TaxTMI 
TaxTMI 
1990 (1) TMI 72
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....e Secretary, Government of Kerala. It stated that the Government of Kerala was satisfied with respect to the appellant that with a view to preventing him from smuggling gold it was necessary to detain him and, therefore, in exercise of powers conferred by Section 3(l)(i) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974), hereinafter referred to as 'the COFEPOSA Act', the Government of Kerala directed that he be detained and kept in custody in the Central Prison, Trivandrum. The grounds of detention, which were also served, inter alia, gave the details as to how the smuggled gold was detected in his possession having been smuggled into India in violation of the provisions of the Customs Act, 1962, Foreign Exchange Regulation Act, 1973 and Import and Export Control Act, 1947; what were his statements at the time of seizure of his blue suitcase, his new and old passports and the air ticket used for the journey from Dubai to Trivandrum and the return open air ticket from Bombay to Abu Dhabi; and the gist of his statements given on 30/31-1-1988 under Section 108 of the Customs Act, 1962 before the Intelligence Superintenden....
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.... counsel for the State of Kerala submits, inter alia, that there was no such delay between the date of detection and the date of passing the impugned order of detention as to make the grounds stale or to snap the relation; that the delay in execution of the detention order has been explained; that the bail application as well as the bail order were placed before the detaining authority but the same having not been referred to or relied on by the detaining authority the copy thereof was not required to be furnished to the detenu along with the grounds of detention; that all the papers which were placed before the detaining authority for passing the order of detention were also placed before the declaring authority and it was not necessary to place the show cause notice and the detenu's reply thereto; and that the detention order suffered from no infirmity whatsoever and this appeal is liable to be dismissed. Mr. V.C. Mahajan, the learned counsel for the Union of India emphatically submits that all the documents and materials that were required to be placed before the declaring authority were duly placed and on consideration of the relevant materials the declaring authority validly m....
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....t of full and detailed consideration of facts and circumstances of the case after thorough examination at various levels, this Court observed that it could not be said that the detention was in any way illegal inasmuch as the detaining authority had fully and satisfactorily applied his mind to the question of detention. 7. As was held in Smt. Rekhaben Virendra Kapadia v. State of Gujarat (1979) 2 SCC 566, whether the time lag between the commission of the offence and the detention was enough to snap the reasonable nexus between the prejudicial activity and the purpose of detention would depend upon the facts of each case. The test of proximity is not a rigid or mechanical calender test to be blindly applied by merely counting the number of months and days between the offending act and the order of detention. The question is whether the past activities of the detenu were such that the detaining authority could reasonably come to the conclusion that the detenu was likely to continue in his unlawful activities. 8. In Sheikh Salim v. The State of West Bengal (1975) 1 SCC 653, there was a gap of about 4 months in between. The explanation of the interval was that the petitioner was bei....
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....e grounds were stale or illusory or that there was no rational connection between the grounds and the order of detention. This Court reiterated what was stated in Olia Mallick v. The State of West Bengal (1974) 1 SCC 594 Golam Hussain v. The Commissioner of Police 1974 (3) SCR 613, Odut Ali Miah v. The State of West Bengal (1974) 4 SCC 129 and Vijay Narain Singh v. State of Bihar (1984) 3 SCC 14. The Court also referred to Cora v. State of West Bengal 1975 (2) SCR 996, Raj Kumar Singh v. State of Bihar (1986) 4 SCC 407 and Smt. Hemlata Kantilal Shah v. State of Maharashtra (1981) 4 SCC 647. 10. Applying the law enunciated and settled by the foregoing decisions we are of the view that in this case, considering the given explanation of the period in between the interception on 30-1-1988 and the order of detention on 25-6-1988 the nexus was not snapped and the ground was not rendered stale and the order of detention was not rendered invalid thereby. The submission is accordingly rejected. 11. As regards the submission as to delay in execution it was urged that there was inordinate and unexplained delay in execution of the detention order passed on 25-6-1988 as the detenu was taken i....
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....nu himself by absconding, the satisfaction of the detaining authority cannot be doubted and the detention cannot be held to be had on that ground. In Bhawarlal Ganeshmalji v. State of Tamil Nadu and Anr. (1979) 1 SCC 465, where the appellant had been evading arrest and surrendering after three years of the making of order of detention under the COFEPOSA Act the order was held to be still effective as the detenu himself was to be blamed for the delay. This Court observed that there must be a 'live and proximate link' between the grounds of detention alleged by the detaining authority and the avowed purpose of detention, namely, the prevention of smuggling activities. In appropriate cases it could be assumed that the link was snapped if there was a long and unexplained delay between the date of order of detention and the arrest of the detenu and in such a case the order of detention could be struck down unless the grounds indicated a fresh application of mind of the detaining authority to the new situation and the changed circumstances. But where the delay is not only adequately explained but also is found to be the result of the recalcitrant or refractory conduct of the detenue in e....
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....several raids of the petitioner's premises for the service of the order dated 15-4-1988 were conducted and the authorities had made all efforts to serve the order on the detenu, but he was all along absconding and the house of the petitioner for this purpose was raided on several occasions. However, in view of the fact that in that case from April 15, 1988 to May 12,1988 no attempt had been made to contact or arrest the petitioner and there was no explanation as to why from September 27,1988 to October 2,1988 no attempt had been made, there was unexplained delay and it was, therefore, not possible for the Court to be satisfied that the District Magistrate had applied his mind and arrived at the subjective satisfaction that there was genuine need for detention of the detenu. The detention order was accordingly quashed. 15. We have already noted how in the instant case the Home Secretary sent detailed instructions to the Superintendent of Police, Malapuram on 27-6-1988 and sent the teleprinter message on 19-7-1988 and the Superintendent pf Police wrote back on 27-7-1988 stating that the detenu was absconding and his whereabouts were not known and all possible efforts were being made....
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....nd refrained from passing the order of detention. We see no force in this contention. This was no doubt one of the factors that the detaining authority should have taken (and did in fact take) into account but it was for him to assess the weight to be attached to such a circumstance in arriving at his final decision and it is not open to us to interfere with the merits of his decision. We, therefore, reject this contention of Mr. Vaidyanathan. 18. The next submission is that of non-supply of the bail application and the bail order. This Court, as was observed in Mangalbhai Motiram Patel v. State of Maharashtra 1981 (1) SCR 852, has 'forged' certain procedural safeguards for citizens under preventive detention. The Constitutional imperatives in Article 22(5) are two-fold : (a) The detaining authority must, as soon as may be, i.e. as soon as practicable, after the detention communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making the representation against the order of detention. The right is to make an effective representation and when some documents are referred to....
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....at he was arrested by the Superintendent (Intelligence) Air Customs, Trivandrum on 31-1-1988 and he was produced before the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam the same day. It was clearly said : "You were remanded to judicial custody and you were subsequently released on bail." From the Records it appears that the bail application and the bail order were furnished to the detaining authority on his enquiry. It cannot, therefore, be said that the detaining authority did not consider or rely on them. It is difficult, therefore, to accept the submission of Mr. Kunhikannan that those were not relied on by the detaining authority. The bail application contained the grounds for bail including that he had been falsely implicated as an accused in the case at the instance of persons who were inimically disposed towards him, and the bail order contained the conditions subject to which the bail was granted including that the accused, if released on bail, would report to the Superintendent (Intelligence) Air Customs, Trivandrum on every Wednesday until further order, and that "he will not change his residence without prior permission of Court to 25-2-1988". This....
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....tember 17,1984, and there is positive apprehension that after having bail you will come out of the jail and I am convinced that after being released on bail you will-indulge in activities prejudicial to the maintenance of public order." It was observed that the detention order was passed as the detaining authority was apprehensive that in case the detenu was released on bail, he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under-trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed. The detention order was accordingly quashed. 23. In State of U.P. v. Kamal Kishore Saini (1988) 1 SCC 287, the application of a co-accused as well as statements made in the bail application filed on behalf of the detenu alleging that the detenu was falsely implicated and the Police report thereon were not produced before the detaining authority before passing the detention or....
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....tion and make it void ab initio. 25. Mr. Kunhikannan relies on Haridas Amarchand Shah v. K.L. Verma 1989 (39) E.L.T. 329 (S.C.) = (1989) 1 SCC 250, wherein the application for bail and the order dated September 15,1987 passed by the Metropolitan Magistrate granting conditional bail were placed before the detaining authority, but the application dated September 21, 1987 for variation of the conditions and the order made by the Metropolitan Magistrate thereon were not placed before the detaining authority, this Court held that the application for variation of conditions of bail and the order passed by the metropolitan Magistrate varying the conditions of bail were, in its opinion, not vital and material documents inasmuch as the granting of bail by the Magistrate enabled the detenu to come out and carry on his business as before and variation of the conditions were not considered vital for the satisfaction as to need for detention. That case is, therefore, distinguishable on facts. 26. Considering the facts in the instant case, the bail application and the bail order were vital materials for consideration. If those were not considered the satisfaction of the detaining authority its....
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....Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974." This order ex facie says that the declaring authority had carefully considered the grounds of detention and the materials served on the detenu and on those materials the authority was satisfied that the detenu was likely to smuggle goods into and through Trivandrum airport which was an area highly vulnerable to smuggling as defined in Explanation 1 to Section 9(1) of the COFEPOSA Act. The question is whether there were adequate materials for the authority being satisfied that the detenu was likely to smuggle goods. The detenu having already been under detention and his detention confirmed by the Government under Section 8, the Advisory Board having reported that there was sufficient cause for continued detention of the detenu, were there still enough materials to be satisfied that the detenu was likely to smuggle goods into Trivandrum vulnerable area? To decide this question, Mr. Vaidyanathan urged, it is necessary to remember that the passports of the detenu had been seized by the authorities. According to counsel, if the detaining authority had applied his mind to this important fact, he could no....