Madras High Court
G.M. Gopalan Nambiar vs The Joint Secretary To Government Of on 16 August, 2004
Author: P.Sathasivam
Bench: P. Sathasivam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 16/08/2004
Coram
The Hon'ble Mr. Justice P. SATHASIVAM
and
The Hon'ble Mr. Justice S.SARDAR ZACKRIA HUSSAIN
Habeas Corpus Petition No. 1818 of 2003
and Habeas Corpus Petition Nos.1819 of 2003 and 173 of 2004
and
H.C.M.P.Nos.61 and 62 of 2004.
G.M. Gopalan Nambiar. .. Petitioner in HCP No.1818/2003.
R.P. Rukhiya. .. Petitioner in HCP No.1819/2003.
V. Suganthi. .. Petitioner in HCP No.173/2004.
-Vs-
1. The Joint Secretary to Government of
India, Ministry of Finance (COFEPOSA
Section), Department of Revenue,
6th Floor B Wing, Janpath, New Delhi-1.
2. Union of India, represented by
Secretary to Government,
Ministry of Finance, Department of Revenue,
6th Floor B Wing, Janpath, Cofeposa Section,
New Delhi-1. .. Respondents in all H.C.Ps.
Petitions filed under Article 226 of the Constitution of India, for
issuance of Writs of Habeas Corpus, calling for the records pertaining to the
detention order passed by first respondent in (1) F.No. 673/3/2003-CUS-VIII
dated 06-10-2003; (2) F. No.67 3/8/2003 CUS.VIII dated 6.10.2003; and (3)
F.No.673/13/2003-CUS-VIII dated 25-11-2003 quash the same and set at liberty
(1) the detenu-C. Surendra Kumar @ Surendran, son of G.M. Gopalan Nambiar,
now detained in Central Prison, Salem; (2) the detenu K.P. Abdul Majeed, son
of Hassan Koya Haji, now detained in Central Prison, Coimbatore; and (3) the
detenu V. Velusamy, son of K.S. Venkatasamy, now detained in Central Prison,
Coimbatore respectivlely.
!Mr. B. Kumar, Senior counsel for Mr. R.
Loganathan:- For Petitioner in all H.C.Ps.
^Mr. K. Kumar, Senior Central Govt., Standing
counsel:- For Respondents in all H.C.Ps.
:COMMON ORDER
(Order of the Court was delivered by P.Sathasivam, J.,) Since the issue and grounds raised in all the three matters are inter-connected and one and the same, they are being disposed of by the following common order. In H.C.P.No. 1818/2003, the petitioner, father of the detenu-C. Surendra Kumar @ Surendran challenges the detention order dated 6-10-2003, wherein his son, detenu was detained under Section 3 (1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in short "COFEPOSA Act") with a view to preventing him from acting in any manner prejudicial to the augmentation of foreign exchange in future and the detenu was kept in custody in the Central Prison, Salem. In h.C.P.No. 1819/2 00 3 the petitioner is the wife of the detenu-K.P. Abdul Majith, who was also detained under Section 3 (1) of the COFEPOSA Act by order dated 6-10-2003. In H.C.P.No.173 of 2004, the petitioner, wife of the detenu-V. Velusamy, challenges the detention order dated 25-11-2003 passed under Section 3 (1) of the COFEPOSA Act.
2. The common facts which lead to passing of the detention order dated 6-10-2003 and 25-11-2003 are briefly stated hereunder:
The Enforcement Directorate (hereinafter referred to as " the Directorate") received a reliable information that one C. Surendrakumar had been indulging in receiving and making compensatory payments under instructions of a person resident in UAE. Preliminary enquiries made by the Directorate revealed that it was C. Surendrakumar, residing at No. 1394, Trichy Road, Coimbatore and further investigation conducted by the Directorate had unearthed a hawala racket involving huge transfer of funds estimated over Rs.600 crores to India from UAE through unauthorised channel as per instructions of one Asarulla Rakka Khan, an Indian citizen, resident in Dubai. His father K.P. Abdul Majeed of Kozhikode, Kerala, was managing the receipts and distribution of those funds by engaging various persons in Mumbai, Coimbatore in Tamil Nadu and northern parts of Kerala. The modus operandi, so far detected, was that funds in Indian Rupees were received in Mumbai from undisclosed sources, were credited into bank accounts, maintained under fictitious names and addresses, that the persons had since been identified as employees or agents of K.P. Abdul Majeed. The funds after deposited in those fictitious bank accounts in Mumbai, were transferred to bank accounts in Coimbatore and Kerala (maintained in the names of different persons with different banks) by means of Telegraphic Transfers, and that therefrom the funds were withdrawn by cash. The source of funds and the end use or ultimate beneficiaries were not disclosed by the persons who were questioned so far, leaving it to the logical conclusion that there was a criminal conspiracy leading to hawala racket, which is prejudicial to the augmentation of foreign exchange resources of the country.
3. The grounds of detention supplied to the detenus-C.Surendrakumar (2) K.P. Abdul Majeed (3)P. Velusamy contain various details such as opening of bank accounts in fictitious names, transfer of the moneys received from undisclosed source to various accounts in Coimbatore and Kerala, and withdrawal of cash from those accounts etc. The grounds also show the details of name of the bank, current account Number, amount involved, period of transaction, persons concerned, debits and credits in respect of those accounts, account Number, period of transaction etc. It is further seen that on consideration of all those details with facts and figures, the detaining authority has arrived a conclusion that K.P. Abdul Masjeed of Calicut and his son Asarulla Rakka Khan working in Dubai has organised a racket for transferring funds from Dubai to India through unauthorised channels. The said K.P. Abdul Majeed engaged C. Surendrakumar, V. Abdul Kareem for receiving funds in Indian Rupees in Mumbai and Coimbatore. K. P. Abdul Majeed employed Nassar Ali Koya for monitoring the above operations in Mumbai. C. Surendrakumar and V. Abdul Karim in turn had employed various persons viz., B. Nandakumar, V. Veluswamy and others for the said operations. One Thakkar of M/s. Pawan Jewellers, Mumbai had been receiving funds through hawala channel arranged by Asarulla Rakka Khan from Dubai. Thakkar also engaged several other persons for receiving funds from local persons and to transfer it to Surendrakumar and V. Abdul Kareem and their associates either by transfer from fictitious bank accounts maintained by them in Mumbai or by cash. Surendra Kumar Jain of M/s. Sweety International (P) Limited, Mumbai had also made payments in cash and by bank pay orders to Thakkar or his employees as per the directions of one Laxman Akani or Budai, who in turn had received foreign exchange from Asarulla Rakka Khan of Dubai. The total transactions thus carried out in the racket exceeded Rs.60 0 Crores which were in violations of the provisions of Foreign Exchange Regulations of the country from time to time. The details of transactions noticed and relied on are given in the form of Annexure to the grounds of detention. Taking note of these activities and their potentiality and propensity to continue to engage in such prejudicial activities in future, the detaining authority has passed an order of detention under COFEPOSA Act. As said earlier, all the three orders are under challenge in these petitions.
4. Heard Mr. B. Kumar, learned senior counsel for the petitioners and Mr. K. Kumar, learned Senior Central Government Standing counsel for respondents.
5. Mr. B. Kumar, learned senior counsel for the petitioners, after taking us through the grounds of detention and all the materials furnished to the detenus, has raised the following contentions:-
(i) The detaining authority failed to furnish bank statements which are the only materials relied on by him. The authority failed to furnish the details regarding various transactions alleged to have taken place during the said period which is in violation of Article 21 of the Constitution of India.
(ii) Though the grounds of detention state that the detenu was remanded to judicial custody, no remand order is furnished along with the grounds of detention in all the 3 cases nor any material to show that on the date of passing of detention order, the detenus were on remand, hence it is in violation of Article 22 (5) of the Constitution.
(iii) The detaining authority failed to take into consideration remand of the detenu in more serious and for graver offences which entails higher punishment while considering the question of passing the detention order, hence the satisfaction stands vitiated.
(iv) The sponsoring authority has failed to place before the detaining authority, three judicial orders of this Court dated 20-2-2003, 2-7-2003 and 29-8-2003 wherein this Court dismissed the bail application of the detenu and held that the detenu would not be entitled for bail and directed for early disposal of the criminal case. In view of the above orders, that there is imminent possibility of release on bail at the discretion of Court has become unsustainable and the orders passed by this Court are relevant and vital while arriving at a satisfaction relating to possibility of coming out of bail, hence satisfaction is vitiated;
(v) The exercise of power under preventive detention is mala fide and no proximity to the alleged occurrence and the detention order passed in favour of the three persons. In other words, according to him, the occurrence which had taken place prior to 2000 are stale and not proximate at the time of passing of detention order in October and November, 2003; hence the satisfaction that detention is imminently required cannot be genuine.
(vi) The order of detention is passed to prevent the detenu from acting in a manner prejudicial to the augmentation of foreign exchange resources. But in the grounds it is sought to be supported by two grounds, namely, conservation and augmentation of foreign exchange resources. It vitiates the order of detention and it creates uncertainty in the satisfaction recited which ultimately vitiates the order of detention;
(vii) In the case of Velusamy, irrelevant materials were taken into consideration while passing the detention order.
On the other hand, Mr. K. Kumar, learned senior Central Government Standing counsel, after taking us through all the materials and other connected files, has submitted that an organised racket in foreign exchange has been unearthed and the detaining authority, after satisfying himself based on relevant materials and in order to prevent the detenus from acting in any manner prejudicial to the augmentation of foreign exchange in future, passed the orders of detention. According to him, only on subjective satisfaction of the authority, the impugned detention orders have been passed and interference by this Court in a matter of this nature is very limited. He also contended that the detaining authority has considered the custody of the detenus and their imminent possibility of coming out if they are not detained under CoOFEPOSA Act. He further contended that since the transaction relates to voluminous materials, adherence of time schedule is not essential and therefore, there is no unreasonable delay as claimed by the petitioners. He also contended that regarding bank details, relied on documents have been supplied to the detenus. According to him, the petitioners have not shown or established the actual prejudice caused to the detenus.
6. We have carefully considered the rival submissions.
7. It is settled law that whether a person has to be detained without trial as a preventive measure to prevent him from indulging in commission of economic offence, as mentioned in the Act, depends on the subjective satisfaction of the authorities concerned. The subjective satisfaction is outside the purview of judicial review. Preventive detention is different from punitive detention after offences are proved according to the procedure prescribed by law. It is not in dispute that Article 21 of the Constitution provides that no person shall be deprived for his life or personal liberty except according to the procedure established by law. Article 22 which authorises preventive detention, lays down statutory limitations and procedural safeguards. The preventive detention is not intended as punishment for commission of economic offence. We are not considering the correctness of application of mind regarding the satisfaction of the authority in issuing the order or merits of the case, but whether constitutional safeguards prescribed by law are complied with or not. It is also settled law that when the liberty of the citizen is involved and he is put in prison without trial as a preventive measure, it is the bounden duty of the court to satisfy itself that all the safeguards provided by law have been scrupulously observed. This is so even if one is detained for preventing economic offences under COFEPOSA Act.
8. Coming to the first contention, namely, non furnishing of details regarding bank statements though relied on by the detaining authority, it is the grievance of the petitioner that only certain entries in the books are given and the detenu wanted the entire statement and in spite of his request, they were not supplied to him. As held in 1980 (4) SCC 544, copies of documents to which reference is made in the grounds must be supplied to the detenu as part of the grounds. Admittedly, the detenu was supplied bank details such as name of the bank, current account number, amount transferred, account name, details regarding debits and credits and the period of transactions. Annexure I(a) relates to details of bank account in Kerala and Coimbatore found maintained in the name of C. Surendrakumar @ Surendran. Annexure I(b) relates to details of bank accounts in Kerala and Coimbatore found maintained in the name of M/s. Lord Krishna Bulion, Coimbatore. Annexure I(c) relates to dewtails of bank accounts in Mumbai found maintained in the name of C. Surendrakumar @ C. Surendran. Annexure-I (c)(i) pertains to details of bank accounts in Mumbai from where funds were found transferred to the accounts of C. Surendrakumar @ C. Surendran and V. Abduul Kareem and their associates. Annexure I(d) contains details of bank accounts in Mumbai found maintained by Dinesh Kumar Sathyanarayana Chaurasia in fictitious names. AnnexureI (e) contains details of bank accounts in Mumbai found maintained by Mahendra J. Dave in fictitious names. Annexure-I(f) contains details of bank accounts in Mumbai, Coimbatore and Kerala found maintained in the name of V. Abdul Kareem. Annexure-I(f)(i) contains the total credits in the accounts of V. Abdul Kareem and his associates in Kerala and Coimbatore. Annexure-I(g) contains bank accounts maintained by Suresh Kumar Jain, Raj Kumar Jain @ Bharath Bansal, Ashok Kumar T. Jain and Harish Patel with Vysya Bank, Chembur, Mumbai, Calicut and Palakhad and also with Indian Overseas Bank, Kalbadevi, Mumbai and Calicut. Annexure I(h) contains details of bank accounts in Mumbai found maintained by Ashok F. Jain @ Ashok P. Jain in fictitious name. Annexure-II contains total amounts found transferred from Mumbai to South India. Annexure-III (a) contains No.l of accounts, amount and period of transaction in respect of C. Surendrakumar @ C. Surendran and others. A perusal of the details in the form of Annexures enclosed along with the grounds of detention and supplied to the detenu would clearly show the details of persons in whose names accounts were opened, No. of accounts, period of transaction, details regarding debits and credits etc. These details/particulars are authenticated and it cannot be said that they are misleading particulars. On perusal of the same, we are of the view that the detaining authority has considered the relevant materials and on subjective satisfaction on passing the order of detention supplied all the relevant and relied upon documents to the detenu. The infringement of Article 22 (5) of the Constitution is not tenable in law and is liable to be rejected.
9. Now we shall consider the second, third and fourth contentions together. On a perusal of para 44 of the grounds of detention, it cannot be said that the inference drawn by the detaining authority is not correct and not supported by materials. On the other hand, it shows that the detaining authority was satisfied considering the nature and gravity of the offence, the role played by the detenu, the planned manner in which the detenu had indulged in such prejudicial activities, all of which reflect the detenu's high potentiality and propensity to continue to engage in such prejudicial activities in future. To the said satisfaction, the detaining authority was alive on the basis of the materials and, therefore, the inference drawn in para 44 of the grounds of detention that there is imminent possibility of the detenu-C. Surendrakumar @ C. Surendran being released on bail would not in any manner be vitiated. It is also relevant to refer the information furnished in the additional affidavit of the first respondent-Joint Secretary to the Government of India wherein it is stated that information was sought vide letter F.No.673/3-13/2003 VIII dated 23-9-2003 from the sponsoring authority with regard to the present position of judicial custody of C. Surendrakumar, K.P. Abdul Majeed and another involved in the case. The sponsoring authority vide their letter No.T-1/02/SZ/CLT/2002-CP dated 26-9-2003 informed that Surendrakumar of Coimbatore and K.P. Abdul Majeed of Kozhikode, who were remanded to judicial custody by the Coimbatore Court till 18 -9-2 003, when their cases were posted for hearing, could not be produced before the Court on that day, since they were taken to Mumbai in connection with the police cases and that the next hearing date in the Coimbatore Customs case was fixed as 1-10-2003. It is further stated that it was informed that further information was being gathered and that the same would be forwarded to the Ministry. The fact that the detenu was in judicial custody at the time of passing the order of detention, namely, 6-10-2003 was known to the detaining authority from the information gathered by the sponsoring authority, namely, Directorate of Enforcement and as such the detaining authority was aware that the detenu was in judicial custody. The sponsoring authority has specifically sworn to an affidavit that he was also aware that there was no change of position as to the judicial custody of the detenu from 7-8-2003, which material was supplied to detenu (vide page No.319 of the paper books supplied). In this regard, it is relevant to refer the guidelines prescribed by the Supreme Court in the case of Abdul Sattar Ibrahim Manik's case reported in AIR 1991 SC 2261:
(i) It must appear in grounds that the authority was aware that the detenu was already in custody.
(ii) When awareness is shown, it should further appear from the grounds that there was enough material necessitating the detention of the person in custody.
(iii) Detenu moved bail. Even if bail application and order of refusal of bail were not placed before the detaining authority, it does not amount to suppression of materials. Non application of mind does not arise.
(iv) Non supply of copies of bail application or order refusing bail to detenu cannot afford a reasonable opportunity guaranteed under Article 22(5), when it is clear that authority has not referred to the same.
(v) The detaining authority has merely referred in narration of events and not relied upon them, failure to supply bail application and order of refusal will not cause any prejudice to detenu.
(vi) In case released and is at liberty at the time of passing the order, then detaining authority has to necessarily rely upon them as that would be vital ground for ordering detention.
We have already referred to the fact that the detaining authority was possessed of necessary material to show that on the date of passing of the detention order the detenus were in judicial custody in connection with another criminal case and there is imminent possibility of being released on bail or otherwise at the discretion or decision of the Court and they are likely to indulge in the said prejudicial activities in future also. The materials placed before the detaining authority show that the detaining authority was fully conscious of the entire materials and we are satisfied that the guidelines prescribed in Abdul Sattar Ibrahim Manik's case have not been violated. Further, non communication of factum of judicial custody even though the detaining authority has asserted it would not in any manner be said to be fatal to the issue. On the other hand, we are satisfied that all basic facts were communicated by the sponsoring authority. For conclusion reached by the detaining authority on 6-10-2003 from 20-10 -2002 has not been sought for while it was communicated by later representation and as such the detention order is not vitiated. More over, it is not the case of the petitioners that sponsoring authority did not place before the detaining authority any material in its possession which is relevant material for the purpose and such material if considered by the detaining authority might have resulted in taking different view in the matter.
10. As said earlier, the detaining authority in para 4 4 of his grounds of detention has said that "I am aware that you are at present in judicial custody in connection with another criminal case and that there is an imminent possibility of your release on bail or otherwise at the discretion or decision of the Honourable Court...". It is clear from the said paragraph that the detaining authority has also become subjectively satisfied that the detenu is likely to indulge in the said prejudicial activities in future also. The detaining authority has further subjectively satisfied that the detenu's high potentiality and propensity to indulge in such activities in future. On satisfying those aspects, the detaining authority has passed the order of detention under COFEPOSA Act. From the materials placed before the detaining authority, it is clear that the said satisfaction in so far as C. Surendrakumar is concerned is on the basis of the materials found at page 319 of the relied upon documents communicated to the detenu. As said earlier, it is not the case of detenus/ petitioners that the satisfaction of the detaining authority is based on no material. On the other hand, the material relied upon namely at page 319 make the detaining authority satisfied that the detenu was in custody and there is no ambiguity in so far as the fact of custody is concerned. Even assuming that the said material does not correlate to the period/time of order of detention, it may not make any different since the satisfaction of being in judicial custody is based on material. The non-supply of a document as to custody being proximate to the order of detention may not vitiate the order of detention unless the detenu shows that he was prejudiced in making a representation and only in such the contention can be countenanced. In this case, the petitioners have not been able to show what prejudice have been caused to them. In the facts and circumstances of the awareness shown in grounds of detention coupled with material as found in paragraph No.44, 43 and 44 respectively appearing in the grounds of detention as to the detenus being in custody, the contra argument made by the learned senior counsel for the petitioners is not tenable in law.
11. Regarding the contention of the learned senior counsel for the petitioners that the remand orders in C.C.No. 154 of 91 (Coimbatore Customs Case) and F.I.R.No.16/2001 Crime Branch Cheque theft case, Mumbai and in F.I.R.No. 111/2002 of the Additional Chief Metropolitan Magistrate, Mumbai had not been furnished nor there is any other material to show that on the date of passing the detention order, the detenu was in remand is purely a self serving statement. We have already held that the fact of subjective satisfaction of C. Surendrakumar being in custody is supported by material at page 319 of the booklet and the detaining authority also referred to the statements of C. Surendrakumar given before the Enforcement Authorities on 9-9-2 002 and 10-9-2002 while he was in judicial custody at Arthur Road Central Prison, Mumbai and noted further development. This shows the awareness of the detaining authority that the detenu was in custody. The fact of subjective satisfaction that K.P. Abdul Majeed is in custody is supported by the material at page No.809 which is dated 28 -7-20 03. It is further seen that subsequently permission was sought for to examine the said Abdul Majeed who was lodged in Central Prison, Coimbatore. In pursuance of order dated 6-8-2003 in C.M.P.No. 456 of 20 03 by the Chief Judicial Magistrate, Coimbatore, the statements of K.P. Abdul Majeed were recorded on 6-8-2003 and 7-8-2003 which formed material as relied upon document numbers 815 to 832 of the booklet. Thus, the satisfaction arrived at by the detaining authority based on materials which are reflected to in the grounds of detention.
12. Further, the authority passing the order is aware of the fact that actually the detenus are in custody and on the basis of the materials placed before him, he had reasons to believe that there are possibilities of their being released on bail and that on being so released, they would in all probability indulge in prejudicial activities. As rightly pointed out by the learned counsel for the respondents, from the materials it is clear that C. Surendrakumar was indulging in Hawala transactions by operating Accounts in his individual name with various banks. While those accounts were being investigated by the Enforcement Authorities, he continued his hawala operation by opening Bank Accounts in the name of M/s. Lord Krishna Bullion which, according to D.R.I, exists only on paper, with various other banks subsequently. When those accounts were detected by Enforcement Authorities, C. Surendrakumar with the active involvement of V. Velusamy of Coimbatore, detenu in H.C.P.No. 173/2004, continued his hawala operation by operating through him by opening accounts in the name of M/s. Sapthagiri Bullion with Lord Krishna Bank at Mumbai and Coimbatore, and subsequently with Centurion Bank, Calicut in the name of M/s. S.K. Corporation. It is further seen that the said K.P. Abdul Majeed was indulging in the overall control and operation of the hawala racket by order or on behalf of his son Asarulla Raka Khan, a person resident outside India. Based on those materials, the detaining authority arrived at subjective satisfaction regarding the high potentiality and propensity of the aforesaid persons to indulge in such prejudicial activities in future also and as such, the orders of detention issued against the said persons cannot be faulted with. Regarding the detenu's complaint of non-supply of documents, namely, updated remand order and three judicial orders of this Court, unless it is supported by the prejudice caused to him on account of non-supply of documents in question in his right to make an effective representation, the said claim is liable to be rejected.
13. It is settled law that even in a case where a person is in custody, the law of preventive detention could be resorted to. It is incorrect to state that mainly because a person is a undertrial prisoner, the law of preventive detention cannot be resorted to. In this connection a reference was made to a decision of the Constitution Bench of the Supreme Court in Haradhan Saha v. State of Bengal and others (AIR 1974 Supreme Court 2154). In the said decision, Their Lordships have held that the order of preventive detention may be made before or during prosecution.
14. It is also settled law whether the detention order suffers from non-application of mind by the detaining authority is not a matter to be examined according to any straightjacket formula or set principles. The COFEPOSA Act does not lay down any set parameters or set standards. In this connection, a reference was made to the decision in Gurudev Singh v. Union of India and others (AIR 2002 SC 10).
15. In K. Varadharaj v. State of T.N., reported in 20 02 Supreme Court Cases (Cri) 1514, after referring to M. Ahamedkutty's case (1990) 2 SCC 1: 1990 SCC (Cri) 258 and Abdul Sathar Ibrahim Manik's case (1992) 1 SCC 1: 1992 SCC (Cri) 1, Their Lordships have held that "placing of the application for bail and the order made thereon are not always mandatory and such requirement would depend upon the facts of each case." We are satisfied that the detaining authority has followed the above dictum and as such, the submission that the bail order and its dismissal and other orders of this Court and its non placement of the said judicial order may not vitiate the order of detention.
16. With regard to the contention that the detaining authority has failed to take into consideration the custody of the detenu-C. Surendrakumar in more serious and graver offences, it is brought to our notice the statement made in para 21 of the grounds of detention which reflects that Surendrakumar was an absconder and he was wanted by Mumbai Crime Branch Police and further he was arrested and remanded to judicial custody during August-September, 2002. It is clear from the F.I.R.No. 111/2002, DCB, CBI, Mumbai.
17. Coming to the contentions (v) and (vi), namely, delay aspect, learned senior counsel for the petitioners has submitted that exercise of power under preventive detention is mala fide and it partakes nature of punishment since in the first occurrence, the detenu-C. Surendran has been in prison as an under-trial prisoner 14 months before the date of passing of detention order (he was arrested on 12-8-2002) (K.P. Abdul Majeed on 27-7-2003). It is further argued that if a person is in prison for more than one year earlier to passing of detention order, then there can be no justification in passing the detention order since he had already been prevented for an year from indulging in any prejudicial activities. According to him, to pass the order after the detenu was in prison for one year is a misuse of power imposing by way of punishment. He further contended that the occurrence which had taken place before 11-4-2000 is hopelessly stale and not proximate at the time of passing of detention order on 6-1 0-2003. There is an enormous delay of 2 years and 7 months in making the order of detention. He also placed reliance on the following four decisions:
(i) ANAND PRAKASH Case, AIR 1990 S.C. 516;
(ii) BROSH NAINAR Case, 1987 L.W.(Cri) 295;
(iii) AHAMED MOHIDEEN ZABBAR v. STATE OF T.N.,1993 (3) JT 417;
(iv) ISSAC BABU v. UOI, 1990 M.L.J (Cri) 689,S.C. The first one namely Anand Prakash Case (AIR 1990 S.C. 516:1990 SCC (Cri)
96), is a case under the National Security Act where action is necessitated in the maintenance of Public Order at the earliest and in that eventuality a delay of 3 months in case of theft of 20 Kgs melted electric wire as such delay of 3 months was held not proper. In the second case namely Brosh Nainar's case (1987 L.W (Cri) 295, it was held that the delay has not been considered by the detaining authority nor reflected the same in the grounds of detention. The delay in that case between 30-5-85 and 23-12-85 was 7 months and secondly the delay in the second period from 23-12-85 to 15-4-86 was 4 months in all totally 11 months remains unexplained. In that case, learned Public Prosecutor on seeing the files stated that the delay has not been considered. In the third case namely Ahamed Mohideen Zabbar v. State of Tamil Nadu (1993 (3) JT 417), the State of Tamil Nadu specifically stated that show cause notice was issued and hence it did not proceed with the proposal and took up the proposal for consideration only thereafter and only thereafter the grounds were framed. It was held by the Apex Court that why the State Government thought it fit to wait till the adjudication proceedings were over since that was exercising its powers under COFEPOSA. In the present cases, the detaining authority did not wait for show cause notice; accordingly as rightly pointed out by the learned senior Central Government standing counsel, the above three decisions do not apply to the facts of the cases on hand. In the last case namely Issac Babu v. UOI (1990 MLJ (Cri) 689-S.C) delay was sought to be explained by stating that show cause notice was issued to the detenu. In the counter it was stated that seizure effected in November, 1986 and the investigation ended in April, 198 7. Proposal for detention was not moved till 26th August, 1987 and this period was explained by stating that records were processed for issuing show cause notice on 18-5-1987 and then voluminous records processed for initiating COFEPOSA. Delay of 11 months found not acceptable.
18. Learned Senior Central Government Standing counsel for the respondents placed relevant materials culled out from the grounds of detention to show the complex nature of investigations taken out through India and abroad. Those materials relied upon by the detaining authority are as follows:
"(i) The residential premises of Shri C. Surendrakumar at Coimbatore was searched by the Officers of Directorate of Enforcement on 11-4-2000 on the basis of reliable source information that the said Surendrakumar, user of Mobile No. 98430 21514, was indulging in receipt and distribution of compensatory payments under instructions of a person, resident in UAE. The search resulted in seizure of two sheets of documents. Sheet No.1 contained abbreviations of Bank Accounts maintained by Shri Surendrakumar and his associate Shri B. Nandakumar and also the names and telephone Nos. of the Managers who were incharge of the Branches in which such accounts were maintained. Sheet No.2 was one blank letter head of M/s. Lakshmi Bullion, Coimbatore. Shri C. Surendrakumar was not available during the course of the search of his residence. Though summons were issued to him for his appearance before the Enforcement Directorate, Calicut, he absconded from 11-04-2000 to 30-7-2002, on which date only he appeared before the Income Tax Authorities at Calicut. Several attempts were made to apprehend and examine him before this date. However he chose to remain away from law. Shri Surendrakumar appeared before the Enforcement Authorities at Calicut on 12-8-2002 after obtaining orders from the Hon'ble High Court of Kerala. Shri Surendrakumar appeared with his advocates before ED, Calicut on 12-8-2002 on the strength of the orders of the Hon'ble High Court of Kerala.
(ii) Based on the documents seized as mentioned above and on the basis of materials obtained from various banks, investigations were conducted with the following Banks by the Directorate of Enforcement, Calicut & Mumbai.
1) Nedungadi Bank, Palakkad.
2) Nedungadi Bank, Calicut.
3) Lord Krishna Bank, Ernakulam.
4) Lord Krishna Bank, Palakkad.
5) Federal Bank, Ernakulam.
6) Lord Krishna Bank, Trissur.
7) Catholic Syrian Bank, Coimbatore 8) Lord Krishna Bank, Coimbatore.
In the eight Branches mentioned above, Shri Surendrakumar was found maintaining accounts in his individual name, while in the following branches he was found maintaining accounts in the name of his non-existing firm M/s. Lord Krishna Bullion:
1) Lord Krishna Bank, Coimbatore.
2) Catholic Syrian Bank, Coimbatore.
3) Catholic Syrian Bank, Chalakkudi.
4) Catholic Syrin Bank, Ernakulam.
5) Catholic Syrian Bank, Calicut. 6) Catholic Syrian Bank, Thrissur.
7) Indian Overseas Bank, Coimbatore.
Perusal of the aforesaid transcripts of accounts revealed that amounts were credited by means of Telegraphic Transfers from Mumbai. Further investigation conducted revealed that Shri Surendrakumar was maintaining following accounts in his individual name at Mumbai:
1) Nedungadi Bank, Mumbai.
2) Lord Krishna Bank, Mumbai.
3) Federal Bank, Mumbai.
4) Catholic Syrian Bank, Mumbai.
He was found maintaining the following accounts at Mumbai in the name of M/s. Lord Krishna Bullion.
1) Lord Krishna Bank, Mumbai.
2) Catholic Syrian Bank, Mumbai.
3) Indian Overseas Bank, Mumbai.
Further investigations conducted by Enforcement Directorate, Mumbai unearthed the following accounts which were found connected with the aforesaid accounts of Shri Surendrakumar.
1) Lord Krishna Bank, Mumbai, S.B.A/c.No. 3409 of Shri P.V. Hamza.
2) Lord Krishna Bank, Mumbai, C.A.No.5489 of Shri P.V. Hamza.
3) Catholic Syrian Bank, Mumbai, C.A.No. 4993 of Shri P.V. Hamza.
4) Lord Krishna Bank, Vashi Branch, Mumbai, C.A.No. 1033 of Shri P.V. Hamza.
5) Akola Janata Commercial Co-op Bank, Mumbai, C.A.No. 721 of Shri P.V. Hamza.
6) Lord Krishna Bank, Mumbai, C.A.No.2609 of Shri V. Abdul Kareem.
7) Nedungadi Bank, Mumbai, C.A.No.377 of Shri V. Abdul Kareem.
8) Bank of India, Mumbai, C.A.No.8425 of Shri V. Abdul Kareem.
9) Lord Krishna Bank, Mumbai, C.A.No. 3532 of M/s. Anaswara Bullion, Prop.V. Abdul Kareem.
10) Indian Overseas Bank, Mumbai, C.A.No. 7807 of M/s. Anaswara Bullion, Prop.
V. Abdul Kareem.
11) Lord Krishna Bank, Mumbai, C.A.No. 3338 of Shri K. Nassar.
12) Lord Krishna Bank, Mumbai, C.A.No.4083 of K. Nassar.
13) Lord Krishna Bank, Mumbai, C.A.No. 3966 of Shri Nadir Ismail Sheikh.
14) Lord Krishna Bank, Mumbai, C.A.No. 4857 of Shri Shakeel Gulam Dastagir Sheikh.
15) Indian Overseas Bank, Mumbai, C.A.No. 4380 of M/s. Sweety International (P) Ltd., Analysis of the aforesaid Bank Accounts by the Enforcement Directorate resulted in further leads, which resulted in the detection of following accounts said to be involved in Hawala Racket. The details of such accounts detected by this Directorate relating to one such Shri Dinesh Kumar Satyanarayana Chaurasia is given below:
With Lord Krishna Bank, Mumbai.
1) C.A.No. 4393 in the name of M/s.
Rimcolene Impex.
2) C.A.No. 4644 in the name of M/s. Yash Textiles.
3) C.A.No. 4407 in the name of M/s.
Neelam Textiles.
4) C.A.No. 4237 in the name of M/s. Swati Impex.
5) C.A.No. 4636 in the name of M/s. Sati Fabrics.
6) C.A.No. 6019 in the name of M/s. Omax Electronics.
7) C.A.No. 4024 in the name of M/s.M.M. Trading Co.,
8) C.A.No. 5993 in the name of M/s. High Speed Electro System.
9) C.A.No. 6027 in the name of M/s.
Cleartone Communications.
10) C.A.No. 6001 in the name of M/s.
Keystone Electronics.
With Karad Co-op Bank Ltd., Mumbai:
11) C.A.No.25 in the name of M/s. Porwal Trading Co., With Catholic Syrian Bank, Mumbai:
12) C.A.No. 1356 in the name of M/s. Swati Impex.
Similar accounts held by Shri Mahendra J. Dave at Mumbai, as detailed below, were also detected:
With Lord Krishna Bank, Mumbai.
1) C.A.No.4784 in the name of M/s. Nishi Trading Co.,
2) C.A.No.5764 in the name of M/s. Ranaju Corporation
3) C.A.No.4202 in the name of M/s. Shreeji Trading Co.,
4) C.A.No.4245 in the name of M/s.Krishna Impex.
5) C.A.No.4750 in the name of M/s. Sanjay Trading Co.,
6) C.A.No.4768 in the name of M/s.Vishnu Textiles.
7) C.A.No.4776 in the name of M/s.Krishna Enterprises.
8) S.B.A/c.No.5240 in the name of Mahendra J. Dave. With Vysya Bank, Mumbai.
9) C.A.No.967 in the name of M/s. M.M.Corporation.
Similar accounts held by Ashok F. Jain @ Ashok P. Jain which were used for transferring funds as above were also detected at Mumbai:
1) C.A.No.4911 in the name of M/s.Ambica Traders.
2) C.A.No.4903 in the name of M/s.Upcon Traders.
3) C.A.No.4920 in the name of M/s. Saroj Textiles.
4) C.A.No.2826 in the name of M/s.National Textiles.
5) C.A.No.4938 in the name of M/s. D.M. Enterprises.
6) C.A.No.3664 in the name of M/s.Shri Sai Enterprises.
7) C.A.No.4199 in the name of M/s.Majisha Enterprises.
With Karad Co-op. Bank, Mumbai.
8) C.A.No.30 in the name of M/s Shah Enterprises.
9) C.A.No.26 in the name of M/s. Swastik Trading Co.,
10) C.A.No.31 in the name off M/s. A to Z Traders.
11) C.A.No.32 in the name of M/s. Shree Enterprises.
12) C.A.No.33 in the name of M/s. M.M.Corporation. With Vysya Bank, Mumbai.
13) C.A.No.915 in the name of M/s.Shree Rathod Textiles Based on the documents seized from the residential premises of Shri Surendrakumar, the following accounts of one Shri B. Nandakumar were detected:
1) C.A.No.423 with Federal Bank, Thrissur.
2) C.A.No.274 with Catholic Syrian Bank, Thrissur.
Statements of Shri Nandakumar were recorded by ED, Calicut. Based on the investigations conducted at Mumbai which resulted in detection of certain accounts maintained by V. Abdul Kareem, as mentioned above, the following accounts maintained by him in Kerala & Coimbatore were also detected:
1) Lord Krishna Bank, Coimbatore, C.A.No.11926 in the name of M/s. Anaswara Bullion.
2) Indian Overseas Bank, Coimbatore, C.A.No.1578 in the name of M/s. Anaswara Bullion.
3) Scotia Bank, Coimbatore, C.A.No.1305 in the name of M/s. Anaswara Bullion.
4) State Bank of Travancore, Chavakkad, C.A.No. 1188 in the name of M/s. Anaswara Bullion.
5) Nedungadi Bank, Chavakkad, S.B.No.456 in the name of V. Abdul Kareem.
6) Nedungadi Bank, Calicut, C.A.No.1403 in the name of V. Abdul Kareem.
In the accounts mentioned at Sl.No.1,2,4,5 & 6 also amounts were seen transferred by means of telegraphic transfers from Mumbai Accounts.
From the A/c.No. 377 of V. Abdul Kareem with Nedungadi Bank, Mumbai, amounts were seen transferred to the following accounts by means of Telegraphic Transfers and details of those accounts were also collected by this Directorate.
1) Nedungadi Bank, Malappuram, C.A.No.440 in the name of K.T. Abdul Kareem.
2) Nedungadi Bank, Malappuram, C.A.No.446 in the name of K. Nassar.
3) Nedungadi Bank, Ernakulam South, S.B.No.4651 in the name of M. Jayaprakash.
4) Nedungadi Bank, Chavakkad, C.A.No.189 in the name of O.J. Joseph.
5) Nedungadi Bank, Chavakkad, S.B.No.4010 in the name of T. Nazeer.
6) Nedungadi Bank, Chavakkad, S.B.No.4007 in the name of M. Siyab, son of V. Abdul Kareem.
7) Nedungadi Bank, Chavakkad, S.B.No. 456 in the name of V. Abdul Kareem.
8) Nedungadi Bank, Guruvayoor, S.B.No.5961 in the name of O.J. Joseph.
9) Nedungadi Bank, Calicut, C.A.No.1403 in the name of V. Abdul Kareem.
The following accounts of Shri M. Jayaprakash wherein amounts were seen transferred from the accounts of Shri V. Abdul Kareem and his associates in Mumbai were also detected:
1) Nedungadi Bank, Ernakulam South,S.B.No.4651.
2) Lord Krishna Bank, Thrissur, C.A.No.22055.
3) Lord Krishna Bank, Calicut, C.A.No.3000.
4) Lord Krishna Bank, Tellicherry,C.A.No.2429.
5) Catholic Syrian Bank, Thrissur, C.A.No.269, in the name of M/s. Anaswara Bullion.
6) South Indian Bank, Thrissur, C.A.No.1367.
Shri M. Jayaprakash was found maintaining the following accounts at Mumbai from which pay orders were taken for huge amounts and then credited into C.A.No. 2811 of Shri Surendrakumar with Lord Krishna Bank, Mumbai.
1) Akola Janata Commercial Co-op Bank, Kalbadevi Branch, Mumbai, C.A.No. 698.
Similarly K. Nassar, who was maintaining Accounts with Lord Krishna Bank, Mumbai, as discussed earlier, was found maintaining the following A/c. in which amounts were seen credited by means of Telegraphic Transfer from Mumbai:
1) Lord Krishna Bank, Ernakulam, C.A.No. 3150.
Similarly further investigations conducted by the Sponsoring Authority revealed that Jaison J. Alappat was assisting Shri V. Abdul Kareem in operating his account with Lord Krishna Bank, Mumbai. Further enquiries made with the said Jaison J. Alappat revealed that he was maintaining following accounts for transfer of funds from Mumbai to Kerala on behalf of his employer Shri Bhaskar Pawar at Thrissor.
1) South Indian Bank, Thrissur C.A.No. 3855.
2) South Indian Bank, Mumbai, C.A.No. 1723.
Further accounts of his co-employees' were detected as under
1) South Indian Bank, Thrissur C.A.No.883 in the name of Shri T. Sanjayan.
2) South Indian Bank, Thrissur, C.A.No. 3859 in the name of Shri K.V. Joy.
Based on enquiries conducted with Shri Sureshkumar Jain, Director of M/s. Sweety International Pvt. Ltd., who was having C.A. No. 4 380 with Indian Overseas Bank,Mumbai and from whose A/cs. pay orders were seen purchased and credited subsequently to the accounts of Shri Surendrakumar and his associates at Mumbai, following further accounts, which were used for transfer of funds involved in the hawala transactions from Mumbai to Kerala, were detected.
Vysya Bank, Chembur, Mumbai.
1) C.A.No. 1003 in the name of M/s. A.K. Enterprises.
2) C.A.No. 1004 in the name of M/s N,.K. Brothers.
3) C.A.No.1005 in the name of M/s D.K. Corporation.
4) C.A.No.1006 in the name of M/s B.B.Corporation.
Vysya Bank, Calicut.
1) C.A.No. 1489 in the name of M/s. D.K. Corporation.
2) C.A.No.1490 in the name of M/s.
A.K.Enterprises.
3) C.A.No.1491 in the name of M/s.
B.B.Corporation.
4) C.A.No.1492 in the name of M/s N.K. Brothers.
Vysya Bank, Palakkad.
1) C.A.No.310 in the name of M/s N.K. Brothers.
2) C.A.No.311 in the name of M/s.A.K. Enterprises.
3) C.A.No.312 in the name of M/s.B.B. Corporation.
4) C.A.No.313 in the name of M/s D.K. Corporation.
Indian Overseas Bank, Mumbai.
1) C.A.No.5127 in the name of M/s B.B.Corporation.
2) C.A.No.5128 in the name of M/s.
A.K. Enterprises.
3) C.A.No.5131 in the name of M/s B.B.Corporation (Collection A/c.)
4) C.A.No.5132 in the name of M/s.
A.K. Enterprises(Collection A/c.) Indian Overseas Bank, Calicut:
1) C.A.No. 2685 in the name of M/s A.K. Enterprises.
2) C.A.No. 2686 in the name of M/s. B.B. Corporation.
Shri V. Velusamy, associate of Shri Surendrakumar was found maintaining the following Accounts:
1) C.A.No.4954 with Lord Krishna Bank, Mumbai in the name of M/s. Sapthagiri Bullion.
2) C.A.No. 12345 with Lord Krishna Bank, Coimbatore in the name of M/s.
Sapthagiri Bullion.
Further investigations unearthed the following accounts, which were used for transferring the hawala funds from Mumbai to Kerala by order or on behalf of Shri Asarulla Raka Khan, a person resident outside India.
H.D.F.C Bank, Calicut.
1) M/s. Goodluck Sea Food
2) M/s. Milan Enterprises.
3) M/s. Majestic Trading Co.,
4) M/s. Ragina Corporation
5) M/s. Metaphor Enterprises.
6) M/s. Maanvi Trading Co.,
7) M/s. Monsher Enterprises.
8) M/s. Menon Sales Corporation.
9) M/s. Ripa Trading Co.,
10) M/s. Michelle Corporation
11) M/s. Mantra Trading Co.,
12) M/s. Sanjay Trading Co.,
13) M/s. Shree Enterprises.
14) M/s. Shri Ambica Traders.
Centurion Bank, Calicut.
1) M/s. S.K. Corporation.
2) M/s. Krishna Enterprises.
3) M/s. Guna Enterprises.
4) M/s. National Sea Foods.
5) M/s. Oasis Corporation.
6) M/s. Western Sea Foods.
7) M/s. United Sea Foods.
8) M/s. Blue Marine Sea Foods.
9) M/s. Asiatic Agency.
Centurion Bank, Kunnamkulam:
1) M/s. Western Sea Foods.
During the course of investigation, following statements were recorded by Enforcement Directorate, Calicut and Mumbai:
1) Shri O.M. Gopalan Nambiar, Coimbatore.
2) Smt. Sathi Devi, Coimbatore.
3) Shri B. Nandakuamr, Guruvayoor.
4) Shri V. Velusamy, Coimbatore.
5) Shri M. Jayaprakash, Wadakkancherry.
6) Shri Saju Paulson, Thrissur.
7) Shri Jaison J. Alappat, Thrissur.
8) Shri Bhaskar Sait, Thrissur.
9) Shri Joy K.V., Thrissur.
10) Smt. M.S. Hajira, Chavakkad.
11) Shri Surendrakumar, Coimbatore.
12) Shri Dineshkumar Satyanarayana Chaurasia, Mumbai.
13) Smt. Rukhiya Abdul Majeed, Calicut.
14) Smt. P.K. Umaiba Abdul Majeed, Calicut.
15) Shri Ashok Kumar F. Jain, Mumbai.
16) Shri V.P.Abu Backer, Mumbai.
17) Smt. Aminayi P., Calicut.
18) Shri N.K. Ismail, Calicut.
19) Shri Sureshkumar Jain, Mumbai.
20) Shri Raj Kumar Jain, Mumbai.
21) Shri Nassar Ali Koya, Mumbai.
22) Smt. Mary, Palakkad District.
23) Smt. Laila Kassim, Kozhikode District.
24) Shri K.T. Sheriff, Kerala.
25) Shri G. Gunasekaran, Coimbatore.
26) Shri Raju Jhaveri, Mumbai.
27) Shri Ashok Kumar Tarachand Jain, Mumbai.
28) Shri K.P. Abdul Majeed, Calicut.
During the course of investigation, following searches were conducted by the Enforcement Authorities at Calicut & Mumbai:-
1) Residential premises of Shri Surendrakumar at Coimbatore.
2) Residential premises of Shri Nandakumar at Guruvayoor.
3) Residential premises of Shri Nandakumar at Ernakulam.
4) Another residential premises of Shri Surendrakumar at Coimbatore.
5) Residential premises of Shri M. Jayaprakash at Wadakkancherry.
6) Residential premises of Shri K.P. Abdul Majeed at Calicut.
7) Another residential premises of Shri K.P. Abdul Majeed at Calicut.
8)Residential premises of Shri Binesh at Palakkad District.
9) Residential premises of Shri O. Kassim at Kozhikode District.
10) Residential premises of Shri K.T. Sheriff at Kerala.
11) Residential premises of Shri V. Velusamy at Coimbatore.
12) Residential premises of Shri G. Gunasekaran at Coimbatore.
13) Residential premises of Shri Raju Jhaveri at Mumbai.
14) Residential premises of Shri Dinesh Kumar Chaurasia at Mumbai."
19. From the above details, as rightly pointed out by the learned senior Central Government standing counsel, the time occasioned was only on account of investigation, collection of materials, subsequent follow up action, recording statements besides the time spent in the Central Screening Committee. It is also to be noted that in this process the investigating agency was duly separated by time and place and language and before different authorities. The above chronology of events would justify the time consumed. By excluding the time taken in the investigation till the process of the proposal being screened through Central Screening Committee, would establish there is no inordinate inexplicable delay in passing the order of detention. The plea that the delay has snapped the nexus between the date of activity and need for detention cannot be acceptable to be correct. In this regard, it is useful to refer the following decisions on the aspect of delay and the law laid down therein. In Rajendrakumar v. State of Gujarat, reported in AIR 1988 Supreme Court 1255, the Supreme Court concluded that in COFEPOSA cases the rule of delay may not be a factor. The following conclusion in para 10 is relevant:
"10......Quite obviously, in cases of mere delay in making of an order of detention under a law like the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence have been posing a serious threat to the economy and thereby to the security of the nation, the Courts should not merely on account of delay in making of an order of detention assume that such delay, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. Taking of such a view would not be warranted unless the Court finds that the grounds are ' stale' or illusory or that there is no real nexus between the grounds and the impugned order of detention....."
20. In Hemlata v. State of Maharashtra, reported in AIR 1982 Supreme Court 8, Their Lordships have held that the delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person, for in certain cases delay may be unavoidable and reasonable. In that case, the Supreme Court has condoned the delay of 6 months.
21. In Inderchand v. State of Tamil Nadu, reported in 1 986 Crl.L.J. 638, a Division Bench of this Court, after excluding the time taken in the investigation, condoned the delay of 11 months and accepted the stand taken by the department.
22. In Abdul Salam v. Union of India, reported in AIR 1990 SC 1446, while condoning delay of 8 months, the Supreme Court has held that it is enough if there is a reasonable explanation.
23. In H. Ahmed Kutty v. UOI, reported in 1990 SCC (Cri) 258, the Apex Court accepted the stand of UOI that a thorough investigation was required on the part of customs authorities both for proceedings under the Customs Act and for prosecution in Criminal Court, and proposal could not be hurried through, in that delay of six months was condoned.
24. In Golam Hussain v. Commissioner of Police, Calcutta, reported in AIR 1974 S.C. 1336, the Supreme Court has held that no mechanical test by counting the months of the interval is sound. They further held that it all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, 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 whether casual connection has been broken in the circumstance of each case.
25. In the light of the above principles and in view of the enormous details furnished in the grounds of detention, we hold that the detaining authority has properly explained the delay; accordingly we accept the explanation and reject the argument of the learned senior counsel for the petitioners.
26. Coming to the other contention that the order of detention was passed to prevent the detenu from acting in a manner prejudicial to the augmentation of foreign exchange resources of the country, but in the grounds it is sought to be supported by two grounds, namely, conservation and augmentation of foreign exchange, it is true that the order of detention refers only "augmentation" of foreign exchange and in the grounds of detention it is supported by two grounds, namely, (1) "conservation" and (2) "augmentation" of foreign exchange resources. The COFEPOSA Act, 1974 was enacted by the Parliament in order 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. This is clear from the preamble of the Act. As rightly argued by the learned senior Central Central Standing counsel, for the purpose of either conservation or for augmentation of foreign exchange and for prevention of smuggling activities in respect of the above said matters, the concerned authority can invoke those provisions and pass detention order. In other words, for violation of any one or of both, the authorities are empowered to invoke the provisions of the Act. For the reasons mentioned above, we do not find any error or infirmity or variations in the detention order as well as grounds of detention; accordingly we reject the said contention.
27. As regards the other argument that in the case of V. Velusamy, irrelevant materials were taken into consideration while passing the detention order, on going through the various details mentioned in the grounds of detention, we are of the view that the detaining authority after considering all the relevant materials and satisfying himself and for the purpose of conservation and augmentation of foreign exchange and also to prevent smuggling activities, passed the detention order; accordingly we reject the said contention also. In the light of the fact that this Court cannot go into the merits of the order passed and of the fact that the procedures have been scrupulously followed, the said contention is to be rejected.
28. As observed in State of Gujarat v. Adam Kasam, reported in AIR 1981 Supreme Court 2005, the High Court in its writ jurisdiction under Article 226 of the Constitution is to see whether the order of detention has been passed on any materials before it. If it is found that the order has been passed by the detaining authority on the basis of materials on record, then the Court cannot go further and examine whether the material was adequate or not, which is the function of an appellate authority or Court. It can examine the material on record only for the purpose of seeing whether the order of detention has been based on no material. The satisfaction mentioned in Section 3 of the COFEPOSA Act is the satisfaction of the detaining authority and not of the Court. Further, as observed in Gurdev Singh v. Union of India, reported in AIR 2002 Supreme Court 10, whether the detention order suffers from non-application of mind by the detaining authority is not a matter to be examined according to any straightjacket formula or set principles. It depends on the facts and circumstances of the case, the nature of the activities alleged against the detenu, the materials collected in support of such allegations, the propensity and potentiality of the detenu in indulging in such activities etc. The Act does not lay down any set parameters for arriving at the subjective satisfaction by the detaining authority. Keeping in view the purpose for which the enactment is made and the purpose it is intended to achieve, the Parliament in its wisdom, has not laid down any set standards for the detaining authority to decide whether an order of detention should be passed against a person. The matter is left to the subjective satisfaction of the competent authority.
29. On the facts and circumstances of the above case, it is our considered view that the contentions raised on behalf of the detenus that the orders of detention are vitiated cannot be accepted. We are also of the view that on careful consideration of the entire materials and adopting various parameters and also taking note of the potentiality and propensity of the detenus and keeping in mind the object and scheme of the COFEPOSA Act, the detaining authority arrived at a subjective satisfaction and passed the order of detention and we see no valid ground for interference. Accordingly, all the three Habeas Corpus petitions are dismissed. Connected H.C.M.Ps., are closed.
R.B. To:-
1. The Joint Secretary to Government of India, Ministry of Finance (COFEPOSA Section), Department of Revenue, 6th Floor B Wing, Janpath, New Delhi-1.
2. Union of India, represented by Secretary to Government, Ministry of Finance, Department of Revenue, 6th Floor B Wing, Janpath, Cofeposa Section, New Delhi-1.