Holding

The detention order is invalid because essential documents were not supplied to the detenu, violating Article 22(5), and thus the order is set aside.

Summary

M. Ahamedkuti was intercepted for smuggling gold and was granted bail on 12‑Feb‑1988. The Kerala Home Secretary later issued a detention order under COFEPOSA on 25‑Jun‑1988, which was executed on 2‑Aug‑1988. The appellant challenged the order on grounds of unexplained delays in passing and executing the order and, crucially, the failure to furnish the bail application, bail order and related documents to him as required by Article 22(5). The Supreme Court held that the delay, explained by the authorities, did not invalidate the order, but the non‑supply of essential documents denied the detenu a fair opportunity to make an effective representation, violating Article 22(5). Consequently, the detention order was set aside and the appellant was released. The Court also clarified that sections 9 and 10 of COFEPOSA obligate the detaining authority to place all material facts before the detenu, especially when prolonging detention.

Issues considered

The validity of a detention order when there is a delay between the smuggling incident and the passing of the order under COFEPOSA.
The effect of a 38‑day delay in executing the detention order on the legitimacy of the order.
Whether failure to serve the bail application, bail order, show‑cause notice and related documents to the detenu violates Article 22(5) of the Constitution.
Whether seizure of the detenu's passports obviates the need for preventive detention.
Whether the material placed before the declaring authority was sufficient for a subjective satisfaction under sections 9 and 10 of COFEPOSA.

Legislation cited

Subjects

preventive detentionCOFEPOSAArticle 22(5)delay in detention ordernon‑supply of documentssmugglingbailprocedural fairness

Judgment

M. AHAMEDKUTIY
A
v.
UNION OF INDIA & ANR.

JANUARY 31, 1990

[S. RANGANATHAN AND K.N. SAIKIA, JJ.] B

... Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974: Sections 3, 9 and 10--Detention order-Validity
of-Necessity to supply documents relied on by detaining authority to
detenu-Prolongation of period of detention-Necessity to place facts
and materials that occurred between date of detention and date of dee/a-
ration before detaining authority.
c
After the appellant landed at Trivandrum Airport from Abu
,,I.. Dhabi, he was intercepted by the Customs officials detecting that he
smuggled 1280 gms. of gold. He was arrested ou 31.1.1988. On
12.2.1988 he was granted bail on certain conditions. D

. With a view to preventing the appellant from smuggling gold, the
impugned detenti.on order was passed against him on 25.6.1988 by the
Home Secretary, Government of Kerala, in exercise of the powers con-
~- ferred by section 3(l)(i) of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974. The appellant was taken E
into custody on 2.8.1988. The Appropriate Authority and the Advisory
Board found sufficient cause for his detention.

The detenu challenged his detention moving a Habeas Corpus
petition under Article 226 of the Constitution, read with section 482,
Cr.P.C., which was dismissed in limine by the High Court. F

Before this Court. the main grounds of challenge to the detention
order were that (1) after the event there was inordinate delay in pas-
sing the detention order which showed that there was no genuine· need
for detention of the appellant; (2) there was inordinate and unexplained
delay of 38 days in executfon of the detention order; (3) all the docu- G
ments and materials, particularly the appellants bail application, the

r- bail order, the show cause notice and his reply thereto were not placed
before the detaining authority; (4) these documents and the fact that the
appellant's old and new passports were seized and without those it
would not be possible for the appellant to carry on smuggling, were not
brought to the notice of the declaring authority; and (5) there was H
209.
210 SUPREME COURT REPORTS l1990] 1 S.C.R.

A non-application of mind. -·

On behalf of the State of K1~rala it was submitted, inter alia, that
( l) there was no such delay betweieu the date of detection and the date of
passing the order of detention so as to make the grounds stale or to snap
the relation; (2) that the delay in execution of the detention order had
B been explained; and (3) that the bail application as well as the bail order
were placed before the detaining authority but the same having not
been referred to or relied on by the detaining authority, copies thereof
were not required to be furnished to the detenu along with the grounds
of detention.
- .
On behalf of the Union of India it was submitted that all the
c documents and materials that were required to be placed before the
declaring authority were duly placed and on consideration of the rele-
vant materials the declaring authority validly made the declaration.

Allowing the appeal and setting aside the order of detention, this
D Court,

HELD: (l) It has been laid down by this Court in a series of
decisions that the rule as to une1xplained delay in taking action is not
inflexible. Under a law like the COFEPOSA Act enacted for the
purpose of dealing effectively with persons engaged in smuggling and
E 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
the delay in making of an order of detention assume that such delay, if
not satisfactorily explained. must necessarily give rise to an inference
that there was no sufficient material for the subjective satisfaction of
F the detaining authority or that such subje~tive 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
was no real nexus between the grounds _and the Impugned order of
detention. l217B-E]

G Ashok Narain v. Union of India, ll982] 2 SCC 437; Smt. Rekha:
ben Virendra Kapadia v. State of Gujarat, [1979] 2 SCC 566; Sheikh
Salim v. The State of West Bengal, [19751 1SCC_653; Rajendrakumar
Natvarlal Shah v. State of Gujarat, [1988] 3 S.C.C. 153; Olia Mallick v.
The State of West Bengal, [1974] 1 SCC 594; .Go/am Hussain v. The
Commissioner of Police, [1974] 3 SCR 613; Odut Ali Miah v. The State
1
H of West Bengal, [1974] 4 SCC 129; Vijay Narain Singh v. State of Bihar,
M. AHAMEDKUTI'Y v. U.0.1. 211

[1984] 3 SCC 14; Gora v. State of West Bengal, [1975] 2 SCR 996; Rai
A
Kumar Singh v. State of Bihar, [1986] 4 SCC 407; Smt. Hemlata Kantilal
Shah v. State of Maharasthra, [1981] 4 SCC 647, referred to.

(2) In appropriate cases it could be assumed that the link was
snapped if there was a long and unexplained delay between the date of
or!ler of detention and the arrest of the detenu and in such a case the B
order of detention could be struck down unless the grounds indicated a
fresh application of mind of the detaining authority to the aew situation
and the changed circumstances. But where the delay is not only
adequately explained but also 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. [219C-D]
c
Mohammed Saleem v. Union of India, 11989] 3 Delhi Lawyer 77;
Bhawarlal Ganeshmalji v. State of Tamil Nadu, [1979] l SCC 465;
Shafiq Ahmad v. District Magistrate, Meerut, [1989] 4 SCC 556, refer-
red to.
D
(3) Seizure of the detenu's passports was no doubt one of the
factors that the detaining anthority should have taken (and did in fact
take) into account, but it wasfor him to assess the weight to be attached
to such a circumstance in arriving at his final decision and it is not open
to the Court to interfere with the merits of his decision. [22IE-F)
E
(4) From the records it appears that the bail application and the
bail order were furnished to the detaining authority on his enquiry. It is
difficult, therefore, to accept the submission of the State Government
that those were not relied on by the detaining authority. [223A-B I

(5) The constitutional requirement of Article 22(5) is that all the F
basic facts and particulars which influenced the detaining authority in
arriving at the requisite satisfaction leading to making the detention
order must he communicated to the detenn so that the detenu may have
an opportunity of making an effective representation against the order
of detention. It is immaterial whether the detenu already knew about
their contents or not. [223E-FJ G

y Rilmchandra A. Kamat v. Union of India, [1980) 2 SCR 1072;
Frances Coralia Mullin v. W.C. Khambra. [1980) 2 SCR 1095; Smt.
lchhu Devi C/wraria v. Union of India, [1981] 1SCR640; Pritam Nath
Hoon v. Union of India, [1981] 1 SCR 682; Shri Tushar Thakkar v.
Union of India, [1980] 4 SCC 499; Lal/ubhai Jogibhai Patelv. Union of H
212 SUPREME COURT REPORTS [1990] I S.C.R.

A India, ll981J 2 SCC 427; Kirit Kumar Chaman Lal Kundaliya v. Union
of India, [1981] 2 SCC 436; Smt. Ana Carolina D'Souza v. Uniun of
India, [1981] Suppl. SCC 53; Mehrunissa v. State of Maharashtra,
[1981] 2 SCC 709; Mohd. Zakir v. Delhi Administration, [1982] 3 SCC
216 and Khudiram Das v. State of West Bengal, [1975] 2 SCR 832,
referred to.
B
(6) If the documents which formed the basis of the order of deten-
tion were not served on the detenu along with the grounds of detention,
in the eye of law there would be no service of the grounds of detention
and that circumstance would vitiate his detention and make it void ab
initio. [225D-E]
c
State of U.P. v. Kamal Kishore Saini, [1988] 1 SCC 287; Union of
India v. Manoharlal Narang, [1987] 2 SCC 241; S. Gurdip Singh v.
Union of India, [1981] 2 SCC 419; lchhu Devi Choraria v. Union of
India, [1981] 1 SCR 640; Smt. Shalini Soni v. Union of India, [1981] 1
D SCR 962, referred to.

Haridas Amarchand Shah •v. K.L. Verma, [1989] 1 SCC 250
distinguished.

(7) The bail application and the bail order, in the instant case, j
were vital materials for consideration. If those were not considered the
E
satisfaction of the detaining authority itself would have been impaired,
and if those had been considered, they would be documents relied on by
the detaining authority though not specifically mentioned in the an-
nexure to the order of detention and those ought to have formed part of
the documents supplied to the detenu with the grounds of detention and
without them the grounds themselves could not be said to have beeu
F
complete. /226A ·Bl

(8) There is no alternative but to hold that non-supply of essential
documents to the detenu amounted to denial of the detenu's right to
make an effective representation and that it resulted in violation of
Article 22( 5) of the Constitution rendered the continue detention of the
G
detenu illegal and entitling the detenu to be set at liberty. [226B-C] ·

(9) Sections 9 and 10 of the COFEPOSA Act imply an obligation
on the part of the detaining authority to place the facts and materials
that occurred between the date of detention and the date of declaration,
H so as to justify prolongation of the period of detention. [228D-E]
M. AHAMEDKUTrY v. U.0.1. [SAIKIA, J.J 213

Smt. Rekhaben Virendra Kapadia v. State of Gujarat & Ors., A
j11 !1979] 2 SCC 566; Smt. Madhu Khanna v. Administrator, Union Territ-
' ory of 1Jelhi, !1986] 4 sec 240, referrred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 49 of 1990.
B
From the Judgment and Order dated 13.2.1989 of Delhi High
Court in Cr!. W. No. 25 of 1989.

S.R. Selia, C.S. Vaidyanathan and K. V. Viswanathan for the
Appellant.

V.C. Mahajan, Ms. Sushma Suri, P. Parmeshwaran, A.K.
c
Srivastava and T, T. Kunhikannan for the Respondents.

The Judgment of the Court was delivered by

K.N. SAIKIA, J. Special leave granted. D

After the Appellant landed at Trivandrum Airport from Abu
Dhabi, he was intercepted by the customs officials detecting that he
smuggled 13 gold sheets weighing 1280 gms. valued· at Rs.4,26,240
concealed inside the plywood panels of his blue suitcase which was
seized along with his two passports, old and new. He was arrested on E
_31-1-1988 and was produced before the Chief Judicial Magistrate
(Economic Offences) Ernakulam who remanded him to judicial
custody till 12-2-1988. On 12-2-1988 he was granted bail on condition,
inter alia, that he would report before the Superintendent
(Intelligence) Air Customs, Trivandrum on every Wednesday until
further orders, and that he would not change his residence without F
prior permission of Court to "25-2-1988." The impugned detention
order dated 25-6-1988 was_ passed by the Home Secretary,.Government
of Kerala. It stated that the Government of Kerala was satisfied with
respect to the appellant that with a view to preventing him from
smuggling gold it was necessary to detain him and, therefore, in exer-
cise of powers conferred by section 3(1)(i) of the Conservation of 0
Foreign Exchange and Prevention of Smuggling Activities Act, .1974
(Central Act 52 of 1974), hereinafter referred to as 'the COFEPOSA
Ac(, the Government of Kerala directed that he be detained and kept
in custody in the Central Prison, Trivandrum. The grounds of deten-
tion, which were also served, inter alia, gave the details as to how the
smuggled gold was detected in his possession having been smuggled H
214 SUPREME COURT REPORTS [19901 1 S.C.R.

into India in violation of the provisions of the Customs Act, 1962,
A
Foreign Exchange Regulation Act, 1973 and Import and Export Con-
trol Act, 1947; what were his statements at the time of seizure of his
blue suitcase, his new and old passports and the air ticket used for the
journey from Dubai to Trivandrum and the return open air ticket from
Bombay to Abu Dhabi; and the gist of his statements given on 30/31-1-
B 1988 under section 108 of the Customs Act, 1962 before the Intelli-
gence Superintendent, Air Customs, Trivandrum. It was also stated
that after his arrest on 31-1-1988 he was produced before the Addi-
tional Chief Judicial Magistrate (Economic Offences) Ernakulam on
the same date and he was remanded to judicial custody and was subse-
quently released on bail; and that even though the departmental
adjudication and prosecution proceedings under Customs Act were
c pending against him, the detaining authority was satisfied that he
should be detained under section 3(1)(i) of the COFEPOSA Act with
a view to prevent him from smuggling gold to Trivandrum. On
23·8-1988 the appropriate authority declared that he was satisfied that
the detenu was likely to smuggle goods into and through Trivandrum
D Airport which was an area highly vulnerable to smuggling as defined in
Explanation 1 to section 9(1) of the COFEPOSA Act. On 24th
September, 1988, the detenu appeared before the Advisory Board
which reported that there was sufficient cause for his detention.

The detenu challenged his detention moving a Habeas Corpus
E petition under Article 226 of the Constitution of India read with sec-
tion 483 Cr. C.P. in the High Court of Delhi and the same having been
dismissed in limine the appellant appeals therefrom by special leave.
In para 11 of the Special Leave Petition it has been stated that the
various grounds urged in the writ petition before the High Court have
also been added in this petition and the writ petition itself has been ' 1

F annexed as Vol. II to the Special Leave Petition.

The main grounds on which the detention order is being chal-
lenged by the learned counsel for the appellant Mr. C.S. Vaidyana-
than, inter alia, are that after the event there was inordinate delay in
passing the detention order which showed that there was no genuine
G need for detention of the appellant; that there was inordinate and
unexplained delay of 38 days in execution of the detention order; that
all the documents and materials, particularly the appellant's bail appli-
cation, the bail order, the show cause notice and his reply thereto were
not placed before the detaining authority; that these documents and
the fact that the appellant's old and new passports were seized and
H without those it would not be possible for the appellant to carry on
M. AHAMEDKUTIY v. U.0.1. (SAIKIA, J.) 215

smuggling were not brought to the notice of the declaring authority
A
and that there was non-application of mind.

Mr. T.T. Kunhikannan, the learned counsel for the State of
Kerala submits, inter alia, that there was no such delay between the
date of detention and the date of passing the impugned order of deten-
tion as to make the grounds stale or to snap the relation; that the delay B
in execution of the detention order has been explained; that the bail
application as well as the bail order were placed before the detaining
authority but the same having not been referred to or relied on by the
detaining authority the copy thereof was not .required to be furnished
to the detenu along with the grounds of detention; that all the papers
which were placed before the detaining authority for passing the order
of detention were also placed before the declaring authority and it was c
not necessary to place the show cause notice and the detenu's reply
thereto; and that the detention order suffered from no infirmity what-
soever and this appeal is liable to be dismissed. Mr. V.C. Mahajan, the
learned counsel for the Union of India emphatically submits that all
the documents and materials that were required to be placed before D
the declaring authority were duly placed and on consideration of the
relevant materials the declaring authority validly made the declaration
which was, therefore, unassailable.

l We now take the first submission, namely, delay in passing the
detention order. Mr. Vaidyanathan, referring to paragraph 6 of the E
Writ Petition, submits that while the interception and seizure took
place on 30-1-1988 and the detenu was arrested formally on 31-1-1988,
the detention order was passed only 2:5-6-1988 and this delay remained
unexplained and as such there was no nexus between the incident and
the detention. In the counter affidavit filed in this Court there is no
specific denial on this point. Mr. Kunhikannan submits that it so hap- F
pened because this ground was not taken in the Special Leave Petition.
The appellant having stated that the grounds urged in the Writ Petition
should also be added, it cannot be said that this ground was not taken.
Of ·.course when other ground surged in the Writ Petition have also been
taken specifically in the Special Leave Petition this ground could also
have been so taken. However, on the basis of the Records Mr. G
Kunhikannan submits that the Collector of Customs sent the proposal
for detention on 27-5-1988 along with the draft grounds, and the
Screening Committee meeting proposed to be held on 10th June, 1988
was postponed and was hdd on 21-6-1988 on which date the detenu's
case was considered to be fit for detention under the COFEPOSA Act.
It is submitted for the State that thorough investigation of the case was H
216 SUPREME COURT REPORTS [1990] 1 S.C.R.

A required on the part of the Customs authorities both for the proceed-
ings under the Customs Act and for prosecution in the criminal Court,
and as such the proposal could not have been hurried through. These
facts have not been shown to be untrue. Under the above circums-
tances can it reasonably be held that the nexus between the Smuggling
Act and the detention order was snapped or that the grounds became
B
stale?

Where the seemingly long time taken for passing the detention
order after the prejudicial act is the result of full and detailed investi-
gation and consideration of the facts of the case, the ground cannot be
held to be remote and the detention cannot be held to be bad on that
C ground. In Ashok Narain v. Union of India, [1982] 2 SCC 437, where
the detenu was apprehended for breach of Foreign Exchange Regula-
tion in February, 1981 and without launching any prosecution the
detenu was detained in October, 1981 the passage of time being the
result of full and detailed co"Ilsideration of facts and circumstances of
D the case after thorough examination at various levels, this Court
observed that it could not be said that the detention was in any way
illegal inasmuch as the detaining authority had fully and satisfactorily
applied his mind to the question of detention.

As was held in Smt. Rekhaben Virendra Kapadia v. State of
Gujarat, [1979] 2 sec 566, whether the time lag between the commis-
E sion of the offence and the detention was enough to snap the reason-
able nexus between the prejudicial activity and the purpose of deten-
tion would depend upon the facts of each case. The test of proximity is
not a rigid or mechanical calendar test to be blindly applied by merely
counting the number of months and days between the offending act
and the order of detention. The question is whether the past activities
F
of the detenu were such that the detaining authority could reasonably
come to the conclusion that the detenu was likely to continue in his
unlawful activities.

In Sheikh Salim v. The State of West Bengal, [1975] 1 SCC 653,
there was a gap of about 4 months in between. The explanation of the
.G interval was that the petitioner was being prosecuted and the order of
di$charge had to be obtained on June 17, 1972. The order of detention
was oassed 4 days before the order of discharge was passed. This Court
repelling the contention observed: "We do not suppose that the length
of time which a decision takes necessarily reflects the care or openness
brought to bear upon it."
M. AHAMEDKUTfY v. U.0.1. [SA!KIA, J.] 217

ln Rajendrakumar Natvarlal Shah v• State of Gujarat, [1988] 3
A
SCC 153, even unexplained delay (of 5 months in that case) in making
_,,./
the order against economic offenders under the COFEPOSA Act or
other anti-social elements such as those involved in illicit traffic in
liquor trade under Gujarat Prevention of Anti-Social Activities Act
having large resources and influence, it was held, would not be suffi-
cient to vitiate the order if the grounds were not stale and the nexus i3
between the grounds and the order of detention still existed. It was
~ observed that a distinction must be drawn between the delay in making
of an order of detention under a law relating to preventive detention
like the COFEPOSA Act and tne delay in complymg with the pro-
cedural safeguards of Article 22( 5) of the Constitution. It has been laid
dow'l by this Court in a series of decisions that the rule as to unexp-
lained delay in taking action is not inflexible. Mere delay in making of
c
an order of detention under a l~w like the COFEPOSA Act enacted
for the purpose of dealing effectively with persons engaged in smuggl-
~~ ing and foreign exchange racketeering who, owing to their large re-
sources and influence, have been posing a serious threat to' the
economy and thereby to the security of the nation, the courts should D
not merely on account of the delay in making of an order of detention
assume that 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 subjec-
live satisfaction was not genuinely reached. Taking of such a view
would not be warranted unless the Court finds that the grounds are E
stale or illusory or that there was no real nexus between the grounds
and the impugned order of detention. In that case, there was no expla-
nation for the delay between February 2, and May 28, 1987, yet it
/ could not give rise to legitimate inference that the subjective satisfac-
lion arrived at by the District Magistrate was not genuine or that the
grounds were stale or illusory or that there was no rational connection F
between the grounds and the order of detention. This Court reiterated
what was stated in Olia Mallick v. The State of West Beni:al, _[1974J 1
SCC 594; Galam Hussain v. The Commissioner of Police, [197413 SCR
613; Odut Ali Miah v. The State of West Bengal, [1974] 4SC.C129 and
Vijay Narain Singh v. State of Bihar, [1984] 3 SCC ;4. The Court also
referred to Gora v. State of West Bengal, [1975] 2 SCR 996; Raj Kumar G
Singh v. State of Bihar, I1986] 4 SCC 407 and Smt. Hemlata Kantilal
, Shah v. State of Maharashtra, [1981] 4 SCC 647.
v.
Applying the law enunciated and settled by the foregoing deci-
sions we are of the view thatfa this case, considering the giveri expla-
nation of the period in between the interce_ptio1rnn 30-.1-1988 and the fi
218 SUPREME COURT REPORTS [1990] 1 S.C.R.

A order of detention on 25-6-1988 the nexus was not snappd and the
ground was not rendered stale and the order of detention was not
rendered invalid thereby. The submission is accordingly rejected.

As regards the submission as to delay in execution it was urged
that there was inordinate and unexplained delay in execution of the·
B
detention order passed on 25-6-1988 as the detenu was taken into
custody only on 2-8-1988 despite the fact that the detenu was reporting
in compliance of the bail order. Relying on a full bench decision of the
Delhi High Court in Mohammed Saleem v. Union of India, since
reported in 1989(3) Delhi Lawyer 77, it is submitted that this delay of
38 days was indicative of the fact that there was no genuine need for
c the detention order. This ground though taken in the Writ Petition was
not repeated specifically in the Special Leave Petition and Mr.
Kunhikannan prayed for an opportunity, for filing an additional
counter affidavit, which we declined. However, explaining the delay
coun~el points out from the Records that on 27-6-1988 the Home Sec-
retary wrote to the Superintendent of Police, Malapuram, with
D
detailed instructions requesting him to arrange for the immediate
execution of the detention order. On 19-7-1988 a teleprinter message
was sent by the Home Secretary to the Superintendent of Police, in the
nature of a reminder, requesting that the person be immediately
apprehended and compliance reported and that the delay in execution
may also be reported. On 27-7-·1988 the Superintendent of Police,
j
E
Malapuram wrote back to the Home Secretary that the detention
order could not be executed since the warrantee was absconding and
his 'present' whereabouts were not known and that the CJ. had been
instructed to make all possible efforts to apprehend the warrantee. On
2-8-1988 the.Superintendent of Police, Malapuram sent a wireless mes-
sage to the Home Secretary stating that the detention order had been
F
served on the detenu on 2-8-1988 at his residence and his acknowledge-
ment obtained and he had been sent to the Central Prison, Trivan-
drum. Mr. Vaidyanathan's submission that the detenu could not have
been absconding in view of his reporting as required by the bail order
is not acceptable. The second condition in the bail order said: "that
he will not change residents without prior permission of Court to
G
25-2-1988". There was no mention regarding the period thereafter.
There is also no statement in the affidavit to the effect that the detenu
was all along available at his residence or that he had not changed it.
But even assuming that he was residing there, there is no reason to
disbelieve the statement of the police that they were unable to find him
earlier than they actually did.
H
M. AHAMEDKUTIY v. U.0.1. [SAIKIA, J.] 219

Where the passage of time is caused by the detenu himself by
A
absconding, the satisfaction of the detaining authority cannot be
doubted and the detention cannot be held to be bad on that ground. In
-< Bhawarlal Ganeshmalji v. State of Tamil Nadu and Anr., [1979] l SCC
465, where the appellant had been evading arrest and surrendering
after three years of the making of order of detention under the
COFEPOSA Act the order was held to be still effective as the detenu B
himself was to be blamed for the delay. This Court observed that there
must be a 'live and proximate link' between the grounds of detention
.-'
~
alleged by the detaining authority and the avowed purpose of deten-
tion, namely, the prevention of smuggling activities. In appropriate
cases it could be assumed that the link was snapped if there was a long
and unexplained delay between the date of order of detention and the
arrest of the detenu and in such a case the order of detention could be c
struck down unless the grounds indicated a fresh application of mind
of the detaining authority to the new situation and the ·changed
circumstances. But where the delay is not only adequately explained
,,/,,
but also is found to be the result of the recalcitrant or refractory
conduct of the detenu in evading arrest, there is warrant to consider D
the 'link' not snapped but strengthened. In that case the order of
detention was made on December 19, 1974. The detenu was found to
be absconding. Action was taken pursuant to section 7 of the
COFEPOSA Act a 1d he was proclaimed as a person absconding under
L. section 82 of the Criminal Procedure Code. The proclamation was
published in several leading English and local daily newspapers. E
Several other steps were taken despite which he could not be arrested
until he surrendered himself on February 1, 1978.

ln°Shafiq Ahmad v. District Magistrate, Meerut, [989] 4 SCC 556,
relied on by appellant, it has been clearly held that what amounts to

~
unreasonable delay depends on facts and circumstances of each case. F
Where reason for the delay was stated to be abscondence of the
detenu, mere failure on the part of the authorities to take action under
section 7 of the National Security Act by itself was not sufficient to
vitiate the order in view of the fact that the Police force remained
extremely busy in tackling the serious law and order problem. How-
ever it was not accepted as a proper explanation for the delay in G
arresting the detenu. In that case the alleged incidents were on April
2/3/9, 1988. The detention order was passed on April 15, 1988 and the
y' detenu was arrested on October 2, 1988. The submission was that
I there was inordinate delay in arresting the petitioner pursuant to the
order and that it indicated that the order was not based on a bona fide
and genuine belief that the action or conduct of the petitioner were H
220 SUPREME COURT REPORTS [1990] l S.C.R.

A such that the same were orejudicial to the maintenance of public
order. Sabyasachi Mukharji, J., a~ my Lord the Chief Justice then was,
observed that whether there was unreasonable delay or not would
depend upon the facts and circumstances of. a particular situation and
if in a situation the person concerned was not available and cQuld not
be served, then the mere fact that the action under section 7 of the Act
B ha(! not been taken, would not be' a ground for holding that the deten-
tion order was bad. Failure to take action even if there was no scope
for action under section 7 of the COFEPOSA Act, would not by itself
be a decisive or determinative of the question whether there was
undue delay in•serving the order of detention.

c showedIn that
Shafiq's case the affidavit affirmed by the detaining authority
several raids of the petitioner's premises for the service of
the order dated 15-4-1988 were conducted and the authorities had
made all efforts to serve the order on the detenu, but he was all along
absconding ·and the house of the petitioner for this purpose was raided I

on several occasions. However, in view of the fact that in that case ,\..

D from April 15, 1988 to May 12, 1988 no attempt had been made to
contact or arrest the petitioner and there was no explanation as to why
from September 27, 1988 to October 2, 1988 no attempt had been
made, there was unexplained delay and it was, therefore, not possible
for the Court to be satisfied that the Distict Magistrate had applied his

E
mind and arrived at the subjective satisfactio'n that there was genuine
need for detention of the detenu. The detention order was accodingly
J
quashed.

We have already noted how in the instant case the Home Secre-
tary sent .detailed instructions to the- Suoerintendent of Police,
Malapuramon 27-6-1988 and sent the teleprinter message on 19-7-1988
F and the Superintendent of Police wrote back on 27-7-1988 statmg that
tlie detenu was absconding and his whereabouts were not known and
all possible efforts were being made to execute the order and on
2-8-1988 the Superintendent of Police reported that the order was
served on 2-8-1988 at his residence and that he was sent to the Central
Prison, Trivandrum. Though it could not be denied that the detenu
G was reporting before the Superintendent (Intelligence) Air Customs,
Trivandrum on every Wednesday, the Superintendent of Police,
Malapuram apparently was not aware of it. Under the above facts and
circumstances we are of the view that there was no inordinate and
unexplained delay in the period of 38 days between the detention
order and its execution so as to snap the nexus between the two or to
H render the grounds stale or to indicate that the detaining authority was
M. AHAMEDKUTIY v. U.0.1. [SAIKIA, J.] 221

not satisfied as to the genuine need for detention of the detenu .. This A
submission is accordingly rejected.

We may pause here to point out that the circumstances in the
present case seem to indicate a certain degree of lack of coordination
between the detaining authorities and those entrusted with the execu-
tion of the detention order. This is clearly seen from two circumstances B
in the present case. Though the detention order was sent for service on
27-6-1988, a reminder was issued only on 19-7-1988. Apparently, the
Superintendent of Police was finding it difficult to trace the detenu but
he did not report this immediately and mentioned it to the detaining
authority only on 27-7-1988. He was obviously not aware that, under
the terms of the bail order the detenu had to report every week at the
Customs Office. If he had reported his difficulty earlier or if the C
detaining authorities had apprised him of the terms of the bail order, it
would have been possible to have had the detention order served
_,,,; earlier. These communication gaps should, we think, be avoided since
it is of the very essence of a detention order to have it served at the
earliest. While we have accepted the explanation tendered in the pre- D
sent case for this delay, we would like the State to ensure that such
delays do not occur as, apart from giving the detenu a ground for
attacking the detention order. such delay really tends to frustrate and
,l, defeat the very purpose of preventive detention.

The next submission of counsel was that the detaining authority E
should have realised that the seizure of the detenu's passports was by
itself sufficient to restrain the detenu's smuggling activities, if any, and
refrained from passing the order of detention. We see no force in this
contention. This was no doubt one of the factors that the detaining
authority should have taken (and did in fact take) into account but it
was for him to assess the weight to be attached to such a circumstance F
in arriving at his final decision and it is not open to us to interfere with
the merits of his decision. We, therefore, reject this contention of
Mr. Vaidyanathan.

The next submission is that of non-supply of the bail application
and the bail order. This Court, as was observed in Manga/bhai G
Motiram Patel v. State of Maharashtra, [1981] 1SCR852, has 'forged'
·y" certain procedural safeguards for citizens under preventive detention.
I The Constitutional imperatives in Article 22(5) are two-fold: (a) The
detaining authority must, as soon as may be i.e. as soon as practicable,
after the detention communicate to the detenu the grounds on which
the order of detention has been made, and (2) the detaining authority H
222 SUPREME COURT REPORTS [1990] 1 S.C.R.

A must afford the detenu the earliest opportunity of making the rep-
resentarion against the order of detention .. The right is to make an
effective representation and when some documents are referred to or
relied on in the grounds of detention, without copies of such docu-
ments, the grounds of detention would not be complete. The detenu
has, therefore, the right to be furnished with the grounds of detention
B along with the documents so referred to or relied on. If there is failure
or even delay in furnishing those documents it would amount to denial
of the right to make an effective representation. This has been settled
by a long line of decisions: Ramachandra A. Kamat v. Union of India, ,.;:J
[1980] (2) SCR 1072; Fran9es Coralie Mullin v. W.C. Khambra & Ors.,
[1980] 2 SCR 1095; Smt. Ichhu Devi Chararia v. Union of India, [1981]
C 1 SCR 640; Pritam Nath Hoon v. Union of India, [1981] 1 SCR 682;
Shri Tushar Thakkar v. Union o.f India, [1980] 4 SCC 499; Lal/ubhai
Jogibhai Patel v. Union of India, [1981] 2 SCC 427; Kirit Kumar
Chaman Lal Kundaliya v. Union of India, [1981] 2 SCC 436 and Smt.
Ana Carelina D'Souza v. Union of India, [1981] Suppl. SCC53. \

D It is immaterial whether the detenu already knew about their
contents or not. In Mehrunissa v. State of Maharashtra, [1981] 2 SCC
709, it was held that the fact that the detenu was aware of the contents
of the documents not furnished was immaterial and non-furnishing of
the copy of the seizure list was held to be fatal. To appreciate this point
one has to bear in mind that the detenu is in jail and has no access to
E his own documents. In Mohd. Zakir v. D~lhi Administration, [1982] 3
SCC 216 it was reiterated that it being a Constitutional imperative for
the detaining authority to give the documents relied on and referred to
in the order of detention pari passue the grounds of detention, those
should be furnished at the earliest so that the detenu could make an
effective representation immediately instead of waiting for the docu-
F ments to be supplied with. The question of demanding the documents
was wholly irrelevant and the infirmity in that regard was violative of
Constitutional safeguards enshrined in Article 22(5).

It is also imperative that if the detenu was already in jail the
grounds of detention are to show the awareness of that fact on the part
G of the detaining authority, otherwise there would be non-application
of mind and detention order vitiated thereby. In the instant case
though the order of detention ex-facie did not mention of the detenu
having been in jail, in paragraph 3 of the grounds of detention it was
said that he was arrested by the Superintendent (Intelligence) Air
Customs, Trivandrum on 31-1-1988 and he was produced before the
H Additional Chief Judicial Magistrate (Economic Offences), Ema-
M. AHAMEDKUTI'Y v. U.0.1. [SAIKIA, J.] 223

kulam the same day. It was clearly said: "You were remanded to A
judicial custody and you were subsequently released on bail." From
the Records it appears that the bail application and the bail order were
furnished to the detaining authority on his enquiry. It cannot, there-
fore, be said that the detaining authority did not consider or rely on
them. It is difficult, therefore, to accept the submission of Mr.
Kunhikannan that those were not relied on by the detaining authority. B
The bail application contained the grounds for bail including that he
had been falsely implicated as an accused in the case at the instance of
persons who were inimically disposed towards him, and the bail order
contained the conditions subject to which the bail was granted includ-
ing that the accused, if released on bail, would report to the
Superintendent (Intelligence) Air Customs, Trivandrum on every
Wednesday until further order, and that "he will not change his resi- C
dence without prior permission of court to 25-2-1988". This being the
position in law, and non-supply of the bail application and the bail
order having been apparent, the legal consequence is bound to follow.

In Khudiram Das v. State of West Bengal, [1975] 2 SCR 832, this D
Court held that where the liberty of the subject is involved it is the
bounden duty of the Court to satisfy itself that all the safeguards
provided· by the law have been scrupulously observed and that the
subject is not deprived of his personal liberty otherwise than in accor-
dance with law. The Constitutional requirement of Article 22(5) is that
all the basic facts and· particulars which influenced the detaining E
authority in arriving at the requisite satisfaction leading to making the
detention order must be communicated to the detenu so that the
detenu may have an opportunity of making an effective representation
against the order of tletention. "It is, therefore, not only the right of
the Court, but also its duty as well, to examine what are the basic facts
and materials which actually and in fact weighed with the detaining F
authority in reaching the requisite satisfaction. The judicial scrutiny
cannot be foreclosed by a mere statement of the detaining authority
that it has taken into account only certain basic facts and materials and
though other basic facts and mateials were before it, it has not allowed
them to influence its satisfaction. The Court is entitled to examine the
correctness of this statemen_t and determine for itself whether there o
were any other basic facts or materials, apart from those admitted by
.it, which could have reasonably influenced the decision of the detain'
·ing authority and for that purpose, the Court can certainly require the
detaining authority to produce and make avaikible to the Court the
entire record of the case which was before it. That is the least the
Court can do to ensure observance of the requirements of law by the H
detaining authority."
224 S UPREME COURT REPORTS [1990) 1 S.C.R.

A From the decision in Ramesh Yadav v. District Magistrate, Etah
& Ors., [ 1985) 4 SCC 232, it can be said that the facts of the detenu
having been in jail and his being granted bail are by themselves not
enough to justify the passing of the detention order. In that case it was
mentioned in the grounds of detention:
B
"At this time you were detained in the District Jail,
Mainpuri and you have filed an application for bail in the
court of law which is fixed for hearing on September 17,
1984, and there is positive apprehension that after having
bail you will come out of the jail and I am convinced that
after being released on bail you will indulge in activities
c prejudicial to the maintenance of public order."

It was observed that the detention order was passed as the detaining
authority was apprehensive that in case the detenu was released on
bail, he would again carry on his criminal activities in the area. If the
D apprehension of the detaining authority was true, the bail application
had to be opposed and in case bail was granted, challenge against that
order in the higher forum had to be raised. Merely on the ground that
an accused in detention as an under-trial prisoner was likely to get bail
an order of detention under th,e National Security Act should not
ordinarily be passed. The detention order was accordingly quashed.
E In State of U.P. v. Kamal Kishore Saini, [1988) 1 SCC 287, the
application of a co-accused as well as statements made in the bail
application filed on behalf of the detenu alleging that the detenu was
falsely implicated and the Police report thereon were not produced
before the detaining authority before passing the detention order.
Holding that the detention order was invalid on that ground, it was
F observed:

"Similarly with regard to ground No. 3, the application of
the co-accused as well as the statement made in the bail
application filed on behalf of the detenus alleging that they
had been falsely implicated in the same case and the police
report thereon, were not produced before the detaining
authority before passing of the detention order ..... It is
incumbent to place all the vital materials before the detain-
ing authority to enable him to come to a subjective satisfac-
tion as tO' the passing of the order of detention as man-
datorily required under the Act."
M. AHAMEDKUTTY v. U.0.1. [SAIKIA, J.J 225

Non-consideration of the bail order would have, therefore, in
A
this case amounted to non-application of mind. In Union of India v.
Manoharlal Narang, [1987] 2 SCC 241, the Supreme Court's interim
order in pending appeal against High Court's quashing of a previous
order of detention against the same ·detenu was not considered by ihe
detaining authority while making the impugned subsequent order
against him. By the interim order Supreme Court had permitted the B
detenu to be at large on condition of his reporting to the police station
daily. It was held that non-consideration of the interim order which
constituted a reievant and important material was fatal to the subse·
q uent detention order on ground of non-application of mind. If the
detaining authority considered that order one could not state with
definiteness which way his subjective satisfaction would have reacted
and it could have persuaded the detaining authority to desist from
passing the order of detention. If in the instant case the bail order on
condition of the detenu's reporting to the Customs authorities was not
considered the detention order itself would have been affected. There·
fore, it cannot be held that while passing the detention order the bail
order was not relied on by the detaining authority. In S. Gurdip Singh 0
v. Union of India, [1981) l SCC 419, following lchhu Devi Choraria v.
Union of India, (supra) and Smt. Slialini Soni v. Union of India, [1981l
1 SCR 962, it was reiterated that if the documents which formed the
basis of the order of detention were not served on the detenu along
with the grounds of detention, in the eye of law there would be no
service of the grounds of detention and that circumstances wouid
vitiate his detention and make it void ab initio.

Mr. Kunhikannan relies on Haridas Amarchand Shah v. K.l.
Verma, [1989] 1 SCC 250, wherein the application for bail and the
order dated September JS, 1987 passed by the Metropolitan Magis-
trate granting conditional bail were placed before the detaining
authority, but the application dated September 21, 1987 for variation of
the conditions and the order made by the Metropolitan Magistrate
thereon were not placed before the detaining authority, this Court
held that the application for variation of conditions on bail and the
order passed by the Metropolitan Magistrate varying the conditions of
bail were, in its opinion, not vital and material documents inasmuch as
the granting of bail by the Magistrate enabled the detenu to come out
and carry on his business as before and variation of the conditions
were not considered vital for the satisfaction as to need for detention.
That case is, therefore, distinguishable on facts.

Considering the facts in the instant case, the bail application and H
226 SUPREME COURT REPORTS [1990] 1 S.C.R.

A the bail order were vital materials for consideration. If those were not
considered the satisfaction of the detaining authority itself would have
been impaired, and if those had been considered, they would be docu-
ments relied on by the detaining authority though the specifically
mentioned in the annexure to the order of detention and those ought
to have formed part of the document~ ;upplied to the detenu with the
B
grounds of rletention and without them the grounds themselves could
not be said to have been complete. We have, therefore, no alternative
but to hold that it amounted to denial of the detenu's right to make an
effective representation and that it resulted in violation of Article ·.~
--(5) of the Constitution of India rendering the continued detention of
the detenu illegal and entitling the detenu to be set at liberty in this
C case.

Mr. Vaidyanathan's last submission is that the order of declara-
tion dated 23-8-1988 is bad on the ground that the show cause notice
dated 7,7-1988 and his reply thereto dated 26-7-1988, the bail applica-
tion and the bail order dated 12-2-1988 as also the fact that the two
D
passports of the detenu were seized were not placed before the declar-
ing authority before he issued the declaration order under section 9( l)
oi the COFEPOSA Act. Mr. Mahajan clearly stated that all the mate-
rials that were placed before the detaining authority were also placed
before the declaring authority, which meant that the show cause
notice, the reply thereto, and the seizure list of the passports were not
E placed before him.

The declaration made under section 9 of the COFEPOSA Act by
the Additional Secretary to the Government of India on 23-8-1988
reads as under:
F "Whereas Shri M. Ahamedkutty S/o Shri Cheriya
Saidukutty has been detained on 2-8-1988 in pursuance of
order No. 35158/SSAI/88/Home dated 25-6-1988 of the
Government of Kerala made under Section 3( 1) of the
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 with a view to preventing
G him from smuggling gold;

And whereas I, the undersigned, specially em-
powered in this behalf by the Central Government, have
carefully considered the grounds of detention and the
material served on the detenu:
H
M. AHAMEDKUTTY v. U.0.1. lSAIKIA, J.) 227

Now, therefore, I. the undersigned, hereby declare A
that I am satisfied that the aforesaid Shri Ahamedkutty
S/o Shri Cheriya Saidukutty is likely to smuggle goods into
and through Trivandrum Airport which is an area highly
vulnerable to smuggling as defined in Explanation 1 to Sec-
tion 9(1) of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974." B

This order ex facie says that the declaring authority had carefully
considered the grounds of detention and the materials served on the
detenu and on those materials the authority was satisfied that the
detenu was likely to smuggle goods into and through Trivandrum
Airport which was an area highly vulnerable to smuggling as defined in C
Explanation l to section 9(1) of the COFEPOSA Act. The question is
whether there were adequate materials for the authority being satis-
fied that the detenu was likel:1 to smuggle goods. The. detenu having
already been under detention and his detention confirmed by the
Government under section 8, the Advisory Board'having reported that
there was sufficient cause for continued detention of the detenu, were D
there still enough materials to be satisfied that the detenu was likely to
smuggle goods into Trivandrum vulnerable area? To decide this ques-
tion, Mr. Vaidyanathan urged, it is necessary to remember that the
passports of the detenu had been seized by the authorities. According
to counsel, if the detaining authority had applied his mind to this
important fact, he could not have been satisfied that his detention was E
necessary to restrain the detenu's activities of smuggling. This point we
have touched upon earlier. In any event, Mr. Vaidyanathan submits,
th!! declaring authority could not have oeen satisfied that the detenu
"was likely to smuggle goods into and through the Trivandrum
afrport" (which is the vulnerable area) for, without a passport, he
could not come in or g0-0ut through the airport. F

In Smt. Rekhaben Virendra Kapadia v. State of Gujarat & Ors.,
[1979] 2 sec 566, the declaring authority who passed an .order under
section 9( 1) had also stated that the detenu "engages" and "is likely to
engage" in transporting smuggled goods. To that extent it was
observed by this Court that there was no material for coming to the G
conclusion that the detenu was "engaging" himself in the unlawful
activities as the detem! had been under detention. However, in an
appropriate case if the declaring authority came to the conclusion
taking into account the past activities of the detenu that he was likely
to continue to indulge in such acivities in future there might be no
justification for this Court to interfere. !twas quite likely that persons H
7.28 SUPREME COURT REPORTS [1990] 1 S.C.R.

A who were systematically involved in smuggling activities could cause
reasonable apprehension in the minds of the declaring authority that
they were likely to continue their prejudicial activities.

The emphasis in section 9 appears to be on the satisfaction that
B the detenu (a) smuggles or is likely to smuggle goods into, out of or
through any area highly vulnerable to smuggling; or (b) abets or is
likely to abet the smuggling of goods into, out of or through any area
highly vulnerable to smuggling; or (c) engages or is likely to engage in
transporting or concealing or keeping smuggled goods in any area
highly vulnerable to smuggling; and in making a declaration to that
effect within 5 weeks of the detention of the person. Explanation J
C defines "area highly vulnerable to smuggling" and Explanation 2
defines "customs airport" and the "customs station". It is true that
under section 10 of the COFEPOSA Act, where the provisions of
section 9 apply, the maximum period of detention shall be a period of
two years from the date of detention or the specified period whichever
period expires lat~r. However, nothing contained in section 9 shall
D affect the power of the appropriate Government in either case to
revoke or modify the detention order at any earlier time. This may
imply an obligation on the part of the detaining authority to place the
facts and materials that occurred between the date of detention and
the date of declaration, so as to justify prolongation of the period of
detention. In Smt. Madhu Khanna v. Administrator, Union Territory J
E of Delhi, [1986] 4 SCC 240, where detenu's representation was
rejected and declaration under section 9(1) was made on the same day
but in different files, mere non-reference of the representation in the
declaration was held not to have shown failure of the declaring autho-
rity to consider the representation before making the declaration.
However, as we have taken the view that non-furnishing of the copies
F of the bail application and the bail order has resulted in violation of
Article 22(5) of the Constitution, we do not express any opinion on
this submission.

In the result, the detention order and the impugned judgment
are set aside, the appeal is allowed and the detenu is to be set at liberty
G in this case.

R.S.S. Appeal allowed.