13 December 2004
Supreme Court
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UNION OF INDIA Vs CHAYA GHOSHAL

Case number: Crl.A. No.-001474-001474 / 2004
Diary number: 6770 / 2004
Advocates: Vs TARA CHANDRA SHARMA


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CASE NO.: Appeal (crl.)  1474 of 2004

PETITIONER: Union of India & Anr.

RESPONDENT: Shrimati Chaya Ghoshal & Anr.

DATE OF JUDGMENT: 13/12/2004

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       Union of India and the Joint Secretary(COFEPOSA), Government of  India, Ministry of Finance, Department of Revenue, (hereinafter  referred to as the ’detaining authority’) call in question legality of  the judgment rendered by the Division Bench of the Calcutta High Court  quashing the order of detention passed by the appellant No. 2 under  Section 3(1) of Conservation of Foreign Exchange and Prevention of  Smuggling Activities Act, 1974 (hereinafter referred to as the  ’COFEPOSA’) directing detention of Rajen Ghosal(hereinafter referred to  as the ’detenu’).                  A Habeas Corpus Writ Petition under Article 226 of the  Constitution of India, 1950 (in short the ’Constitution’) was filed by  the respondent No. 1, the wife of the detenu.  The order of detention  was primarily based on the ground that on the basis of information  received on 8.1.2002 by the Special Investigation Branch, Kolkata  Customs, seven containers of (7 x 20’) and one container of (1 x 40’)  were offloaded, from the vessel of Vishakapatnam Port were detained and  examined.  The allegation was that few Kolkata based exporters have  exported on 5.1.2002 readymade garments, ball pens and side rubber  wheels grossly mis-declaring the quantity, description and value with  an ulterior motive to avail undue drawback worth crores of rupees.   Detenu who was the proprietor of M/s. Shyam Sunder Enterprises had  exported some of the containers. After opening the consignments,  substantial shortage in quantities were detected.  It appeared that the  goods were highly over invoiced and even mis-declared in respect of  description of certain items. There was grave difference in the actual  quantity and the quantity of garments and ball pens and side rubber  wheels that were to be exported with that of those articles which were  actually found in the container at the port.  It was concluded that all  these were done with the sole intention of getting huge amount of  foreign currency.  Investigations were done and a licenced clearing  agent was interrogated and his statement was recorded under Section 108  of the Customs Act, 1962 (in short the ’Customs Act’).  It appears that  one Shri Anil Kumar Mahensaria was the brain behind the acts and the  detenu was deeply involved in the concerned acts.  Residence of the  detenu was searched and he was arrested. He was interrogated at length  about his accomplicity in the matter.  He clearly stated that he was a  person of limited means and had obtained Importer Exporter Code No. (in  short the ’IEC’).  He had allowed the same to be used and was only  lending his Code for petty sums.  The detenu was produced before the  Chief Judicial Magistrate, Kolkata who remanded him to the judicial  custody. During his detention further statements were recorded. Detenu  was released on bail on 11th September, 2002.  On the basis of the  materials collected, it was felt that with a view to prevent him from  continuing the illegal activities he was to be detained under COFEPOSA.

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The order of detention was passed on 20.11.2002 and he was arrested on  17.12.2002.  The order of detention and the grounds of detention were  duly served and he was made aware of his right to make representations  to the Central Government and the Detaining Authority and also the  Advisory Board.  The representations made by the detenu were rejected.   The order of detention was questioned by the respondent no.1 on several  grounds; firstly it was submitted that there was unusual delay in  passing the order of detention.  The investigation process had started  in January, 2002 but the order of detention was passed in November,  2002.  After his release on bail there was nothing to show that he had  continued to indulge in prejudicial activities of smuggling. Further  there was unusual delay in executing the order of detention.  Only one  incident was referred in the grounds of detention to justify his  detention.  There was nothing to demonstrate continuing criminality and  culpability to continue such action in future.  There was non- application of mind while taking the decision to detain the detenu.   Irrelevant materials were taken into consideration.  Materials which  were in the possession of the sponsoring authority were not placed  before the Detaining Authority.  In any event there was unusual delay  in disposing of the representations and there was no independent  consideration by the Central Govt. as required under Section 11 of the  COFEPOSA.  The stand was opposed by the Detaining Authority.  The  counter affidavit was filed.  A rejoinder was filed by the writ  petitioner purportedly with a view to clarify some of the statements  made in the counter affidavit.  The High Court found that there was no  unusual delay in passing the order of detention.  But it was held that  there was undue delay in initiating the process i.e. the proposal for  detention by the sponsoring authority. It was held that there was  unexplained delay in passing the order of detention.  It was also held  that there was unusual delay in executing the order of detention. While  the other pleas of the detenu were rejected, it was observed that there  was unexplained delay in disposing of the representations and the  solitary instance highlighted by the Detaining Authority was not  sufficient to justify the order of detention.  The rejection of  representation by Central Government was without application of mind.

       Aggrieved by such judgment of the High Court, as noted above,  this Appeal has been filed.  It was submitted by the learned counsel  appearing for the appellants that the High Court did not take note of  the various relevant factors and on presumptions adverse inferences and  surmises have been drawn. Having accepted that the investigation was  going on and there was delay in completion of the investigation due to  filing of Writ Petitions by the detenu and interim orders passed, a  contrary view should not have been taken to hold that there was unusual  delay in passing the order of detention.  Similarly it was submitted  that in spite of best efforts the detenu could not be apprehended and  after about three weeks of sincere efforts he was arrested.  That  cannot be termed as unusual delay in executing the order of detention.   The High Court attached undue importance to the fact that after the  release on bail there was no allegation of the detenu indulging in any  objectionable activity.  It is the impact of the act and not the number  of infractions which is relevant.  Finally there was no unusual delay  in disposing of the representations and the view of the High Court,  that the Central Government had not in fact applied its independent  mind and had merely rejected the representation on the ground that the  Detaining Authority had rejected it, is not factually correct.

       In response learned counsel appearing for the detenu and the  respondent No. 1 submitted that the High Court had analysed the factual  position in great detail. Allegations regarding unexplained delay were  not refuted specifically and bald denials were not sufficient,  particularly when a man’s liberty and freedom were in issue. No  material was placed to substantiate the stand taken about the procedure  followed and steps taken. It was submitted that the judgment of the  High Court is based on appreciation of the factual position by applying

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correct law. It was submitted that as observed by this courts even  representation to President of the country is sufficient.  In other  words, rejection of representation by the detaining authority cannot be  a ground of rejection by Central Government.   

It is submitted that revocation under Section 11 can be done by  the Central Government, independent application of mind by it was  necessary.

Section 11(1) of COFEPOSA reads as follows:

"11. Revocation of detention orders - (1) Without  prejudice to the provisions of Section 21 of the  General Clauses Act, 1897, a detention order may, at  any time, be revoked or modified -  

(a)     notwithstanding that the order has been made  by an officer of a State Government, by that  State Government or by the Central Government;   

(b)     notwithstanding that the order has been made  by an officer of the Central  Government, or  by a State Government by the Central  Government."   

In any event, it was submitted, the detenu was released on  23.8.2003 and more than one year has passed, the detenu had suffered  detention for more than eight months and after considerable length of  time it would not be proper to send him back.

Before dealing with rival submissions, it would be appropriate to  deal with the purpose and intent of preventive detention. Preventive  detention is an anticipatory measure and does not relate to an offence,  while the criminal proceedings are to punish a person for an offence  committed by him. They are not parallel proceedings. The object of the  law of preventive detention is not punitive but only preventive. It is  resorted to when the Executive is convinced that such detention is  necessary in order to prevent the person detained from acting in a  manner prejudicial to certain objects which are specified by the  concerned law. The action of Executive in detaining a person being only  precautionary, normally the matter has necessarily to be left to the  discretion of the executive authority. It is not practicable to lay  down objective rules of conduct in an exhaustive manner, the failure to  conform to which should lead to detention. The satisfaction of the  Detaining Authority, therefore, is considered to be of primary  importance, with great latitude in the exercise of its discretion. The  Detaining Authority may act on any material and on any information that  it may have before it. Such material and information may merely afford  basis for a sufficiently strong suspicion to take action, but may not  satisfy the tests of legal proof on which alone a conviction for  offence will be tenable. The compulsions of the primordial need to  maintain order in society without which the enjoyment of all rights,  including the right to personal liberty of citizens would loose all  their meanings provide the justification for the laws of prevention  detention. Laws that provide for preventive detention posit that an  individual’s conduct prejudicial to the maintenance of public order or  to the security of State or corroding financial base provides grounds  for satisfaction for a reasonable prognostication of possible future  manifestations of similar propensities on the part of the offender.  This jurisdiction has at times been even called a jurisdiction of  suspicion. The compulsions of the very preservation of the values of  freedom of democratic society and of social order might compel a  curtailment for individual liberty. "To, lose our country by a

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scrupulous adherence to the written law" said Thomas Jefferson "would  be to lose the law itself, with life, liberty and all those who are  enjoying with us, thus absurdly sacrificing the end to the needs".  This, no doubt, is the theoretical jurisdictional justification for the  law enabling prevention detention. But the actual manner of  administration of the law of preventive detention is of utmost  importance. The law has to be justified by striking the right balance  between individual liberty on the one hand and the needs of an orderly  society on the other.  

The constitutional philosophy of personal liberty is an  idealistic view, the curtailment of liberty for reasons of States’  security, public order, disruption of national economic discipline etc.  being envisaged as a necessary evil to be administered under strict  constitutional restrictions. In Smt. Ichhu Devi v. Union of India (AIR  1980 SC 1983), this judicial commitment was highlighted in the  following words:    

"The Court has always regarded personal liberty as  the most precious possession of mankind and refused  to tolerate illegal detention, regardless of the  social cost involved in the release of a possible  renegade".

"This is an area where the Court has been most  strict and scrupulous in ensuring observance with  the requirement of the law and even where a  requirement of the law is breached in the slightest  measure, the Court has not hesitated to strike down  the order of detention".

In Vijay Narain Singh v. State of Bihar (AIR 1984 SC 1334),  Justice  Chinnappa Reddy in his concurring majority view said:   

".....I do not agree with the view that those who  are responsible for the national security or for the  maintenance of public order must be the sole Judges  of what the national security or public requires. It  is too perilous a proposition.  Our Constitution  does not give as carte blanche to any organ of the  State to be the sole arbiter in such matter......"

[Page 1336 (of AIR)]

".....There are two sentinels, one at either end.  The legislature is required to mark the law  circumscribing the limits within which persons may  be preventively detained and providing for  safeguards prescribed by the Constitution and the  Courts are required to examine, when demanded,  whether there has been any excessive detention, that  is whether the limits set by the Constitution and  the legislature have been transgressed.....".                                  In Hem Lall Bhandari v. State of Sikkim (AIR 1987 SC 762 at page 766),  it was observed:   "It is not permissible in matters relating to the  personal liberty and freedom of a citizen to take  either a liberal or a generous view of the lapses on  the part of the officers.....".   

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In Sunil Fulchand Shah v. Union Of India and Ors.  (2000 (3) SCC  409) a Constitution Bench of this Court observed that a person may try  to abscond and thereafter take a stand that period for which detention  was directed is over and, therefore, order of detention is infructuous.  It was clearly held that the same plea even if raised deserved to be  rejected as without substance. It should all the more be so when the  detenu stalled the service of the order and/or detention in custody by  obtaining orders of Court.  

So far as the pivotal question whether there was delay in  disposal of the representation is concerned, same has to be considered  in the background of Article 22(5) of the Constitution. A  constitutional protection is given to every detenu which mandates the  grant of liberty to the detenu to make a representation against  detention, as imperated in Article 22(5) of the Constitution. It also  imperates the authority to whom the representation is addressed to deal  with the same with utmost expedition.  The representation is to be  considered in its right perspective keeping in view the fact that the  detention of the detenu is based on subjective satisfaction of the  authority concerned, and infringement of the constitutional right  conferred under Article 22(5) invalidates the detention order. Personal  liberty protected under Article 21 is so sacrosanct and so high in the  scale of constitutional values that it is the obligation of the  detaining authority to show that the impugned detention meticulously  accords with the procedure established by law.  The stringency and  concern of the judicial vigilance that is needed was aptly described in  the following words in Thomas Pacham Dales’ case: (1881 (6) QBD 376:

"Then comes the question upon the habeas corpus. It  is a general rule, which has always been acted upon  by the Courts of England, that if any person  procures the imprisonment of another he must take  care to do so by steps, all of which are entirely  regular, and that if he fails to follow every step  in the process with extreme regularity the Court  will not allow the imprisonment to continue."

       Article 21 of the Constitution having declared that no person  shall be deprived of life and liberty except in accordance with the  procedure established by law, a machinery was definitely needed to  examine the question of illegal detention with utmost promptitude.  The  writ of habeas corpus is a device of this nature.  Blackstone called it  "the great and efficacious writ in all manner of illegal confinement".   The writ has been described as a writ of right which is grantable ex  dobito justitae.  Though a writ of right, it is not a writ of course.   The applicant must show a prima facie case of his unlawful detention.   Once, however, he shows such a cause and the return is not good and  sufficient, he is entitled to this writ as of right.

       In case of preventive detention no offence is proved, nor any  charge is formulated and the justification of such detention is  suspicion or reasonability and there is no criminal conviction which  can only be warranted by legal evidence.  Preventive justice requires  an action to be taken to prevent apprehended objectionable activities.  (See Rex v. Nallidev (1917 AC 260); Mr. Kubic Dariusz  v. Union of  India and others (AIR 1990 SC 605). But at the same time, a person’s  greatest of human freedoms, i.e., personal liberty is deprived, and,  therefore, the laws of preventive detention are strictly construed, and  a meticulous compliance with the procedural safeguard, however,  technical is mandatory.  The compulsions of the primordial need to  maintain order in society, without which enjoyment of all rights,  including the right of personal liberty would lose all their meanings,

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are the true justifications for the laws of preventive detention. This  jurisdiction has been described as a "jurisdiction of suspicion", and  the compulsions to preserve the values of freedom of a democratic  society and social order sometimes merit the curtailment of the  individual liberty. (See Ayya alias Ayub v. State of U.P. and another  (AIR 1989 SC 364).  To lose our country by a scrupulous adherence to  the written law, said Thomas Jafferson, would be to lose the law,  absurdly sacrificing the end to the means.  No law is an end itself and  the curtailment of liberty for reasons of State’s security and national  economic discipline as a necessary evil has to be administered under  strict constitutional restrictions.  No carte blanche is given to any  organ of the State to be the sole arbiter in such matters.   

       Coming to the question whether the representation to the  President of India meets with the requirement of law it has to be noted  that in Raghavendra Singh v. Superintendent, District Jail, Kanpur and  Ors. (1986 (1) SCC 650) and Rumana Begum v. State of Andhra Pradesh and  Anr. (1993 Supp (2) SCC 341) it was held that a representation to the  President of India or the Governor, as the case may be, would amount to  representation to the Central Government and the State Government  respectively. But this cannot be allowed to create a smokescreen by an  unscrupulous detenu to take the authorities by surprise, acting  surreptitiously or with ulterior motives. Where the order (grounds) of  detention specifically indicate the authority to whom the  representation is to be made, such indication is also part of the move  to facilitate an expeditious consideration of the representations  actually made.   While dealing with a habeas corpus application undue importance  is not to be attached to technicalities, but at the same time where the  court is satisfied that an attempt has been made to deflect the course  of justice by letting loose red herrings the Court has to take serious  note of unclean approach. Whenever a representation is made to the  President or the Governor instead of the indicated authorities, it is  but natural that the representation should indicate as to why the  representation was made to the President or the Governor and not the  indicated authorities. It should also be clearly indicated as to whom  the representation has been made specifically. The President as well as  the Governor, no doubt are constitutional Heads of the respective  Governments but day to day administration  at  respective  levels are  carried on by the Heads of the Department-Ministries concerned and  designated officers who alone are ultimately responsible and  accountable for the action taken or to be taken in a given case. If  really the citizen concerned genuinely and honestly felt or is  interested in getting an expeditious consideration or disposal of his  grievance, he would and should honestly approach the really concerned  authorities and would not adopt any dubious devices with the sole aim  of deliberately creating a situation for delay in consideration and cry  for relief on his own manipulated ground, by directing his  representation to an authority which is not directly/immediately  concerned with such consideration.  

Where, however, a person alleging infraction of personal liberty  tries to act in a manner which is more aimed at deflecting the course  of justice than for protection of his personal right, the Court has to  make a deliberate balancing of the fact situation to ensure that the  mere factum of some delay alone is made use of to grant relief. If a  fraud has been practiced or perpetrated that may in a given case  nullify the cherished goal of protecting personal liberty, which  obligated this Court to device guidelines to ensure such protection by  balancing individual rights and the interests of the nation, as well.  

       In R. Keshava v. M.B. Prakash and Ors. (2001 (2) SCC 145) it was  observed by this Court as follows:

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"We are satisfied that the detenu in this case  was apprised of his right to make representation to  the appropriate Government/authorities against his  order of detention as mandated in Article 22 (5) of  the Constitution. Despite knowledge, the detenu did  not avail of the opportunity. Instead of making a  representation to the appropriate Government or the  confirming authority, the detenu chose to address a  representation to the Advisory Board alone even  without a request to send its copy to the  authorities concerned under the Act. In the absence  of representation or the knowledge of the  representation having been made by the detenu, the  appropriate Government was justified in confirming  the order of detention on perusal of record and  documents excluding the representation made by the  detenu to the Advisory Board. For this alleged  failure of the appropriate Government, the order of  detention of the appropriate Government is neither  rendered unconstitutional nor illegal".

        Aforesaid aspects were highlighted in Union of India v. Paul  Manickam (2003 (8) SCC 342).

       On bare perusal of the High Court’s judgment it appears that the  High Court had not properly appreciated the factual scenario.  It had  in fact noted that there was some delay in passing the order of  detention.  It referred to the Writ Petitions filed before the Calcutta  High Court and the orders passed in those cases.  It also noted that  the proposal was sent on 4.7.2002 and the statement of the detenu was  recorded on 16.7.2002. The proposal for detention was considered by the  Central Screening Committee on 18.9.2002 and after consideration of all  relevant materials, the order of detention was passed on 20.11.2002.  The details of the various steps taken were filed before the High  Court.  It appears that after the process of investigation started in  January, 2002 consequent upon seizure of goods was on 24.1.2002.  Writ  Petition No. 145 of 2002 was filed in the Calcutta High Court and an  interim order was passed staying further effect on the summons and  maintenance of status quo of examination of goods. Reply was filed on  12.2.2002.  Another Writ Petition No. 366 of 2002 was filed on behalf  of the detenu on 20.2.2002.  The High Court passed a direction for  personal appearance of detenu on 28.2.2002.  The date of personal  appearance was adjourned to 5.3.2002.  On 8.3.2002 the Writ Petition  was dismissed for non-prosecution.  Another application was filed by  another concern.  Thereafter various statements were recorded. The  interim order passed on 29.1.2002 was vacated and the judgment was  delivered on 8.5.2002; summons were issued to the detenu and  information was sought for in terms of the High Court’s order dated  6.5.2002.  In between Writ Petition No. 573 of 2002 was filed.  Summons  were issued and the matter was further heard by the Calcutta High  Court. Ultimately the detenu was traced on 16.7.2002 and statements  were thereafter recorded and after he was remanded to judicial custody,  his statements were recorded. Show cause notices were issued to the  detenu and the proprietor of the concern and Anil Kumar and Clearing  House Agent.  On 9.8.2002 the detenu retracted from his earlier  statement. Finally the Central Screening Committee considered the  proposal on 18.9.2002.  It was referred to the Detaining Authority and  after discussions and supply of documents in October, 2002 the records,  which were voluminous were placed before the Detaining Authority who  asked for orders passed by the Chief Judicial Magistrate dated 2.9.2002  and 11.9.2002. Copies of orders of the Chief Judicial Magistrate  regarding extension of judicial custody and grant of bail were received  on 15.11.2002 and the order of detention was passed on 20.11.2002.   Above recital of the factual scenario clearly goes to show that there

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was really delay much less unusual in passing the order of detention.   On that score, the High Court’s findings prove to be contrary and  indefensible.

 The other plea which found favour with the High Court related  to alleged unusual delay in execution of the order of detention.  Here  again the High Court had fallen into grave error in holding that there  was no material justifying the delay.  It is to be noted that the order  of detenton was passed on 20.11.2002 and the arrest was done on  17.12.2002. From the materials on record it appears that after the  order of detention was passed efforts were made to arrest the detenu.   In fact the police authorities were requested to co-operate in the  matter and the detention order was sent to the office of the  Commissioner of Police Lal Bazar Police Head Quarters on 20.11.2002.  Identification particulars including photographs of the detenu as  required by the police for execution of the order were sent to the  Commissioner of Police on 26.11.2002.  In spite of keeping the house  under surveillance by the concerned officers and the police officers,  he could not be traced.  Finally he was arrested on 27.12.2002.  It is  not a case where there is unusual gap between the date of the order of  detention and the actual arrest.  The various steps taken by the  authorities as noted above clearly indicate that all possible efforts  were being taken to arrest the detenu, but he successfully evaded  arrest.  The High Court was not justified in coming to the conclusion  that there was unusual delay in executing the order of detention.   

So far as the finding of the High Court that there was only one  incident is really a conclusion based on erroneous premises.  It is not  number of acts which determine the question as to whether detention is  warranted.  It is the impact of the act, the factual position as  highlighted goes to show that the financial consequences were enormous  and ran to crores of rupees, as alleged by the Detaining Authority.   The High Court seems to have been swayed away that there was only one  incident and none after release on bail. The approach was not certainly  correct and the judgment on that score also is vulnerable.  At the cost  of repetition it may be said that it is not the number of acts which is  material, it is the impact and effect of the act which is  determinative. The High Court’s conclusions in this regard are  therefore not sustainable.  

Residual question is whether there was unusual delay in  disposing of the representation and whether the Central government had  not applied its mind to the representation independently. The High  Court has again failed to notice that materials on record clearly show  that there was independent application of mind by the Central  Government It did not  reject the representation merely on the ground  that the Detaining Authority had rejected it.  The order of rejection  itself makes this position clear.  From the details which were  submitted before the High Court it appears that there were two  representations each addressed to the Detaining Authority and the  Central Government, which were considered and rejected.  

In law the President or the Governor, as the case may be, cannot  be impleaded as a party.  Therefore, there is no question of their  explaining as to what happened after representation was received by the  office of the President or the Governor, as the case may be.  The  Central Government or the Detaining Authority are also not authorized  and competent in law to say what happened after representation is  received in the office of the President or the Governor, as the case  may be. The Detaining Authority or the concerned authority of the  Central Government has to explain the action taken by the said  authority after receipt of the representation by it.          The factual position also does not justify the conclusion drawn  by the High Court about the unexplained delay in disposal of the

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representation and/or non-application of the mind by the Central  Government. Looked at from any angle the order of the High Court is  unsustainable and it is therefore set aside.  

Both the authorities have dealt with the representation with  utmost expedition.  A plea appears to have been taken before the High  Court that there was no explanation offered for keeping the  representation unattended after its receipt.  It has to be noted that  the Detaining Authority and/or the Central Government and/or the State  Government, as the case may be, have to explain the action taken on the  representation after it had reached the concerned authority.  The  representation should be received by a person authorized to receive it.  The Detaining Authority or the concerned authority of the Central  Government may have authorized some members of the staff to receive  representation or any official document. If the representation is  handed over to or served on a person who is not authorized to receive  it the concerned authority cannot be held responsible if any delay is  occasioned on account of inaction by such unauthorized person.  If any  dispute is raised about the authority of the person to whom the  representation is claimed to have been handed over or served, the  person making the representation on behalf of the detenu or the detenu,  as the case may be, has to establish as to on whom the service was  effected and he had authority to receive the document in question.

        The residual plea about the desirability to continue the  detention and whether there is any live link between the alleged act  which formed the foundation for detention continuing is a matter for  the Detaining Authority to decide.  Let a decision in this regard be  taken within a month and order in that regard be served on the detenu.   If the Detaining Authority is of the view that further continuance will  be desirable, the detenu shall surrender to serve the remainder the  period of detention as was indicated in the order of detention.  If the  Detaining Authority feels that it is not desirable then in that event  the detenu need not surrender.   

       The appeal is allowed and disposed of in the aforesaid terms.