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PETITIONER: BHAWARLAL GANESHMALJI

       Vs.

RESPONDENT: STATE OF TAMIL NADU & ANR.

DATE OF JUDGMENT11/12/1978

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) UNTWALIA, N.L.

CITATION:  1979 AIR  541            1979 SCR  (2) 633  1979 SCC  (1) 465  CITATOR INFO :  APL        1990 SC 220  (6)  E&R        1990 SC1597  (15)  RF         1992 SC1900  (15)

ACT:      Conservation of  Foreign  Exchange  and  Prevention  of Smuggling Activities  Act 1974  - Order  of detention  made- Detenu absconded  for 3  years and later surredered-Live and proximate, link  between grounds of detention and purpose of detention-Whether snapped.      Constitution  of   India  1950-Article  22(5)-Order  of detention  made    on  the  basis  of  intelligence  report- Necessity to  disclose the  identity of  the author  of  the report and  the material on which the report is based-Detenu not claiming disclosure-Whether detenu can assail such order of detention.

HEADNOTE:      An order of detention under the Conservation of Foreign Exchange and  Prevention of  Smuggling Activities  Act, 1974 was passed  in December  1974 against  the appellant. But it could not  be executed because the detenu was absconding and could not  be apprehended’despite  a proclamation made under section 7  of the Act. More than three years after the order was passed, the appellant surrendered in February, 1978.      His  application  for  a  writ  of  habeas  corpus  was rejected by  the High  Court.  In  his  appeal  against  the judgment of  the High  Court as  well as in a petition under Art. 32  of the  Constitution  raising  grounds  not  raised before the  High Court,  the appellant  contended that ( I ) the detention  order made  more than  three years before its execution must  be considered  to have  lapsed without fresh application of  the mind  of the  detaining authority to the facts and  circumstances of  the  case,  (2)  all  the  four persons who  had made  statements  against  the  detenu  had resiled from  their earlier statements long before the order of detention  and the  failure of the detaining authority to consider  such   vital  material   vitiated  the   order  of detention. and  (3) the  detention order  was not based upon any "rationally  probative" material,  inasmuch  as  it  was based upon  an intelligence  report, not  disclosed  to  the detenu and that this had resulted in denial to the detenu of

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his fundamental right under Art. 22(5) of the Constitution      Dismissing the appeal and writ petition, ^      HELD: 1.  It  is  well  settled  that  the  purpose  of detention under the COFEPOSA is not punitive but preventive, that  is  to  say,  its  purpose  is  to  prevent  organised smuggling activities  and to  conserve and  augment  Foreign Exchange, that the maximum period of detention under the Act is one  year, and  that there  must be a ’live and proximate link’ between  the  grounds  of  detention  and  the  avowed purpose of detention. But in appropriate cases the Court can assume that  the link  is ’snapped’  if there  is a long and unexplained delay between the date of the order of detention and the arrest of the 634 detenu. Where the delay is not only adequately explained but is found  to be  the result  of the detenu’s recalcitrant or refractory conduct  in evading  arrest, there  is warrant to consider the ’link’ not snapped but strengthened. [638 B-D]      In the  instant case,  the order  was made in December, 1974. He  was absconding,  a proclamation  was published  in several leading  newspapers that  he was a person absconding and a  reward   was of offered for his apprehension. Despite all this  he could  not be  arrested until he surrendered in February, 1978. Therefore the submission pseud on  delay had no force. [638 E-F]      2. There  is no  force in  the contention that material facts which  might influence  the mind  of the authority one way or  the other,  were not  placed before it and that this vitiated the  order of  detention. The  detaining  authority took into  consideration the  circumstance that  there  were ’adjudication’ proceedings,  that  the  currency  which  the appellant was carrying was confiscated and that a penalty of Rs.5,000/- was  imposed on him. The order of adjudication by which the  currency was  confiscated and penalty was imposed did refer  to the  circumstance that  persons who  had  made incriminating statements against the detenu had resiled from those statements.[638 H-639B]      3. It cannot be said that the detenu had been denied  a reasonable opportunity  of making  a  representation  merely because particulars  which he  never desired in respect of a ground which  was not  vague were  not furnished to him. The ground was  specific enough.  If the  detenu wanted any more particulars such  as the name of the intelligence officer or other information,  he could  have  asked  for  them  before making his  representation. That he never did. It was not as if any  privilege had  been claimed  by  the  Government  in respect  of   the  intelligence  reports.  The  intelligence reports were  produce   before the High Court at the hearing of the writ petition. There was no complaint that the detenu wanted to peruse  the reports but was denied the opportunity of doing so. [649 B, 639 H-640 A]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 233 of 1978.      Appeal by  Special Leave  from the  Judgment and  Order dated the  20th April, 1978 of the Madras High Court in Writ Petition No. 988 of 1978.                             AND                WRIT PETITION NO. 4327 OF 1978       (Under Article 32 of the Constitution of India)      Ram Jethmalani  M. G. Kurnali and Vineet Kumar- for the

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Appellant/Petitioner.      A. V. Rangam for the Respondent. 635      The Judgment of the Court was delivered by      CHINNAPPA  REDDY,   J.  Bhawarlal   Ganeshmalji   whose application for  the issue  of a  Writ of  Habeas Corpus was rejected by  the High  Court of  Madras, is the appellant in Criminal Appeal  No. 233  of 1978.  He has  also filed  Writ Petition No.  4327 of 1978 for the issue of a Writ of Habeas Corpus under  Article 32 of the Constitution in which he has raised certain  grounds which had not been raised before the Madras High  Court. The  appeal and  the Writ  petition were heard together  by us  and are  disposed of  by this  common order.      The impugned detention order was made on 19th December, 1974 by the Government of Tamil Nadu and the grounds for the order were  contained in  a memorandum  dated 20th December, 1974 of the Government of Tamil Nadu. The order of detention could  not   be  executed   immediately  as  the  appellant- petitioner was  absconding  and  could  not  be  apprehended despite a  proclamation made  pursuant to  Section 7  of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,  1974.  The  appellant-petitioner,  however, surrendered  himself  before  the  Commissioner  of  Police, Madras on  1st February,  1978. First the order of detention and later  the grounds  of  detention  were  served  on  the appellant petitioner.      There were  two grounds  of  detention  which  were  as follows:           "(i) On  23-2-1972  an  inland  registered  parcel      bearing No.  325 emanating  from one T. Chowdiah No. 2,      Sanjeev appa Lane, Bangalore, and addressed to M/s. Raj      Metal House,  77, Mint  St. Madras  was intercepted  by      Preventive Officers of the Madras Customs at the Madras      General Post  Office and it was found to contain Indian      currency amounting  to Rs.1,20,000/-  and the  currency      was seized  under the  Customs Act.  Sukanraj, owner of      M/s. Raj  Metal House on being questioned admitted in a      written statement dated 23-2-1972 that the currency was      sent by  one R. G. Bhandari’s man from Bangalore, to be      received by  him and  handed over  to one  Bhoormal,  a      partner of R. G. Bhandari, residing with the latter. He      also stated  that he  knew well that R. G. Bhandari was      dealing  in  smuggled  gold  at  Ban  galore;  Sukanraj      further stated  that within  the previous two months, 5      or 6  parcels were  received by  him and by his brother      Motilal. Motilal  also gave an independent statement on      the same  day corroborating the facts mentioned  by his      brother that  R. G.  Bhandari was  dealing in  smuggled      gold and  that the  currencies in post parcels were the      sale proceeds  of smuggled gold. On enquiry at the Park      Town 636      Post Office  it was found that seven registered parcels      had been  delivered to M/s. Raj Metal Works between 18-      1-1972 and  17-2-1972 and  received either by Sukhanraj      or Motilal.           At Bangalore,  the premises at No. 2, Sanjeev appa      Lane the address mentioned on post parcel, was searched      on 23-2-1972.  T. Chowdiah,  the  sender  of  the  said      parcel was  not there.  But one Ghaverchand Samarthajee      was present.  He admitted  in his statement dated 24-2-      1972 that  he was  an employee of R. G. Bhandari and on      the latter’s  instructions he was disposing of smuggled      gold  in   Bangalore  on   behalf  of  his  master  and

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    despatching the  sale proceeds  to Madras.  The  postal      receipt bearing  the No.  325 Avenue  Road Post Office,      Bangalore, in respect of the parcel which was seized at      Madras was  also  seized.  This  and  his  confessional      statement revealed  that he  had previously  despatched      seven  registered  parcels  to  M/s.  Raj  Metal  Works      containing amounts  to the  tune of Rs.8,84,000/- using      the name of T.Chowdiah and that he had disposed of 3900      bars of  smuggled gold  valued at  Rs.80 lakhs within a      short time of less than a month. Bhawarlal, the servant      of   Bhoormal    in   Madras   identified   Ghaverchand      Samarthajee as  an employee  of R. B. Bhandari used for      gold smuggling  business at  Bangalore.  The  case  was      adjudicated and  the currency was confiscated. personal      penalty  of  Rs.5000/-  was  imposed  on  Thiru  R.  S.      Bhandari.           (ii)  On  20-4-1974,  40  bars  of  gold  weighing      23,274.100 grams valued at Rs.12,75,420/- was seized by      Thiru Ramanathan  Supdt. Central  Excise, Madras from a      secret vacity  of an  Ambassador can  MDE 9399  at  the      commercial Check  Post, Hosur. T. Ramamurthy of Porayar      (driver) and  Thiru Ganesan  occupied  the  car.  Their      statements revealed  that the  gold was  sent by  Sikku      Govidaswami of   Porayar,  a noted  transport agent for      contraband goods.  Ganesan also  admitted that  the car      with the  contraband was  to  be  handed  over  to  one      Marwari,  at  Bangalore  at  an  appointed  place.  The      intelligence report  dt. 17-4-74  and  19-4-74  by  the      Intelligence officer  tc the  . Directorate  of Revenue      Intelligence which  had been  received   earlier on the      basis of  which the  aforesaid car  was intercepted and      the  seizure  was  effected,  had  disclosed  that  the      Marwari referred to was R. G. Bhandari 637      Shri  Jethmalani   learned  Counsel   for  the   detenu submitted that  the order  of detention  which was made more than three  years before its execution must be considered to have lapsed  or ceased  to  be  effective  without  a  fresh application of  the mind  of the  detaining authority to the facts and  circumstances of  the case  and the necessity for preventive  detention.   Otherwise,  the   learned   Counsel submitted the order of preventive detention would change its character and  be-  come  an  order  of  punishment  for  an unproven crime.  In regard  to the first ground mentioned in the  Memorandum  of  the  Government,  the  learned  Counsel submitted that  all the four persons who had made statements on 23rd  February, 1972  and 24th  February, 1972, and which were the  basis of  the first ground, had resiled from their statements long  before the order of detention was made. The circumstance that all of them had resiled from their earlier statements was  not brought  to the  notice of the detaining authority and  the failure  of the  detaining  authority  to consider  such   vital  material   before  arriving  at  its subjective satisfaction  vitiated the ground and, therefore, the order  of detention  itself. Shri  Jethmalani urged that the order  of detention  had necessarily  to be  struck down even if  a single ground out of many was bad since the order had been  made at a time when Section 5A of the COFEPOSA had not yet been brought into the Statute Book. In regard to the second ground of detention the submission of Shri Jethmalani was that  it was  not based  upon any "rationally probative" material The  ground was  invalid inasmuch  as it  was based upon an  intelligence report.  It was further contended that the ground  would  be  innocuous  without  the  aid  of  the intelligence report mentioned therein and since no privilege

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was claimed  in respect  of  the  intelligence  report,  the identity of  the author  of  the  report  should  have  been disclosed as  also the  material on  which  the  report  was based. Failure  to do  so had  resulted in  a denial  of the petitioner’s fundamental  right, under  Article 22(5) of the Constitution.      Shri A.  V. Rangam,  learned Counsel  for the  State of Tamil Nadu  urged that  the appellant-petitioner was himself responsible for the long delay in the execution of the order of detention  and he  could not be allowed to take advantage of his  own wrong.  With  regard  to  the  first  ground  of detention  he  submitted  that  the  circumstance  that  the persons who  had incriminated  the detenu  had resiled  from their  former   statements  had   been  mentioned   in   the judication order  passed by the Customs authorities and that order had  been placed before the detaining authority before the order  of detention  was made.  In regard  to the second ground of  detention the  learned Counsel argued that it was not based merely on the intelligence 638 report and  in any  case, since no privilege was claimed, it was always  open to  the  detenu  to  have  asked  for  more particulars if he so desired, but which he failed to do.      It is  true that  the purpose  of detention  under  the COFEPOSA is  not punitive  but preventive. The purpose is to prevent organised  smuggling activities  and to conserve and augment Foreign Exchange. It is true that the maximum period for which a person may be detained under the COFEPOSA is one year. It  is further  true 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.  We may  in appropriate cases assume that the link is ’snapped’ if there is a  long and  unexplained delay  between the  date of  the order of  detention and  the arrest of the detenu. In such a case we  may strike  down an  order of  detention unless the grounds indicate  a fresh  application of  the mind  of  the detaining authority  to the  new situation  and the  changed circumstances. But  where the  delay is  not only adequately explained but  is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is  warrant   to  consider   the  ’link’   not  snapped  but strengthened. That,  precisely,  is  the  state  of  affairs before us. The order of detention was made on 19th December, 1974. The  detenu was  found to  be absconding.  Action  was taken pursuant  to Section  7 of  the COFEPOSA  and  he  was proclaimed as  a person  absconding under  Section 82 of the Criminal Procedure  Code. The  proclamation was published in several leading English and local language daily newspapers. His photograph was exhibited in Cinema halls A reward of Rs. 5.000/- was also announced for his apprehension. Despite all this effort he could not be arrested until he surrendered on 1st February,   1978. We do not have any hesitation in over- ruling the  submission of Shri Jethmalani based on the delay in the execution of the order of detention      The second submission made on behalf of the detenu that the detaining  authority had  not before it the circumstance that the  four persons  who had  made statements implicating the detenu     had later,  but  long  before  the  order  of detention, resiled  from their  statements is also devoid of force. The  proposition that the failure to place before the detaining authority  relevant and  material facts  which may influence the  mind of  such authority  one way or the other will vitiate  the order of detention is unexceptionable. But a perusal  of the  first ground  of detention shows that the

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detaining authority took into 639 consideration   the    circumstance    that    there    were ’adjudication’   proceedings,    that   the   currency   was confiscated and  that a penalty of Rs.5,000/- was imposed on the detenu.  It was  not disputed  and it was not alleged in the petition  that the  order of  adjudication by  which the currency was  confiscated and  penalty was imposed did refer to the  circumstance that persons who had made incriminating statements  against   the  detenu  had  resiled  from  those statements. The  circumstance that  persons who  had earlier incriminated  the   detenu  had  later  resiled  from  those statements was  therefore   before the  detaining authority. There is  thus no  factual foundation for this submission of the learned Counsel, which we accordingly reject.      We now  proceed to  consider the last submission of the learned Counsel  based on  the reference  to the contents of the intelligence  report in  the second ground of detention. It was  pointed out by the petitioner’s learned Counsel that the statement  of Ramamurthy  and Ganesan merely showed that the contraband was to be delivered to a Marwari at Bangalore at an  appointed place. It was the intelligence report alone that fixed  the identity  of  the  Marwari  as  the  detenu. Without the  intelligence report  it would  be impossible to connect the detenu with  the person mentioned as the Marwari in  the  statements  of  Ganesan  and  Ramamurthy.  Now  the submission of  the learned  Counsel was that the identity of the author  of the intelligence report as well as the report and the material on which the report was based ought to have been  disclosed   to  the   detenu  if  the  detenu  was  to effectively exercise  his fundamental  right  under  Article 22(5) of  the Constitution  and  to  make  a  representation against the  order of  detention We  agree with  the learned Counsel  for   the  petitioner  that  in  order  to  make  a representation against  the order  of detention  and thus to exercise the  fundamental right  guaranteed by Article 22(5) of the  Constitution, a  detenu is entitled to be  furnished with all  essential particulars  forming the  basis  of  the grounds of  detention. so  it  is  that  where  insufficient particulars are  mentioned in  the grounds,  the  detenu  is entitled to  call for  better particulars.  That is  a right which flows  from the  Constitutional right to be afforded a reasonable opportunity  to make  representation. Of  course, where the  grounds are vague. no question would arise of the detenu asking  for better  particulars. But the present case is not  a case  of a  vague ground.  The ground  is specific enough. If  the detenu  wanted any  more particulars such as the name  of the  intelligence officer or other information, he could  have well asked for the particulars before  making his representation.  That he never did. It was not as if any privilege had  been claimed  by the Government in respect of the 640 intelligence reports. In fact, we find that the intelligence reports were  produced before the learned Judges of the High Court at  the hearing  of the Writ Petition there. There was no complaint before us that the detenu or his Counsel wanted to peruse  the reports  and were  denied the  opportunity of doing so.  We do  not think that the detenu could be said to have been  denied  a  reasonable  opportunity  of  making  a representation merely  because particulars  which  he  neyer desired in  respect of a ground which was not vague were not furnished to  him. We  are unable to see any force in any of the submissions advanced on behalf of the detenu.      In the  result, we  reject  the  appeal  and  the  writ

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petition. N.V.K.                           Appeal & petition dismissed 641