P.B. Sawant, J.
1. By this petition filed under Articles 226 and 227 of the Constitution, the petitioner seeks to quash the order dated January 31, 1975, passed against him under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as the Act), and also for setting aside the order dated October 9, 1975, passed by the learned Sessions Judge, Bombay in a proceeding under Section 7(1)(b) of the said Act. The facts leading to the present petition are as follows :
Two criminal cases being R.C. No. 17/66 and R.C. No. 21/66 were pending against the petitioner before the Chief Metropolitan Magistrate at New Delhi for the offences of smuggling out of India the prohibited antiques. With the permission of the learned Magistrate, the petitioner left India for medical treatment, on July 14, 1974. While the petitioner was still out of India, on January 31, 1975, the impugned order of detention was passed under Section 3(1) of the said Act by the Secretary to the Government of Maharashtra, Home Department (Special), directing that the petitioner be detained. According to the petitioner, he was not aware of this order since it was not served on him. Thereafter, the Government of Maharashtra issued an order on May 23, 1975 under Section 7(1)(b) of the said Act requiring the petitioner to appear before the Commissioner of Police, Greater Bombay. On the same day, the Government made a report to the Chief Metropolitan Magistrate, Bombay, for taking action under Sections 82 and 83 of the Criminal Procedure Code (hereinafter referred to as the said Code) against the petitioner. The order made on May 23, 1975 was published in the Maharashtra Government Gazette on May 29, 1975. On June 2, 1975, the Chief Metropolitan Magistrate, Bombay, issued a proclamation under Section 82 of the said Code, requiring the petitioner to appear in Court within 30 days. One Ramesh Narang, a Constituted Attorney of the petitioner, thereupon made an application on .June 20, 1975 to the learned Magistrate for cancellation of the said proclamation. On July 24, 1975, the learned Magistrate after cancelling the earlier proclamation at the instance of the State Government, issued a fresh proclamation under Section 82 of the said Code requiring the petitioner to appear before him between 30th and 45th day of the date of publication of the said proclamation. The proclamation was published in the official gazette on August 2, 1975. The period for appearance was to expire on September 16, 1975. It appears that thereafter a fresh application was made by the said Ramesh Narang, the Constituted Attorney of the petitioner, on July 24, 1975 for cancellation of the said fresh proclamation. The learned Magistrate heard the said application on September 19, 1975, and by his order of the same date, dismissed the said application made on behalf of the petitioner and also ordered attachment of the petitioner's properties, under Section 83 of the said Code. The petitioner through his said Constituted Attorney preferred a revision application before the Sessions Court, Greater Bombay against the said order of the learned Magistrate. The Sessions Court dismissed the revision application by its order dated October 9, 1975. Thereafter the petitioner through his said Constituted Attorney filed the present petition challenging, as stated earlier, both the order of detention as well as the said order of the learned Sessions Judge dismissing his revision application. This Court on October 16, 1975 admitted the petition and granted stay of the order of attachment of the properties, passed by the learned Magistrate on September 19, 1975. On October 21, 1975, the stay was vacated on the ground that the properties could not be sold until the expiry of six months from the date of the order of attachment. The State Government thereafter made an application before the Chief Metropolitan Magistrate for appointment of a Receiver of the petitioner's properties and the learned Magistrate granted the said application. The petitioner therefore moved this Court by an interlocutory application for setting aside the said order of the learned Magistrate and this Court by an order dated February 27, 1978, restrained the Receiver from taking possession of the properties and directed the learned Magistrate to dispose of the application under Section 83(3) of the Code, which was meanwhile made by -the petitioner. Thereafter, on November 19, 1979, the learned Magistrate decided the application under Section 85(3) and released the properties from attachment. Against the said order of the learned Magistrate, the State preferred a revision application to this Court which is Criminal Revision Application No. 23 of 1980 and the same is being heard along with the present petition.
2. While the aforesaid proceedings under Sections 82 and 83 of the Code were pending, the petitioner on August 29, 1975 addressed an application to the Central Government under Section 11 of the said Act for revocation of the order of detention. This application was forwarded by the Central Government to the State Government for necessary action. Till this day, no action has been taken on the said application.
3. In the meanwhile, on May 5, 1976, the petitioner was arrested in London in a theft case and was released on bail on certain conditions. On May 13, 1976, the Central Bureau of investigation lodged a First Information Report against the petitioner and registered a case being R.C. No. 4 of 1976. In connection with this case, at the instance if the Central Bureau of Investigation, the petitioner was arrested in London and was ultimately extradited to this country on July 27, 1977. At the time of the extradition, the Government of India gave two undertakings to the Government of United Kingdom, one on September 27, 1976 and the other on May 17, 1977. By the first undertaking, the Government of India undertook that the petitioner would not be tried for any offence in this country other than the offences for which he was being extradited or lesser offence or any relevant offence connected with the offence in respect of which the Secretary of State may consent. By the second undertaking, which is more relevant for our purpose, the Government of India undertook that no order for detention under the said Act or a similar legislation would be executed against the petitioner without affording him a reasonable opportunity to leave this country after his judicial trial and serving sentences that may be passed, if any, for the offences for which he was extradited. It was, however, made clear in this undertaking that it was given without prejudice to any action taken or which might be taken by the Government of India against all types of properties wherever 'situate belonging to the petitioner.
4. The petitioner's challenge in the present petition is mainly directed against the order of detention and consequently against the order of attachment of his properties under Section 7 of the said Act read with Sections 82 and 83 of the Code.
5. The first allegation of the petitioner is that the impugned order of detention passed on January 31, 1975 has now lost all its efficacy, inasmuch as the whole purpose and object of the said order has since disappeared. The execution of the said order at an indefinite future date when the criminal cases against the petitioner would be disposed of and the petitioner would be allowed to leave this country would make the detention order punitive in nature. The order would thus not be an order within the contemplation of Section 3(1) of the Act, but an order outside its purview. Under the said section, there is no power to keep the execution of the order suspended indefinitely. The undertaking given by the Government of India to the Government of United Kingdom on May 17, 1977 renders the detention order non-est and unenforceable in law as the power of detention conferred by the Act is preventive, and not punitive in nature. It is next submitted that the petitioner had made an application for revocation of the said order as early as on August 29, 1975 under Section 11 of the Act in exercise of the right conferred by the said section. The said application was addressed to the Central Government which was duty bound to consider the same within a reasonable time. The Central Government instead of considering the same sent it to the State Government for action, which it was not permissible for it to do. The application further has not been decided till this date. The non-consideration of the application by the Central Government and for such inordinately long time, has rendered the detention order invalid and in any case has made it unenforceable hereafter. The last submission is that the detaining authority had not framed or formulated grounds of detention at the time the impugned order of detention was made. The formulation of the grounds of detention is a condition precedent to the passing of the order of detention inasmuch as unless the authority is satisfied that there exist grounds of detention, no order of detention can be passed. Since no such grounds were in existence, the order of detention is void ab initio.
6. In reply to the said contentions raised in the petition, Shri P.G. Gavai, the then Home Secretary to the State Government who had passed the order of detention has filed his affidavit on February 8, 1980. In addition, Shri S.M. Sule, Under Secretary of the Home Department of the State of Maharashtra has filed an affidavit-in-reply on behalf of the second respondent -- State of Maharashtra also on the same day. Shri Narayanrao Sonavane, Collector of Customs (Preventive) has filed his affidavit-in-reply on February 7, 1980 on behalf of the first respondent - Union of India. The other two respondents to the petition, namely, one Ramrakhiani, Under Secretary to Government of Maharashtra, Home Department and G.B. Pingulkar, Court Receiver appointed by the Magistrate for the management of the petitioner's properties have not filed their returns. In his affidavit, Shri Gavai, the detaining authority has purported to place before the Court the circumstances under which the impugned order was passed. According to him, before he passed the said order he was personally satisfied that with a view to preventing the petitioner from smuggling goods and from abetting of smuggling goods it was necessary to make the said order. According to him further his personal satisfaction was arrived at after he had perused the material placed before him in respect of the smuggling activities of the petitioner and after he had applied his mind to the said material. The nature of the prejudicial activities of the petitioner as disclosed by the material placed before him showed that the petitioner was continuing to engage in smuggling activities even during 1973 and 1974. The material which was placed before him, further, was not confined to the two incidents which were the subject-matter of, the two C.B.I, cases pending in the New Delhi Court, i.e. cases Nos. R.C. 17/66 and R.C. 21/66. In addition to the said two cases, he had also material placed before him about smuggling out of India the beautiful antique bronze icon of the famous Shivapuram Natraja Dancing Shiva. It was reported to him that incriminating documents relating to the said not was recovered from the firm of M/s. Narang Overseas (Pvt.) Limited, of which the petitioner was a permanent director at the relevant time alongwith his two brothers. He then goes on to say that he had also a report with him showing 'that intelligence available in 1973 and 1974 with the Directorate of Revenue Intelligence indicated that petitioner and his associates continued to indulge in smuggling antiques out of India.' He further adds that he had also perused the intelligence reports in respect of the smuggling activities of the petitioner and his associates; but he considers it against the public interest to disclose the 'source' of the intelligence referred to earlier and further considers it against 'public interest' to disclose 'further facts' contained in the said intelligence reports. With these averments he denies that no grounds existed for detention of the petitioner or that the order of detention was passed without applying his mind. He then asserts that the grounds existed at the time of passing the order and that he passed the order after applying his mind to the material containing the grounds. With regard to the undertakings given by the Government of India to the Government of United Kingdom, he states that after the said undertakings the Government of India directed the State Government to, suspend the execution of the detention order against the petitioner, and therefore, the State Government has suspended the execution of the order against the petitioner. According to him, only the execution of the order has been suspended and not the 'legal existence and validity of the said order'. He asserts that the order will be executed after the suspension is withdrawn in accordance with the terms of the undertakings. Shri Sule, the Under Secretary, has in his return, disputed that the petitioner had left India for United Kingdom for medical treatment and has stated that according to the information of the Government, the petitioner was holding a Liberian passport and had also obtained a Liberian Business Passport on the basis of his appointment as Business Advisor to the Government of Liberia. According to him, the petitioner had visited countries other than United Kingdom and had also visited Liberia for one or two times on his own admission on August 29, 1979 in Case No. 338/N of 1975 before the Chief Metropolitan Magistrate, Bombay. He denies the petitioner's contention that he had never indulged in smuggling activities. He also denies that there were inimical relations between the petitioner and the Customs Officers, and the detention order came to be passed against him on that account. He then describes the circumstances under which the proclamation under Section 82 of the Code came to be issued by the Chief Metropolitan Magistrate, Bombay and states the precise reasons for which the petitioner was being prosecuted in the two cases pending before the New Delhi Courts. He denies the allegation that the detention order is invalid or that it has become unenforceable on account of the lapse of time. He further denies that the detention order was passed without subjective satisfaction or without application of mind. He then states that the application dated August 29, 1975 made by the petitioner for revoking the order was forwarded by the Under Secretary to Government of India, to the Home Secretary of Government of Maharashtra by his letter dated December 1, 1975, for appropriate action. He however asserts that as the petitioner was absconding, no action on the said application was necessary. He further states that the State Government had sent a report to the Union Government after the detention order was passed. In his return filed on behalf of the Union of India, Shri Sonavane, the Collector of Customs, contrary to what Shri Sule has stated, does not mention that the application dated August 29, 1975 was made by the petitioner himself. According to him,, the petitioner had all the time been appearing before or moving the Courts or Authorities through his relatives, and that the petitioner had intentionally remained abroad to avoid the execution of the detention order and also to prolong the proceedings against him. He, however, states that the application dated August 29, 1975 was sent by the Union of India to the Government of Maharashtra for disposal in view of the fact that the detention order was passed by the Government of Maharashtra. These are all the submissions and counter-submissions which are necessary to be reproduced here for the disposal of the petition since they are the only ones which are relevant for the purpose of dealing with the limited contentions raised by the petitioner at the time of the hearing. Although therefore various other contentions have been raised in the petition, we have not thought it necessary to refer to them and to the replies given to them on behalf of the respondents.
7. Before we deal with the contentions on merits, we may usefully dispose of, at the outset, two preliminary contentions raised by Shri Kotwal on behalf of the State Government. The first such contention is that the present petition is not maintainable since it is premature, inasmuch as the detention order has not yet been served on the petitioner and he has not been arrested under the same. A slightly different aspect of the very same contention was also canvassed by Shri Kotwal when he submitted that the Court will not grant relief to the petitioner in the exercise of its extra-ordinary jurisdiction under, Article 226 of the Constitution since the petitioner has not come to the Court with clean hands. The second contention is that the petitioner is not entitled to the reliefs prayed for by him since he has not made the detaining authority a party to the petition.
8. As regards the first contention, it is not disputed, as indeed it could not be, that the order of detention was executable, the moment it was passed. If this is so, then it is really strange to argue that a person who is likely to be affected by such order has no right to approach the Court to challenge the same the moment he learns that such order has been made against him. Under a detention order a person is sought to be deprived of his liberty. As laid down under Article 21 of the Constitution, such order can be made only under .a law enacted for the purpose and after complying with the provisions of such law. It may happen that an order is passed without there being a statute to support it or it may be passed without complying with the provisions of the statute if any. The order may also come to be passed against a wrong person or for a wrong purpose. To insist in such cases that the person against whom the order is passed must first submit to the same and lose his valuable liberty, before approaching the Court, is to insist upon an unreasonable, unwarranted and illegal condition. We find no support for such proposition in our legal system. On the other hand, the fundamental rights guaranteed by the Constitution particularly by Articles 14, 19 and 21 confer on any person likely to be affected by such order an implicit right to approach the Court and knock at its door at any time, and the Court will not and cannot refuse relief to such person by insisting that he first surrender his liberty. We therefore find no substance in this submission. Although it is not strictly material, it will not be inappropriate in the present case to point out that although the detention order was not served upon the petitioner, proceedings under Section 7(1) of the Act read with Sections 82 and 83 of the Code were initiated against him and his properties were attached in the said proceedings before this petition was filed. The said proceedings could never have been initiated unless there was a detention order made under the Act. We are therefore unable to understand the said contention advanced on behalf of the State.
9. Equally unappealing and if we may say so, amusing was the second leg of this argument viz. that the petitioner was not entitled to the relief under Article 226 of the Constitution because he had not approached the Court with clean hands. The argument was that since the petitioner had not submitted to' the order of detention, it should be held that he had approached the Court with unclean hands. To argue that when a person approaches the Court before suffering an invasion of his right such as the right of liberty which is involved in the present case, he does not approach the Court with clean hands is to mistake assertion of right for guilt and submission for innocence. The argument further ignores that the equitable doctrine that he who invokes the aid of Court must first fulfil his part of the obligation or should be ready to do so, has no application in a case where a person approaches the Court with the complaint that his fundamental right is endangered. The guarantee of fundamental rights is not made conditional upon the fulfilment of any obligation by the individual. The threatened invasion of an individual's right can be warded off only if he approaches the Court before his rights are actually invaded. To accept such contention will be to do away with a very valuable right available to the individual. It is for these reasons that we do not find any substance in this preliminary contention.
10. As regards the second preliminary contention, it must be noted that this contention was sought to be raised for the first time orally after the arguments on behalf of the petitioner, the second respondent -- State Government and the first respondent -- Union Government were over and when the arguments in rejoinder were to. begin on behalf of the petitioner. The arguments in the present case were spread over a few days. If this contention was raised in the affidavit that was filed by the State Government in February 1S80, almost five years after the petition was filed or at the commencement of the hearing of the petition, the petitioner could have amended the petition by .adding the detaining authority as a party to the petition. However, for reasons best known to the learned Counsel and the State Government, as stated earlier, the- contention was sought to be raised almost, at the fag end of the hearing of the petition. Even then, we told Shri Kotwal that if he was serious in his said objection, the petitioner could even at that stage amend the petition by making the detaining authority a party to the petition and in that case he should accept service of the petition on behalf of the detaining authority. It must .be remembered that the detaining authority is none else than the then Home Secretary and the present Chief Secretary of the State Government. Surprisingly enough, Shri Kotwal replied that it was not possible for him to accept the service on behalf of the detaining authority and that he would require instructions from the authority to accept such service. We are unable to understand this conduct on behalf of the State and its counsel. This approach on behalf of the State points to nothing except an attempt on their part to postpone and delay the hearing of the petition and that too after the hearing of the petition had gone on for a few days, as stated earlier. We then questioned Shri. Kotwal as to in what precise manner either the State or the detaining authority was prejudiced if the detaining authority was not a party to the petition since the-Union of India, the State Government and Shri Ramrakhiani, Under Secretary to Government of Maharashtra, Home Department (Special), are party-respondents to the petition. Returns have been filed as stated at the very beginning, not only on behalf of the Union of India and the State of Maharashtra, but also by the detaining authority Shri Gavai, and arguments and counter-arguments have been advanced also on the basis of the return of the detaining authority. In fact, the main arguments revolved round what was said by the detaining authority in his affidavit. Further, it has also been stated in the return filed on behalf of the State of Maharashtra that the detention order made by the detaining authority was proper and valid and -after a due scrutiny of facts and application of mind and in fact both the Union of India as well as the State of Maharashtra have supported vehemently the detention order on the said basis. We are therefore unable to understand as to how in the circumstances any prejudice could be caused to the detaining authority or for that matter to any of the respondents to the petition, including the State of Maharashtra on whose behalf the objection is sought to be taken, in the absence of the detaining authority being a party to the petition. We are therefore inclined to reject this contention as well.
11. On merits, the neat contentions of law raised by Shri Sen, the learned Counsel for the petitioner, are as follows : His first contention is that since the order of detention has been suspended by the State Government at the instance of the Government of India, the said order has become non-est, and therefore, unenforceable. His second contention is that inasmuch as the petitioner's application for revocation has not been considered since August 29, 1975 till today, there is non-compliance with the provisions of the said Act, and hence, the order as well as its enforceability has become illegal. His last contention is that inasmuch as the detaining authority had not framed or prepared or signed the grounds of detention before or simultaneously with the passing of the detention order, the order is void being in violation of the mandatory provisions of Section 3 of the said Act, and also being in breach of Article 21 of the Constitution.
12. In support of his first contention, Shri Sen relied upon the fact that the order of detention was passed on January 31, 1975. Thereafter, admittedly the Government of India had given an undertaking on May 17, 1977 that the said order would not be enforced against the petitioner so long as the criminal cases against him, namely, R.C. No. 17/66 and. R.C. No. 21/66 in the New Delhi Courts are not disposed of and the petitioner has served his sentence, if any, as a result of the said cases and till further he has been given an opportunity to leave this country thereafter. He pointed out that in those cases the charge-sheets were filed in the year 1969, and so far out of the total of 45 witnesses, only 15 have been examined and the cases are pending disposal even till this day. There is no knowing as to when the said cases would come to an end. After the decision of the said cases by the learned Magistrate, there may be further proceedings by way of appeals and revisions. It is therefore not certain today as to when the said proceedings would finally come to an end. Thus, on account of the said undertaking, the execution of the detention order is postponed indefinitely. The said Act empowers the making of detention order only for a limited purpose and for a given object. Section 3(1) of the Act under which the order is made enjoins on the authority making -the order, to satisfy itself that with a view to preventing a person from acting in any manner prejudicial, to the conservation or augmentation of foreign exchange or with a view to preventing him from doing any of the other acts mentioned therein, it is necessary to' make an order detaining him. By its very nature, the order is preventive and it has a relation to a foreseeable near future. It is not permissible under the said provisions to make the detention order with reference to either a remote or an indefinite future. An order made with reference to such remote or indefinite future will by itself be a self-defeating, and therefore, self-contradictory order. Further, there is a maximum period laid down for which alone a person can be detained under such order and the said maximum period is one year. In the present case, as things stand today, more than 5-1/2 years have elapsed since the passing of the order. As a matter of fact, even on the date the undertaking was given, namely, May 17, 1977 and the date the petitioner was extradited to this country pursuant thereto, i.e. on July 24, 1977, more than two years had already elapsed. The order of detention being only preventive in nature and not punitive, the same cannot in the nature of things be enforced now nor can its enforcement be suspended indefinitely. He therefore vehemently urged that for these reasons the order itself has become non-est in law now and in' any case its enforceability has become illegal and impermissible. We may at once state that we are very much impressed by this contention. There is no manner of doubt that the order of detention being preventive and not punitive in nature, its execution cannot be postponed to an indefinite future. The detenu is not a convict and the detention made under the detention order is not a sentence which a detenu must undergo whenever he is apprehended as a punishment for the offence committed in the past. The detenu is sought to be taken into custody at a particular point of time and detained there for a specific period not as a punishment for what he did in the past, but as a precaution against what he is likely to do in the future period specified in the Order. The future period that is required to be specified in the order again is a period which has a proximity and a reasonable connection with the date of the order. This being so, in the very nature of things and on first principles, it sounds quite logical to contend that the execution of the order of detention cannot be postponed indefinitely nor can an order of detention be made which is intended to come into operation in the distant and indefinite future.
13. On this reasoning, it will make no difference whether the postponement of the execution of the detention order is on account of the abscission of the accused or on account of some other reason such as the default 'on the part of the detaining authority. However, as pointed out by Shri Kotwal, appearing for the State, the very same arguments were advanced before the Supreme Court, in a case Bhavarlal Ganeshmalji v. The State of Tamil Nadu : 1979CriLJ462 and the same were negatived by the Court. In that case, the facts were that the order of detention was passed on December 19, 1974 and the detenu was found absconding. Despite 'all the necessary efforts, the detenu could not be arrested until he surrendered on February 1, 1978. In repelling contentions similar to those advanced before us, the Supreme Court in paragraph 6 of its judgment observed as follows (at p. 544} .
It is true that the purpose of detention under the COFEPOSA is not punitive but preventive. The purpose is to prevent organised smuggling activities and to conserve and augment foreign exchange. !t is true that the maximum period for which a person may be detained under the COFEPOSA is one year. It is further true that there must be a 'live and proximate link' between the grounds of detention alleged by the detaining authority and the avowed purpose of detention namely the prevention of smuggling activities. We may in appropriate cases assume that the link is 'snapped' if there is a long and unexplained delay between the date of the order of detention and the arrest of the detenu. In such a case we may strike down an order of detention unless the grounds indicate a fresh application of the mind of the detaining authority to the new situation and the changed circumstances. But where the delay is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest, there is warrant to consider the 'link' not snapped but strengthened. That, precisely, is the state of affairs before us. The order of detention was made on 19th December, 1974. The detenu was found to be absconding. Action was taken pursuant to Section 7 of the COFEPOSA and he was proclaimed as a person absconding under Section 82 of the Criminal Procedure Code. The proclamation was published in several leading English and local language daily newspapers. His photograph was exhibited in cinema halls. A reward of Rs. 5,000/- was also announced for his apprehension. Despite all this effort, he could not be arrested until he surrendered on 1st February, 1978. We do not have any hesitation in overruling the submission of Shri Jethmalani based on the delay in the execution of the order of detention.
14. As will be noticed from the above observations, the Court has held that where the delay in the -enforcement of the detention order is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct on the part of the detenu, there is warrant to consider that the link is not 'only snapped but strengthened. According to us the authority is a complete answer to the contentions raised on behalf of the petitioner.
15. Shri Sen, However, tried to distinguish the aforesaid decision on facts and contended that in the case before the Supreme Court, the detenu was admittedly absconding for the entire period between the date of the order and the date of the surrender. In the present case, according to Shri Sen, it cannot be said that the petitioner was absconding till he was extradited on July 24, 1977. In this contention, he pointed out that the petitioner was not aware of the order of detention made on January 31, 1975, since it was made while he was out of this country and it was admittedly not served upon him personally. Thereafter, the first proclamation under Section 7 of the Act read with Section 82 of the Code was issued on Dune 2, 1975, and the petitioner made an application through his Constituted Attorney, for cancellation of the said proclamation, on June 20, 1975. The first proclamation was cancelled and a fresh proclamation was issued on July 24, 1975. He made a second application for cancellation on the very day, i.e. July 24, 1975. Thereafter, he had sent two medical certificates to the Chief Metropolitan Magistrate on September 9, 1975 and September 27, 1975, and had made an application for adjournment of the proceedings before the learned Magistrate. That adjournment was not granted, and in fact, the learned Magistrate by his order dated September 19, 1975 passed an order attaching the petitioner's properties. Thereafter, the petitioner pursued the matter further and challenged the said order in revision before the Sessions Court and when the Sessions Court by its order dated October 9, 1975, rejected his revision application, he preferred the present petition on October 15, 1975. Further, on August 29, 1975 he made an application for revocation of the detention order addressed to the Central Government under Section 11 of the Act. The petitioner had never concealed his address or whereabouts, and both the State Government as well as the Central Government and the detaining authority were fully aware of the complete address of the petitioner, although he was outside the country. In the circumstances, it can never be said, urged Shri Sen, that the petitioner was absconding, and hence the ratio of the aforesaid decision would not apply to the facts of the present case. We are unable to accept this submission for the following reasons. It is true that there is nothing on record to show that the petitioner had become aware of the order of detention passed on January 31, 1975. However, on his own admission he had come to know of this order at least by June 20, 1975, on which day he made an application for cancellation of the proclamation issued by the Chief Metropolitan Magistrate on June 2, 1975. Yet, for one reason or the other he had failed to subject himself to the jurisdiction of the authorities in this country since that day. It is true that he had sent medical certificates from abroad in support of the application made on his behalf for adjournments of the proceedings before the Magistrate. However, we have nothing on record to show that he had ever addressed any communication either to the detaining authority or to the State Government or the Central Government that he was unable to surrender to the detention order for any reason or expressing his willingness to submit to the said order as soon as the reasons, if any, disappeared. On the other hand, as the facts reveal, although the two criminal cases were pending before the Chief Metropolitan Magistrate, New Delhi and he was supposed to return to this country after the medical treatment for which he had taken permission of the said Magistrate to leave this country, he was not making himself available for the purposes of those proceedings either. The result was that the Central Government had to adopt proceedings for extradition and it is only after an order of extradition was secured from the Government of the United Kingdom on giving the two undertakings, that ultimately the petitioner could be brought to the shores of this country on July 27, 1977. If it were not for the extradition proceedings and the undertakings given by the Central Government, it is legitimate to presume that the petitioner would never have landed himself in this country. The very fact, therefore, that the petitioner's presence had to be secured through the extradition proceedings speaks volumes for the refusal of the petitioner to come to this land and subject himself to the jurisdiction of the authorities here. This conduct on the part of the petitioner far from showing his willingness to submit to the detention order speaks against it. We are therefore more than satisfied that the petitioner had no desire to submit to the detention order and he had never shown his willingness to surrender himself to the same. This being so, he can properly be described as one who was absconding or evading the process of law. In this connection we may usefully rely upon a Full Bench Decision of the Madras High Court in K.T.M.S. Abdul Coder v. Union of India A.I.R.  Mad. 399 Where it has been held that 'the words 'absconding debtor' means one who departs for a distant country before the necessary proceedings can be taken against him or being outside the country continues to remain there with intent to defeat or delay the process of' law. The primary meaning of the word 'abscond' is to hide and the word 'abscond' means 'to fly the country in order to escape the arrest for crime'. A person can be said to abscond not only when he leaves the country in order to escape the arm of the law, but also when he continues to remain outside the country with a view to avoid any detention order that may be passed under Section 3 when he learns of the same while he is still abroad. On the facts of the case before that Court where the petitioners had left India before the orders of detention were passed but continued to remain outside the country even after learning of the said orders, the Court held that they had to be taken to be absconding persons since they had continued to remain outside the country with a view to defeat or delay the execution of the detention orders. Relying upon a decision of the Lahore High Court in Jagdev Khan v. Emperor A.I.R.  Lah 151, the Court further held that the onus of proving that the detenus had no notice or that they did not abscond for the purpose of avoiding the execution of the detention order was on the detenues, and they had not discharged the same. The Court in that case came to the conclusion that the detenues had knowledge of their detention orders and their continued absence from the country inspite of such knowledge amounted to absconding or concealing themselves with a view to evade the arrest. With respect, we are in complete agreement with the view expressed by the Court there, and applying the ratio of that case to the facts of the present case we find that the petitioner having learnt of the detention order by June 20, 1875, had given no explanation whatsoever for his avoidance of the order. He had to be brought to this land as stated earlier with the help of the extradition proceedings. The said extradition proceedings are also of no avail to the detaining authority for detaining the petitioner under the detention order, because he has for reasons best known to him compelled the Central Government to give an undertaking that inspite of his said extradition, he would not be arrested Officer the detention order. It is therefore more than clear that even today he is not prepared to submit or surrender to the detention order and the Government is not free to detain him under the said order. We are therefore unable to accept the contention that the petitioner cannot be said to be absconding and hence the ratio of the decision of the Supreme Court will not be applicable to the facts of the present case. For the purposes of the execution of the detention order it will have to be held, in the circumstances, that the petitioner is still absconding.
16. As regards the second contention, viz. that the order of detention has become unenforceable and non-est in law because the petitioner's application dated' August 29, 1975 for revocation of the detention order under Section 11 of the Act has not been considered so far, Shri Sen relied upon the admitted fact that the said application was received by the Central Government and it was sent by the Central Government to the Government of Maharashtra for disposal in view of the fact that the detention order was passed by that Government. Shri Sule, while referring to this application in his return, has admitted that the said application was sent by the Central Government to the State Government for 'appropriate action'. However, he has given his reason for not considering the said application and according to him, since the petitioner was absconding no action on the said application was deemed necessary. Shri Sen's contention in this behalf was three-fold. Firstly, under the provisions of Section 11, the petitioner has a right to make an application for revocation of the detention order either to the Central Government or to the State Government and that such application can be made at any stage and on any number of occasions. If the application is addressed to the Central Government, it is the Central Government which must decide it and it cannot avoid its obligation and send it to the State Government for taking action by that Government. Admittedly, in the present case the Central Government failed to decide the s-aid application and instead sent it to the State Government. This was an abdication of its duty and in breach of the provisions of the said section.
17. Secondly, he contended that the right to make the application implies an obligation on the Government concerned to consider the same and to dispose it of within a reasonable time. Inasmuch as no action has been taken on the said application till this day, there is a non-compliance with the provisions of the said section, and therefore, the continued operation of the detention order .has become illegal. In support of this proposition, he relied upon several decisions of the Supreme Court. In Tara Chand v. State of Rajasthan (1980) S.C.C. 321, the facts were that the detenu was arrested on July 19, 1979 and his wife made two representations dated July 26, 1979 and July 31, 1979 to the State Government and the same were rejected on or before August 30, 1979. Thereafter, on December 6, 1979, another representation was made by the wife to the Home Minister of Rajasthan, the President of India, the Prime Minister of India and the Finance Minister of the Union Government praying for the revocation of the detention order. It was common ground that neither the representation was considered by the Union of India nor any order was passed on it. The Court held that when once a representation is made to the Central Government, it is duty bound to consider the same and exercise its discretion either to reject or accept it. An inordinate delay in considering the representation clearly amounts to violation of the provisions of Article 22(5) so as to render the detention unconstitutional and void. The Court in the circumstances allowed the detenu's petition and directed that the detenu be released forthwith. In Shyam Ambalal Siroya v. Union of India : 1980CriLJ555 , the detenu was detained under an order of detention dated August 31, 1979. The detenu was served with the grounds of detention on September 5, 1974 and he made his first representation, although incomplete for want of the requisite documents, on September 22, 1979. Thereafter, he made a second representation on October 5, 1979 for revocation of the detention order under Section 11. Admittedly, the said representation was not, considered by the Government. On these facts, the Supreme Court held that the power conferred on the Central Government by Section 11 is wide enough to enable that Government to revoke the detention order at any stage and a petition for revocation of an order of detention should be dealt with reasonable expedition. It was further held that although it may be permissible for the Government to take reasonable time for disposing of a revocation petition, it would not be justified in ignoring the said representation, as a statutory duty is cast upon the Government to consider the same. The Court further held that where a properly addressed petition is not forwarded to the Central Government and as such left unattended for a period of nearly four months, the detention cannot be justified as being according to the procedure. The Court also held that in the circumstances of the case, it would not be justified in sending the representation to the Central Government for disposal at that stage. Taking all the facts and circumstances of the case, the Court felt that the continued detention of the detenu could not be held to be according to the procedure and directed the release of the detenu forthwith. In an unreported decision of the Supreme Court in Sabir Ahmed v. Union of India (1980) Supreme, Court Writ Petition (Crl.) No. 168 of 1980 decided on April 18, 1980 (Unrep.), the Court reiterated the view taken in the aforesaid two cases and held that the nub of the matter was, whether the power conferred by Section 11 on the Central Government, carried with it the duty to consider the representation made by the detenu expeditiously. The power under Section 11 may either be exercised by it on information received by the Central Government from its own sources including that supplied under Section 3 by the State Government or from the detenu in the form of a petition or representation. Whether or not the Central Government on such petition/representation revokes the detention is a matter of discretion. But this discretion is coupled with a duty. That duty is inherent in the very nature of the jurisdiction. The power under Section 11 is a supervisory power. It is intended to be an additional check or safeguard against the improper exercise of its power of detention by the detaining authority or the State Government. If this statutory safeguard is to retain its meaning and efficacy, the Central Government must discharge its supervisory responsibility With constant vigilance and watchful care. The report received under Section 3, or any communication or petition received from the detenu must be considered with reasonable expedition. What is 'reasonable expedition' is a question depending on the circumstances of the particular case. No hard and fast rule as to the measure of reasonable time can be laid down. But it certainly does not cover the delay due to negligence, callous inaction, avoidable red-tapism and unduly protracted procrastination. The Court there dubbed as an apologetic explanation the plea taken on behalf of the Central Government that, the Government did not consider the representation because the writ petition for habeas corpus was already filed in the Court and the Court was seized of the case. The Court further found that four months had already passed since the representation was sent by the detenu and the Government had not applied its mind to the same till then. . On the other hand, it had just ignored it. The Court therefore allowed the petition and directed the release of the detenu.
18. The third contention in this behalf was that the right given to the detenu by Section 11 was independent of the right given by Clause (5) of Article 22 of the Constitution and the same could be exercised by him at any stage of the detention. Article 22(5) was not the sole repository of the detenu's rights and his rights were governed also by the other fundamental rights in particular those contained in Articles 14, 19 and 21. It was pointed out that the earlier contrary view taken in A.K. Gopalan's case : 1950CriLJ1383 , has given way to the aforesaid doctrine as enunciated in R.C. Cooper's case : 3SCR530 and the latest Maneka Gandhi's case : 2SCR621 Since the executive action must conform to all the fundamental rights in the present case the non-consideration of the revocation application was in breach of Article 21 of the Constitution rendering the detention order non-est in law.
19. As against this Shri Kotwal as well as Shri Khambata first contended that the right to make an application for revocation under Section 11 accrues only to a person who is already under detention and is not available to one who is not yet under detention. They therefore urged that the contentions advanced on behalf of the petitioner have no application in 'the present case. We find it difficult to accept this argument advanced on behalf of the respondents for reasons more than one. In the first instance, the plain language of Section 11 does not warrant any such restriction 'or condition as is sought to be canvassed on behalf of the respondents. It will in this connection be useful to reproduce the section here :
Section 11(1) : Without prejudice to the provisions of Section 21 of the General Clauses Act, 1897, a detention order may, at any time, be revoked or modified :
(a) notwithstanding that the order has been made by an officer of a State Government, by that State Government or by the Central Government.
(b) notwithstanding that the order has been made by an officer of the Central Government or by a State Government by the Central Government. '
(2) The revocation of a detention order shall not bar the making of another detention order under Section 3 against the same person.
20. The language of the section is very clear. The detention order may be revoked or modified at any time by the appropriate Government and there is no condition precedent required to be satisfied before such revocation or modification is done. There is further no limit on the number of times an application for revocation or modification may be made. The right given for making an application for revocation under this section is independent of the right of making a representation against the grounds of detention under Section 3(3) of the Act read with Article 22(5) of the Constitution. A comparison of the said right of representation under Section 3(3) of the Act with the right of revocation or modification in question shows that the latter right can be exercised at any time either before, during or after the former is exercised. The right of making representation under Section 3(3) comes into force immediately the person is taken in detention and it is a counter-part of the duty imposed upon the detaining authority to supply the detenu with the grounds of detention ordinarily not later than five days and in exceptional circumstances not later than 15 days, from the date of detention. On the contrary the revocation of the order can be made by the Central Government or the State Government as the case may be either acting on its own or from the material available to it from the detention order itself or from the application that may be made by the person against whom the order is made. The right to agitate for revocation or modification of the detention order may arise independently of the grounds of detention, whereas the representation that is contemplated under Section 3(3) is against the grounds of detention, which are required to be supplied at the time of or after detention. A comparison with the provisions of Section 10 of the Act will also make it clear that not only the right to the revocation of the order is an independent right by itself not connected with or dependent upon any other provision of the Act, but is a right available also to a person who is not yet taken in detention. Section 1C speaks of the powers of the appropriate Government to revoke or modify the detention order, and the right of the detenu to seek such revocation or modification earlier than the expiry of the period of detention originally specified. Unlike Sections 3(3) and 10, Section 11 does not speak of a person already under detention. It is therefore not necessary that the person should be under detention before he exercises his right to the revocation of the order. What is more, to place an interpretation on Section 11 suggested on behalf of the respondents would be oppressive in cases where the order is prima facie illegal and the person against whom such order is made wants to approach the appropriate Government to show that it is so and to get it revoked or modified as the case may be. If the 'order is bad, it is bad whether one surrenders to it or not. To insist upon the individual to surrender his liberty before he exercises his .right of revocation of such order is to insist upon an oppressive condition apart from the fact that no such condition is inferable from the plain reading of the section itself. This argument further ignores the provisions of Article 21 of the Constitution which state that no person shall be deprived of his life or personal liberty except according to procedure established by law. If a person can show that the order is unsupported by law or that it is not in compliance with the provisions of the law, if any, it will be a violation of the said Article to require him to submit to such order before he applies for its revocation. It is for these reasons that we do not find any substance in the contention advanced on behalf of the respondents that unless a person is under detention he will have no right to make an application for revocation under Section 11 of the Act.
21. We however find that there is great force in the next contention advanced on behalf of the respondents viz. that the non-consideration of the application for revocation under Section 11 will not render the order of detention bad in law in a case such as the present one where the person concerned is not under detention. We have not come across any such proposition of law laid down by any Court so far as canvassed by Shri Sen. All the decisions on which Shri Sen relied for his proposition that the detention becomes illegal where the application for revocation is not considered in time are cases where the persons were already in detention. What becomes illegal in such cases is the further detention and not the order of detention itself. The order when passed may be perfectly legal. No supervening circumstance such as the failure to consider an application for revocation will make it retrospectively illegal. No doubt, the expression used in some of the authorities relied upon by Shri Sen is that in such cases the order of detention becomes illegal. We have however no doubt in our mind that what the learned Judges there wanted to convey was that it was the further detention under the orders which became illegal. That is as it should be. Article 21 of the Constitution prohibits the deprivation of the life or personal liberty of a person except, according to procedure established by law. Where a person is already under detention, his further detention except according to the provisions of the law made for the purpose would therefore be bad in law. That is why when there is an infraction of the right of such person under Section 11, further deprivation of his liberty is in breach of the provisions of Article 21 and his detention thereafter becomes illegal. However, this will not be the case where the person making an application for revocation is not under detention. In such a case, there is only an order of detention made against him and he is not yet deprived of his liberty. He will be deprived of his liberty only when the order is enforced against him and he is taken in custody. Therefore, a mere non-consideration of his application for revocation or delay in considering the said application, does not by itself infringe his personal liberty. In such cases it merely threatens to deprive him of his liberty by non-compliance of his statutory right, which right comes into existence only after the order is made and not before it. There is therefore no question of either the detention order itself becoming bad in law on account of the said supervening circumstance or his further detention becoming illegal. All that he can insist upon in such circumstances is that before the order is enforced against him and his personal liberty is taken away, his application for revocation be first decided. In. a case such as the present one where there is no consideration of the application or where there is an unreasonable delay in considering the application, such insistence will be justified. Although therefore we agree with Shri Sen that a person has a statutory right to make an application for revocation even before he surrenders to the detention order, and that there is a corresponding duty cast upon the appropriate Government to consider such application within a reasonable time, we are of the view that in a case where a person is not taken in detention, a mere non-consideration of the application or a delay in considering the same, will not vitiate the order itself. In the present case therefore neither the order not its enforceability has become non-est in law. In the circumstances however it will not be legal to enforce the order unless the petitioner's application for revocation is first considered. All that the petitioner can therefore claim is that before the order is enforced against him, his said application should be considered.
22. The last contention advanced on behalf of the petitioner is that the order of detention is illegal and void ab initio because at the time of the passing of the order, the detaining authority had neither framed nor formulated nor signed the grounds of detention. In this connection, Shri Sen relied upon the averments made in the petition in paragraph 38(a) thereof wherein it has been stated that the impugned order was passed without there being any grounds whatsoever which could entail satisfaction under Section 3(1) of the Act. It is further averred that the grounds are non-existent. In paragraph 38(b) of the petition, it is stated that the grounds on which the order seems to have been passed are stale, irrelevant, vague' and do not constitute grounds as contemplated by the said Section 3 and that on the basis of such purported grounds no reasonable body of persons would have ever come to the conclusion that it was necessary to detain the petitioner. It is also further averred that the order is a product of total non-application of mind on the part of the detaining authority. In reply to these averments, Shri Gavai, the detaining authority has stated in paragraph 2, 3 and 4 of his affidavit as follows :
2...I say that before I passed the said order, I was personally satisfied that with a view to preventing the said Manoharlal Narang from smuggling goods and abetting smuggling of goods it was necessary to pass the detention order against him.
3. I say that my personal satisfaction about the necessity of detaining the petitioner was arrived at by me after 1 had perused the material placed before me in respect of the smuggling activities of the petitioner and after I had applied my mind to the said material. I say that the nature of the prejudicial activities of the petitioner as disclosed by the material placed before me showed that the petitioner was continuing to engage in smuggling activities even during 1973 and 1974. I say that the material which was placed before me was not confined to the two incidents which are subject matter of the two C.B.I, cases pending in New Delhi Courts i.e. Case No. R.C. 17/66 and R.C. 21/66. I say that in addition to the material in respect of the above two cases, I had also material placed before me about smuggling out of India the beautiful antique bronze icon of the famous Shivapuram Natraja Dancing Shiva. It was reported to me that incriminating documents relating to the said idol were recovered from the firm of M/s. Narang Overseas (Pvt.) Ltd. of which at the relevant time the petitioner was a permanent director and his two brothers Ramlal and Om Prakash were the other two permanent directors. I further say that I had also a report with me showing that intelligence available in 1973 and 1974 with the Directorate of Revenue Intelligence indicated that petitioner Manoharlal and his associates continued to indulge in smuggling antiques out of India.
4. I say that I had undergone through the material mentioned above before passing the impugned detention order. 1 say that I had also perused the intelligence reports in respect of the smuggling activities of the petitioner Manoharlal and his associates. I consider it to be against the public interest to disclose the source of the intelligence referred to above and further consider it against public interest to disclose further facts contained in the intelligence reports mentioned above.
23. Since the petitioner had made a specific allegation that there existed no grounds for making the impugned order and that there was a total non-application of mind before the order was passed, it was necessary for the detaining authority to come out in his return, which was filed as late as on the February 8, 1980, i.e. after more than five years of the filing of the petition, with the specific grounds, if any, which weighed on his mind while passing the detention order. Since what weighed with the detaining authority has been reproduced in his own language verbatim as above, it will be clear from a perusal thereof that he had firstly relied upon the two criminal cases being Cases Nos. R.C. 17/66 and R.C. 21/66 which were admittedly in connection with the alleged export of antiques in the . year 1964-65. Secondly, he took into consideration another piece of the alleged activity on the part of the petitioner, viz. the smuggling out of India the beautiful antique bronze icon of the famous Shivapuram Natraja Dancing Shiva. No date of the said incident has been furnished, and therefore, it is not possible to say as to whether it has any proximate or live link with the order of detention. The last material which according to Shri Gavai weighed on his mind was a' report showing 'that intelligence available in 1973 and 1974 with the Directorate of Revenue Intelligence indicated that the petitioner and his associates continued to indulge in smuggling of antiques out of India.' This statement about the so-called intelligence is as vague as it could be and it is impossible for any person to decipher any basic or material fact about the activity of the petitioner from the same. Admittedly, this is the only so-called material that the detaining authority had taken into consideration while passing the impugned order. It must also be remembered that the detaining authority has further claimed a privilege in public interest from disclosing not only the source of the intelligence referred to above but also any 'further facts' contained in the said intelligence reports. Therefore, it is more than clear that even before the Court, the detaining authority is not prepared to disclose or throw light on any fact derived from the said intelligence reports and is not prepared to say anything with regard to the said reports save and except to make the said vague Statement viz. that 'on the basis of the said reports the authority is satisfied that the petitioner and his associates had continued to engage in smuggling activities.
This stand taken by the detaining authority and the respondents is crucial for resolving the controversy raised before us. It is conceded on behalf of the respondents that the immediate cause for the passing of the detention order is the said intelligence reports of 1973-74 and were it not for the said reports the order would not have been passed. The two Criminal Cases Nos. RC 17 and RC 21 of 1966 pending in the New Delhi Courts and the undated incident of the export of the bronze iron of Shivapuram Natraja Dancing Shiva have been relied upon by the detaining authority only to show the past conduct of the petitioner so as to form a live-link with the said 1973-74 intelligence reports. We have therefore to examine the question of the formulation of grounds at the time of the passing of the order only with reference to the said intelligence reports. Since it is not necessary to do so, we have not gone into the further question whether the said past activities have a live-link with the detention order.
24. It is admitted by the respondents that there is no record, even in the form of a note, of the grounds or the basic or material facts on which the detention order was made. According to them, it was not necessary to make any such note or record either before or at the time of passing the detention order. The stage of making such record arrives, according to them, only when the grounds are to be supplied to the detenu after he is arrested. Since the said stage has not arrived in the present case, no such record has yet been made. It was further contended by them that it is sufficient that there exists some material on the basis of which the detention order is made; Although he had not made any such oral submission, at the end of his argument, Shri Kotwal for the State handed over his written submissions in which he has also urged that it is not necessary for the detaining authority to formulate, frame and sign the grounds of detention if the detaining authority wants to disclose and communicate the entire material on the basis of which the necessary subjective satisfaction is reached. It is only in those cases where the detaining authority wants to withhold from disclosure the material as a whole or in part that it is necessary to formulate the grounds and that stage will arise after the person is detained. We may at once state that this written submission is in direct conflict with the statement made by the detaining authority in paragraph 4 of his affidavit which has been quoted verbatim hereinabove. We wish the learned Counsel, before making -the said written submission, had applied his mind to what the detaining authority himself has to say in this behalf. Shri Gavai, the' detaining authority has in terms stated, that he considers it to be against the public interest to disclose 'further facts' contained in the said intelligence reports. The only 'facts' which he has disclosed as pointed out above are that 'he, had received intelligence reports which show that the petitioner and his associates continued to indulge in smuggling of antiques out of India.' If this is so, we are unable to understand as to how Shri Kotwal could contend that in the present case the detaining authority wanted to disclose and communicate the entire material on the basis of which the necessary subjective satisfaction was reached by him. We therefore dismiss this argument of the learned Counsel as being contrary to the facts on record. We will however answer this contention as well as a pure question of law independently of the facts in the present case. Suffice it to say at this stage that the sum and substance of the respondents' contention is that it is not necessary to frame or formulate any grounds or to record basic or material facts either before or simultaneously with the passing of the order and it is sufficient that the authority has some material before it on the basis of which it can pass the order.
25. In order to examine the rival contentions on the point, it is first necessary to refer to the relevant provisions of the Act which are contained in Section 3 thereof and are as follows :
Section 3 : Power to make orders detaining certain persons - (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 purpose of this section by that Government, may, if satisfied, with respect of any person (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 than 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.
(2) When any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order.
(3) For the purposes of Clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order on the grounds on. which the order has been made shall be made as soon as may be after the detention, but ordinarily not latter than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention.
26. Before an order of detention is made under Sub-section (1) above, certain conditions must be fulfilled, viz., (i) that there must be material before the authority; (ii) the authority must apply its mind to the said material; (iii) after the application of its mind, the authority must come to certain conclusions; (iv) the conclusions so arrived at must satisfy the authority that the person concerned is indulging in any of the activities mentioned in the sub-section; and (v) further the authority must also be satisfied that with a view to preventing the person from indulging in the said activities it is necessary to detain him. These conditions in the very nature of things must be fulfilled before or simultaneously with the passing of the detention order and unless these requirements are satisfied no detention order can ever flow. The stage of supplying of the grounds of detention to the detenu comes after the passing of the order and they are to be supplied ordinarily within five days and exceptionally not later than 15 days from the date of detention. The communication of the grounds to the detenu is an independent stage by itself and it cannot be confused with the stage at which the grounds are to be formulated by the detaining authority for the purpose of making the order. It cannot further be disputed that the grounds which will be communicated to the detenu will have to be the same as that on the basis of which the order came to be passed. The precise language in which the grounds are formulated at the two stages may differ but their pith and substance must be the same.
27. The only way open to the Court to find out whether the authority, in fact, had any material before it and whether it had applied its mind to the said material, and had arrived at the grounds for passing the order of detention is to look for the written record of the same. There is no other humanly possible method by which it can be ascertained whether at the time of the passing of the order, the detaining authority had any material before it, whether it had applied its mind to the same and whether after application of its mind, it had arrived at the grounds on which the detention order came to be passed. It is therefore expected in the ordinary course that the detaining authority will make a record of the grounds at the time or before the passing of the order. It is no answer to the query in this behalf that the detaining authority may have the said grounds in mind at the time the order is made, but it may defer their reduction to writing to a later stage. To entertain such argument is to negative the very safeguards which have been evolved by the Courts to ensure a strict compliance with the provisions of the law of detention. It is only by insisting upon such written record made simultaneously with or before passing of the order, that the Courts can ensure and satisfy themselves that there was a compliance with the provisions of law under which the order was made. It should further not be forgotten that such insistence is necessary also to ensure that there is no breach of Article 21 of the Constitution. Article 21 requires that the detention order must be made in strict compliance of the provisions of the law of detention. Section 3(1) of the Act read with Article 21 therefore implies, in terms, that the Courts will ensure by a satisfactory proof in that behalf that the grounds on which the order is made, existed at the time of making the order. This is exactly what has been stated in the following authorities. Krishna Murari Aggarwala v. Union of India : 1975CriLJ1648 . This was a case under the Maintenance of Internal Security Act. The facts were that the permanent District Magistrate one Arora had gone on leave from October 21, 1974 to November 11, 1974 and had rejoined his duties on November 12, 1974. During his absence one -Mathur officiated as District Magistrate and passed the impugned order of detention. In his affidavit before the High Court, Mathur asserted that he had passed the order after satisfying himself of the grounds of detention. However, in his affidavit filed in the Supreme Court he averred that the order of detention was passed by the detaining authorities jointly i.e. by himself and the said Arora after satisfying themselves of the existence of grounds. On these facts, the Supreme Court observed as follows :
It is true that the Court cannot go behind the subjective satisfaction of the detaining authority, but such satisfaction does not confer a blanket power which may authorise the detaining authority to act in a ruthless or arbitrary fashion and the judicial decisions have undoubtedly carved out an area, though limited, within which the subjective satisfaction of the detaining authority can be tested on the touchstone of objectivity. It is obvious that the subjective satisfaction of the detaining authority is a- sine qua non for the exercise of power of detention and it has got to be exercised properly and discreetly....In the instant case, in view of the contradictory stand taken by the detaining authorities, we are satisfied that the exercise of jurisdiction to detain the petitioner has not been made with due care and caution or in a proper and fair manner. On this ground also the order of detention stands vitiated.
28. After quoting the provisions of Section 3(1) of the Act, the Court further observed :
This power can also be exercised by the officers mentioned in Sub-section (2), and -in the instant case we are concerned with the District Magistrate. 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) 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. In the instant case the original order of detention passed by Mr. S.K.D. Mathur bears his signature and even the grounds mentioned bear his signature. In these circumstances we are unable to accept the affidavit of Mr. S.K.D. Mathur that the grounds framed by him were merely draft grounds prepared by him which were signed by the permanent District Magistrate later. It is obvious that 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 could be passed only if the grounds are in existence and are prepared contemporaneously other wise the order of detention becomes purely illusory. In view, however, of the contradictory affidavits given by Mr. S.K.D. Mathur, it is difficult to determine whether Mr. S.K.D. Mathur or Mr. R.C. Arora passed the order of detention and as to who among them was satisfied regarding the grounds of detention. This is also a very serious infirmity from which the order of detention suffers and as a result of which the order has to be set aside. There appears to us to be a clear violation of the provisions of Section 3 of the Act in this case.
(Underlining ours) [herein indicated in italics - Editor].
29. We may in this connection next refer to a decision of the Supreme Court in The State of Bombay v. Atma Ram Shridhar Vaidya : 1951CriLJ373 , which has been relied upon by both sides in support of their rival contentions. This is one of the earliest cases under the Preventive Detention Act, 1950 and the precise controversy which was before the Court related to the powers of the detaining authority to supply additional facts or grounds as contended by the respective parties after the grounds were already supplied as required by Section 3 of that Act read with Article 22(5) of the Constitution. It is while dealing with this specific controversy that the Court has made certain observations which have a bearing on the question that has fallen for consideration before us, namely; what it is exactly that an authority is required to do before the authority makes or passes the detention order. In paragraph 5 of the decision, the learned Chief Justice has stated that according to the wording of Section 3 of that Act, before the Government can pass an order of preventive detention, it must be satisfied with respect to the individual person that his activities are directly against one or other of the three objects mentioned in that section and that the detaining authority was satisfied that it was necessary to prevent him from acting in such a manner. The satisfaction of the Government, however, must be based on some grounds. There can be no satisfaction if there are no grounds for the same. Whether in a particular case the grounds are sufficient or not is not for the Court to decide since this is a matter for the subjective decision of the detaining authority. Thereafter, in paragraph 7, the Court deals with the question as to what should be stated in the grounds and answers as follows : (at pp. 442, 443 of 53 Bom. L.R. 437) :.It is obvious that the grounds for making the order...are the grounds on which the detaining authority was satisfied that it was necessary to make the order. These grounds, therefore, must be in existence when the order is made. By their very nature the grounds are conclusions of facts and not a complete detailed recital of all the facts. The conclusions drawn from the available facts will show in which of the three categories of prejudicial acts the suspected activity of the particular person is considered to fall. These conclusions are the 'grounds' and they must be supplied. No part of such 'grounds' can be held back nor can any more 'grounds' be added thereto. What must be supplied are the 'grounds on which the order has been made'...It is therefore clear that if the representation has to be intelligible to meet the charges contained in the grounds, the information conveyed to the detained person, must be sufficient to attain that object. Ordinarily, the 'grounds' in the sense of conclusions drawn by the authorities will indicate the kind of prejudicial act the detenu is suspected of being engaged in and that will be sufficient to enable him to make a representation setting out his innocent activities to dispel the suspicion against him.
(Underlining ours), [herein indicated in italics - Ed.].
30. In paragraph 8 of the judgment the Court then dealt with Clause (5) of Article 22 of the Constitution and stated as follows (at p. 443 of 53 Bom. L.R. 437) :.One thing is clear from the wording of this clause and that is that after the grounds are once conveyed to the detenu there can be no addition to the grounds. The grounds being the heads, from which the Government was satisfied that it was necessary to pass the order of detention, there can be no addition to those grounds because such additional grounds will be either the grounds which were not elements to bring about the satisfaction of the Government or if they were such grounds there has been a breach of the provision of the first part of Article 22(5), as those grounds for the order of detention were not conveyed to the detained person 'as soon as may be.
31. The Court then observes in paragraph 9 of the. judgment as follows (at pp. M3, m of 53 Bom. L.R. 7) :
This however, does not mean that all facts leading to the conclusion mentioned in the grounds must be conveyed to the detained person at the same time the grounds are conveyed to him. The facts on which the conclusion mentioned in the grounds are based must be available to the Government, but there may be cases where there is delay or difficulty in collecting the exact date or it may not be convenient to set out all the facts in the first communication. If the second communication contains no further conclusion of fact from facts, but only furnishes all or some of the facts on which the first mentioned conclusion was founded, it is obvious that no fresh ground for which the order of detention was made is being furnished to the detained person by the second communication which follows some time after the first communication. As regards the contents of that communication, therefore, the test appears to be whether what is conveyed in the second communication is a statement of facts or events, .which facts or events are already taken into consideration in arriving at the conclusion included in the ground already supplied. If the later communication contains facts leading to a conclusion which is outside the ground first supplied, the same cannot be looked into as supporting the order of detention and therefore those grounds are 'new' grounds. In our opinion that is the more appropriate expression to be used. The expression 'additional grounds' seems likely to lead to confusion of thought.
(Underlining ours), [herein indicated in italics - Editor].
32. Thereafter, the Court proceeds to deal with the precise controversy which was before it, nemely, where a second communication of grounds becomes necessary for furnishing further or detailed facts, what is the point of time when it should be furnished and what should be the nature of the communication so made the second time,' and the Court holds that the second communication cannot contain additional grounds, but can only contain facts in support of the grounds which were earlier supplied to the detenu, which incidentally cannot be other than the grounds on which the detention order was made. As regards the point of time at which the second communication is to be sent to the detenu with which question we are really not concerned, the Court has stated that the time element is necessarily left indeterminate because activities of individuals tending to bring about a certain result may be spread over a long or a short period, or a larger or a smaller area, or may be in connection with a few or numerous individuals. The time required to formulate the proper grounds of detention on information received, is bound to vary in individual cases. It is thus while dealing with the question of making the second communication and formulating the 'proper grounds' at that time, that the Court has held as above, viz. that the time required for such purpose may vary in individual cases. However, it was vehemently contended by Shri Kotwal on behalf of the State that these observations made in paragraph 10 of the judgment show not only that the detaining authority need not frame or formulate grounds at the time of the passing of the detention order, but it can take its own time to do so, after the order is made and before the grounds are supplied to the detenu. It is therefore obvious that the reliance placed by the learned Counsel on the said observations containing in para 10, in support of his proposition is thoroughly misplaced. In the first instance, as pointed out above, the discussion relates to the sending of a second communication to the detenu. It has no bearing either on the first communication of the grounds or on the stage the detention order is made. Secondly, what the Court wanted to imply by the terms 'grounds' has been sufficiently explained in paragraphs 7, 8 and 9 as pointed out earlier. The expression 'proper grounds' contained in the said paragraph 10 is not synonymous with the expression 'grounds' used by the Court in the earlier paragraphs, where the Court wanted specifically to explain the term 'grounds' and what should be stated in such 'grounds'. The aforesaid expression 'proper grounds' in paragraph 10 is used in a loose sense to include the further and detailed facts in support of the grounds on which the detention order is made and which grounds were communicated to the detenu by the first communication. The said observation in paragraph 10 of the said judgment, therefore, cannot in the nature of things, be available to the respondents to contend that .thereby the Court purported to lay down that the grounds can be framed, or formulated after the detention order is made and before the same are communicated to the detenu. This is made further clear by observations made by the Court a little later in the very same paragraph 10 of the judgment which are as follows (at p. 444 of 53 Bom. L.R. 437) :.While the grounds of detention are thus the main factors on which the subjective decision of the Government is based, other materials on which the conclusions in the grounds are founded could and should equally be conveyed to the detained person to enable him to make out his objections against the other. To put it in other words, the detaining authority has made its decision and passed its order. The detained person is then given an opportunity to urge his objections which in cases of preventive detention comes always at a later stage. The grounds may have been considered sufficient by the Government to pass its judgment. But to enable the detained person to make his representation against the order, further details may be furnished to him. In our opinion, this appears to be the true measure of the procedural rights of the detained person under Article 22(5).
33. We are therefore more than satisfied that there is no conflict between this decision and the later decision discussed above. The Court has taken a consistent view with regard to the contents of 'grounds' which are required to be in existence before the detention order is made and which are required to be communicated to the detenu after it is made. The grounds must be the conclusions or decisions arrived at by the detaining authority after scanning the material before it and the said grounds must point and relate to the activities for the prevention of which the detention order is required to be made. By their very nature the grounds must include the primary or basic facts indicating the .nature of activities indulged in by the person sought to be detained. The grounds cannot merely state that the authority is satisfied that the person concerned has been indulging in one or the other prejudicial activity and is likely to do so in future. A bare statement of that kind can never be a ground of detention and such a statement can be made without there being any material before the detaining authority. The Courts have also insisted upon the most elementary safeguard before the detention order is made, namely, the authority should have material before it from which it could come to the conclusion that the person concerned has indulged in one or more prejudicial activity. Unless such conclusions are drawn from the available facts on record, there is no power to pass a detention order against the person concerned,
34. A good deal of debate was then raised before us as to what exactly is meant by 'grounds' and whether it is not sufficient that at the time of passing the order the detaining authority had material before it from which the grounds could be deduced later. The argument on behalf of the respondents was that if the detaining authority had before it the necessary material at the time of the passing of the order, from which material grounds can be made out later to support the order, it cannot firstly be said that the grounds were not in existence at the time of making the order and secondly it will dispense with the requirement of recording such grounds at the time of passing the order. The argument though attractive is fallacious. It is not any material but only such material which spells out detention-prone activities which should be taken into consideration by the authority. There may be a mass of material relevant, irrelevant and innocuous before the authority. In the absence of the record of the conclusions drawn from such material, it will not be possible to know which of the material was taken into consideration by the authority. In fact, it-will be difficult to find out whether the authority had at all applied its mind to any of the material, before passing the order. Further, the satisfaction being subjective, one authority on the same material may come to one conclusion while the other may draw a different inference. The requirement of law, properly construed, therefore enjoins scanning of the entire material, sifting the relevant from the irrelevant and drawing of conclusions spelling out the prejudicial activity, to prevent a person from engaging in which, the detention order is made. The only guarantee, that the authority has in fact gone through this process and has not passed the order casually, is the record of his such conclusions. The satisfaction of the authority is to be based on such conclusions. The mere existence of material however weighty, will not by itself indicate that the authority had reached the requisite satisfaction before passing the order. We have therefore no hesitation in rejecting this contention.
35. It should also be clear from the above discussion 'that the word 'ground' or 'grounds' in this context is not synonymous with the material on which or from which the 'ground' or 'grounds' are deduced. The 'ground' or 'grounds' are conclusions from the material. These conclusions again are not to be confused with the ipse dixit of the authority. The conclusions on the other hand are the basic or material facts constituting the detention-prone activity.
36. In State of Bombay v. Atma Ram referred to herein above the meaning of the expression 'ground' has been made clear by the Court and we have already reproduced the relevant discussion, although in a different context. We may in addition refer to two authorities where the said expression fell to be considered. In Khudiram Das v. The State of West Bengal : 2SCR832 , the Supreme Court has explained what is meant by the 'grounds' referred to under Article 22(5) of the Constitution which Article is to be read as being superimposed on any law of detention, and therefore, also in the present enactment. The Court has stated that the 'grounds' under Article 22(5) mean all the basic facts and materials which have been taken into account by the detaining authority in making the order of detention. Nothing less than all the basic facts and materials which influence the detaining authority in making the order of detention must be communicated to the detenu. That is the plain requirement of the first safeguard in Article 22(5).
37. In Vakil Singh v. State of Jammu & Kashmir : 1975CriLJ7 , which was again a case under the Maintenance of Internal Security Act, the question which fell for .consideration was what was exactly meant by the term 'grounds' in Section 8 hereof. The Court held that the 'grounds' within the contemplation of Section 8(1) means 'materials' on which the order of detention is primarily based. Apart from conclusions of facts 'grounds' have a factual constituent also. They must contain the pith and substance of primary facts but not subsidiary facts or evidential details. On the facts of that case the Supreme Court held that the grounds furnished to the detenu contained sufficient facts to enable the detenu to make a effective representation.
38. Shri Kotwal relied upon an unreported decision of the Division Bench of this Court in Ramlal Narang v. Commissioner of Police, Greater Bombay (1974) Cr. Appln. No. 847 of 1974 decided on December 4, 1974 by Division Bench of Bombay High Court (Unrep.). He pointed out that the facts in that case were pari materia with the facts of the present case and the very same grounds on which the detention order is made in the present case, were the grounds on which the impugned order was made in that case. In fact, he pointed out that that case related to the brother of the present petitioner. He also further pointed out that the Division Bench in that case has in terms held that the grounds were not vague or belated and that the claim of privilege against any further disclosure of the facts in relation to the 1973 and 1974 intelligence reports was not considered either malafide or arbitrary or capriciously. We have gone through the entire judgment and we find that the said decision is distinguishable for the following reasons. In the first instance, the contention which has been raised before us was not raised before the Division Bench. What is contended before us is that at the time of making the detention order there were no grounds in existence and if there were any, there is nothing on record to show it. As against this, what was contended before the Division Bench was that the privilege claimed against the further disclosure of grounds was capricious, malafide and arbitrary. It is while dealing with this contention that the Division Bench there held that there was no material from which it could be inferred that the claim or privilege was malafide or arbitrary or capricious. Secondly, the said decision turned upon the facts and the contentions raised in that case and it cannot be read as laying down a proposition of law as is contended on behalf of the respondents. This is more so in view of the aforesaid decisions of the Supreme Court. We may in this connection point out that the decisions which were relied upon in the said case by the Division Bench, namely; : 1956CriLJ935 and A.I.R. 1958 S.C. 1963 do not support the proposition which is sought to be canvassed '.before us on behalf of the respondents. The facts in the said decisions show that the grounds which were formulated or framed contained sufficient basic or material facts to enable the detenu to make an effective representation. An attempt was thereafter made to rely upon a decision of another Division Bench of this Court, namely, Kutubuddin's case (1978) Cr. Appln. No. 419 of 1978 (Bom.) decided on September 19, 1978 (Unrep.) decided on September 19, 1978. A perusal of the facts in this case also shows that the grounds communicated contained sufficient basic facts or materials.
39. Our conclusions therefore are as follows. The grounds are the conclusions drawn from the material on record. They consist of the primary or basic facts indicating the nature of the activity engaged in by the person concerned. Although the grounds need not contain the subsidiary or ancillary facts and the details and particulars of the prejudicial activity, they must contain material facts constituting or spelling out the alleged activity. The grounds are not the ipse dixit statement of the authority that it is satisfied that the person concerned his indulged in a prejudicial activity. The grounds must contain the constituent facts indicating such activity. No privilege under Clause (6) of Article 22 of the Constitution can be claimed for withholding such bare facts constituting the ground. The said privilege is available to be claimed against the disclosure of facts other than such basic facts. The absence of such basic facts is the absence of 'grounds' within the meaning of Section 3 of the COFEPOSA Act read with Article 22 of the Constitution. Hence no order of detention can be made in their absence.
40. The basic facts or grounds must exist at the time the detention order is made. An absence of the grounds at the time of making the order renders the order aft initio void being in contravention of Section 3(1) of the Act read with arts; 21, 14 and 19 of the Constitution. The detaining authority must make a written record of such facts or grounds at the time of or before making the order. That is the most elementary safeguard to ensure that the order has been passed in compliance with the aforesaid provisions of law and to prevent an arbitrary, casual and capricious use of the abnormal and otherwise absolute power. An absence of such written record will therefore be fatal to the order.
41. As has been pointed out earlier, in the present case the only material the detaining authority thought it fit to disclose to this Court with reference to the intelligence reports, was that the said reports indicated that the petitioner and his associates continued to indulge in smuggling antiques out of India. Beyond making this bare statement, the detaining authority refused to say anything further and, in fact, claimed a privilege by stating that it was against public interest to disclose 'further facts' contained in the said reports. This is therefore a case where the detaining authority, far from disclosing any 'grounds' as discussed above, has remained contended by asserting his ipse dixit. No grounds whatsoever existed or are shown to have existed at the time of passing the order. Shri Kotwal, as stated earlier, in fact conceded that no written record- of the grounds was made at the time of passing the order.
42. After the respondents completed their reply and just before the petitioner's counsel rose to rejoin, Shri Kotwal, the learned Counsel for the State, applied orally for tendering an affidavit of the detaining authority showing the facts which were taken into consideration by the detaining authority before passing the impugned order. We did not permit him to do so at that belated stage. It must be remembered in this connection that this petition was filed as early as on the 15th October 1975. More than five years thereafter, the respondents filed their returns and in fact the detaining authority whose additional affidavit is now sought to be tendered had filed his return as late as on February 8, 1980. We have already quoted in extenso from the said return showing how even in this return the detaining authority has disclosed no grounds whatsoever for passing the impugned order. In fact, as pointed out earlier in this return not only no light has been thrown on the grounds or the basic or primary facts relating to the petitioner's activities, but he has claimed a privilege from diseasing any facts whatsoever. The whole gamut of the arguments proceeded on the basis of this stand taken by the detaining authority, and as stated earlier, the hearing in this case lasted a few days. It was therefore highly unfair both to the petitioner as well as to the Court that the respondent-State should come out at that stage with the so-called material on the basis of which the detaining authority had decided to pass the impugned order. If we had allowed the State to tender the said affidavit, it would have necessitated the adjournment of the hearing of the case at this stage to enable the petitioner to file his reply to the said affidavit. Secondly, in view of the admitted position that the detaining authority had not made a contemporaneous record of the grounds, and in view of what we have held above on this point, this exercise would have been unnecessary. We are further constrained to observe that the attitude displayed on behalf of the State in this case has throughout been unsatisfactory and not above reproach. The State appeared to be bent on delaying the hearing of this petition for reasons best known to them.
43. Thus we find that the impugned order of detention has been made by the detaining authority without there being any grounds for making the order. The petitioner is therefore entitled to succeed in the petition on this ground. We therefore quash the impugned order of detention dated January 31, 1975 and make the Rule absolute in terms of prayer (a). In the circumstances of the case, there will be no order as to costs.
44. As regards the Criminal Revision Application No. 23. of 1980, in view of the quashing of the order of detention as above, the revision application will not survive, and hence the Rule granted therein is discharged. At the time of granting the Rule, the Court had also stayed the execution and operation of the order dated November 19, 1979 passed by the Chief Metropolitan Magistrate. The said stay order therefore stands vacated.
45. On the request of Shri Kotwal, the learned Counsel for the State, however, the stay of the said order dated November 19, 1979 passed by the Chief Metropolitan Magistrate is extended for four weeks from today to enable the State to approach the higher Court against this order.