RAJENDRAKUMAR NATVARLAL SHAHversusSTATE OF GUJARAT &. ORS.

               RAJENDRAKVMAR ·NATVARLAL. SHAH-
                                                                               A
                                 "·
                      STATE OF GUJARAT.&.. ORS.

                                MAY JO, 1988
r
!                  [A.P. SEN AND L.M. SHARMA, JJ.]                             B

          Gujarat Prevention of Anti_Social Activities Act, 1985 challeng-
    ing detention under sub__s. (2) of s. 3--of-

          This appeal by special leave against the judgment of the High
    Court in writ petition, and the writ petition filed in this Court were
    directed against an order of detention passed by the District Magistrale
                                                                               c
    against the appellant under sub-s. (2) of s. 3 of the Gujarat Prevention
    of Anti-Social Activities Act, 1985 with a view to preventing him fro!D
    acting in any manner prejudicial to the maintenance of public order.

           The appellant was a comission agent or broker engaged in illicit    D
    business of liquor traffic atGodhara in the State of Gujarat where there
    is total prolnoition by importing liquor from Vanswada in Rajasthan.

          On prior information that the appellant was about to import
    liquor in a truck on the night between 29th/30th December, 1986, the
    Gujarat police intercepted the truck and found it laden with cases E
    containlng bottles of whisky and beer, etc. It was evident from the
    statements Of the driver and the cleaner that the appellant had
    purchased the liquor from Vanswada. The appellant could not be
    traced till 2nd February, 1987, when he was arrested but later released
    on bail. On 28th May, 1987, the District Magistrate, Godhara, passed
    an order of.detention and served it alongwith the grounds of detention F
    on the appellaflt on the 30th when he was taken into custody. The
    immediate and proximate cause for the detention was that on 29th/30th
    December, 1986, he had transported in bulk foreign liquor from Vans-
    wada in Rajasthan for delivery in the State of Gujarat and indulged in
    anti-social activities by doing illicit business of foreign liquor. The
    grounds furnished particulars Of two other criminal cases, namely (i) · G
    Criminal Case No. 303/82 on account of recovery of 142 bottles of
    foreign liquor seized from his residence on 21st July, 1982, which had
    ended in acquittal as the prosecution witnesses turned hostile, and (Ii)
    Criminal Case No. 150/86 relating to seizure of 24 bottles of foreign
    liquor from his house on 30th May, 1986, which was still pending.
                                                                             H
                                      287
    288          SUPREME COURT REPORTS                 [1988] Supp. l S.C.R.

          The appellant filed the writ petition in the High Court assailing
A
    the order of detention. The High Court declined to interfere. The appel-
    lant then filed in this Court· the appeal by special leave against the
    decision of the High Court and the writ petition, against the order or
    detention.

B          Dismissing the appeal and the writ petition, the Court

            HELD: When any person is detained in pursuance of an order
      made under any law of preventive detention, the authority making the
      order shall, as soon as may be, communicate to such person the grounds
      of detention and afford him the earliest opportunity of making a rep-
      resentation against the order. The power of preventive detention under
c     any law for preventive detention is necessarily subject to the limitations
      enjoined on the .exercise of such power by Art. 22(5) as construed by
      this Court. The Court must be circumspect in striking down an order of
      detention where it. meets with the· requirements of Art. 22(5) of the
    · Constitution. l294C-E; 2950-E]
D
           Since preventive detention is a serious inroad on individual liberty
     and its justification is the prevention of inherent danger of activity
     prejudicial to the community, the detaining authority must be satisfied
     as to the sufficiency of the grounds which justify the taking of the
     drastic measure of preventive detention. The requirements of Art. 22(5)
E    are satisfied once 'basic facts and materials' which weighed with the
     detaining authority in reaching bis subjective satisfaction are commu-
     nicated to the detenu. There is apt to be some delay between the preju-
     dicial activity complained of ins. 3(1) of the Act and the making of an
     order of detention. When a person is detected in the act of smuggling or
     foreign exchange racketeering, the Directorate of Enforcement has to
F    make a thorough investigation into all the facts with a view to determin-
     ing the identity of the persons engaged in these operations. Their state-
     ments have to be recor.ded; their books of accounts and other related
     documents have to be examined. Sometimes such investigation bas to be
     carried on for months together. The Directorate has to consider
     whether there is necessity in the public interest to direct the detention of
G    a person under s. 3(1) of the Act with a view to preventing him from
     acting in any manner prejudicial to the conservation and augmenta-
     tion of foreign exchange or from engaging in smuggling of goods, etc.
     The proposal has to be cleared. at the highest quarter and then placed
     before a Screening Committee. If the Screening Committee approves,
     the proposal is placed before the detaining authority. The detaining
H    authority would necessarily insist upon sufficiency of grounds which
               RAJENDRAKUMAR v. STATE OF GUJARAT                    289

 would justify the preventively detaining of the person. Viewed from this
 prospective, the Court emphasised for the guidance ofthe High Courts A
 that a distinction must be drawn between delay in making an order of
 detention under a law relating to preventive detention and the deta:; in
 complying with the procedural safeguards of Art. 22(5) of the Constitu-
 tion. The rule as to unexplained delay in taking action is not inflexible.
 The Courts shonld not merely on account of delay in making an order of
 detention assume that the delay, if not satisfactorily explained, must
·necessarily give rise to an inference that there was no snfficient material
 for the subjective satisfaction of the detaining anthority or that such
 subjective satisfaction was not genuinely reached. Taking of micb a view
 would not be warranted unless the Court finds that the grounds are
 'stale' or illusory or that there is no real nexus between the grounds and C
 the order of detention. The decisions to the contrary by the Delhi High
 Court in Anil Kumar Bhasin v. Union of India & Ors., Crl. W. No.
 410/86 dated 2.2.1987; Bhupinder Singh v. Union of India & Ors.,
 [1985] DLT 493; Anwar Esmail Aibani v. Union of India & Ors., Crl.
 W. No. 375/86 dated 11.12.1986; Surinder Pal Singh v. M.L. Wadha-
 wan & Ors., Crl. W. No. 444/86 dated 9.3.1987 and Ramesh Lal v. D
 Delhi ?l.dministration, Crl. W. No. 43/84 dated 16.4.1984 and Cases
 taking the same view did not lay down good law and were overruled. In
 this case, the appellant was arrested on 2nd February, 1987. The order
 of detention of the appellant was passed on 28th May, 1987. Though
 there was no explanation for the delay between 2nd February and 28th
 May, 1987, it could not give rise to a legitimate inference that the E
 snbjective satisfaction arrived at by the District Magistrate was not
 genuine or that the grounds were stale or illusory or that there was no
 rational connection between the grounds and the impugned order of
 detention. {295F-G; 296B-H; 297A-G; 298C-D]

      It could not be said that there was lack of awareness on the part of F
the District Magistrate on 28th May, 1987 in passing the order of deten-
tion as he did. There was a mention in the gronnds of the two criminal
cases against the detenu-Criminal Case No. 303/82 and Criminal Case
No. 150/86--,and also a recital of the fact that he was continuing his
business surreptitiously and be could not be caught easily and, there-
fore, there was compelling necessity to detain him. [JOOD]                 G

      The contention regarding lack of certainty and precision on the
part of the detaining authority as to the real purpose of detention and
that they were 'all rolled up into one' was of little or no consequence.
The purpose of detention is to prevent the appellant from acting in any
manner prejudicial to the maintenance of public order. It was disputed     H
    290         SUPREME COURT REPORTS                [1988] Supp. 1 S.C.R.

   that the prejudicial activities of the appellant answered the description
A
   of a 'bootlegger' as defined ins. 2(b) and, therefore, he came within the
   purview of sub-s. (1) of s. 3 of the Act by reason of sub-s. (4) thereof.
   Sub-s. (4) of s. 3 with the explanation thereto gives an enlarged mean-
   ing to the words 'acting in any manner prejudicial to the maintenance
   of public order'. The district magistrate in passing the impugned order
B recorded his subjective satisfaction that with a view to preventing the
   appellant from acting in any manner prejudicial to the maintenance of
   public order, it was necessary to make an order that he be detained. In
  -the accompanying grounds of detention this was the basis for the forma-
   tion of his subjective satisfaction, and it was stated therein that unless
   the order of detention was made he would not stop his illicit liquor
c traffic  on brokerage and, therefore, it was necessary to detain him
   under s. 3(2) of the Act. [300E-G; 301C-D]


        The contention that there was unexpected delay in the disposal of
  the representation made by the appellant to the State Government was
  wholly misconceived. The representations were made by the appellant
D on 8th June, 1987. The State Government acted with promptitude and
  rejected them on 12th June, 1987. There was no delay. [301F-G]


          The appeal and the writ petition failed.

E         Khudiram Das v. State of West Bengal, [1975) 2 SCC 81;
    Narendra Purshottam Umrao v. B.B. Gujral, [1979[ 2 SCR 315; Olia
    Mallick v. State of West Bengal, [1974) 1 SCC 594; Galam Hussain@
    Gama v. Commissioner of Police, Calcutta & Ors., [1974) 3 SCR 613;
    Odut Ali Miah v. State of West Bengal, [1974) 4 SCC 127; Vijay Narain
    Singh v. State of Bihar, [1954] 3 SCC 14; Gora v. State of West Bengal,
F   [1975] 2 SCR 996; Raj Kumar Singh v. State of Bihar & Ors., [1986) 4
    SCC 407; Hemlata Kantilal Shah v. State of Maharashtra, [1981) 4 SCC
    647; Bal Chand Bansal v. Union of India & Ors., J.T. (1983) 2 SC 65;
    Ramesh Yadav v. District magistrate, Etah, [1985) 4 SCC 232 and Suraj
    Pal Sahu v. State of Maharashtra, [1986) 4 SCC 378, referred to.

G
          Anil Kumar Bhasin v. Union of India & Ors., Crl. W. No. 410/86
    dated 2.2.1987; Bhupinder Singh v. Union of India & Ors., [1985) DLT
    493; Anwar Esmail A/ibani v. Union of India & Ors., Crl. W. No.
    375/86 dated 11.12.1986; Surinder Pal Singh v. M.L. Wadhawan &
    Ors., Crl. W. No. 444/86 dated 9.3.1987 and Ramesh Lal v. Delhi
H   Administration, Crl. W. No. 43/84 dated 16.4.1984, overruled.
J


              RAJENDRAKUMAR v. STATE OF GUJARAT [SEN, J.]                   291

         CRIMINAL APPELLATE/ORIGINAL                        JURISDICTION:
                                                                                   A
    Criminal Appeal No. 319 of 1988
         From the Judgment and Order dated 21. 11. 1987 of the Gujarat
    High Court in Special Criminal Application No. 732 of 1987.

                                       AND
                                                                                   B
          Writ Petition (Criminal) No. 906of1987.
        M.C. Kapadia, S.S. Khanduja and Y.P. Dhingra for the
    Appellant/Petitioner. .

          G .A. Shah and M .N. Shroff for the Respondents.
                                                                                   c
          The Judgment of the Court was delivered by

          SEN, J. This appeal by special leave brought from the judgment
    and order of the. Gujarat High Court dat~d 21st November, 1987 and
    the connected petition under Art. 32 of the Constitution are directed          D
    against an order passed by the District Magistrate, Panchmahals,
    Godhra dated 28th May, 1987 for the detention of the appellant under
     sub-s. (2) of s. 3 of the Gujarat Prevention of Anti-Social Activities
    Act, 1985 on being satisfied that it was necessary to do so, with a view
    to preventing him from acting in any manner prejudicial to the mainte-
    nance of public order.                                                         E

          It is not an undisputed fact that the appellant is engaged as a
    commission agent or broker in the rather lucrative but illicit business
    of liquor traffic at Godhra in the State of Gujarat where there is total
    prohibition by importing different varieties of Indian made foreign
    liquor in sealed bottles like scotch whisky, beer etc. from wine               F
    merchants of Vanswada in the State of Rajasthan. But then by engag-
    ing himself in such activities he falls within the description of a
    'bootlegger' as defined in s. 2(bl and therefore comes within the ambit
    of sub-s. (1) of s. 3 of the Act by reason of the legal fiction contained in
    sub-s. (4) thereof.
                                                                                   G
          Put very briefly, the essential facts are these. On prior informa-
    tion that the appellant was about to import Indian made foreign liquor
    in bulk in truck bearing registration No. GRY 3832, on the night
    between 29/30th December, 1986, the Gujarat police put up a road
    block on the bridge near Machan River where on a sign given it failed
    to stop. After a long chase, the police jeep was able to intercept the         H
    292         SUPREME COURT REPORTS                I 1988] Supp. 1 S.C.R.

    truck at Limdi. Both the driver Ahmed Saiyad Abdul Majid Kalander
A
    and cleaner Sadique Ahmed Yusuf Durvesh Shaikh got down and said
    that the truck was empty. However, on a search it was found to be
    laden with 77 sealed cases containing 2040 bottles of different brn .. Js
    of scotch whisky, beer etc. and it was evident from the statements of
    the driver and the cleaner who were arrested, that the appellant was
B   the person who had purchased the liquor from wine merchants of
    Vanswada. On 4th January, 1987 the statements of the witnesses were
    recorded. Apparently ;the appellant absconded and he could not be
    traced till 2nd February, 1987 when he was arrested but later released
    on bail. In the meanwhile, he moved the Sessions Judge, Panchmahals
    for anticipatory bail on 21st January, 1987 but no orders were passed
    inasmuch as the police made a statement that there was no proposal at
c   that stage to place him under arrest. The appellant is being prosecuted
    for various offences under the Bombay Prohibition Act, 1949 as appli-
    cable to the State of Gujarat, in Criminal Case No. 154/86. On 28th
    May, 1987 i.e. after a lapse of five months the District Magistrate,
    Panchmahals, Godhra passed the order of detention along with the
D   grounds therefore which was served on the appellant on the 30th when
    he was taken into custody. The immediate and proximate cause for the
    detention was that on 20/30th December, 1986 he transported in bulk
    foreign liquor from liquor merchants of Vanswada in the State of
    Rajasthan intended and meant for delivery to persons indulged in
    anti-social activities by doing illict business of foreign liquor in the
E   State of Gujarat. Incidentally, the grounds furnish particulars of two
    other criminal cases, namely, (i) Criminal Case No. 303/82 on account
    of recovery of 142 bottles of foreign liquor recovered and seized from
    his residential house on 21st July, 1982, but the case ended in an
     acquittal as the prosecution case witnesses turned hostile, and (ii)
     Criminal Case No. 150/86 relating to recovery and seizure of 24 bottles
F   of foreign liquor from his house on 30th May, 1986 which case was still
    pending. It was said that persons like the appellant bringing foreign
     liquor from other States illegally without a permit on a brokerage and
    storing the same in their perrnises are not easily detected and there was
    no other method of preventing such persons from engaging in such
    anti-social activities except by detention under s. 3(2) o~ the Act.
G
          In the writ petition before the High Court the appellant assailed
    the impugned order of detention mainly on two grounds, namely: (i)
    The failure of the detaining authority to record his subjective satisfac-
    tion as required under sub--s. (2) of s. 3 that the importation of foreign
    liquor by the appellant from Vansawada across the border was likely to
H   affect public health of ihe citizens of Gujarat and therefore it was
of,.             RAJENDRAKUMAR v. STAIB OF GUJARAT [SEN. J.[              293

       necessary to detain him with a view to preventing him from acting in
                                                                                 A
       any manner prejudicial to public order, renders the order of detention
       bad and invalid. (ii) There was no sufficient material on record on
       which such subjective satisfaction of the detaining authority could be
       reached. Neither of the two contentions prevailed with the High Court
       and it accordingly declined to interfere.
                                                                                B
             At the time when the judgment was to be delivered by the High
       Court, learned counsel appearing for the appellant sought permission
       to raise an additional point and he was permitted to do so. It was as to
       whether the detention of the detenu at Sabarmati Central Prison,
       which was a place other than Godhra where he ordinarily resides, was
       tantamount to a breach of the mandate of Art. 21 of the Constitution C
       as his detention at a far-off place was not consistent with human
       dignity and civilized normes of behaviour. The additional point so
       raised also did not find favour with the High Court. The appeal by
       special leave is directed against this judgment. Learned counsel for the
       appellant has however not preferred to rais these questions over
       again.                                                                   D

               In the connected petition under Art. 32 learned counsel for the
       appellant has, in substance, put forth the following contentions,
       namely: (1) There is no explanation forthcoming for the admitted
       delay of five months in making the impugned order of detention and
       such inordinate unexplained delay by itself was sufficient to vitiate the E
 /     order. (2) The impugned order of detention was bad in law inasmuch
       as there was non-application of mind on the part of the detaining
       authority. There was nothing to show that there was awareness of the
       fact that the appellant had applied for grant· of anticipatory bail nor
       was there anything to show that the detaining authority was satisfied
       about the compelling necessity to make an order for detention which, F
       it is said, was punitive in character. It is said that there was no occasion
       to commit the appellant to prison while he was on bail in a criminal
       case facing charges under the Bombay Prohibition Act, 1949 merely on
       the suspicion of being a bootlegger. (3) The impugned order of deten-
       tion was ultra vires the District Magistrate and void ab initio as it
       displayed lack of certainty and precision on the part of the detaining G
       authority as to the purpose of detention. There was clubbing of
       purposes as it mentioned that such detention was necessary (i) in the
       interests of the nation with a view to stop tiie anti-national activities,
       (ii) for ensuring of public peace, (iii) for maintenance of public health,
       and (iv) in the interest of the State, all rolled up into one. (4) There
       was delay in the disposal of the representation made by the appellant H
    294        SUPREME COURT REPORTS                [1988) Supp. 1 S.C.R.

  to the State Government which renders his continued detention
A invalid and constitutionally impermissible. We shall deal with the
  contentions in seriatim.

        Point No. (1): It has always been the view of this Court that
  detention of individuals without trial for any length of time, however
B short, is wholly inconsistent with the basic ideas of our Government
  and the gravity of the evil to the community resulting from anti-social
  activities can never furnish an adequate reason for invading the
  personal liberty of the citizen except in accordance with the procedure
  established by Jaw. The Court has therefore in a series of decisions
  forged certain procedural safeguards in the case of preventive deten-
  tion of citizens. When the life and liberty of citizen was involved, it is
C expected that the Government will ensure that the constitutional safe-
  guards embodied in Art. 22(5) are strictly observed. When any person
  is detained in pursuance of an order made under any law of preventive
  detention, the authority making the order shall, as soon as may be,
  communicate to such person the grounds on which the order has been
D made and shall afford him the earliest opportunity of making a
  representation against the order. These procedural safeguards are ing-
  rained in our system of judicial interpretation. The power of preven-
  tive detention by the Government under any law for preventive deten-
  tion is necessarily subject to the limitations enjoined on the exercise of
  ·such power by Art. 22(5) as construed by this Court. Thus, this Court
E in Khudiram Das v. State of West Bengal, [1975) 2 SCC 81 speaking
  through Bhagwati, J. observed:

                "The constitutional imperatives enacted in this article are
                two-fold: (1) the detaining authority must, as soon as may
                be, that is, as soon as practicable after the detention com-
F               municate to the detenu the grounds on which the order of
                detention has been made, and (2) the detaining authority
                must afford the detenu the earliest opportunity of making a
                representation against the order of detention. These are
                the barest minimum safeguards which must be observed
                before an executive authority can be permitted to preven-
G               tively detain a person and thereby drown his right of
                personal liberty in the name of public good and social
                security."

  As observed by this Court in Narendra Purshotam Umrao v. B.B.
  Gi1jra/, [1979) 2 SCR 315 when the liberty of the subject is involved.
H whether it is under the Preventive Detention Act or the Maintenance
          RAJENDRAKUMAR v. STATE OF GUJARAT {SEN, J.]                   295

of Internal Security Act or the Conservation of Foreign Exchange and
                                                                                A
Prevention of Smuggling Activities Act or any other law providing for
preventive detention.

            " .. .it is the bounden duty of the Court to satisfy itself that
            all the safeguards provided by the law have been scrupul-
            ously observed and that the subject is not deprived of his          B
            personal liberty otherwise than in accordance with law."

Nevertheless, the community has a vital interest in the proper enforce-
ment of its laws particularly in an area such as conservation of foreign
exchange and prevention of smuggling activities in dealing effectively
with persons engaged in such smuggling and foreign exchange racke- C
leering or with persons engaged in anti-national activities which
threaten the very existence of the unity and integrity of the Union or
with persons engaged in anti-social activities seeking to create public
disorder in the worsening law and .order situation, as unfortunately is
the case in some of the States today, by ordering their preventive
detention and at the same time, in assuring that the law is uot used D
arbitrarily to suppress the citizen of his right to life and liberty. The
Court must therefore be circumspect in striking down the impugned
order of detention where it meets with the requirements of Art. 2.2(5)
of the Constitution.

      There is an inexorable connection between the obligation on the           E
part of the detaining authority to furnish the 'grounds' and the right
given to the detenu to have an 'earliest opportunity' to make the
representation. Since preventive detention is a serious inroad on indi-
vidual liberty and its justification is the prevention of inherent danger
of activity prejudicial to the community, the detaining authority must
be satisfied as to the sufficiency t>f the grounds which justify the taking     F
of the drastic ::neasure of preventive detention. The requirements of
Art. 22(5) are satisfied once 'basic facts and materials' which weighed
with the detaining authority in reaching his subjective satisfaction are
communicated to the detenu. The test to be applied in respect of the
contents of the grounds for the two purposes are quite different. For
the first, the.test is whether it is sufficient to satisfy the authority, for   G
the second, the test is whether it is sufficient to enable the detenu to
make his representation at the earlier opportunity which must, of
course, be a real and effective opportunity. The Court may examine
the 'grounds' specified in the order of detention to see whether they
are relevant to the circumstances under which preventive detention
could be supported e.g. security of India or of a State, .conservation          H
    296         SUPREME COURT REPORTS                 [1988] Supp. 1 S.C.R.
                                                                                  •
A   and augmentation of foreign exchange and prevention of smuggling
    activities, maintenance of public order, etc. and set the detenu at
    lib.erty if there is no rational connection between the alleged activity of
    the detenu and the grounds relied upon, say public order.

          In the enforcement of a law relating to preventive detention like
B   the conservation of Foreign Exchange and Prevention of Smuggling
    Activities Act, 1974 there is apt to be some delay between the prejudi-
    cial activity complained of under s. 3(1) of the Act and the making of
    an order of detention. When a person is detected in the act of smuggl-
    ing or foreign exchange racketeering, the Directorate of Enforcement
    has to make a thorough investigation into all the facts with a view to
C   determine the identity of the persons engaged in these operations
    which have a deleterious effect on the national economy. Quite often
    these activities are carried on by persons forming a syndicate or having
    a wide network and therefore this includes recording of statements of
    persons involved, examination of their books of accounts and other
    related documents. Effective administration and realisation of the
D   purpose of the Act is often rendered difficult by reason of the
    clandestine manner in which the persons engaged in such operations
    carry on their activities and the cconsequent difficulties in securing
    sufficient evidence to comply with the rigid standards, insisted upon by
    the Courts. Sometimes such investigation has to be carried on for
    months together due to the magnitude of the operations. Apart from
E   taking various other measures i.e. launching of prosecution of the
    persons involved for contravention of the various provisions of the
    Acts in question and initiation of the adjudication proceedings, the
     Directorate has also to consider whether there was necesssity in the
    public interest to direct the detention of such person or persons under
    s. 3(1) of the Act with a view to preventing them from acting in any
F    manner prejudicial to the conservation and augmentation of foreign
    exchange or with a view to preventing them from engaging in smuggl-
     ing of goods etc. The proposal has to be cleared at the highest quarter
     and is then placed before a Screening Committee. For ought we know,
     the Screening Committee may meet once or twice a month. If the
     Screening Committee approves of the proposal, it would place the
G    same before the detaining authority. Being conscious that the require-
     ments of Art. 22(5) would not be satisfied unless the 'basic facts and
     materials' which weighed with him in reaching his subjective satisfac-
     tion, are communicated to the detenu and the likelihood that the
     Court would examine the grounds specified in the order of detention
     to see whether they were relevant to the circumstances under which
H    the impugned order was passed, the detaining authority would neces-
         RAJENDRAKUMAR v. STATE OF GUJARAT [SEN, J.]               297

sarily insist upon sufficiency of the grounds which would justify the . A
taking of the drastic measure of preventively detaining the person.

      Viewed from this perspective, we wish to emphasise and make it
clear for the guidance of the different High Courts 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 Conservation of B
Foreign Exchange & Prevention of Smuggling Activities Act, 1974 and
the delay in complying with the procedural safeguards of Art. 22(5) of
the Constitution. It has been laid down by this Court in a series of
decisions that the rule as to unexplained delay in taking action is not
inflexible. Quite obviously, in cases of mere delay in making of an
order of detention under a law like the Conservation of Foreign
Exchange & Prevention of Smuggling Acticities Act, 1974 enacted for c
the purpose of dealing effectively with persons engaged in smuggling
and 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 tbe nation, tbe Courts should not merely on
account of delay in making of an order of detention assume that such D
delay, if not satisfactorily explained, must necessarily give rise to an
inference that there was no sufficient material for. the subjective satis-
faction of the detaining authority or that such subjective satisfaction
was not genuinely reached. Taking of such a view would not be war-
rented unless the Court finds that the grounds are 'stale' or illusory or
that there is no real nexus between the grounds and the impugned E
order of detention. The decisions to the contrary by the Delhi High
Court in Anil Kumar Bhasin v. Union of India & Ors., Crl. W. No.
410/86 dated 2.2.1987, Bhupinder Singh v. Union of India & Ors.,
[1985] DLT 493, Anwar Esmail Aibani v. Union of India & Ors., Crl.
W. No. 375/86 dated 11.12.1986, Surinder pal Singh v. M.L. Wadha-
wan & Ors., Crl. W. No. 444/86 dated 9.3.1987 and Ramesh Lal v. F
Delhi Admin;;tration, Cr!. W. No. 43/84 dated 16.4.1984 and other
cases taking tbe same view do not lay down good law and are accord-
ingly overruled.

      !n the present case, the direct and proximate cause for the
impugned order of detention was the importation in bulk of Ind;an G
made foreign liquor by the appellant acting as a broker from across the
border on the night between 29/30th December, 1986. The District
Magistrate in the counter-affidavit has averred that it was revealed
from the statements of the witnesses recorded on 4th January, 1987
that the appellant was the person actually involved. Apprehending his
arrest the appellant applied for anticipatory bail on 21st January, 1987. H
    298         SUPREME COURT REPORTS                [1988] Supp. 1 S.C.R.

    It appears that on the same day the appellant apears to have made a
A   statement that there was no proposal at that stage to arrest the appel-
    lant. However, later it was discovered that there was no trace of the
    appellant. He was arrested on 2nd February, 1987 and on the same day
    he made a statement admitting these facts. Meanwhile, the proposal to
    detain the appellant was placed before the District magistrate. It is
B   averred by the District Magistrate that on a careful consideration of
    the material on record he was satisfied that it was necessary to make an
    order of detention of the appellant under s. 3(2) of the Act and that
    accordingly on 28th May, 1987 he passed the order of detention. The
    appellant was taken into custody on 30th May, 1987. He had forwar-
    ded the report to the State Government on the 28th and the Govern-
    ment accorded its approval on the 31st.
c
           Even though there was no explanation for the delay between 2nd
    February and 28th May, 1987 it could not give rise to a legitimate
    inference that the subjective satisfaction arrived at by the District
    Magistrate was not genuine or that the gro~nds were stale tir illusory
D   or that there was no rational connection between the grounds and the
    impugned order of detention. There is a plethora of decisions of this
    Court as to the effect of unexplained delay in taking action. These are
    admirably dealt with iil Durga Das Basu's Shorter Constitution of
    India, 8th edn. at p. 154. We will only notice to a few salient decisions.
    In Olia Mallick v. State of West Bengal, [1974] 1SCC594 it was held
E   that mere delay in making the order was not sufficient to hold that the
    District Magistrate must not have been satisfied about the necessity of
    the detention order. Since the activities of the detenu marked him out
    as a member of a gang indulging systematically in the cutting of
    aluminium electric wire, the District Magistrate could have been well
    satisfied, even after the lapse of five months that it was necessary to
F   pass the detention order to prevent him from acting in a manner pre-
    judicial to the maintenance of the supply of electricity. In Go/am
    Hussain@ Gama v. The Commissioner of Police, Calcutta & Ors.,
    [1974] 3 SCR 613, it was held that the credible chain between the
    grounds of criminal activity alleged by the detaining authority and the
    purpose of detention, is snapped if there is too long and unexplained
G   an interval between the offending acts and the order of detention. But
    no 'mechanical test by counting the months of the interval' was sound.
    It all depends on the nature of the acts relied on, grave and determined
    or less serious and corrigible, on the length of the gap, short or long,
    on the reason for the delay in taking preventive action, like informa-
    tion of participation being available only in the course of an investiga-
H   tion. The Court has to investigate whether the casual connection has
          RAJENDRAKUMAR v. STATE OF GUJARAT [SEN, J.]                  299

been broken in the circumstances of each case. In Odut Ali Miah v.
                                                                               A
State of West Bengal, [1974] 4 SCC 127 where the decision of the
detaining authority was reached after about five months, Krishna Iyer,
J. repelled the contention based on the ground of delay as a mere
'weed of straw' and it was held that the 'time-lag' between the dates of
the alleged incidents and the making of the order of detention was not
so large that it could be said that no reasonable person could possibly        B
have arrived at the satisfaction which the District Magistrate did on the
basis of the alleged incidents. It follows that 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 deten-
tion. In Vijay Narain Singh v. State of Bihar, [1964] 3 SCC 14, one of us,
Sen, J. observed:                                       ·
                                                                               c
            "On merits the impugned order cannot be said to be
            vitiated because of some of the grounds of detention being
            non-existent or irrelevant or too remote in point of time to
            furnish a ration.al nexus for the subjective satisfaction of
            the detaining authority; It is usually from prior events           D
            showing tendencies or inclinations of a man that an infer-
            ence can be drawn whether he is likely, in the future, to act
            m a manner .prejudicial to the maintenance of public
            order."

See also: Gora v. State of West Bengal, [1975] 2 SCR 996; Raj Kumar            E
Singh v. State of Bihar & Ors., [1986] 4 SCC 407 and Hemlata kantilal
Shah v. State of Maharashtra, [1981] 4 SCC 647.

      Point No. (2): Quite recently, we had occasion to deal with this
aspect in Bal Chand Bansal v. Union of India & Ors., JT (1988) 2 SC
65. In repelling a contention raised on. the dictum in Ramesh Yadav v. F
District Magistrate, Etah, [1985] 4 SCC 232, one of us (Sharma, J.)
drew attention to the observations of Mukharji, J. in Suraj Pal Sahu v.
State of Maharashtra, [1986] 4 SCC 378 that the prejudicial activities of
the person detained were 'so interlinked and continuous in character
and are of such nature' that they fully justified the detention order.
Here the grounds of detention clearly advert to two earlier incidents, G
one of 21st July, 1982 for which the detenu was being prosecuted in
Criminal Case No. 303/82 relating to the recovery and seizure of 142
bottles of foreign liquor from his residential house which ended in an    !
acquittal because the prosecution witnesses turned hostile,. and the ·•
other of 30th May, 1986 for which Criminal Case No. 150/86 relating to
recovery and seizure of 24 bottles of foreign liquor from his house was H
    300        SUPREME COURT REPORTS                11988] Supp. 1 S.C.R.

A then still pending, and go on to recite that the launching of the pro-
  secution had no effect inasmuch as he had not stopped his activities
  and was continuing the importation of foreign liquor from across the
  border. The earlier two incidents are not really the grounds for deten-
  tion but they along with the transaction in question of importation of
  foreign liquor in bulk show that his activities in this transaction
B afforded sufficient ground for the prognosis that he would indulge in
  such anti-social activities again, if not detained. The District Magis-
  trate in his counter-affidavit has stated that he was aware of the fact
  that the detenu had on 21st January, 1987 applied for anticipatory bail
  but no orders were passed inasmuch as the police made a statement
  that there was no proposal at that stage to place him under arrest. It
  however appears that he was arrested on 2nd February, 1987 and on
C his own made a statement admitting the facts. Thereafter, he seems to
   have disappeared from Godhra. In the circumstances, it cannot be said
  that there was lack of awareness on the part of the District Magistrate
  on 28th May, 1987 in passing the order of detention as he did. There is
  a mention in the grounds of the two criminal cases pending against the
D detenu and also a recital of the fact that he was continuing his business
  surreptitiously and he could not be caught easily and therefore there
  was compelling necessity to detain him.

        Point No. (3): The contention regarding lack of certainty and
  precision on the part of the detaining authority as to the real putpose
                                                                                 •
E of detention and that they were 'all rolled up into one' at first blush
  appears to be attractive but on deeper reflection seems to be of little or
  no consequence. The putpose of the detention is with a view to pre-
  venting the appellant from acting in any manner prejudicial to the
                                                                                 I-
  maintenance of public order. It was not seriously disputed before us
  that the prejudicial activities carried on by the appellant answer the
F description of a 'bootlegger' as defined in s. 2(b) and therefore he
  comes within the purview of sub-s. (1) of s. 3 of the Act, by reason of
  sub-s. (4) thereof. Sub-s. (4) of s. 3 with the Explanation appended
  thereto gives an enlarged meaning to the words 'acting in any manner
  prejudicial to the maintenance of public order' and reads:

G               "(4) For the putpose of this section, a person shall be
                deemed to be 'acting in any manner prejudicial to the
                maintenance of public order' when such person is engaged
                in or is making preparation for engaging in any activities,
                whether as a bootlegger or dangerous person or drug offen-
                der or immoral traffic offender or property grabber, which
H               affect adversely or are likely to affect adversely the mainte-
                nance of public order.
          RAJENDRAKUMAR v. STATE OF GUJARAT [SEN, J.)                  301

           Explanation: For the purpose of this sub-section, public A
           order shall be deemed to have been affected adversely or
           shall be deemed likely to be affected adversely inter alia, if
           any of the activities of any person referred to in this sub--
           section directly or indirectly, is causing or is likely to cause
           any harrn, danger or alarrn or feeling of insecurity among
           the general public of any section thereof or a grave or B
           widespread danger to life, property or public health."
The District Magistrate in passing the impugned order has recorded
his subjective satisfaction with respect to the appellant that with a view
to preventing him from acting in any manner prejudicial to the mainte-
nance of public order, it is necessary to make an order that he be
detained. In the accompanying grounds for detention this is the basis C
for the formation of his subjective satisfaction. They go on to state that
unless the order of detention was made he would not stop his illicit
liquor traffic on brokerage and therefore it was necessary to detain
him under s. 3(2) of the Act, and recite:
            "In order to safeguard the health of the people of D
            Gujarat, for public peace and in the interest of the nation,
            with a view to stop such anti-national activities ..... for
            the purpose of public order and public peace and in the
            interest of the State ..... "
In our opinion, these words added by way of superscription were E
wholly unnecessary. They were set out by the District Magistrate Pre-
sumably b~cause of total prohibition in the State. In future, it would
be better for the detaining authority acting under ss. 3(1) and 3(2) of
the Act, to avoid such unnecessary verbiage which are of little or no
consequence and give rise to unnecessary debate at the Bar.
      Point No. (4): The contention that there was unexplained delay F
in disposal of the representation made by: the appellant to the State
Gonrnment appears to be wholly misconceived. Admittedly, the
appeUant made his representations to the Stat~. Government as well as
to the Advisory Board on 8th June, 1987. The State Government acted
with promptitude and after due consideration r.ejected the same on
12th June, 1987. ·There was no delay much less inordinate delay in G
consideration of the. representation.

       The result therefore is that the appeal as well as the writ petition
fail and are dismissed.                            '

S.L.                                        Appeal & Petition dismissed. H