Anil Kumar Aggarwal vs State of Punjab and Others

V.S. Aggarwal, J.—Petitioner Anil Kumar Aggarwal has been detained vide an order dt. 29-9-1995 under the Conservation of Foreign Exchange and prevention of Smuggling Activities Act, 1974. By virtue of the present petition, he seeks quashing of the order of detention alleging it to bee punitive.

The relevant facts which would crystallise the question in controversy can briefly be stated.

Acting on a specific information ajoint raid was conducted by the Customs Officer of Ludhiana and Punjab Police on 29-3-1995 at the residence of the petitioner. A search was conducted. The following items were recovered. --

(i) 6 gold biscuits of foreign weighing 10 totes each valued at Rs. 3,25,425.60

(ii) Foreign currency as under :-- (a) US Dollars 69,949 (b) UK Pounds 28,700 (c) Canadian Dollars 30,214 (d) Deutsch Mark 32,550 (e) Saudi Rials 4,700 (iii) Indian currency Rs. 7,80,900.00 (Total value of seized property Rs. 62.11 lacs).

The recovered gold biscuits were checked for purity and from a Government approved valuer. He verified these biscuits to be foreign origin of 25 carrot purity. The petitioner is alleged to have allegedly tendered a statement dated 29-3-1995 before the Superintendent of Customs, Ludhiana u/s 108 of the Customs Act, wherein the petitioner admitted the recovery of gold biscuits besides foreign and Indian currency. He also-stated that he was receiving gold biscuits of foreign origin from a person named Tarun at his residence for selling at a local market whose address and telephone number was not known to the petitioner. The petitioner also admitted that he had sold gold biscuits through one broker named Toti and some to. M/s, Anand Jewellers, M/s. Sham Diamonds, M/s. Narain Jewellers and M/s. Gold Jewellers of Sarafan Bazar, Ludhiana. Petitioner admitted that he used to procure foreign currency from one person named Paaly and sometimes purchased foreign currency from one Dev of Barsati Bazar, Ludhiana. Further action was taken and certain other recoveries from other persons had been effected. The petitioner was arrested for the offence punishable u/s 104 of the Customs Act and produced before the Chief Judicial Magistrate, Ludhiana. His bail application was rejected by the Chief Judicial Magistrate and even by the Sessions Judge, Ludhiana. The petitioner was admitted to bail by this Court on 12-6-1995.

Respondents'' case was that on account of the said activities namely being engaged in receiving, selling, keeping and disposing of smuggled goods, the detention of the petitioner was necessary to prevent him from indulging in prejudicial activities in future. The order of detention followed. The order of detention was passed on 29-9-1995 and served on the petitioner on 119-8-1996.

The petitioner''s case while assailing the said order of detention is that the satisfaction of the detaining authority is not real but is mala fide. There has been inordinate delay in passing the order of detention because as per him the search was conducted on 29-3-1995 and the order of detention was passed on 29-9-1995. There was-delay of 6 months which indicates that there was no link with the recovery and the order of detention so passed. Further more as per the petitioner, the order of detention was executed after one year. No effort was made to implement the same. The statements alleged to have been made by the petitioner u/s 108 of the Customs Act were also contended to be incorrect. The authorities were stated to have not applied their mind and the order so passed was by a person having no authority. Even the representation of the petitioner was not considered and decided promptly.

The petition has been contested. In the reply filed by the Punjab Government, it was insisted that statement made u/s 108 of the Customs Act was voluntary. But it was denied that order had been passed without application of mind or is illegal. The same is stated to have been filed after going through the facts and circumstances of the case and proper application of mind. As regards delay in passing of the detention order, the reply indicated that proposal was received from the sponsoring authority on , 3-8-1995. After proper application of mind and subjective satisfaction, the order of detention was passed on 29-9-1995. It was served on the petitioner on 19-8-1996. It could not be served upon the petitioner because he was not available at his house. Efforts were made by the local police for serving the order of detention along with grounds of detention but his house was always found locked. On 19-8-1996 the petitioner was apprehended outside the Court room of Chief Judicial Magistrate, Ludhiana and thereupon the grounds of detention and the order were served. It was denied that the order had been passed by the authority having no sanction of law or that the representation was not properly considered in time.

Respondent No. 2 in the separate reply filed also justified the detention order on basis of the search and the statement made, followed by the subsequent searches that were effected. The mention of the same had already been made above.

Respondent No. 3 in his reply pointed that a representation addressed to the Governor of Punjab and a copy to the President of India. Advisory Board and Detaining Authority had been received. The Superintendent Jail (respondent No. 3) sent the same to the concerned authorities on 27-9-1996. The representation was considered and rejected by the Government of India vide order dated 17-10-1996. It was received on 18-10-1996 and served on the petitioner on 19-10-1996. The State of Punjab considered the representation of the petitioner and rejected it vide order dated 18-10-1996. It was received by respondent No. 3 on 16-11-1996. On the same day it was served on him.

At the time of arrguments, large number of pleas had been taken and urged but the petition is liable to be allowed on the short ground that there has been inordinate delay in passing the order of detention and thereafter implementing the same. It is well settled that there has to be a link between the grounds of criminal activity alleged against the detenu for the purpose of detention. The link may be snapped if there is a long delay between the alleged activity and the order of detention. Reference to some of the precedents in this regard is advantageous. In the case Golam Hussain alias Gama Vs. The Commissioner of Police Calcutta and Others, , there was an inordinate delay of 9 months. The Supreme Court considered this argument and held that all depends on the nature of act relied upon, grave and determined or less serious on the gap that occurs. In paragraph 5 the Supreme Court held : --

Another submission, equally an exercise in futility, made before us is that there has been a long interval of nine months between the criminal incidents of October and November, 1972, and the detention order of July, 1973. Counsel hopefully relied on a recent decision of this Court in Lakshman Khatik Vs. The State of West Bengal, and an earlier decision in Rameshwar Shaw Vs. District Magistrate, Burdwan and Another, . It is true that there must be a live link between the grounds of criminal activity alleged by the detaining authority and the purpose of detention, namely, inhibition of prejudicial activity of the species specified in the statute. This credible chain is snapped if there is too long and unexplained an interval between the offending acts and the order of detention.

This question was again considered in the case of Sk. Serajul Vs. State of West Bengal, . It was emphasized that order of detention should be passed at the earliest so that the link or in other words the purpose to stop such a nefarious activity is estopped. In paragraph 2 the Court observed : --

Mr. Chatterjee, learned counsel appearing on behalf of the State of West Bengal, contended that the State was not expected to render any explanation in regard to the delay in making the order of detention and arresting the petitioner because no such complaint was made in the petition. But this is hardly an argument which can avail the State when it is called upon to answer a rule issued on a petition for a writ of habeas corpus. It is the obligation of the State or the detaining authority in making its return to the rule in such a case to place all the relevant facts before the Court and if there is any delay in making the order of detention or in arresting the detenu, which is prima facie unreasonable, the State must give reasons explaining the delay. Here there is no explanation for the delay which has occurred at both stages and in the absence of such explanation, we are not at all satisfied that the District Magistrate, Burdwan applied his mind and arrived at a real and genuine subjective satisfaction that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner. The condition precedent for the making of the order of detention was, therefore, not satisfied, and consequently, the order of detention must be quashed and set aside.

The principle that there should be no such delay was reiterated by the Supreme Court in the case of Smt. Hemlata Kantilal Shah Vs. State of Maharashtra and another, . Considering a similar argument in paragraph 7 it was held : --

The submission of learned counsel is that his grievance is not so much on the time-lag or delay between the date of arrest and the date of detention; his real grievance is in not furnishing with the information as to the cause of the delay so as to enable the detenu to file a proper representation before the Advisory Board for its consideration. In our opinion, the submission is untenable. The detaining authority is in no legal liability to tell or satisfy the Court as to the causes 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 our opinion, the delay has been satisfactorily explained by the authority in its affidavit and it has not vitiated the detention.

Subsequently, in the case of Shiv Ratan Makim Vs. Union of India (UOI) and Others, the Supreme Court noted that no hard and fast rule can be made as to when this link would be snapped but the order of detention should be passed at the earliest. There should be reasonable explanation if there is delay. In paragraph 5 the Court observed : --

It is no doubt true that where an unreasonably long period has elapsed between the date of the incident and the date of the order of detention, an inference may legitimately be drawn that there is no nexus between the incident and the order of detention and the order of detention may be liable to be struck down as invalid. But there can be no hard and fast rule as to what is the length of time which should be regarded sufficient to snap the nexus between the incident and the order of detention.

Under the National Security Act, where the provisions are not much in difference the Supreme Court in the case of Yogendra Murari Vs. State of U.P. and Others, took the same view and noted that order of detention should be passed without delay. Same was the conclusion in the case of Smt. K. Aruna Kumari Vs. Government of Andhra Pradesh and Others, . It is obvious from aforesaid that while there cannot be any hard and fast rule as to within what period the order of detention should be passed but it should be done at the earliest. The link between the purpose for which it is passed and the, date when it comes to the notice of the authority about the activities should not be snapped. The delay if any should be explained satisfactorily.

In the present case in hand the alleged search was effected on 29-3-1995. The statement u/s 108 of the Customs Act is purported to have been made shortly thereafter on 29-3-1995. The order of detention is of 29-9-1995 i.e. to say after the expiry of six months. The reason for delay has been given by the State of Punjab in the following words :-

That the contents of sub-para ''B'' of para No. 11 of the petition are denied being incorrect. Detention proposal was received from the sponsoring authority on 3-8-95 and after going through the facts and circumstances of case and after proper application of mind and subjective satisfaction, the order of detention was passed against the petitioner on 29-9-95 and order of detention was served upon the petitioner on 19-8-96. It is further submitted that the order of detention should not be served upon the detenu earlier as he was not available at his home. Efforts were made by the local police for serving the order of detention alongwith the grounds of detention upon the detenu many times and his house was found locked every time and as such the detention order could not be served upon him. It is further submitted that on 19-8-96 the detenu was apprehended outside of Court room of Hon''ble Chief Judicial Magistrate, Ludhiana when he was present to attend Court for hearing. It is further submitted that the detenue was not available for about 10 months and as such the order of detention could not be served upon him. There is no tentional delay in passing the order of detention serving upon the petitioner. Rest of the para is denied being incorrect.

This delay that the order of detention was passed after such a long time is totally unsatisfactory. The sponsoring authority did not care to move for almost 41/2 months. There has been total inaction and lethargy. If they genuinely wanted the petitioner to detain, there was no reason as to why the order should not have been passed on an earlier occasion. It can, therefore, easily be described to be punitive rather than preventive.

Another fact co-linked with the same is the delay in implementation of the order. The recitation of facts above indicates that order was executed almost one year of the same having been passed. As already indicated above, the reason for delay given is that the petitioner was not available and, therefore, the order could not be executed because the house of the petitioner was found locked. The Supreme Court in the case of Abdul Salam alias Thiyyan Vs. Union of India and others, took note of this particular argument and concluded that mere delay in arresting the detenu cannot prove fatal but the delay must be explained. In the concluding paragraph it was observed (Para 15 of Cri LJ): --

It can therefore be seen that on the mere delay in arresting the detenu pursuant to the order of detention the subjective satisfaction of the detaining authority cannot be held to be not genuine. Each case depends on its own facts and circumstances. The Court has to see whether the delay is explained reasonably. As mentioned above, in the instant case, we are satisfied with the explanation for the delay in arresting the detenu. Therefore this contention is also liable to be rejected. For all the above-mentioned reasons, the appeal is dismissed.

Same view and findings were returned in the case of T.A. Abdul Rahaman Vs. State of Kerala and others, that the delay between the date of the order and the date of securing the arrest should be explained. In paragraph 12 after rectifying various precedents, the Court held :--

Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu, such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legitimate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detaining the detenu with a view to preventing him from acting in a prejudicial manner.

Reference can well also be made to the decision in the case of K.P.M. Basheer Vs. State of Karnataka and another, which is to the same effect.

The explanation as already referred to above if true could prevail. If the petitioner was not traceable, necessarily there would be delay in execution of the same. However, the petitioner alleges that he has been appearing in the Court on 14-10-1995, 13-11-1995, 19-1-1996, 27-4-1996 and 3-8-1996. This fact has not been denied in the reply of the State. Once the petitioner was appearing and attending the Court, there was no occasion as to why he could not be arrested as was done one year subsequently. It appears that the State was not keen to implement the order thereby frustrating the purpose for which it seemingly was passed. The delay, therefore, is totally unexplained and must prove fatal in the facts of the present case.

Keeping in view the aforesaid, it becomes unnecessary to consider the other arguments.

For these reasons, the petition is allowed and the impugned detention order is quashed.