Summary
This appeal has been filed by the brother of the detenu T.A. Sirajudeen who was detained pursuant to an order of detention passed by the first respondent under Section 3(1)(iii) and 3(1)(iv) of the Conservation of Foreign Ex- change and Smuggling Activities Act, 1974 with a view to preventing the said detenu to take part in the smuggling activities of Gold. The circumstances under which the deten- tion order in question was passed may now be stated.
On 30.11.1986, Superintendent of Central Excise, Manjeri Range searched the residential premises of the detenu but did not discover any contraband goods. However on question- ing the detenu confessed that he had burried eleven gold biscuits in the back yard, which were recovered after dig- ging the ground and the statement of the detenu was recorded under Section 108 of the Customs Act, that very day.On 9.12.1986 again the Authorities concerned searched the residence of the detenu in the belief that there was concealment of more gold. During the search the detenu pointed out to the Superintendent one packet which had been placed in the thatched roofing of the house.The detaining authority taking into consideration the fact of seizure effected on two occasions and the statement of the detenu admitting his involvement in the prejudicial activities mentioned in the grounds of detention reached subjective satisfaction and passed the impugned order of detention on 7.10.87. The detenu was arrested on 18.1.1988 and detained in Central Prison, Trivandrum from 19.1.1988 onwards Grounds of detention and other relevant material were furnished to the detenu on 21.1.1988. The detenu made representation for revocation of the detention order on 25.1.1988 which was rejected 946on 11.4.1988. The first respondent made a reference under Section 8 of the Act on 5.5.88 to the Advisory Board which reported that in its opinion sufficient cause existed for the detention of the detenu.The appellant challenged the detention of his brother in the High Court by means of Writ Petition but, having failed, he filed this appeal by special leave.The appellant primarily urged two contentions before this Court. It was urged that there was no proximity in time to provide a rational nexus between the alleged prejudicial activity and the passing of the impugned order of detention after 11 months i.e. on 7.10.87 and as there was no reasona- ble and satisfactory explanation for the said long delay, the detention order is liable to be quashed on the ground that the credible chain between the grounds of the alleged criminal activities and the purpose of detention stood snapped. The delay throws doubt on the genuineness of the subjective satisfaction arrived at by the detaining authori- ty. Secondly it was contended that the representation sub- mitted by the detenu on 25.1.88 challenging the impugned order clamped on him had been disposed of by a delay of 72 days i.e. on 11.4.88 and this long and avoidable delay vitiates the detention order being violative of Art. 22(5) of the Constitution.The first respondent in the counter affidavit explained the delay and attributed the same to the extensive search of various premises in different places and examination of persons apart from departmental delays. It is only after completing the necessary investigation customs authorities sponsored the case for detention of the detenu.Allowing the appeal, this Court,HELD: There is no denying the fact that the impugned order has been passed after lapse of 11 months from the date of seizure of the eleven gold biscuits from the back court- yard of the house of the detenu. The test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of deten- tion. However, when there is undue and long delay between the prejudicial activity and the passing of the detention order, the court has to scrutinise whether the detaining authority has satisfactionly examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned and further the court has to investi- gate whether the causal connection has been broken in the circumstances of each case. No hard and fast rule 947can precisely be formulated and guidelines can be laid down in that behalf. [951G-952A]When there is unsatisfactory and unexplained delay between the date of the 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. [954C]See Gora v. State of West Bengal, [1975] 2 SCR 996;Hemlata Kantilal Shah v. State of Maharashtra, [1981] 4 SCC 647; Golam Hussain @ Gamal v. Commr. of Police of Calcutta & Ors., [1974] 4 SCC 530; sk Serajul v. State of West Bengal,[1975] 2 SCC 78; Rekhaben Virendra Karadia v. State of Gujarat & Ors., [1979] 2 SCR 257; Harnek Singh v. State of Punjab, [1982] 1 SCC 116; Shiv Ratan Makin v. Union of India and Others, [1986] 1 SCC 401; Smt. K. Aruna Kumari v. Gov- ernment of Andhra Pradesh & Ors., [1988] 1 SCC 296 and Rajendra Kumar Natvarlal Shah v. State of Gujarat & Ors.,[1988] 3 SCC 153.The Court in the instant case, noticed from the Counter affidavit filed on behalf of the first Respondent, that the detaining authority has attempted to explain the laxity that has occasioned in passing the impugned order but miserably failed in explaining the delay of three months in securing the arrest of the detenu from the date of passing of the order and keeps stunned silence on that score. Counsel when queried by the Court whether he could give any reason for this undue delay in arresting the detenu on 18.1.1988 in pursuance of the impugned order made on 7.10.1987, frankly admitted that he could not do so. Under the circumstances, the Court held that leaving apart the question of delay in passing the order of detention, the fact remains that the detaining authority has failed to explain the long delay in securing the arrest of the detenu after three months of the passing of the detention order and this non-explanation throws a considerable doubt on the genuineness of the sub- jective satisfaction of the detaining authority vitiating the validity of the order of detention. [954E-955A]The long interval in receipt of the representation and the comments of the Collector of Customs, Cochin, indicate the casual and indifferent attitude, displayed by the au- thorities concerned dealing with the representation. The manner in which the representation has been dealt with reveals a sorry state of affairs in the consideration of the representation made by the detenu. [955G-956A]948 The Court took firm view that the representation of the detenu has not been given prompt and expeditious considera- tion and was allowed to lie without being properly attended to. The delay of 72 days in the absence of satisfactory explanation is too long a period for ignoring the indolence on the part of the concerned authority. The unexplained delay in disposal of the representation of the detenu is violative of Article 22(5) of the Constitution of India rendering the order of detention invalid. [956H-957B]The Court set aside the judgment of the High Court, quashed the order of detention and directed that the detenu be set at liberty forthwith. [957C]Rama Dhondu Borade v. Shri V.K. Saraf, Commissioner of Police & Ors., [1989] 1 Scale 22.See the full content of this document
Extract
T.A. Abdul Rahman VS. State Of Kerala And Ors.
PETITIONER: T.A. ABDUL RAHMAN Vs.RESPONDENT: STATE OF KERALA AND ORS.DATE OF JUDGMENT23/08/1989BENCH: PANDIAN, S.R. (J)BENCH: PANDIAN, S.R. (J)RAY, B.C. (J)CITATION: 1990 AIR 225 1989 SCR (3) 945 1989 SCC (4) 741 JT 1989 (3) 444 1989 SCALE (2)388CITATOR INFO : R 1990 SC 231 (18)D 1990 SC1446 (15)R 1990 SC1597 (16)ACT: Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974--Section 3(1)(iii) & 3(1)(iv)--Detention order-Time lag between the passing of the detention order and the actual arrest--Whether affects the subjective satisfaction of the detaining authority--Legality of such detention order--Challenged.JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3 18 of 1989.From the Judgment and Order dated 15.6.88 of the Kerala High Court in Original Petition No. 3299 of 1988.R. Sasiprabhu and P.K. Manohar for the Appellant.B. Dutta, Additional Solicitor General, P. Parmeshwaran, Pramod Swarup and T.T. Kunhikannan for the Respondents.The Judgment of the Court was delivered by S. RATNAVEL PANDIAN, J. This appeal under Article 136 of the Constitution of...
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