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1988 Supreme(SC) 399
SUPREME COURT OF INDIA
A.P. Sen and L.M. Sharma, JJ.
Rajendra Kumar Natvarlal Shah - Petitioner
versus
State of Gujarat and others - Respondents
Criminal Appeal No. 319 of 1988
AND
Writ Petition (Criminal) No. 906 of 1987
Both Decided on 10-5-1988
IMPORTANT POINT
In cases of preventive detention the test of proximity is not rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention, it all depends on the nature of the acts relied on.
Headnote:(i) Constitution of India, 1950 - Article 22(5) -Preventive Detention - Procedural safeguards provided are to be strictly observed -The obligation on the part of the detaining authority to furnish the grounds - The right given to the detenu to have an earliest opportunity to Blake the representation - 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-The court must be circumspect in striking down the impugned order of detention where it meets with the requirements of Article 22(2) of the Constitution.
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)
JUDGMENT
A.P. Sen, J. -This appeal by special leave brought from the judgment and order of the Gujarat High Court dated 21st November, 1987 and the connected petition under Article 32 of the Constitution are directed against an order passed by the District Magistrate, Panchmahals, Godhra dated 28th May, 1987 for the detention of the appellant under sub-section (2) of section 3 of the Gujarat Prevention of Anti - Social Activities Act, 1985 on being satisfied that it was necessary to do so, with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
2. It is now an undisputed fact that the appellant is engaged as a commission agent or broker in the rather lucrative but illicit business of liquor traffic at Godhra in the State of Gujarat where there is total prohibition by importing different varieties of Indian made foreign liquor in sealed bottles like scotch whisky, beer etc. from wine merchants of Vanswada in the State of Rajasthan. But then by engaging himself in such activities he falls within the description of a bootlegger as defined in section 2(b) and therefore comes within the ambit of sub-section (1) of section 3 of the Act by reason of the legal fiction contained in sub-section (4) thereof.
3. Put very briefly, the essential facts are these. On prior information that the appellant was about to import Indian made foreign liquor in bulk in truck bearing registration No. GRY 3832, on the night between 29/30th December, 1986, the Gujarat police put up a road block on the bridge near Machan River where on a sign given it failed to stop. After a long chase, the police jeep was able to intercept the truck at Limdi. Both the driver Ahmed Saiyad Abdul Majid Kalander and cleaner Sadique Ahmed Yusuf Durvesh Shaikh got down and said that the truck was empty. However, on a search it was found to be laden with 77 sealed cases containing 2040 bottles of different brands of scotch whisky, beer etc. and it was evident from the statements of the driver and the cleaner who were arrested, that the appellant was the person who had purchased the liquor from wine merchants of Vanswada. On 4th January, 1987 the statements of the witnesses were recorded. Apparently, the appellant absconded and he could not be traced till 2nd February, 1987 when he was arrested but later released on bail. In the meanwhile, he moved the Sessions Judge, Panchmahals for anticipatory bail on 21st January, 1987 but no orders were passed inasmuch as the police made a statement that there was no proposal at that stage to place him under arrest. The appellant is being prosecuted for various offences under the Bombay Prohibition Act, 1949 as applicable to the State of Gujarat, in Criminal Case No. 154/86. On 28th May, 1987 i.e. after a lapse of five months the District Magistrate, Panchmahals, Godhra passed the order of detention along with the grounds therefore which was served on the appellant on the 30th when he was taken into custody. The immediate and proximate cause for the detention was that on 29/30th December, 1986 he transported in bulk foreign liquor from liquor merchants of Vanswada in the State of Rajasthan intended and meant for delivery to persons indulged in anti-social activities by doing illicit business of foreign liquor in the State of Gujarat. Incidentally the grounds furnish particulars of two other criminal cases, namely, (i) Criminal Case No. 303/82 on account of recovery of 142 bottles of foreign liquor recovered and seized from his residential house on 21st July, 1982, but the case ended in an acquittal as the prosecution case witnesses turned hostile, and (ii) Criminal Case No. 150/86 relating to recovery and seizure of 24 bottles of foreign liquor from his house on 30th May, 1986 which case was still pending. It was said that persons like the appellant bringing foreign liquor from other States illegally without a permit on a brokerage and storing the same in their premises are not easily detected
