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Judgment
Gulab C. Gupta, J.—The petitioner is under preventive detention pursuant to the order dated 4-1-1993 passed by the first respondent u/s
3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, (hereinafter referred to as the ''Act) and is lodged in
Central Prison, Madras. Feeling aggrieved by the aforesaid he has preferred this writ petition under Article 226 of the Constitution of India
challenging the legal and constitutional validity thereof.
It appears that the officers of the Enforcement Directorate, Madras had the intelligence report that the petitioner was engaged in illegal purchase
of foreign exchange and sending the same out of India. Pursuant to the said report they searched the residential premises of the petitioner and
discovered Indian currency worth Rs. 3,40,000/- together with certain documents. Those documents and the currency were seized. The petitioner,
is said to have given his statement u/s 40 of the Act stating that ""You had met one Ibrahim of Kilakarai about six months back and explained your
financial difficulties to him. Since Ibrahim promised to help you, you went to Madras in May, 1993 and started living with the said Ibrahim and
Nawab Sultan."" During this period the petitioner is said to have met one Haja Mohideen of Singapore, who promised a job at Singapore. The
petitioner thereafter employed in obtaining gold and silver from the said Haja Mohideen at Singapore, bring the same into the country after paying
the customs duty, sell the same and purchase foreign exchange for the amount so realised and thereafter sent the said foreign exchange to him
through some passenger. The petitioner is also alleged to have informed that he had received 5 Kg. of gold through one Selva Ganapathi in June,
1993 and sold the said gold for Rs. 21,75,000/- and converted an amount of Rs. 21,64,000/- into U.S. Dollar, French Franks, Swiss Franks etc.
The petitioner is also alleged to have informed that this amount of foreign exchange was sent to Haja Mohideen in Singapore through the said Selva
Ganapathi. The department is thereafter said to have discovered various transactions done by the petitioner mentioned in the document seized
during the search of his house. The statement of one Nawab Sultan, was also recorded. The petitioner was arrested and produced before the
Magistrate who remanded him to Judicial custody. His bail application was rejected on 1-10-1993. But, subsequently the Magistrate by his order
dated 26-10-1993 granted bail on condition. Having collected the material as aforesaid, the sponsoring authority placed the same for consideration
of the first respondent for an order u/s 3(1) of the Act.
The first respondent on perusal of the material on record felt satisfied that the petitioner was engaged in illegally purchasing foreign exchange and
sending the same to Singapore. The said respondent was also satisfied that conditions attached to the bail order are likely to be relaxed as similar
conditions were relaxed in case of a co-accused. The first respondent, therefore, felt the compelling necessity of passing the order which is under
challenge in this writ petition.
The submission of the learned counsel for the petitioner is that though the material was gathered in the search on 24-9-1993 the impugned order
was passed after a delay of little over three months on 4-1-1994. It is submitted that this delay is fatal and has the effect of disrupting causal
connection between the incident and the impugned order. It is further submitted that the petitioner had desired a copy of the show cause notice
given by the Customs Authorities requiring him to show cause why proceedings under the Customs Act he not initiated against them, but, the said
show cause notice was not given to him and hence his valuable right of making representation against the order has been defeated. It is also
submitted that the petitioner had made a representation on 16-3-1994 to the detaining authority as also to the Central Government. Though his
representation has been rejected by the detaining authority as disclosed to him in the counter-affidavit, the order rejecting the said representation
has not been communicated. This according to the learned counsel introduces an infirmity in the impugned order. The decisions of the Supreme
Court in T.A. Abdul Rahaman Vs. State of Kerala and others, and Mehrunissa Vs. State of Maharashtra, are relied on. Learned Additional
Standing Counsel for the respondents 1 and 2 however denied that there was any delay in initiating action and passing the order of detention.
Referring to the affidavit of K. L. Varma, the Joint Secretary it is submitted that the matter had been handled with utmost promptness and hence
the respondents cannot be accused of unreasonable delay. It is particularly brought to the notice of this Court that the documents seized from the
premises of the petitioner on 24-9-1993 had used coded language which had to be de-coded in order to understand their real meaning and
purpose. This has naturally taken some time. It is also submitted that as long as there was no possibility of conditions attached to the bail
application being relaxed, the possibility of the petitioner engaging in prejudicial activities in future was remote. But, since the conditions attached to
the bail order were relaxed in favour of the co-accused, it gave rise to a reasonable apprehension in the mind of the sponsoring authority that the
petitioner would engage himself in prejudicial activities. It is, therefore, submitted that some time is usually and naturally taken in such cases and
hence the question of delay would not arise. Reliance is placed on the Supreme Court decision in Rajesh Huslani v. Mahendra Prasad 1993 SCC
(Cri) 404). As regards the show cause notice, it is submitted that the said notice has not been relied on or referred to in the grounds and hence
there was no constitutional obligation on the part of the detaining authority to supply a copy thereof. The mere fact that the copy had been
subsequently supplied would not justify the inference that it was a vital document. As regards rejection of the representation by the detaining
authority, learned Central Government Standing Counsel has produced the original file for perusal of this Court from which it is apparent that the
first respondent had considered the representation on 7-4-1994 and found the same to be devoid of merits. It was, therefore, rejected. From the
order it is also clear that a copy of the show cause notice was directed to be supplied to the petitioner as a matter of abundant caution. The file
was thereafter sent to the Finance Minister, who is the competent authority for deciding the representation on behalf of the Union of India. The
Finance Minister has not recorded any separate reasons but, has concurred with the reasons given by the detaining authority. This, according to the
learned standing counsel is sufficient compliance of the constitutional and legal provisions. Even then it is submitted that the order of the
Government communicated to the petitioner is also substantially the order of the detaining authority and since the rejection of the representation by
the detaining authority would only justify an approach to the Central Government which had been done, no prejudice has been caused to the
petitioner by non-communication of the order of the detaining authority.
A perusal of the grounds would indicate that the search of the premises of the petitioner detenu was made on 24-9-1993 during which not only
the Indian currency but incriminating documents were also recovered. The petitioner''s statement recorded on 24-9-1993 revealed the meaning of
various words used in those documents. Though the petitioner''s explanation was also obtained on some documents on that day, it would be risky
for the authorities to work on his statement alone. Paragraphs 5 and 6 of the grounds indicate further developments in the matter which consists of
production of the petitioner and the co-detenu Nawab Sultan before the Chief Metropolitan Magistrate on 25-9-1993, filing of a bail application
for their release on that date and the dismissal of the said bail application on 1-10-1993. It is also clear that thereafter another bail application was
filed and was allowed on 26-10-1993 on conditions. Those conditions were sought to be relaxed by filing an application on 8-11-1991 and were
substantially changed on 17-11-1991 and 24-11-1991. In between, the Directorate has been examining the matter in the context of explanation of
the petitioner and brought certain factual discrepancy to his notice by a letter dated 2-11-1993. These facts would indicate that the petitioner was
in jail up to 26-10-1993 on which date he was released on conditional bail. If the petitioner had remained in jail there may not have been any
occasion for the Department to seek his preventive detention. Indeed the necessity of such a course of action arose only after 24-11-1993 when
conditions attached to the bail were substantially relaxed. The order of detention was passed on 4-11-1994. If only the period between 24-11-
1993 and 4-1-1994 is considered in the context of established procedure which involves consideration of the material not only by the detaining
authority but also screening thereof by a committee, it would be difficult to hold that there was any delay in issuing order.
Even otherwise the delay cannot be judged by application of any mechanical or arithmatical test. The law in this regard has been summarised by
the Supreme Court in T.A. Abdul Rahaman Vs. State of Kerala and others, and it is as under : (Para 11).
The conspectus of the above decisions can be summarised thus : The question whether the prejudical activities of a person necessitating to pass an
order of detention is proximate to the time when the order is made or the live-link between the prejudicial activities and the purpose of detention is
snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under
all circumstances and no exhaustive guidelines can be laid down in that behalf. It follows that the test of proximity is not a regid or mechanical test
by merely counting number of months between the offending acts and the order of detention. However, when there is undue and long delay
between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily
examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and
further the court has to investigate whether the causal connection has been broken in the circumstances of each case.
The subsequent decisions in Rajesh Huslani v. Mahendra Prasad 1993 SCC (Cri) 404 and Pradeep Nikanth Paturkar Vs. S. Ramamurthi and
others, only follow the aforesaid law. The facts of present case when considered in the context of aforesaid law do not justify an inference that
there has been any undue or unexplained delay in passing the order and hence the challenge to the impugned order on this ground must fail.
As regards non-supply of show cause notice, the consequences have to be considered in the context of right of the petitioner-detenu to make
representation under Article 22(5) of the Constitution. The law in this regard has been summarised in Kamarunnissa and Others Vs. Union of India
and another, and is that : (at p. 2067 of Cri LJ).
It is not sufficient to say that the detenus were not supplied the copies of the documents in time on demand, but, it must further be shown that the
non-supply has impaired the detenu''s right to make an effective and purposeful representation. Demand of any or every document however
irrelevant it may be for concerned detenu merely on the ground that there is a reference thereof in the grounds of detention cannot vitiate otherwise
a legal detention.
This case has also clarified that ""The detenu would have been entitled to any document which was taken into consideration while formulating the
grounds of detention."" When the grievance of the petitioner is considered in the context of the aforesaid law, it would not justify an inference that
the petitioner''s right of making an effective and purposeful representation has been impaired. The show cause notice only marks the beginning of
adjudication proceedings under the Customs Act and contains all necessary facts which may form the basis thereof. All those necessary facts are
otherwise mentioned in the grounds and, therefore, it is difficult to hold that the petitioner''s constitutional right has been prejudiced in any manner.
Even otherwise the copy of the show cause notice was made available to the petitioner subsequently. It is true that by then his representation had
been rejected. But, this would not stop him from making another representation which he could do if the show cause notice had brought out any
new fact in his favour. It is however the considered view of this Court that nothing new is mentioned in the show cause notice and hence, the right
of the petitioner has not been impaired in any manner.
The last submission relates to the non-communication of the order of the detaining authority, in Harish Pahwa Vs. State of U. P. and Others, and
State of Punjab Vs. Sukhpal Singh, it has been laid down that the order of the detaining authority should be communicated to the detenu so that he
can take further necessary action in the matter. As has been noticed earlier in the instant case, the representation of the petitioner has been rejected
not only by the detaining authority but also by the Central Government and reasons for both are the same. Order of the Central Government has
been communicated to the petitioner. Since reasons are the same in both cases it is not a case of non-communication as such but, a case of
communication without disclosing that the order was in fact passed by the detaining authority and the Central Government has only accepted the
same. The question in such a case is whether the petitioner has been prejudiced in any manner. The detenu has the right under the Act to approach
the Central Government for revocation of his detention in case he fails to convince the detaining authority against his detention. In the instant case,
this right has been exercised by the detenu without waiting for the decision of the detaining authority. That is the reason why his representation was
considered by the Central Government. Indeed para 11 of the grounds would indicate that the authority had given the petitioner the opportunity of
making representation simultaneously to the detaining authority, Advisory Board and the Central Government. As such, there could not be any
prejudice to his right of approaching the authorities for revocation of the order. In this view of the matter, this Court finds no substance in the
submission. The petition fails and is dismissed.
Petition dismissed.