TaxTMI 
TaxTMI 
1995 (2) TMI 438
X X X X Extracts X X X X
X X X X Extracts X X X X
.... ₹ 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 impose....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in 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 econom....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....xemption. 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....m 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....te 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ffect 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rtain 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 mat....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 ca....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ation 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 t....