Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO._872 OF 2014
(@SPECIAL LEAVE PETITION (CRL.) No.988 of 2014)
LICIL ANTONY ..... APPELLANT
VERSUS
STATE OF KERALA & ANR. .... RESPONDENTS
J U D G M E N T
Chandramauli Kr. Prasad
Petitioner Licil Antony happens to be the
wife of detenu Antony Morris and aggrieved by
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th
the order dated 6 of November, 2013 passed by
a Division Bench of the Kerala High Court in
Writ Petition (Criminal) No. 412 of 2013
declining to quash the order of detention
passed under Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act,
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1974, hereinafter referred to as “COFEPOSA”,
has preferred this special leave petition.
Leave granted.
Shorn of unnecessary details, facts
giving rise to the present appeal are that on
the allegation that the appellant’s husband
Antony Morris, hereinafter referred to as the
detenu, intended to export red sanders through
International Container Trans-shipment
th
Terminal, was arrested on 17 of November,
2012 by the Directorate of Revenue
Intelligence and a case was registered against
him. He was released on bail by the
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Additional Chief Judicial Magistrate (Economic
Offences), Ernakulam. The Directorate of
Revenue Intelligence, hereinafter referred to
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as ‘DRI’, by its letter dated 17 of December,
2012 made recommendation for the detenu’s
detention besides two others under Section 3
of the COFEPOSA alleging that they are part of
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a well-organised gang operating in smuggling
of red sanders in India and abroad. The
proposals of the DRI, hereinafter referred to
as the sponsoring authority, were received in
st
the office of the detaining authority on 21
of December, 2012. The detaining authority
after scrutiny and evaluation of the proposals
th
and the documents, decided on 25 of January,
2013 to place the proposals before the
screening committee and forwarded the same to
st
it on 1 of February, 2013. The proposals of
the detenu’s detention along with two others
were considered by the screening committee
which concurred with the recommendation of the
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sponsoring authority. The detaining authority
considered the facts and circumstances of the
case as also the reports of the sponsoring
authority and the screening committee and
other materials running over 1000 pages and
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took decision on 15 of April, 2013 to detain
the detenu and two others. Draft grounds for
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detention in English were approved on 19 of
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April, 2013 and as one of the detenue was a
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Tamilian, time till 3 of May, 2013 was taken
for translation of the documents relied on in
Malyalam and Tamil and for preparation of
sufficient number of copies. Ultimately, with
a view to prevent the detenu from engaging in
the smuggling of goods, the detaining
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authority passed order of detention dated 6
of May, 2013. It was served on the detenu on
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11 of June, 2013. The grounds of detention
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dated 8 of May, 2013 were made available to
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the detenu on 13 of June, 2013. The detenu
was produced before the Advisory Board, which
found sufficient grounds for his continued
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detention and, accordingly, the detaining
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authority issued order dated 24 of August,
2013, and confirmed the order of detention for
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a period of one year with effect from 11 of
June, 2013, the date of detention.
It is relevant here to state that detenu
was earlier arrested in connection with Kallur
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Police Station FIR No.57 of 2012 under Section
29 and 32 of A.P. Forest Act, 1937; Section 29
of the Wildlife Protection Act, 1972; Section
55(2) of the Biological Diversity Act, 2002;
Rule 3 of the A.P. Sandalwood and Red Sanders
Wood Transit Rules, 1969 and Section 379 of
the Indian Penal Code. Judicial Magistrate
th
(First Class), Pakala by order dated 30 of
November, 2012 released him on bail and while
doing so directed him to appear before the
concerned police station on specified days.
The appellant challenged her husband’s
detention before the High Court in a writ
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petition. By the impugned order the same has
been dismissed.
Mr. Raghenth Basant, learned counsel for
the appellant submits that there is inordinate
delay in passing the order of detention and
that itself vitiates the same. He points out
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that the last prejudicial activity which
prompted the detaining authority to pass the
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order of detention had taken place on 17 of
November, 2012; whereas the order of detention
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has been passed on 6 of May, 2013. He
submits that delay in passing the order has
not been explained.
Mr. M.T. George, learned counsel
appearing on behalf of the respondents does
not join issue and admits that the sponsoring
authority wrote about the necessity of
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preventive detention in its letter dated 17
of December, 2012 for the prejudicial activity
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of the detenu which had taken place on 17 of
November, 2012 and the order of detention was
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passed on 6 of May, 2013 but this delay has
sufficiently been explained. He submits that
mere delay itself is not sufficient to hold
that the order of detention is illegal.
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We have given our thoughtful
consideration to the rival submissions and we
have no doubt in our mind that there has to be
live link between the prejudicial activity and
the order of detention. COFEPOSA intends to
deal with persons engaged in smuggling
activities who pose a serious threat to the
economy and thereby security of the nation.
Such persons by virtue of their large
resources and influence cause delay in making
of an order of detention. While dealing with
the question of delay in making an order of
detention, the court is required to be
circumspect and has to take a pragmatic view.
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No hard and fast formula is possible to be
laid or has been laid in this regard.
However, one thing is clear that in case of
delay, that has to be satisfactorily
explained. After all, the purpose of
preventive detention is to take immediate
steps for preventing the detenu from indulging
in prejudicial activity. If there is undue
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and long delay between the prejudicial
activity and making of the order of detention
and the delay has not been explained, the
order of detention becomes vulnerable. Delay
in issuing the order of detention, if not
satisfactorily explained, itself is a ground
to quash the order of detention. No rule with
precision has been formulated in this regard.
The test of proximity is not a rigid or a
mechanical test. In case of undue and long
delay the court has to investigate whether the
link has been broken in the circumstances of
each case.
There are a large number of authorities
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which take this view and, therefore, it is
unnecessary to refer to all of them. In the
case of Adishwar Jain v. Union of India
(2006) 11 SCC 339 , this Court observed as
follows:
“8. Indisputably, delay to some
extent stands explained. But, we
fail to understand as to why despite
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the fact that the proposal for
detention was made on 2-12-2004, the
order of detention was passed after
four months. We must also notice
that in the meantime on 20-12-2004,
the authorities of the DRI had
clearly stated that transactions
after 11-10-2003 were not under the
scrutiny stating:
“… In our letter mentioned
above, your office was
requested not to issue the DEPB
scripts to M/s Girnar Impex
Limited and M/s Siri Amar
Exports, only in respect of the
pending application, if any,
filed by these parties up to
the date of action i.e. 11-10-
2003 as the past exports were
under scrutiny being doubtful
as per the intelligence
received in this office. This
office never intended to stop
the export incentives occurring
to the parties, after the date
of action i.e. 11-10-2003. In
the civil ( sic ) your office
Letter No. B.L.-2/Misc. Am-
2003/Ldh dated 17-5-2004 is
being referred to, which is not
received in this office. You
are, therefore, requested to
supply photocopy of the said
letter to the bearer of this
letter as this letter is
required for filing reply to
the Hon’ble Court.”
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9. Furthermore, as noticed
hereinbefore, the authorities of the
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DRI by a letter dated 28-2-2005
requested the bank to defreeze the
bank accounts of the appellant.
10. The said documents, in our
opinion, were material.
11. It was, therefore, difficult
to appreciate why order of detention
could not be passed on the basis of
the materials gathered by them.
12. It is no doubt true that if
the delay is sufficiently explained,
the same would not be a ground for
quashing an order of detention under
COFEPOSA, but as in this case a
major part of delay remains
unexplained.”
Further, this Court had the occasion to
consider this question in the case of Rajinder
Arora v. Union of India, (2006) 4 SCC 796 in
which it has been held as follows:
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“20. Furthermore no explanation
whatsoever has been offered by the
respondent as to why the order of
detention has been issued after such
a long time. The said question has
also not been examined by the
Authorities before issuing the order
of detention.
21. The question as regards delay
in issuing the order of detention
has been held to be a valid ground
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for quashing an order of detention
by this Court in T.A. Abdul Rahman
v. State of Kerala (1989) 4 SCC 741
stating: (SCC pp. 748-49, paras 10-
11)
“ 10 . The conspectus of the
above decisions can be
summarised thus: The question
whether the prejudicial
activities of a person
necessitating to pass an order
of detention is proximate to
the time when the order is
made or the live-link between
the prejudicial activities and
the purpose of detention is
snapped depends on the facts
and circumstances of each
case. No hard-and-fast rule
can be precisely formulated
that would be applicable under
all circumstances and no
exhaustive guidelines can be
laid down in that behalf. It
follows that the test of
proximity is not a rigid or
mechanical test by merely
counting number of months
between the offending acts and
the order of detention.
However, when there is undue
and long delay between the
prejudicial activities and the
passing of detention order,
the court has to scrutinise
whether the detaining
authority has satisfactorily
examined such a delay and
afforded a tenable and
reasonable explanation as to
why such a delay has
occasioned, when called upon
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to answer and further the
court has to investigate
whether the causal connection
has been broken in the
circumstances of each case.
11 . Similarly when there is
unsatisfactory and unexplained
delay between the date of
order of detention and the
date of securing the arrest of
the detenu, such a delay would
throw considerable doubt on
the genuineness of the
subjective satisfaction of the
detaining authority leading to
a legitimate inference that
the detaining authority was
not really and genuinely
satisfied as regards the
necessity for detaining the
detenu with a view to
preventing him from acting in
a prejudicial manner.”
22. The delay caused in this case
in issuing the order of detention
has not been explained. In fact, no
reason in that behalf whatsoever has
been assigned at all.”
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Bearing in mind the principles aforesaid,
we proceed to examine the facts of the present
case. Prejudicial activity which prompted the
sponsoring authority to recommend for detention
of the detenu under COFEPOSA had taken place on
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17 of November, 2012. The allegation related
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to export of red sanders through International
Container Trans-shipment Terminal. The
sponsoring authority took some time to
determine whether the prejudicial activity of
the detenu justifies detention. During the
inquiry it transpired that the detenu and two
others were part of a well-organised gang
operating in smuggling of red sanders in India
th
and abroad. It is only thereafter that on 17
of December, 2012, the sponsoring authority
made recommendation for the detention of the
detenu and two others under Section 3 of the
COFEPOSA. As the allegation had international
ramification, the time taken by the sponsoring
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authority in making recommendation cannot be
said to be inordinate. The proposals of the
sponsoring authority were received in the
st
office of the detaining authority on 21 of
December, 2012. As detention affects the
liberty of a citizen, it has to be scrutinised
and evaluated with great care, caution and
circumspection. The detaining authority upon
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th
such scrutiny and evaluation decided on 25 of
January, 2013 to place the proposals before the
screening committee and forwarded the same to
st
it on 1 of February, 2013. If one expects
care and caution in scrutiny and evaluation of
the proposals, the time taken by the detaining
authority to place the proposals before the
screening committee cannot be said to have been
taken after inordinate delay. The meeting of
st
the screening committee took place on 1 of
February, 2013 in which the cases of the detenu
and the two others were considered. The
screening committee concurred with the
recommendation of the sponsoring authority. As
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stated by the respondents in the counter
affidavit, the record of the sponsoring
authority, the screening committee and other
materials consisted of over 1000 pages. As the
final call was to be taken by the detaining
authority, it was expected to scrutinise,
evaluate and analyse all the materials in
detail. After the said process, the detaining
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authority decided on 15 of April, 2013 to
detain the detenu and two others. The time
taken for coming to the decision has
sufficiently been explained. After the
decision to detain the detenu and two others
was taken, draft grounds were prepared and
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approved on 19 of April, 2013. As one of the
detenue was a Tamilian, the grounds of
detention were translated in Malyalam and Tamil
which took some time and ultimately sufficient
number of copies and the documents relied on
rd
were prepared by 3 of May, 2013. Thereafter,
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the order of detention was passed on 6 of May,
2013.
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From what we have stated above, it cannot
be said that there is undue delay in passing
the order of detention and the live nexus
between the prejudicial activity has snapped.
As observed earlier, the question whether the
prejudicial activity of a person necessitating
to pass an order of detention is proximate to
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the time when the order is made or the live
link between the prejudicial activity and the
purpose of detention is snapped depends on the
facts and circumstances of each case. Even in
a case of undue or long delay between the
prejudicial activity and the passing of
detention order, if the same is satisfactorily
explained and a tenable and reasonable
explanation is offered, the order of detention
is not vitiated. We must bear in mind that
distinction exists between the delay in making
of an order of detention under a law relating
to preventive detention like COFEPOSA and the
delay in complying with procedural safeguards
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enshrined under Article 22(5) of the
Constitution. In view of the factual scenario
as aforesaid, we are of the opinion that the
order of detention is not fit to be quashed on
the ground of delay in passing the same. The
conclusion which we have reached is in tune
with what has been observed by this Court in
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the case of M. Ahamedkutty v. Union of India,
(1990) 2 SCC 1. It reads as follows:
“10. ....... Mere delay in making of
an order of detention under a law
like the COFEPOSA Act enacted for the
purpose of dealing effectively with
persons engaged in smuggling and
foreign exchange racketeering who,
owing to their large resources and
influence, have been posing a serious
threat to the economy and thereby to
the security of the nation, the
courts should not merely on account
of the delay in making of an order of
detention assume that such delay, if
not satisfactorily explained, must
necessarily give rise to an inference
that there was no sufficient material
for the subjective satisfaction of
the detaining authority or that such
subjective satisfaction was not
genuinely reached. Taking of such a
view would not be warranted unless
the court finds that the grounds are
stale or illusory or that there was
no real nexus between the grounds and
the impugned order of detention. In
that case, there was no explanation
for the delay between February 2, and
May 28, 1987, yet it could not give
rise to legitimate inference that the
subjective satisfaction arrived at by
the District Magistrate was not
genuine or that the grounds were
stale or illusory or that there was
no rational connection between the
grounds and the order of detention.”
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Mr. Basant, then assails the order of
detention on the ground of its delayed
execution. He points out that the order of
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detention was passed on 6 of May, 2013
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whereas it was served on the detenu on 11 of
June, 2013. He submits that had the detenu
been absconding, the appropriate Government
ought to have taken recourse to Section 7 of
the COFEPOSA. Section 7 of the COFEPOSA
confers power on the detaining authority to
make a report to a competent Magistrate in
relation to an absconding person so as to
apply the provisions of Section 82, 83, 84 and
85 of the Code of Criminal Procedure. It also
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provides for publication of an order in the
Official Gazette, directing the detenu to
appear. It is an admitted position that no
such report or publication was made.
Accordingly, Mr. Basant submits that the order
of detention is vitiated on the ground of
delay in its execution also. In support of
the submission he has placed reliance on a
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large number of authorities. We are entirely
in agreement with Mr. Basant that undue and
unexplained delay in execution of the order of
detention vitiates it, but in the facts of the
present case, it cannot be said that such
delay has occurred. As stated earlier, the
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order of detention dated 6 of May, 2013 was
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served on the detenu on 11 of June, 2013. It
is expected of the detaining authority to take
recourse to ordinary process at the first
instance for service of the order of detention
on a detenu and it is only after the order of
detention is not served through the said
process that recourse to the modes provided
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under Section 7 of the COFEPOSA are to be
resorted. Here, in the present case, that
occasion did not arise as the order of
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detention was served on the detenu on 11 of
June, 2013. Therefore, in our opinion, the
order of detention cannot be said to have been
vitiated on this ground also.
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Lastly, Mr. Basant submits that the detenu
was arrested in a case at Andhra Pradesh and
while granting bail, the trial court at Andhra
Pradesh put following conditions:
“7) The petitioner/accused No.4 shall
appear and sign before the concerned
Station House Officer in between
10.30 AM to 2.00 PM on the first week
Wednesday of every succeeding month
for a period till the date of filing
of charge sheet or until further
orders and co-operate with the
Investigating Officer.
8) The petitioner/accused No.4 shall
not tamper with the evidence of
prosecution witnesses in any way.”
Mr. Basant submits that the order granting
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bail to the detenu and the conditions put have
not been considered by the detaining
authority, while passing the order of
detention. He submits that an order of
preventive detention deprives a citizen of his
precious fundamental right of liberty and as
such, the detaining authority erred in passing
the order of detention without considering the
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same. Mr. George, however, submits that as
the said order was passed by the trial court
at Andhra Pradesh, it was not within the
knowledge of the detaining authority. In any
view of the matter, according to him, the same
has no relevance in decision making process
and, therefore, the omission to consider that
will not render the order of detention
unconstitutional. On thoughtful consideration
of the rival submissions, the plea put forth
by Mr. George commends us. We cannot expect
the detaining authority to know each and every
detail concerning the detenu in different
parts of the country. Not only this, the
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conditions imposed while granting bail to the
detenu which we have reproduced above in no
way restrains him from continuing with his
prejudicial activity or the consequences, if
he continues to indulge. We are in agreement
with the High Court that the bail order passed
by the trial court in Andhra Pradesh is not a
crucial and vital document and the omission by
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the detaining authority to consider the same
has, in no way affected its subjective
satisfaction.
From the conspectus of what we have
observed, we do not find any error in the
order of detention and the order passed by the
High Court, refusing to quash the same. In
the result, we do not find any merit in the
appeal and the same is dismissed accordingly.
………………………………………………………………J.
(CHANDRAMAULI KR. PRASAD)
………………………………………………………………J.
(PINAKI CHANDRA GHOSE)
JUDGMENT
NEW DELHI,
APRIL 15, 2014.
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