1. The petitioner Mohinuddin Tayab Sony is an Indian national and citizen of India. According to him in the normal course of his trade he used to go abroad on business trips. On one of such routine trips, he went abroad on 16th Feb. 1975 to attend to his business affairs and since then he has been putting up abroad visiting several countries to attend to his business affairs. According to the petitioner when this petition was filed be was putting up in Dubai and has been carrying on construction business. He is also an authorised representative of several manufacturers of goods of general merchandise for the Middle-East countries. It is the case of the petitioner that he has never been involved in any case involving any offence under the Customs Act and/or Foreign Exchange Regulation Act and at no material time he was ever summoned to appear before any Customs or Enforcement Officer in connection with any enquiry or investigation pertaining to any seizure of goods or otherwise nor a show cause notice etc. was ever issued to him. He also contended that he has never been prosecuted for any offence either under the Customs Act and/or Foreign Exchange Regulation Act in any court of law and his record all throughout is clean.
2. It is then contended in the petition by him that after he left India on 16th Feb. 1975 for the first time he came to know that an order was issued on 13th Oct. 1976 under the signature of Shri R.S. Dikshit, the Section Officer, Home Department, Government of Maharashtra, which was published in the Maharashtra Government Gazette, Extraordinary Part IV-A on 30th Dec. 1976 wherein it was stated that in exercise of powers conferred by Sub-section (1) of Section 8 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Act 52 of 1974), Shri P.G. Gavai, the then Secretary to the Government of Maharashtra, Home Department, Sachivalaya, Bombay, who was specially empowered by the Government of Maharashtra for the purpose of Section 3 of the said COFEPOSA Act, had issued a detention order on 8th Sept. 1976 in respect of the petitioner. According to him in the said order his name was wrongly quoted as Moyuddin son of Noormohamed Moosa Sony whereas his correct name is Mohiuddin son of Tayab Sony. According to this order, dated the 13th Oct, 1976 published in the Extraordinary Gazette dated 30th Dec, 1976 and issued under Section 7(1)(b) of the COFEPOSA Act, the petitioner was directed to appear before the Commissioner of Police, Bombay within 30 days from the date of the publication of the said order in the official gazette. It is the case of the petitioner that by this Notification published in the Extraordinary Gazette dated 30th December 1976 he came to know about the order issued under Section 3(1) of the COFEPOSA Act, on enquiry he further came to know that this order was accompanied by a declaration made under Section 12-A of the COFEPOSA Act stating inter alia that the detention of the petitioner was necessary for effectively dealing with the emergency. It is this notification issued under Section 7(1)(b) and the initial order issued under Section 3(1) of the COFEPOSA Act which are challenged in this petition by the petitioner on various grounds.
3. According to the petitioner he left India on 16th Feb. 1975 i.e. more then a year and a half prior to the date of the order of the detention as well as the declaration and as such by no stretch of imagination it could be said that he had absconded or concealed himself so as to avoid the execution of the said order of detention. Hence according to him the order issued on 13th Oct. 1976 published in Extraordinary Gazette on 30th Dec. 1976 is wholly illegal, inoperative, null and void. The petitioner has also stated in the petition that on or about 30th December 1978 the petitioner's wife on behalf of the petitioner submitted a representation to the Chief Minister of Maharashtra with copies endorsed to (i) the Secretary to the Government of Maharashtra, Home Department, Mantralaya, Bombay, (ii) the Additional Secretary, Government of India, Ministry of Finance, New Delhi, (iii) the Director of Revenue Intelligences, Indraprastha Bhavan, New Delhi and (iv) the Collector of Customs (Preventive) Bombay requesting the State Government to revoke the impugned order of detention as the same is null and void. However, till the date of filing of petition no reply has been received from any of the authorities.
4. The initial order of detention is challenged by the petitioner on various grounds referred to in para. 9 of his petition, However, during the course of the argument Shri A.K. Sen, the learned Counsel appearing for the petitioner has restricted his submissions to certain grounds of challenge only and has contended that the order was issued without formulating or framing any grounds of detention. According to Shri Sen the said order is null and void, ab initio inasmuch as when the impugned order of detention was issued neither the grounds of detention were framed nor prepared nor signed contemporaneously by the detaining authority himself which is mandatory requirement of law. He also contended that such grounds are not even framed, prepared and signed by the 2nd respondent till this date and hence the impugned order of detention is wholly illusory and unenforceable in law. He also contended that on the same date the detaining authority chose to exercise his powers conferred upon him under Section 12-A of the COFEPOSA Act and had issued the declaration in that behalf. Even at this stage the detaining authority had not framed, prepared or signed the grounds. According to learned Counsel in view of the declaration issued under Section 12-A of the COFEPOSA Act, whereby it was declared that the detention of the petitioner was necessary for effectively dealing with the emergency then as soon as the emergency was revoked on 21st Mar. 1977 the order as a whole also stood revoked. With the declaration under Section 12-A the order issued under Section 3(1) of the Act also automatically stood cancelled because of the amalgamation of the order under Section 3(1) with the declaration under Section 12-A of the COFEPOSA Act. It was then contended by Shri Sen that the impugned order of detention under Section 3(1) was issued by the detaining authority in a most casual and cavalier manner and without any application of mind on the part of the detaining authority. This is apparent from the fact that even the name of the father of the petitioner has been wrongly quoted in the impugned order. According to Shri Sen this fact clearly shows that the detaining authority has not taken due care and caution to ascertain even the correct name of the petitioner let apart the alleged prejudicial activities, before exercising this extraordinary power of detention. Shri Sen also contended that the impugned order of detention has been issued on the basis of non-existent grounds and material and hence it is wholly a nullity. Therefore, according to Shri Sen as the order under Section 3(1) of the COFEPOSA Act was void, ab initio, the petitioner is entitled to a writ of mandamus or any other appropriate writ restraining the respondents or their agents or servants from enforcing the impugned illegal and void orders.
5. In reply to the various allegations made in the petition an affidavit is filed by Shri Gavai, the then Secretary to the Government of Maharashtra, Home Department i.e. the detaining authority. According to the detaining authority it is not necessary to formulate grounds of detention unless the petitioner surrenders and is detained in execution of the order of detention. The grounds of detention will be served upon the petitioner within a period stipulated by the Act after the order of detention is served upon him and he is detained. Then in paragraph 14 of the affidavit the detaining authority has contended as under:
I repeat that the entire material which was placed before me was considered by me very carefully and after careful application of mind I passed the order of detention dated 8-9-1976 under Section 3 of the said Act. I say that I honestly came to the conclusion that it was necessary to detain the petitioner with a view to pre venting him from smuggling goods, abetting the smuggling of goods and engaging in transporting the smuggled goods. After considering the material I was further satisfied that the detention order was necessary for dealing effectively with the emergency. After the said satisfaction 1 made a declaration under Section 12-A of the said Act.
6. Then in para. 15 of the affidavit the detaining authority repeated the said position by stating that from the material placed before him, he was satisfied that the petitioner is likely to indulge in prejudicial activities necessitating his detention and he was further satisfied that the said detention was necessary for dealing effectively with the emergency. According to the detaining authority even though the declaration made by him under Section 12-A of the Act ceases to exist after revocation of emergency, the detention order made by him under Section 3(1) of the said Act still continues to be in force, and he is not obliged either to disclose or to communicate the grounds of detention unless the detenu is actually detained in pursuance of the order issued under Section 3(1) of the COFEPOSA Act.
7. It was also contended by the detaining authority by way of preliminary objection that the present application is not maintainable because the petitioner cannot approach this Court unless the order issued under Section 3(1) of the COFEPOSA Act is duly served upon him. The said order of detention is not effective unless and until it is actually served on the petitioner and hence the petition filed is premature. It is also contended by Shri Kotwal the learned Counsel appearing for the detaining authority as well as for the State of Maharashtra that the detention order in this case was issued on 8th Sept. 1976 and the proclamation under Section 7 of the Act was also published in the gazette on 30th Dec. 1976, whereas the present petition is filed by the petitioner on 20th Apr. 1979. Thus it is filed after an unexplained and inordinate delay. Hence on this count also this petition is not maintainable. He also contended that this Court should not exercise its extraordinary jurisdiction under Article 226 of the Constitution of India at the instance of such a person as he has not approached this Court with clese hands. According to Shri Kotwal, the is still absconding and is avoiding the execution of the order which was is end on 8th Sept. 1976. Even in spite of the proclamation issued under Section 7 of the Act he has failed to surrender and as a necessary consequence of this failure he is liable to be prosecuted and convicted in accordance with law. In these circumstances this Court should not exercise its discretionary power in favour of such a petitioner.
8. For properly appreciating the contentions raised before us it will be useful, if a reference is made to the provisions of Sections. 3(1) and 12-A of the COFEPOSA Act. Sections. 3(1) and 12-A of the said Act read as under:
'3 (1). The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any Officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may if satisfied, with respect to any persons (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from:
(i) smuggling goods, or
(ii) abetting the smuggling of goods, or
(iii) engaging in transporting or concealing or keeping smuggled goods, or
(iv) dealing in smuggled goods otherwise then by engaging in transporting or concealing or keeping smuggled goods, or
(v) harbouring persons engaged in smuggling goods or in abetting the smuggling of goods.
It is necessary so to do, make an order directing that such person be detained.
12-A. Special provisions for dealing with emergency:
(1) Notwithstanding anything contained in this Act or any rules of natural justice, the provisions of this section shall have effect during the period of operation of the proclamation of Emergency issued under CI (1) of Article 352 of the Constitution on the 3rd day of Dec. 1971, or the proclamation of Emergency issued under that clause on the 25th day of June, 1975 or a period of twenty four months from the 25th day of June 1975, whichever period is the shorte
(2) When making.under of detention under this Act against by person after the commencement of one Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act,.1975, the Central Government or the States Government or, as the case may be, the officer making the order of detention shall consider whether the detention of such person under this Act is necessary for dealing effectively with the emergency in respect of which the proclamations referred to in Sub-section (1) have been issued (hereafter in this section referred to as the emergency) and if, on such consideration, the Central Government or the State Government or, as the case may be, the officer is satisfied that it is necessary to detain such person for effectively dealing with the emergency, that Government of Officer may make a declaration to that effect and communicate a copy of the declaration, to the person concerned.
Provided that where such declaration is made by an officer, it shall be reviewed by the appropriate Government within fifteen days from the date of making of the declaration and such declaration shall cease to have effect unless it is confirmed by that Government, after such review, within the said period of fifteen days.
(3) The question whether the detention of any person in respect of whom a declaration has been made under Sub-section (2) continues to be necessary for effectively dealing with the emergency shall be reconsidered by the appropriate Government within four months from the date of such declaration and thereafter at intervals not exceeding four months and if, on such reconsideration, it appears to the appropriate Government that the detention of the person is no longer necessary for effectively dealing with the emergency, that Government may revoke the declaration.
(4) In making any consideration, review or reconsideration under Sub-section (2) or (3), the appropriate Government or officer may if such Government or officer considers it to be against the public interest to do otherwise, act on the basis of the information and materials in its or his possession without disclosing the facts or giving an opportunity of making a representation to the person concerned.
(5) It shall not be necessary to disclose to any person detained under a detention order to which the provisions of Sub-section (2) apply, the grounds on which the order has been made during the period the declaration made in respect of such person under that sub-section is in force, and accordingly such period shall not be taken into account for the purposes of Sub-section (3) of Section 3.
(6) In the case of every person detained under a detention order in which the provisions of Sub-section (2) apply, being a person in respect of whom a declaration has been made thereunder, the period during which such declaration is in force shall not be taken into account for the purpose of computing-
(i) the periods specified in Cls. (b) and (c) of Section 8;
(ii) the periods of 'one year' and 'five weeks' specified in Sub-section (1) the period of 'one year' specified in Sub-section (2)(i), and the period of 'six months' specified in Sub-section (3) of Section 9.
9. It is not disputed before us that the sub-sanative power to issue an order of detention is conferred upon the competent authority by Section 3(1) of the Act only. Section 12-A does not confer any independent right to issue an order of detention. Section 12-A is a special provision made in the Act for dealing with the emergency. It only provides that while making of an order of detention under the, Act if the competent authority considers that the detention of such a person is necessary for effectively dealing with the emergency then the said authority may make a declaration to that effect and communicate the same to the person concerned. The proviso to Section 12-A(2) then provides that where such a detention is made by an Officer it shall be reviewed by an appropriate Government within 15 days from the making of such a declaration and such a declaration shall cease to have effect unless it is confirmed by that Government after such review within the period of 15 days. Thus if the provision of Section 3(1) are read with Section 12-A of the COFEPOSA Act then it is quite clear that unless an order is issued under Section 3(1) of the Act, mere declaration under Section 12-A of the Act cannot stand on its own footing. Section 12-A does not confer any independent power upon any authority to issue or pass an order of detention independent of Section 3(1) of the Act. The declaration issued under Section 12-A of the Act acts as an umbrella or shield over the detention order made by the detaining authority under Section 3 of the Act. If a declaration is issued under Section 12-A of the Act then certain consequences follow from it. But that does not mean that the order issued under Section 3(1). of the Act gets automatically merged in the declaration issued under Section 12-A of the COFEPOSA Act. This position is further made clear by the legislature itself by Sub-section (5) of Section 12-A of the COFEPOSA Act itself. Said sub-section provides for exclusion of period during which such declaration is in force while computing the period prescribed by Sub-section (3) of Section 3 of the Act. Thus it is clear that after revocation of such declaration provisions of Sub-section (3) of Section 3 come into operation. This clearly means that there is no merger or amalgamation of order of detention in the declaration issued under Section 12-A of the Act. Therefore, it is not possible for us to accept the contention of Mr. Sen that as a necessary consequence of revocation of emergency even the order issued under Section. 3(1) of the COFEPOSA Act either stands revoked or lapses automatically. It is no doubt true that in this context Shri Sen was relying upon a decision of Madras High Court in Writ Petn. No. 2556 of 1977 decided on 25-10-1977 in the matter of Shantilal Jain v. State of Tamil Nadu. On the other hand Shri Kotwal is relying upon the latter decision of the same High Court i.e. Madras High Court in Writ Petn. No. 2122 of 1978 decided on 27-7-1978 : 1978 Mad L.W Cri 162 in the matter of Munilal v. Chief Secy to Govt, of Tamil Nadu wherein the latter Division Bench of the same High Court has not followed the view expressed in the earlier decision i.e. in Shantilal Jain's case. If the provisions of Section 3 are read together with Section 12-A of the Act as a whole, and harmoniously, then it is not possible for us to come to the conclusion that all detention orders passed during the emergency and wherein powers under Section 12-A are exercised would cease to have effect after revocation of emergency. In our opinion no general rule can be laid down in this behalf nor it is advisable to lay down any such general rule. It cannot also be forgotten that it is not mere form but sub-stance of the matter which will have to be looked into while deciding such a question. Therefore, it is not possible for us to accept the broad proposition put forward by Shri Sen that as soon as the emergency is revoked all detention orders wherein declaration under Section 12-A is issued by the detaining authority also stand revoked automatically.
10. So far as the preliminary objections raised by Shri Kotwal are concerned, it was contended by Shri Kotwal that unless an order is communicated to a person concerned the order itself does not become effective and hence it does not confer any cause of action upon the person concerned to challenge the said order. According to him an order is effective when it is duly executed or communicated to the person concerned. Therefore it was contended by Shri Kotwal that as in the present case the order is not communicated to the petitioner who is absconding the present petition is premature. However, in all fairness Shri Kotwal has not pressed this preliminary objection any further in view of the fact that sub-sequent to the issuance of the order under Section 3(1) of the Act, the authority has also taken recourse to the provisions of Section 7 of COFEPOSA Act and had also issued notification in the official gazette to that effect. It is not disputed by Shri Kotwal that the publication of notification issued under Section 7 of the Act in the official gazette amounts to communication of the order. In view of this position having regard to the facts and circumstances of the present case he has not pressed this preliminary objection.
11. So far as the other preliminary objections are concerned i.e. that the petition is filed after an inordinate and unexplained delay or the petitioner is not entitled to any reliefs at the hands of this Honourable High Court as he has not approached this Court with clean hands because he has avoided the execution of the order by absconding; it is not possible for us to accept the said preliminary objections for obvious reasons.
12. The powers exercised under the COFEPOSA Act are extraordinary in nature. It involves liberty of a subject and it is bounden duty of the Court to satisfy itself that all safeguards provided by the law have been carefully observed and that the subject is not deprived of his right to liberty otherwise then in accordance with law. When a question of liberty of a person is involved in a petition like this, then in our opinion reliefs cannot be denied to the petitioner on such a technical ground.
13. In the first place, it must be remembered that the rule which says that court may not inquire into belated and stale claims is not a rule of law but a rule of practice based on sound and propel exercise of discretion, and there is no inviolable rule that whenever there is delay, the court must necessarily refuse to entertain the petition. Such case must depend on its own facts. There is no lower limit and there is no upper limit. It will all depend on what the breach of the fundamental right and the remedy claimed are and how the delay arose. It may also be noted that the principle on which court proceeds in refusing relief to petitioner on the ground of laches or delay is that the rights which have accrued to others by reason of delay in filing the petition should not be allowed to be disturbed unless there was reasonable explanation for delay. Normally, the court which has been assigned the role of a sentinel on the qui vive for protection of the fundamental rights cannot easily allow itself to be persuaded to refuse relief solely on the jejune ground of laches, delay or the like (See R- S. Deodhar v. State of Maharashtra : (1974)ILLJ221SC . In this case because of delay or laches no rights have been accrued to others including the respondents-Further in this case we are dealing with a fundamental right relating to protection of life and personal liberty. So far as the right to personal liberty is concerned, it is ensured by providing that no one shall be deprived of the said right except according to procedure prescribed by law. Right to move freely is an attribute of personal liberty, of course, subject to the law of the land.
14. In the present case, it is an admitted position that the petitioner had left India one and half years prior to the issuance of the detention order itself. When he was abroad the order of detention was issued. According to Shri Sen in view of the proclamation of the emergency and the suspension of the fundamental rights by virtue of the presidential order it was not possible for the detenu to challenge the order of detention in courts of law. After revocation of the emergency the petitioner's wife had made a representation to the competent authorities which according to the petitioner remained unreplied. Further it is not the case of the respondents that by virtue of the lapse of time or revocation of emergency the order of detention itself has become unexecutable. Even today there is an order in the field which could be executed against the petitioner and his liberty could be curtailed. ' If this is so then in our opinion it cannot be said that the petitioner has approached this Honourable Court after inordinate and unexplained delay nor it could be said that the petitioner has not approached this Court with clean hands. Therefore it is not possible for us to sustain these preliminary objections raised by Mr. Kotwal and dismiss this petition in limine on these grounds only. In view of this it is not necessary to make a detailed reference to (he decisions including decision reported in : 1SCR1122 Himmatlal Harilal v. State of Madhya Pradesh or the decision of this Court in Misc. Petri. No. 215 of 1976 decided on 22-3-1976 Ram B. Jethmalani v. State of Kerala on which reliance is placed by Shri Sen, to show that even otherwise this petition is maintainable.
15. In the view which we have taken it is not necessary to deal with the contention raised by Shri Sen that the petitioner in this case cannot be described as absconder within the meaning of Section 7 of the COFEPOSA Act. According to Shri Sen, the petitioner left India more then a year ago under a valid passport issued by the competent authorities. Even today he is staying abroad under a valid passport. Therefore he is not a person who has either absconded or is concealing himself so that the order cannot be executed. However, it should be noted at this stage that according to Shri Kotwal, the case of the petitioner is covered by the provisions of Section 7 of the Act, because in spite of the knowledge of the detention order the petitioner continued to remain abroad and this in itself is sufficient to form the basis of an order under Section 7 of the Act. In support of this argument Shri Kotwal is strongly relying upon a Full Bench decision of Madras High Court in K.T.M.S. Abdul Cader v. Union of India : AIR1977Mad386 .
16. So far as the merits of the controversy are concerned it is contended by Shri Sen that unless the order under Section 3(1) is made and the grounds are formulated, prepared and signed by the concerned detaining authority itself, it cannot be said that the order is made as per the procedure laid down by Section 3 of the Act. Furthermore since the order of detention is to be passed on the grounds which are required to be served on the detenu, the order of detention cannot be passed in the absence of contemporaneous preparation or framing of grounds itself. In support of this contention Shri Sen is strongly relying upon two decisions of the Supreme Court : 1951CriLJ373 State of Bombay v. Atma Ram and : 1975CriLJ1648 Krishna Murari v. Union of India. Shri Sen has placed his strong reliance upon the following observations of the Supreme Court in Krishna Murari's case which read as under:
The words 'make an order directing that such person be detained' clearly postulate three conditions-(i) that the order must be made by the authority mentioned in Section 3; (ii) that the order must be duly signed by the said authority; and (iii) that only one authority and one authority alone can pass such order of detention. The statute does not contemplate a sort of composite or a joint order passed by several authorities. Unless the order made and the grounds prepared are signed by the authority concerned the order is not made as contemplated by Section 3 of the Act. Furthermore since the order is based on grounds to be served on the detenu, the order of detention can be passed only if the grounds are in existence and are prepared contemporaneously, otherwise the order of detention becomes purely illusory.
17. Shri Sen was also relying upon the observations of the Supreme Court in State of Bombay v. Atma Ram's case : 1951CriLJ373 particularly in paras. 6 and 7 thereof. According to Shri Sen by the very nature the grounds are conclusions of facts and not a complete detailed recital of all the facts. The conclusion drawn from the available facts are the grounds which must be in existence when the order under Section 3(1) is issued.
18. On the other hand according to Shri Kotwal the very provisions of COFEPOSA Act clearly indicate that grounds could be formulated and framed later on and it need not be contemporaneous with the order made under Section 3(1) of the Act. According to Shri Kotwal under Section 3(3) of the COFEPOSA Act communication of grounds to a person detained is contemplated ordinarily within a period of five days and in exceptional circumstance for the reasons to be recorded in writing it could be within 15 days from the date of detention. An occasion to communicate grounds will arise after the order is issued under Section 3(1) and the person is actually detained. After the detention of the person in pursuance of the order issued under Section 3(1) of the Act, communication of the grounds is contemplated within the time specified in Sub-section (3) of Section 3. This clearly indicates that it is not obligatory on the part of the detaining authority to frame, prepare or sign the grounds of detention at the time of issuance of the order under Section 3(1) of the Act itself. In a given case it is possible that on the basis of material placed before him, the detaining authority is satisfied that it is necessary to issue an order of detention under Section 3(1) of the Act. Satisfaction is based on all the material placed before the authority and after being satisfied in that behalf he issues the order under Section 3(1). After issuance of such an order, as observed by the Supreme Court in the State of Bombay v. Atma Ram : 1951CriLJ373 and particularly in paragraph 10 thereof the detaining authority can formulate the grounds after the person is detained and till then there is no occasion for formulating or framing such grounds. It is further contended by Shri Kotwal that it is not at all necessary for the detaining authority to formulate, frame and sign the grounds if he wants to disclose and communicate the entire material on the basis of which necessary satisfaction is reached. Only in those cases wherein he wants to withhold from disclosure the material as a whole or in part, it is necessary to formulate the grounds. In all other cases all the basic facts and material which has been taken into consideration while making the detention order in itself will constitute the grounds of detention. Mr. Kotwal has also contended that the view expressed by the Supreme Court in Krishna Murari's case : 1975CriLJ1648 is in conflict with the view taken by the Supreme Court in the case of State of Bombay v. Atma Ram. Shri Kotwal also contended that Krishna Murari's case is decided by the Bench of the Supreme Court consisting of two Judges whereas the decision in Atma Ram's case was by a bench consisting of six Judges and therefore in view of the pronouncement of the Supreme Court in : (1977)ILLJ5SC Union of India v. K.S. Subramanian, we should follow the law laid down by the larger bench in State of Bombay v. Atma Ram. On the other hand it is contended by Shri Sen that there is conflict between these two decisions. On the contrary the law laid down in Atma Ram's case is same as laid clown in Krishna Murari's case. Shri Sen further contended that in Krishna Murari's case Supreme Court has made a reference to its two earlier decisions i.e. in : 2SCR832 Khudiram Das v. State of West Bengal and : 1974CriLJ401 Manu Bhusan Roy Pradhan v. State of West Bengal and in all these cases law laid down in Atma Ram's case is practically followed. In our opinion, it is not necessary for us to go into the question of alleged conflict of opinion between these two decisions.
19. Normally detaining authority has no personal knowledge about the prejudicial activities of the detenu. Certain information and material is placed before it. To this bundle of facts or material he is expected to apply his independent mind, Then shift the material which is relevant for arriving at the satisfaction contemplated by Section 3(1) of the Act. After considering this relevant material it has to reach to a certain conclusion, This conclusion serves dual purpose. This conclusion enables the authority to arrive at the necessary satisfaction, It is this conclusion which is required to be communicated to the detenu. In the absence of such a conclusion it will not be possible to know whether the competent authority has applied its mind to the material placed before it. It is well settled that the freedom of Indian citizen cannot be taken away without the existence of the justifying necessity specified by the provisions of the Act. Even though there is no occasion for communicating the grounds of detention to the person concerned unless he is actually detained in execution of the order, it cannot be forgotten that the subjective satisfaction is a condition precedent for making an order of detention under Section 3 of the Act. Thus the subjective satisfaction which is based on the relevant material being a condition precedent for the exercise of the power conferred on the executive, the Court can always examine the question as to whether requisite satisfaction is arrived at by the authority. If it is found that it is not so arrived at, then the condition precedent to the exercise of the power would not be fulfilled and the exercise of the said power would be bad in itself. Further it is by now well settled that there is nothing like unfettered discretion wholly immune from judicial reviewability, It is true that the court cannot go behind the subjective satisfaction of the detaining authority, but this does not mean that the Act confers a blanket power which authorises the detaining authority to act in a ruthless and arbitrary fashion. Therefore judicial decisions have carved out an area, though limited within which the subjective satisfaction of the detaining authority can be tested on the touch-stone of objectivity. (See Krishna Murari v. Union of India : 1975CriLJ1648 and Khudiram Das v. State of West Bengal : 2SCR832 .
20. In the case before us it is an admitted position that when order under Section 3(1) was issued by the detaining authority he had not prepared any grounds for detention. It is further an admitted position that even after the revocation of the emergency and consequential revocation of declaration issued under Section 12-A of the COFEPOSA Act, such grounds were neither formulated, prepared nor signed by the detaining authority. Not only this it is also an admitted position that even till today such grounds are neither formulated, prepared or signed by the detaining authority. Therefore we will have to consider the controversy raised in this petition in the light of this admitted position. After an order is made under Section 3(1) the Officer empowered by the State Government is obliged to forward a report to the Central Government within a period of 10 days under Section 3(2) of the Act. Section 5-A of the Act also speaks about the grounds of detention and its severability. Under Section 12-A also before making a declaration the competent authority has to consider whether the detention of such a person under the Act is necessary for dealing effectively with the emergency. It cannot therefore be disputed that the detention order must be based on some grounds. The controversy raised before us is limited as to when these grounds are to be formulated, prepared and signed. It is not contended by Shri Kotwal that at no time the grounds are to be formulated, prepared or signed. However, according to him an occasion for such formulation or preparation of grounds arises after the person is actually detained and not earlier.
21. In the present ease from the averments made in the petition it is quite clear that about one and half years prior to the making of the order under Section 3(1) of the Act, the petitioner had already left India. In Paras. 1 and 2 of the petition the petitioner has made detailed reference to his activities and had also made categorical statements that at no time he was involved in any proceedings either under the Customs Act or Foreign Exchange Regulation Act. The petitioner has also averred in the petition that there were no grounds in existence when the order of detention was made by the detaining authority under Section 3(1) of the Act.
22. In Para. 9 sub-para (vii) of the petition, the petitioner has also made a request that the Respondents should be called upon to place before this Court such grounds of detention so that it should be verified by this Honourable Court as to whether they were in fact so prepared and signed by the detaining authority. Then in sub-paras (xviii) and (xix) an allegation is also made that the order of detention is issued by the detaining authority in a most casual and cavalier manner and it displays total non-application of mind on the part of the detaining authority. It is the case of the petitioner that the order of detention has been issued not only on the basis of non-existent grounds but also on the basis of non-existent material and as such the same is a nullity. Thus in this petition the petitioner has made out a prima facie case by placing before the court sufficient particulars to indicate the nature and sphere of his activities. He has further averred that there was no material before the detaining authority on the basis of which grounds of detention could be framed or on which order could be founded.
23. In this case it is an admitted position that the petitioner had left India more then a year prior to the making of an order of detention. It is also an admitted position even till today the grounds of detention are neither formulated, framed ox-signed by the competent authority. It is well settled that once a prima facie case is made out by the petitioner and a rale nisi is issued by the Court then it is the duty of the detaining authority to support its own order by placing before the court the relevant material either in the form of detailed affidavit or by producing the necessary documents. Mere assertion of the detaining authority is not enough. In the affidavit filed by the detaining authority he should enumerate at least prima facie the prejudicial activities of the petitioner. Therefore it is contended by Shri Sen, that the affidavit filed by the detaining authority is wholly inadequate. He has also contended that as the detaining authority has not produced before this Court any material in support of the order, the petitioner is entitled to the reliefs claimed by him in this petition. In support of this contention the petitioner is relying upon the various decisions of Supreme Court including the decision in Niranjan Singh v. State of Madhya Pradesh : 1SCR691 , Sk. Serajul v. State of West Bengal : AIR1975SC1517 and Khudiram Das v. State of West Bengal : 2SCR832 .
24. Once a prima facie case is made out by the petitioner then respondent is obliged to place the relevant material before the Court. If a prima facie case is made out indicating that the said satisfaction is not founded on any material or order issued is not in conformity with the mandatory provisions of the Act then burden cannot be discharged by the detaining authority by merely filing affidavit denying everything. In this particular case it is an admitted position that till today grounds for detention are neither formulated nor prepared or signed by the detaining authority. In these circumstances it was the duty of the detaining authority to satisfy the court about the existence of the material and that he has not acted in a mechanical or cavalier manner while exercising the power. The detaining authority owes a duty to the detenu as well as to the court. An obligation of the detaining authority to the court is to satisfy the court that he has acted in accordance with law. Therefore even if the law permits that the detaining authority need not communicate the grounds of detention to the detenu unless he is detained the detaining authority is not wholly absolved of its responsibility and obligation to the court when a prima facie case is made out by the petitioner and rule nisi is issued by the court. In such a case the counter-affidavit by the detaining authority at least must broadly indicate the nature of the prejudicial activities or the material before him from which an inference could be drawn in favour of the detaining authority that there was some material before him on the basis of which subjective satisfaction could be arrived at It is well settled that judicial scrutiny cannot be shut out merely on the strength of ipse dixit of the detaining authority. In this context a reference could be made to the following observations of this Court in M.T. Kulkarni v. State : AIR1967Bom65 :
The other submission of the learned Additional Government Pleader, and which appeared to be his main submission, was that where an order of detention passed under R. 30 of the Defence of India Rules 1962, is challenged, the authority who made the order is under no obligation to disclose to the court the grounds and particulars on which the order was made. It appears to us that the above statement is an over simplification and contains only a half-truth. The correct position appears to be that in such cases the court acts on the presumption that official acts have been regularly performed and assume that the detention order was validly made after the detaining authority was satisfied about the necessity of making it. This initial presumption may, however, be rebutted by the Petitioner by showing prima facie that the satisfaction of the detaining authority was not genuine. Thus the Petitioner may do by placing before the court facts which show prima facie that the order was made for some ulterior purpose, or that it was made without the detaining authority applying his mind to the available material or that there could be no material before the detaining authority on the basis of which the requisite satisfaction was rationally possible. When such a case is made out by the petitioner, the burden shifts to the detaining authority, and he is required to discharge that burden by placing such facts before the court as are necessary to show that his satisfaction was genuine. This responsibility of the detaining authority is obviously subject to two qualifications. He is not required to disclose facts in respect of which a privilege can be properly claimed under Sections. 123 and 124 of the Indian Evidence Act. Secondly, it is sufficient for the detaining authority to disclose facts which show that his satisfaction was genuine, and he is not required further to make it out that his satisfaction was justified under the circumstances of the case. Lastly, where it is necessary for the detaining authority to disclose facts for the purpose of showing that his satisfaction was genuine and he fails to do so, an inference would legitimately arise that the order of detention was not validly made. In such cases, the court may not accept the bare statement in the affidavit of the detaining authority that his satisfaction was genuine and was reached after a careful consideration of the material available to him.
25. In our opinion these observations aptly apply to the present case. But for denying the allegations made in the petition and stating that the entire material which was placed before him was very carefully considered by the detaining authority and after careful consideration and application of mind he passed the order of detention under Section 3 of the Act, nothing is disclosed either in the affidavit or otherwise before this Court. It is no doubt true that at the time of hearing Shri Kotwal the learned Counsel, Public Prosecutor appearing on behalf of the Respondents stated before us that he is prepared to show the whole record to this Court. However, while making this statement he made it clear that the Petitioner cannot be permitted to see or look into the said record. This procedure was obviously objected to by Shri Sen and while doing so he has strongly relied upon the observation of the Supreme Court in : 1976CriLJ945 , Addl District Magistrate, Jabalpur v. Shivkant 'Shukla and particularly in para, 487 thereof wherein the Supreme Court observed that, 'what use can a court make of material which it cannot disclose to the detenu and how can it form a judicial opinion on matters not disclosed to a party before it The High Court at the highest could satisfy its curiosity by tasting the forbidden fruit but its secret scrutiny of the grounds and of the file containing the relevant information and material cannot enter into its judicial verdict'.
26. It is also pertinent to note in this case that no privilege is claimed by the detaining authority under Section 123 or 124 of the Evidence Act either qua any particular document or otherwise. Therefore this is a case where no grounds of detention are either formulated, framed or signed by the detaining authority till today nor the detaining authority has taken any step to satisfy the court about the existence of the material itself. This is the position in spite of the specific averments were made in the petition and it is an admitted position that Petitioner had left India much prior to the making of the detention order. Once it is conceded that the petition is maintainable then it is really difficult to understand this attitude of the Respondents including the State Government
27. In this context a reference could usefully be made to the decision of the Supreme Court in Khudiram Das v. State of West Bengal : 2SCR832 and particularly to the following observations in paras. 9, 10 and 11 of the said decision:
But that does not mean that the subjective satisfaction of the detaining authority is wholly immune from judicial reviewability. The courts have by judicial decisions carved out an area, limited though it be within which the validity of the subjective satisfaction can yet be subjected to judicial scrutiny. The basic postulate on which the courts have proceeded is that the subjective satisfaction being a condition precedent for the exercise of the power conferred on the executive, the court can always examine whether, the requisite satisfaction is arrived at by the authority, if it is not, the condition precedent to the exercise of the power would not be fulfilled and the exercise of the power would be bad. There are several grounds evolved by judicial decisions for saying that no subjective satisfaction is arrived at by the authority as required under the statute. The simplest case is whether the authority has not applied its mind at all, in such a case the authority could not possibly be satisfied as regards the fact in respect of which it is required to be satisfied. Emperor v. Shibnath Banerji is a case in point. Then there may be a case where the power is exercised dishonestly or for an improper purpose, such a case would also negative the existence of satisfaction on the part of the authority. The existence of 'Improper purpose' that is, a purpose not contemplated by the statute, has been recognised as an independent ground of control in several decided cases. The satisfaction, moreover, must be a satisfaction of the authority itself, and therefore, if in exercising the power, the authority has acted under the dictation of another body as the Commissioner of Police did in Commr. of Police v. Gordhandas Bhanji : 1SCR135 and the officer of the Ministry of Labour and National Service did in Simms Motor Units Ltd. v. Minister of Labour and National Service (1946) 2 ALL ER 201 the exercise of the power would be bad and so also would the exercise of the power be vitiated where the authority has disabled itself from applying its mind to the facts of each individual case by self-created rules of policy or in any other manner. The satisfaction said to have been arrived at by the authority would also be bad where it is based on the application of a wrong test or the misconstruction of a statute. Where this happens, the satisfaction of the authority would not be in respect of the thing in regard to which it is required to be satisfied. Then again the satisfaction must be grounded 'on materials which are of rationally probative value'. Machinder v. King AIR 1950 FC 129. The grounds on which the satisfaction is based must be such as a rational human being can consider connected with the fact in respect of which the satisfaction is to be reached. They must be relevant to the subject matter of the inquiry and must not be extraneous to the scope and purpose of the statute. If the authority has taken into account, it may even be with the best of intention, as a relevant factor something which it could not properly take into account in deciding whether or not to exercise the power or the manner or extent to which it should be exercised, the exercise of the power would be bad. Partap Singh v. State of Punjab : (1966)ILLJ458SC . If there are to be found in the statute expressly or by implication matters which the authority ought to have regard to them, in exercising the power, the authority must have regard to these matters. The authority must call its attention to the matters which it is bound to consider. There is also one other ground on which the subjective satisfaction reached by an authority can successfully be challenged and it is of late becoming increasingly important. The genesis of this ground is to be found in the famous words of Lard Halsbury in Sharp v. Wakefield 1891 AC 173 ..When it is said that something is to be done within the discretion of the authorities...that something is to be done according to the rules of reason and justice, not according to private opinion... according to law and not humour. It is to be, not arbitrary, vague, fanciful, but legal and regular' So far as this ground is concerned, the courts in the United States have gone much further then the courts in England or in this country. The United States courts are prepared to review administrative findings which are not supported by sub-essential evidence, that is by 'such relevant findings as a reasonable man may accept adequate to support a conclusion'. But in England and in India, the courts stop-short at merely inquiring whether the grounds on which the authority has reached its subjective satisfaction are such that any reasonable person could possibly arrive at such satisfaction. 'If', to use the words of ford Greene, M. R., in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) I KB 223words which have found approval of the House of fords in Smith v. Rest Eller Rural District Council 1956 AC 736 and Fawcett Properties Ltd. v. Buckingham County Council 1961 AC 636 'the authority has come to a conclusion so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere'. In such a case, a legitimate inference may fairly be drawn either that the authority 'did not honestly form that view or that in forming it, he could not have applied his mind to the relevant facts. Ross Clunis v. Papadopoullos (1958) 1 WLR 546. The power of the court to interfere in such a case is not as an appellate authority to override a decision taken by the statutory authority, but as a judicial authority which is concerned, and concerned only to see whether the statutory authority has contravened the law by acting in excess of the power which the legislature has confided in it. It is on this ground that the order of preventive detention made by the District Magistrate in Debu Mahto v. State of West Bengal : 1974CriLJ699 was struck down by this Court. There, in that case, one single solitary act of wagon breaking was relied upon by the District Magistrate for reaching the satisfaction that with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of supplies and services to the community, it was necessary to detain him. This Court pointed out subject to certain reservations that it was difficult to see how
one solitary isolated act of wagon breaking committed by the petitioner could possibly persuade any reasonable person to reach the satisfaction that unless the petitioner was detained he would in all probability indulge in further acts of wagon breaking.
This Court did not go into the adequacy or sufficiency of the grounds on which the order of detention was based, but merely examined whether on the grounds given to the detenu, any reasonable authority could possibly come to the conclusion to which the District Magistrate did. It is true that this ground in a sense tends to blur the dividing line between subjective satisfaction and objective determination but the dividing line is very much there howsoever faint or delicate it may be, the courts have never failed to recognise it.
This discussion is sufficient to show that there is nothing like unfettered discretion immune from judicial reviewability. The truth is that in a Government under law, there can be no such thing as unreviewable discretion. 'Law has reached its finest moments', said Justice Douglas, 'when it has freed man from the unlimited discretion of some ruler, some...official, some buroacrat.... Absolute discretion is a ruthless master. It is more destructive of freedom then any of man's other inventions'. United States v. Martin Wunderlich (1951) 342 US 98. And this is much more so in a case where personal liberty is involved. that is why the courts have devised various methods of judicial control so that power in the hands of an individual officer or authority is not misused or abused or exercised arbitrarily or without any justifiable grounds.
28. It is this proposition of law which was approved by the Supreme Court in its sub-sequent decision in Krishna Murari's case : 1975CriLJ1648 . Because of the attitude adopted by the Respondents in not placing either in the affidavit or otherwise the relevant facts or material, Respondents have rendered the judicial reviewability an impossibility. In these circumstances in view of the specific averments made in the petition coupled with the fact that till today admittedly the detaining authority has not formulated, prepared or signed any grounds of detention, it will have to be held that the Respondents have failed to rebut the prima facie case made out by the Petitioner in the petition. Hence without going into the merits of other contentions or arguments advanced before us on this short ground alone the order passed by the detaining authority under Section 3(1) of the COFEPOSA Act is liable to be quashed.
29. It is no doubt true that it is contended by Shri Kotwal that an occasion to frame grounds will arise only after the detenu is actually detained and till then it is not necessary even to frame grounds of detention. On the other hand it was contended by Shri Sen relying upon Krishna Murari's case that the order of detention could be passed only if the grounds are m existence and are prepared contemporaneously. As already observed it is not necessary to go into this question also in detail in this case in view of the peculiar facts of the case.
30. However, it was contended by Shri Kotwal that this is not a petition in the nature of habeas corpus. In the present case though an order is issued under Section 3(1) the detenu is not actually detained. According to Shri Kotwal the occasion to place the material before the court will arise only in a case where a writ of habeas corpus is prayed for after the detenu is actually detained and he challenges his detention in the court of law by filing a petition in the nature of habeas corpus. It is not possible for us to accept this contention for obvious reasons. Having conceded that in view of the declaration issued under Section 7 of the Act, Petitioner has a locus standi to challenge the order of detention and therefore petition is maintainable, then it is not open to the detaining authority to say that though the petition is maintainable, it is not necessary for him to place before the court either the grounds or relevant facts or material on the basis of which the order is passed. If this is accepted which is evidently impossible to accept then it will have to be held that though the petition is maintainable the judicial reviewability of the order is forbidden; and the court should decide the matter on the strength of ipse dixit of the detaining authority. This practically amounts to shutting out judicial scrutiny even when the fundamental right of a citizen to personal liberty is involved and its deprivation is threatened.
31. This is a case wherein it is contended by the detaining authority that all the facts, information, and material placed before him were taken into consideration by him while making an order of detention. After issuing this order the State Government must have submitted a report to the Central Government under Section 3(2) of the Act. According to Shri Korde, Desk Officer, Home Department of Government of Maharashtra, the declaration made by the detaining authority was reviewed by the State Government under proviso to Sub-section (2) of Section 12-A of the Act, and was duly confirmed vide order, dated 20th Sept. 1976. Not only this, though the Petitioner was not actually detained, it appears from the affidavit of Shri Korde, that the matter was periodically re-considered by the Government under Sub-section (3) of Section 12-A of the Act. This is not a case wherein any privilege is claimed by the Respondents under Sections. 123 and 124 of the Evidence Act. If this is so we are at a loss to understand why respondents adopted an attitude of not disclosing anything even before this Court. This has resulted in shutting out the judicial scrutiny itself. The respondents want to be sole judge of their powers. To say the least this will be negation of Rule of law. In this context reference could usefully be made to the latest decision of Supreme Court in Narendra Purshotam Umrao v. B.B. Gujral : 1979CriLJ469 , and particularly to the following observations in paras. 17, 21 and 22 thereof:
'We have no doubt in our mind that when liberty of the subject is involved, whether be it under the Preventive Detention Act or the Maintenance of Internal Security Act or the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 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 then in accordance with law.
(21) In pursuit of the idealistic considerations as to the inherent worth and dignity of man, the Parliament, in the light of the experience gained recently, repealed the Maintenance of Internal Security Act. The repeal of that Act is necessitated to promote the citizens right to personal liberty, which is a fundamental and pervasive theme of the Constitution to guard against the preventive detention of a person tor political beliefs. This was also in accord with the recommendation of the Law Commission in its Forty-seventh Report, p. 2, paras, 1, 4 that preventive detention should be retained only for preventing anti-social and economic offences. The repeal of the Maintenance of Internal Security Act and the retention of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, however, does not imply that preventive detention, which is an anachronism in a democratic society like ours, can be freely used, without any power of judicial review and without any checks and balances, against persons engaged in anti-social and economic offences. This assumption by the two High Courts ignores centuries of judicial law making when it denies the competence of courts to weigh competing social interests. The courts have always viewed with disfavour the detention without trial whatever bo the nature of offence. The detention of individuals without trial for any length of time, howsoever short, is wholly inconsistent with the basic ideas of our Government.
(22) To put it less euphemistically, the alternative is the renunciation of judicial review itself, and acceptance of the intolerable principle that the Government is the judge of its own powers. So this Court observed in Prabhu Dayal Deorah v. District Magistrate, Kamrup : 1974CriLJ286 .
We say and we think it is necessary to repeat, that 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 a citizen, except in accordance with the procedure established by the constitution and the laws. The history of personal liberty is largely the history of insistence on observance of procedure. And the observance of procedure has been the bastion against wanton assaults on personal liberty over the years. Under our Constitution, the only guarantee of personal liberty for a person is that he shall not be deprived of it except in accordance with the procedure established by law. The need today for maintenance of supplies and services essential to the community cannot be over-emphasized. There will be no special security without maintenance of adequate supplies and services essential to the community. But social security is not the only goal of a good society. There are other values in society. Our country is taking singular pride in the democratic ideals enshrined in its Constitution and the most cherished of these ideals is personal liberty. It would indeed be ironic if, in the name of social security, we would sanction the subversion of this liberty.
A reference could also be made to another decision of Supreme Court in Ashadevi v. K. Shivraj : 1979CriLJ203 .
32. It cannot be forgotten that the laws embody a code of conduct and self-discipline which a nation adopts and enforces through the machinery of courts. In sub-stance it embodies a principle of rationality which is intended to strike against arbitrary and discriminatory actions taken by the State. It postulates that a person or authority exercising executive or governmental functions or powers must act within the authority of law and therefore, ultimately must submit to the jurisdiction of the competent law courts both as to the existence and extent of such authority. Nobody can be permitted to use the power freely without any power of judicial review, and thus become the sole judge of its own powers. No member of executive can be allowed to interfere with the liberty of a citizen except on the condition that he can support the legality of his action before a court of justice.
33. As a fundamental right of the Petitioner is being sought to be curtailed on the basis of the order issued by the detaining authority and the said action is challenged before this Court in this petition, in our opinion it was obligatory on the part of the authority issuing order to justify the said order by placing sufficient material before the court so as to enable this Court to test and scrutinize the legality or validity of the order itself. Hence in the absence of any material being disclosed in affidavit or placed before us, we are left with no other alternative but to hold that the detention order was not validly made. This is more so in view of the peculiar facts and circumstances of this case. In the result therefore this Criminal Application is allowed. The order passed by the detaining authority under Section 3(1) of the COFEPOSA Act dated 8th of Sept., 1976 and sub-sequent orders and notifications issued under Section 7(1) of the COFEPOSA Act are quashed and set aside. As a necessary consequence of this, the Respondents, their Agents, and Servants are restrained from enforcing the said orders. Hence rule is made absolute.
34. At this stage an oral request is made by Shri Kotwal seeking leave to file an appeal before the Supreme Court of India. As we have based our conclusions on the well established principles of law as laid down by the Supreme Court itself, we do not feel that this is a fit case wherein such a leave should be granted. Hence leave refused.