Full Judgment Text
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PETITIONER:
RAJENDRAKUMAR NATVARLAL SHAH
Vs.
RESPONDENT:
STATE OF GUJARAT & ORS.
DATE OF JUDGMENT10/05/1988
BENCH:
SEN, A.P. (J)
BENCH:
SEN, A.P. (J)
SHARMA, L.M. (J)
CITATION:
1988 AIR 1255 1988 SCR Supl. (1) 287
1988 SCC (3) 153 JT 1988 (2) 409
1988 SCALE (1)915
CITATOR INFO :
R 1988 SC1835 (6)
RF 1990 SC 225 (9)
R 1990 SC1446 (13)
ACT:
Gujarat Prevention of Anti-social Activities Act, 1985
challenging detention under sub s. (2) of s. 3-of-
HEADNOTE:
This appeal by special leave against the judgment of
the High Court in writ petition, and the writ petition filed
in this Court were directed against an order of detention
passed by the District Magistrate against the appellant
under sub-s. (2) of s. 3 of the Gujarat Prevention of Anti-
Social Activities Act, 1985 with a view to preventing him
from acting in any manner prejudicial to the maintenance of
public order.
The appellant was a comission agent or broker engaged
in illicit business of liquor traffic at Godhara in the
State of Gujarat where there is total prohibition by
importing liquor from Vanswada in Rajasthan.
On prior information that the appellant was about to
import liquor in a truck on the night between 29th/30th
December, 1986, the Gujarat police intercepted the truck and
found it laden with cases containing bottles of whisky and
beer, etc. It was evident from the statements of the driver
and the cleaner that the appellant had purchased the liquor
from Vanswada. The appellant could not be traced till 2nd
February, 1987, when he was arrested but later released on
bail. On 28th May, 1987, the District Magistrate, Godhara,
passed an order of detention and served it alongwith the
grounds of detention on the appellant on the 30th when he
was taken into custody. The immediate and proximate cause
for the detention was that on 29th/30th December, 1986, he
had transported in bulk foreign liquor from Vanswada in
Rajasthan for delivery in the State of Gujarat and indulged
in anti-social activities by doing illicit business of
foreign liquor. The grounds furnished particulars of two
other criminal cases, namely (i) Criminal Case No. 303/82 on
account of recovery of 142 bottles of foreign liquor seized
from his residence on 21st July, 1982, which had ended in
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acquittal as the prosecution witnesses turned hostile, and
(ii) Criminal Case No. 150/86 relating to seizure of 24
bottles of foreign liquor from his house on 30th May, 1986,
which was still pending.
288
The appellant filed the writ petition in the High Court
assailing the order of detention. The High Court declined to
interfere. The appellant then filed in this Court the appeal
by special leave against the decision of the High Court and
the writ petition, against the order of detention.
Dismissing the appeal and the writ petition, the Court
^
HELD: When any person is detained in pursuance of an
order made under any law of preventive detention, the
authority making the order shall, as soon as may be,
communicate to such person the grounds of detention and
afford him the earliest opportunity of making a
representation against the order. The power of preventive
detention underany law for preventive detention is
necessarily subject to the limitations enjoined on the
exercise of such power by Art. 22(5) as construed by this
Court. The Court must be circumspect in striking down an
order of detention where it meets with the requirements of
Art. 22(5) of the Constitution. [294C-E; 295D-E]
Since preventive detention is a serious inroad on
individual liberty and its justification is the prevention
of inherent danger of activity prejudicial to the community,
the detaining authority must be satisfied as to the
sufficiency of the grounds which justify the taking of the
drastic measure of preventive detention. The requirements of
Art. 22(5) are satisfied once ’basic facts and materials’
which weighed with the detaining authority in reaching his
subjective satisfaction are communicated to the detenu.
There is apt to be some delay between the prejudicial
activity complained of in s. 3(1) of the Act and the making
of an order of detention. When a person is detected in the
act of smuggling or foreign exchange racketeering, the
Directorate of Enforcement has to make a thorough
investigation into all the facts with a view to determining
the identity of the persons engaged in these operations.
Their statements have to be recorded; their books of
accounts and other related documents have to be examined.
Sometimes such investigation has to be carried on for months
together. The Directorate has to consider whether there is
necessity in the public interest to direct the detention of
a person under s. 3(1) of the Act with a view to preventing
him from acting in any manner prejudicial to the
conservation and augmentation of foreign exchange or from
engaging in smuggling of goods, etc. The proposal has to be
cleared at the highest quarter and then placed before a
Screening Committee. If the Screening Committee approves,
the proposal is placed before the detaining authority. The
detaining authority would necessarily insist upon
sufficiency of grounds which
289
would justify the preventively detaining of the person.
Viewed from this prospective, the Court emphasised for the
guidance of the High Courts that a distinction must be drawn
between delay in making an order of detention under a law
relating to preventive detention and the delay in complying
with the procedural safeguards of Art. 22(5) of the
Constitution. The rule as to unexplained delay in taking
action is not inflexible. The Courts should not merely on
account of delay in making an order of detention assume that
the delay, if not satisfactorily explained, must necessarily
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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 is no real nexus between
the grounds and the order of detention. The decisions to the
contrary by the Delhi High Court in Anil Kumar Bhasin v.
Union of India & Ors., Crl. W. No. 410/86 dated 2.2.1987;
Bhupinder Singh v. Union of India & Ors., [1985] DLT 493;
Anwar Esmail Aibani v. Union of India & Ors., Crl. W. No.
375/86 dated 11.12.1986; Surinder Pal Singh v. M.L. Wadhawan
JUDGMENT:
Delhi Administration, Crl. W. No. 43/84 dated 16.4.1984 and
Cases taking the same view did not lay down good law and
were overruled. In this case, the appellant was arrested on
2nd February, 1987. The order of detention of the appellant
was passed on 28th May, 1987. Though there was no
explanation for the delay between 2nd February and 28th May,
1987, it could not give rise to a 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 impugned order of detention. [295F-G;
296B-H; 297A-G; 298C-D]
It could not be said that there was lack of awareness
on the part of the District Magistrate on 28th May, 1987 in
passing the order of detention as he did. There was a
mention in the grounds of the two criminal cases against the
detenu-Criminal Case No. 303/82 and Criminal Case No.
150/86-and also a recital of the fact that he was continuing
his business surreptitiously and he could not be caught
easily and, therefore, there was compelling necessity to
detain him. [300D]
The contention regarding lack of certainty and
precision on the part of the detaining authority as to the
real purpose of detention and that they were ’all rolled up
into one’ was of little or no consequence. The purpose of
detention is to prevent the appellant from acting in any
manner prejudicial to the maintenance of public order. It
was disputed
290
that the prejudicial activities of the appellant answered
the description of a ’bootlegger’ as defined in s. 2(b) and,
therefore, he came within the purview of sub-s. (1) of s. 3
of the Act by reason of sub-s. (4) thereof. Sub-s. (4) of s.
3 with the explanation thereto gives an enlarged meaning to
the words ’acting in any manner prejudicial to the
maintenance of public order’. The district magistrate in
passing the impugned order recorded his subjective
satisfaction that with a view to preventing the appellant
from acting in any manner prejudicial to the maintenance of
public order, it was necessary to make an order that he be
detained. In the accompanying grounds of detention this was
the basis for the formation of his subjective satisfaction,
and it was stated therein that unless the order of detention
was made he would not stop his illicit liquor traffic on
brokerage and, therefore, it was necessary to detain him
under s. 3(2) of the Act. [300E-G; 301C-D]
The contention that there was unexpected delay in the
disposal of the representation made by the appellant to the
State Government was wholly misconceived. The
representations were made by the appellant on 8th June,
1987. The State Government acted with promptitude and
rejected them on 12th June, 1987. There was no delay. [301F-
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G]
The appeal and the writ petition failed.
Khudiram Das v. State of West Bengal, [1975] 2 SCC 81;
Narendra Purshottam Umrao v. B.B. Gujral, [1979] 2 SCR 315;
Olia Mallick v. State of West Bengal, [1974] 1 SCC 594;
Golam Hussain @ Gama v. Commissioner of Police, Calcutta &
Ors., [1974] 3 SCR 613; Odut Ali Miah v. State of West
Bengal, [1974] 4 SCC 127; Vijay Narain Singh v. State of
Bihar, [1954] 3 SCC 14; Gora v. State of West Bengal, [1975]
2 SCR 996; Raj Kumar Singh v. State of Bihar & Ors., [1986]
4 SCC 407; Hemlata Kantilal Shah v. State of Maharashtra,
[1981] 4 SCC 647; Bal Chand Bansal v. Union of India & Ors.,
J.T. (1983) 2 SC 65; Ramesh Yadav v. District magistrate,
Etah, [1985] 4 SCC 232 and Suraj Pal Sahu v. State of
Maharashtra, [1986] 4 SCC 378, referred to.
Anil Kumar Bhasin v. Union of India & Ors., Crl. W. No.
410/86 dated 2.2.1987; Bhupinder Singh v. Union of India &
Ors., [1985] DLT 493; Anwar Esmail Alibani v. Union of India
& Ors., Crl. W. No. 375/86 dated 11.12.1986; Surinder Pal
Singh v. M.L. Wadhawan & Ors., Crl. W. No. 444/86 dated
9.3.1987 and Ramesh Lal v. Delhi Administration, Crl. W. No.
43/84 dated 16.4.1984, overruled.
291
&
CRIMINAL APPELLATE/ORIGINAL JURISDICTION: Criminal
Appeal No. 319 of 1988
From the Judgment and Order dated 21.11.1987 of the
Gujarat High Court in Special Criminal Application No. 732
of 1987.
AND
Writ Petition (Criminal) No. 906 of 1987.
M.C. Kapadia, S.S. Khanduja and Y.P. Dhingra for the
Appellant/Petitioner.
G.A. Shah and M.N. Shroff for the Respondents.
The Judgment of the Court was delivered by
SEN, J. This appeal by special leave brought from the
judgment and order of the Gujarat High Court dated 21st
November, 1987 and the connected petition under Art. 32 of
the Constitution are directed against an order passed by the
District Magistrate, Panchmahals, Godhra dated 28th May,
1987 for the detention of the appellant under sub-s. (2) of
s. 3 of the Gujarat Prevention of Anti-Social Activities
Act, 1985 on being satisfied that it was necessary to do so,
with a view to preventing him from acting in any manner
prejudicial to the maintenance of public order.
It is not an undisputed fact that the appellant is
engaged as a commission agent or broker in the rather
lucrative but illicit business of liquor traffic at Godhra
in the State of Gujarat where there is total prohibition by
importing different varieties of Indian made foreign liquor
in sealed bottles like scotch whisky, beer etc. from wine
merchants of Vanswada in the State of Rajasthan. But then by
engaging himself in such activities he falls within the
description of a ’bootlegger’ as defined in s. 2(b) and
therefore comes within the ambit of sub-s. (1) of s. 3 of
the Act by reason of the legal fiction contained in sub-s.
(4) thereof.
Put very briefly, the essential facts are these. On
prior information that the appellant was about to import
Indian made foreign liquor in bulk in truck bearing
registration No. GRY 3832, on the night between 29/30th
December, 1986, the Gujarat police put up a road block on
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the bridge near Machan River where on a sign given it failed
to stop. After a long chase, the police jeep was able to
intercept the
292
truck at Limdi. Both the driver Ahmed Saiyad Abdul Majid
Kalander and cleaner Sadique Ahmed Yusuf Durvesh Shaikh got
down and said that the truck was empty. However, on a search
it was found to be laden with 77 sealed cases containing
2040 bottles of different brands of scotch whisky, beer etc.
and it was evident from the statements of the driver and the
cleaner who were arrested, that the appellant was the person
who had purchased the liquor from wine merchants of
Vanswada. On 4th January, 1987 the statements of the
witnesses were recorded. Apparently, the appellant absconded
and he could not be traced till 2nd February, 1987 when he
was arrested but later released on bail. In the meanwhile,
he moved the Sessions Judge, Panchmahals for anticipatory
bail on 21st January, 1987 but no orders were passed
inasmuch as the police made a statement that there was no
proposal at that stage to place him under arrest. The
appellant is being prosecuted for various offences under the
Bombay Prohibition Act, 1949 as applicable to the State of
Gujarat, in Criminal Case No. 154/86. On 28th May, 1987 i.e.
after a lapse of five months the District Magistrate,
Panchmahals, Godhra passed the order of detention along with
the grounds therefore which was served on the appellant on
the 30th when he was taken into custody. The immediate and
proximate cause for the detention was that on 20/30th
December, 1986 he transported in bulk foreign liquor from
liquor merchants of Vanswada in the State of Rajasthan
intended and meant for delivery to persons indulged in anti-
social activities by doing illict business of foreign liquor
in the State of Gujarat. Incidentally, the grounds furnish
particulars of two other criminal cases, namely, (i)
Criminal Case No. 303/82 on account of recovery of 142
bottles of foreign liquor recovered and seized from his
residential house on 21st July, 1982, but the case ended in
an acquittal as the prosecution case witnesses turned
hostile, and (ii) Criminal Case No. 150/86 relating to
recovery and seizure of 24 bottles of foreign liquor from
his house on 30th May, 1986 which case was still pending. It
was said that persons like the appellant bringing foreign
liquor from other States illegally without a permit on a
brokerage and storing the same in their permises are not
easily detected and there was no other method of preventing
such persons from engaging in such anti-social activities
except by detention under s. 3(2) of the Act.
In the writ petition before the High Court the
appellant assailed the impugned order of detention mainly on
two grounds, namely: (i) The failure of the detaining
authority to record his subjective satisfaction as required
under sub-s. (2) of s. 3 that the importation of foreign
liquor by the appellant from Vansawada across the border was
likely to affect public health of the citizens of Gujarat
and therefore it was
293
necessary to detain him with a view to preventing him from
acting in any manner prejudicial to public order, renders
the order of detention bad and invalid. (ii) There was no
sufficient material on record on which such subjective
satisfaction of the detaining authority could be reached.
Neither of the two contentions prevailed with the High Court
and it accordingly declined to interfere.
At the time when the judgment was to be delivered by
the High Court, learned counsel appearing for the appellant
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sought permission to raise an additional point and he was
permitted to do so. It was as to whether the detention of
the detenu at Sabarmati Central Prison, which was a place
other than Godhra where he ordinarily resides, was
tantamount to a breach of the mandate of Art. 21 of the
Constitution as his detention at a far-off place was not
consistent with human dignity and civilized normes of
behaviour. The additional point so raised also did not find
favour with the High Court. The appeal by special leave is
directed against this judgment. Learned counsel for the
appellant has however not preferred to rais these questions
over again.
In the connected petition under Art. 32 learned counsel
for the appellant has, in substance, put forth the following
contentions, namely: (1) There is no explanation forthcoming
for the admitted delay of five months in making the impugned
order of detention and such inordinate unexplained delay by
itself was sufficient to vitiate the order. (2) The impugned
order of detention was bad in law inasmuch as there was non-
application of mind on the part of the detaining authority.
There was nothing to show that there was awareness of the
fact that the appellant had applied for grant of
anticipatory bail nor was there anything to show that the
detaining authority was satisfied about the compelling
necessity to make an order for detention which, it is said,
was punitive in character. It is said that there was no
occasion to commit the appellant to prison while he was on
bail in a criminal case facing charges under the Bombay
Prohibition Act, 1949 merely on the suspicion of being a
bootlegger. (3) The impugned order of detention was ultra
vires the District Magistrate and void ab initio as it
displayed lack of certainty and precision on the part of the
detaining authority as to the purpose of detention. There
was clubbing of purposes as it mentioned that such detention
was necessary (i) in the interests of the nation with a view
to stop the anti-national activities, (ii) for ensuring of
public peace, (iii) for maintenance of public health, and
(iv) in the interest of the State, all rolled up into one.
(4) There was delay in the disposal of the representation
made by the appellant
294
to the State Government which renders his continued
detention invalid and constitutionally impermissible. We
shall deal with the contentions in seriatim.
Point No. (1): It has always been the view of this
Court that detention of individuals without trial for any
length of time, however short, is wholly inconsistent with
the basic ideas of our Government and the gravity of the
evil to the community resulting from anti-social activities
can never furnish an adequate reason for invading the
personal liberty of the citizen except in accordance with
the procedure established by law. The Court has therefore in
a series of decisions forged certain procedural safeguards
in the case of preventive detention of citizens. When the
life and liberty of citizen was involved, it is expected
that the Government will ensure that the constitutional
safeguards embodied in Art. 22(5) are strictly observed.
When any person is detained in pursuance of an order made
under any law of preventive detention, the authority making
the order shall, as soon as may be, communicate to such
person the grounds on which the order has been made and
shall afford him the earliest opportunity of making a
representation against the order. These procedural
safeguards are ingrained in our system of judicial
interpretation. The power of preventive detention by the
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Government under any law for preventive detention is
necessarily subject to the limitations enjoined on the
exercise of such power by Art. 22(5) as construed by this
Court. Thus, this Court in Khudiram Das v. State of West
Bengal, [1975] 2 SCC 81 speaking through Bhagwati, J.
observed:
"The constitutional imperatives enacted in this
article are two-fold: (1) the detaining authority
must, as soon as may be, that is, 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 a representation against the order of
detention. These are the barest minimum safeguards
which must be observed before an executive
authority can be permitted to preventively detain
a person and thereby drown his right of personal
liberty in the name of public good and social
security."
As observed by this Court in Narendra Purshotam Umrao v.
B.B. Gujral, [1979] 2 SCR 315 when the liberty of the
subject is involved, whether it is under the Preventive
Detention Act or the Maintenance
295
of Internal Security Act or the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act or any
other law providing for preventive detention.
"...it is the bounden duty of the Court to satisfy
itself that all the safeguards provided by the law
have been scrupulously observed and that the
subject is not deprived of his personal liberty
otherwise than in accordance with law."
Nevertheless, the community has a vital interest in the
proper enforcement of its laws particularly in an area such
as conservation of foreign exchange and prevention of
smuggling activities in dealing effectively with persons
engaged in such smuggling and foreign exchange racketeering
or with persons engaged in anti-national activities which
threaten the very existence of the unity and integrity of
the Union or with persons engaged in anti-social activities
seeking to create public disorder in the worsening law and
order situation, as unfortunately is the case in some of the
States today, by ordering their preventive detention and at
the same time, in assuring that the law is not used
arbitrarily to suppress the citizen of his right to life and
liberty. The Court must therefore be circumspect in striking
down the impugned order of detention where it meets with the
requirements of Art. 22(5) of the Constitution.
There is an inexorable connection between the
obligation on the part of the detaining authority to furnish
the ’grounds’ and the right given to the detenu to have an
’earliest opportunity’ to make the representation. Since
preventive detention is a serious inroad on individual
liberty and its justification is the prevention of inherent
danger of activity prejudicial to the community, the
detaining authority must be satisfied as to the sufficiency
of the grounds which justify the taking of the drastic
measure of preventive detention. The requirements of Art.
22(5) are satisfied once ’basic facts and materials’ which
weighed with the detaining authority in reaching his
subjective satisfaction are communicated to the detenu. The
test to be applied in respect of the contents of the grounds
for the two purposes are quite different. For the first, the
test is whether it is sufficient to satisfy the authority,
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for the second, the test is whether it is sufficient to
enable the detenu to make his representation at the earlier
opportunity which must, of course, be a real and effective
opportunity. The Court may examine the ’grounds’ specified
in the order of detention to see whether they are relevant
to the circumstances under which preventive detention could
be supported e.g. security of India or of a State,
conservation
296
and augmentation of foreign exchange and prevention of
smuggling activities, maintenance of public order, etc. and
set the detenu at liberty if there is no rational connection
between the alleged activity of the detenu and the grounds
relied upon, say public order.
In the enforcement of a law relating to preventive
detention like the conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974 there is apt to
be some delay between the prejudicial activity complained of
under s. 3(1) of the Act and the making of an order of
detention. When a person is detected in the act of smuggling
or foreign exchange racketeering, the Directorate of
Enforcement has to make a thorough investigation into all
the facts with a view to determine the identity of the
persons engaged in these operations which have a deleterious
effect on the national economy. Quite often these activities
are carried on by persons forming a syndicate or having a
wide network and therefore this includes recording of
statements of persons involved, examination of their books
of accounts and other related documents. Effective
administration and realisation of the purpose of the Act is
often rendered difficult by reason of the clandestine manner
in which the persons engaged in such operations carry on
their activities and the consequent difficulties in securing
sufficient evidence to comply with the rigid standards,
insisted upon by the Courts. Sometimes such investigation
has to be carried on for months together due to the
magnitude of the operations. Apart from taking various other
measures i.e. launching of prosecution of the persons
involved for contravention of the various provisions of the
Acts in question and initiation of the adjudication
proceedings, the Directorate has also to consider whether
there was necessity in the public interest to direct the
detention of such person or persons under s. 3(1) of the Act
with a view to preventing them from acting in any manner
prejudicial to the conservation and augmentation of foreign
exchange or with a view to preventing them from engaging in
smuggling of goods etc. The proposal has to be cleared at
the highest quarter and is then placed before a Screening
Committee. For ought we know, the Screening Committee may
meet once or twice a month. If the Screening Committee
approves of the proposal, it would place the same before the
detaining authority. Being conscious that the requirements
of Art. 22(5) would not be satisfied unless the ’basic facts
and materials’ which weighed with him in reaching his
subjective satisfaction, are communicated to the detenu and
the likelihood that the Court would examine the grounds
specified in the order of detention to see whether they were
relevant to the circumstances under which the impugned order
was passed, the detaining authority would neces
297
sarily insist upon sufficiency of the grounds which would
justify the taking of the drastic measure of preventively
detaining the person.
Viewed from this perspective, we wish to emphasise and
make it clear for the guidance of the different High Courts
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that a distinction must be drawn between the delay in making
of an order of detention under a law relating to preventive
detention like the Conservation of Foreign Exchange &
Prevention of Smuggling Activities Act, 1974 and the delay
in complying with the procedural safeguards of Art. 22(5) of
the Constitution. It has been laid down by this Court in a
series of decisions that the rule as to unexplained delay in
taking action is not inflexible. Quite obviously, in cases
of mere delay in making of an order of detention under a law
like the Conservation of Foreign Exchange & Prevention of
Smuggling Activities Act, 1974 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 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 warrented unless the
Court finds that the grounds are ’stale’ or illusory or that
there is no real nexus between the grounds and the impugned
order of detention. The decisions to the contrary by the
Delhi High Court in Anil Kumar Bhasin v. Union of India &
Ors., Crl. W. No. 410/86 dated 2.2.1987, Bhupinder Singh v.
Union of India & Ors., [1985] DLT 493, Anwar Esmail Aibani
v. Union of India & Ors., Crl. W. No. 375/86 dated
11.12.1986, Surinder pal Singh v. M.L. Wadhawan & Ors., Crl.
W. No. 444/86 dated 9.3.1987 and Ramesh Lal v. Delhi
Administration, Crl. W. No. 43/84 dated 16.4.1984 and other
cases taking the same view do not lay down good law and are
accordingly overruled.
In the present case, the direct and proximate cause for
the impugned order of detention was the importation in bulk
of Indian made foreign liquor by the appellant acting as a
broker from across the border on the night between 29/30th
December, 1986. The District Magistrate in the counter-
affidavit has averred that it was revealed from the
statements of the witnesses recorded on 4th January, 1987
that the appellant was the person actually involved.
Apprehending his arrest the appellant applied for
anticipatory bail on 21st January, 1987.
298
It appears that on the same day the appellant apears to have
made a statement that there was no proposal at that stage to
arrest the appellant. However, later it was discovered that
there was no trace of the appellant. He was arrested on 2nd
February, 1987 and on the same day he made a statement
admitting these facts. Meanwhile, the proposal to detain the
appellant was placed before the District magistrate. It is
averred by the District Magistrate that on a careful
consideration of the material on record he was satisfied
that it was necessary to make an order of detention of the
appellant under s. 3(2) of the Act and that accordingly on
28th May, 1987 he passed the order of detention. The
appellant was taken into custody on 30th May, 1987. He had
forwarded the report to the State Government on the 28th and
the Government accorded its approval on the 31st.
Even though there was no explanation for the delay
between 2nd February and 28th May, 1987 it could not give
rise to a 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
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there was no rational connection between the grounds and the
impugned order of detention. There is a plethora of
decisions of this Court as to the effect of unexplained
delay in taking action. These are admirably dealt with in
Durga Das Basu’s Shorter Constitution of India, 8th edn. at
p. 154. We will only notice to a few salient decisions. In
Olia Mallick v. State of West Bengal, [1974] 1 SCC 594 it
was held that mere delay in making the order was not
sufficient to hold that the District Magistrate must not
have been satisfied about the necessity of the detention
order. Since the activities of the detenu marked him out as
a member of a gang indulging systematically in the cutting
of aluminium electric wire, the District Magistrate could
have been well satisfied, even after the lapse of five
months that it was necessary to pass the detention order to
prevent him from acting in a manner prejudicial to the
maintenance of the supply of electricity. In Golam Hussain @
Gama v. The Commissioner of Police, Calcutta & Ors., [1974]
3 SCR 613, it was held that the credible chain between the
grounds of criminal activity alleged by the detaining
authority and the purpose of detention, is snapped if there
is too long and unexplained an interval between the
offending acts and the order of detention. But no
’mechanical test by counting the months of the interval’ was
sound. It all depends on the nature of the acts relied on,
grave and determined or less serious and corrigible, on the
length of the gap, short or long, on the reason for the
delay in taking preventive action, like information of
participation being available only in the course of an
investigation. The Court has to investigate whether the
casual connection has
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been broken in the circumstances of each case. In Odut Ali
Miah v. State of West Bengal, [1974] 4 SCC 127 where the
decision of the detaining authority was reached after about
five months, Krishna Iyer, J. repelled the contention based
on the ground of delay as a mere ’weed of straw’ and it was
held that the ’time-lag’ between the dates of the alleged
incidents and the making of the order of detention was not
so large that it could be said that no reasonable person
could possibly have arrived at the satisfaction which the
District Magistrate did on the basis of the alleged
incidents. It follows that the test of proximity is not a
rigid or mechanical test to be blindly applied by merely
counting the number of months between the offending acts and
the order of detention. In Vijay Narain Singh v. State of
Bihar, [1964] 3 SCC 14, one of us, Sen, J. observed:
"On merits the impugned order cannot be said to be
vitiated because of some of the grounds of
detention being non-existent or irrelevant or too
remote in point of time to furnish a rational
nexus for the subjective satisfaction of the
detaining authority. It is usually from prior
events showing tendencies or inclinations of a man
that an inference can be drawn whether he is
likely, in the future, to act in a manner
prejudicial to the maintenance of public order."
See also: Gora v. State of West Bengal, [1975] 2 SCR 996;
Raj Kumar Singh v. State of Bihar & Ors., [1986] 4 SCC 407
and Hemlata kantilal Shah v. State of Maharashtra, [1981] 4
SCC 647.
Point No. (2): Quite recently, we had occasion to deal
with this aspect in Bal Chand Bansal v. Union of India &
Ors., JT (1988) 2 SC 65. In repelling a contention raised on
the dictum in Ramesh Yadav v. District Magistrate, Etah,
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[1985] 4 SCC 232, one of us (Sharma, J.) drew attention to
the observations of Mukharji, J. in Suraj Pal Sahu v. State
of Maharashtra, [1986] 4 SCC 378 that the prejudicial
activities of the person detained were ’so interlinked and
continuous in character and are of such nature’ that they
fully justified the detention order. Here the grounds of
detention clearly advert to two earlier incidents, one of
21st July, 1982 for which the detenu was being prosecuted in
Criminal Case No. 303/82 relating to the recovery and
seizure of 142 bottles of foreign liquor from his
residential house which ended in an acquittal because the
prosecution witnesses turned hostile, and the other of 30th
May, 1986 for which Criminal Case No. 150/86 relating to
recovery and seizure of 24 bottles of foreign liquor from
his house was
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then still pending, and go on to recite that the launching
of the prosecution had no effect inasmuch as he had not
stopped his activities and was continuing the importation of
foreign liquor from across the border. The earlier two
incidents are not really the grounds for detention but they
along with the transaction in question of importation of
foreign liquor in bulk show that his activities in this
transaction afforded sufficient ground for the prognosis
that he would indulge in such anti-social activities again,
if not detained. The District Magistrate in his counter-
affidavit has stated that he was aware of the fact that the
detenu had on 21st January, 1987 applied for anticipatory
bail but no orders were passed inasmuch as the police made a
statement that there was no proposal at that stage to place
him under arrest. It however appears that he was arrested on
2nd February, 1987 and on his own made a statement admitting
the facts. Thereafter, he seems to have disappeared from
Godhra. In the circumstances, it cannot be said that there
was lack of awareness on the part of the District Magistrate
on 28th May, 1987 in passing the order of detention as he
did. There is a mention in the grounds of the two criminal
cases pending against the detenu and also a recital of the
fact that he was continuing his business surreptitiously and
he could not be caught easily and therefore there was
compelling necessity to detain him.
Point No. (3): The contention regarding lack of
certainty and precision on the part of the detaining
authority as to the real purpose of detention and that they
were ’all rolled up into one’ at first blush appears to be
attractive but on deeper reflection seems to be of little or
no consequence. The purpose of the detention is with a view
to preventing the appellant from acting in any manner
prejudicial to the maintenance of public order. It was not
seriously disputed before us that the prejudicial activities
carried on by the appellant answer the description of a
’bootlegger’ as defined in s. 2(b) and therefore he comes
within the purview of sub-s. (1) of s. 3 of the Act, by
reason of sub-s. (4) thereof. Sub-s. (4) of s. 3 with the
Explanation appended thereto gives an enlarged meaning to
the words ’acting in any manner prejudicial to the
maintenance of public order’ and reads:
"(4) For the purpose of this section, a person
shall be deemed to be ’acting in any manner
prejudicial to the maintenance of public order’
when such person is engaged in or is making
preparation for engaging in any activities,
whether as a bootlegger or dangerous person or
drug offender or immoral traffic offender or
property grabber, which affect adversely or are
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likely to affect adversely the maintenance of
public order.
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Explanation: For the purpose of this sub-section,
public order shall be deemed to have been affected
adversely or shall be deemed likely to be affected
adversely inter alia, if any of the activities of
any person referred to in this sub-section
directly or indirectly, is causing or is likely to
cause any harm, danger or alarm or feeling of
insecurity among the general public of any section
thereof or a grave or widespread danger to life,
property or public health."
The District Magistrate in passing the impugned order has
recorded his subjective satisfaction with respect to the
appellant that with a view to preventing him from acting in
any manner prejudicial to the maintenance of public order,
it is necessary to make an order that he be detained. In the
accompanying grounds for detention this is the basis for the
formation of his subjective satisfaction. They go on to
state that unless the order of detention was made he would
not stop his illicit liquor traffic on brokerage and
therefore it was necessary to detain him under s. 3(2) of
the Act, and recite:
"In order to safeguard the health of the people of
Gujarat, for public peace and in the interest of
the nation, with a view to stop such anti-national
activities ..... for the purpose of public order
and public peace and in the interest of the State
....."
In our opinion, these words added by way of superscription
were wholly unnecessary. They were set out by the District
Magistrate Presumably because of total prohibition in the
State. In future, it would be better for the detaining
authority acting under ss. 3(1) and 3(2) of the Act, to
avoid such unnecessary verbiage which are of little or no
consequence and give rise to unnecessary debate at the Bar.
Point No. (4): The contention that there was
unexplained delay in disposal of the representation made by
the appellant to the State Government appears to be wholly
misconceived. Admittedly, the appellant made his
representations to the State Government as well as to the
Advisory Board on 8th June, 1987. The State Government acted
with promptitude and after due consideration rejected the
same on 12th June, 1987. There was no delay much less
inordinate delay in consideration of the representation.
The result therefore is that the appeal as well as the
writ petition fail and are dismissed.
S.L. Appeal & Petition dismissed.
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