A. Chenchiah vs State of Tamil Nadu and H.L. Wadhwan

S.A. Kader, J.—This is a writ petition filed under Art. 226 of the Constitution of India, seeking the issuance of a writ of habeas corpus for

quashing the order of detention passed by the first Respondent-State of Tamil Nadu against the Petitioner-detenu, dated 21.2.1985 and for setting

him at liberty.

The impugned order of detention has been passed by the first Respondent-State of Tamil Nadu, under S. 3(1)(ii) of the Conservation of Foreign

Exchange and Prevention of Smuggling Activities Act 1974, hereinafter referred to as the Act with a view to preventing the detenu from abetting

the smuggling of goods. In pursuance of this order the second Respondent-Joint Secretary to the Government of India, Ministry of Finance has

made a declaration under S. 9(1) of the Act, as a result of which, the period of detention has been extended to two years.

Mr. B. Kumar, learned Counsel for the Petitioner, urged before us the following points challenging the validity of the or detention .r of detention

passed by the first Respondent and the declaration made by the first Respondent:-

(1) Inordinate delay of 8 months and 15 days in passing the order of detention.

(2) Inordinate delay in arresting the detenue.

(3) Non-furnishing of some of the documents referred to and relied by the detaining authority to the detenu along with the grounds of detention.

(4) Non-application of the mind of the detainee authority in passing the order of detentron.

(5) Constitutional validity of S. 9(1) of the Act.

(6) Non-application of the mind of the Authority making the declaration under S. 9(1) of the Act.

Point 1: The incident which has given rise to the passing of the impugned order of detention occurred on 6.6.1984, while the order of detention

has been passed on 21.2.1985 after a delay of 8 months and 15 days. It is, therefore, contended by the learned Counsel for the Petitioner that the

nexus between the incident and the order of detention is snapped and the order of detention cannot stand.

In Smt. Hemlata Kantilal Shah Vs. State of Maharashtra and another, their Lordships of the Supreme Court pointed out:-

Delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person, for, in certain cases, delay may be

unavoidable and reasonable. What is required by law is that the delay must be satisfactorily explained by the detaining authority....The detaining is

in no legal liability to tell or satisfy the detenu as to the cause of delay; it is under an obligation to satisfy the Court as to the cause of delay to show

that there was no infraction of the constitutional provisions laid down under sub-Article 5 of Article 22 of the Constitution.

In a very recent decision in Shiv Ratan Makim Vs. Union of India (UOI) and Others, , the learned Judges of the Supreme Court observed:

It is no doubt true that where an unreasonably long period has elapsed between the date of incident and the order of detention, an inference may

legitimately be drawn that there is no nexus between the incident and the order of detection and the order of detention may be liable to be struck

down as invalid.

Paragraph 11 of the counter affidavit filed on behalf of the first Respondent deals with the delay as follows:

Regarding the averments made in paragraph 11 of the affidavit, it is submitted, that the averments are untenable. In this connection, it is submitted

that the seizure was effected on 6.6.1984/ 7.6.1984. This is a case involving several persons in India and abroad who engaged in a conspiracy to

smuggle various goods in India. The Investigation therefore was prolonged and the same was over by August, 1984. The proposals for detention

under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974) were

received by this Respondent on 29.9.1984. Thereafter, the case records were processed, perused, and subjective satisfaction arrived at and then

the detention order was passed on 21.2.1985. During this period the matter was under the continuous consideration of the customs department in

initial stage and thereafter by this Respondent. A letter seeking clarification was sent to customs authorities on 20.10.1984, and reply was received

from Customs on 16.11.1984. The proposal was processed and after going through the statements and documents which are voluminous, the file

was sent in circulation seeking orders of Government. In the meantime, the Petitioner has sent a telegram to Government to stop Conservation of

Foreign Exchange and Prevention of Smuggling Activities proceedings which was followed by a representation dated 27.1.1985. Another person

Thiru R.T. Ramachandran involved in this case also sent a representation dated 27.1.1985 to Government. After taking into consideration of the

contents of these representations, the Government issued orders on 21.2.1985. Hence it could be seen from the above that the Government have

taken reasonably a period of five months from the date of receipt of the proposal for issuing the detention order. The contention of the Petitioner

that there was a long gap between the date of occurrence and the issue of the detention order is not acceptable.

A perusal of the aforesaid explanation would show the lethargic attitude in which the Government and the Customs officials have dealt with the

matter. Admittedly, the investigation was over by August 1984. But, it is only on 29.9.1984, after delay of 28 days the proposal for detention has

emanated from the Customs department. The file has slept for nearly 20 days in the Secretariat before a clarification has been called for on

20.10.1984. It has taken another 25 days from the Customs Department to send a reply on 16.11.1984 and Anr. 3 months and 4 days had

passed before the order of detention was passed on 21.2.1985. The fact that a representation has been received from the Petitioner on 27.1.1985

is hardly an explanation, for, even before 27.1.1985, more than two months and ten days have passed since the receipt of the clarification from the

Customs department. Neither the Government nor the Customs Officials seem to have any sense of time or the importance of the matter dealt with

by them. We hold that there is no proper explanation for this delay of 8 months and 15 days and the order of detention is untenable.

Point 2: The order of detention has been passed on 21.2.1985, but, the detenu has been arrested and detained only on 5.2.1987 after nearly

two years and this is sought to be made much of. But, it must be remembered that the Petitioner has filed a writ petition before this Court in W.P.

4517 of 1985, and has obtained a stay of execution of the order of detention. The writ has been dismissed on 16.12.1985. Thereafter, a writ

appeal in W.A.1172 of 1985 has been filed and it was dismissed only on 10.2.1986. The copy of the order has been received by the Government

only on 19.3.1986. Meanwhile, the Petitioner filed a writ before the High Court of Andra Pradesh in W.P.88758 of 1986 and it was dismissed

only on 12th December, 1986. Against the said order a writ appeal in W.A. 1371 of 1986 has been filed before the same High Court and it was

dismissed on 22nd December, 1986. A copy thereof was received only on 21st January, 1987. No doubt, there has been no stay during the

pendency of the writ proceedings before the High Court of Andhra Pradesh, but, in view of the pendency of these proceedings the Government

have stayed their hands and this cannot be pitted against them. The Government also seem to have made a notification under S. 7(l) of the Act. In

the circumstances, we are unable to hold that the delay in arresting the detenu and detaining him is due to any default on the part of the first

Respondent-State of Tamil Nadu, and this is no ground for quashing the order of detention.

Point 3: It is urged on behalf of the Petitioner that the ship''s manifest of the vessel M.V. Chidambaram the search warrants in respect of the

Petitioner and his associates Chandrakanth Shah, Manicka Rao and Ramachandran, the bail applications of the Petitioner and his associates and

the orders thereon which have been referred to in the grounds of detention, have not been furnished to the Petitioner along with the grounds and

the order is vitiated thereby. It is admitted in the counter filed by the first. Respondent that these documents were not furnished to the detenu. But,

according to the learned Public Prosecutor they were not relied on by the detaining authority and there was only a passing reference to them in the

grounds of detention and hence their non-supply to the detenu does not invalidate the order of detention. It is further pointed out that after the

detenu asked for these documents copies have been furnished and the detenu is not, therefore, prejudiced. The grounds of detention furnished to

the detenu specifically refer to the ship''s manifest which contains the list of the goods of passengers, the search warrants, the bail applications and

the orders passed thereon and these documents must have influenced the mind of the detaining authority one way or the other and the non

furnishing of copies of these documents is fatal to the order of detention. As pointed out by the Supreme Court in Smt. Shalini Soni and Others Vs.

Union of India (UOI) and Others,

The Constitution and the statute cast a duty on the detaining authority to communicate the grounds of detention to the detenu. From what we have

said above, it follows that the grounds communicated to the detenu must reveal the whole of the factual material considered by the detaining

authority and not merely the inferences of fact arrived at by the detaining authority. The matter may also be looked at from the point of view of the

second facet of Article 22(5). An opportunity to make a representation against the order of detention necessarily implies that the detenu is

informed of all that has been taken into account against him in arriving at the decision to detain him. It means that the detenu is to be informed not

merely, as we said, of the inferences of fact but of all the factual materials which have led to the inference of fact. If the detenu is not to be so

informed, the opportunity so solemnly guaranteed by the Constitution becomes reduced to an exercise in futility. Whatever angle from which the

question is looked at, it is clear that ''grounds'' in art 22(5) do not mean mere factual inferences but mean factual inferences plus factual materials

which factual inferences. The ''grounds'' must be self-sufficient and self-explanatory. In our view, copies of documents to which reference is made

in the ''grounds'' must be supplied to the detenu as part of the ''grounds''.

In HiritKumar Chimanlal Kundalaya v. Union of India AIR 1981 S.C. 691, the learned Judges again pointed out:

Once the documents are referred to in the grounds of detention it becomes the bounden duty of the detaining authority to supply the same to the

detenu as part of the grounds or pari passu the grounds of detention.... Thus, it is absolutely clear to us that whether the documents concerned are

referred to, relied upon or taken into consideration by the detaining authority they have to be supplied to the detenu as part of the grounds so as to

enable the detenu to make an effective representation immediately on receiving the grounds of detention.

(emphasis ours).

The fact that the documents have been subsequently at the request of the detenu furnished to him will not absolve the detaining authority of its

liability for the non-furnishing of the documents along with the grounds. In Mohd. Zakir Vs. Delhi Administration and Others, Administration, some

of material documents were furnished subsequently and the learned Judges held that this infirmity is clearly violative of the Constitutional safeguard

enshrined Article 22(5) of the Constitution of India. It was observed:

It is manifest that the question of demanding the documents is wholly irrelevant because it is the Constitutional mandate which requires the detaining

authority to give the documents relied on or referred to in the order of detention pari passu the grounds of detention in order that the detenu may

make an effective representation immediately instead of waiting for the documents to be supplied with;

We are, therefore, constrained to hold that the non-supply of the aforesaid documents infringes the Constitutional mandate laid down in Article

22(5) of the Constitution and renders the order of detention invalid.

Point 4: It is the contention of the learned Counsel for the Petitioner that before the baggages arrived by sea are opened and checked the

concerned person must file his declaration and should produce the bill of lading and delivery order and it is the misdirection or concealment or the

products being at variance either in quantity or in nature with what is contained in the declaration form, which constitutes an offence. But, in this

case, the Customs department has opened the baggages, checked and seized the goods without getting any declaration from the Petitioner or his

associates and even without the bill of lading or delivery order and this aspect has not been taken into consideration by the detaining authority. In

the first Respondent''s counter it is not denied that the declaration form has not been obtained from the Petitioner or his associates. But, it is

contended that these were not bona fide baggages and the Customs authorities are, therefore, entitled to lay their hands on the unaccompanied

baggages containing large number of V.C. Rs. watches, calculators, textiles, etc., in violation of the Import Trade Control Regulations. The

question is not whether the Customs officials were entitled to open the baggages without the necessary declarations, but, whether the detaining

authority has taken this fact into consideration. Admittedly this fact has not been placed before the detaining authority and the detaining authority

has not applied its mind to this aspect of the matter. The order of detention is not, therefore, sustainable on this ground also.

Point 5: Mr. B. Kumar, learned Counsel for the Petitioner, challenged the validity of S. 9(l) of the Act, as amended by the amending Act 58 of

1984 as not complying with the requirements laid down in CI. (7) of Article 22(5) of the Constitution of India, because the section merely

enumerates Cls. (i), (ii) and (iii) of S. 3(1) of the Act and this is not what is contemplated by the words ''class or classes of cases'' laid down in

Article 22(7)(a) of the Constitution and the declaration made under S. 9(1) of the Act is void. It is needless to go into this question for the purpose

of this writ especially when no notice has been issued to the Attorney-General. The learned Counsel for the Petitioner did not also seriously

canvass this question. The question is, therefore, left open.

Point 6: According to the learned Counsel for the Petitioner, the Petitioner sent a representation to the Government of Tamil Nadu on

17.2.1987 and this representation had not been placed before the second Respondent before he passed the impugned declaration under S. 9(1) of

the Act on 3.3.1987 and hence, there has been no proper application of the mind of the authority making the declaration. But, it must be

remembered that the Petitioner''s representation has been addressed only to the State of Tamil Nadu and not to the Union of India and there was

no obligation on the part of the Government of Tamil Nadu to send this representation to the Government of India. There is also nothing to show

that the Government of Tamil Nadu were aware of the fact that the declaration under S. 9(1) of the Act was in contemplation and failed to send

this representation to the Government of India. In Ratan Singh v. State of Punjab AIR 1982 P&H 1 relied on by the learned Counsel for the

Petitioner the detenu had sent his representation to the State Government and the Central Government simultaneously through the Jail

Superintendent. The Jail Superintendent failed to forward the same to the Central Government or to forward it to the State Government with a

request for onward transmission to the Central Government, with the result, it was held, that the detenu has been unaccountably deprived of a

valuable right to defend and assert his fundamental right. In the case on hand no representation has been made to the Central Government by the

Petitioner and the failure of the State Government to forward the representation made to themselves to the Central Government cannot vitiate the

declaration made under S. 9(1) of the Act.

In view of our findings on points 1, 3 and 4, the order of detention passed by the first Respondent-State of Tamil Nadu has to be quashed.

When the order of detention under S. 3(1)(i) of the Act fails, the declaration under S. 9(1) of the Act becomes infructuous.

In the result the writ petition is allowed, the order of detention made by the first Respondent is quashed and the Petitioner is directed to be set

at liberty forthwith.

We do not find any substantial question of general importance which needs to be decided by the Supreme Court. Hence, leave asked for is

refused.