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PETITIONER: M. AHAMEDKUTTY.

       Vs.

RESPONDENT: UNION OF INDIA & ANR.

DATE OF JUDGMENT31/01/1990

BENCH: SAIKIA, K.N. (J) BENCH: SAIKIA, K.N. (J) RANGNATHAN, S.

CITATION:  1990 SCR  (1) 209        1990 SCC  (2)   1  JT 1990 (1)   143        1990 SCALE  (1)108

ACT:     Conservation  of  Foreign  Exchange  and  Prevention  of Smuggling Activities Act, 1974: Sections 3, 9 and 10--Deten- tion  order--Validity  of--Necessity  to  supply   documents relied on by detaining authority to detenu--Prolongation  of period of detention--Necessity to place facts and  materials that occurred between date of detention and date of declara- tion before detaining authority.

HEADNOTE:     After  the appellant landed at Trivandrum  Airport  from Abu  Dhabi,  he  was intercepted by  the  Customs  officials detecting that he smuggled 1280 gms. of gold. He was arrest- ed on 31.1.1988. On 12.2.1988 he was granted bail on certain conditions.     With  a view to preventing the appellant from  smuggling gold, the impugned detention order was passed against him on 25.6.1988  by the Home Secretary, Government of  Kerala,  in exercise  of the powers conferred by section 3(1)(i) of  the Conservation of Foreign Exchange and Prevention of Smuggling Activities  Act, 1974. The appellant was taken into  custody on  2.8.1988.  The Appropriate Authority  and  the  Advisory Board found sufficient cause for his detention.     The  detenu  challenged his detention  moving  a  Habeas Corpus petition under Article 226 of the Constitution,  read with section 482, Cr.P.C., which was dismissed in limine  by the High Court.     Before this Court. the main grounds of challenge to  the detention  order  were that (1) after the  event  there  was inordinate delay in passing the detention order which showed that there was no genuine. need for detention of the  appel- lant;  (2) there was inordinate and unexplained delay of  38 days in execution of the detention order; (3) all the  docu- ments and materials, particularly the appellants bail appli- cation, the bail order, the show cause notice and his  reply thereto were not placed before the detaining authority;  (4) these  documents and the fact that the appellant’s  old  and new passports were seized and without those it would not  be possible  for the appellant to carry on smuggling, were  not brought  to the notice of the declaring authority;  and  (5) there was 210

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non-application of mind.     On behalf of the State of Kerala it was submitted, inter alia,  that (1) there was no such delay between the date  of detection and the date of passing the order of detention  so as  to make the grounds stale or to snap’ the relation;  (2) that the delay in execution of the detention order had  been explained; and (3) that the bail application as well as  the bail  order were placed before the detaining  authority  but the  same  having not been referred to or relied on  by  the detaining authority, copies thereof were not required to  be furnished to the detenu along with the grounds of detention.     On  behalf of the Union of India it was  submitted  that all  the  documents and materials that were required  to  be placed  before the declaring authority were duly placed  and on  consideration  of the relevant materials  the  declaring authority validly made the declaration.     Allowing  the  appeal  and setting aside  the  order  of detention, this Court,     HELD:  (1)  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. Under a law like the  COFE- POSA Act enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeer- ing 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. [217B-E]

JUDGMENT:     Ashok  Narain v. Union of India, [1982] 2 SCC 437;  Smt. Rekhaben Virendra Kapadia v. State of Gujarat, [1979] 2  SCC 566; Sheikh Salim v. The State of West Bengal, [1975] 1  SCC 653;  Rajendrakumar  Natvarlal  Shah v.  State  of  Gujarat, [1988]  3  S.C.C.  153; Olia Mallick v. The  State  of  West Bengal, [1974] 1 SCC 594; Golam Hussain v. The  Commissioner of  Police, [1974] 3 SCR 613; Odut Ali Miah v. The State  of West  Bengal, [1974] 4 SCC 129; Vijay Narain Singh v.  State of Bihar, 211 [1984] 3 SCC 14; Gora v. State of West Bengal, [1975] 2  SCR 996;  Rai Kumar Singh v. State of Bihar, [1986] 4  SCC  407; Smt. Hemlata Kantilal Shah v. State of Maharasthra, [1981] 4 SCC 647, referred to.     (2)  In appropriate cases it could be assumed  that  the link  was snapped if there was a long and unexplained  delay between the date of order of detention and the arrest of the detenu  and in such a case the order of detention  could  be struck down unless the grounds indicated a fresh application of mind of the detaining authority to the new situation  and the  changed circumstances. But where the delay is not  only adequately  explained but also is found to be the result  of the  recalcitrant  or refractory conduct of  the  detenu  in evading arrest, there is warrant to consider the ’link’  not snapped but strengthened. [219C-D]     Mohammed Saleem v. Union of India, [1989] 3 Delhi Lawyer

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77;  Bhawarlal Ganeshmalji v. State of Tamil Nadu, [1979]  1 SCC 465; Shafiq Ahmad v. District Magistrate, Meerut, [1989] 4 SCC 556, referred to.     (3)  Seizure of the detenu’s passports was no doubt  one of  the  factors that the detaining  authority  should  have taken  (and did in fact take) into account, but it  was  for him  to assess the weight to be attached to such  a  circum- stance in arriving at his final decision and it is not  open to  the Court to interfere with the merits of his  decision. [221E-F]     (4)  From the records it appears that the bail  applica- tion  and  the bail order were furnished  to  the  detaining authority  on  his enquiry. It is difficult,  therefore,  to accept  the  submission of the State Government  that  those were not relied on by the detaining authority. [223A-B]     (5)  The constitutional requirement of Article 22(5)  is that  all the basic facts and particulars  which  influenced the detaining authority in arriving at the requisite  satis- faction leading to making the detention order must be commu- nicated to the detenu so that the detenu may have an  oppor- tunity  of  making an effective representation  against  the order  of  detention. It is immaterial  whether  the  detenu already knew about their contents or not. [223E-F]     Ramchandra  A.  Kamat v. Union of India,  [1980]  2  SCR 1072;  Frances Coralia Muffin v. W.C. Khambra. [1980] 2  SCR 1095;  Smt. Ichhu Devi Choraria v. Union Of India, [1981]  1 SCR  640; Pritam Nath Hoon v. Union of India, [1981]  1  SCR 682;  Shri  Tushar Thakkar v. Union of India, [1980]  4  SCC 499; Lallubhai Jogibhai Patel v. Union of 212 India, [1981] 2 SCC 427; Kirit Kumar Chaman Lal Kundaliya v. Union of India, [1981] 2 SCC 436; Smt. Ana Carolina  D’Souza v. Union of India, [1981] Suppl. SCC 53; Mehrunissa v. State of  Maharashtra,  [1981]  2 SCC 709; Mohd.  Zakir  v.  Delhi Administration, [1982] 3 SCC 216 and Khudiram Das  v.  State of West Bengal, [1975] 2 SCR 832, referred to.     (6) If the documents which formed the basis of the order of  detention were not served on the detenu along  with  the grounds  of detention, in the eye of law there would  be  no service  of the grounds of detention and  that  circumstance would  vitiate  his detention and make it  void  ab  initio. [225D-E]     State of U.P. v. Kamal Kishore Saini, [1988] 1 SCC  287; Union  of India v. Manoharlal Narang, [1987] 2 SCC  241;  S. Gurdip Singh v. Union of India, [1981] 2 SCC 419; Ichhu Devi Choraria  v. Union of India, [1981] 1 SCR 640; Smt.  Shalini Soni v. Union of India, [1981] 1 SCR 962, referred to.     Haridas  Amarchand Shah v. K.L. Verma, [1989] 1 SCC  250 distinguished.     (7)  The  bail application and the bail  order,  in  the instant  case,  were vital materials for  consideration.  If those were not considered the satisfaction of the  detaining authority itself would have been impaired, and if those  had been  considered, they would be documents relied on  by  the detaining authority though not specifically mentioned in the annexure  to the order of detention and those ought to  have formed part of the documents supplied to the detenu with the grounds of detention and without them the grounds themselves could not be said to have been complete.[226A-B]      (8) There is no alternative but to hold that non-supply of  essential documents to the detenu amounted to denial  of the  detenu’s right to make an effective representation  and that  it resulted in violation of Article 22(5) of the  Con- stitution  rendered  the continue detention  of  the  detenu illegal  and  entitling  the detenu to be  set  at  liberty.

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[226B-C]      (9)  Sections  9 and 10 of the COFEPOSA  Act  imply  an obligation  on the part of the detaining authority to  place the  facts and materials that occurred between the  date  of detention  and  the date of declaration, so  as  to  justify prolongation of the period of detention. [228D-E] 213      Smt.  Rekhaben Virendra Kapadia  v. State of Gujarat  & Ors., [1979] 2 SCC 566; Smt. Madhu Khanna  v. Administrator, Union Territory of Delhi, [1986] 4 SCC 240, referred to.      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 49 of 1990.     From  the  Judgment and Order dated 13.2.1989  of  Delhi High Court in Crl. W. No. 25 of 1989.     S.R.  Setia, C.S. Vaidyanathan and K.V. Viswanathan  for the Appellant.     V.C.  Mahajan,  Ms. Sushma Suri, P.  Parmeshwaran,  A.K. Srivastava and T.T. Kunhikannan for the Respondents. The Judgment of the Court was delivered by K.N. SAIKIA, J. Special leave granted.     After  the Appellant landed at Trivandrum  Airport  from Abu  Dhabi,  he  was intercepted by  the  customs  officials detecting that he smuggled 13 gold sheets weighing 1280 gms. valued at Rs.4,26,240 concealed inside the plywood panels of his blue suitcase which was seized along with his two  pass- ports,  old  and new. He was arrested on 31-1-1988  and  was produced  before  the Chief  Judicial  Magistrate  (Economic Offences)  Ernakulam  who remanded him to  judicial  custody till  12-2-1988. On 12-2-1988 he was granted bail on  condi- tion,  inter   alia,  that  he  would  report   before   the Superintendent  (Intelligence)  Air Customs,  Trivandrum  on every Wednesday until further orders, and that he would  not change  his residence without prior permission of  Court  to "25-2-1988."  The impugned detention order  dated  25-6-1988 was  passed by the Home Secretary, Government of Kerala.  It stated  that  the Government of Kerala  was  satisfied  with respect to the appellant that with a view to preventing  him from  smuggling  gold it was necessary to  detain  him  and, therefore,  in  exercise  of  powers  conferred  by  section 3(1)(i) of the Conservation of Foreign Exchange and  Preven- tion  of Smuggling Activities Act, 1974 (Central Act  52  of 1974),  hereinafter  referred to as ’the COFEPOSA  Act,  the Government  of Kerala directed that he be detained and  kept in custody in the Central Prison, Trivandrum. The grounds of detention,  which  were also served, inter  alia,  gave  the details  as  to how the smuggled gold was  detected  in  his possession having been smuggled 214 into  India  in violation of the provisions of  the  Customs Act, 1962, Foreign Exchange Regulation Act, 1973 and  Import and  Export Control Act, 1947; what were his  statements  at the  time of seizure of his blue suitcase, his new  and  old passports and the air ticket used for the journey from Dubai to Trivandrum and the return open air ticket from Bombay  to Abu  Dhabi; and the gist of his statements given  on  30/31- 1988  under section 108 of the Customs Act, 1962 before  the Intelligence Superintendent, Air Customs, Trivandrum. It was also  stated that after his arrest on 31-1-1988 he was  pro- duced  before  the  Additional  Chief  Judicial   Magistrate (Economic  Offences) Ernakulam on the same date and  he  was remanded  to judicial custody and was subsequently  released on bail; and that even though the departmental  adjudication and  prosecution proceedings under Customs Act were  pending against  him, the detaining authority was satisfied that  he should be detained under section 3(1)(i) of the COFEPOSA Act

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with  a view to prevent him from smuggling gold  to  Trivan- drum.  On 23-8-1988 the appropriate authority declared  that he was satisfied that the detenu was likely to smuggle goods into and through Trivandrum Airport which was an area highly vulnerable  to  smuggling  as defined in  Explanation  1  to section  9(1) of the COFEPOSA Act. On 24th September,  1988, the detenu appeared before the Advisory Board which reported that there was sufficient cause for his detention.     The  detenu  challenged his detention  moving  a  Habeas Corpus  petition  under Article 226 of the  Constitution  of India  read with section 483 Cr. C.P. in the High  Court  of Delhi  and  the  same having been dismissed  in  limine  the appellant appeals therefrom by special leave. In para 11  of the  Special  Leave  Petition it has been  stated  that  the various  grounds urged in the writ petition before the  High Court  have  also been added in this petition and  the  writ petition  itself has been annexed as Vol. II to the  Special Leave Petition.     The  main grounds on which the detention order is  being challenged by the learned counsel for the appellant Mr. C.S. Vaidyanathan, inter alia, are that after the event there was inordinate delay in passing the detention order which showed that  there was no genuine need for detention of the  appel- lant; that there was inordinate and unexplained delay of  38 days  in  execution  of the detention order;  that  all  the documents  and materials, particularly the appellant’s  bail application,  the bail order, the show cause notice and  his reply thereto were not placed before the detaining  authori- ty;  that these documents and the fact that the  appellant’s old and new passports were seized and without those it would not be possible for the appellant to carry on 215 smuggling  were not brought to the notice of  the  declaring authority and ’,hat there was non-application of mind.     Mr. T.T. Kunhikannan, the learned counsel for the  State of Kerala submits, inter alia, that there was no such  delay between  the date of detention and the date of  passing  the impugned order of detention as to make the grounds stale  or to  snap  the relation; that the delay in execution  of  the detention  order has been explained; that the bail  applica- tion  as well as the bail order were placed before  the  de- taining  authority but the same having not been referred  to or relied on by the detaining authority the copy thereof was not  required to be furnished to the detenu along  with  the grounds of detention; that all the papers which were  placed before  the  detaining authority for passing  the  order  of detention  were also placed before the  declaring  authority and it was not necessary to place the show cause notice  and the  detenu’s  reply thereto; and that the  detention  order suffered  from  no infirmity whatsoever and this  appeal  is liable to be dismissed. Mr. V.C. Mahajan, the learned  coun- sel for the Union of India emphatically submits that all the documents  and  materials that were required  to  be  placed before  the  declaring  authority were duly  placed  and  on consideration  of the relevant materials the  declaring  au- thority  validly made the declaration which was,  therefore, unassailable.     We  now  take  the first submission,  namely,  delay  in passing the detention order. Mr. Vaidyanathan, referring  to paragraph  6  of the Writ Petition, submits that  while  the interception  and  seizure took place on 30-1-1988  and  the detenu  was  arrested formally on 31-1-1988,  the  detention order  was  passed only 25-6-1988 and  this  delay  remained unexplained  and  as  such there was no  nexus  between  the incident  and the detention. In the counter affidavit  filed

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in this Court there is no specific denial on this point. Mr. Kunhikannan submits that it so happened because this  ground was  not taken in the Special Leave Petition. The  appellant having  stated that the grounds urged in the  Writ  Petition should also be added, it cannot be said that this ground was not  taken. Of course when other ground surged in  the  Writ Petition  have also been taken specifically in  the  Special Leave  Petition this ground could also have been  so  taken. However, on the basis of the Records Mr. Kunhikannan submits that  the Collector of Customs sent the proposal for  deten- tion  on  27-5-1988 along with the draft  grounds,  and  the Screening  Committee  meeting proposed to be  held  on  10th June, 1988 was postponed and was held on 21-6-1988 on  which date  the detenu’s case was considered to be fit for  deten- tion  under the COFEPOSA Act. It is submitted for the  State that thorough investigation of the case was 216 required on the part of the Customs authorities both for the proceedings under the Customs Act and for prosecution in the criminal Court, and as such the proposal could not have been hurried  through.  These  facts have not been  shown  to  be untrue.  Under the above circumstances can it reasonably  be held that the nexus between the Smuggling Act and the deten- tion order was snapped or that the grounds became stale?     Where  the  seemingly long time taken  for  passing  the detention  order after the prejudicial act is the result  of full  and  detailed investigation and consideration  of  the facts  of the case, the ground cannot be held to  be  remote and  the detention cannot be held to be bad on that  ground. In Ashok Narain  v. Union of India, [1982] 2 SCC 437,  where the  detenu was apprehended for breach of  Foreign  Exchange Regulation  in  February,  1981 and  without  launching  any prosecution  the  detenu was detained in October,  1981  the passage  of time being the result of full and detailed  con- sideration  of  facts and circumstances of  the  case  after thorough examination at various levels, this Court  observed that it could not be said that the detention was in any  way illegal  inasmuch as the detaining authority had  fully  and satisfactorily  applied his mind to the question  of  deten- tion.     As was held in Smt. Rekhaben Virendra Kapadia  v.  State of  Gujarat, [1979] 2 SCC 566, whether the time lag  between the  commission of the offence and the detention was  enough to snap the reasonable nexus between the prejudicial activi- ty and the purpose of detention would depend upon the  facts of  each case. The test of proximity is not a rigid  or  me- chanical  calendar  test  to be blindly  applied  by  merely counting the number of months and days between the offending act and the order of detention. The question is whether  the past  activities of the detenu were such that the  detaining authority  could reasonably come to the conclusion that  the detenu was likely to continue in his unlawful activities.     In Sheikh Salirn  v. The State of West Bengal, [1975]  1 SCC  653, there was a gap of about 4 months in between.  The explanation  of  the interval was that  the  petitioner  was being  prosecuted and the order of discharge had to  be  ob- tained on June 17, 1972. The order of detention was passed 4 days  before the order of discharge was passed.  This  Court repelling  the contention observed: "We do not suppose  that the length time which a decision takes necessarily  reflects the care or openness brought to bear upon it." 217     In  Rajendrakumar Natvarlal Shah  v. State  of  Gujarat, [1988]  3  SCC 153, even unexplained delay (of 5  months  in that  case) in making the order against  economic  offenders

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under the COFEPOSA Act or other anti-social elements such as those  involved  in illicit traffic in  liquor  trade  under Gujarat  Prevention  of Anti-Social  Activities  Act  having large  resources  and influence, it was held, would  not  be sufficient  to  vitiate the order if the  grounds  were  not stale  and  the nexus between the grounds and the  order  of detention still existed. It was observed 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 COFEPOSA Act and the delay in complying with the  proce- dural  safeguards of Article 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. Mere delay in making of an order of  deten- tion  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  war- ranted 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. This Court reiterat- ed  what  was stated in Olia Mallick  v. The State  of  West Bengal, [1974] 1 SCC 594; Golam Hussain  v. The Commissioner of Police, [1974] 3 SCR 613; Odut Ali Miah  v. The State  of West  Bengal,  [1974] 4 SCC 129 and Vijay Narain  Singh   v. State of Bihar, [1984] 3 SCC 14. The Court also referred  to Gora  v. State of West Bengal, [1975] 2 SCR 996;  Raj  Kumar Singh  v. State of Bihar, [1986] 4 SCC 407 and Smt.  Hemlata Kantilal Shah  v. State of Maharashtra, [1981] 4 SCC 647.     Applying the law enunciated and settled by the foregoing decisions we are of the view that in this case,  considering the given explanation of the period in between the intercep- tion on 30-1-1988 and the 218 order  of detention on 25-6-1988 the nexus was  not  snapped and  the  ground  was not rendered stale and  the  order  of detention  was not rendered invalid thereby. The  submission is accordingly rejected.     As  regards the submission as to delay in  execution  it was  urged. that there was inordinate and unexplained  delay in  execution of the detention order passed on 25-6-1988  as the  detenu was taken into custody only on 2-8-1988  despite the fact that the detenu was reporting in compliance of  the bail  order. Relying on a full bench decision of  the  Delhi High  Court  in Mohammed Saleem  v. Union  of  India,  since reported  in 1989(3) Delhi Lawyer 77, it is  submitted  that this delay of 38 days was indicative of the fact that  there was  no  genuine need for the detention order.  This  ground though taken in the Writ Petition was not repeated  specifi- cally  in  the Special Leave Petition  and  Mr.  Kunhikannan prayed for an opportunity, for filing an additional  counter

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affidavit, which we declined. However, explaining the  delay counsel  points out from the Records that on  27-6-1988  the Home Secretary wrote to the Superintendent of Police, Malap- uram,  with detailed instructions requesting him to  arrange for  the  immediate  execution of the  detention  order.  On 19-7-1988 a teleprinter message was sent by the Home  Secre- tary  to  the Superintendent of Police, in the nature  of  a reminder,  requesting that the person be immediately  appre- hended and compliance reported and that the delay in  execu- tion  may also be reported. On 27-7-1988 the  Superintendent of  Police, Malapuram wrote back to the Home Secretary  that the detention order could not be executed since the  warran- tee  was absconding and his ’present’ whereabouts  were  not known  and  that the C.I. had been instructed  to  make  all possible efforts to apprehend the warrantee. On 2-8-1988 the Superintendent of Police, Malapuram sent a wireless  message to  the Home Secretary stating that the detention order  had been  served on the detenu on 2-8-1988 at his residence  and his  acknowledgement  obtained and he had been sent  to  the Central  Prison, Trivandrum. Mr.  Vaidyanathan’s  submission that  the detenu could not have been absconding in  view  of his  reporting as required by the bail order is not  accept- able. The second condition in the bail order said: "that  he will not change residents without prior permission of  Court to  25-2-1988".  There was no mention regarding  the  period thereafter.  There is also no statement in the affidavit  to the  effect that the detenu was all along available  at  his residence  or that he had not changed it. But even  assuming that he was residing there, there is no reason to disbelieve the  statement of the police that they were unable  to  find him earlier than they actually did. 219     Where  the passage of time is caused by the detenu  him- self  by absconding, the satisfaction of the  detaining  au- thority  cannot be doubted and the detention cannot be  held to be bad on that ground. In Bhawarlal Ganeshmalji  v. State of Tamil Nadu and Anr.,  [1979] 1 SCC 465, where the  appel- lant  had been evading arrest and surrendering  after  three years of the making of order of detention under the COFEPOSA Act  the order was held to be still effective as the  detenu himself was to be blamed for the delay. This Court  observed that  there must be a ’live and proximate link’ between  the grounds of detention alleged by the detaining authority  and the  avowed purpose of detention, namely, the prevention  of smuggling  activities.  In  appropriate cases  it  could  be assumed  that the link was snapped if there was a  long  and unexplained delay between the date of order of detention and the  arrest  of the detenu and in such a case the  order  of detention could be struck down unless the grounds  indicated a  fresh application of mind of the detaining  authority  to the  new situation and the changed circumstances. But  where the delay is not only adequately explained but also is found to  be the result of the recalcitrant or refractory  conduct of the detenu in evading arrest, there is warrant to consid- er the ’link’ not snapped but strengthened. In that case the order of detention was made on December 19, 1974. The detenu was  found  to be absconding. Action was taken  pursuant  to section  7  of the COFEPOSA Act 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 daily newspapers. Several other steps were taken  despite which he could not be arrested until he  sur- rendered himself on February 1, 1978.     In Shafiq Ahmad v. District Magistrate, Meerut, [989]  4 SCC  556, relied on by appellant, it has been  clearly  held

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that what amounts to unreasonable delay depends on facts and circumstances  of each case. Where reason for the delay  was stated to be abscondence of the detenu, mere failure on  the part  of the authorities to take action under section  7  of the  National Security Act by itself was not  sufficient  to vitiate the order in view of the fact that the Police  force remained  extremely  busy in tackling the  serious  law  and order  problem.  However  it was not accepted  as  a  proper explanation  for the delay in arresting the detenu. In  that case  the alleged incidents were on April 2/3/9,  1988.  The detention order was passed on April 15, 1988 and the  detenu was  arrested  on October 2, 1988. The submission  was  that there  was  inordinate  delay in  arresting  the  petitioner pursuant  to the order and that it indicated that the  order was  not  based on a bona fide and genuine belief  that  the action or conduct of the petitioner were 220 such  that the same were prejudicial to the  maintenance  of public  order. Sabyasachi Mukharji J., as my Lord the  Chief Justice then was, observed that whether there was unreasona- ble  delay  or not would depend upon the facts  and  circum- stances of a particular situation and if in a situation  the person concerned was not available and could not be  served, then  the mere fact that the action under section 7  of  the Act  had not been taken, would not be a ground  for  holding that  the  detention order was bad. Failure to  take  action even if there was no scope for action under section 7 of the COFEPOSA Act, would not by itself be a decisive or  determi- native  of  the question-whether there was  undue  delay  in serving the order of detention.     In Shafiq’s case the affidavit affirmed by the detaining authority  showed  that several raids  of  the  petitioner’s premises  for the service of the order dated 15-4-1988  were conducted and the authorities had made all efforts to  serve the order on the detenu, but he was all along absconding and the  house of the petitioner for this purpose was raided  on several occasions. However, in view of the fact that in that case from April 15, 1988 to May 12, 1988 no attempt had been made  to contact or arrest the petitioner and there  was  no explanation as to why from September 27, 1988 to October  2, 1988  no attempt had been made, there was unexplained  delay and  it  was, therefore, not possible for the  Court  to  be satisfied that the District Magistrate had applied his  mind and  arrived at the subjective satisfaction that  there  was genuine  need  for detention of the  detenu.  The  detention order was accordingly quashed.      We have already noted how in the instant case the  Home Secretary  sent detailed instructions to the  Superintendent of  Police, Malapuram on 27-6-1988 and sent the  teleprinter message on 19-7-1988 and the Superintendent of Police  wrote back on 27-7-1988 stating that the detenu was absconding and his whereabouts were not known and all possible efforts were being made to execute the order and on 2-8-1988 the Superin- tendent  of  Police reported that the order  was  served  on 2-8-1988  at his residence and that he was sent to the  Cen- tral Prison, Trivandrum. Though it could not be denied  that the detenu was reporting before the Superintendent (Intelli- gence)  Air  Customs,  Trivandrum on  every  Wednesday,  the Superintendent of Police, Malapuram apparently was not aware of it. Under the above facts and circumstances we are of the view  that there was no inordinate and unexplained delay  in the  period of 38 days between the detention order  and  its execution  so  as to snap the nexus between the  two  or  to render  the grounds stale or to indicate that the  detaining authority was

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221 not  satisfied as to the genuine need for detention  of  the detenu. This submission is accordingly rejected.     We may pause here to point out that the circumstances in the  present case seem to indicate a certain degree of  lack of coordination between the detaining authorities and  those entrusted with the execution of the detention order. This is clearly  seen  from two circumstances in the  present  case. Though  the  detention order was sent for service  on  27-6- 1988,  a reminder was issued only on 19-7-1988.  Apparently, the  Superintendent  of Police was finding it  difficult  to trace the detenu but he did not report this immediately  and mentioned  it to the detaining authority only on  27-7-1988. He was obviously not aware that, under the terms of the bail order  the  detenu had to report every week at  the  Customs Office. If he had reported his difficulty earlier or if  the detaining  authorities had apprised him of the terms of  the bail  order,  it would have been possible to  have  had  the detention  order  served earlier. These  communication  gaps should, we think, be avoided since it is of the very essence of  a  detention order to have it served  at  the  earliest. While  we  have  accepted the explanation  tendered  in  the present  case  for this delay, we would like  the  State  to ensure  that such delays do not occur as, apart from  giving the detenu a ground for attacking the detention order.  such delay really tends to frustrate and defeat the very  purpose of preventive detention.     The  next submission of counsel was that  the  detaining authority  should  have  realised that the  seizure  of  the detenu’s passports was by itself sufficient to restrain  the detenu’s  smuggling activities, if any, and  refrained  from passing  the  order of detention. We see no  force  in  this contention.  This was no doubt one of the factors  that  the detaining authority should have taken (and did in fact take) into  account but it was for him to assess the weight to  be attached  to  such a circumstance in arriving at  his  final decision  and  it is not open to us to  interfere  with  the merits  of his decision. We, therefore, reject this  conten- tion of Mr. Vaidyanathan.     The  next submission is that of non-supply of  the  bail application and the bail order. This Court, as was  observed in Mangalbhai Motiram Patel v. State of Maharashtra,  [1981] 1  SCR 852, has ’forged’ certain procedural  safeguards  for citizens  under  preventive  detention.  The  Constitutional imperatives in Article 22(5) are two-fold: (a) The detaining authority must, as soon as may be i.e. as soon as  practica- ble,  after  the  detention communicate to  the  detenu  the grounds  on which the order of detention has been made,  and (2) the detaining authority 222 must  afford the detenu the earliest opportunity  of  making the representation against the order of detention. The right is  to make an effective representation and when some  docu- ments are referred to or relied on in the grounds of  deten- tion,  without  copies  of such documents,  the  grounds  of detention would not be complete. The detenu has,  therefore, the  right  to be furnished with the  grounds  of  detention along  with  the documents so referred to or relied  on.  If there is failure or even delay in furnishing those documents it would amount to denial of the right to make an  effective representation.  This  has been settled by a  long  line  of decisions:  Ramachandra A. Kamat v. Union of  India,  [1980] (2)  SCR  1072; Frances Coralie Mullin  v. W.C.  Kharnbra  & Ors., [1980] 2 SCR 1095; Smt. Ichhu Devi Chararia  v.  Union of India, [1981]

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   SCR  640; Pritam Nath Hoon  v. Union of India, [1981]  1 SCR  682; Shri Tushar Thakkar  v. Union of India,  [1980]  4 SCC 499; Lallubhai Jogibhai Patel  v. Union of India, [1981] 2  SCC  427; Kirit Kumar Chaman Lal Kundaliya  v.  Union  of India,  [1981] 2 SCC 436 and Smt. Ana Carelina  D’Souza   v. Union of India, [1981] Suppl. SCC 53.     It  is immaterial whether the detenu already knew  about their contents or not. In Mehrunissa  v. State of  Maharash- tra,  [1981] 2 SCC 709, it was held that the fact  that  the detenu  was aware of the contents of the documents not  fur- nished was immaterial and non-furnishing of the copy of  the seizure list was held to be fatal. To appreciate this  point one  has to bear in mind that the detenu is in jail and  has no  access  to his own documents. In Mohd.  Zakir  v.  Delhi Administration, [1982] 3 SCC 2 16 it was reiterated that  it being a Constitutional imperative for the detaining authori- ty  to give the documents relied on and referred to  in  the order  of  detention pari passue the grounds  of  detention, those should be furnished at the earliest so that the detenu could  make an effective representation immediately  instead of waiting for the documents to be supplied with. The  ques- tion  of demanding the documents was wholly  irrelevant  and the infirmity in that regard was violative of Constitutional safeguards enshrined in Article 22(5).     It is also imperative that if the detenu was already  in jail  the grounds of detention are to show the awareness  of that fact on the part of the detaining authority,  otherwise there  would be non-application of mind and detention  order vitiated  thereby. In the instant case though the  order  of detention ex-facie did not mention of the detenu having been in  jail, in paragraph 3 of the grounds of detention it  was said  that he was arrested by the  Superintendent  (Intelli- gence)  Air  Customs,  Trivandrum on 31-1-1988  and  he  was produced  before  the Additional Chief  Judicial  Magistrate (Economic Offences), Erna- 223 kulam the same day. It was clearly said: "You were  remanded to  judicial custody and you were subsequently  released  on bail," From the Records it appears that the bail application and the bail order were furnished to the detaining authority on  his  enquiry.  It cannot, therefore, be  said  that  the detaining authority did not consider or rely on them. It  is difficult, therefore, to accept the submission of Mr, Kunhi- kannan  that those were not relied on by the  detaining  au- thority. The bail application contained the grounds for bail including that he had been falsely implicated as an  accused in  the case at the instance of persons who were  inimically disposed  towards  him,  and the bail  order  contained  the conditions  subject to which the bail was granted  including that  the accused, if released on bail, would report to  the Superintendent  (Intelligence)  Air Customs,  Trivandrum  on every  Wednesday until further order, and that "he will  not change  his residence without prior permission of  court  to 25-2-1988".  This being the position in law, and  non-supply of  the  bail  application and the bail  order  having  been apparent, the legal consequence is bound to follow.     In  Khudiram Das  v. State of West Bengal, [1975] 2  SCR 832,  this Court held that where the liberty of the  subject is  involved 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. The Constitutional requirement of Article 22(5) is that all  the  basic facts and particulars which  influenced  the detaining  authority in arriving at the requisite  satisfac-

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tion leading to making the detention order must be  communi- cated to the detenu so that the detenu may have an  opportu- nity of making an effective representation against the order of  detention. "It is, therefore, not only the right of  the Court,  but also its duty as well, to examine what  are  the basic facts and materials which actually and in fact weighed with  the  detaining  authority in  reaching  the  requisite satisfaction. The judicial scrutiny cannot be foreclosed  by a  mere  statement of the detaining authority  that  it  has taken  into account only certain basic facts  and  materials and  though other basic facts and materials were before  it, it  has not allowed them to influence its satisfaction.  The Court is entitled to examine the correctness of this  state- ment  and determine for itself whether there were any  other basic  facts or materials, apart from those admitted by  it, which  could have reasonably influenced the decision of  the detaining  authority  and for that purpose,  the  Court  can certainly  require  the detaining authority to  produce  and make  available to the Court the entire record of  the  case which  was before it. That is the least the Court can do  to ensure observance of the requirements of law by the  detain- ing authority." 224     From  the decision in Ramesh Yadav  v.  District  Magis- trate,  Etah & Ors., [1985] 4 SCC 232, it can be  said  that the  facts of the detenu having been in jail and  his  being granted  bail  are by themselves not enough to  justify  the passing  of  the detention order. In that case it  was  men- tioned in the grounds of detention: "At this time you were detained in the District Jail,  Main- puri and you have filed an application for bail in the court of law which is fixed for hearing on September 17, 1984, and there  is positive apprehension that after having  bail  you will  come  out of the jail and I am  convinced  that  after being released on bail you will indulge in activities preju- dicial to the maintenance of public order." It  was observed that the detention order was passed as  the detaining authority was apprehensive that in case the detenu was  released on bail, he would again carry on his  criminal activities in the area. If the apprehension of the detaining authority  was true, the bail application had to be  opposed and  in case bail was granted, challenge against that  order in  the higher forum had to be raised. Merely on the  ground that an accused in detention as an under-trial prisoner  was likely to get bail an order of detention under the  National Security Act should not ordinarily be passed. The  detention order was accordingly quashed.     In  State of U.P. v. Kamal Kishore Saini, [1988]  1  SCC 287,  the application of a co-accused as well as  statements made  in the bail application filed on behalf of the  detenu alleging  that  the detenu was falsely  implicated  and  the Police report thereon were not produced before the detaining authority  before passing the detention order. Holding  that the  detention  order  was invalid on that  ground,  it  was observed: "Similarly  with regard to ground No. 3, the application  of the  co-accused  as well as the statement made in  the  bail application  filed  on behalf of the detenus  alleging  that they  had been falsely implicated in the same case  and  the police report thereon, were not produced before the  detain- ing  authority before passing of the detention order   ..... It is incumbent to place all the vital materials before  the detaining  authority to enable him to come to  a  subjective satisfaction as to the passing of the order of detention  as mandatorily required under the Act."

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225     Non-consideration  of the bail order would have,  there- fore,  in this case amounted to non-application of mind.  In Union  of India v. Manoharlal Narang, [1987] 2 SCC 241,  the Supreme Court’s interim order in pending appeal against High Court’s  quashing of a previous order of  detention  against the same detenu was not considered by the detaining authori- ty  while making the impugned subsequent order against  him. By the interim order Supreme Court had permitted the  detenu to  be at large on condition of his reporting to the  police station  daily.  It was held that non-consideration  of  the interim  order  which constituted a relevant  and  important material  was  fatal to the subsequent  detention  order  on ground of non-application of mind. If the detaining authori- ty considered that order one could not state with  definite- ness which way his subjective satisfaction would have react- ed  and it could have persuaded the detaining  authority  to desist  from passing the order of detention. If in  the  in- stant  case  the  bail order on condition  of  the  detenu’s reporting to the Customs authorities was not considered  the detention order itself would have been affected.  Therefore, it cannot be held that while passing the detention order the bail order was not relied on by the detaining authority.  In S. Gurdip Singh v. Union of India, [1981] 1 SCC 419, follow- ing Ichhu Devi Choraria  v. Union of India, (supra) and Smt. Shalini  Soni  v. Union of India, [1981] 1 SCR 962,  it  was reiterated  that if the documents which formed the basis  of the  order of detention were not served on the detenu  along with the grounds of detention, in the eye of law there would be  no service of the grounds of detention and that  circum- stances  would  vitiate his detention and make  it  void  ab initio.     Mr. Kunhikannan relies on Haridas Amarchand Shah  V.K.L. Verma,  [1989] 1 SCC 250, wherein the application  for  bail and the order dated September 15, 1987 passed by the  Metro- politan  Magistrate  granting conditional bail  were  placed before  the detaining authority, but the  application  dated September  21, 1987 for variation of the conditions and  the order  made by the Metropolitan Magistrate thereon were  not placed before the detaining authority, this Court held  that the application for variation of conditions on bail and  the order  passed  by the Metropolitan  Magistrate  varying  the conditions  of  bail  were, in its opinion,  not  vital  and material  documents inasmuch as the granting of bail by  the Magistrate  enabled the detenu to come out and carry on  his business as before and variation of the conditions were  not considered vital for the satisfaction as to need for  deten- tion. That case is, therefore, distinguishable on facts. Considering the facts in the instant case, the bail applica- tion and 226 the  bail order were vital materials for  consideration.  If those were not considered the satisfaction of the  detaining authority itself would have been impaired, and if those  had been  considered, they would be documents relied on  by  the detaining authority though the specifically mentioned in the annexure  to the order of detention and those ought to  have formed  part of the documents. supplied to the  detenu  with the grounds of detention and without them the grounds  them- selves  could  not be said to have been complete.  We  have, therefore,  no alternative but to hold that it  amounted  to denial of the detenu’s right to make an effective  represen- tation and that it resulted in violation of Article     of  the  Constitution of India rendering  the  continued detention of the detenu illegal and entitling the detenu  to

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be set at liberty in this case.     Mr. Vaidyanathan’s last submission is that the order  of declaration  dated 23-8-1988 is bad on the ground  that  the show cause notice dated 7-7-1988 and his reply thereto dated 26-7-1988,  the  bail application and the bail  order  dated 12-2-1988  as  also the fact that the two passports  of  the detenu  were  seized were not placed  before  the  declaring authority  before  he  issued the  declaration  order  under section 9(1) of the COFEPOSA Act. Mr. Mahajan clearly stated that all the materials that were placed before the detaining authority  were also placed before the declaring  authority, which  meant that the show cause notice, the reply  thereto, and the seizure list of the passports were not placed before him.     The declaration made under section 9 of the COFEPOSA Act by  the Additional Secretary to the Government of  India  on 23-8-1988 reads as under: "Whereas   Shri M.  Ahamedkutty S/o Shri Cheriya  Saidukutty has  been  detained on 2-8-1988 in pursuance  of  order  No. 35158/SSAI/88/Home  dated  25-6-1988 of  the  Government  of Kerala  made under Section 3(1) of the Conservation of  For- eign  Exchange and Prevention of Smuggling  Activities  Act, 1974 with a view to preventing him from smuggling gold;          And whereas I, the undersigned, specially empowered in  this  behalf by the Central Government,  have  carefully considered the grounds of detention and the material  served on the detenu: 227          Now, therefore, I. the undersigned, hereby  declare that I am satisfied that the aforesaid Shri Ahamedkutty  S/O Shri Cheriya Saidukutty is likely to smuggle goods into  and through Trivandrum Airport which is an area highly  vulnera- ble to smuggling as defined in Explanation 1 to Section 9(1) of  the Conservation of Foreign Exchange and  Prevention  of Smuggling Activities Act, 1974."     This  order ex facie says that the  declaring  authority had  carefully considered the grounds of detention  and  the materials  served on the detenu and on those  materials  the authority was satisfied that the detenu was likely to  smug- gle  goods into and through Trivandrum Airport which was  an area  highly vulnerable to smuggling as defined in  Explana- tion 1 to section 9(1) of the COFEPOSA Act. The question  is whether  there  were adequate materials  for  the  authority being satisfied that the detenu was likely to smuggle goods. The  detenu  having  already been under  detention  and  his detention  confirmed by the Government under section 8,  the Advisory  Board  having reported that there  was  sufficient cause  for  continued detention of the  detenu,  were  there still  enough materials to be satisfied that the detenu  was likely to smuggle goods into Trivandrum vulnerable area?  To decide  this question, Mr. Vaidyanathan urged, it is  neces- sary  to remember that the passports of the detenu had  been seized  by  the authorities. According to  counsel,  if  the detaining  authority had applied his mind to this  important fact,  he could not have been satisfied that  his  detention was  necessary to restrain the detenu’s activities of  smug- gling.  This  point  we have touched upon  earlier.  In  any event,  Mr.  Vaidyanathan submits, the  declaring  authority could not have been satisfied that the detenu "was likely to smuggle  goods  into  and through  the  Trivandrum  airport" (which  is the vulnerable area) for, without a passport,  he could not come in or go out through the airport.     In Smt. Rekhaben Virendra Kapadia v. State of Gujarat  & Ors.,  [1979] 2 SCC 566, the declaring authority who  passed an order under section 9(1) had also stated that the  detenu

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"engages" and "is likely to engage" in transporting smuggled goods.  To  that extent it was observed by this  Court  that there was no material for coming to the conclusion that  the detenu was "engaging" himself in the unlawful activities  as the  detenu had been under detention. However, in an  appro- priate  case if the declaring authority came to the  conclu- sion  taking into account the past activities of the  detenu that he was likely to continue to indulge in such activities in future there might be no justification for this Court  to interfere. It was quite likely that persons 228 who  were  systematically involved in  smuggling  activities could  cause  reasonable apprehension in the  minds  of  the declaring authority that they were likely to continue  their prejudicial activities.     The emphasis in section 9 appears to be on the satisfac- tion  that the detenu (a) smuggles or is likely  to  smuggle goods into, out of or through any area highly vulnerable  to smuggling;  or (b) abets or is likely to abet the  smuggling of goods into, out of or through any area highly  vulnerable to  smuggling;  or  (c) engages or is likely  to  engage  in transporting or concealing or keeping smuggled goods in  any area highly’ vulnerable to smuggling; and in making a decla- ration to that effect within 5 weeks of the detention of the person.  Explanation  i defines "area highly  vulnerable  to smuggling"  and Explanation 2 defines ’customs airport"  and the  "customs station". It is true that under section 10  of the  COFEPOSA Act, where the provisions of section 9  apply, the  maximum  period of detention shall be a period  of  two years  from  the date of detention or the  specified  period whichever  period expires later. However, nothing  contained in  section  9  shall affect the power  of  the  appropriate Government in either case to revoke or modify the  detention order  at any earlier time. This may imply an obligation  on the  part of the detaining authority to place the facts  and materials  that occurred between the date of  detention  and the  date of declaration, so as to justify  prolongation  of the period of detention. In Smt. Madhu Khanna v. Administra- tor, Union Territory Delhi, [1986] 4 SCC 240, where detenu’s representation  was rejected and declaration  under  section 9(1)  was made on the same day but in different files,  mere non-reference  of the representation in the declaration  was held not to have shown failure of the declaring authority to consider  the representation before making the  declaration. However,  as we have taken the view that  non-furnishing  of the  copies of the bail application and the bail  order  has resulted in violation of Article 22(5) of the  Constitution, we do not express any opinion on this submission.     In  the  result, the detention order  and  the  impugned judgment are set aside, the appeal is allowed and the detenu is to be set at liberty in this case. R.S.S.                                                Appeal allowed. 229