Bombay High Court
Vardichand Shankarlal Oswal vs L. Hmingliana, Secretary (Preventive ... on 20 November, 1989
Equivalent citations: 1990(1)BOMCR261, (1989)91BOMLR560, 1990CRILJ1021
JUDGMENT Daud, J.
1. This petition under Art. 226 of the Constitution takes exception to an order of detention made on 27-7-1989 under S. 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act; 1974 (52 of 1974).
2. The detenu was travailing by an S.T. bus from Bombay to Karad. Acting on information, certain Officers of the Customs and Central Excise, Preventive Branch, Satara Division were on the alert at the Satara Bus Station from the evening of 11-10-1988. In the early hours of 12-10-1988, came S.T. bus bearing registration No. MWQ 972. The detenu was occupying seat No. 21. He was apprehended and in the presence of panchas; a search of the bus was taken by the Officers. Under seat No. 21, the Officers came across a cloth bag the ownership of which was denied by the detenu when questioned on the subject. The bag was opened and found to contain amongst other things a brown paper wrapped over gold pieces. The said pieces were attached and on the person of detenu were found currency notes of the face value of Rs. 7,420, three bus tickets and a visiting card of a shop "Sha Sardarmal Kasturchand Saraf" of Bombay. The gold pieces were seized under the reasonable belief that they, had been smuggled. The detenu when questioned admitted that they had been found in a package lying underneath his seat. He further maintained that he had no connection with the said package. From 12-10-1988 till about 18-10-1988 the Customs Officers questioned various persons. In due course, the detenu was enlarged on bail. On 22-2-1989, a proposal was put up to detain the detenu under the COFEPOSA Act. Further to this proposal various material was collected from the last week of February, 1989 up to 11-4-1989. On 11-4-1989 a draft of the grounds of detention was prepared and translations etc. sent for. It was on 27-7-1989 that the impugned order of detention together with the grounds and documents were ready. The detenu was served with these on 10-8-1989.
3. Many grounds have been taken by the petitioner who is the brother of the detenu to I assail the detention. Only one ground suffices to void the detention and that is to be found at para 8, Clause (G) of the petition. The contention is that having regard to the inordinate delay between the alleged prejudicial activity and the order of detention, the latter is punitive in character. The alleged satisfaction of the detaining authority that the detenu was likely to indulge in prejudicial activity was a mere pretence as the live-link between the prejudicial activity detected and that apprehended in the future must always subsist in case a valid order of detention is to issue. The respondents have not filed a return. However, learned counsel representing respondents 1, 2 and 4 to 6 have furnished certain information from the papers available to her. These show that the authorities were inquiring into the matter from 12-10-1988 to 18-10-1988. What took place between 18-10-1988 and 22-2-1989 is not known. Again from 22-2-1989 till about 29-4-1989 there was a flurry of activity relating only to the preparation of papers and their translation etc. Additional, documents were called for and received sometime in May, 1989. Even thereafter one expected some sense of urgency on the part of the detaining authority, but to no avail. It was only on 27-7-1989 that the detaining authority passed the impugned order. Counsel for the respondents 1, 2 and 4 to 6 argues that in COFEPOSA matters a great deal of material requires to be looked into and mere delay is not enough to snap the live-link spoken of above. She relies upon Rajendrakumar Natwarlal Shah v. State of Gujarat, in support of the contention put forth by her. As this case has some bearing on the point in issue, we think it necessary to make a somewhat detailed reference thereto. The factual position in that case was that the detenu was an old hand at bootlegging. Two cases had been instituted against him for illicit traffic in liquor and on the night between 29th and 30th of December, 1986 a Large consignment of liquor belonging to him was intercepted. The detenu absconded and could be traced only on 2nd February, 1987. He moved for anticipatory bail, but no orders were passed on that application as the police made a statement that there was no proposal to arrest him at that stage. The detention order came to be passed on 28-5-1987 i.e. some five months after the lapse of that prejudicial activity. The detention order was accompanied by grounds which referred to the previous incidents for which the detenu was being prosecuted; those incidents having taken place on 21-7-1982 and 30-5-1986 respectively. Next, there was a reference to the interception of a large consignment on the night between 29th and 30th of December 1986. This was followed by the recital about the absconcion of the detenu, his arrest, the application made by him to secure anticipatory bail and disappearance etc. Further, the grounds recited "that he was continuing his business surreptitiously and he cold not be caught easily and therefore there was compelling necessity to detain him". In the appeal preferred on his behalf to the Supreme Court it was contended that causal link between the detected prejudicial activity and the apprehended prejudicial activity did not exist and the detaining authority's pleaded satisfaction to the contrary, was a mere pretence. The appeal in the Supreme Court was heard by a Division Bench consisting of Mr. Justice A. P. Sen and Mr. Justice L. M. Sharma. Mr. Justice Sen speaking for the Bench agreed that mere delay in the passing of an order of detention in cases under the COFEPOSA Act was not fatal. His Lordship observed :-
"In the enforcement of a law relating to preventive detention like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, there is apt to be some delay, between the prejudicial activities complained of under S. 3(1) of the Act and the making of an order of detention. When a person is detected in the act of smuggling or foreign exchange racketeering the Directorate of Enforcement has to make a thorough investigation into all the facts with a view to determine the identity of the persons engaged in these operations which have a deleterious effect on the national economy. Quite often these activities are carried on by persons forming a syndicate or having a wide network and therefore this includes recording of statements of persons involved, examination of their books of accounts and other related documents. Effective administration and realization of the purposes of the Act is often rendered difficult by reason of the clandestine manner in which the persons engaged in socket operations carry on their activities and the consequent difficulties in securing sufficient evidence to comply with the rigid standards, insisted upon by the Courts. Sometimes such investigation has to be carried on for months together due to the magnitude of the operations. Apart from taking various other measures i.e. launching of prosecution of the persons involved for contravention of the various provisions of the Acts in question and initiation of the adjudication proceedings, the Directorate has also to consider whether there was necessity in the public interest to direct the detention of such person or persons under S. 3(1) of the Act with a view to preventing them from acting in any manner prejudicial to the conservation and augmentation of foreign exchange or with a view to preventing them from engaging in smuggling of goods etc. The proposal has to be cleared at the highest quarter and is then placed before a Screening Committee. For ought we know, the Screening Committee may meet once or twice a month. If the Screening Committee approves of the proposal, it would place the same before the detaining authority. Being conscious that the requirements of Art. 22(5) would not be satisfied unless the basic facts and materials which weighed with him our reaching his subjective satisfaction, are communicated to the detenu and the likelihood that the Court would examine the grounds specified in the order of detention to see whether they were relevant to the circumstances under which the impugned order was passed, the detaining authority would necessarily insist upon sufficiency of the grounds which would justify the taking of the drastic measure of preventively detaining the person."
Having said this their Lordships proceeded to consider the factual position and then made the statement relied upon by Mrs. Desai to the following effect :-
"Even though there was no explanation for the delay between 2nd February and 29th May, 1987 it could not give rise to a legitimate inference that the subjective satisfaction arrived at by the District Magistrate was not genuine or that the grounds were stale or illusory or that there was no rational connection between the grounds and the impugned order of detention."
Now this passage has to be read with reference to the factual position. The factual position was that the detenu had committed prejudicial activities in the past for two of which he was facing prosecutions, the transporting of a large consignment on the penultimate night of December 1986, his absconcion and also the fact that he was surreptitiously engaged in the very business and doing it in such a manner as to effectively prevent the authorities from apprehending him or his associates. The delay of four months in this background was considered as not vitiating the subjective satisfaction. Mr. Justice Sen referred to Golam Hussain v. Commr. of Police, Calcutta, and number of other authorities. The ratio of aforementioned authority was extracted by his Lordship in these words (at p. 941 of Cri LJ) :-
"The credible chain between the grounds of criminal activity alleged by the detaining authority and the purpose of detention, is snapped if there is too long and unexplored an interval between the offending acts and the order of detention. But no mechanical test by counting the months of the interval was sound. It all depends on the nature of acts relied on, grave and determined or less serious and chargeable, on the length of the gap, short or Long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation. The Court has to investigate with the causal connection has been broken in the circumstances of each case".
Therefore it is not as if every incident of delay in matters under the COFEPOSA Act was to be assumed to be either explained or justified on account of the assumed complexity of such matters. Tested thus, it is not possible to hold that the subjective satisfaction reached here by the detaining authority had a live-link with the prejudicial activity detected on 12-10-1988. At the very first instance the detenu made it clear that though the package containing the contraband was found under his seat, he was in no way connected with it. This denial he maintained right up to the end. In the six days following 10-12-1988 various persons were questioned. What the authorities did between 12-10-1988 and 22-2-1989 is not known. The only answer is that nothing was done to effect a breakthrough vis-a-vis the mantle of innocence donned by the detenu. What took place in the months following the last week of February 1989 was in the realm of ministerial activity i.e. preparation of papers, their translation etc. Even after 17-5-1989 nothing was done and this inactivity lasted for more than two months. Surely, a more glaring case where a causal link is snapped would be difficult to conceive of.
4. In the result, the order of detention is vitiated. The detenu be released forthwith unless wanted in connection with some other case. Rule in these terms made absolute.
5. Rule made absolute.