Madras High Court
M.Gunasundari vs The Joint Secretary (Cofeposa) on 27 August, 2014
Author: V.Dhanapalan
Bench: V.Dhanapalan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :: 27-08-2014 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN AND THE HONOURABLE MR.JUSTICE G.CHOCKALINGAM H.C.P.No.2815 OF 2013 M.Gunasundari ... Petitioner -vs- 1.The Joint Secretary (COFEPOSA), Government of India, Ministry of Finance, Department of Revenue, Central Economic Intelligence Bureau, Janpath, New Delhi. 2.The Secretary, Government of India, Department of Revenue, Central Economic Intelligence Bureau, Janpath Bhavan, New Delhi. ... Respondents For petitioner : Mr.B.Kumar, Senior Counsel, for Mr.R.Rajarathinam. For respondents : Mr.Velayutham Pichaiya, Central Government Standing Counsel. Petition under Article 226 of the Constitution of India, praying for issuance of a writ of habeas corpus. O R D E R
Wife of the detenu has filed this Habeas Corpus Petition, challenging the order of detention passed under Conservation of Foreign Exchange & Prevention of Smuggling Activities (COFEPOSA) Act,1974, by the first respondent against V.Arivazhagan @ Arivalagan vide F.No.673/20/2013-Cus VIII, dated 04.10.2013.
2. Case of the petitioner is as under :
2.1. In the grounds of detention, it is alleged that DRI officers had received specific intelligence that foreign marked gold bars were being smuggled from Sri Lanka to Kodiakarai and were to be transported to Chennai by road. Based upon that, two seizures of gold bars were effected from Bolero vehicle at Thiruthuraipoondi and from Innova Vehicle at Kollidam bridge at Sirkazhi on 15.06.2013. J.Anand along with Karuthapandi @ Suresh Kumar and Tamilarasan were arrested with regard to the Kollidam bridge at Sirkazhi seizure and Balamurugan and M.Kumar were arrested with regard to Thiruthuraipoondi seizure. 58 foreign marked gold bars along worth 6 gold bars were seized from Innova vehicle. Two separate cases were registered by DRI Tuticorin and DRI Coimbatore with regard to the seizure at Thiruthuripoondi and Kollidam respectively. All the occupants of the two vehicles were arrested and remanded. Anand was shown as an accused in F.No.VIII 48/03/2013-DRI Coimbatore and Arivazhagan was shown as an accused in F.No.VIII/48/03/2013-DRI Tuticorin. Both Anand and Arivazhagan along with other accused were enlarged on bail and were complying with the bail condition and during that period, detention orders dated 04.10.2013 were passed against Anand and Arivazhagan and both are detained in Central Prizon, Trichy.
2.2. The entire grounds of detention allege that Anand and Arivazhagan are instrumental in the smuggling of gold bars seized from the Bolero vehicle and Innova vehicle on 15.06.2013 at two different places. There are two cases registered. One is File F.No.VIII/48/03/2013-DRI Tuticorin with regard to the seizure of 9802.850 gms. of gold bars from Bolero vehicle TN09 AC 4388 at the cross roads of Nagapattinam-Muthupettai on 15.06.2013 at about 04.30 a.m. Another one is File No. F.No.VIII/48/03/2013-DRI Coimbatore with regard to the seizure of 11 kg of foreign marked gold bars from Innova vehicle TN 51 D 7167 at Kollidam bridge on 15.06.2013 at 7 a.m. Anand was arrested with regard to the DRI Coimbatore case and Arivazhagan was arrested with regard to DRO Tuticorin case. Neither of them was shown as an accused in the other case. There is no explanation from the sponsoring authority why the detenu is not shown as an accused in the other case. This is another material aspect which would shown that the detenu is not connected with the seizure of alleged foreign marked gold bars. The grounds of detention start by saying that DRI received specific intelligence with regard to the smuggling of foreign marked gold bars from Sri Lanka to Kodiakarai and were to be transported to Chennai by road. Accordingly, DRI officers kept surveillance at two places namely at Thiruthuraipoondi and at Kollidam bridge at Sirkazhi. There is no material to support the fact that foreign marked gold bars were smuggled from Srilanka to Kodikarai except the statement of the detenu and one Suresh Kumar @ Karuthapandi. As per the statement of Arivazhagan, the mobile numbers of persons at Chennai to whom the gold bars were to be handed over were available in the mobile numbers of Anand and Karuthapandi @ Suresh Kumar. However, there is no mention about the seizure of cell phones of any of the detenu or Suresh Kumar to trace out the purchasers at Chennai. The detaining authority ought to have called for explanation/particulars with regard to the alleged purchasers at Chennai. This shows the total non-application of mind by the detaining authority in not calling ror explanation from the sponsoring authority. Therefore, in the absence of any material to show that the alleged foreign marked gold bars were smuggled at Kodiakarai by the detenu Anand or Arivazhagan and also in the absence of any material to show the persons who had received the alleged foreign marked gold bars, the detenu's alleged overt act will not amount to smuggling of gold bars.
2.3. In paragraph 20 of the grounds of detention, it is mentioned that "the detenu Arivazhagan with "Ji" a foreign national in smuggling of gold bars from Sri Lanka and receiving them at sensitive points of coastal areas of kodiakadu and nearby places over a considerable period of time unlawfully not only caused loss to revenue to the exchequer but also had paved the way for hawala transactions as outflow of considerations for these transactions which is detrimental to the economy". There is no material to come to a conclusion that gold bars were received at nearby places over a considerable period of time. The loss of revenue to the exchequer and also to hawala transactions pertains to different Act, which cannot be the basis to pass the detention order for the violation of Customs Act as alleged in the grounds of detention.
2.4. In paragraph 21, it is mentioned about two previous cases. Both pertain to the years 1989 and 1990 and the seizure is textiles and chillies respectively. On these two cases, the detenu Arivazhagan cannot be termed as habitual offender. Further, both thecases are for the offence under Customs Act. While so, the subjective satisfaction that "indulging in economic offences detrimental to country's foreign exchange reserves" relates to some other Act and alien to Customs Act. Therefore, the subjective satisfaction of the detaining authority vitiates for non-application of mind.
2.5. In paragraph 23, it is stated that "in arriving at the conclusion that Arivazhagan through his acts of omission and commission indulged in smuggling activities". There is no material before the detaining authority with regard to "omissions" of the detenu. Further, the satisfaction of the detaining authority that "he is presently free on bail which suggests that there is a strong likelihood that unless checked he would again indulge in the aforementioned illegal activities, especially since his accomplices in the present case have been enlarged on bail and he still have contacts with Sri Lankan based persons who supplied gold bars to him." It is also based upon no material. Therefore, the detention order is passed mechanically without application of mind.
2.6. There is a serious non-application of mind by the detaining authority in passing the detention order. Nowhere in the order of detention or in the grounds of detention, it is mentioned under which category the detention order is passed under Section 3 (1) of COFEPOSA Act against the detenu. Unless the order and grounds of detention are specific, the detenu is handicapped from effectively challenging the order of detention. Non-mentioning of the category under Section 3 (1) of COFEPOSA Act will vitiate the detention order. There is no material before the detaining authority that after the detenu was enlarged on bail, he indulged in any prejudicial activities which warrant the passing of detention order.
2.7. Grounds of detention mention that Anand and Suresh Kumar @ Karuthapandi were apprehended while they were transporting the gold bars in the Innova vehicle on 15.06.2013. In the statement of Anand, it is mentioned that his cell phone number is 9788725599. As per the statement of Sureshkumar, his mobile numbers are 9976990433 and 9597348818 and of Arivazhagan is 9751599393 and the mobile number of "Ji" of Sri Lanka is 0094750674002.
2.8. As per the statement of Arivazhagan, on 14.06.2013, at about 01.00 p.m., one Chandran of Sri Lanka informed him over phone about the arrival of 7 parcels of gold bars dispatched in a boat, which were seized by DRI at Thiruvarur and Thirumulaivasal. At about 8.00 p.m., Arivazhagan called Anand over phone to come and collect parcels. In the early morning on 05.06.2013, he tried to contact Kumar over phone but he did not pick up the phone. He was informed by one Ramasubramaniam working in customs office Kodikarai over phone about the seizure of gold bars. He phoned Karuthapandi and Kumar but they did not pick up the phone. Chandran of Sri Lanka contacted him over phone. The mobile numbers of the Sri Lankans involved in this smuggling activity are available in his mobile Nos.9976990433 and 95997398818 being used by Karuthapandi. The mobile numbers of the person at Chennai to whom the gold bars were to be handed over were available in the mobile phones of Anand and Karuthapandi. However, at the time of alleged apprehension of Anand and Suresk Kumar @ Karuthapandi, no cell phones were seized. The sponsoring authority did not take any steps to find about from the call details, whether any communication took place among the Sri Lankan, Anand, Arivazhagan and Suresh Kumar @ Karuthapandi. The fact that neither the cellphones of the detenu or Karuthapandi were seized nor the call details pertaining to the cellphones collected would prove that there is no seizure of gold bars by DRI as alleged by them in the grounds of detention. The detaining authority ought to have called for explanation from the sponsoring authority before passing the detention order.
2.9. On behalf of the detenu, a representation has been sent to the second respondent by RPAD and it is the bounden duty of the second respondent to satisfy the Court that the representation was considered and disposed of in accordance with the Constitution of India without any undue delay.
2.10. Accordingly, she prayed for quashing of the impugned detention order.
3. Respondents 1 and 2 have filed a counter affidavit, stating as follows :
3.1. DRI, Chennai Zonal Unit, received a specific intelligence that foreign marked gold bars were being smuggled by sea from Kangesanthurai of Jaffna District in Sri Lanka to Kodiakarai, a coastal village, located at Vedaranyam Taluk, Nagapattinam District (Tamil Nadu) and were to be transported to Chennai by road. Accordingly, the DRI officers kept surveillance at two places viz., one at Thiruthuraipoondi and another at Kollidam Bridge at Sirkazhi and effected seizure of the following :
(1) three packets kept concealed under the gear rod boot of a Bolero venhicle contain 87 gold bars with "suisse essayeurfondeur 100 999.0" marking and 1 gold bar with "Commerz Bank 100 gms switzerland" marking and 6 cut pieces of unmarked gold of different size, totally weighing to be 9802.850 gms., valued at Rs.2,72,51,923/-; and (2) four packets concealed under the plastic mat around gear rod boot of the Innova vehicle, found to contain 110 gold bars with the markings "COMMERZE BANK 100g, MELTER ASSAYER SWITZERLAND 999", weighing totally 11 kgs., valued at Rs.3,05,80,000/-.
3.2. Statement of V.Arivazhagan was recorded on 09.07.2013 before the SIO, DRI, at DRI, Tuticorin, and in his statement he, inter-alia, deposed that during the period from 1984 to 1988, Sri Lankan Tamils came as refugees to Kodiakadu village and they were kept in the refugee camps; that he had the chance of getting acquaintance with Shri Chandran @ Indran of Madagal of Jaffna District in Sri Lanka; that during those days, Chandran used to illegal export textiles from India to his place and later, about ten years back, he had left for his native place; that during January 2012, the said Chandran contacted him over mobile and informed him that he along with Shri Ananth @ Anand of Kodaikarai were smuggling gold bars on behalf of five or six persons; that Chandran came to know that Arivazhagan remained as a hindrance to their business; that Chandran also requested Arivazhagan that if Arivazhagan agreed and remained in peace with Ananth @ Anand, Chandran would also give share to him in this gold bar smuggling; that Chandran also informed him that he and Ananth would get equal commission at the rate of Rs.500/- for each gold bar; accordingly, they decided that either Ananth or he should go to the sea-shore to receive the gold bars and Ananth and his nephew Suresh Kumar @ Karuthapandi, on his behalf, should take the same to Chennai for delivery and to get their charges; initially, they did not get much money but started getting more money, when the number increased gradually (from 25-30 bars) to smuggling of 100 bars per week; during March 2013, he fixed the marriage of his daughter with Arulananth @ Anandarajan @ Arul, the ender brother of Ananth; since June 2013, gold bars started coming from Sri Lanka daily; either Ananth or he would go the sea-shore to receive the gold bars coming in the boat and he did not know the name of the owner of the boat or the names of the persons coming in the boat and he contacted the persons coming in the boat over mobile phone only; usually, the gold bars were brought in the boats by concealing them in the fishing nets; sometimes, they were brought by concealing inside the diesel tank; he used to open the packet in the forest area itself and re-pack it with tape roll and then send it to Chennai; in his absence, when Ananth used to collect the gold bars, he too adopted the same procedure; they never counted the gold bars and about 3 kgs. of gold bars were kept in one parcel.
3.3. Arivazhagan further stated that on 14.06.2013, at about 01.00 p.m., Chandran informed him over phone about the arrival of seven parcels of gold bars in a boat; accordingly on 14.06.2013, at about 06.30 p.m., he, along with helpers, went near kodiakarai Soukkam Plot tower sea-shore and collected gold from one of the two persons in the boat, who got down from the boat; after receiving the parcel at about 8.00 p.m., he handed over 4 parcels to Ananth meant for him near the Panchayat Pond situated in their Athivasi Street; as the parcels meant for him were covered with black coloured tape, he was able to differentiate; later, as pre-planned, he reached the house of Balamurugan alias Bala in Vedaranyam by bus with the remaining three parcels; the said Bala was a driver in a travel agency and as he often hired vehicle from Bala, he knew him very well; he took Bala to the parking place of Bolero car which he was driving and concealed the three parcels of gold bars by opening the plastic lid at the bottom end of the gear rod of that vehicle and closed the plastic lid and tightened the screws; he paid Rs.7000/- as hire charges and also paid an extra amount of Rs.3000/- to Bala; he informed Bala that his nephew Karuthapandi and Ananth would be coming to Chennai to act as per the instructions of Karuthapandi; at the time of handing over the gold bar parcels to Ananth, he knew that those two persons would also be taking gold bars to Chennai in a separate car; in the meantime, he came to know that his brother-in-law Kumar was also leaving for Chennai and he asked him over phone to go in the said car to Chennai and he also informed Bala to take him; Karuthapandi was also aware of gold bars being transported in the said vehicle; later, he returned to his home and in the early morning next day i.e., on 15.06.2013, he tried to contact Kumar over phone, but he did not pick up the phone; at about 09.00 a.m., IRS alias I Ramasubramaniam, working in Customs Office, Kodiakarai, called him over phone and asked him as to whether he knew about the seizure of gold bars, which he replied in negative; he phoned up Karuthapandi and Kumar again, but they did not pick up the phone and he guessed that there was some problem; in this regard, Chandran contacted him over phone but immediately disconnected the call on coming to know about the seizure of gold bars from him; one person from Dubai also enquired from him in this regard; after that, he was not able to contact anybody; the mobile numbers of the Sri Lankans involved in this smuggling activity were available in the mobile; the numbers 9976990433 and 9597398818 are being used by Karuthapandi; he used to contact them through Karuthapandi's mobile; the mobile numbers of the persons at Chennai to whom the gold bars were to be handed over were available in the mobile phones of Ananth and Karuthapandi; as Karuthapandi and Ananth were going to give delivery of the goods, they only knew the details of those persons and that he committed this offence for greed of money.
3.4. Arivazhagan was arrested on 10.07.2013 and remanded to judicial custody on 11.07.2013 by Judicial Magistrate, Thiruvarur, and he was lodged in Central Prison, Trichy. He has filed a bail application before the Judicial Magistrate, Thiruvarur, which was dismissed on 05.08.2013. Subsequently, District & Sessions Judge, Thiruvarur, granted him bail on 12.09.2013. From the statements of the persons found in the two vehicles and from his own statement, role of V.Arivazhagan @ Arivalagan emerged as one of the key persons having contacts with Sri Lankan based persons since 1989. Arivazhagan was receiving gold at secret non-notified customs locations and was actively participating in concealment of this smuggled gold in the two vehicles. In past also, he had been found to be involved in smuggling as under :
(1) seizure of textiles valued at Rs.1,06,540/- while attempted to be illegally exported. In this regard, a penalty of Rs.5,000/- was imposed on him.
(2) seizure of chillies valued at Rs.81,688/- while attempted to be illegally exported and a penalty of Rs.500/- was imposed on him.
This further indicated his propensity to indulge in smuggling activities.
3.5. From the facts available on record, it was apparent that Arivazhagan along with Ananth has been behind the smuggling of gold bars from Sri Lanka, regardless of quantity, since long i.e., January 2012, which was admitted by Arivazhagan. Both of them had entered into a conspiracy with Chandran of Sri Lanka and had agreed to receive the smuggled gold bars coming in boats in contravention of the provisions of the Customs Act,1962, at Kodiakarai sea-shore and to deliver the same at the destination for monetary benefits.
3.6. Arivazhagan along with Ananth played a vital role in the entire smuggling activity by conspiring with Chandran of Sri Lanka who arranged and sent the Foreign Mark Gold bars regularly from Sri Lanka and delivered them at Kodiakarai coast, Tamil Nadu. Arivazhagan and Ananth admitted that 20.803 kgs. (in 7 packets) of gold bars under seizure were received by Arivazhagan at the sea-shore of Kodiakarai. It is also established that the vehicle (Bolero) was arranged by Arivazhagan for the concealed transport of 9802.850 gm of smuggled gold to Chennai. Arivazhagan admitted that he himself indulged in concealing the gold bars in the said conveyance (Bolero). The regular illicit import (smuggling) of gold bars at Kodiakarai sea-shore by Arivazhagan is established from the statements of Arivazhagan himself and Ananth, Suresh Kumar @ Karuthapandi and Balamurugan, the persons who played role in the transport of the smuggled gold bars. Further, as admitted by Arivazhagan, he has been doing it for a long time and to reach a level of smuggling on daily basis from June,2013. His continuous act of smuggling of gold bars from Sri Lanka to Indian coast is established with the seizures of Foreign Marked gold bars, weighing 20.803 kg at Thiruvarur and Kollidam Bridge, Sirkazhi (Mahazar drawn at Thirumullaivasal) on 15.06.2013 duly corroborated not only by his statement dated 09.07.2013 but also by the statements of his associates viz., Ananth, Suresh, Balamurugan, M.Kumar and Thamizharasan. Balamurugan and Kumar are none other than the relatives of Arivazhagan and Ananth and their statements, in the given circumstances referred above, have more credence than their statements under any other circumstances. His association with "Ji", a foreign national, in smuggling of gold bars from Sri Lanka and receiving them at sensitive points of coastal areas of Kodiakadu and its nearby places over a considerable period of time unlawfully caused loss of revenue to the exchequer.
3.7. All these facts go on to state that Arivazhagan is a habitual offender indulging in serious economic offences detrimental to revenue. Further, his propensity to indulge in smuggling, if not prevented, is strong. There was a live link between his smuggling activities and the need to restrain him from indulging in such activities.
3.8. Thereafter, based on the proposal of the Directorate of Revenue Intelligence (DRI), Chennai, detention order was issued on 04.10.2013 against Arivazhagan by the Joint Secretary (COFEPOSA), the specially empowered Officer of the Central Government, under the COFEPOSA Act,1974, to prevent him from indulging in the smuggling of goods in future. The detention order has been executed on him on 16.10.2013 and he is presently lodged in Central Prison, Trichy.
4. Learned Senior Counsel for the petitioner has raised the following three grounds to assail the impugned order of detention, namely,
i) that retraction of the confession statement must be forwarded to the Officer concerned is not applicable in detention cases and the officer, who is said to have recorded the confession statement of the detenu, has also not denied the allegations made by the detenu in his bail application before the Sessions Court, Tiruvarur. Therefore, it may be construed as a complete denial of giving any statement by the detenu and it is more than a retraction;
ii) that there has not been real and proper consideration of the representation and that there is an unexplained and unsatisfactory explanation for the delay of 19 days in receiving the parawise remarks from the sponsoring authority between 13.11.2013 and 02.12.2013, which would vitiate the order of detention;
iii) that non-placement of relevant material documents pertaining to the grounds of detention, which were available with the sponsoring authority ought to have been placed before the detaining authority and that non placement of show cause notice dated 09.12.2013 before the Advisory Board would vitiate the detention order.
In support of his contentions, the learned Senior Counsel has relied upon the following decisions :
(i)AIR 1975 SCC 775 (John Martin vs. West Bengal) :
It is now well settled by several decisions of this Court that the mere fact that a criminal case had to be dropped against a detenu because the investigation could not procure evidence to sustain his conviction would not be sufficient to bold that the detention order made against him is mala fide. We may refer only to one of these decisions, namely, B. C. Biswas v. State of West Bengal. There, the grounds on which the order of detention was based referred to two incidents in which the detenu and his associates were alleged to have participated. Reports were lodged with the police against the detenu in respect of the two incidents mentioned in the grounds of detention. The investigating officer, after investigating the cases relating to those incidents submitted a report that "nothing could be had against the petitioner". detenu was, therefore, discharged in those cases. the argument urged on behalf of the detenu was that in the circumstances the order of detention should be held to be mala fide. This argument was rejected by a Division Bench in the following words :
"In our opinion. even if it may be assumed that cases were registered against the petitioner by the police in respect of the two incidents mentioned in the grounds of detention and the, police as a result of the investigation could not procure evidence to sustain the conviction of the petitioner, that fact would not be sufficient to hold that the detention order made against the petitioner was mala fide. The matter is indeed concluded by a decision of this Court in the case of Sahib Singh Dugal v. Union of India. The petitioner in that case was arrested on December 6, 1964, for offence under the Official Secrets Act. On March 11, 1965, the Investigating Officer made a report to the Court to the effect that the petitioner and others involved in that criminal case might be discharged as sufficient evidence for their conviction could not be discovered during the investigation. The Magistrate consequently discharged the petitioner and others. Immediately after the petitioner came out of the Jail, he was served with an order for his 'detention under Rule 30(1)(b) of the Defence of India Rules. One of the contentions which was advanced on behalf of the petitioner in Petition under Article 32 of the Constitution was that the detention order was mala fide inasmuch as it had been made after the authorities had decided to drop criminal proceedings because of inability to get sufficient evidence to secure conviction. This contention was repelted by this Court and it was held that the above circumstance was not sufficient to lead to the inference that. the action of the detaining authority was mala fide. This Court observed:
"We cannot infer merely from the fact that the authorities decided to drop the case under the Official Secrets Act and thereafter to order the detention of the petitioners under the Rules that the order of detention was mala fide."
(ii) AIR 1981 SC 2230 (1) (Sat Pal vs. State of Punjab and others) :
''12. In the present case, there was, therefore, no denial of the right of making a representation to the Central Government for revocation of the order of detention under Section 11 of the Act, unlike in Rattan Singh's case (supra) There is nothing but the unexplained delay on the part of the State Government and that by itself is not sufficient to invalidate the order of detention. The detenu was not deprived of the right of making a representation to the State Government, i.e., the detaining authority as well as of the right of making a representation to the Central Government for revocation of the order of detention under Section 11 of the Act The representations that he made were duly considered by the State Government and the Central Government. The contention that the unexplained delay on the part of the State Government is sufficient to invalidate the order of detention can hardly be accepted. The Court must look at the substance of the matter and not act on mere technicality.
13. We have no hesitation in repelling the contention that the power of revocation conferred On the Central Government under Section 11 is not attracted until the State Government has considered the representation made by the detenu and rejected it and until the Advisory Board has submitted its report to the State Government. Under the Act, a detenu has the right to simultaneously make a representation to the detaining authority which has to be considered by the Advisory Board, as also the right to apply to the Central Government for revocation of the detention order under Section 11. It is implicit in the decision in Rattan Singh's case (supra), that there was a duty cast on the State Government to forward the representation to the Central Government forthwith and failure to do so may render the continued detention illegal. Failure to comply with the second condition does not make the order of detention valid, merely because there is compliance with the first. These considerations, however, do not arise in the present case.
(iii) AIR 1983 SC 300 (Yumman Mangibabu Singh vs. State of Manipur) :
6. In our view, therefore, the non-furnishing of copies of aforesaid two statements really prevented the appellant from making effective representation against his detention and since the constitutional safeguard in this behalf was clearly breached the impugned detention order cannot be sustained.
7. There is yet one more aspect regarding the grounds of detention furnished to the appellant. After setting out the particulars and materials of the alleged activities on the part of the appellant in paragraphs (1)(b) and (1)(c) the grounds go on to recite: Thus with your active and voluntary help you managed to divert a huge sum of government money to the said outlawed organisation, . . . In other words, a clear case of actual or accomplished diversion of government funds has been made out. Both in his special leave petition as well as in his writ petition the appellant has categorically averred (vide para 8 in SLP as well as in WP) that the office record shows that the said bills have not been paid as yet for want of sufficient funds; hence the question of diverting funds or helping the PLA Organisation does not arise. In the counter-affidavits filed by the District Magistrate (the detaining authority) it has been stated that the bills have not been paid is of no consequence. They were passed for payment. In other words, in the counter-affidavit a clear case of there being an attempt to divert government funds has been made out. In other words, it is a clear case of non-application of mind on the part of the detaining authority to the facts that obtained at the time of the passing of the impugned order. On this aspect the High Court has observed that in the grounds the expression used is manage and even the process of diversion (meaning attempted diversion) would fall within the ambit of the expression and that Annexures 3, 4, 6 and 7 together constituted the materials leading to the aforesaid ground. In our view, the question is not whether the expression manage is wide enough to include the process of diversion but the question is what case is the appellant called upon to meet. Has he to meet the case of actual or accomplished diversion of government funds or the case of an attempted diversion of government funds and if in this behalf the material on record shows that there was non-application of mind on the part of the detaining authority to the facts that obtained at the time of the passing of the impugned order, it can be said that the appellant was certainly prejudiced in the matter of making effective representation.
(iv) AIR 1984 SC 1334 (1) (Vijay Narain Singh vs. State of Bihar) :
12. A person is a habitual criminal who by force of habit or inward disposition, inherent or latent in him, has grown accustomed to lead a life of crime. It is the force of habit inherent or latent in an individual with a criminal instinct, with a criminal disposition of mind, that makes him dangerous to the society in general. In simple language, the word habitually means by force of habit. The Act appears to be based on Prevention of Crime Act, 1908 (c-59). By Prevention of Crime Act, as amended by the Indictments Act, 1915, a person after three previous convictions, after attaining sixteen years of age could, with the consent of the Director of Public Prosecutions, in certain cases, be charged with being a habitual criminal and, if the charge was established, he could, in addition to a punishment of penal servitude, in respect of crime for which he has been so convicted, receive a further sentence of not less than five years or more than ten years, called a sentence of preventive detention. Upon this question of a mans leading persistently a dishonest or criminal life, where there has been a considerable lapse of time between a mans last conviction and the commission of the offence which forms the subject of the primary indictment at the trial, notice containing particulars must have been given and proved of the facts upon which the prosecution relied for saying that the offender is leading such a life. If, on the other hand, the time between a mans discharge from prison and the commission of the next offence is a very short one, it may be open to the jury to find that he is leading persistently a dishonest or criminal life by reason of the mere fact that he has again committed an offence so soon after his discharge from a previous one, provided the notice has stated this as a ground. This essentially is a question of fact. The scheme under the English Act is entirely different where a person has to be charged at the trial of being a habitual criminal. Therefore, the considerations which govern the matter do not arise in case of preventive detention under Section 12(2) of the Act.
16. Those who are responsible for the national security or for the maintenance of public order must be the sole judges of what the national security or public order requires. Sufficiency of grounds is not for the court but for the detaining authority for the formation of his subjective satisfaction that the detention of a person under Section 12(2) of the Act is necessary with a view to preventing him from acting in any manner prejudicial to the maintenance of public orders The power of preventive detention by the District Magistrate under Section 12(2) is necessarily subject to the limitations enjoined on the exercise of such power by Article 22(5) of the Constitution. It has always been the view of this Court that the detention of individuals without trial for any length of time, however short, is wholly inconsistent with the basic ideas of our Government and the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of the citizen except in accordance with the procedure established by law. The Court has therefore in a series of decisions forged certain procedural safeguards in the case of preventive detention of citizens. As observed by this Court in Narendra Purshotam Umrao v.B.B. Gujral when the liberty of the subject is involved, whether it is under the Preventive Detention Act or the Maintenance of Internal Security Act or the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act or any other law providing for preventive detention [SCC p. 642, para 17] it is the bounden duty of the court to satisfy itself that all the safeguards provided by the law have been scrupulouslyobserved and that the subject is not deprived of his personal liberty otherwise than in accordance with law.
17. At the same time, the community has a vital interest in the proper enforcement of its laws particularly in an area where there is worsening law and order situation, as unfortunately is the case in some of the States today in dealing effectively with persons engaged in anti-social activities seeking to create serious public disorder by ordering their preventive detention and at the same time in assuring that the law is not used arbitrarily to suppress the citizen of his right to life and liberty. The impugned order of detention has not been challenged on the ground that the grounds furnished were not adequate or sufficient for the satisfaction of the detaining authority or for making of an effective representation. The Court must therefore be circumspect in striking down the impugned order of detention where it meets with the requirements of Article 22(5) of the Constitution and where it is not suggested that the detaining authority acted mala fide or that its order constituted an abuse of power.
(v) AIR 1988 SC 208 (State of U.P. vs. Kamal Kishore Saini) :
8. The High Court has found that the incidents mentioned in ground Nos. 1 and 2 are confined to law and order problem and not public order inasmuch as these incidents concerned particular individuals and do not create any terror or panic in the locality affecting E. the even tempo of the life of the community. This Court in the case of Dr. Ram Manohar Lohia v. State of Bihar and Ors., (1966] 1 SCR 709 has observed:-
"The contravention of law always affects order but before it can be said to affect public order it must affect the community or the public at large. There are three concepts according to the learned Judge (Hidayatullah, J) i.e. "law and order", "public order" and "security of the State". It has been observed that to appreciate the scope and extent of each of them one should imagine three concentric circles. The largest of them represented law and order, next represented public order and the smallest represented the security of the State. An act might affect law and order but not public order just as an act might affect public order but not the security of the State".
9. Similar observation has been made in the case of Arun Ghosh v. State of West Bengal, [1970] 3 SCR 288 The observation is to the following effect:
"Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality. Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance of public tranquility. It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether the disturbance amounts only to a breach of law and order. Take for instance, a man stabs another. People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act. Take another case of town where there is communal tension. A man stabs a member of the other community. This is an act of a very different sort. Its implications are deeper and it affects the even tempo of life and public order is jeopardized because the repercussions of the act embrace large sections of the community and incite them to make further breaches of law and order and to subvert the public order. An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different."
(vi) AIR 1991 SC 574(1) (K.M.Abdulla Kunhi and another vs. Union of India and others) :
17. The crucial question that remains for consideration is whether the Government should consider and dispose of the representation before confirming the detention. This Court in V.J. Jain case has observed (at 405) that it is a constitutional obligation under clause (5) of Article 22 to consider the representation before confirming the order of detention. if it is not so considered, the confirmation becomes invalid and the subsequent consideration and rejection of the representation could not cure the invalidity of the order of confirmation. To reach this conclusion, the Court has relied upon two earlier judgments of this Court: (i )Khudiram Das v. State of West Bengal and Ors., [1975] 2 SCC 81 and (ii) Khairul Haque v. State of West Bengal, W.P. No.246/69 decided on 10.9.1969(Unreported).
19. There is no constitutional mandate under cl. (5) of Article 22, much less any statutory requirement to consider the representation before confirming the order of detention. As long as the Government without delay considers the representation with an unbiased mind there is no basis for concluding that the absence of independent consideration is the obvious result if the representation is not considered before the confirmation of detention. Indeed, there is no justification for imposing this restriction on the power of the Government. As observed earlier, the Government's consideration of the representation is for a different purpose, namely to find out whether the detention is in conformity with the power under the statute. This has been explained in Haradhan Saha case, where Ray, C.J., speaking for the Constitution Bench observed that the consideration of the representation by the Government is only to ascertain whether the detention order is in conformity with the power under the law. There need not be a speaking order in disposing such representation. There is also no failure of justice by the order not being a speaking order. All that is necessary is that there should be real and proper consideration by the Government.
20. It is necessary to mention that with regard to liberty of citizen the Court stands guard over the facts and requirement of law, but Court cannot draw presumption against any authority without material. It may be borne in mind that the confirmation of detention does not preclude the Government from revoking the order of detention upon considering the representation. Secondly, there may be cases where the Government has to consider the representation only after confirmation of detention. Clause (5) of Article 22 suggests that the representation could be received even after confirmation of the order of detention. The words 'shall afford him the earliest opportunity of making a representation against the order' in clause (5) of Article 22 suggest that the obligation of the Government is to offer the detenu an opportunity of making a representation against the order, before it is confirmed according to the procedure laid down under Section 8 of the Act. But if the detenu does not exercise his right to make representation at that stage, but presents it to the government after the Government has confirmed the order of detention, the Government still has to consider such representation and release the detenu if the detention is not within the power conferred under the statute. The confirmation ofthe order of detention is not conclusive as against the detenu. It can be revoked suo motu under Section 11 or upon a representation of the detenu. It seems to us therefore, that so long as the representation is independently considered by the Government and if there is no delay in considering the representation, the fact that it is considered after the confirmation of detention makes little difference on the validity of the detention or confirmation of the detention. The confirmation cannot be invalidated solely on the ground that the representation is considered subsequent to confirmation of the detention. Nor it could be presumed that such consideration is not an independent consideration. With all respect, we are not inclined to subscribe to the views expressed in V.J. Jain. Om Prakash Bahl and Khairul Haque cases. They cannot be considered to be good law and hence stand overruled.
(vii) AIR 1992 SC 1831 (K.T.M.S. Mohammed and another vs. Union of India) :
34. We think it is not necessary to recapitulate and recite all the decisions on this legal aspect. But suffice to say that the core of all the decisions of this Court is to the effect that the voluntary nature of any statement made either before the Custom authorities or the officers of Enforcement under the relevant provisions of the respective Acts is a sine qua non to act on it for any purpose and if the statement appears to have been obtained by any inducement, threat, coercion or by any improper means that statement must be rejected brevi manu. At the same time, it is to be noted that merely because a statement is retracted, it cannot be recorded as involuntary or unlawfully obtained. It is only for the maker of the statement who alleges inducement, threat, promise etc. to establish that such improper means has been adopted. However, even if the maker of the statement fails to establish his allegations of inducement, threat etc. against the officer who recorded the statement, the authority while acting on the inculpatory statement of the maker is not completely relieved of his obligations in at least subjectively applying its mind to the subsequent retraction to hold that the inculpatory statement was not extorted. It thus boils down that the authority or any court intending to act upon the inculpatory statement as a voluntary one should apply its mind to the retraction and reject the same in writing. It is only on this principle of law, this Court in several decisions has ruled that even in passing a detention order on the basis of an inculpatory statement of a detenu who has violated the provisions of the FERA or the Customs Act etc. the detaining authority should consider the subsequent retraction and record its opinion before accepting the inculpatory statement lest the order will be vitiated. Reference may be made to a decision of the Full Bench of the Madras High Court in Roshan Beevi v. Joint Secretary to the Government of T.N., Public Deptt. to which one of us (S. Ratnavel Pandian, J.) was a party.
(viii) (1991) Supp (2) SCC 153 (K.Satyanarayan Subudhi vs. Union of India and others) :
3. We have considered the same very minutely and carefully and it appears to us that in fact there were not two grounds but only one ground and the non-placement of the retraction of the confessional statement by the detenu before the detaining authority and non-consideration of the same while arriving at his subjective satisfaction in making the order of detention goes to the root of the order of detention and in our considered opinion makes the order of detention invalid.
4. In these circumstances we do not think that the decisions of this Court in Prakash Chandra Mehta v. Commr. and Secy. Govt. of Kerala as well as Madan Lal Anand v. Union of India are applicable to the instant case. We have also considered another aspect of the matter i.e. the detenu is under detention for over eight months and the order of detention is for a period of one year. Considering this aspect also along with the" other aspect mentioned hereinbefore we think it just and proper to quash the order of detention and direct for the release of the detenu appellant forthwith provided he is not wanted by any other order. The appeal is thus allowed and the order of detention is quashed.''
(ix) (1979) 1 SCC 222 (Ashadevi vs. K.Shivraj and another) :
6. It is well-settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get vitiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order. In Sk.Nizamuddin v. State of West Bengal, the order of detention was made on September 10, 1973 under Section 3(2)(a) of MISA based on the subjective satisfaction of the District Magistrate that it was necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community and this subjective satisfaction, according to the grounds of detention furnished to the petitioner, was founded on a solitary incident of theft of aluminium wire alleged to have been committed by the petitioner on April 14, 1973. In respect of this incident of theft, a criminal case was filed inter alia against the petitioner in the Court of the Sub-Divisional Magistrate, Asansol, but the criminal case was ultimately dropped as witnesses were not willing to come forward to give evidence for fear of danger to their life and the petitioner was discharged. It appeared clear on record that the history-sheet of the petitioner which was before the District Magistrate when he made the order of detention did not make any reference to the criminal case launched against the petitioner, muchless to the fact that the prosecution had been dropped or the date when the petitioner was discharged from that case. ...
(x) (1995) 4 SCC 51 (Kamleshkumar Ishwardas Patel vs. Union of India and others) :
14. Article 22(5) must, therefore, be construed to mean that the person detained has a right to make a representation against the order of detention which can be made not only to the Advisory Board but also to the detaining authority, i.e., the authority that has made the order of detention or the order for continuance of such detention, who is competent to give immediate relief by revoking the said order as well as to any other authority which is competent under law to revoke the order for detention and thereby give relief to the person detained. The right to make a representation carries within it a corresponding obligation on the authority making the order of detention to inform the person detained of his right to make a representation against the order of detention to the authorities who are required to consider such a representation.
(xi) (1996) 3 SCC 194 (Kundanbhai Dulabhai Shaikh vs. District Magistrate, Ahmedabad and others) :
25. Black-marketing is a social evil. Persons found guilty of economic offences have to be dealt with a firm band, but when it conies to fundamental rights under the Constitution, this Court, irrespective of enormity and gravity of allegations made against the detenu, has to intervene as was indicate in Mahesh Kumar Chauhan's case(supra) and in an earlier decision in Mahesh kumar Deorah v. District Magistrate, Kamrup & Ors., AIR (1974) SC 183, in which it was observed that the gravity of the evil to the community resulting from anti-social activities cannot furnish sufficient reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the particularly as normal penal laws would still be available for being invoked rather than keeping a person in detention without trial.
(xii) (1999) 1 SCC 417 (Rajammal vs. State of Tamilnadu and another):
9. What happened in this case was that the Government which received remarks from different authorities submitted the relevant files before the Under-Secretary for processing it on the next day. The Under-Secretary forwarded it to the Deputy Secretary on the next working day. Thus there is some explanation for the delay till 9-2-1998. Thereafter the file was submitted before the Minister who received it while he was on tour. The Minister passed the order only on 14-2-1998. Though there is explanation for the delay till 9-2-1998, we are unable to find out any explanation whatsoever as for the delay which occurred thereafter. Merely stating that the Minister was on tour and hence he could pass orders only on 14-2-1998 is not a justifiable explanation when the liberty of a citizen guaranteed under Article 21 of the Constitution is involved. Absence of the Minister at the Headquarters is not sufficient to justify the delay, since the file could be reached the Minister with utmost promptitude in cases involving the vitally important fundamental right of a citizen.
(xiii) 1999 (8) SCC 473 (Ahamed Nassar vs. State of Tamilnadu and others) :
11. We have to keep in mind that the mode of communication for the statutory authorities has to be in the mode prescribed which has to be reasonable. It has been stated and we have also found from the file placed before us that the mode of these communications was through speed post. This could not be construed as callous, slack or casual disposition of his representation. For the respondent it was stated from the records that the communication between the Central Government at New Delhi and the sponsoring authority and detaining authority at Chennai was through speedpost. The stated delay was on account of vagaries of the Postal Department. It is not attributable to the States. Hence on the facts and circumstances of this case, it is not possible to hold, there was any delay in the disposal of the detenus representation by the Central Government. In our considered opinion there was no delay in consideration of the detenus representation both by the State and the Central Government.
15. In this case, the Court held that though there is explanation for delay till 9-2-1998 but no explanation had been given for the delay which occurred thereafter that is to say till 14-2-1998. These decisions render no help to the detenu. The present case is not such a case. The delay attributed was caused in postal communications. So such a short delay may not have much bearing. What is relevant is, there should be a reasonable explanation for such delay. How have the authorities dealt with the matter? If it was casual, neglect, keeping relevant papers immobile without any reasonable cause they are attributable to assess delay. But delay on account of vagaries of or on account of inefficiency of postal or communicating agencies cannot in normal circumstances be taken as inexcusable delay either by the sponsoring or detaining authority or the State authorities concerned in disposal of the detenus representation.
31. In interpreting any provision of preventive detention law, its preamble and its objectives have to be kept in mind. The Preamble of COFEPOSA is:
An act to provide for preventive detention in certain cases for the purposes of conservation and augmentation of foreign exchange and prevention of smuggling activities and for matters connected therewith.
34. In order to achieve this objective, in the national interest an obligation is cast on the State even to curtail the most sacred of the human rights, viz., personal liberty. The source of power to curtail this flows from Article 22 of the Constitution of India within the limitation as provided therein. Every right in our Constitution within its widest amplitude is clipped with reasonable restrictions. Right under Article 15 not to be discriminated on grounds of religion, race, caste, sex, etc. is clipped through its sub-clauses (3) and (4) while making provisions for women, children, socially and educationally backward classes, Scheduled Castes and Scheduled Tribes respectively. Article 16 creates right for equality of opportunity in the matter of public employment which is curtailed through its sub-clauses (3), (4), (4-A) and (5) by enabling Parliament to make law confining to a class or classes for employment to an office even prior to such employment, permitting reservation in favour of Backward Classes, Scheduled Castes and Scheduled Tribes or in the cases of religious denominational institutions. Each of the most solemn rights of any citizen is cloaked with reasonable restrictions under various sub-clauses of Article 19. The protection of life and personal liberty enshrined in Article 21 itself contains the restriction which can be curtailed through the procedure established by law, which of course has to be reasonable, fair and just. Article 22 confers power to deprive of the very sacrosanct individual right of liberty under very restricted conditions. Sub-clauses (1) and (2) confer right to arrest within the limitations prescribed therein. Sub-clause (3) even erases this residual protective right under sub-clauses (2) and (3) by conferring right on the authority to detain a man without trial under the preventive detention law. This drastic clipping of right is for a national purpose and for the security of the State.''
(xiv) (2000) 7 SCC 148 (A. Sowkath Ali vs. Union of India and others) :
20. There can be no doubt, it was not necessary, while considering the case of the petitioner detenu, to place all or any of the documents which are relevant and are relied on in the proceedings of a co-accused, but where the sponsoring authority opts out of its own volition to place any document of the other co-detenu, not merely as a narration of fact but reiterating in details the confession made by him, then it cannot be said it would not prejudice the case of the detenu. If this has been done it was incumbent for the sponsoring authority to have placed their retraction also. As held in Rajappa Neelakantan case, the placement of document of other co-accused may prejudice the case of the petitioner. In the first pace the same should not have been placed, but if placed, the confessional statement and the retraction, both constituting a composite relevant fact both should have been placed. If any one of the two documents alone is placed, without the other, it would affect the subjective satisfaction of the detaining authority. What was the necessity of reproducing the details of the confessional statement of another co-accused in the present case? If the sponsoring authority would not have placed this then possibly no legal grievance could have been made by the detenu. But once the sponsoring authority having chosen to place the confessional statement, then it was incumbent on it to place the retraction also made by them. In our considered opinion, its non-placement affects the subjective satisfaction of the detaining authority. This Court has time and again laid down that the sponsoring authority should place all the relevant documents before the detaining authority. It should not withhold any such document based on its own opinion. All documents, which are relevant, which have bearing on the issue, which are likely to affect the mind of the detaining authority should be placed before him. Of course a document which has no link with the issue cannot be construed as relevant.
(xv) 1982 L.W. Crl. 136 (A.M.S. Shakul Hameed vs. Union of India) :
6. It is common place of preventive detention law that the satisfaction of the detaining authority is subjective satisfaction. Even so the statute insists that the order of detention must be supported by grounds on which the detaining authority had obtained for itself the requisite satisfaction. This provides is the clearest indication in the statute to show that subjective satisfaction is not mere self-satisfaction, but something which the detaining authority arrives at on the materials on record. It follows that if the satisfaction of the detaining authority is based on no material the resultant order of detention cannot be justified under the statute as being based on any satisfaction, objective or subjective. To the same effect would be a misreading of the evidence on record. For, to misread the evidence is no different from acting on evidence which is not there. In this case, the detaining authority put words into the mouth of Chellappa when they said that he had fully corroborated Moulana. .... Out duty is to declare that the mind of the detaining authority was not properly made up at all. (xvi) 1988 L.W. Crl. (K.V.Jesudasan vs. State of Tamilnadu and another) :
8. In law, the responsibility of the Advisory Board in the scheme of preventive detention is extremely important. It is a body independent from the Detaining Authority, whose duty is to go into the facts in order to appreciate whether it is proper or not to keep the person concerned under detention. The detaining authority has to abide by the opinion of the Advisory Board in case the Advisory Board opines that it is not necessary to detain the person concerned. Therefore, the detaining authority cannot vest on himself any discretion regarding the opportunity of forwarding or not forwarding to the advisory board any material which may have some relevance on the detention. The relevance is to be ascertained having regard to the nature of document and not to its content in respect of which one may be lead to form a subjective opinion. In this case, the order of detention clearly indicates some connection between Jhaganghir and the detenu in matter of dealing in smuggled goods and therefore whatever reply Jhaganhir gives to the show cause notice issued to him by the Customs Department is palpably a relevant document. The failure to place it before the Advisory Board vitiates certainly the detention order. (xvii) 1992 L.W. Crl. 170 (Arun Kumar Soni vs. Union of India) :
4. To substantiate his contention, he pointed out, that the detaining authority had arrived at his subjective satisfaction, that the detenu had engaged himself in illegal dealings in foreign exchange and that the unauthorised transactions indulged in by him had affected the foreign exchange resources of the Country adversely, solely on the confessional statement of the detenu. If that be so, if the retraction was not within the awareness of the detaining authority, the said vice would affect the validity of the order of detention. He further pointed out, that in paragraphs 14 and 15 of the impugned order of detention, the detaining authority has referred to the retraction letter of N.Gaikwaad, stated to be involved in the same transaction along with the detenu, and that the detaining authority has specifically stated that he had taken into consideration the allegations contained in the aforesaid retraction of Gaikwaad and the replies thereto and was satisfied, that the said allegations were devoid of merit. Hence the contention of Mr.B.Kumar, was, that if such an exercise had been adopted, to another person involved in the same transaction, it would only indicate that the detaining authority was aware of the procedural formality required of him, but still had not made himself aware of the retraction of the confession by the detenu on 30.08.1991 in his bail application. (xviii) 1999 (1) L.W. (Crl.) 339 (Devarajan vs. State rep. by Secretary to Government, Chennai and another) 14. As already stated, the Government is under obligation to inform the detenu that the representation made by the detenu will be placed before the Advisory Board in the language known to the detenu. In the latest decision of the Apex Court in Pownammal vs. State of Tamil Nadu (1999 SCC (Crl.) 231), the Apex Court has held as follows:
The amplitude of the safeguard embodied in Article 22(5) extends not merely to oral explanation of the grounds of detention and the material in support thereof in the language understood by the detenu but also to supplying their translation in script or language which is understandable to the detenu. Failure to do so would amount to denial of the right being communicated the grounds and of being afforded the opportunity of making a representation against the order. It is seen from the above judgment that even the failure to give translated version of the remand order which are written in two lines is fatal to the order of detention. Though, the above decision is not directly applicable to the facts of this case, the law laid down by the Apex Court regarding the right of the detenu to make representation has to be taken into consideration. It is held that the non-supply of the document would amount to denial of the right. When such a right is denied to the detenu, there can be no difficulty in holding that the mandatory requirement of Section or the Act has been violated. We hold that the omission to state in the Tamil version of the grounds of detention that the representation will be placed before the Advisory Board is fatal. (xix) 2012 (2) L.W. Crl. 670 (Tharmar vs. State of Tamilnadu and others) :
9. The position, therefore, now is that if delay was caused on account of any indifference or lapse in considering the representation such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the delay, if any, in disposing the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned."
(xx) 1996 MLJ Crl. 271 (Asha S. Kini vs. Joint Secretary):
7. Appearing on behalf of the petitioner, Mr.Kumar raised two short points in support of the petition. He urged that the Detaining Authority had while recording his subjective satisfaction relied upon the detenu's statement recorded under Sec. 108 of the Customs Act. These statements, it was urged were inculpatory in nature and were in substance confessional statements. It was contended that while relying upon the said statements the Detaining Authority had not noticed, let alone applied its mind to, the fact that the said confessional statements had been retracted by the detenu. The retraction of the statement, argued by the learned counsel, was a very material circumstance and ought to have been noticed by the detaining authority while arriving at the conclusion drawn by him. Inasmuch as the Detaining authority had not noticed the retraction of the confessional statements, contended the learned counsel, the order of detention was vitiated rendering the detenu's detention illegal.
8. It was in the alternative argued that the statements of Sri Madhusudhan Sheth and P.M.Naik, copies whereof were furnished to the detenu referred to some earlier statements made by the said two persons on 12th of December, 1994 and 14th of December 1994, respectively. Copies of these earlier statements, it was contended, were neither placed before the Detaining Authority nor furnished to the detenu, thereby preventing the detenu from making an effective representation against his detention in the process defeating the valuable right guaranteed to the detenu under Article 22(5) of the Constitution.
17. Coming then to the facts of the present case, it is seen that the grounds of detention do not disclose any awareness on the part of the Detaining Authority regarding the retraction of the confessionsal statement of the detenu or the retraction of the other statements relied upon by it in the process of recording its subjective satisfaction. All that the grounds of detention refer to is that the detenu had made applications for the grant of bail which were opposed by the department and that in one of these applications filed before this Court he was eventually ordered to be released. The grounds of detention do not refer to, let alone discuss the retraction of, the confessional statement made by the detenu or his alleged accomplices in connection with the offence stated to have been committed by him. The memo filed by the detenu through his counsel in which the statement made was retracted has also not been referred to or discussed by the Detaining Authority. It is therefore apparent that the Detaining Authority was oblivious of the retraction of the detenu's confessional statement and had proceeded to pass the order of detention as if the statement made by the detenu under Sec. 108 of the Customs Act was a voluntary statement.
18. The argument advanced on behalf of the respondents that the reference to the bail applications and the memo containing the retraction in the annexure to the grounds of detention goes to demonstrate awareness of the Detaining Authority about the retraction of the confessional statement does not impress us. The reference to the bail applications or even the memo as one of the documents enclosed to the grounds of detention does not ipso facto mean that the Detaining Authority had properly applied its mind to the said documents particularly the fact that the confessional statements had been retracted by the detenu nor is such a reference a substantial compliance with the requirement of law that the Detaining Authority must disclose awareness of the facts relevant to the question whether or not to make an order of detention.'' (xxi) 2004 MLJ Crl. 290 (Saira Zackira vs. Joint Secretary) :
16. The detenu, in his bail application, has clearly stated that the statement obtained from him on 19.03.2012 was a statement obtained by force and at the dictates of the officers. He has further stated that he was threatened that if he did not give the statement as per the dictation, he would be arrested and that therefore, he gave the said statement. This is a clear retraction of the detenu from his statement dated 19.03.2002. The detaining authority has proceeded to rely on the said statement for the purpose of detention, as could be clearly seen from paragraphs 40, 50 and 73.1 of the grounds of detention. Relying upon the alleged statement, the detaining authority came to the conclusion that the detenu had violated the provisions of the Customs Act and the Import and Export Policy. ...
20. A Division Bench of the Karnataka High Court, in Asha Kini v. Joint Secretary, Government of India, 1996 M.L.J. (Crl.) 271, has taken the view that a reference to the bail application or even the memo as one of the documents enclosed to the grounds of detention does not ipso facto mean that the detaining authority had properly applied its mind to the said document, particularly to the fact that the confession statement had been retracted by the detenu. A mere reference to the bail application is not a substantial compliance with the requirement of law that the detaining authority must disclose the awareness of the fact relevant to the question whether or not to make an order of detention. (xxii) 2009 (1) MLJ 54 (S.C.) (Union of India vs. Ranu Bhandari) :
27. This brings us to the next question as to whether even such material as had not been considered by the Detaining Authority while issuing the detention order, is required to be supplied to the detenu to enable him to make an effective representation against his detention.
29. We are inclined to agree with the submissions made on behalf of the respondent that, notwithstanding the nature of the allegations made, he was entitled to the assurance that at the time when the detention order was passed all the materials, both for and against him, had been placed for the consideration of the Detaining Authority and had been considered by it before the detention order was passed, having particular regard to the orders passed by the Settlement Commission appointed under the provisions of the Customs Act, 1962, which absolved the detenu from all criminal prosecution.
30. In the instant case, as some of the vital documents which have a direct bearing on the detention order, had not been placed before the Detaining Authority, there was sufficient ground for the detenu to question such omission. We are also of the view that on account of the non-supply of the documents mentioned hereinbefore, the detenu was prevented from making an effective representation against his detention. (xxiii) 2000 (3) CTC 97 (Rajeswari vs. Joint Secretary to Government, New Delhi and another) :
24. Mr.K.Kumar, learned Standing Counsel for the Central Government, however, tried to argue that as, of course, the detenus under the COFEPOSA Act are given the chance to appear through the counsel before the Advisory Board and in this case also such an opportunity was given to the petitioner and it was only after hearing the counsel for the petitioner, the Advisory Board has expressed its opinion. The learned counsel, therefore, says that there was no prejudice and the petitioner himself could have put those documents before the Advisory Board. We are afraid in view of the aforementioned Division Bench judgments of this Court, we cannot accept this defence by the respondents. If there is a breach of duty in putting proper document before the Advisory Board, it would reflect against the rights of the detenu under Article 22(5) of the Constitution of India to make an effective and quick representation before the authorities against the detention order. It is the task of the Advisory Board itself to see the justification of the detention order. Therefore, if the relevant and material documents like the show cause notice under Section 124 of the Customs Act and the reply thereto by the detenu are not put before the Advisory Board, we are afraid the necessary consequence must follow and the detention would then be liable to be vitiated. (xxiv) W.P. (Crl.) No.602 of 1989, dated 28.02.1996 (Mohd. Towfeed Mohd. Mulaffar vs. The Additional Secretary to Govt. of Tamilnadu) :
... In this connection, counsel for the petitioner placed reliance on the decision of this Court in Ayya alias Ayuh vs. State of U.P. & another (1989) 1 SCC 874 in pragraphs 27 and 28 of the judgment, this Court, after referring to a telegram admittedly sent by the detenu but not considered by the detaining authority, observed as under:
''It is not disputed that the telegram was not placed before and considered by the detaining authority. There would be vitiation of the detention on grounds of non-application of mind if a piece of evidence, which was relevant though not binding, had not been considered at all. If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind which, in turn, vitiates the detention. The detaining authority might very well have come to the same conclusion after considering this material, but in the facts of the case, the omission to consider the material assumes materiality. (xxv) W.P.(Crl.) No.230 of 2008, dated 30.03.2009 (Yahiya vs. State of Kerala and others) :
6. ... The Apex Court in a number of cases decided that representations should be considered and disposed of as expeditiously as possible and unexplained delay in considering the representation amount to violation of Article 22(5) resulting in the detention being declared illegal. ...
5. Per contra, learned Central Government Standing Counsel, appearing for the respondents, has contended that retraction of any statement should be made to the authority before whom statements were given and any representation made to others can only be treated as representation or complaint; it is not the case of the petitioner that any retraction was given to the officer, who recorded the statements, and it is also not her case that she made representations to senior officers, who supervise the work of the officers, recording the statements and, therefore, the said ground will not render the detention order invalid. He has also contended that there is no retraction statement available for the simple reason that the detenu had not retracted his statement; even assuming for arguments' sake that the detenu had retracted his statement, then also, if any such retraction is not placed before the detaining authority, the order of detention would not become invalid as was held in Madan Lal Anand vs. Union of India, 1990 (45) E.L.T.204 (SC). Against the plea of improper consideration of the representation, it has been defended that the reason for the delay had been explained properly stating that the detaining authority had called for comments and translation from the sponsoring authority on 13.11.2013 and a reminder was also sent on 25.11.2013; the comments were received by the detaining authority on 02.12.2013 and the delay of 19 days in receiving the comments are because of the allocation of work as additional in-charge for all the Regional Units in the respective Zone and explained in the annexure filed before this Court. On the question of investigation details not being forwarded to the detaining authority by the sponsoring authority, which, according to the petitioner, is a very serious violation of the procedure, the stand taken by the learned Standing Counsel for the respondents is that a perusal of the grounds and the copies of relied upon documents reasonably go to show the commission of offence under Section 135 of the Act. He would further contend that the grounds enumerate the modus operandi of the detenu in the commission of the offence and the relied upon documents go to show the facets of the investigation and all relevant materials needed for the passing of the order were placed before the detaining authority, who had meticulously gone through the same in arriving at the subjective satisfaction and, as such, there is no violation of any procedure. He would cite the following authorities :
(i) AIR 1974 SC 2154 (1) (Haradhan Shah v. State of West Bengal and other) :
24. The representation of a detenu is to be considered. There is an obligation on the State to consider the representation. The Advisory Board has adequate power to examine the entire materials. The Board can also call for more materials. The Board may call the detenu at his request. The constitution of the Board shows that it is to consist of Judges or persons qualified to be Judges of the High Court. The constitution of the Board observes the fundamental of fair play and principles of natural justice. It is not the requirement of principles of natural justice that there must be an oral hearing. Section 8 of the Act which casts an obligation on the State to consider the representation affords the detenu all the rights which are guaranteed by Article 22(5). The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law. The Board on the other hand, considers whether in the light of the representation there is sufficient cause for detention.
25. The representation is to be considered by the Advisory Board by following the substance of natural justice as far as it is consistent with nature of the impugned Act, the nature of the relative jurisdiction of the Government and of the Advisory Board. Procedural reasonableness for natural justice flows from Article 19, Article 22(5) speaks of liberty and making of representation. The combined result of clauses (4), (5) and (6) of Article 22 is that a procedure which permits representation will give all the facts before the board. Article 22(5) shows that law as to detention is necessary. The requirements of that law are to be found in Article 22. Article 22 gives the mandate as to what will happen in such circumstances.
26. The opinion of the Board as well as the order of the Government rejecting the representation of the detenu must be after proper consideration. There need not be a speaking order. There is also no failure of justice by the order not being a speaking order. All that is necessary is that there should be a real and proper consideration by the Government and the Advisory Board.
(ii) AIR 1975 SC 775 (John Martin vs. State of West Bengal) :
4. It was then contended on behalf of the petitioner that the order passed by the State Government rejecting the representation of the detenu should be a reasoned order and since in the present case the order of the State Government did not disclose any reasons for rejecting the representation of the petitioner, the detention of the petitioner was invalid, The argument of the petitioner was that unless reasons were given by the State Government, how could it be ensured that there was real and proper consideration of the representation of the detenu. This contention, attractive though it may seem, is, in our opinion, not well founded. It stands concluded by the decision in Haradhan Saha's case (supra) to which we have just referred. It was pointed out in that case by Ray, C.J., speaking on behalf of the Court : "There need not be a speaking order. There is also no failure of justice by the order not being a speaking order, All that is necessary is that there should be a real and proper consideration by the Government". These observations must give a quietus to the contention that the order of the State Government must be a reasoned order. It is true that in Bhut Nath Mate v. State of West Renpal Krishna Iyer. J., speaking on behalf of a Division Bench of this Court observed that : "It must be self-evident from the order that the substance of the charge and the essential answers in the representation have been impartially considered", but if we read the judgment as a whole there can be no doubt that these observations were not meant to lay down a legal, requirement that the order of the State Government must be a speaking order but they were intended to convey an admonition to the State Government that it would be eminently desirable if the order disclosed that "the substance of the charge and the essential answers in the representation" had been impartially considered. The learned Judge in fact started the discussion of this point by stating : "We are not persuaded that a speaking order should be passed by the Government or by the Advisory Board while approving or advising contain of Detention". In any event, the decision in Haradlian Saha's case (supra) (1) A.T.R. 1974 S.C. 806. being a decision rendered by a Bench of five Judges must prevail with us. We, therefore, reject the present contention of the petitioner.
(iii) (1981) 3 SCC 317 (LMS. Ummu Saleema v. B.B. Gujaral and another) :
6. The next submission of the learned counsel for the detenu was that although the detenu had retracted from his alleged original statement dated 7.8.80 long before the order of detention was made, the fact of such retraction was not considered by the detaining authority before making the order of detention. The plain and simple answer of the respondents was that there was no such retraction as claimed by the detenu. According to the detenu as soon as he was released on bail, on 14.8.80, he addressed a letter to the Assistant Collector of Customs, Cuddalore, retracting from his former statement. This communication was sent under Certificate of Posting, a photostat copy of which was produced before us. In support of the claim that he had retracted from his former statement and had communicated the retraction under Certificate of Posting, the detenu invited our attention to the reply sent by him to the show cause notice issued by Collector of Customs under the Customs Act, and to the representation made by him to the detaining authority, in both of which he made a reference to the alleged retraction. One curious feature which we must notice is that the detenu sent to the detaining authority alongwith his representation a photostat copy of the Certificate of Posting but carefully refrained from sending a copy of the letter of retraction itself. This is indeed extraordinary. If the detenu was serious in his request that his retraction should be considered by the detaining authority while considering his representation one would expect him to send a copy of the letter of retraction alongwith his representation instead of a copy of the certificate of posting. One cannot help a suspicion that evidence was being brought into existence to support the assertion that a letter of retraction was sent on 14.8.80. The detaining authority has stated in the counter that no such letter dated 14.8.80 was received by the Assistant Collector of Customs. The entire file has been produced before us and on a perusal of the file we find that a thorough search was made, not once but several times, to find out if such a letter was received in the office of the Assistant Collector of Customs, Cuddalore but no such letter could be traced. The learned counsel urged that the detaining authority was not competent to state that the Assistant Collector of Customs had not received such a letter and that it was for the Asstt. Collector to say so. There is no force in this submission. The file produced before us shows that the Asstt. Collector of Customs had informed the detaining authority and the Collector of Customs that he had made a thorough search for the letter said to have been written on 14.8.80 and that no such letter had been received in his office. We are satisfied that the alleged letter of retraction was only a myth. The certificate of posting might lead to a presumption that a letter addressed to the Assistant Collector of Customs was posted on 14.8.1980 and in due course reached the addressee. But, that is only a permissible and not an inevitable presumption. Neither Section 16 nor Section 114 of the Evidence Act compels the Court to draw a presumption. The presumption may or may not be drawn. On the facts and circumstances of a case, the Court may refuse to draw the presumption. On the other hand the presumption may be drawn initially but on a consideration of the evidence the Court may hold the presumption rebutted and may arrive at the conclusion that no letter was received by the addressee or that no letter was ever despatched as claimed. After all, there have been cases in the past, though rare, where postal certificates and even postal seals have been manufactured. In the circumstances of the present case, circumstances to which we have already referred, we are satisfied that no such letter of retraction was posted as claimed by the detenu.
7. Another submission of the learned counsel was that there was considerable delay in the disposal of the representation by the detaining authority and this was sufficient to vitiate the detention. The learned counsel submitted that the detaining authority was under an obligation to adequately explain each day's delay and our attention was invited to the decisions in Pritam Nath Hoon v. Union of India & Others and in Shanker Raju Shetty v. Union of India. We do not doubt that the representation made by the detenu has to be considered by the detaining authority with the utmost expedition but as observed by one of us in Francis Coralie Mullin v. W.C. Khambra. "The time imperative can never be absolute or obsessive". The occasional observations made by this Court that each day's delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula, the slightest breach of which must result in the release of the detenu. Law deals with the facts of life. In law, as in life, there are no invariable absolutes. Neither life nor law can be reduced to mere but despotic formulae. Considered in that light, can it be said that there was an unreasonable delay in the present case? The representation was despatched on 5.2.1981 and was received in the office of the detaining authority on 13.2.1981. Apparently it was in postal transit from 5th to 13th. It was put up before the detaining authority on 19.2.1981 and disposed of that very day. From the records produced before us we notice that the detaining authority, Shri B.B. Gujral, was not available from 13th to 16th as he had gone abroad. He returned on 16th and considered the matter on 19th. The learned counsel for the detenu urged that the absence of the detaining authority from India cannot be allowed to violate the fundamental right of the detenu to have his representation considered with the utmost expedition. We agree that in such cases appropriate arrangements must be made for considering the detenu's representation. Apparently, it was not thought necessary in the present case as Shri Gujral was returning on 16th, that is, within a few days. After the 16th the delay, was for a period of three days only. It can hardly be described as delay though one wishes there was no room even for that little complaint. We are of the view that there has not been any unaccountable or unreasonable delay in the disposal of the representation by the detaining authority.
(iv) 1982 L.W. (Crl.) 136 (AMS Shakul Hameed v. Union of India) :
7. ... We cannot sit in appeal over a detention order and confirm, set aside, or modify it according to our own view of the facts. We can only examine the order of detention for the limited purpose of finding out whether it is based on any subjective satisfaction, which is what the statute requires the detaining authority to obtain. If there is any element which vitiates the formation of their satisfaction, such for instance, as total absence of evidence, or, as in this case, a misreading of the evidence, we have got to declare the order bad. It is not for us to speculate how the detaining authority would have judged the facts if they had not misread the evidence in the way they did. We should not undertake an exploration of the mind of the detaining authority. Indeed, a review of that nature is unthinkable, once it is granted that the satisfaction is subjective.
(v) 1983 (12) E.L.T. 678 (M.P.) (Basanti Lal v. State of M.P. & another) :
7. In Hemlata's case (supra) and Mrs.Sarawathi Seshagiri vs. State of Kerala (AIR 1982 SC 1165), a single act of smuggling attributed to a person was held to be sufficient to warrant an inference that he will repeat his activities in future also. Since the detenu in this case was a dealer in watches and other electrical goods and was unable to give any satisfactory explanation for acquisition and possession of foreign goods worth Rs.25,000/- in his shop and residence, the detaining authority was justified in forming an opinion that detention of the detenu was necessary to prevent him from dealing in smuggled goods. This satisfaction was reinforced by the past history of the detenu and, therefore, whether he was prosecuted or not for violation of the provisions of the Customs Act was not a relevant circumstance in examining the validity or legality of the impugned order directing his preventive detention under Section 3(1) of the Act.
(vi) 1983 (13) E.L.T. 1546 (S.C.) (Collector of Customs, Madras & Others v. D.Bhoormull) :
30. It cannot be disputed that in, proceeding for imposing penalties under Clause (8) of S.167 to which s. 178-A-does not apply, the, burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to. the contrary. But in appreciating its scope And the nature of the onus. cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs. absolute certainty is a myth, and-as Prof. Brett felicitously puts it all exactness is a fake" El Dorado of absolute proof being unattainable, the law accepts for it, probability as a working substitute in this work-a- day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of' such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof.; often it is nothing more than a prudent man's estimate as to the probabilities of the case.
31. The other; cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight I of the evidence is to be considered-to use the words of Lord Mansfield in Batch v. Archer(1) "according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted". Since it is exceedingly difficult, if not absolutely impossible, for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as parts of its primary burden.
32. Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. On the principle underlyings. 106, Evidence Act, the burden to establish those facts is cast on, the person concerned; and if he fails to establish or explain those facts, anadverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or: the Department would rebut the initial presumption of innocence in favour of that person, and in the result prove him guilty. As pointed out by Best in 'Law of Evidence', (12th Edn. Article 320, page 291),. the "Presumption of innocence is, no doubt, presumption juris, but every day's practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen property", though the latter is only a presumption of fact- Thus the burden on the prosecution or the Department may be considerably lightened even by such presumption of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice.
(vii) 1984 (15) E.L.T. 385 (Mad) (D.Esra Sunder Singh vs. State of Tamilnadu and another) :
45. In Hamlata vs. State of Maharashtra (AIR 1982 S.C. 8), which we have referred to in paragraphs supra, it is clearly stated that the possibility of a prosecution or the absence of it is not an absolute bar to an order of preventive detention. The only consideration is that the authority must be satisfied that the offender has a tendency to go in violating such laws and that there are grounds for detaining the detenu. Such detention is made in order to prevent the detenu, from repeating such offences. The said decision is also to the effect that the past conduct or antecedent history of a person can appropriately be taken into account in making the detention order. It is indeed largely from prior events showing tendencies or inclinations of a person that on inference can be drawn whether he is likely in the future to act in a manner prejudicial to the maintenance of supplies and services essential to the community or his act of violation of Foreign Exchange Regulations and his smuggling activities are likely to have deleterious effect on the national economy. The decision makes it clear that it is not for the Court to go into the sufficiency of the materials for the detention order but it must examine whether all the formalities enjoined by Article 22(5) of the Constitution have been complied with.
(viii) 1986 (26) E.L.T. 24 (Kar) (G.Pichaimani v. State of Karnataka) :
"28. Without an order of detention, there cannot be a detention under the Act. An order of detention is not made in a vaccum, but is made on the 'grounds'. The order and grounds are not two separate and isolated documents. The order is made on the 'grounds'. The representation made by the detenu against the order is really against the 'grounds' appended to the order or later furnished to the detenu.
29. When the detaining authority itself states that it was no relying on certain documents placed by the Collector and was excluding them as a ground for the detention of the person against whom the proposal is made before it, we fail to see any logic or sound reason for the detenu to insist on their supply to him. The supply of documents is not a mere ritual to be performed for its own sake. Without any doubt, the supply of documents has a purpose and object to serve. If that is so, then we find it difficult to uphold the contention of the detenus."
(ix) 1988 (33) E.L.T. 4 (S.C.) (K.Aruna Kumari vs. Government of Andhra Pradesh and others) :
"11.... In the instant case, the ground of detention is only one, viz. the detenu was acting prejudicial to the maintenance of supplies of commodity, that is, levy cement, essential to the community by diverting it to the open market. The grounds of detention served along with the order are nothing but a narration of facts. The question whether the detenu was acting in a manner prejudicial to the maintenance of supplies essential to the life of the community is a matter of inference to be drawn from facts. The learned Advocate General was fair enough to accept before us that the applications for grant of anticipatory bail moved before the Criminal Court were not placed before the detaining authority. Even so, it could not be said that there was no material upon which the subjective satisfaction of the detaining authority could be based. It appears from the grounds, i.e. The facts set out that the detenu had made a statement admitting that he had diverted 600 bags of levy cement issued to him for use in the masonry ballast wall along the railway track and therefore the District Magistrate was justified in coming to the conclusion that he (the detenu) was acting in a manner prejudicial to the maintenance of supplies of the commodity essential to the community. The three decisions in Asha Devi vs. K.Shiveraj, Additional Chief Secretary to the Government of Gujarat and another (1979) 2 SCR 215, Mohd. Shakeel Wahid Ahmed vs. State of Maharashtra and others (1983) 2 SCR 614 and Kurjibhai Dhanjibhai Patel vs. State of Gujarat (1985) 1 Scale 964 were cases where there was failure on the part of the sponsoring authority in not furnishing the relevant material to the detaining authority which was a vitiating factor. This Court had occasion to deal with them in Pushpadevi M. Jatia v. M.L.Wadhawan, Additional Secretary, Government of India and others (1987) 3 SCC 367 = 1987 (30) ELT 13 (S.C.), in paragraph 12 of its judgment. These decisions proceed on the well settled principle that 'if material and vital facts' which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed, it would vitiate the subjective satisfaction rendering the detention order illegal. That is not so in the present case. There was ample material before the District Magistrate for him to base his subjective satisfaction as to the necessity for passing impugned order, as stated by him in his affidavit."
(x) 1988 (35) E.L.T. 15 (S.C.) (Vijay Kumar vs. Union of India and others) :
"33. The question now raised is what should be the compelling reason justifying the preventive detention if the person is already in jail and where one should find it? Is it from the grounds of detention apart from the grounds of detention? It was urged that apart from the grounds of detention that must be some other material disclosed to the detaining authority that if the detenu is released on bail, he would again carry on the prejudicial activities.
34. I do not think that the contention is sound. There cannot be any other material which can enter into the satisfaction of the detaining authority, apart from the grounds of detention and the connected facts therein. The satisfaction of the detaining authority cannot be reached on extraneous matters. The need to put the person under preventive detention depends only upon the grounds of detention. The activities of the detenu may not be isolated or casual. They may be continuous or part of a transaction or racket prejudicial to the conservation or augmentation of foreign exchange. Then there may be need to put the person under preventive detention, notwithstanding the fact that he is under custody in connection with a case. ..."
(xi) 1989 (39) E.L.T. 192 (Delhi) (Mohammed Farooq v. Union of India and another) :
"13.... The main question however, still survives as to whether the subjective satisfaction arrived at by the detaining authority could be reasonably arrived at on the basis of this material. This is an area in detention matters which does call for judicial scrutiny. After going through the entire material, we are of the view that there is no reasonable basis for drawing an inference from this material about the involvement of the detenu. She cannot even remotely be said to have any knowledge as to what was happening. She seems to be a victim of circumstances. On the basis of this material, one may have to say something against Jaberullah or even Mehrunnisa but to attribute to the detenu that she was herself involved in this activity would be not only unreasonable but also unjust and unjustified."
(xii) 1990 (45) E.L.T. 204 (S.C.) (Madan Lal Anand vs. Union of India):
"26. It is desirable that any retraction made should also be placed before the detaining authority. But, that does not mean that if any such retraction is not placed before the detaining authority, the order of detention would become invalid. Indeed, this question came up for consideration before a Three-Judge Bench of this Court in Prakash Chandra Mehta vs. Commissioner and Secretary, Government of Kerala [1985] Suppl. SCC 144. .
...
In the instant case, even assuming that the ground relating to the confessional statement made by the detenu under Section 108 of the Customs Act was an inadmissible ground as the subsequent retraction of the confessional statement was not considered by the detaining authority, still then that would not make the detention order bad, for in the view of this Court, such order of detention shall be deemed to have been made separately on each of such grounds. Therefore, even excluding the inadmissible ground, the order of detention can be justified. The High Court has also overruled the contention of the detenu in this regard and, in our opinion, rightly."
(xiii) 1990 (48) E.L.T. 171 (S.C.) (Kubic Dariusz v. Union of India) :
"12. Considering the facts and circumstances of the instant case and in view of the fact that no objection regarding non-communication of the grounds in a language understood by the detenu was made within the statutory period for furnishing the grounds and the fact that the representation was beyond the statutory period, almost a month after the grounds were served, along with the detenu's statements as to how he learnt English, we have no hesitation in holding that the detenu understood the English language, had working knowledge of it and was feigning ignorance of it, and there was no violation of Article 22(5) of the Constitution on the ground of non-communication of the grounds of detention in a language understood by him. The first submission of the detenu, has therefore, to be rejected."
(xiv) 1990 (48) E.L.T. 258 (Patna) (Trijugi Nath Agarwal vs. State of Bihar) :
"20. It is, no doubt, true that where a long period has elapsed between the date of incident and the date of order of detention, an inference can be drawn legitimately that there is no nexus between the incident and the order of detention and the order may be liable to be struck down as invalid but there is no hard and fast rule as to what is the length of time which could be recorded sufficient to snap the nexus between the order and the detention. In the instant case, in order to verify the genuineness of the statements of the two aforesaid persons, the customs officials had to go to Muzaffarpur, Allahabad and other towns. Therefore, it cannot be said that there has been long delay in passing the order of detention and where satisfactory explanation has been given, in my view, it would not invalidate the order of detention. I am of the view that here the lapse of time between the date of incident and the date of order of detention has been sufficiently explained by the detaining authority. Hence, in my opinion, the delay of 7 = months will not vitiate the detention order."
(xv) 1991 (53) E.L.T. 178 (Bombay) Asst. Collector of Customs vs. Kunhi Korath Balan) :
"14. Thus, there is consistent, cogent and convincing evidence of the Customs Officer (P.W.2), (P.W.3) and (P.W.4) that the gold biscuits and other articles were found in the possession of respondent no.1. It is highly improbable that these officers would falsely involve respondent no.1 who was also a customs officer. They are competent witnesses and their evidence cannot be considered as that of the interest witnesses. There was no reason for all of them to oblige Alimchandani to give evidence against respondent no.1, who was their fellow officer. Having considered their evidence, I do not find that it suffers from any serious infirmities. The learned Sessions Judge has not disbelieved their evidence but emphasised the need of independent corroboration to their evidence for holding that the contraband articles were recovered from the possession of respondent no.1. I find that the evidence of P.W.1 Bapu Lamkhade, P.W.2 Prabhakar Mahabaleshwarkar and Sadashiv Kulkarni (P.W.4) is creditworthy and acceptable. Their evidence by itself is sufficient to prove that respondent no.1 indulged in smuggling of gold and other articles of foreign origin."
(xvi) 1992 L.W. Crl. 170 (Arunkumar Soni vs. Union of India) :
"8.... In paragraph 13 of the grounds of detention, the detaining authority referred to the bail application of the detenu, and in the context of his arrest, production before the concerned Magistrate, remand and his continuance in custody, in view of the rejection of the bail plea. Bail application had not been taken not of in the context of the retraction contained in it. If the order of detention is based on the confessional statement of the detenu, it will be too difficult to comprehend, that only when the word voluntary is used, application of mind, to retraction would arise and not otherwise. Once the confession is sought to be used, detaining authority must be aware, if the confession is retracted. In spite of retraction, it may still be possible for the detaining authority to arrive at a subjective satisfaction to preventively detain the detenu, after being alive to the said fact. To our mind, expression of reaction' appears to be different from 'awareness of fact'. 'Awareness of fact' is the availability of retraction, which should be taken note of. The effect of retraction , taken note of by the detaining authority, while arriving at his subjective satisfaction, will be the reaction, which need not be made explicit, but awareness of the fact or retraction must get reflected in the grounds of detention. .... "
(xvii) (1999) 8 SCC 473 (Ahamad Nassar vs. State of Tamilnadu & Others) :
8. The first submission for the detenu is that there was delay in considering the representation of the detenu by the State Government. It arises out of the following facts. Detenu's representation dated 21st May, 1999 was received by the State on 22nd May, 1999, remarks was called from the sponsoring authority on 24th May. 1999 which was received back on 27th May, 1999. The delay is said to be for these two days, namely 25th and 26th May, 1999. The alleged delay of two days, viz.. 25th and 26th May, 1999 which is the time taken by the sponsoring authority to send its comment. Though both the authorities were in the same city it cannot be held that this delay is attributable for the delay in disposal of detenu's representation. In a given case, even few days delay may be fatal while in another set of circumstances a longer delay may still be held to be for valid reasons. Expeditious disposal of any representation only means which could be expeditiously disposed of by the concerned authority but should not be with any unexplained delay or delay through carelessness. This would depend on the facts and circumstances of each case. In Mst. L.M.S. Ummu Saleema v. Shri B.B. Gujarat and another, [1981] 3 SCC 317 (para 7), the Court held that the explanation of each day delay is not a magical formula. It only means it should be done with utmost expedition :
"The time imperative can never be absolute or obsessive. The occasional observation made by the Supreme Court that each day's delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula, the slightest breach of which must result in the release of the detenu." (Para 7)
9. In K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union of India and Others & State of Karnataka and others, [1991] 1 SCC 476, the court held:
"The words `as soon as may be occurring in Clause (5) of Article 22 reflects the concern of the framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circustances of each case. There is no period prescribed cither under the Constitution or under the concerned detention law within which the representation should he dealt with. The requirement, however, is that there should not be supine indifference, slackness or callous attitude in considering the representation."
10. Within this sphere of legal premise we do not find that there was any callousness or undue delay caused by the State Government in disposing of detenu's representation. So far consideration of the detenu representation by the Central Government the relevant facts are, that the detenu sent his representation on 21sl May, 1999 from Chennai which was received in Delhi on 25th May, 1999 and on the same day comments were called from the sponsoring authority at Chennai. Reply was sent by the sponsoring authority on 28th May, 1999 which was received in Delhi on 31st May, 1999. The same was placed before the Deputy Secretary, Central Government on 1st June, 1999 who called for the comment of the detaining authority. This comment was sent by the detaining authority on the 10th June, 1999 which was received by the Central government on 14th June, 1999. On 15th June, 1999 it was submitted to the Special Secretary and on the same day it was rejected and information was sent to the detenu also on the same day. The detenu on these facts presses that there is delay in considering his representation. The first is between 25th May, 1999 and 28th May, 1999 and then two days delay in receipt of the same by the Central Government which is on 31st May, 1999. Next the delay is of nine days between 1st June and 10th June. On the 1st June, 1999, the Central Government (Deputy Secretary. COFEPOSA) called for the comment from the detaining authority and on 10th June, 1999 reply was sent by the State Government. ... (xviii) 2000 (121) E.L.T. 3 (S.C.) (Union of India vs. Arvind Shergill) :
4. The High Court has virtually decided the matter as if it was sitting in appeal on the order passed by the detaining authority. Action by way of preventive detention is largely based on suspicion and the court is not an appropriate forum to investigate the question whether the circumstances of suspicion exist warranting the restraint on a person. The language of Section 3 clearly indicates that the responsibility for making a detention order rests upon the detaining authority who alone is entrusted with the duty in that regard and it will be a serious derogation from that responsibility if the court substitutes its judgment for the satisfaction of that authority on an investigation undertaken regarding sufficiency of the materials on which such satisfaction was grounded. The court can only examine the grounds disclosed by the Government in order to see whether they are relevant to the object which the legislation has in view, that is, to prevent the detenu from engaging in smuggling activity. The said satisfaction is subjective in nature and such a satisfaction, if based on relevant grounds, cannot be stated to be invalid. The concerned authorities have to take note of the various facts including the fact that this was a solitary incident in this case of the detenu and that he had been granted bail earlier in respect of which the application for cancellation of the same was made but was rejected by the court. In this case, there has been due application of mind by the concerned authority to that aspect of the matter as we have indicated in the course of narration of facts. Therefore, the view taken by the High Court in the circumstances of the case cannot be sustained.
(xix) AIR 2002 SC 1460 (Chowdarapu Raghunandan vs. State of Tamilnadu and others) :
"14. It is true that in appropriate case, an inference could legitimately be drawn even from a single incident of smuggling that the person may indulge in smuggling activity but for that purpose antecedents and nature of the activities carried out by a person are required to be taken into consideration for reaching justifiable satisfaction that the person was engaged in smuggling and that with a view to prevent, it was necessary to detain him. It is also settled law that an order of preventive detention is founded on a reasonable prognosis of the future behaviour of a person based on his past conduct judged in the light of the surrounding circumstances. Such past conduct may consist of one single act or of a series of acts. It must be of such a nature that an inference can reasonably be drawn from it that the person concerned would be likely to repeat such acts so as to warrant his detention. If there is non-application of mind by the authority on this aspect, then the Court is required and is bound to protect the citizen's personal liberty which is guaranteed under the Constitution. Subjective satisfaction of the authority under the law is not absolute and should not be unreasonable. The question, therefore, would be from the past conduct of the petitioner as set out in the grounds of detention or other circumstances, whether reasonable inference could be drawn that he is likely to repeat such acts in the future. ..."
(xx) 2003 (162) E.L.T. 6 (S.C.) (Union of India vs. Paul Manickam) :
"13. Article 21 of the Constitution having declared that no person shall be deprived of life and liberty except in accordance with the procedure established by law, a machinery was definitely needed to examine the question of illegal detention with utmost promptitude. The writ of habeas corpus is a device of this nature. Blackstone called it "the great and efficacious writ in all manner of illegal confinement". The writ has been described as a writ of right which is grantable ex dobito justitae. Though a writ of right, it is not a writ of course. The applicant must show a prima facie case of his unlawful detention. Once, however, he shows such a cause and the return is not good and sufficient, he is entitled to this writ as of right."
(xxi) AIR 2004 SC 2504 (A.C.Razia v. Government of Kerala and others) :
"26. .... When the detention order itself makes an elaborate reference to the statements/letters of concerned persons which were either relied upon or rejected by the detaining authority in the detention order, the authority exercising the power under S.11 would, in no way be handicapped in dealing with the issue in general and the representation in particular. In the representations made by the petitioner (detenu's wife) the English version of which were on the record of Central Government, the plea taken was that the statements were obtained under threat and coercion and that is why they retracted from the previous statements. Of course, certain other grounds were urged which are not relevant for the purpose of examining the issue with which we are concerned. On the facts alleged or points raised, there was really no need to have access to any of the documents referred to in the detention order. Having regard to this factual situation, we do not think that the Central government should necessarily have the translated copies of the documents referred to and relied upon in the detention order and that the absence of such documents has vitiated the consideration of the representation, nor can it be said that there was no application of mind on the part of the Government for the simple reason that the translated copies of the documents were not available before it. The physical availability of such documents or translated version thereof, would have no difference as regards the disposal of representation or the consideration of the question whether the detention was in conformity with law. As already stated, the very perusal of the detention order would give a clear picture of the incriminating material relied upon by the detaining authority. In the circumstances, to insist on the perusal of original or true copies of statements and other documents referred to in the detention order would amount to insisting on an empty formality. The constitutional guarantee does not go that extent. "
(xxii) 2008 (225) E.L.T. 423 (Delhi) (Anil Kumar Chand vs. Commissioner of Customs (Export) :
"2. The Appellant is a customs house agent and he was acting on behalf of M/s.Khyati International. It was found by the Customs authorities that the exported goods were over-valued by M/s.Khyati International and that the Appellant had signed relevant documents in this regard. It was further found that the higher value was declared only to avail higher amount of drawback. The only contention of the Appellant, in his statement, admitted that the exporter explained that the valuation of goods would be disclosed subsequently and the exporter had made arrangements and that whatever the value declared, it will accepted by the Customs authorities. The appellant was well aware of the intention of the exporter.
5. We find that this argument was not raised before the appellate authorities including the Tribunal and no such averments have been made in the grounds of appeal. We cannot permit learned counsel for the appellant to raise this argument at this stage. "
(xxiii) 2008 (226) E.L.T. 183 (Rajasthan) (Ramesh Khatnani vs. Union of India) :
"29. Applying the test laid down by the Hon'ble Supreme Court in State of Maharashtra v. Natwarlal Damodardas Soni, supra, it can be said that the respondents have in the present case discharged their burden by establishing circumstances from which a prudent man, acting prudently, may infer that in all probability the seized articles and the currency notes were smuggled goods and their sale proceeds. These findings though recorded on the touch stone of the relevant provisions of law contained in the Act, are essentially findings of fact. Scope of interference by this Court in exercise of its writ jurisdiction of certiorari in such matters is very limited and that is made only when the impugned order passed by the subordinate tribunal suffers from any error apparent on the face of record. In the present case, we find none. "
(xxiv) 2009 (233) E.L.T. 157 (S.C.) (Vinod Solanki vs. Union of India) :
"13. Section 8 of the Act imposes restrictions on dealings in foreign exchange. Foreign exchange can be acquired only from a dealer authorized by the Reserve Bank of India. Sub-section (2) of Section 8 of the Act prohibits entering into any transaction providing for conversion of Indian currency into foreign currency or foreign currency into Indian currency at rates of exchange other than the ones for the time being authorised by the Reserve Bank of India without its previous general or special permission. ...
17. The proceeding under the Act is quasi criminal in nature. Section 50 of the Act is a penal provision prescribing that in the event of contravention of any of the provisions of the Act or of any rule, direction or order made thereunder, a penalty not exceeding five times the amount or value involved in any such contravention may be imposed."
(xxv) 2009 (237) E.L.T. 17 (S.C.) (Pooja Batra vs. Union of India) :
"7. For convenience, first let us consider whether there is any delay in passing the detention order and delay in disposal of the representation.
(a) Regarding delay in passing detention order, the alleged violation relates to Bill of Entry No.589144 dated 25.04.2007, the detention order was passed on 05.12.2007. After the seizure of the goods from the container covered under Bill of Entry No.589144 dated 25.04.2007, nobody appeared before the authorities to get the goods cleared till 23.07.2007. His statement under Section 108 of the detenu himself appeared before Customs Authorities for the first time on 03.08.2007. Hi statement under Section 108 of the Customs Act was recorded and he was arrested on 04.08.2007. It was explained that in the light of the fact that earlier also similar eight consignments were got cleared by the detenu, the investigation relied on the statement of witness as if he is the actual owner of the proprietary concern, the statement of the clearing agent and his nominee were recorded and it was only on 29.10.2007, the sponsoring authority recommended to the COFEPOSA Department for consideration of the matter to pass detention order against the detenu. All those actions, various orders/proceedings were mentioned in seriatim both in the grounds of detention, and in the counter affidavit filed by the very same authority. We have carefully gone through the same and find no merit in the contention. On the other hand, we are satisfied that there is proximity to the alleged offence and the detention order. In our view, there was no undue delay so as to snap the link between the incident and the alleged potentiality of the detenu in indulging in smuggling activity. Hence, we reject the said contention."
(xxvi) 2009 (245) E.L.T. 13 (Bombay) (Sanjay Krishna Gothal vs. Chandra Iyenger) :
"13. Having heard both the learned counsel and after considering all the aforesaid judgments with regard to the first contention of Mrs.Ansari, that the activities of the detenu at the most involved only abetting of smuggling and not "smuggling", we are unable to accept the said contention in the light of the clear definition of word "Smuggling" under Section 2(39) read with Section 111(i) and (j) of the Customs Act. Section 111(i) and (j) make it abundantly clear that the activities indulged by the detenu would clearly fall within the same and as such the goods would be liable for confiscation and if that be so, it amounts to an act of smuggling. There is no dispute that the detenu had removed both the brown cartons containing RAM cards and had kept them in a Courier bag containing only documents and samples and he had also admitted that the same were for the purpose of clearing it without payment of any duty, if that be so, the said activity would clearly fall within Section 111(i) and (j) of the Customs Act. Over and above, we are clearly of the view that the judgment referred and relied upon by the learned counsel for the petitioner i.e. Mabelaranah Niranjan Puthran v. State of Maharashtra dated 08.08.2007 will have no application in the present case, since in that case, the Court had held that there was no act of smuggling or there was only an act of facilitating the smuggling, whereas, in the present case, we are of the view that the activity of detenu amounts to "smuggling" and hence, the said judgment is not applicable to the present case. Hence, the first ground of objection has no merit."
(xxvii) 2009 (245) E.L.T. 54 (Bombay) (Madhu Kamal Gyanchandani vs. State of Maharashtra) :
"14. In this factual background of the matter, we are of the view that the time of couple of months taken at the level of the sponsoring authority or at the instance of the detaining authority in taking the impugned action cannot be categorised as a 'delay caused' in taking such an action of detention and that it is fatal. There is nothing on record to show that even in the aforesaid background of the potentiality and the propensity of the detenu to again commit the same prejudicial activity again mere alleged delay has resulted into severance of the necessary nexus as also making the grounds of detention stale and illusory. For all these reasons, we hold that the detention order is not liable to be set aside on the mere ground of alleged delay that has occurred in its issuance."
(xxviii) 2010 (259) E.L.T. 655 (Mad.) (A.Sundaram vs. State of Tamilnadu) :
"17. The law is well settled and there is no dispute that even for a solitary instance, if sufficient materials are available and if the Detaining Authority is subjectively satisfied that the detenu is indulging in smuggling activities which are detrimental to the national economy, the detention order can be clamped. What is required to be seen as to whether on the materials placed on record it could reasonably be said to indicate any organized act or manifestation of organized activity or give room for an inference that the detenu would continue to indulge in similar prejudicial activity warranting or necessiating the detention of the person to ensure that he does not repeat his activity in future."
(xxix) 2010 (262) E.L.T. 865 (Tri-Mumbai) (Commissioner of Customs Excise, Mumbai-V vs. Champion Confectionery) :
"9. One of the main issues to be considered is whether the retraction said to be contained in the affidavits was rightly relied upon by the Commissioner (Appeals). As already mentioned, there was seizure of clandestinely removed goods in the transit and there was unaccounted stock of about Rs.5 lakhs in the factory premises and that there were slips Sr.No.43 to 50 all dated 30.06.2000 indicating clandestine clearance of goods valued at Rs.1,40,575/-. In these circumstances, there can be no doubt about the fact of clandestine removal indulged in by the respondent firm. It is only the quantum of such clearances, which can be in dispute. Several persons concerned with the respondent firm and the marketing firm have admitted and corroborated the clandestine clearance by the respondent firm. Some of the dealers who purchased from the marketing firm also confirmed receipt of goods without bills. These admissions have been made in the statements recorded under Section 14 of the Central Excise Act on different dates. The retraction of any statement, in our opinion, should be made to the authority before whom the statements were given. Thus, it is between the giver of the statement and the person before whom the statement was given. Any communication addressed to others can only be considered as representation or complaint. It is not their case that any retraction was given to the officer, who has recorded the statements. It is also not their case that they made any representation to the senior officers, who supervise the work of the officers, who recorded the statements alleging any threat or compulsion on the part of the officers while recording the statements. ..."
(xxx) 2012 -2 L.W. (Crl.) 670 (Tharmar vs. State of Tamilnadu and others) :
"11.... "The role of the Hon'ble Advisory Board is clearly stipulated in Section 8(c) of the COFEPOSA Act, 1974. It is far too much to stretch an argument/contention to the effect that the documents accrued after the passing of the Detention Order which could not therefore be within the knowledge of the Detaining Authority while passing the Detention Order must also be placed before the Advisory Board by the Department. As per this provisions of Section 8(b) of the COFEPOSA Act, a reference is required to be made by the appropriate Government to the Advisory Board within the prescribed period in respect of a Detention Order and to place before the Advisory Board, the Detention Order, the Grounds of detention and the relied upon materials. Thereafter, the role of the Advisory Board is clearly stipulated in Section 8(c) of the Act, including the opportunity to be given to the detenu for hearing. It is respectfully submitted that these provisions were strictly complied with in this case. In this case, the Hon'ble Advisory Board heard the detenu through his counsel Shri. B. Kumar and thereafter only expressed its opinion. It was for the detenu to put forward his case and submit whatever documents he deemed fit in his interest during the hearing before the Advisory Board. It is incorrect on the part of the petitioner to suggest that the Detaining Authority should have placed the said documents which came into existence after passing the order of detention but before the date of hearing by the Hon'ble Advisory Board." "
(xxxi) 2013 (291) E.L.T. 161 (All.) (Zaki Ishrati vs. Commissioner of Customs & Central Excise, Kanpur) :
"23. The CESTAT found that the statement of Shri Faiyaz Ahmad was clearly incriminating in nature. He sent retraction in the form of telegram and also in the form of affidavit filed in person before the Magistrate, and sent it to Collector of Central Excise, Kanpur. In the overall context including the circumstances in which the gold was seized, his subsequent retraction was not treated to have taken away the effect of statement, as the retraction was not addressed to the officer to whom the statement was given. At the most the retraction could be treated as representation or a complaint to the Collector of Central Excise, Kanpur. Shri Faiyaz Ahmed was arrested and produced before the Magistrate. No complaint was made to the Magistrate at the time of remand, to the involuntary nature of the statement."
(xxxii) 2013 (298) E.L.T. 3 (S.C.) (Subhash Popotlal Dave vs. Union of India) :
"49. In order to arrive at a decision in these matters and to answer the question as to whether an order of preventive detention can continue to subsist after a long period had lapsed from the date of passing of the order, it will, first of all, be necessary to appreciate the difference between preventive detention and the ordinary criminal law providing for detention and arrest. While the Constitution, which is the cornucopia of all laws, accepts the necessity of providing for preventive detention, it also provides certain safeguards against arbitrariness and making use of the provision as a tool against political opponents. Since the said provision deprives a citizen of some of the basic and fundamental rights guaranteed to him under the Constitution, the Courts have dealt with laws relating to preventive detention with great care and caution to ensure that the provision was not preventive detention with great care and caution to ensure that the provision was not misused by the Investigating Authorities as an easy alternative to proper investigation. Normally, the life of a preventive detention order is one year. Such a period is intended to give the detenue, who is detained without any trial, an opportunity to introspect and reflect into his past deeds, and to dissuade him from indulging in the same in future. In other words, the period of detention is intended not to punish the detenue, but to make him realize the impact of his earlier indiscretions on society and to discontinue the same."
6. We have heard the learned Senior Counsel for the petitioner and the learned Central Government Standing Counsel for the respondents, besides perusing the records as well as various decisions relied upon by the learned counsel.
7. A circumspection of the facts would reveal that DRI officers, on receipt of specific information that foreign marked gold bars were being smuggled from Sri Lanka to Kodiakarai for transportation to Chennai by road, proceeded to seize gold bars from Bolero vehicle at Thiruthuraipoondi and from Innova Vehicle at Kollidam bridge at Sirkazhi on 15.06.2013. Three persons, namely, J.Anand, Karuthapandi @ Suresh Kumar and Tamilarasan were arrested with regard to the Kollidam bridge at Sirkazhi seizure and Balamurugan and M.Kumar were arrested with regard to Thiruthuraipoondi seizure. 58 foreign marked gold bars along with 6 gold bars were seized from Innova vehicle and two separate cases were registered by DRI Tuticorin and DRI Coimbatore with regard to the seizure at Thiruthuripoondi and Kollidam respectively. After seizure, all the occupants of the two vehicles were arrested and remanded to judicial custody. Anand was shown as an accused in F.No.VIII 48/03/2013-DRI Coimbatore and Arivazhagan was shown as an accused in F.No.VIII/48/03/2013-DRI Tuticorin. Both Anand and Arivazhagan along with other accused were enlarged on bail and were complying with the bail conditions and during that period, detention orders dated 04.10.2013 were passed against Anand and Arivazhagan and both are detained in Central Prizon, Trichy, on the ground that Anand and Arivazhagan are instrumental in the smuggling of gold bars in two different places and two cases were also registered, one in F.No.VIII/48/03/2013-DRI Tuticorin for seizure of 9802.850 gms. of gold bars from Bolero vehicle TN09 AC 4388 at the cross roads of nagapattinam-Muthupettai on 15.06.2013 at about 04.30 a.m and the other in F.No.VIII/48/03/2013-DRI Coimbatore in respect of the seizure of 11 kgs. of foreign marked gold bars from Innova vehicle TN 51 D 7167 at Kollidam bridge on 15.06.2013 at 7 a.m. Anand was arrested in connection with the case registered by the DRI Coimbatore and Arivazhagan was arrested in respect of case in DRO Tuticorin, but neither of them was shown as an accused in the other case. There is no explanation forthcoming from the sponsoring authority as to why the detenu is not shown as an accused in the other case. However, the grounds of detention would reveal that DRI received specific intelligence with regard to the smuggling of foreign marked gold bars from Sri Lanka to Kodiakarai for being transported to Chennai by road and DRI officers kept surveillance at two places, namely, at Thiruthuraipoondi and at Kollidam bridge at Sirkazhi.
8. It is contended on the side of the petitioner that there is no material to support the fact that foreign marked gold bars were smuggled from Sri Lanka to Kodiakarai, except the statement of the detenu, and one Suresh Kumar @ Karuthapandi. As per the statement of Arivazhagan, the mobile numbers of persons at Chennai to whom the gold bars were alleged to be handed over were available in the mobile numbers of Anand and Karuthapandi @ Suresh Kumar. However, there is no mention about the seizure of cell phones of any of the detenu or Suresh Kumar to trace out the purchasers at Chennai and the detaining authority ought to have called for explanation / particulars with regard to the alleged purchasers at Chennai. Therefore, there is a total non-application of mind by the detaining authority in not calling for explanation from the sponsoring authority. Therefore, in the absence of any material to show that the alleged foreign marked gold bars were smuggled at Kodikarai by the detenu Anand or Arivazhagan and also in the absence of any material to show the persons who had received the alleged foreign marked gold bars, the detenu's alleged overt act will not amount to smuggling of gold bars.
9. Moreover, grounds of detention would show that the detenu Arivazhagan with "Ji" a foreign national in smuggling of gold bars from Sri Lanka and receiving them at sensitive points of coastal areas of kodiakadu and nearby places over a considerable period of time unlawfully not only caused loss to revenue to the exchequer but also had paved the way for hawala transactions as outflow of considerations for these transactions which is detrimental to the economy. However, there is no material to arrive at a conclusion that gold bars were received at nearby places over a considerable period of time. The loss of revenue to the exchequer and also to hawala transactions pertains to different Act, which cannot be the basis to pass the detention order for the violation of Customs Act. It is mentioned about two previous cases, by stating that both pertain to the years 1989 and 1990 and the seizure is textiles and chillies respectively. On these two cases, the detenu Arivazhagan cannot be termed as habitual offender. Further, both the cases are for the offence under Customs Act. While so, the subjective satisfaction that indulging in economic offences detrimental to country's foreign exchange reserves, relates to some other Act and alien to Customs Act. Therefore, it is argued by the petitioner that there is no proper subjective satisfaction of the detaining authority, which vitiates the impugned detention order.
10. To the above plea, the respondents have controverted by inter alia stating that DRI, Chennai Zonal Unit, received a specific intelligence that foreign marked gold bars were being smuggled by sea from Kangesanthurai of Jaffna District in Sri Lanka to Kodiakarai, a coastal village, located at Vedaranyam Taluk, Nagapattinam District (Tamil Nadu) and were to be transported to Chennai by road. Accordingly, the DRI officers kept surveillance at two places viz., one at Thiruthuraipoondi and another at Kollidam Bridge at Sirkazhi and effected seizure, namely, three packets kept concealed under the gear rod boot of a Bolero vehicle contain 87 gold bars with "suisse essayeurfondeur 100 999.0" marking and 1 gold bar with "Commerz Bank 100 gms switzerland" marking and 6 cut pieces of unmarked gold of different size, totally weighing to be 9802.850 gms., valued at Rs.2,72,51,923/-; and four packets concealed under the plastic mat around gear rod boot of the Innova vehicle, found to contain 110 gold bars with the markings "COMMERZE BANK 100g, MELTER ASSAYER SWITZERLAND 999", weighing totally 11 kgs., valued at Rs.3,05,80,000/-.
11. The statement of V.Arivazhagan was recorded on 09.07.2013 at DRI, Tuticorin, who in his statement deposed that during the period from 1984 to 1988, Sri Lankan Tamils came as refugees to Kodiakadu village and they were kept in the refugee camps; that he had the chance of getting acquaintance with Shri Chandran @ Indran of Madagal of Jaffna District in Sri Lanka; that during those days, Chandran used to illegally export textiles from India to his place and later, about ten years back, he had left for his native place; that during January 2012, the said Chandran contacted him over mobile and informed him that he along with Shri Ananth @ Anand of Kodaikarai were smuggling gold bars on behalf of five or six persons; that Chandran came to know that Arivazhagan remained as a hindrance to their business; that Chandran also requested Arivazhagan that if he agreed and remained in peace with Ananth @ Anand, Chandran would also give share to him in this gold bar smuggling; that Chandran also informed him that he and Ananth would get equal commission at the rate of Rs.500/- for each gold bar; accordingly, they decided that either Ananth or he should go to the sea-shore to receive the gold bars and Ananth and his nephew Suresh Kumar @ Karuthapandi, on his behalf, should take the same to Chennai for delivery and to get their charges; initially they did not get much money but started getting more money, when the number increased gradually (from 25-30 bars) to smuggling of 100 bars per week, during March 2013, he fixed the marriage of his daughter with Arulananth @ Anandarajan @ Arul, the elder brother of Ananth; since June 2013, gold bars started coming from Sri Lanka daily; either Ananth or he would go the sea-shore to receive the gold bars coming in the boat and he did not know the name of the owner of the boat or the names of the persons coming in the boat and he contacted the persons coming in the boat over mobile phone only; usually, the gold bars were brought in the boats by concealing them in the fishing nets; sometimes, they were brought by concealing inside the diesel tank; he used to open the packet in the forest area itself and re-pack it with tape roll and then send it to Chennai; in his absence, when Ananth used to collect the gold bars, he too adopted the same procedure; they never counted the gold bars; about 3 kgs. of gold bars were kept in one parcel.
12. Arivazhagan in his deposition further stated that on 14.06.2013, at about 01.00 p.m., Chandran informed him over phone about the arrival of seven parcels of gold bars in a boat; accordingly on 14.06.2013, at about 06.30 p.m., he, along with helpers, went near kodiakarai Soukkam Plot tower sea-shore and collected gold from one of the two persons in the boat, who got down from the boat; after receiving the parcel at about 8.00 p.m., he handed over 4 parcels to Ananth meant for him near the Panchayat Pond situated in their Athivasi Street; as the parcels meant for him were covered with black coloured tape, he was able to differentiate; later, as pre-planned, he reached the house of Balamurugan alias Bala in Vedaranyam by bus with the remaining three parcels; the said Bala was a driver in a travel agency and as he often hired vehicle from Bala, he knew him very well; he took Bala to the parking place of Bolero car which he was driving and concealed the three parcels of gold bars by opening the plastic lid at the bottom end of the gear rod of that vehicle and closed the plastic lid and tightened the screws; he paid Rs.7000/- as hire charges and also paid an extra amount of Rs.3000/- to Bala; he informed Bala that his nephew Karuthapandi and Ananth would be coming to Chennai and to act as per the instructions of Karuthapandi; at the time of handing over the gold bar parcels to Ananth, he knew that those two persons would also be taking gold bars to Chennai in a separate car; in the meantime, he came to know that his brother-in-law Kumar was also leaving for Chennai and he asked him over phone to go in the said car to Chennai and he also informed Bala to take him; Karuthapandi was also aware of gold bars being transported in the said vehicle; later, he returned to his home and in the early morning next day i.e., on 15.06.2013, he tried to contact Kumar over phone but he did not pick up the phone; at about 09.00 a.m., IRS alias I Ramasubramaniam, working in Customs Office, Kodiakarai, called him over phone and asked him as to whether he knew about the seizure of gold bars, which he replied in negative; he phoned up Karuthapandi and Kumar again but they did not pick up the phone and he guessed that there was some problem; in this regard, Chandran contacted him over phone but immediately disconnected the call on coming to know about the seizure of gold bars from him; one person from Dubai also enquired from him in this regard; after that, he was not able to contact anybody; the mobile numbers of the Sri Lankans involved in this smuggling activity were available in the mobile; the numbers 9976990433 and 9597398818 are being used by Karuthapandi; he used to contact them through Karuthapandi's mobile; the mobile numbers of the persons at Chennai to whom the gold bars were to be handed over were available in the mobile phones of Ananth and Karuthapandi; as Karuthapandi and Ananth were going to give delivery of the goods, they only knew the details of those persons and that he committed this offence for greed of money.
13. Arivazhagan was arrested on 10.07.2013 and remanded to judicial custody on 11.07.2013 by Judicial Magistrate, Thiruvarur, thereby lodging him in Central Prison, Trichy. The bail application filed by him before the Judicial Magistrate, Thiruvarur stood dismissed on 05.08.2013 and on filing subsequent bail application before the learned District & Sessions Judge, Thiruvarur, he was granted bail on 12.09.2013. From the statements of the persons found in the two vehicles and from his own statement, it has come to light that V.Arivazhagan @ Arivalagan has played a key role for contacting Sri Lankan based persons since 1989, who, besides receiving gold at secret non-notified customs locations and actively participating in concealment of this smuggled gold in the two vehicles, was found involved in smuggling as under :
(1) seizure of textiles valued at Rs.1,06,540/- while attempted to be illegally exported. In this regard, a penalty of Rs.5,000/- was imposed on him.
(2) seizure of chillies valued at Rs.81,688/- while attempted to be illegally exported and a penalty of Rs.500/- was imposed on him.
14. Thus, it is apparent on the face of record that Arivazhagan along with Ananth has been behind the smuggling of gold bars from Sri Lanka, regardless of quantity, since long i.e., January 2012, which was admitted by Arivazhagan himself. Both of them had entered into a conspiracy with Chandran of Sri Lanka and had agreed to receive the smuggled gold bars coming in boats in contravention of the provisions of the Customs Act,1962, at Kodiakarai sea-shore and to deliver the same at the destination for monetary benefits.
15. Even Arivazhagan and Ananth admitted themselves that 20.803 kgs. (in 7 packets) of gold bars under seizure were received by Arivazhagan at the sea-shore of Kodiakarai. It is also established that the vehicle (Bolero) was arranged by Arivazhagan for the concealed transport of 9802.850 gm of smuggled gold to Chennai. Arivazhagan also admitted that he himself indulged in concealing the gold bars in the said conveyance (Bolero). The regular illicit import (smuggling) of gold bars at Kodiakarai sea-shore by Arivazhagan is established from the statements of Arivazhagan himself and Ananth, Suresh Kumar @ Karuthapandi and Balamurugan and his continuous act of smuggling of gold bars from Sri Lanka to Indian coast is established with the seizures of Foreign Marked gold bars, weighing 20.803 kg at Tiruvarur and Kollidam Bridge, Sirkazhi (Mahazar drawn at Thirumullaivasal), on 15.06.2013 duly corroborated not only by his statement dated 09.07.2013 but also by the statements of his associates viz., Ananth, Suresh, Balamurugan, M.Kumar and Thamizharasan. Balamurugan and Kumar are none other than the relatives of Arivazhagan and Ananth and their statements, in the given circumstances referred to above, have more credence than their statements under any other circumstances. His association with "Ji", a foreign national, in smuggling of gold bars from Sri Lanka and receiving them at sensitive points of coastal areas of Kodiakadu and its nearby places over a considerable period of time unlawfully caused loss of revenue to the exchequer. All these facts go on to state that Arivazhagan is a habitual offender indulging in serious economic offences detrimental to revenue. Further, his propensity to indulge in smuggling, if not prevented, was strong. There was a live link between his smuggling activities and the need to restrain him from indulging in such activities.
16. Taking into consideration of all the above facts and based on the proposal of the Directorate of Revenue Intelligence (DRI), Chennai, detention order was issued on 04.10.2013 against Arivazhagan by the Joint Secretary (COFEPOSA), the specially empowered officer of the Central Government, under the COFEPOSA Act,1974, to prevent him from indulging in the smuggling of goods in future. Pursuant to execution of detention order, he was lodged at Central Prison, Trichy on 16.10.2013.
17. In the above factual scenario, we would like to deal with the matter as hereinbelow.
Retraction of statement:
18. The first and foremost contention of the learned Senior Counsel for the petitioner is that the retraction of the statement of the petitioner was not considered by the detaining authority before passing the detention order and, therefore, the said failure on the part of the detaining authority would vitiate the order of detention.
19. True it is, as contended by the learned Senior Counsel for the petitioner, that, in passing a detention order on the basis of an inculpatory statement of a detenu who has violated the provisions of the Customs Act, the detaining authority should consider the subsequent retraction and record its opinion. But, in this case, there is no such retraction statement, except the ipse dixit of the petitioner. To examine the stand of the petitioner on this aspect, we have thoroughly searched the voluminous records. However, in spite of our travail, no reliable information is found thereto. Therefore, there was also no occasion for the detaining authority to consider the same.
20. Retraction of any statement should be made to the authority before whom statement was given and any point made to others in this regard can only be ignored or considered not valid. Though the detenu had made a point in the bail application before the Sessions Judge, Thiruvarur, to the effect that he had not given any statement at any point of time to the respondent, the same cannot be treated as retraction of statement. From the records, it is conspicuous that in a statement given before the respondent on 09.07.2013, the detenu admitted that he committed the offence for greed of money and also indicating that the said statement was given by him voluntarily without any compulsion, duly signed. It is also not his case that the said statement was given by him under coercion or threat. Further, he did not even dispute the signature found in the statement given by him on 09.07.2013. Even in any offence committed, the accused would mostly deny his complicity in the crime to save his skin and escape the punishment, and, just because he denied his complicity in the commission of offence, he cannot be let at large on such denial.
21. In this connection, it is relevant to refer to Section 5-A of the Act. The said Section, which was introduced by an amendment in 1975, reads as follows:
5-A. Grounds of detention severable.Where a person has been detained in pursuance of an order of detention under sub-section (1) of Section 3 which has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly
(a) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are
(i) vague,
(ii) non-existent,
(iii) not relevant,
(iv) not connected or not proximately connected with such person, or
(v) invalid for any other reason whatsoever, and it is not therefore possible to hold that the Government or officer making such order would have been satisfied as provided in sub-section (1) of Section 3 with reference to the remaining ground or grounds and made the order of detention;
(b) the Government or officer making the order of detention shall be deemed to have made the order of detention under the said sub-section (1) after being satisfied as provided in that sub-section with reference to the remaining ground or grounds.
22. Section 5-A stipulates that when the detention order has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and, accordingly, that if one irrelevant or one inadmissible ground had been taken into consideration that would not make the detention order bad.
23. Article 22 (5) of the Constitution has two elements: (i) communication of the grounds on which the order of detention has been made, and, (ii) opportunity of making a representation against the order of detention. Communication of the grounds pre-supposes the formulation of the grounds and formulation of the grounds requires and ensures the application of the mind of the detaining authority to the facts and materials before it, that is to say, to pertinent and proximate matters in regard to each individual case and excludes the elements of arbitrariness and automatism.
24. The grounds under Article 22(5) of the Constitution do not mean mere factual inferences, but mean factual inferences plus factual material which led to such factual inferences. The concept of grounds used in the context of detention in Article 22(5) of the Constitution and in sub-section (3) of Section 3 of COFEPOSA Act, therefore, has to receive an interpretation which will keep it meaningfully in tune with contemporary notions of the realities of the society and the purpose of the Act in question, in the light of concepts of liberty and fundamental freedoms guaranteed by Articles 19(1), 21 and 22 of the Constitution. While the expression grounds for that matter includes not only conclusions of fact but also all the basic facts on which those conclusions were founded, they are different from subsidiary facts or further particulars or the basic facts.
25. In the instant case, the ground of detention is the satisfaction of the detaining authority that with a view to preventing the detenu from dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping the smuggled goods, the detention of the detenu is necessary. This satisfaction was arrived at as inferences from several factors. These have been separately mentioned. One of them is the contention that this ground was taken into consideration without taking note of the retraction made thereafter. But, the inference of the satisfaction was drawn from several factors which have been enumerated before. Even if the facts stated in the confession are completely ignored, then too, the inferences can still be drawn from other independent and objective facts mentioned in this case, namely, the fact of seizure of 11.00 kgs. of gold bars at the place of Thirumullaivasal, for which no explanation has been given. This is one of the relevant grounds from which an inference can reasonably be drawn for the satisfaction of the detaining authority for detaining the detenu for the purpose of Section 3(1)(iii) and 3(1)(iv). We opine that the impugned order cannot be challenged merely by the rejection of the inference drawn from confession. The same argument was presented in a little different shade, namely, the fact of retraction should have been considered by the detaining authority, and, had that been taken into consideration, the conclusion of the detaining authority would have been different. This contention cannot be accepted. We are not concerned with the sufficiency of the grounds. What we are concerned with is, whether there are relevant materials on which a reasonable belief or conviction could have been entertained by the detaining authority on the grounds mentioned in Section 3(1) of the Act. Whether other grounds should have been taken into consideration or not is not relevant at the stage of the passing of the detention order. If that is the position, in view of Section 5-A of the Act, there was sufficient material to sustain this ground of detention. Further, in the instant case, the authorities concerned came to the conclusion that the detenu was engaged in smuggling and, in support of the same, they relied on several factors, namely :
(1) The search and seizure at Thirumullaivasal and recovery of 110 gold bars.
(2) The fact that the importation of the 110 gold bars could not be explained by the detenu Arivazhagan, but admitted by him.
(3) The secretive manner in which the said gold biscuits were kept.
(4) The connection with the various dealers as mentioned hereinbefore and the statements of Karuthapandi, Balamurugan and Kumar, that the vehicle TN09AC-4388 (Bolero) used for transportation of the smuggled gold bars was arranged by the detenu Arivazhagan.
26. The above materials were in addition to the statements and confessions made under Section 108 of the Customs Act by the detenu himself and other witnesses. So, even if the statements made under Section 108 by the detenu or any other witnesses are ignored and obliterated, the other facts remain and these are materials good enough to come to the prima facie belief that detention of the detenu was necessary.
27. Even assuming the confessional statement was retracted and such retraction was not considered by the detaining authority, it would not make the detention order bad or invalid, as, in this case, the confessional statement was not the only fact upon which the detaining authority had passed the order, but, there were other grounds independent of the confessional statement as mentioned hereinbefore which could reasonably lead to the satisfaction that the authorities had come to and the said order should be deemed to have been passed separately on each of such grounds. Therefore, the contention of the petitioner on this aspect is totally misconceived.
Delay in disposal of representation :
28. The second contention of the learned Senior Counsel for the petitioner is that there was unexplained and delay of 19 days in receiving the parawise remarks from the sponsoring authority between 13.11.2013 and 02.12.2013, which would vitiate the order of detention. He submitted that the detaining authority was under an obligation to adequately explain each day's delay and our attention was drawn to some decisions.
29. We agree, the representation made on behalf of the detenu has to be disposed of expeditiously. The repeated observations made by the Supreme Court and also this Court that each day's delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula, the slightest breach of which must result in the release of the detenu. In the case on hand, what transpired is that, the representation of the petitioner was received from Central Economic Intelligence Bureau (CEIB) on 13.11.2014 and the same was forwarded to Directorate of Revenue Intelligence, Tuticorin, (Investigating Unit), on the same day. Comments were received from the Investigating Officer on 15.11.2013. 16.11.2013 and 17.11.2013 happened to be holidays, being Saturday and Sunday. Translation of the representation was done from Tamil to English on 18.11.2013. Comments were reduced into tabular format on 19.11.2013. Comments were put up for perusal and approval of Additional Director on 20.11.2013. On 21.11.2013 and 22.11.2013, Additional Director was on camp at Bangalore Zonal Unit. 23.11.2013 and 24.11.2013 again happened to be holidays, being Saturday and Sunday. On 25.11.2013, comments were approved by Additional Director and put up for perusal and approval of Additional Director General. Additional Director General was on official duty at New Delhi from 25.11.2013 to 27.11.2013. On 28.11.2013, Additional Director General approved the comments and the same were forwarded to the detaining authority by post, which were received by the detaining authority on 02.12.2013. These events would indicate in definite terms that there has not been any unaccountable or unreasonable delay in receiving the parawise remarks from the sponsoring authority.
30. Clause (5) of Article 22 of the Constitution of India contemplates that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. The words "as soon as may be" occurring therein reflect the only concern of the framers as to the communication of the grounds on which the order has been made in order to afford the detenu the earliest opportunity of making a representation against the order. There is no hard and fast rule in this regard. It depends upon the facts and circustances of each case. There is no period prescribed either under the Constitution or under the detention law concerned within which the representation should be dealt with. The requirement, however, is that there should not be supine indifference, slackness or callous attitude in considering the representation.
31. No doubt, in order to subserve speedy justice and to protect the right of the detenu to consider his representation, the authorities are duty bound to consider the representation without any unavoidable delay and any inordinate and un-explained delay thereon by the authorities shall not be connived at by the Court, thereby warranting interference and resulting in quashing the orders of detention. However, as could be seen above, no such laches are found in this case, in order to interfere with the order under challenge. Therefore, the contention of the petitioner on this point is dispelled.
Non-supply of Materials :
32. The third and final contention of the learned Senior Counsel for the petitioner is that non-placement of relevant material pertaining to the grounds of detention before the detaining authority so also the Advisory Board would vitiate the detention order.
33. In this regard, it is to be stated, that, as we have held hereinabove that there are sufficient material to arrive at the subjective satisfaction of the authority, it is not necessary that the materials, which are irrelevant, should also be placed before the detaining authority. There cannot be any other material which can enter into the satisfaction of the detaining authority, apart from the grounds of detention and the connected facts therein. The satisfaction of the detaining authority cannot be reached on extraneous matters. The need to put the person under preventive detention rests only upon the grounds of detention. Had it really been the grievance of the detenu that some relevant material was not placed before the Advisory Board, nothing prevented him from putting forth his case and submitting whatever documents he deemed fit, in his interest, during the hearing before the Advisory Board. Therefore, the contention of the petitioner in this regard is brushed aside.
34. COFEPOSA Act is an Act to provide for preventive detention in certain cases for the purposes of conservation and augmentation of foreign exchange and prevention of smuggling activities and for matters connected therewith. The very object of enacting the legislation was to check diversion of foreign exchange from official channels and it was thought that unless the links which facilitate violations of foreign exchange regulations and smuggling activities are disrupted by immobilising by detaining the persons engaged in these operations, there would not be any substantial impact. The Act has been amended from time to time to meet the needs of the country and enacted at a time when the country was facing the problems of acute foreign exchange and smuggling activities. Protection of the country and national security are paramount under the Act.
35. In order to achieve the avowed object, it is to be seen, that, smuggling is a clandestine conveyance of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned with it. The burden to establish those facts is cast on the person concerned and if he fails to establish or explain those facts, an adverse inference of facts may arise against him, which, coupled with the presumptive evidence adduced by the prosecution or the Department, would rebut the initial presumption of innocence in favour of that person and, in the result, prove him guilty. Thus, burden on the prosecution or department may be considerably lightened even by such presumption of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. The possibility of prosecution or the absence of it is not an absolute bar to an order of preventive detention. The authority must be satisfied that the offender has a tendency to go in violating such laws and that there are grounds for detaining the detenu and such detention is made in order to prevent the detenu from indulging in such activities. It is indeed largely from prior events showing tendencies or inclinations of a person that an inference can be drawn whether he is likely in the future to act in a manner prejudicial to the maintenance of supplies and services essential to the community or his act of violation of Foreign Exchange Regulations and his smuggling activities are likely to have deleterious effect on the national economy. It is not for the Court to go into the sufficiency of the materials for the detention order but it must examine whether all the formalities enjoined by Article 22 (5) of the Constitution have been complied with.
36. The Apex Court has looked into circumstances of this nature and appled the test for respondents to decide their burden by establishing circumstances, which can be said that the respondents have in the case discharged their burden by establishing circumstances from which a prudent man, acting prudently, may infer that in all probability the seized articles are the smuggled goods. These findings, though recorded on the touch-stone of the relevant provisions of law contained in the Act, are essentially findings of facts. Therefore, interference by the Court in exercise of its writ jurisdiction in such matters is very limited, unless constitutional breaches are established.
37. To arrive at a decision in these matters as to whether an order of detention can be allowed to continue even after a long period, it will be necessary to appreciate the difference between preventive detention and the ordinary criminal law providing for detention and arrest. While the Constitution, which is the cornucopia of all laws, accepts the necessity of providing for preventive detention, it also provides certain safeguards against arbitrariness and making use of the provisions as a tool to target some persons. Since the said provision deprives a citizen of some of the basic and fundamental rights guaranteed to him under the Constitution, the Courts have dealt with laws relating to preventive detention with great care and caution to ensure that the provision was not misused by the Investigating Authorities as an easy alternative to proper investigation. Normally, the life of a preventive detention order is one year. Such period is intended to give the detenu, who is detained without any trial, an opportunity to introspect and reflect into his past deeds and to dissuade him from indulging in the same, in future. In other words, the period of detention is intended not to punish the detenue, but to make him realise the impact of his earlier indiscretions on society and to discontinue the same.
38. It is also not out of place to mention here that each of the most solemn rights of any citizen is cloaked with reasonable restrictions under various sub-clauses of Article 19. The protection of life and personal liberty enshrined in Article 21 itself contains the restriction which can be curtailed through the procedure established by law, which, of course, has to be reasonable, fair and just. Article 22 confers power to deprive of the very sacrosanct individual right of liberty under very restricted conditions. Sub-clauses (1) and (2) confer right to arrest within the limitations prescribed therein. Sub-clause (3) even erases this residual protective right under sub-clauses (2) and (3), by conferring right on the authority to detain a man without trial under the preventive detention law. This drastic clipping of right is for a national purpose and for the security of the State.
39. In the present case, the detaining authority, in addition to being satisfied that the detenu, unless checked, would again indulge in the illegal activities of smuggling, which indulgence would cause great prejudice not only to the national security but also to the national economy, which are paramount considerations under the Act, had also taken into account the past conduct or the antecedents of the detenu, to arrive at the subjective satisfaction.
40. Keeping the above principles in mind and considering the various factors involved in this case, we have analysed all the material information and the circumstances linked thereto, whereupon it can only be concluded in this case, that, with the object sought to be achieved, the detaining authority had given due consideration to all the requirements under relevant laws, while passing the order of detention. Therefore, we have no iota of doubt to hold there are no merits in the case of the petitioner.
41. Habeas Corpus Petition is dismissed accordingly. Consequently, the connected M.P.No.1 of 2014 is closed.
Index : Yes (V.D.P.,J.) (G.C.,J.) Internet : Yes 27-08-2014 dixit To 1.The Joint Secretary (COFEPOSA), Government of India, Ministry of Finance, Department of Revenue, Central Economic Intelligence Bureau, Janpath, New Delhi. 2.The Secretary, Government of India, Department of Revenue, Central Economic Intelligence Bureau, Janpath Bhavan, New Delhi. V.DHANAPALAN,J. AND G.CHOCKALINGAM,J. dixit H.C.P.No.2815 OF 2013 27-08-2014