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Judgment
Agarwal, J.—The detention order dated 15th December, 1987 passed by the Joint Secretary to the Government of India u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 is impugned in this petition. The said order was a sequel to an incident that had taken place on the 13th September, 1987 when the detenu was apprehended with Saudi Riyals 8,500 on his person. The said order of detention was served on the detenu on the 5th of January, 1988.
Shri Karmali, the learned Counsel appearing on behalf of the detenu firstly submitted that certain documents that were served upon the detenu along with the grounds of detention were hopelessly illegible. This had deprived the detenu of his right of making an effective representation. The detenu was thus deprived of his valuable right guaranteed under Article 22(5) of the Constitution of India.
Shri Karmali pointed out that copies of the several endorsements on the passport of the detenu that were served on him were either blurred or wholly indecipherable. In the grounds of detention, for arriving at a finding that the detenu had visited Singapore on 16 occasions on the dates mentioned in the order of detention reference was made to the said endorsements. If the endorsements regarding the said visits to Singapore were wholly illegible, the detenu was deprived of his right to make an effective representation in regard to the said visits.
In our judgment, there is no merit in this submission of Shri Karmali. Though it is true that the grounds of detention mention that the scrutiny of the passport of the detenu revealed that during September 1986 to August 1987 he had visited Singapore 16 times on the dates mentioned in the said grounds. In our view the illegible endorsements could not be said to have affected, in any manner, the right of the detenu to make an effective representation. In the statement of the detenu recorded u/s 39 of the Foreign Exchange Regulation Act, the detenu had stated that he had visited Singapore 16 times on the dates mentioned in that statement. The said statement shows that between the period 27th September, 1986 and 13th August, 1987 the detenu had visited Singapore and 16 occasions. Hence, the detenu was aware of the fact of his having visited Singapore on the dates mentioned in the aforesaid statement recorded u/s 39 of the Foreign Exchange Regulation Act. We find no merits in the contention of Shri Karmali that merely because the said statements did not contain the dates of the arrival of the detenu back from Singapore, the same in any manner hampered his right to make an effective representation. The fact that was taken into account by the detaining authority was regarding the fact of the detenu having visited Singapore on 16 occasions between the 27th September, 1986 and the 13th August, 1987. Merely because the detenu was not informed of the dates of arrival back into India which fact may have been derived by the detaining authority from the endorsement on the passport of the detenu the same could not be held to have affected the right of the detenu to make an effective representation.
Shri Karmali next urged that there has been a delay in the passing of the order of detention and this had affected the subjective satisfaction of the detaining authority at the time of the passing of that order. He pointed out that the incident which was a sequel to the passing of that order had taken place on the 13th September, 1987. It was on that day that the entire investigation of the case had been completed and yet the order of detention was passed on the 15th December, 1987 i.e. after over three months from the date of the aforesaid incident.
In our view, there is no merit in this contention of Shri Karmali. In the affidavit in reply filed by the Joint Secretary to the Government of India it has been stated that the proposal for detention of the detenu was prepared and forwarded to the Head Quarter of the Enforcement at New Delhi on the 29th October, 1987. The same was received by the Enforcement Department, New Delhi on the 30th October, 1987. The said proposal was examined by the Head Quarter and sent to the Ministry on the 6th November, 1987. Thereafter the proposal was placed before the Screening Committee on the 16th November, 1987. After considering the material placed before him, the detaining authority passed the order of detention on the 15th December, 1987. In our judgment, it cannot be held on the facts mentioned hereinabove that there was any undue delay in passing the order of detention. One cannot be oblivious to the fact that this could not be the only order of detention that the detaining authority was dealing with. Certain amount of time is bound to be required for the proper consideration of the facts for arriving at a subjective satisfaction in the matter of the passing of an order of detention. The test of proximity is not a 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 is a subsidiary test evolved by the court for the purpose of determining the main question whether the past activities of the detenu is such that from it a reasonable prognosis can be made as to the future conduct of the detenu and its utility, therefore, lies only insofar as it subserves that purpose and it cannot be allowed to dominate of drown it. ( Gora Vs. State of West Bengal, ).
It is no doubt true that where an unreasonably long period has elapsed between the date of the incident and the date of 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. ( Shiv Ratan Makim Vs. Union of India (UOI) and Others, ). Hence, this second contention of Shri Karmali will have to be negatived.
Shri Karmali then submitted that while the detenu was ordered to be released on bail by order dated the 15th September, 1987 his passport was directed to be retained by the Enforcement Directorate. Since the passport of the detenu had been retained by the Enforcement Directorate, the detenu had been prevented from going abroad and again indulging in similar activities which were prejudicial to the conservation or augmentation of foreign exchange. If the detenu could not have continued to indulge in activities similar to the once he was indulging in, there was no jurisdiction in passing the order of detention. Shri Karmali pointed out that the activities of the detenu were that he would buy Saudi Riyals from a taxi driver near the Airport in black market, go to Singapore and return after making purchases of dutiable goods. The said goods would thereafter be sold in the market at a profit. Since the passport of the detenu had been retained, it was not possible for the detenu to indulge in the aforesaid activities so as to justify the passing of the order of detention.
In our judgment, it cannot be held that merely because the passport is retained, that fact by itself can come in the way of passing of the order of detention. It is also not necessary that the detenu should be shown to be likely to indulge in the identical activity which he has been indulging in order to justify the passing of an order of detention. The explanation offered by the detaining authority in the affidavit in reply that in case the detenu was not detained, he would have continued his illegal activities of illegal purchase of foreign exchange is a reasonable is a reasonable inference which would justify the passing of the order of detention.
Shri Karmali next submitted that though in the grounds of detention, there is a mention that the documents translated into Hindi, the language known to the detenu is enclosed in the grounds of detention, no such translated documents were served upon him. This according to Shri Karmali had affected the detenu''s right to make an effective representation. In our judgment, there is no merit in this submission also. In the statement of the detenu recorded u/s 39 of the Foreign Exchange Regulation Act, the detenu has categorically stated that he has studied up to 11th standard, he can read and write English, Hindi and Sindhi. We have perused the said statement of the detenu and we are satisfied that the detenu knows English well enough. Hence, merely because the Hindi translations were not supplied to him as mentioned in the grounds of detention, the same cannot affect the order of detention.
Shri Karmali lastly contended that by a Remand Application dated the 14th September, 1987 remand in respect of as many as nine accused was sought from the Court of the learned Additional Chief Metropolitan Magistrate. Each of the nine persons had been individually apprehended in respect of individual incidents. By virtue of the said joint remand application that was placed before the detaining authority, a wrong impression was conveyed that all the nine accused had been apprehended as members of a conspiracy. In our judgment, there is no merit in this contention. Though the remand application is a joint application, the same specifically mentions the role played by each accused and the number of visits undertaken by each of them. It cannot be said that by virtue of the said joint remand application, an impression was conveyed that all the nine accused had been working in concert with each other as sought to be suggested by Shri Karmali. We are satisfied with the explanation given by the detaining authority that he had not mentioned in the grounds of detention that the detenu was one of the members of a gang of nine persons arrested. In this view of the matter, this contention of Shri Karmali will also have to be negatived. No other contentions were raised in support of the petition.
In the result, we find no merit in the petition and the same deserves to be dismissed. Rule discharged.