BHAWARLAL GANESHMALJI versus STATE OF TAMIL NADU & ANR.

BHAW ARLAL GANESHMALJI

STATE OF TAMIL NADU & ANR.

December 11, 1978

[N. L. UNTWALIA AND 0. CHINNAPPA REDDY, JJ.]

Conservation of Foreign Exchange and Prevention of Smuggling Activities A.ct 1974-0rder of detention made-Detenu absconded for 3 years and later surrendered-Live and proximate link between grournl..r of detention and purpose of detention-Whether snapped.

Constitution of India 1950-Article 22(5)-0rder of detention made on .tht 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 1101 clainiing di.Jclosure-Whether detenu can assail such order of deten-tion.

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 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 writ of habeas corpus was rejected by the High Court. In his appeal against the judgment of the High Court as well as in petition under Art. 32 of the Constitution raising grounds not raised before the High Court, the appellant contended that ( 1) 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 suc1t vital material vitiated the order of detention, and (3) the detention order was not based upon any "rationally probative" material, intlsmuch as it was based upon an intelligence report, not disclosed to the detenu and that this had resulted in denial to the detenu of his fundamental right under Art. 22(5) of the c·onstitlltion.

Dismissing the appeal anP. writ petition,

HELD : I. It is well settled that the purpose of detention under the COFEPOSA is not punitive but preventive, th3.t is to staiy, 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 'live and proximate link' between the grounds of detention and the avowed purpose of detention. But in appropriate aises the Court can assume that the link is 'snapped' if there is long and unexplain~ <1d delay between the date of the order of detention and the arrest of the

detenu. \Vhere 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-DJ

Jn the instant case, the order was made in December, 1974. He was absconding, proclamation was pub!ished in several leading newspapers that he wn.;; 'person absconding and reward was offered for his apprehension. Despite all this he could not be arrested until he surrendered in February .. 1978. Therefore the submission based on delay had no force. [638 E-FJ

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 autho-rity took into consideration the circumstance that there '.¥'ere 'adjudication' proceedings, that the currency which the appellant was carrying was confis-cated and_ that penalty of Rs. 5,000 /- was imposed on him. The order of adju4ication by which the currency was Confiscated and penalty was imposed did refer to the circun1stance that persons who had made incriminating state-ments against the detcnu had resiled from those statements. [638 H-639 B] 3. It cannot be Gaid that the detenu had been denied reasonable oppor-tunity of making representation merely because particulars which he never desired in respect of ground which was not vague were not furnished to-bim. The ground was specific enough. If the detenu w\111ted any more palticulars 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 Govern-ment in respect of the intelligence reports. The intelligence reports were pro-duced before the High Court at the hearing of the writ petition. There was no compllaiint that the detenu wanted to peruse the reports but \vas denied the opportunity of doing so. [649 B, 639 H-640 A]

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 Appel" !ant/Petitioner.

A. V. Rangam for the Respondent.

The Judgment of the Court was delivered by

CHINNAPPA REDDY, J. Bhawarlal Ganeshmalji whose application for the issue of 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 Wrir of Habeas Corpus under Article 32 of the Constitution in which be 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 memorandum dated 20th December, 197 4 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 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 ht February, 1978. First the order of detention and later the grounds of detention] were served on the appellant-petitioner.

There were two grounds of derention which were as follows :

"(i) On 23-2-1972 an inland registered parcel bearing No. 325 emanating from one T. Chowdiah No. 2, Sanjeev-ilppa 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 amount-ing 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 written statement ·dated 23-2-1972 that the currency was sent hy one R. G. Bhandari's man from Bangalore, to be received by him and handed over to one Bhoormal, 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 state-ment 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

Post Office it was found that seven registereq parcels liild 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, Sailjeevappa Lano 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 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 state-merit revealed that he had previously despatched seven re-gistered parcels to M/ s. Raj Metal Work~ containing amounts to the tune of Rs. 8,84,000/- nsing the name 6f T. Chowdiah and that he had disposed of 3900 bars of smug-gled gold valued at Rs. 80 lakhs within short time olf less than month. Bhawarlal, the servant of Bhoormal in Mad-ras identified Ghaverchand Samarthajee as an employee of R. B. Bhandari nsed for gold smuggling business at Banga-lore. The case was adjudicated and the currency was con-fiscated. personal penalty of Rs. 5000/- was imposed on Thim 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 secret vacity of an Ambassador can MOE 9399 at the com-mercial Check Post, Hosur. T. Ramamurthy of Porayar (driver) and Thim Ganesan occupied the car. Their state-ments revealed that the gold was sent by Sikku Govida-swami of Porayar, notea transport agent for contraband goods. Ganesan also admitted that the car with the con-traband 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 Otficer to the Directorate of Revenue Intelligence which had been receiv-ed earlier on the basis of which the aforesaid car was inter-cepted and the seizure was effected, had disclosed that the Marwari referred to was R. G. Bhandari".

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 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 ~tatements long before the order of detention was made. The cir-cumstance that all of them had resiled from their earlier statements was not brought to the notice of the detaining authority and the failure <>I the detaining authority to consider such vital material before '-1!rriving 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 single ground out of many was bad since the order had been made at time when Section SA 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 <:ontended that the ground would be innocuous without the aid of the intelligence report mentioned therein and since no privilege 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 denial of the petitioner's fundamental right, under Article 22(5) of the Constitu-tion. Shri A. V. Rangam, learned Counsel for the State of Tamil Nadu 11rged 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 r~gard to the first ground of detention he submitted that the circumstance that the persons who had incriminated the detenu had rcs1led from their former statements had been mentioned in the adjudication order passed by the Customs authorities and that order had been placed befo!'~ 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

report and in any case, since no privilege was claimed, it was always open to ilie detenu to have asked for more particulars ii he so desired, but which he failed to do.

Tt 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 ls true that the maximum period for which person may be detained under the COFEPOSA is one year. It is further true that there must be 'live and proximate link' between the grcunds 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 long and unexplained delay between the date of the order of deten-tion and the arrest of the detenu. In such case we may strike down an order of detention unless the grounds mdicate fresh appli-catio~ of the mind of the detaining authority to the new ,;ituation an,sl/ the changed circumstances. But where the delay is not only ade-quately 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 procl3irued as 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. reward of Rs. 5,000/-was also announced for his apprehension. Despite all this effort he could not be arrested until he surrendered on !st February, 1978. We do not have any hesitation in over-ruling the submission of Shri Jetllmaiani based on the delay in the execution of the order of detention. The second submission made on behalf of the de1e11u that the detaining authority had not before it the circumstance that the four persons who had made statements implicating the detenu had later, but Jong 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 perusal of the first ground of detention shows that the detaining authority took into

consideration the circumstance that there were 'adjuoication' proceed-iHgs, that the currency was confiscated and that penalty of Rs. 5,000/• was imposed on the detenu. It was not disputed and it was not alleged in the petition that the orde( vf adjudication by whlth the currency was confiscated and penalty was imposed did refer to the circumstance that persons who had made incriminatin5 stitteirients against the detenu had resiled from those statements. The circumstance that persons who had earlier incriminated the detcnu 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 rejecL 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 :1farwari at Bangalore at an appointed place. It was the intelli-gence report alone that fixed the identity of the lvlarwari as the detenu. Without the intelligence report it would be impossible to connect the detenu with the person mentioned as the lvlarwari in the statements o[ Ganesan and Ramamurthy. Now the submission ol 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 effec-tiYely exercise his fundamental right under Article 22 ( 5) of the Constitution and to make representation against the order of detention. We agree with the learned Counsel for the petitioner that in order to make representation against the oracr of detention and thus to exercise the fundamental right guaranteed by Article 22(5) of the Constitution, 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 particuhrs. That is right which flows from the Constitutional right to be afforded 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 case of vague ground. The ground is specific enough. IE the detenu wanted any mere particulars such as the name of the intelli[ence 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

SUPREME COURT REP OR TS

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 hefore 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 reasonable opportu-B nity of making representation merely because particulars which he neyer desired in respect of ground which was not vague were not furnished to him. We are unable to see any force in any of the sub-missions advanced on behalf of the detenu.

In the result, we reject the appeal and the writ petition.

Appeal & petition dismissed.