BHAWARLAL GANESHMALJI v. STATE OF TAMIL NADU & ANR.
Citation: [1979] 2 S.C.R. 633; 1978 INSC 254
Court: Supreme Court of India
Bench: N.L. UNTWALIA , O. CHINNAPPA REDDY
Judgment date:
Case summary
1978 INSC 254. Supreme Court of India judgment dated 1978-12-11. BHAWARLAL GANESHMALJI v. STATE OF TAMIL NADU & ANR. Read the judgment and case details on...
Judgment text
··~. • 63 3 BHAW ARLAL GANESHMALJI v. STATE OF TAMIL NADU & ANR. December 11, 1978 [N. L. UNTWALIA AND 0. CHINNAPPA REDDY, JJ. ] Conservation of Foreign Exchange and Prevention of Smuggling Activities A. ct 1974-0rder of detention made-Detenu absconded for 3 years and later surrendered-Live and proximate link between grournl.. r of detention and purpose of detention-Whether snapped. A B Constitution of India 1950-Article 22(5)-0rder of detention made on C . tht basis of intelligence report-Necessity to disclose the identity of the author of the report and the material on which the report is based-Detenu 1101 clainiing di. Jclosure-Whether detenu can assail such order of deten- tion. An order of detention under the Conservation of Foreign Exchange and Prevention of Smuggling ' Activities Act, 1974 was passed in December D 1974 against the appellant.
But it could not be executed because the detenu was absconding and could not be apprehended despite a proclamation made under section 7 of the Act. More than three years after the order was passed, the appellant surrendered in February, 1978. His application for a writ of habeas corpus was rejected by the High Court. In his appeal against the judgment of the High Court as well as in a petition E under Art. 32 of the Constitution raising grounds not raised before the High Court, the appellant contended that ( 1) the detention order made more than three years before its execution must be considered to have lapsed without fresh application of the mind of the detaining authority to the facts and circumstances of the case, (2) all the four persons who had made statements against the detenu had resiled from .
their earlier statements long before the order of detention and the failure of the detaining authority to consider suc1t F vital material vitiated the order of detention, and (3) the detention order was not based upon any "rationally probative" material, intlsmuch as it was based upon an intelligence report, not disclosed to the detenu and that this had resulted in denial to the detenu of his fundamental right under Art. 22(5) of the c·onstitlltion. Dismissing the appeal anP. writ petition, HELD : I. It is well settled that the purpose of detention under the COFEPOSA is not punitive but preventive, th3. t is to staiy, its purpose is to prevent organised smuggling activities and to conserve and augment Foreign Exchange, that the maximum period of detention under the Act is one year, and that there must be a 'live and proximate link' between the grounds of detention and the avowed purpose of detention.
But in appropriate aises the Court can assume that the link is 'snapped' if there is a long and unexplain~ I the detaining authority to consider such vital material before '-1! rriving at its subjective satisfaction vitiated the ground and, therefore, the order of detention itself. Shri Jethmalani urged that the order of detention had necessarily to be struck down even if a single ground out of many was bad since the order had been made at a time when Section SA of the COFEPOSA had not yet been brought into the Statute Book. In regard to the second ground of -detention the submission of Shri Jethmalani was that it was not based upon any "rationally probative" material. The ground WaS invalid inasmuch as it was based upon an intelligence report.
It was further <:ontended that the ground would be innocuous without the aid of the intelligence report mentioned therein and since no privilege was claimed in respect of the intelligence report, the identity of the author of the report should have been disclosed as also the material on which the report was based. Failure to do so had resulted in a denial of the petitioner's fundamental right, under Article 22(5) of the Constitu- tion. Shri A. V. Rangam, learned Counsel for the State of Tamil Nadu 11rged that the appellant-petitioner was himself responsible for the long delay in the execution of the order of detention and he could not be allowed to take advantage of his own wrong. With r~gard to the first ground of detention he submitted that the circumstance that the persons who had incriminated the detenu had rcs1led from their former statements had been mentioned in the adjudication order passed by the Customs authorities and that order had been placed befo!
'~ the detaining authority before the order of detention was made. In regard to the second ground of detention the learned Counsel argued that it was not based merely on the intelligence B c D E F G B B 'c D E F 63 8 SUPREME COURT REPORTS [ 1979] 2 s. c. R. report and in any case, since no privilege was claimed, it was always open to ilie detenu to have asked for more particulars ii he so desired, but which he failed to do. Tt is true that the purpose of detention under the COFEPOSA is not punitive but preventive. The purpose is to prevent organised smuggling activities and to conserve and augment Foreign Exchange. It ls true that the maximum period for which a person may be detained under the COFEPOSA is one year. It is further true that there must be a 'live and proximate link' between the grcunds of detention alleged by the detaining authority and the avowed purpose of detention namely the prevention of smuggling activities.
We may in appropriate cases assume that the link is 'snapped' if there is a long and unexplained delay between the date of the order of deten- tion and the arrest of the detenu. In such a case we may strike down an order of detention unless the grounds mdicate a fresh appli- catio~ of the mind of the detaining authority to the new ,;ituation an,sl/ the changed circumstances. But where the delay is not only ade- quately explained but is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the 'link' not snapped but strengthened. That, precisely, is the state of affairs before us. The order of detention was made on 19th December, 1974. The detenu was found to be absconding. Action 'was taken pursuant to Section 7 of the COFEPOSA and he was procl3irued as a person absconding under Section 82 of the Criminal Procedure Code.
The proclamation was published in several leading English and local language daily newspapers. His photograph was exhibited in Cinema halls. A reward of Rs. 5,000/- was also announced for his apprehension. Despite all this effort he could not be arrested until he surrendered on ! st February, 1978. We do not have any hesitation in over-ruling the submission of Shri Jetllmaiani based on the delay in the execution of the order of detention. G The second submission made on behalf of the de1e11u that the detaining authority had not before it the circumstance that the four persons who had made statements implicating the detenu had later, but Jong before the order of detention, resiled from their statements is also devoid of force. The proposition that the failure to place before the detaining authority relevant and material facts which may H influence the mind of such authority one way or the other will vitiate the order of detention is unexceptionable.
But a perusal of the first ground of detention shows that the detaining authority took into • • • . BHAWARLAL v. TAMIL NADU (Chinnappa Reddy, !. ) 63 9 consideration the circumstance that there were 'adjuoication' proceed- iHgs, that the currency was confiscated and that a penalty of Rs. 5,000/• was imposed on the detenu. It was not disputed and it was not alleged in the petition that the orde( vf adjudication by whlth the currency was confiscated and penalty was imposed did refer to the circumstance that persons who had made incriminatin5 stitteirients against the detenu had resiled from those statements. The circumstance that persons who had earlier incriminated the detcnu had later resiled from those statements was therefore, before the detaining authority.
There is thus no factual foundation for this submission of the learned Counsel, which we accordingly rejecL We now proceed to consider the last submission of the learned Counsel based on the reference to the contents of the intelligence report in the second ground of detention. It was pointed out by the petitioner's learned Counsel that the statement of Ramamurthy and Ganesan merely showed that the contraband was to be delivered to a :1farwari at Bangalore at an appointed place. It was the intelli- gence report alone that fixed the identity of the lvlarwari as the detenu. Without the intelligence report it would be impossible to connect the detenu with the person mentioned as the lvlarwari in the statements o[ Ganesan and Ramamurthy.
Now the submission ol the learned Counsel was that the identity of the author of the intelligence report as well as the report and the material on which the report was based ought to have been disclosed to the detenu if the detenu was to effec- tiYely exercise his fundamental right under Article 22 ( 5) of the Constitution and to make a representation against the order of detention. We agree with the learned Counsel for the petitioner that in order to make a representation against the oracr of detention and thus to exercise the fundamental right guaranteed by Article 22(5) of the Constitution, a detenu is entitled to be furnished with all essential particulars forming the basis of the grounds of detention. So it is that where insufficient particulars are mentioned in the grounds, the detenu is entitled to call for better particuhrs. That is a right which flows from the Constitutional right to be afforded a reasonable opportunity to make representation.
Of course, where the grounds are vague, no question would arise of the detenu asking for better particulars. But the present case is not a case of a vague ground. The ground is specific enough. IE the detenu wanted any mere particulars such as the name of the intelli[ence officer or other information, he could have well asked for the particulars. before making his representation. That he never did. It was not as if any privilege had been claimed by the Government in respect of the A B c D E F G H A B 640 SUPREME COURT REP OR TS [1979] 2 s. c. R. intelligence reports. In fact, we find that the intelligence reports were produced before the learned Judges of the High Court at the hearing of the Writ Petition there. There was no complaint hefore us that the detenu or his Counsel wanted to peruse the reports and were denied the opportunity of doing so.
We do not think that the detenu could be said to have been denied a reasonable opportu- nity of making a representation merely because particulars which he neyer desired in respect of a ground which was not vague were not furnished to him. We are unable to see any force in any of the sub- missions advanced on behalf of the detenu. In the result, we reject the appeal and the writ petition. N. V. K. Appeal & petition dismissed. • • • ...
Source: Supreme Court eSCR. Dataset: Dattam Labs, CC BY 4.0. Text extracted automatically; compare with the source PDF for layout and accuracy.