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PETITIONER: REKHABEN VIRENDRA KAPADIA

       Vs.

RESPONDENT: STATE OF GUJARAT & ORS.

DATE OF JUDGMENT07/11/1978

BENCH: KAILASAM, P.S. BENCH: KAILASAM, P.S. DESAI, D.A. KOSHAL, A.D.

CITATION:  1979 AIR  456            1979 SCR  (2) 257  1979 SCC  (2) 566  CITATOR INFO :  R          1984 SC 211  (2)  RF         1990 SC 225  (9)

ACT:      Conservation  of   Foreign  Exchange  &  Prevention  of Smuggling Activities  Act, -1974-S.  3-Grounds of  detention stated detenu  "likely to  engage in  transporting  smuggled goods"-Validity  of-Reasonable   nexus  between  prejudicial activities and  purpose of detention-Tests for determination of.

HEADNOTE:      The appellant  was detained  under the  Maintenance  of Internal Security  Act, 1971  in  September,  1974  but  was released  in  December,  1974.  In  February,  1977  he  was detained under  s.  3(1)  of  the  Conservation  of  Foreign Exchange and  Prevention of  Smuggling Activities Act, 1974, on the  ground that he was "likely to engage in transporting smuggled goods".  One of  the grounds  of .detention stated: "you were  an associate  of a  notorious smuggler,  that you were engaged  in piloting  smuggled goods  loaded in  trucks from the  place of landing . . .. " In support of the above, two instances were mentioned: one relating to an incident on 6th August, 1974 and another on 25th August, 1974.      In  the   appellant’s  writ  petition  the  High  Court observed (1) that although some of the activities attributed to the  detenu related  to August  1974, the  fact that  the detenu was  in illegal  employment of  a notorious  smuggler under detention  clearly indicated that there was connection between him and the smuggler and (2) that a reasonable nexus between  the  prejudicial  activities  and  the  purpose  of detention could not be said to have been snapped by the time lag rendering the impugned order of detention as one without genuine satisfaction of the detaining authoritY.      In appeal  to this  Court it was contended on behalf of the appellant  that the  order of detention was bad, in that it  disclosed  that  the  satisfaction  arrived  at  by  the detaining authority  was mechanical  and without application of his mind.      Allowing the appeal, ^

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    HELD:  (1)  It  is  clear  from  the  record  that  the instances alleged  do not  relate to any incident after 1974 but only  relate to the activities of the detenu in 1973 and 1974. Even  though information  about the  activities of the detenu during  the year  1974 came  to light  in october and November, 1976, a fresh order of detention under the Act was not passed  till February,  1977. If the authorities were in possession of any activities of the detenu after his release in December,  1974 action  would have been taken. it is only the statements  that .were  recorded in october and November 1976 which  led the  authorities to  pass a  fresh order  of detention in February, 1977. From the statements recorded in october and  November, 1976  no incidents  are shown to have taken place after 1974. [262B; 263C-D] 258      (2) Whether  the  time  lag  between  August  1974  and February 1977 is enough to snap the reasonable nexus between the prejudicial  activities and  the  purpose  of  detention would depend  upon the  facts of  the case. If the detaining authority had  come to  the conclusion,  taking into account the past  activities of  the detenu,  that he  was likely to continue to  indulge in  his unlawful  activities in  future there would be no justification for this Court to interfere. It is  quite likely that persons who are totally involved in such  activities   as  smuggling   can  cause  a  reasonable apprehension in  the mind  of the  detaining authority  that they are  likely to  continue in  their unlawful activities. But in  the instant case the detaining authority passing the order has  not stated  that he was satisfied that the detenu was likely to engage in transporting smuggled goods. What he has stated  was that  the detenu  "engages" or is "likely to engage"  in   transporting  smuggled  goods.  There  was  no material before  the detaining  authority for  coming to the conclusion  that   the  detenu  was  "engaging"  himself  in unlawful activities. [263F; 264A-C]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 105  of 1978 with W.P. No. 833 of 1978.      (Appeal by  special leave  from the  Judgment and order dt. 27.9.77  of the  Gujarat High  Court  in  Criminal  Spl. Application No. 176 of 1977) .      Ram Jethmalani  and H.  S. Parihar for the appellant in Cr. A. No. 105 and WP No. 833/78.      M. N.  Phadke and  B. D.  Sharma and  M. N.  Shroff for respondent No 1      Girish Chandra for respondent no 4.      M. N. Shroff for respondents 1-3.      R.B.Datar and Miss A. Subhashini for respondents 4-5.      The Judgment of the Court was delivered by      KAILASAM, J.-After hearing the arguments we allowed the appeal on  5-10-1978 and  directed that the detenu be set at liberty forthwith  indicating  that  the  detailed  judgment would follow. We now proceed to give reasons for our order.      This appeal  is preferred  by the  wife of one Virendra Ramniklal Kapadia,,  a detenu,  by special leave against the judgment  of   the  High   Court  of  Gujarat  at  Ahmedabad dismissing the  writ petition  for the  issue of  a writ  of habeas corpus.      On 22nd September, 1974 the District Magistrate, Surat, directed. the detention of the detenu under section 3(1) (c) (i) and  section  3  (2)  of  the  Maintenance  of  Internal Security Act, 1971. The detenu was supplied with the grounds

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of detention on 27th September, 1974. The 259 detention order  passed under  the Maintenance  of  Internal Security Act  A was  cancelled on 9th December, 1974 and the detenu was released. On 7th February, 1977 by an order under section 3(1)  of the  Conservation of  Foreign Exchange  and Prevention of  Smuggling Activities  Act, 1974  (hereinafter referred to as COFEPOSAA) in the name of Governor, the Under Secretary to  Government, respondent 2, directed that it was necessary to detain the detenu with a view to preventing him from engaging  in transporting  smuggled goods.  On the same day by another order issued under section S of the COFEPOSAA the  2nd  respondent  directed  that  the  detenu  shall  be detained in  the Ahmedabad  Central  Prison.  A  declaration under section  12A, sub-section  (2) was  also passed on the same day by the 2nd respondent stating that it was necessary to detain the detenu for dealing effectively with emergency. In pursuance  of  the  above  orders  the  detenu  has  been detained  in   the  Ahmedabad   Central  prison   after   he surrendered on 4th July, 1977. The grounds of detention were supplied to  him on  6th July,   1977. On 2nd August, 1977 a declaration under  section 9  of the COFEPOSAA was passed by the 4th  respondent stating  that he  was satisfied that the detenu is likely to I) engage in transporting smuggled goods in the areas around Balashwar and Sachin-Gabheni Road in the State of  Gujarat  which  are  areas  highly  vulnerable  to smuggling as defined in section 9 of the COFEPOSAA.      The High  Court negatived all the contentions raised on behalf of  the detenu  and held  that the order of detention was validly made.      Mr.  Ram   Jethmalani,  the  learned  counsel  for  the appellant, raised  various contentions. The first contention raised by  him is  that the  order passed under section 9 by the 4th  respondent is  bad because  on the  face of  it, it discloses  that  the  satisfaction  arrived  at  by  him  is mechanical and  Without application  of  his  mind.  As  the detention is continued beyond the period of one year only by virtue of  the order  made under  section 9  the  detenu  is entitled to  be set  at liberty  if the order is found to be invalid. On  hearing the  learned counsel  for the appellant and Mr. Phadke on behalf of the State, we are satisfied that the contention  on behalf  of the detenu has to be accepted. Before dealing  with this  point we  would just  mention the other  grounds   raised  by  the  learned  counsel  for  the appellant.      It was  submitted that the order passed under section 3 is invalid  as the  authority did  not apply  its mind. The. detenu was  released on  19th December,  1974 and  from that date till 7th February, 1977 when the order of detention was passed nothing has been disclosed to implicate the detenu in any fresh activity. As the order was based on the activities of the  detenu in  1973  and  1974  before  the  detenu  was released, the order of detention cannot be sustained. It was next submitted that 260 the detenu  was not  furnished important material which must have influenced  the detaining  authority.  Lastly,  it  was submitted that  the grounds given are vague and even after a careful reading  of the  grounds, it  is  not  clear  as  to whether the  grounds referred  to the  incidents  that  took place in  1973 and  1974 only refer to activities subsequent to his  release in  December, 1974.  As we are upholding the challenge of  the learned  counsel for  the appellant on the validity of  the order  passed under  section  9(1)  of  the COFEPOSAA we  refrain from  dealing with  any of  the  other

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contentions.      The order  dated 2nd  August,  1977  passed  by  B.  B. Gujral, Addl.  Secretary to the Government of India, the 4th respondent under  section 9(1)  of th COFEPOSAA is marked as Annexure E’. It runs as follows :-       "Whereas  Virendra Ramniklal  Kapadia @ Kumar has been      detained on  4th July,  1977 in  pursuance of order No.      SB. IV/PSA,2876.87(i)  dated the  7th February, 1977 of      the Government of Gujarat  with a  view to  preventing him from engaging in transporting smuggled goods.      AND WHEREAS  I, the undersigned, specially empowered in      this behalf  by the  Central Government, have carefully      considered the  material bearing  on the  matter in  my      possession;      NOW, THEREFORE, I, the undersigned, specially empowered      by the  Central Government,  hereby declare  that I  am      satisfied that the aforesaid Virendra Ramniklal Kapadia      @ Kumar engages and is likely to engage in transporting      smuggled goods in the areas around Baleshwar and Sachin      Gabheni Road  in the  State of Gujarat, which are areas      highly  vulnerable   to   smuggling   as   defined   in      explanation to  section 9(1)  of  the  Conservation  of      Foreign Exchange and Prevention of Smuggling Activities      Act, 1974." In paragraph  3 respondent  4 declared  that he is satisfied that  the   detenu  engages  and  is  likely  to  engage  in transporting smuggled  goods in  vulnerable areas as defined in explanation  section 9  (1)  of  the  COFEPOSAA.  It  was submitted that  there is  no material on record on which the 4th respondent  could have  been satisfied  that the  detenu "engages and  is likely  to engage  in transporting smuggled goods". The  impugned order refers to the order of detention dated 7th  February, 1977  of the Government of Gujarat. The order of  7th February,  1977 refers to the consideration of the Government  of Gujarat  as to  whether the  detention is necessary  for   dealing  effectively   with  the  emergency referred to in sub- 261 section (2)  of section 12-A of the Act and states that on a consideration A  of the  materials the Government of Gujarat was satisfied  on the  basis of  information and material in its possession  that it  was necessary  to detain  the  said person for  dealing effectively  with the said emergency. In exercise of its powers under sub-section (2) of section 12-A the Government  declared that  it is necessary to detain the detenu for  dealing effectively  with the said emergency. On the same date the grounds on which the detention was ordered were sent  to the  detenu through  the Superintendent of the Jail. The  ground that  is alleged  against  the  detenu  in paragraph 1  of the order is as follows:-       "1.  As per  the intelligence  gathered by the Customs      officers, you were an associate of a notorious smuggler      Mohmed Kutchi  of  Surat;  that  you  were  engaged  in      piloting smuggled goods loaded in trucks from the place      of landing to the place of storage." (underlying ours). To incidents  are given:  one relating to an incident on 6th August, 1974  and the  other to  an incident  on 25  August, 1974. It  is  further  stated  that  the  Customs,  officers contacted one Karltilal Amratlal Thakkar, who was working as accountant of Mohmed Kutchi.  Kantilal Amratlal Thakkar in his statement on 7th November, 1976 stated  that the detenu was under the employment of the aforesaid Mohmed  Kutchi and  was getting  a salary  of  Rs. 5,000 p.m.  for  ar-ranging  landing  of  contraband  goods.

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Kantilal further  disclosed that in the year 1973 the detenu had accompanied  one Mohmed  Bilal  with  foreign  currency. Reference is  also made  to the statements recorded from one Mohmed Bilal  Haji Usmangani  on 8th  Novemher, 1976 and 9th Novemher, 1976  before the  Customs officers  wherein it was stated that  the detenu  was one  of the  trusted men of the aforesaid Mohmed  Kutchi and  always remained  with him  and used  to  he1p  Mohmed  Kutchi  in  managing  his  smuggling activities.  The  statement  also  referred  to  the  detenu helping his  uncle Vinod  Sakarlal Kapadia  in  delivery  of smuggled fabrics.  The statement  of one Ramchandra Schedeva Rajbher is  also referred  to. According  to  the  statement dated 11th  october, 1976  it was  stated  that  the  detenu remained present  along with one Umer Ibrahim Billimoria and his gang  at Kadodra/kamraj  near poultry  farm where trucks loaded with  camouflaged consignments  were being  fed  with smuggled cargo.  A reading  of these  grounds makes it clear that the  incidents referred to relate to the years l973 and 1974 and  that due  to examination of three persons Kantilal Amratlal Thakkar, Mohmed Bilal Haji Usmangani and Ramchandra Sahadeva   Rajbher,   fuller   particulars   regarding   the activities of the 262 detenu came  to be  known prima  facie it  appears that  the information which  the Customs  authorities received related to the  activities of  the detenu  in  1973  and  1974.  Mr. Phadke, the  learned counsel  appearing  on  behalf  of  the State,  submitted   that  the   statement  shows   that  the activities of  the detenu  after 1974  were also included in the grounds  furnished for  detention. In  order to  satisfy ourselves as  to whether the statements related to incidents after 1974,  we perused the statements made by all the three persons referred  to. .It  is very clear that the statements do not  relate to  any incidents  after 1974 but only to the activities of  the detenu in 1973 and 1974. In the affidavit filed by  the 4th  respondent" Additional  Secretary to  the Government of  India, it  is stated  in paragraph  5 of  his affidavit that he considered the detention order, grounds of detention relating  to the  detenu as  well as the report in respect of the detention order by the State Government under section 3(3)  and was  personally satisfied  that the detenu Virendra Ramniklal  Kapadia @ Kumar engages and is likely to engage in  transporting smuggled goods* Mr. P. M. Shah Under Secretary to  the Government  of Gujarat, in paragraph 10 of his  affidavit  stated  that  "fresh  material  showing  the involvement of  the detenu  in the  activity of transporting smuggled goods  was collected by the Customs authorities and therefore it  was open  to the  State Government  to pass  a fresh order of detention. Further, he stated "As pointed out in the  grounds material  indicating the  involvement of the detenu in  the incidents of 6.8.74 and 25-8-74 and his close association with  Shri Mohmed Kutchi,* a notorious smuggler, came to be known in october, November and December, 1976 x x x x I say that the material on the basis of which the detenu was  earlier   detained  was  scanty  and  no  new  material indicating involvement  of the detenu as alleged against him came to  the light  till october,  1976". The  case for  the State. appears  to be that they regarded the material on the basis of  which the  detenu was  earlier detained was scanty and fuller  particulars  came  to  light  in  october,  1976 indicating involvement of the detenu in the incidents of 6th August, 1974 and 25th August, 1974. This would indicate that for the  fresh order of detention the basis was availability of fuller  details regarding  clients on  which the  earlier detention was  ordered. It  is seen that the High Court also

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proceeded on  the basis that further information obtained in october, November 1976 related to the incidents in the years 1973 and 1974. The High Court observed, "It is no doubt true that some  of the,  activities attributed to the detenu were of August,  1974. However, the ground that the detenu was in regular employment  of one Mohmed Kutchi, who is a notorious smuggler and who is also under detention,      *Emphasis Sppluied 263 and which  fact has been disclosed from the statement of one Kantilal   Amratlal Thakkar  recorded on  November 7,  1976, clearly indicates the connection of the detenu with the said notorious smuggler. The other statements, which have brought home the involvement of the detenu with the aforesaid Mohmed Kutchi and  which also attribute the prejudicial activity to the detenu, were recorded somewhere in october and November, 1976." We  are unable  to read  the above passage as meaning that reliance  was placed on fresh incidents relating to the detenu after December. 1974. The detenu was detained on 22nd September, 1974  and was  released on  9th  December,  1974. Further information  about  the  activities  of  the  detenu during the  period 1974  obviously before his arrest on 22nd September, 1974 came to light in october and November, 1976. But it  is seen  that the fresh order of detention under the COFEPOSAA was  not passed  till 7th  February, 1977.  If the authorities were  in possession  of any  activities  of  the detenu after  his release on 9th December, 1974 action would have been  taken.  It  is  only  the  statements  that  were recorded  in   October  and  November  1976  which  led  the authorities to  pass the  fresh order  of detention  on  7th February, 1977. We have seen from the statements recorded in october and  November, 1976 that no incident that took place after 1974 has been referred to.      The High  Court observed  that it  cannot be urged that reasonable nexus  between the  prejudicial activity  and the purpose of  detention  has  been  snapped  by  the  time-lag rendering the  impugned order  of detention  as one  Without genuine satisfaction of the detaining authority. Whether the time lag  between August,  1974 and February, 1977 is enough to  snap   the  reasonable  nexus  between  the  prejudicial activity and  the purpose of detention would depend upon the facts of  the case.  It may be that a person in the position of a  detenu who  was a driver of a well known smuggler on a pay of  Rs. 5,000  p.m. and  who was taking part in clearing the smuggled  goods may  satisfy the  authority that  he  is likely to  continue in  his activities  in the future and as such would  justify his  detention. In Gore v. State of West Bengal(1)  this   Court  after   referring  to  the  earlier decisions held  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. The  : question is whether the past activities of the detenu  are such  that the  .  detaining  authority  can reasonably come  to the conclusion that the detenu is likely to continue  in his  unlawful activities.  If the  detaining authority   in this  case had  came to the conclusion taking into account the past      (1) [1975] 2 S.C.R. 996. 264 activities of  the detenu  that he  is likely to continue to indulge in  such activities  in future  there  would  be  no justification for  this Court  to  interfere.  It  is  quite likely  that   persons  who  are  deeply  involved  in  such activities as  smuggling can cause a reasonable apprehension in the minds of the detaining authority that they are likely

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to continue  in their unlawful activities. In this case, the 4th respondent  who passed  an order  under section 9(1) has not stated that he is satisfied that the detenu is likely to engage in  transporting all  smuggled  goods.  What  he  has stated is  that the  detenu "engages and is likely to engage in transporting  smuggled  goods’.  There  was  no  material before the  4th respondent for coming to the conclusion that the detenu "engages" in transporting smuggled goods. To this extent we  have to  accept the  contention  of  the  learned counsel for  the appellant  that there  is no  material  for coming to  the conclusion  that the  detenu  was  "engaging" himself in  the unlawful  activities. The  detenu  has  been under detention  from 4th  July,  1977  and  the  period  of detention permissible  under section  3 is  only  one  year. Section 9(1)  enables the  authority to  make a  declaration which would  have the  effect of  extending  the  period  of detention to  two years from the date of detention by virtue of amendment to section 10 by Amending Act 20 of 1976. As we have found  that the  order under  section 9(1) has not been validly made  and as  the detenu  has been  in detention for more than  one year  his continuance  in  detention  is  not sustainable. In the circumstances, we allow the petition. P.B. R.                                      Appeal allowed. 265