Kerala High Court
Rajendran vs The State Of Kerala And Ors. on 18 August, 1994
Equivalent citations: 1995CRILJ2889, 1994ECR651(KERALA)
Author: Chief Justice
Bench: Chief Justice
JUDGMENT Sujata V. Manohar, C.J.
1. The petitioner is the brother of Pallipadathu Rameshan, S/o Madhavan, Pallipadathu House, Calicut, who has been detained under Section 3(1) (i) and (iii) of the Conservation of Foreign Exchange and Prevention of the Smuggling Activities Act, 1974 (hereinafter referred to as "the COFEPOSA Act").
2. The detenu had been working in Dubai as a Mechanic from 1979 to 1983. The detenu has stated in his statement under Section 108 of the Customs Act. which is subsequently retracted, that in September, 1992 he was approached by one Mohammad of Nilambur, who was working as a Manager in a Company at Dubai, where the detenu had previously worked. Mohammad came to the detenu's house and asked him whether he was willing to go to Dubai on a transit visa and bring gold from there to India. The detenu was promised a return air-ticket from Calicut to Sharjah and a sum oi'Rs. 5,000/- as remuneration. Acordingly, the detenu went from Calicut to Dubai on 19th October, 1992. He met Mohammed there. On his return trip, he was asked by Mohammed to carry a suit case. The detenu returned from Sharjah to Calicut by flight IC 990 on 30-10-1992. He was intercepted by the customs authorities. A search of the suit case revealed that in the false bottom of the suit case 150 gold biscuits of 10 tholas each, approximately valued at over Rs. 68 lakhs, were concealed. The gold biscuits had foreign markings. The detenu gave a statement on the same day, that is to say, 30-10-1992, under Section 108 of the Customs Act, 1962 to the effect set out hereinabove. He also stated that one Vijayan was to meet him at Calicut Airport on his arrival to whom he was to hand over the suit case as per the instructions of Mohammad. The detenu was arrested and produced before the Addl. Chief Judicial Magistrate (Economic Offences), Ernakulam on the same day, that is to say, 30-10-1992. He was remanded to custody. Thereafter the detenu made a number of applications for bail before the Addl. Chief Judicial Magistrate (Economic Offences), Ernakulam, as also before this Court. His applications were, however, dismissed. Ultimately, in Crl. M. C. No. 1636 of 1992, which was an application for bail filed before this Court by the detenu on 21-12-1992, an order was passed on 29-12-1992 granting bail on certain conditions set out therein. The detenu filed an application dated 29- 1-1993 for modification of the bail order, pursuant to which an order was passed on 5-2-1993 modifying the terms and conditions of bail as set out therein. Thereafter, on complying with the conditions so modified, the detenu was released on bail.
3. On 1-2-1993, the detenu made a complaint addressed to the Chief Judicial Magistrate (Economic Offences), Ernakulam, in which he has retracted the statement earlier given by him.
4. The residence of the detenu was searched on 6-11-1992, but no contraband goods or incriminating documents were found or seized.
5. The impugned order of detention under Section 3(1)(i) and (iii) of the COFEPOSA Act was issued on 18-9-1993. Pursuant to this order, the detenu was taken into custody on 18-10-1993. The detenu was produced before the Advisory Board on 28-11- 1993. He also made a representation to the Chairman of the Advisory Board on 2-12- i 993. Thereafter an order has been issued by the first respondent on 29- 12-1993, confirming the detention. The representation made by the detenu, which was dated 2-12- 1993, has been rejected by the first respondent on 18-12-1993 and by the second respondent on 28-12- 1993.
6. The petitioner has challenged the order of detention firstly on the ground that there has been considerable delay in passing the order of detention While the detenu was apprehended with gold biscuits on 30-10-1992, the order of detention was issued only on 18-9-1993. The petitioner contends that there is considerable delay in issuing the detention order, as a result, there is no live link between the prejudicial activities of the detenu and the order of detention. Hence the order of detention is bad in law.
7. Leaving aside the jargon, what we have to consider is, was it necessary to detain the detenu as a consequence of what he had done almost a year back, or, putting it slightly differently, is the activity of the detenu such that an apprehension of his continuing such activities would continue after almost a year? To decide this question, it is necessary to look at the nature of the activities complained of. The passport of the detenu shows that he went on a trip of a short duration to Sharjah from Calicut and brought back with him 150 gold biscuits concealed in the false bottom of the suit case. The apprehension of the authorities that this was not a stray act cannot be said to be unjustified, looking to the circumstances in which the detenu was apprehended. If the detaining authority has come to the conclusion that the nature of activity is such that there is a need to detain the detenu even after the lapse of a year, that conclusion cannot be considered as unjustified. The detaining authorities have also explained in the counter-affidavit filed by he Commissioner and Secretary, Home Department, Government of Kerala, dated 17-6-1994, the circumsiances in which the delay occurred in issuing the detention order. He has stated that after the detenu was apprehended on 30- 10-1992, the residence of the detenu was searched on 6-11 -1992. The gold which was seized was sent for chemical analysis on 18-12- 1992, and the chemical examination report was received only on 9-2- 1993. After considering the facts of the case, a draft proposal was sent to the office of the Deputy Director, Directorate of Revenue Intelligence, Bangalore, on 11-4-1993. The files were received back from the office of the Deputy Director on 27-4-1993. In the meanwhile, a show cause notice had been issued earlier to which a reply was sent on behalf of the detenu on 18-4-1993 and this was received at the office of the Directorate of Revenue Intelligence on 5-5-1993. After taking into account all facts and circumstances, a proposal was sent to the State Government on 5-6-1993.
8. The Screening Committee met on 28-6-1993, and recommended the issuance of detention order. However, there were a large number of documents which were required to be annexed to the grounds of detention, and which required to be translated in Malayalam. Hence the documents were sent for translation on 7-7-1993. The translation was received back on 15-9-1993, and thereafter the entire files were submitted to the detaining authority on 17-9-1993 and the detention order was issued on 18- 9-1993. The affidavit sets out in detail various other procedures which had to be complied with before the order of detention was issued. What is relevant to notice is that the proposal for detention of the detenu was under active consideration of the relevant authorities throughout. Therefore this is not a case where one can say that the authorities suddenly woke up to the need for detaining the detenu after a lapse of one year.
9. There is a difference between the delay in making an order of detention under a law like the COFEPOSA Act, and the delay in complying with the procedural safeguards under Art. 22(5) of the Constitution of India, As the Supreme Court has observed in the case of Rajendra Kumar v. State of Gujarat, :
"...Quite obviously, in cases of mere delay in making of an order of detention under a law like the Conservation of Foreign Exchange and 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...."
10. In the case of Abdul Salam v. Union of India, , where the detention was under the COFEPOSA Act, the Supreme Court observed that merely because of delay in issuing an order of detention, the nexus between the grounds of detention and the necessity for detention does not necessarily get severed. The Court must consider the nature of the prejudicial activities indulged in by the detenu and the likelihood of his repeating the same. If the detaining authority is satisfied on the available material, then on account of mere delay in issuing the order of detention, the Court should not normally strike down the detention.
11. In the case of Rajesh R. Khushlani v. Mahendraprasad, 1993 Supp (1) SCC 758, the Supreme Court held that a delay of 6V2 months in issuing an order of detention was not unreasonable. It had in this connection also noted the volumes of documents which were needed to be translated.
12. Our attention was also drawn to the decision of the Madras High Court in Inderchand Jain v. State of Tamil Nadu, 1986 Crl LJ 638, where a delay of over 10 months was not considered unreasonable in the circumstances of that case.
13. As against these authorities, learned Advocate for the petitioner drew our attention to the decision of the Supreme Court in the case of T.D. Abdul Rahman v. State of Kerala, , where there was an unexplained delay of three months in issuing the order of detention. The Supreme Court said that such a delay would throw considerable doubt on the genuineness of subjective satisfaction of the authority. We have, therefore, to consider this authority in the light of the facts which are before us in order to decide whether the delay was such, as would lead us to conclude that there was no genuine apprehension that the detenu would continue with his prejudicial activities, and hence it was not necessary to detain the detenu. On looking to the nature of the conduct of the detenu in the present case, we arc satisfied that there was a genuine apprehension on the part of the detaining authority that the detenu was likely to continue his prejudicial activities in future.
14. Learned advocate for the petitioner also drew our attention to the decision of the Supreme Court in Pradeep Nilkanth Paturkar v. S. Ramamurthi, 1993 Supp (2) SCC 61. This was a case of detention under the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers and Drug Of lenders Act, 1981. There was a delay of lour months in passing the order of detention. The Supreme Court said that each such case would have to be decided on its own facts and circumstances. After commenting on certain features of the case before it in paragraph 13, the Supreme Court said that the unexplained delay in that case - whether long or short, vitiated the detention order. The case before the Supreme Court was obviously decided on its own facts. We have examined the facts of the case before us. We find that the decision of the detaining authority to issue the detention order is justified, looking to the facts of this case, even after taking into account the delay. Also the detention is under the COFEPOS A Act, for economic offences which are likely to be repeated and which require some investigation.
15. In these circumstances, the delay in issuing the order of detention is not fatal, especially in the light of the elaborate explanation for delay which has been set out in the counter-affidavit filed on behalf of the first respondent.
16. It was next contended that some of the documents furnished to the detenu are illegible, and this has materially affected the constitutional right of the detenu to make a representation to the appropriate authorities against the order of detention. In this connection learned Advocate for the petitioner drew our attention to two documents. The first was a photocopy of a hand-written remand order by the Magistrate. On the next page however the entire order is reproduced by typing it out. The typewritten order is very clearly legible. Therefore no prejudice is caused to the detenu.
17. The next document shown to us in this connection is the second page of a bail application, which was filed by the detenu. The application is in English. As the detenu does not understand English, a Malayalam translation of the bail application is also furnished to him along with grounds of detention. This Malayalam translation of the bail application in question is very clearly legible. Hence the right of the detenue to make a representation is not affected in any manner.
18. It was also submitted before us that the detaining authority had not applied its mind to the various bail applications and the conditions under which the bail had been granted to the detenu. There is, however, a clear reference to all these applications and orders in the grounds of detention. There is no merit therefore in this submission. Similarly, the contention that the retraction by the detenu of his statement under Section 108 of the Customs Act was not considered by the detaining authority is also without merit. There is a clear reference to these facts in the grounds of detention.
19. It is lastly contended that there was a month's delay in apprehending the detenu after the detention order. We do not see how this interval of one month between the date of the order of detention and execution of that order renders the detention bad in law. This is not a case where there is a long unexplained delay in apprehending the detenu. Hence the ratio of the decision of a Division Bench of this Court in Amina Umma v. Joint Secretary, 1994 (2) KLT 150 has no application to the present case.
In the premises, we do not see any reason for setting aside the order of detention. The Original Petition is therefore dismissed.