M.A. Brosh Nainar vs State of Tamil Nadu

Pandian, J.—This writ petition is field by one Brosh Nainar under Art. 226 of the Constitution of India, seeking the issue of a writ of habeas

corpus quashing the order of detention passed by the respondent, namely, State of Tamil Nadu, against the petitioner''s brother by name Nainar

Khaja Mohideen alias Haja Mohideen alias Sultan Basheer and setting him at liberty.

The impugned order of detention was passed by the detaining authority in exercise of the powers conferred by S. 3(1)(i) of the Conservation of

Foreign Exchange and Prevention of Smuggling Activities Act 1974 (Central Act 52 of 1974) with a view to preventing the detenu from smuggling

goods and the detenu was directed to be detained and kept in the custody in the Central Prison, Madurai.

The brief facts as set out in the grounds of detention which necessitated the passing of the order of detention are as follows :-

On 29/30-5-1985 at about 1.15 a.m. the detenu arrived as a passenger by Indian Airlines flight and was cleared on oral declaration. He paid his

customs duty but he was intercepted at the exist gate by an intelligence officer of the Customs and he was taken for re-examination on a

reasonable belief that the detenu might have smuggled undeclared goods and contraband in his baggage. Before re-examination of the baggage, the

Customs Officer questioned the detenu as to whether the latter had kept any gold or watched either in his baggage or on his person to which the

detenu gave a negative reply. Thereafter, his baggages were examined and found to contain one National Radio cassettes and some other articles.

The detenu was taken into a closed room along with witnesses and constantly questioned. Then he admitted that he had kept gold bars concealed

in his rectum and volunteered to eject the same. He was taken to the toilet room situate inside the International passengers'' arrival hall where he

ejected one black colour bundle through his rectum in the presence of witness and the bundle was found to contain four numbers of gold bars with

foreign marking each weighing 10 tolas. As the detenu was not having any valid import licence or permit issued by the Reserve Bank of India for

the import of the above said four gold bars, those gold bars were seized. A statement was recorded from him on 30-5-1985. In a follow-up action

a wireless message was sent to the Inspector, C.C.P. Tondi, to inform the Assistant Collector of Central Excise, Customs Division, Ramnad, to

search the residential premises of the detenu. Accordingly, the house was searched and no incriminating document was found. On 13-6-1985, the

detenu wrote a letter to the Superintendent of Customs retracting from the alleged voluntary information given on 30-5-1985, complaining that it

was recorded by threat and coercion. The detenu was arrested on 30-5-1985 and produced before the Additional Chief Metropolitan Magistrate,

Economic Offences, Egmore and remanded to judicial custody. Then he was released on bail. A show cause notice was issued on 22-11-1985

but the same was returned undelivered on 9-12-1985.

On the basis of the above materials, the State Government on being satisfied that the detenu was indulging in smuggling activities, has passed the

impugned order of detention.

5-6. Mr. B. Kumar, learned counsel for the petitioner, has pressed only one contention challenging the validity of the impugned order though

several grounds have been raised in the affidavit filed in support of the writ petition. According to the learned counsel, considerable time has

elapsed between the date of the search and seizure of the contraband on 30-5-1985 and the date of the order of detention, namely 15-4-1986

and this long lapse of time, which has not been satisfactorily explained by the respondent, would vitiate the order of detention.

It cannot be disputed that there is delay in passing the order of detention, the delay being nearly eleven months. Now the question is, whether

this long lapse of time has been satisfactorily explained by the respondent. This ground is raised in para 9 of the affidavit which reads as follows -

The petitioner states that the occurrence is said to have taken place on 30-5-1985. But the order of detention has been passed nearly one year

later on 15-4-1986. The petitioner states that the occurrence has become stale and remote since that (sic) no satisfaction could be based on the

said fact. The petitioner states that this itself is a clear indication that the exercise of power under preventive detention by the respondent is a mala

fide exercise and a fraud on the power. Nobody could come to the conclusion subjective or otherwise, if the detenu is not detained he would

continue to indulge in such activity merely because in the remote past the detenu has alleged to have taken certain act which might amount to

contravention of Customs Act.

The respondent refutes the above contention in para 8 of its counter as follows :-

Regarding the averments made in para 9 of the affidavit, it is submitted that the contention in this para is not correct. Before a proposal is sent by

the Customs department to the respondent the case has to be investigated fully, which takes some time. In this case, investigation had to be done at

Trichi as well. The proposal was sent by the Customs department as soon as the investigation was completed and received by this respondent on

23-12-1985, and the detention order was issued on 15-4-1986. Thus it is evident that the time-lapse, for issuing detention order was only because

of the necessity for completing all connected investigation work and arriving at the subjective satisfaction by this respondent to issue the detention

order after sufficient application of mind and necessary consideration of all facts and materials relied upon.

According to Mr. B. Kumar, the explanation offered by the respondent that the time-lapse for issuing the order of detention was only because

of the necessity for completing all the connected investigation work and arriving at the subjective satisfaction by the respondent, is not a satisfactory

explanation. He would state that the relevant materials on the basis of which the detention order has been passed by the detaining authority are only

the statement of the detenu dated 30-5-1985 the alleged seizure of the gold on 30-5-1985, the mahazar prepared for the seizure on 30-5-1985

and the search-list for the search of his house on 31-5-1985. According to him, the show cause notice dated 22-11-1985, cannot be said to be a

material document, because if the detaining authority was satisfied even on the above materials excluding the show cause notice, he would have

passed that order. Hence, the reason given by the detaining authority that the time-lapse for issuing the detention order was only because of the

necessity for completing all connected investigation cannot be accepted. In support of his contention, learned counsel would cite several decisions

of the Supreme Court which we shall presently refer to.

In Smt. Hemlata Kantilal Shah Vs. State of Maharashtra and another, the Supreme Court, after referring to the principles laid down in

Lakshman Khatik Vs. The State of West Bengal, , SK. Abdul Munnaf Vs. The State of West Bengal, and Rabindra Kumar Ghosel alias Buli Vs.

The State of West Bengal, has held as follows :-

Delay ipse 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.

In yet another portion of the same judgment, their Lordships pointed out -

The detaining authority is in no legal liability to tell or satisfy the detenu as to the causes of delay; it is under an obligation to satisfy the court as to

the causes of delay to show that there was no infraction of the constitutional provisions laid down under sub-art. (5) of Art. 22 of the Constitution.

In Ravindra v. State of Karnataka, 1984 Cri LJ 45, a division Bench of the Karnataka High Court while dealing with the question of delay not

satisfactorily explained, has observed thus -

If there is an inordinate delay between the acts imputed to the detenu and the order of detention, then the rationality of the nexus tends to snap.

This is where a reasonable explanation for the delay becomes relevant and material. If there is an unexplained delay, the order of detention

becomes bad on the ground that there is really no application of the mind of the detaining authority and, therefore, there is no genuine subjective

satisfaction at all.

Then, in another part of the same judgment, it has been pointed out thus -

It is no doubt true that delay, by itself, does not vitiate the detention, but when the delay is such as to take away the rational nexus between the

ground on which the subjective satisfaction is sought to be reached and the objects to be served by the detention, the delay invalidates the

detention.

See also Kanmal Vs. The State of Tamil Nadu and Another, rendered by a Bench of this Court to which one of us (Ratnavel Pandian, J.) was a

party.

In a recent decision, the Supreme Court in Shiv Ratan Makim Vs. Union of India (UOI) and Others, has laid down the following dictum -

It is no doubt true that where an unreasonably long period has elapsed between the date of the incident and 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.

When we examine the facts of the present case, in the light of the proposition of law laid down in the above decisions, we find that the lapse of

time that had occurred in this case, viz., for nearly eleven months, is not at all explained much less satisfactorily, in the counter filed on behalf of the

respondent. When we, having in view the principles laid down by the Supreme Court in Ashok Narain Vs. Union of India (UOI) and Others,

asked the learned Additional Public Prosecutor as to whether the detaining authority in this case has taken into consideration the delay that had

occasioned in this case before passing the order of detention, on referring to the file he would state that there is nothing in the file to show that the

delay had been considered by the detaining authority before the order of detention was passed. As rightly pointed out by the learned counsel for

the petitioner, even without the show cause notice the sponsoring authority would have initiated action for passing the impugned order on the

materials available with them and which are the materials now relied upon by the detaining authority. Under these circumstances we are of the view

that the long delay in the present case has not been properly explained. Moreover, the respondent has not given any particulars for that delay to the

satisfaction of the court even for passing the order by a delay of four months from the date of receipt of the materials on 23-12-1985 till the date of

passing of the order of detention on 15-4-1986.

In the result, the writ petition is allowed; the order of detention is quashed and the detenu is directed to be set at liberty forthwith.

Petition allowed.