheriya Saidukutty is likely to smuggle goods into and through Trivandrum Airport which is an area highly vulnerable to smuggling as defined in Explanation 1 to Section 9(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in the minds of the declaring authority that they were likely to continue their prejudicial activities. 30. The emphasis in Section 9 appears to be on the satisfaction that the detenu (a) smuggles or is likely to smuggle goods into, out of or through any area highly vulnerable to smuggling; or (b) abets or is likely to abet the smuggling of goods into, out of or through any area highly vulnerable to smuggling; or (c) engages or is likely to engage in transporting or concealing or keeping smuggled goods in any area highly vulnerable to smuggling; and in making a declaration to that effect within 5 weeks of the detention of the person. Explanation 1 defines "area highly vulnerable to smuggling" and Explanation 2 defines "customs airport" and the "customs station". It is true that under Section 10 of the COFEPOSA Act, where the provisions of Section 9 apply, the maximum period of detention shall be a period of two years from the date of detention or the specified period whichever period expires later. However, nothing contained in Section 9 shall affect the power of the appropriate Government in either case to revoke or modify the detention order at any earlier time. This may impl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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