Dalbir Singh vs Union Of India And Ors.
1995 Latest Caselaw 154 Del

JUDGMENT

M. Jagannadha Rao, C.J.

(1) The petitioner has been detained under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called the COFEPOSA) by the State Government by an order dated 28.4.1993 of the Deputy Secretary (Home) of the National Capital Territory of Delhi, (2nd respondent).

(2) The incident occurred on 21.12.1992 when the petitioner reported at the Customs departure hall, after clearing from immigration to travel to Hongkong on flight dated 21.12.92. After customs clearance pursuant to his declaration, he was stopped and on personal search, it came to light that he had concealed foreign currency equivalent to Rs. 1,49,462.00 in his rectum. Petitioner could not produce evidence of lawful possession. It is said that he made a statement on 21.12.92 under Section 108 of the Customs Act, 1962 admitting that he was illegally carrying the currency and that he was doing so for Rs. 5,000.00 which he was to receive from one Mohan Singh at Hongkong to whom he was to handover the foreign currency. It is not necessary to refer in detail to other part of his statement except that he was doing this on various visits to Hongkong, Bangkok or Singapore.

(3) Scrutiny of the passport revealed that he had gone abroad 11 times w.e.f. 11.2.92 up to 27.11.92(On 17.2.92, 4.3.92, 4.4.92, 19.5.92, 8.6.92, 12.6.92, 13.8.92, 23.8.92, 2.9.92, 2.11.92 and 27.11.92). Petitioner was arrested under the Customs Act and produced before the Acmm, New Delhi on 22.12.92 and remanded to judicial custody up to 5.1.93. The petitioner gave his address as Jg Ii, 50, Vikas Puri, Delhi and H.No. 1304/19 Jhanda Bange Bazar, Ma Sewa, Amritsar and these addresses were found to be false. During inquiry, the place of residence was discovered as Jg Ii 138 Vikaspuri,Delhi and it was found that the house was sold away in September,1992. Bail application was filed on 23.12.92 and rejected on 5.1.93. Judicial custody was extended up to 19.1.93. On another bail application, petitioner was released on 15.1.93 subject to conditions. On 28.1.93, petitioner applied for withdrawal of conditions imposed with reference to his reporting to customs and the conditions were partly relaxed by the Court on 29.1.93. Complaint under Sections 132 & 135 of Customs Act, was filed on 22.2.93.

(4) On these facts, order of detention was passed on 28.4.93 and the same was executed on 22.2.94 on the petitioner in the Court of Acmm, New Delhi. Petitioner made a representation from the jail on 19.4.94 to the detaining authority but the same was rejected by the Deputy Secretary (Home), National Capital Territory on 3.5.94. On 21.4.94, petitioner was produced before the Advisory Board and he moved a representation before the Advisory Board again. The representation was rejected on 13.5.94 and on the same day, an order of confirmation of detention was made for one year. The petitioner made a further representation dated 8.8.94 under Section 11 of the Cofeposa to the Central Government with a request to forward the same to the appropriate authority for revocation of detention order. The said representation was rejected by the Central Government on 22.8.94 and on 7.9.94 by the Government of the National Capital Territory, Delhi.

(5) Several points have been raised by the learned counsel for the petitioner. They can be summarised as follows:

(1)There is unreasonable delay of about 5 months in passing the order of detention and this has vitiated the detention.

(2)There is unreasonable delay in execution of the order of detention.

(3)The detaining authority has taken into account "irrelevant" facts as appears from some of the documents supplied to the petitioner and this amounts to non-application of mind by the detaining authority.

(4)The representation dated 8.8.94 has not been considered by the proper authority in the Central Government but has been disposed of on 22.8.94 by the Under Secretary.

(5)There is unexplained long delay on part of the Government of National Capital Territory in disposing of the representation dated 8.8.94 (addressed to the Central Government, with a request to forward the same to the State Government and which was so forwarded on 10.8.94) inasmuch as the State Government rejected it only on 7.9.94.

(6)The representation dated 21.4.94 given by the petitioner before the Advisory Board has not been independently considered by the Government of National Capital Territory and they were influenced by the opinion of the Advisory Board.

(7)The representation dated 8.8.94 to the State Government is one under Section 11 and has been rejected by the State Government and it is bad as it refers to the rejection of the earlier representation.

(6) We shall deal with the points seriatum. Point 1

(7) From the facts stated above it is clear that the incident occurred on 21.12.92 but the detention order was passed on 28.4.93 by the National Capital Territory of Delhi. Before going into the merits, we shall refer to the legal principles in this behalf.

(8) It is well-settled that unexplained delay in passing an order may vitiate an order of detention for it may snap the nexus between the incident and the detention. But there can be no hard and fast rule regarding the length of time which is to be regarded sufficient to snap the nexus. In Shiv Ratan Makim vs. Union of India , the delay of 5 months was held satisfactorily explained. In Abdul Salam vs. Union of India the search was on 17.9.1987 while the detention order was passed on 21.5.1988(nearly after 8 months) it was held that the delay was properly explained and the case law was reviewed. There the case record was received by the sponsoring authority on 1.2.88 and processed. A show cause notice was issued under the Customs Act on 9.2.88 and proposals sent to Cofeposa section on 24.3.88 and received by the State Government on 2.4.88. The Screening Committee considered it on 28.4.88. On 2.5.88 the detaining authority called for explanation for delay in sponsoring the case, reply received on 1.5.88. Delay was held explained. In Yogendra Murari vs. State of U.P. , the incident occured in July and the detention order was passed in December. The petitioner was in custody and there was no apprehension of his indulging in illegal activities requiring detention till the grant of bail by the Criminal Court became imminent. These facts were explained in the detention order as well as in the counter-affidavit. In Ahmed Kutty vs. Union of India (1990(2) Scc 1) the incident took place on 31.1.1988 and the detention order was passed on 25.6.88. The Supreme Court referred to the fact that the petitioner was remanded to judicial custody till 12.2.1988 when he was granted conditional bail, and that the Collector (Customs) sent proposal on 27.5.88 Along with draft grounds, and the Screening Committee decided in favor of detention on 21.6.88 and order was passed on 25.6.88. It was observed that the seemingly long time was taken on account of the full and detailed investigation and consideration of the facts of the case. Thorough investigation was necessary by the Customs authorities both for proceedings under the Customs Act and for prosecution by the Criminal Court and the proposal could not have been hurried through. It was held that the nexus did not snap nor the grounds were rendered stale. In K. Aruna Kumari vs. Government of A.P. delay of five months in passing order was held explained. There the offence was on 18.12.1987, the detenu was arrested on 18.3.87, further investigations made, details of his property were investigated till 13.5.87 and the detention order was passed on 15.5.87. In Ashok Narain vs. Union of India, delay of eight months in passing order was held properly explained. Here the incident was on 23.2.82 and detention order was made on 14.10.82. In the interregnum there were raids, searches and arrest. Bail was granted on 24.4.81. The Court called for the record and examined and held that investigation was the cause for the delay.. In Hemlata Kantilal Shah Vs. State of Maharashtra it was held that the authority was to explain to the Court as to why the delay occured but that the authority was under no legal liability to inform or satisfy the detenu about the causes for the delay. The detenu was arrested on 9.1.81. In between statements of 11 persons were recorded between 7.4.1981 and then these facts were considered and the detention order was passed on 3.6.81. The delay of five months was held satisfactorily explained. In Syed Farooq Mohd. vs. Union of India the delay of 5 months from 20th July till detention order on 20th December was held explained because samples were sent for test, reports were received from the Customs Department on 29th September, 13th October and 15th November, and then the matter was screened and materials considered. It has further been laid down in Rajendra Kumar Natvarlal Shah vs. State of Gujarat that there is a distinction between delay in complying with safeguards under Article 22(5) of the Constitution and delay in making an order of detention. The rule as to unexplained delay in taking action is not inflexible. It was observed that in cases arising under the Cofeposa, mere delay in passing an order of detention of persons who are posing a serious threat to the economy of the country and thereby the security of the country, the Courts should not merely, on account of delay in the making of an order of detention, assume that such delay, - if not satisfactorily explained - would necessarily give rise to an inference that there was no sufficient materials for the subjective satisfaction and that it was not genuinely reached. Taking such a view, it was held, would not be warranted unless the Court found that the grounds were stale or illusory or that there was no real nexus between the grounds and the order. In that case though there was indeed no explanation for the delay between 2.2.1987 and 28.5.1987, it was held that that would not give rise to a legitimate inference that the subjective satisfaction was not genuine or that the grounds were illusory or that there was no rational connection between the grounds and the impugned order. In R. Khushlani vs. Mahendra Prasad (1993 Suppl. (1) Scc 759) there was a delay of 6 months and 15 days in the passing of the order under Cofeposa from the date of recording statement of the detenu. Several documents had to be gathered from the Bank Managers, recorded and only thereafter the material was to be placed before the detaining authority by the sponsoring authority. Delay from the date of the recording of the last statement of Bank Manager was only one month. These facts could be gathered not only from the counter but also from the detention order. It was held that there was no undue or unreasonable delay in passing of the order. In Kusum Chandrakant Khause vs. L. Himlingliana the seizure was on 22.7.90, the detenu was arrested and remanded to judicial custody on 23.7.90 but bailed out on 3.9.90. Detention order was passed on 11.1.91. The delay was more than 5 months. Having regard to the facts and circumstances of the case, it was held that there was no merit in the contention. More recently, in Panna vs. A.S. Samra ) the delay was more than 5 months from the last of the incident which took place on 13.9.91. The order was passed on 3.4.92. It was held that the delay was explained.

(9) From the aforesaid rulings, the following principles can be summarised. Unexplained delay may vitiate an order of detention if the Court can infer that on account of that delay the nexus between the incident and the detention order has snapped. But there is no hard and fast rule regarding the length of time which can be regarded as sufficient to snap the nexus. The authorities may sometimes take time for a detailed investigation for action under the Customs Act and also for a criminal prosecution. It may also happen that there is no apprehension as long as the person is in custody in the criminal case and only after he is released on bail, the customs authorities might consider preventive detention necessary and address the detaining authority. It may also be that the detaining authority may take time in calling for particulars from the sponsoring authority, consider the same, place it before the Screening Committee and come to a conclusion later. One cannot say that investigation should have been hurried. The detaining authority is not obliged to explain the delay to the detenu but is obliged to explain the same to the Court. While delay in observing the time limits in regard to safeguards provided by Article 22(5) of the Constitution might vitiate detention, that principle does not apply to delay in passing the order of detention. The latter is a factor relevant only in the context of finding out whether, as a fact, the nexus between the incident and the detention has snapped. Unexplained delay does not also lead to the inference of absence of sufficient material or that the subjective satisfaction is not genuine. Explanation for delay may be found in the detention order or in the counter-affidavit.

(10) We shall now refer to certain rulings cited for the petitioner. It is true that in Rabindra Kumar Ghoshal vs. State of West Bengal 1975 SCC(Crl) 365, delay of three months, on facts, was held to vitiate the order passed under the Maintenance of Internal Security Act. Apart from the fact that delay was relevant on the question of snapping of the earlier incident relating to public order, the Supreme Court referred to this case in a later case, Hemlata Kantilal Shah (supra) and observed that mere delay is not fatal for in some cases delay may indeed be unavoidable and reasonable. What is required is that delay has to be satisfactorily explained. Again in Pradeep Nilkanth Paturkar vs. Shri S. Ramamurthi delay of five months and 8 days was treated as bad in the case of the statute dealing with past acts of bootleggers, slum lords and drug offenders. But after the same case, the Supreme Court in Ramesh Khuslani's case (supra), held delay of 6 months and 15 days properly explained. In Issac Babu vs. Union of India , the delay was 11 months, and the explanation, that investigation took 5 months and thereafter 6 months were taken for issue of show cause notice under Customs Act, was not treated as proper explanation. Sk. Serajul Vs. State of West Bengal was a case where no explanation was offered. The decision of this Court in Amir Sadruddin Khan vs. Administrator U.T. of Delhi (1992) Dlt 137 of a Division Bench of this Court rejected the detailed additional affidavit on the ground that no explanation was offered as to what documents were called for from other authorities and why there was one month delay after the report of the Screening Committee. We find from the Supreme Court Judgments, particularly, Ahmed Kutty and Khushlani's that calling for remarks from the sponsoring authority and referring to the Screening Committee is not improper. If investigation takes time, it is not bad. In Kirpal Singh vs. Union of India (1991 Jcc 368 (Del) the Division Bench held that initiation of detention orders only after release on bail was bad but the view runs contrary to the Supreme Court Judgment in Yogendra Murari's case (supra). To the extent these two judgments run counter to the reasoning in the Supreme Court judgments referred to earlier, we are unable to follow them in view of Article 141 of the Constitution of India.

(11) Coming to the facts in the present case, we find that in the counter-affidavit filed by the Deputy Secretary (Home), it is stated that the incident took place on 21.12.92, and after carrying out investigation, complaint under Sections 132 and 135 was filed in the Court of the Acmm on 22.2.93, the proposal for detention was received from the Customs Department by the Home Department on 17.3.1993, which was examined there. The Customs Department was asked to supply up to date information/documents necessary for passing the detention order. The matter was placed before the Screening Committee on 30.3.93, reply from the Customs Department was received on 16.4.93, the Home Department examined the papers and the case was processed and put up to the Lt. Governor on 19.4.93 through Deputy Secretary (Home) and Secretary (Home) who approved the proposal for detention on 23.4.93 and then the detention order was issued on 28.4.93. It is pointed out that the time was taken for collecting the up to date material necessary to arrive at the subjective satisfaction by the detention authority. The delay is clearly explained. Point 1 is decided against the petitioner. Point 2

(12) This point relates to the delay in execution of the detention order. The order was passed on 28.4.93 but the petitioner was detained on 22.2.94. We shall again refer to the legal principles.

(13) Delay in arresting the detenu would not vitiate the detention order if the detenu was himself absconding and trying to evade the arrest. (Farooq Mohd vs. Union of India Bhawarlal Ganeshmalji vs. State of Tn . If he was absconding and could not be arrested till he surrendered after initiating procedure under Sections 82, and 83 Cr. P.C., the delay cannot be fatal. (Sharad Kumar Tyagi vs. State of UP) . In Shafiq Ahmed vs. D.M. omission to invoke Section 7 of the National Security Act (Section 7 of COFEPOSA) was held not a ground to say that detention order was bad. Without taking such action, the State could still plead that the detenu was absconding. Same view was held in Indradeo Mahato vs. State of W.B. . In Abdul Salam vs.Union of India the delay of 2 months and 15 days was held reasonably explained, following T.A. Abdul Rahman Vs. State of Kerala and S.K. Seragil vs. State of Wb . In M. Ahmed Kutty vs. Union of India (1990(2) Scc 1) the delay of 38 days was held to be due to lack of coordination between the detaining authority and those entrusted with execution of the order and held not improper. There the police found he was absconding and not available at his 'present' address. In M. Mohammed Sulthan vs. Joint Secretary the detenu was not available at his known address though continuous efforts were made and he could be served only on his surrender. It was held that the order was not vitiated. In Kamarunnisa Vs. Union of India and in Rajesh Khushalni(supra) it was held that the time taken for translation of documents in the language known to the detenu was to be taken into account. In P.K. Iqbal vs. Union of India there was one year's delay in execution out of which seven months were taken for execution of the warrant by the Circle Inspector of Police due to his apathetic and insolent approach, in spite of reminders, which was held to defeat the purpose of detention and snap the link. Likewise in K.P.M. Basheer vs. State of Karnataka delay of five months in not making serious effort either by taking action under Section 7 of Cofeposa or in arresting the detenu when he physically appeared before the Collector of Customs was held to break the proximate link. Where the detenu himself delayed the execution by first moving to the High Court and then to the Supreme Court, the delay cannot be questioned (Subhash Muljimal Gandhi vs. L. Himingliana . In Narendra Punjabhai Shah vs. Union of India 1994 (2) Scale 112, the order was passed on 18.8.92 but served on 24.8.93, after one year. The detenu appeared before the Court on two occasions and order was not served. Explanation that the documents were being translated was not accepted. Even the search at his address referred was only up to 11.12.92 and there was no explanation for the period up to 6.4.93. Hence the delay was held not properly explained.

(14) From the aforesaid decisions of the Supreme Court, the following principles can be gathered. Delay in executing a detention order, if satisfactorily explained, cannot vitiate the detention. If the detenu has been absconding or trying to evade arrest till he surrendered after initiation of procedure under Sections 82 and 83 Cr. P.C., the delay cannot be fatal. Mere fact that powers under Section 7 of Cofeposa have not been invoked may not lead to inference of neglect. Delay due to lack of co-ordination between the detaining authorities and the officers executing the warrant may not also be fatal. If detenu was, in spite of frequent search, not found at his known residential address, that could be a valid explanation. Delay in translation of documents etc. is relevant. Delay for which the detenu is attributable, such as his moving Courts, is not fatal. Delay to be fatal must be of such length and remain unexplained so as to snap the nexus between the incident and the detention.

(15) We shall now refer to the cases cited for the petitioner. The decision in Pawan Kumar vs. Union of India is not applicable for though the Court said steps were taken to serve the order at the address of detenu, the counsel conceded that there was no material to say petitioner was absconding or was not available at his address. In that context reference was made to the omission to invoke Section 7 of the COFEPOSA. The case is clearly distinguishable. The learned Judge referred to other decisions of this Court. So far as Manmohan Singh vs. Union of India (1988) (1) Delhi Lawyer 171 is concerned the view expressed that it is not sufficient to say that detenu was not available at his known address and Section 7 order was not issued, that it was not stated as to how many times attempts were made to serve the detenu, runs counter to the Supreme Court judgments set above in detail. We cannot,therefore, agree with that view. We,therefore, overrule Manmohan Singh's case (supra) and other cases referred to therein which took a similar view.

(16) On the facts of this case, we find that the detention order was passed on 28.4.93,the order was sent to the Delhi Police and Customs Authorities for execution and reminders were sent to the police department asking for reports on 17.5.93, 9.6.93 and 28.6.93. On 28.6.93, the police reported that the petitioner left the premises two to three months earlier and information was being collected about his whereabouts. On 5.7.93, the Customs Officers were asked to confirm the address of petitioner, his name and also address of his sureties for bail. On 18.8.94 the police submitted a report that petitioner did not attend the proceedings and that his counsel had produced a medical certificate for exemption. Police conducted raids at the address given by petitioner to the Doctor and found that the petitioner was not residing there. Reports were submitted by police on 21.9.93 and 8.10.93. On 19.10.93, the Assistant Collector gave names/addresses of sureties and the same were sent to police on 27.10.93. One of the sureties was found to have died and the other surety did not provide any clue. Petitioner did not attend proceedings in the Court on 3.1.94. The order was served on 22.2.94 in the Court of Acmm, Delhi. For these facts, we are satisfied that a proper explanation was given and also that petitioner was evading. Hence Point 2 is held against the petitioner. Point 3 : It is argued for the petitioner that some of the documents annexed to the grounds of detention are irrelevant and that the detaining authority has "relied" on them and hence the detention order is vitiated. Several rulings of learned Single Judges of this Court are cited. The contention is that while the detaining authority might have relied on a large number of relevant documents, it has also "relied" on certain other documents which have no connection with the offence and contain purely historical or linking facts or facts unconnected with smuggling. If the detaining authority says it has "relied" upon such useless or irrelevant documents, it must be a case of non-application of mind. That is the argument.

(17) The tests for judging the validity or existence of the subjective satisfaction in preventive detention cases are the same tests as are applied in Administrative law. (Ayya vs. State of U.P.) (supra) (See also Khudi Ram Das vs. State of West Bengal . Under Cofeposa this principle is further subject to Section 5A. It is also well settled that if the subjective satisfaction is based on relevant material, it is not for the Court to go into its sufficiency.

(18) Before adverting to the question of consideration of relevant and irrelevant documents, a basic fallacy underlying the petitioner's contention has to be cleared. The meaning of the word "grounds" in Section 3(3) and in Section 5A has to be properly understood. In Vakil Singh vs. State of Jammu & Kashmir  it was held:    ""Grounds" within the contemplation of Section 8(1) means materials on which the order of detention is primarily based. Apart from the conclusions of facts, "grounds" have a factual constituent also. They must contain the pith and substance of primary facts but not subsidiary facts or evidential details".   

Again in Smt. Shalini Soni vs. Union of India , the Supreme Court stated:    ""Grounds" in Article 22(5) do not mean mere factual inferences but mean factual inferences plus factual material which led to such factual inferences".   

The transaction may be a particular act of smuggling gold but it may involve various primary facts : (i) the actual recovery, (ii) the confessional statement (iii) the manner in which the gold is concealed (iv) the agreement in regard to the manner of smuggling and so on. In such a case each of these facts and the inference that can be drawn from each will be a "ground" and that is why under Section 3(3), the documents relating to each of these grounds are to be supplied. It is not permissible therefore to consider the act relating to the smuggling as a single transaction and all the facts and inferences as amounting to a single "ground". In fact, Section 5-A has also to be understood by treating each primary fact and the inference drawn there from as a single ground. This aspect is clearly explained by the Supreme Court in Prakash Chandra Mehta's case . There the parties were arrested at Cochin for possessing 60 gold biscuits. The grounds were (1) the search and seizure at Room No. 316 of Dwarka Hotel and recovery of 60 gold biscuits, (2) the fact that importation of 60 gold biscuits could not be explained by the detenu, (3) the secretive manner in which the said gold biscuits were kept, and (4) confessions recorded under Section 108 of the Customs Act. It was argued that inasmuch as the retraction of the confession was not placed before the detaining authority the detention order was vitiated. This contention was rejected holding that if the retraction was not placed before the authority, the confession to which it was referable, could be eschewed and that would amount to omitting one of the "grounds" specified in the detention order. If ground No. (4) goes, the other "grounds" (1) to (3) - which obviously consisted of facts and inferences - remained and could sustain the order under Section 5-A. It has to be noticed that these other grounds (1) to (3) refer to the same seizure of 60 gold biscuits and still remained. It was held: "So even if the statements made under Section 108 by the father, the sons and daughter are ignored and obliterated, the other facts remain and these are good enough materials to come to the prima facie belief that detention was necessary".

(19) In that very case it was stated in paragraph 70 as follows:-    "SECTION 5A stipulates that when the detention order has been made on two or more grounds, such order of detention shall be deemed to have been made separately on each of such grounds and accordingly that if one irrelevant or one inadmissible ground had been taken into consideration that would not make the detention order bad."  

(20) Similarly in Madan Lal Anand vs. Union of India  the position was that the petitioner imported polyester filament yarn without payment of import duty of more than Rs. 3 crores. The confessional statement under Section 108 was placed before the detaining authority, but not the retraction. It was held that the other primary facts relating to the same import and the inferences drawn there from were "grounds" which were sufficient to sustain the detention. In such a case Section 5-A comes into play. Therefore, each of the incriminating facts and inference there from, even if all of them relate to a single transaction of smuggling, have to be treated as a separate ground for purposes of Section 3(3) and Section 5-A.   

(21) We shall now come to the contention that irrelevant material along with relevant material has been considered and that this amounts to non-application of mind.   

(22) Consideration of irrelevant material along with relevant material has two important facets, - the material may be irrelevant for the purpose of the particular statute, as where, while dealing with detention under the National Security Act, the authority has relied upon an offending act or an incriminating circumstance relevant only to "law and order" and based its subjective satisfaction on that fact. In that event, the subjective satisfaction is vitiated because the facts relied are not relevant for "public order". Similarly, if in regard to Cofeposa, the fact or inference relied upon related (say) to public order and not to an activity of "smuggling", it may again be a case where an irrelevant but offending fact not relevant for the purpose of the statute has been taken into account. If that was the sole ground, the detention must fail. Of course, if there are other offending or incriminating facts relevant to smuggling the detention can be sustained by resort to Section 5-A.

(23) There is,however, another aspect where apart from innumerable basic facts or inferences there from (called "grounds"), the authority refers to certain documents which are admittedly not offending or adverse to the detenu but have a purely innocuous, redundant or neutral content. These neutral documents might have also been communicated to the detenu along with the grounds of detention. Is the subjective satisfaction vitiated ? Supposing an application by detenu for return of Air Ticket for claiming refund or application for copy of Passport or seeking B class in Jail is also placed before the detaining authority and also communicated to the detenu, is the subjective satisfaction vitiated ? Does it amount to non-application of mind ?

(24) Wade, Administrative Law (7th Edition, 1994, pp. 409 to 411) deals with this very question. He says : "There are some situations in which the presence of irrelevant motives will not necessarily be fatal. The most obvious are where they do not in fact affect the action taken or where they operate in the complainant's favor (Hanks vs. Minister (1963 [1] Q.B. 199 ) or where they are merely redundant. Thus where the Broadcasting Complaints Commission declined to entertain a complaint by a party leader that his party was given little broadcasting time, giving a number of good reasons but including the irrelevant reason that the task would be burdensome, their decision was within their lawful discretion (R vs. Broadcasting Complaints Commission ex P. Owen) (1985 Q.B. 1153) (See also R vs. Secretary of State for Social Services ex. Welcome Foundation Ltd) (1987 (1) Wlr 1166). Irrelevant considerations may also be innocuous if the action taken is reasonable in itself (Roberts vs. Hopwood (1925 A.C. 578 at 604) ...The reasoning was invoked in a later case to justify the payment of children's allowances by way of additional salary (Re. Walker's decision) (1944 K.B. 644)".

(25) From the aforesaid principle, it is clear that if while arriving at the subjective satisfaction under Section 3(1) of Cofeposa, the sponsoring authority has placed before the detaining authority, apart from a host of facts prejudicial to the detenu and relevant to prevention of smuggling but also other facts which are admittedly innocuous, neutral or redundant and the detaining authority after passing the detention order communicates all these facts to the detenu, then the subjective satisfaction cannot be said to be vitiated. It passes our comprehension as to how, a fact which the petitioner admits as innocuous, neutral and totally non-prejudicial or non-offending can affect the mind of the authority adversely. In such a situation, all that is necessary for the Court is to see whether there are also other relevant facts in existence. If they exist, then their sufficiency cannot be gone into. Otherwise, it may be a case of no material at all.

(26) If certain historical or chronological events are referred to by the detaining authority in its order, the documents concerning them need not, as held in several cases, be communicated to the detenu even if placed before the detaining authority. Where the detaining authority has referred to certain facts in the narration casually or passingly, but has not relied on them, the non-supply of the said documents to the detenu does not affect the detention ( Abdul Sathar Ibrahim Manik vs. Union of India ; Abdul Sathar Abdul Kadar Shaik vs. Union of India ; L.M.S. Umma Saleem vs. B.B. Gujaral . Facts relating to preamble or introduction need not be supplied (Dhananjoy Das vs. District Magistrate . Only copies of documents on which order of detention is primarily based should be supplied and not any and every document. All that has to be shown is that any document having bearing on the subjective satisfaction of the detaining authority but not relied upon by him was before the detaining authority at the time he passed the order of detention. (Madan Lal Anand vs. Union of India) . The same principle must, in our view, apply if the facts or documents, placed before the detaining authority give no "scope", even according to the detenu, for being relied upon.

(27) The argument of the petitioner's counsel in fact contains an inherent contradiction. If the detenu himself contends that the document has nothing to do with the offence and that it is not adverse or incriminating, he cannot at the same time contend that the document has been "relied" upon by the detaining authority against him. Merely because the detention order uses the word "relied", it cannot be said that the documents which have no content were also "relied". This aspect we shall explain below further.

(28) Sometimes a document may be such that there is every chance of the detenu contending that it is a relevant document which ought to have been placed before the detaining authority and also communicated to him so that he could send an effective representation. In order to obviate such a contention, it is possible that the sponsoring authority may like to place those documents which fall on the boundary line or about which he is not sure before the detaining authority and the latter may also read them, refer to them and send copies thereof to the detenu. We cannot understand how in such a situation a question of non- application of mind by the detaining authority can be raised.

(29) The same reasoning must, in our opinion, be applied where the documents are of a totally neutral or innocuous content or relate to historical facts or other innocuous events which have taken place up to the date of detention. Referring to them in the detention order or sending copies thereof to the detenu cannot,in our opinion, be said to make the subjective satisfaction invalid. Nor can it be said to be a case of non-application of mind. The principle mes Administrative Law, as stated above, would clearly be attracted.

(30) In fact, there is a long line of cases decided by the Supreme Court holding that in certain situations, the fact that certain documents were not placed before the detaining authority or not communicated to the detenu was no violation of the law. It has been held that if the detenu's application for relaxation of bail conditions and orders thereon were not placed before the detaining authority, that did not vitiate the detention order (Haridas Amarchand Shah vs. K.L. Verma ; Mohd. Sultan vs. Jt. Secretary. If in such a case, these were also placed before the detaining authority and the latter looked into them or referred to them in the order or sent copies to the petitioner, it cannot,in our opinion, be said that the detention order is vitiated by non-application of mind. As long as there is other material to sustain the detention, the order can be sustained under Section 5-A of the COFEPOSA.

(31) In the light of the above discussion, we shall now refer to certain decisions of this Court relied on by the petitioner's counsel. In Ved Prakash Sikri vs. Union of India , a learned Single Judge of this Court held that if the detenu was supplied copies of his application for B Class, a Vakalatnama, a list of documents, a medical certificate and bills and other documents which have nothing to do with the offence and then the detention order will be vitiated. Reliance was placed on the Supreme Court decision in Smt. Shalini Soni vs. Union of India where it was said that there was an obligation to apply mind "to pertinent and proximate matters only, eschewing the irrelevant and the remote". That was a case of Cofeposa detention. The Supreme Court first held that the application sent by the detenu for copies of various documents also prayed for release and further that non- supply of copies of documents relating to the facts stated in the "grounds" was a clear violation of Constitutional safeguards under Article 22(5). Communication of "grounds", it was stated, implied formulation of grounds by "application of mind" to the "facts and materials before it, that is to say, pertinent and proximate matters in regard to each case and excludes the elements of arbitrariness and automatism". In that context it was said that the mind must be applied to pertinent and proximate matters only eschewing irrelevant and the remote. The Supreme Court, in our view, was referring to the "relevancy" which we have described as the first aspect of relevancy, in other words, relevant for purpose of detention. If adverse facts not relevant to "smuggling" are taken into account, the detention under Cofeposa will be bad. In our view, the Supreme Court, while using the word "irrelevant" never used it in the context of documents admittedly innocuous, neutral or non-incriminating material or historical facts or facts in a chain of events or link events etc. No such question arose in Shalini Soni's case. We,therefore, feel that the view expressed in Ved Prakash Sikri's case is not correct and we overrule the said Judgment.

(32) Further, it will be noticed that in Ved Prakash Sikri's case (and indeed other decisions following it, referred to below) the learned Judge did not notice that where there are other relevant facts and factual inferences (grounds) available in the same order, those facts would be sufficient to sustain the detention. Further, no reference was made to Section 5-A of the Cofeposa nor to ÿPrakash Chandra Mehta's case and Madan Lal Anand's case referred to earlier. We accordingly overrule Ved Prakash Sikri's case and the cases of this Court followed therein.

(33) For the same reason, the decision in Diwan Singh Verma vs. Union of India (1988(2) Delhi Lawyer 197) relied in Ved Prakash Sikri's case which concerned certain documents which had no evidentiary value regarding the offence is overruled. Sadhu Roy's case (AIR 1975 Sc 919) relied upon there does not ( as pointed out below, deal with this point. Again in Jagdish Mitra vs. Union of India (1990 Crl.L.J.269), the detaining authority had referred to a statement by a person made before the passing of the order and on that ground the detention order was quashed by relying on Shalini Soni's case (supra) and Diwan Singh Verma's case (supra). In Ram Avtar vs. Union of India (1991(1) Ch.C. Cases 289, it was held that certain recovery of currency was not prejudicial and reference thereto was bad. Reliance was placed on Shalini Soni's case and Diwan Singh Verma's case. In Gurdas Seal vs. Union of India (1994)(II) Apex Decisions 21 ), the reference to "loose documents" at certain pages, summons to and statement of one Probir Kumar Seal, copies of petition by certain other person and Panchnama were not material or relevant and hence the detention order was vitiated. Apart from Shalini Soni's case, the learned Judge referred to other rulings. Ramesh vs. State of Gujarat , referred to therein, related to detention under the Gujarat Prevention of Anti Social Activities Act,1985 and there the Court took into account certain facts in an earlier detention order which was quashed and to a criminal case which ended in acquittal. It was a case of non-application of mind to the quashing of the earlier detention order and to the acquittal in the criminal case. That case did not deal with the question now before us. The other case relied on was C.B. Kahar vs. N.L. Kalra again under the same Gujarat Act where too facts in an earlier detention order which was quashed were relied upon. That case too does not deal with the question before us. Rajendra Prasad vs. State of U.P. (AIR 1975 S.C. 919) related to a case under the Maintenance of Internal Security Act, 1971 and the very decision, while stating that satisfaction must be real and rational and not random divination, clearly says that sufficiency of material is not for the Court. The Court was dealing with offences against public property and scaring of witnesses and held that it was a fit case for regular criminal action. They did not feel there was evidence of disturbance to "public order". Thus, none of the cases relied deals with the question involved. We,therefore, overrule Gurudas Seal's case.

(34) In Jagpreet Singh vs. Union of India (1993 (III) Apex Decisions (Del) 965) it was noticed that an application for return of goods in possession of Dri Officers and another referring to certain newspaper reports, a reply by the Dri, an application for grant of B Class facilities and affidavit connected therewith and an application for transfer to another Jail were not relevant. Reliance was placed on Ved Prakash Sikri's and other cases and also on Prabhat Kumar Srivastava vs. Union of India (Crl.W. 163/93) For the reasons already given, we are unable to agree with the view expressed in the case. Similarly in Vishwanath alias Pappu vs. Union of India (1993 Ch.C.C. 46), the Court relied upon the above decisions of this Court and other similar cases of the Court and held that application for allowing counsel to meet the detenu in jail, for filing cases outside Court premises, for legal interview, for grant of B facilities etc. were irrelevant. In Shri Bishan Dayal Vaish vs. Union of India (1993 J.C.C. 20), the documents were application to allow counsel to meet the petitioner, order of Court, application for holding Court outside, application for interview etc. and for B class jail. In Trilochan Singh vs. Union of India (1992 J.C.C. 535), the documents were application for B class, a divorce deed, progress report etc. In all these cases, the learned Single Judges followed the earlier cases. It was not noticed that even according to the petitioners the document had no prejudicial content and,therefore, not capable of influencing the mind of the detaining authority against the petitioner nor was Section 5-A applied when large number of other relevant documents were there on record before the detaining authority. We,therefore, overrule all these decisions.

(35) We may here state that it is true that every detention order contains a general statement, towards the end, that the detaining authority has "relied" on the documents annexed thereto. If the documents referred to contain historical aspects or casual events or innocuous or non-prejudicial facts, we fail to see how, - when there are mass of other relevant facts before the authority - the detention could be held vitiated. The word "relied" in the detention order must be reasonably construed, in the context of Section 5-A and the relevant documents. It has to be understood in a distributive sense and as referable to the other relevant documents and as not referring to the innocuous, non-prejudicial, historical or casual events.

(36) The Supreme Court has stated that the "compulsions of the very preservation of the values of freedom or democratic society and of social order might compel a curtailment of individual liberty". "To lose our country by a scrupulous adherence to the written law" said Thomas Jefferson "would be to lose the law itself, with life, liberty and all those who are enjoying with us; thus absurdly sacrificing the end for the means". (Ayya vs. State of U.P.) (Prakash Chandra Mehta's case) (supra). Freedoms must be looked at from a pragmatic and common sense point of view. (Prakash Chandra Mehta's case) (supra). Recently, the Supreme Court stated, whatever may be one's own notions of individual liberty, one must accept the provisions relating to preventive detention in the Constitution (Addl. Secretary vs. Alka Subhash Gadia (Smt.) (1992 Suppl. (1) S.C.C 496).

(37) In the present case, petitioner's counsel submits that documents at pp. 46 to 59 of the paper book are irrelevant, whatever may be relevance of other documents. It may be noted that the detention order has 24 Annexures and the above documents are Annexures 18 to 24. There is no dispute about relevance of Annexures 1 to 17 annexed to the order. Surely the facts or inferences drawn from those 17 documents are "grounds" sufficient to support the detention order under Section 5-A. Now coming to the documents 18 to 24, they are (i) affidavit of petitioner's wife dated 11.1.1993 and refers to addresses of the petitioner and sale of the house and his arrest. This document throws light on the evasive attitude and wrong addresses given, ration card of surety containing the latter's address - concerns the bail granted. It cannot be said to be irrelevant. Then we have the application for withdrawal of bail conditions, which refers to his address; and we have the order thereon relaxing conditions; the application for return of Air ticket and photo copy of passport. In our view, these documents show certain chronological or historical events which took place before the date of detention and have no prejudicial content even according to the petitioner. We are unable, therefore, to say how the petitioner can contend that the order is founded on these documents. The statement in the order that the authority has "relied" upon the annexed documents must be understood in a commonsense manner as referable to Annexures 1 to 17 which are admittedly relevant. Even otherwise Section 5-A is to be applied so far as Annexures 1 to 17 are concerned. We,therefore, hold against the petitioner on Point 3. Point 4 : This point was given up upon production by the Central Government of the proceedings relating to delegation. Point 5 : This point concerns the alleged delay on the part of the State Government in disposing of the representation dated 8.8.1994 addressed to the Central Government with a request to forward it to the State Government. It was forwarded on 10.8.1994 and the State Government rejected it on 7.9.1994. In the counter affidavit of the State dated 7.2.1995 it is stated that the representation was received on 12.8.1994 by the State Government, 13th and 14th were Saturday, Sunday; 15th was Independent Day (holiday), the representation was considered on 18.8.1994, that the request being one to convene another meeting of the Advisory Board, a letter was addressed on 19.8.1994 to the Board about the request, 20th, 21st were Saturday, Sunday and the Deputy Registrar, High Court wrote on 24.8.1994 that the Board has submitted its Report to Government as time therefore had expired, that 27th, 28th were Saturday & Sunday, and on 2.9.1994 the Government received the letter of the High Court and, 3rd & 4th September were holidays; and representation was rejected on 7.9.1994. In view of this explanation, we cannot say that there was any unreasonable delay or supine indifference or callousness on the part of the State Government. Point 6 : The point is that the earlier representation dated 21.4.1994 given to the Advisory Board and which came to the State Government was not independently considered and that the State was influenced by the advice of the Board. A plea of delay is also raised. In the counter of the State dated 13.9.1994, it is stated (in Para L) that the representation was considered independently by the detaining authority and rejected on 3.5.1994. Petitioner says in his rejoinder that the confirmation order under Section 8(f) and the rejection of the representation are both dated 13.5.1994 and this indicates that there was no independent consideration of the representation or that the Board's opinion influenced the rejection. We are unable to agree. The counter shows that the Board's opinion was received on 4.5.1994 with the documents. The 6th,7th May were holidays and the representation was examined on 10.5.1994, rejected on 12.5.1994 and petitioner was informed on 13.5.1994. We are of the view that there is independent consideration of the representation uninfluenced by the opinion of the Board and also that there is no delay in the disposal of the same. Point 7 : This point concerns the representation dated 8.8.1994 which was rejected (by the Central Government on 22.8.1994) by the State Government on 7.9.1994. The contention is that this is a representation under Section 11, that the rejection is on a wrong ground, that an earlier representation was rejected and hence a writ of habeas corpus is to be issued.

(38) The basic fallacy in this contention is the assumption that this is a representation under Section 11 of the COFEPOSA. It is not denied that the detention order,though signed by the Deputy Secretary of the State Government, is expressly stated to be "by and in the name" of the Lt. Governor. That means that it is an order of the Lt. Governor and not of his delegate. If the order of detention is passed by the State Government, the application under Section 11 lies only to the Central Government. This is called a supervisory jurisdiction. There is no application to the State Government provided in Section 11 against its own order. Therefore, the application is to be treated as one falling under Section 21 of the General Clauses Act and not under Section 11 of COFEPOSA.

(39) The decision of the learned Single Judge in Mohd. Akram alias Sayeed vs. Union of India (Crl.W.P. 745/94 dated 30.1.1995) is distinguishable. There a second representation was made to the Central Government and that contained fresh facts which were not there in the first representation and when that was rejected on the ground that the earlier representation was rejected, the learned Judge held that it was no consideration. Here we are concerned with an application which comes under Section 21. We are,however, not to be understood as having expressed any opinion in regard to the correctness of the above Judgment.

(40) So far as application falling under Section 21 of the General Clauses Act is concerned, the position is that the authority which passes the order can revoke its order in exercise of powers under Section 21 of the General Clauses Act. If such an application is kept pending, only mandamus can be issued. If an order is passed and is bad, certiorari alone can be issued. But no question of release by issuing a writ of habeas corpus arises because it is not a case of delay in considering a representation under Section 11. On merits, we do not think that there is any error in the rejection of this third representation on the ground of rejection of an earlier representation and also on the ground that the Advisory Board was referred and they were of the opinion that no further action was called for. Here, it is to be noted that it is not a case of the detaining authority relying upon the opinion of the Board at the time of confirmation of detention under Section 8(f). Here we are at a later stage where a third representation is rejected for the reasons referred to above. We do not think that there is any manifest error in the order dated 7.9.1994.

(41) For all the above reasons, the writ petition is dismissed.