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SUPREME COURT OF INDIA
A.P. SEN AND L.M. SHARMA, JJ.
Rajendrakumar Natvarlal Shah, Appellant
Versus
State of Gujarat and others, Respondents.
Criminal Appeal No. 319 of 1988 (In SLP. No. 3465 of 1987) and Writ Petn. (Criminal) No. 906 of 1987, D/- 10-5-1988.
Held, there is an inexorable connection between the obligation on the part of the detaining, authority to furnish the grounds and the right given to the detenu to have an earliest opportunity to make the representation. Since, preventive detention is a serious inroad on individual liberty and its justification is the prevention of inherent danger of activity prejudicial to the community, the detaining authority must be satisfied as to the sufficiency of the grounds which justify the taking of the drastic measure of preventive detention. The requirements of Article 22(5) are satisfied once basic facts and materials which weighed with the detaining authority in reaching his subjective satisfaction are communicated to the detenu. The test to be applied in respect of the contents of the grounds for the two purposes are quite different. For the first, the test is whether it is sufficient to satisfy the authority, for the second, the test is whether it is sufficient to enable the detenu to make his representation at the earlier opportunity which must, of course, be real and effective opportunity. The Court may examine the grounds specified in the order of detention to see whether they are relevant to the circumstances under which preventive detention could be supported e.g. security of India or of a State, conservation and augmentation of foreign exchange and prevention of smuggling activities, maintenance of public order, etc. and set the detenu at liberty if there is no rational connection between the alleged activity of the detenu and the grounds relied upon, say public order. (Para 8)
(ii) Constitution of India - Article 22(5) - Gujarat Prevention of Anti. Social Activities Act, 1985 - Section 3(2) - Detention order under - Challenged-Admitted delay or five months in making the impugned order - Whether fatal to the order ?-(No) - A distinction must be drawn between tile delay in making an order of preventive detention and the delay in complying with the procedural safeguards of Article 22(5) - Rule as to unexplained delay in taking action is not in8ezible-(Delhi High Courts decisions: Crl. W.P. 410/86 dated 1-2-1985, 1986 DLT 493; Crl. W. No. 375/86 dated 11-12-1986; Crl. W. No. 444/86 dated 9-3-1987 and Crl. W. No. 43/84 dated 16.4.19114 are overruled)
Held, in cases of mere delay in making of an order of detention under a law like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence have been posing a serious threat to the economy and thereby to the security of the nation, the Courts should not merely on account of delay in making of an order of detention assume that a such delay, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. Taking of such a view would not be warranted unless the Court finds that the grounds are stale or illusory or that there is no real nexus between the grounds and the impugned order of detention. (Para 10)
(iii) Preventive Detention - Effect of Unexplained delay in making the order of detention - Supreme Courts decisions on the point. (Para 12).
(iv) Gujarat Prevention of Anti-Social Activities Act, 1985 - Preventive detention - Order under section 3(2) - Challenged as punitive as the detenu was on ban in a Criminal Case - However, faits showing compelling necessity to detain him - Order is sustainable. (Para 13)
(v) Gujarat Prevention of Anti - Social Activities Act. 1985- Sections 3(1) and 3(2) - Order of detention observations made regarding the use of unnecessary verbiage by the detaining authority, which are of little or no consequence. (Para 14)
(1987) 2 Crimes 449 (Delhi) (Overruder which the impugned order was passed, the detaining authority would necessarily insist upon sufficiency of the grounds which would justify the taking of the drastic measure of preventively detaining the person.
10. Viewed from this perspective, we wish to emphasise and make it clear for the guidance of the different High Courts that a distinction must be drawn between the delay in making of an order of detention under a law relating to preventive detention like the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 and the delay in complying with the procedural safeguards of Art. 22(5) of the Constitution. It has been laid down by this Court in a series of decisions that the rule as to unexplained delay in taking action is not inflexible. Quite obviously, in cases of mere delay in making of an order of detention under a law like the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence have been posing a serious threat to the economy and thereby to the security of the nation, the Courts should not merely on account of delay in making of an order of detention assume that such delay, if not satisfactorily explained, must necessarily give rise to an inference that there was no sufficient material for the subjective satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached. Taking of such a view would not be warranted unless the Court finds that the. grounds are stale or illusory or that there is no real nexus between the grounds and the impugned order of detention. The decisions to the contrary by the Delhi High Court in Anil Kumar Bhasin v. Union of India, (Crl. W. No. 410/86 dated 2-2-1987) (reported in 1987 Cri LJ 1632), Bhupinder Singh v. Union of India, (1985) 28 Delhi LT 493, Anwar Esmail Aibani v. Union of India (Crl. W. No. 375/86 dated 11-12-1986) (reported in (1987) 3 IJ Rep 383), Surinder Pal Singh v. M. L. Wadhawan, (Crl. W. No. 444/86 dated 9-3-1987) (1987 (2) Crimes 449) and Ramesh Lal v. Delhi Administration (Crl. W. No. 43/84 dated 16-4-1984) and other cases taking the same view do not lay down good law and are accordingly overruled.
11. In the present case, the direct and proximate cause for the impugned order of detention was the importation in bulk of Indian made foreign liquor by the appellant acting as a broker from across the border on the night between 29/30th December, 1986. The District Magistrate in the counter-affidavit has averred that it was revealed from the statements of the witnesses recorded on 4th January, 1987 that the appellant was the person actually involved. Apprehending his arrest the appellant applied for anticipatory bail on 21st January, 1987. It appears that on the same day the appellant (sic) appears to have made a statement that there was no proposal at that stage to arrest the appellant. However, later it was discovered that there was no trace of the appellant. He was arrested on 2nd February, 1987 and on the same day he made a statement admitting these facts. Meanwhile, the proposal to detain the appellant was placed before the District Magistrate. It is averred by the District Magistrate that on a careful consideration of the material on record he was satisfied that it was necessary to make an order of detention of the appellant under S. 3(2) of the Act and that accordingly on 28th May, 1987 he passed the order of detention. The appellant was taken into custody on 30th May, 1987. He had forwarded the report to the State Government on the 28th and the Government accorded its approval on the 31st.
12. Even though there was no explanation for the delay between 2nd February and 28th May, 1987 it could not give rise to a legitimate inference that the subjective satisfaction arrived at by the
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