P. Susheelan vs Commissioner And Secretary ...
1987 Latest Caselaw 359 Del

JUDGMENT

M.K. Chawla, J.

1. On 7th October, 1985, Shri. Susheelan arrived at Trivandrum Airport from Abu Dhabi. At the Customs clearance counter, he declared four gold bangles and one gold chain total weighing 33 grams along with other items. The Customs officials posted at the airport doubted the declaration and conducted the search of the baggage. During the course of the search of the washing machine, the Customs officials recovered 31 gold biscuits. From the personal search of the petitioner, three gold biscuits, 4 bangles and a chain were recovered from his socks. On completion of the investigation, a criminal complaint u/s. 132 and 133 of the Customs Act was filed by the Assistant Collector of Customs, Trivandrum Airport before the Addl. Chief Judicial Magistrate Arunakulam. Before that, the accused was released on bail on 26-10-1986. The trial in the case is still proceeding and so far the complainant has produced six P.Ws.

2. It is the case of the petitioner that on 1-7-1986, one police constable attached to the office of the Deputy Superintendent of Police, Pathanamthitta came to his residence and informed that he should appear before the D.S.P. on the next day. Immediately, he presented himself before the D.S.P. at 11 A.M. he was arrested and orders issued under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, hereinafter referred to as the Act, were served. He was detailed and sent to the Central Prison, Trivandrum. During his detention, the Addl. Secretary to the Government of India, passed an order u/s 9(1) of the Act on 23-7-1986. The final order of the State Government for the continued detention of the petitioner for a period of 2 years was passed and issued on 17-11-1986.

3. By way of filing the present petition, the petitioner has challenged his detention/continued detention on several grounds but I think this petition can be disposed of on two-fold contention bearing on the legality and validity of the declaration made u/s 9(1) of the Act and the unexplained delay of 9 months for initiating the action. In order to appreciate the scope of the arguments, one has first to keep in mind the scheme of the Act. Section 9 of the Act was substituted by the Amendment Act No. 58 of 1984 which came into force with effect from 31st July, 1984. Under the newly incorporated Section 9(1) of the Act, "any person in respect of whom an order of detention is made before the 31st day of July, 1987, can be detained without obtaining the opinion of an Advisory Board for a period longer than 3 months but not exceeding six months from the date of his detention where order of detention has been made with a view to preventing the detenu from smuggling goods or abetting the smuggling of goods or engaging in transporting or concealing or keeping smuggled goods, provided the Central Government or its officer not below the rank of Additional Secretary, specially empowered for this purpose is satisfied that such person :

"(a) smuggles or is likely to smuggle goods into, out of or through any area highly vulnerable to smuggling; or

(b) abets or is likely to abet the smuggling of goods into, out of or through any area highly vulnerable to smuggling; or

(c) engages or is likely to engage in transporting or concealing or keeping smuggled goods in any area highly vulnerable to smuggling and makes a declaration in that behalf within 5 weeks of the detention of such person."

Sub-section (2) of Section 9 effects certain amendments in clauses (b), (c) and (f) of Section 8 of the Act. Under clause (b), the appropriate government has to make a reference to the Advisory Board within 5 weeks from the date of detention. Under clause (i) of sub-section (2) of Section 9, the period of 5 weeks is extended to 4 months and 2 weeks. Again clause (c) of Section 8, the Advisory Board has to opine whether or not there is a sufficient cause for the detention of the person concerned and submit its report within 11 weeks from the date of detention. By amendment brought about by clause 2(ii) of Section 9(2), the words, "the detention of person concerned" are substituted by the words "the continued detention of the person concerned", and instead of the period of 11 weeks, the period is extended to 5 months and 3 weeks. The effect of this amendment is that the Advisory Board is in cases where a declaration is made under Section 9(1) of the Act called upon to decide within a period of 5 months and 3 weeks from the date of detention, whether or not there is sufficient causes for the continued detention of the person concerned. Similarly, by clause 3(i) of Section 9(2) under clause (f) of Section 8, the words "for the detention" appearing in both the places have to be substituted by the words "for the continued detention" of the person concerned. In other words, the appropriate Government can confirm the detention order and continued the detention of the person concerned if the Advisory Board has opined that there is sufficient cause for his continued detention. Once this is done, by virtue of Section 10 of the Act, the maximum period of detention gets enlarged to two years from the date of detention.

4. From the above scheme of the Act, it becomes clear that once a declaration is made under Section 9(1) of the Act, it has the effect of (i) extending the period within which a reference must be made to the Advisory Board from 5 weeks to 4 months and 2 weeks and (ii) extending the maximum period of detention from one year to two years from the date of detention. It is not disputed that any declaration made under this provision would be based on the subjective satisfaction of the Central Government or its specially empowered officer.

5. The contention of the learned counsel for the petitioner is that since the declaration is based on the subjective satisfaction of the authority making it, it is imperative on the part of the said authority to supply to the detain the material justifying the making of the declaration. According to him unless the basic material in this behalf is supplied, the detenu would not be able to make an effective representation against the declaration to the concerned authority or Advisory Board which has to be satisfied that his continued detention was justified. Non-supply of basic material on which declaration is founded would therefore, deprive the detenu of his right to make an effective representation before the Advisory Board which would be fatal to his continued detention.

6. The stand of the respondent, as disclosed in the counter, is that no fresh material was considered by the Additional Secretary to the Government of India and the material and grounds of detention which were supplied to the detenu by the detaining authority were considered and he reached the subjective satisfaction and issued the declaration under Section 9(1) of the Act against the detenu.

7. It is not in dispute that no material whatsoever was furnished to the detenu at the time of the service of the declaration made under Section 9(1) of the Act nor was the detenu informed that the subjective satisfaction for the declaration was based on the very same material on which the detention order under Section 3(1) of the Act was based. What is its effect, is the question which calls for a definite answer. In a bunch of cases, reported as Abdulla Mamad Mithani v. State of Gujarat, 1986, Gujarat Law Herald 903, the Division Bench has considered this aspect at quite some length, and held thus : "If the authority making the detention order and the authority making the declaration do not operate in the same field, the material on which their respective satisfaction may be based, may not be identical although it may overlap to a large extent. There can, therefore, be no doubt that if it is found imperative in law to furnish to the detenu the material on which the declaration came to be made, a mere belated statement in the counter affidavit that the declaration was made on the same material, which formed the basis of the detention order would not suffice in law. In that event, there would be no escape from the conclusion that the detenu ought to have been informed that the material was the same at the time of the service of the declaration."

8. This aspect can also be looked into from another angle. The order of the State Government confirming the detention for a period of two years is dated 17th November, 1986. The submission of the learned counsel for the petitioner is that this order was passed by the State Government without application of its mind inasmuch as the representation of the detenu against his detention and the orders passed thereon have been ignored while his parole application and the order thereon has been considered as relevant. To support this contention, he referred to and relied upon the order of confirmation (Annexure 'D'). There is absolutely no reply to this ground in the counter, thereby in a way conceding the allegation. It may be that the detenu had preferred to file his representation and an application for parole to the State Government on the same day, but an affidavit of the person concerned should have been placed on record pointing out the mistake, if any, in mentioning the rejection of the representation in place of the application for parole as stated in the order confirming the detention for a period of two years dated 17th November, 1986. Even the mistake, if it can be so called, has not been tried to be explained in any of the two counters filed by the respondents. This fact, by itself indicates the non-application of mind to the relevant facts which have come into existence before the order of confirmation.

9. On the other aspect also the petitioner is on a firmer ground. The date of the incident is 7th October, 1985. Within few days the complaint was filed in the Court of Chief Judicial Magistrate. During the pendency of the criminal proceedings, the accused was released on bail by order dated 26th October, 1985. The petitioner was ordered and detailed under the Act on 2nd July, 1986. The submission of the learned counsel for the petitioner is that the order of detention was based on the solitary incident having taken place on 7th October, 1985, while the detaining authority took about 9 months' time to make up their mind. The order of detention thus is invalid there being no proximity between the prejudicial activity and the impugned order. Furthermore, the respondents have failed to furnish any satisfactory explanation for the delayed action. This fact alone is sufficient to vitiate the order of detention.

10. The stand of the detaining authority in the counter affidavit is reproduced below :

"Regarding the ground No. 4, I submit that the case was detected on 7th October, 1985 and after completing investigations in connection with the case, name of the detenu was proposed for detention on 10th April, 1986 and after observing the required formalities, the State Government issued detention order on 10th June, 1986. From this, it can be seen that there is no undue delay in the issue of the detention order. The mere fact that Shri. P. Susheelan could not be caught earlier with contraband and that there was no seizure from his house do not mitigate the offence committed by him in bringing contraband in his baggage from abroad."

Is this explanation is a satisfactory, valid and acceptable one or not is the question that requires going into.

11. It is well settled that where an unreasonably long period has elapsed between the date of the incident and the date of the order of detention, an inference may legitimately be drawn that there is no nexus between the incident and the order of detention, and the order of detention may be struck down as invalid. The courts, however, have not laid down any hard and fast rule as to what is the length of time which can be regarded sufficient to snap the nexus between the incident and the order of detention. The Supreme Court in a case reported as Hemlata Kanti Lal Shah v. The State of Maharashtra and another, AIR 1982 SC 08 on this aspect has observed that the delay ipso facto in passing the order of detention after an incident is not fatal to the detention of a person for in certain cases, delay may be unavoidable. What is required by law as that the delay must be satisfactorily explained by the detaining authority.

12. With this background, the explanation of the detaining authority can be carefully looked into and examined. Prima facie on the face of it, the explanation, if it can be so called, is devoid of any substance. From the date of the arrest of the petitioner on 7th October, 1985, the detaining authority straight-away jumped to 10th April, 1986, when the name of the petitioner was proposed for detention and then the order of detention dated 10th June, 1986. What transpired during the gap of more than six months in the first instance remains a mystery. It is not shown as to who initiated the proposal for detention and when. It is also not made clear as to how much time was consumed in completing the investigation, processing and giving the final shape to the order of detention. It is also not stated as to how many witnesses were examined and, if so on what dates. It is not disputed that most of the documents and the statements had already come into existence at the time of the arrest of the petitioner or immediately thereafter on the search of his premises. There is absolutely no explanation what to talk of a satisfactory one for the delayed action after the receipt of the proposal on 10th April, 1986, and giving its final shape on 10-6-1986. It was desirable on the part of the detaining authority to have filed the affidavit of the person concerned explaining the delay in handling the file of the detenu. The case to my mind, has not been given the urgency which it deserved. In fact, there is no explanation in the eye of law and this delay of more than 9 months is quite fatal to the order of detention.

13. The delay of two and a half months has been held to be fatal in the judgment of our own High court reported as Bhupinder Singh v. Union of India and others, (1985 DLT 493). The Division Bench on this aspect concluded thus :-

"As noted earlier, in the return there is no explanation about the delay in the official record from 14-12-1984 to 28-2-1985. We find ourselves unable to agree with the counsel for the respondents that in the file, there is an explanation much less satisfactory explanation. In our opinion, the gap between 14-12-1984 to 28-2-1985 reveals a complete disregard to the requirement of urgently dealing with cases involving preventive detention. The official record is silent as to who was handling it between the said two dates. We cannot accept the arguments of Mr. Bagai that this period of two and half months was utilised for preparing the draft grounds. We consequently, hold that the delay in this case remains unexplained."

In support of the petitioner's submission, useful reliance can also be placed on the Judgments reported as Sk. Abdul Munnaf v. The State of W.B., ; Lakshman Khatik v. The State of West Bengal, ; Rabindra Kumar Ghosel alias Buli v. The State of West Bengal, ; Mohd. Sahabuddin v. The District Magistrate, 24 Parganas & Ors. .

14. Applying the said ratio to the facts of the case in hand, I have no hesitation to hold that the detaining authority has not acted swiftly in the matter as it deserved. There is no proximity between the prejudicial activity and the order of detention. Prima facie, the explanation as disclosed in the counter is not convincing. This circumstances, by itself is enough to quash the order of detention.

15. Before parting with this case, I am constrained to observe that the detaining authorities, of the Central/State Governments have not been keeping abreast with the settled propositions of law laid down by the highest court of the land and the High Courts of various States, concerning the orders of detention. Articles 21 and 22 of the Constitution of India together constitute an integrated code, the former prohibits deprivation of personal liberty except according to the procedure established by law, whereas the latter outlines the procedure in respect of the preventive detentions. Clause (i) and (ii) of Article 22 which provides for preventive detention prescribes certain safeguards to ensure that a person who is deprived of his personal liberty is informed of the grounds of his arrest and is produced before the nearest Magistrate within 24 hours of his arrest. The urgency with which the orders of detention deserved to be passed and executed has not been given the due importance. Most of the orders appear to have been passed in a casual manner and thereafter not cared for. This has always resulted in the non-application of mind by the detaining authority on the various settled points and/or the delay in initiating the proposal, consequential orders and execution thereof. As and when such orders were challenged in the court of law, the detaining authority normally failed to furnish the adequate material which prompted them to initiate the action or explain the delay in passing such orders and its service on the detenu. The law on this subject almost stands settled. It appears that the detaining authority by himself or his subordinates does not point out the settled propositions at the time of filing the counters, with the result that almost 90 per cent. of their orders are set aside. I hope that in future the detaining authorities will apply their mind to the settled law before adverting to take action against the detenu and take appropriate steps to defend the stand by filing proper counter-affidavits.

16. As a result of the above discussions, I accept the petition and quash the order of detention. The petitioner be set at liberty forthwith unless required to be detained under the orders of any other competent court of authority.