N. Arumugham, J.
1. Through filing this writ of Habeas Corpus under Article 226 of the Constitution of India, the petitioner, who is the sister of the detenu, by name, Mr. Bham Faisal Gulam Mohammed, detained by the order of detention passed vide No. SPL. 3(A)/PSA/89 dated 24-2-1998 by the 2nd respondent. Mr. G.S. Sandhu -, Secretary to the Government of Maharashtra, Home Department (Preventive Detention), Mantralaya, Mumbai-400 032, under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (52 of 1974) seeks to challenge the same for illegality and impropriety alleged. The order of detention, grounds of detention and copies of the documents relied on by the detaining authority totalling 57 in number, all the three shown in Annexures 'A ', 'B' and 'C', respectively of the compilation, were seemed to have been served upon the detenu on 24-2-1998, on the same day simultaneously.
2. The prejudicial activities, grounded in the grounds of detention shown in Annexure 'B', in substratum, are extracted hereunder:-
The officers of Air Intelligence Unit at Module I, Department, on 10-8-1997, intercepted one passenger by name Mr. Bham Faisal Gulam Mohammed, who is the detenu herein holding Indian Passport bearing No. A-3491330 issued at Ahmedabad on 30-6-1997 valid till 7-2-1998 and also one old passport bearing No. L-2059599 issued at Bombay in his name on 8-2-1998. The detenu, at that time, was found holding a Cathey Pacific Airline passenger's ticket issued in his name for the Flight No. CX-750 dated 10-8-1997 B.K.K. for the sector Mumbai-Bangkok boarding No. 0281. Seat No. 31 H, vide ticket No. 6296:077:461:2 issued on 1-8-1997 and an open ticket bearing No. 6296:077:462:3 issued by Cathey Pacific for the sector Bangkok to Yangon. On enquiry it was revealed that he had checked in one dark blue zipper suitcase bearing No. C.X-437726. The spot interrogation with him and the scrutiny of travel document and passport created suspicion and that therefore a detailed examination of the suitcase in the presence of panchas, showed that in a false cavity in the bottom of the suitcase he had concealed one cardboard rectangular shaped packet. The examination thereof revealed the recovery of 90 polyethylene packets of cut and polished diamond of different shapes and colours which were valued by Government approved valuer at Rs. 2,43,63,096.25 I.M.V and the same were seized in the reasonable belief that they were to be smuggled out of India and hence liable for confiscation under the provisions of the Customs Act, 1962. The dark blue suitcase, the rectangular packet which contained the polyethylene bag with diamonds, the lock and key which were used to lock and open the said suitcase and the Cathey Pacific Airlines security seal, were also seized as Court exhibits under the provisions of the Customs Act, 1962, after returning the personal belongings to the detenu. During investigation, the resident of one Mr. Hameed Farook at 20, Nafis Chamber, 5th floor, G.P.O., L.T. Road, Bombay-400 001 was searched which resulted in seizure of diamonds of various weights containing packets SR. No. 1 to 10 which were later valued at Rs. 2,24,575.15 and cash of Rs. 25,000/- under a panchanama dated 10-8-1997 with the reasonable belief that they were the part of the consignment of the diamonds and other previous stones which were earlier seized at Mumbai, Sahar Airport on 10-8-1997 from him at the time when he was about to depart to Bangkok by Flight No. CX-750 dated 10-8-97. The seized diamonds from Sr. No. 1 to Sr. No. 10 (under panchanama dated 10-8-97) was valued by the Government valuer at Rs. 2,24,575.15 under panchanama dated 10.8.1997 at A.I.U. Office, Module II, N.I.P.T, Sahar Airport, Mumbai.
3. Then the premises at St. Andrews Apartments. B-12, 1st Floor, M. Setti Marg. Mumbai-400 008 were searched on the same day. Mr. Mohammed Bhai Hussain was not available. The search resulted in the seizure of Tamita Diamond weighing scale, lense, diamond picking forcep, steel-trays, papers used for wrapping diamonds, visiting cards, photograph of Shri Mohamood Hussain, Maroon Colour Diary. Zerox copy of ration card, three telephones bills and electric bill and society bill under a panchanama dated 10-8-1997 (Sr. No. 1 to 14) with the belief that these items would be used in the enquiry proceedings of this case.
4. The residence at Room No. 525, 5th floor, Panchratna building, Opera House, Mumbai-400 004 of Shri Rajesh Sacheti @ Vicky, Proprietor of M/s. Jupitar Enterprises was searched on 11-8-1997 which resulted in recovery of 54 packets of diamonds for which he could not produce any document except 12 numbers of Jangadh approved vouchers kept along with 36 packets. The above 54 packets of diamonds were taken over for further investigation in connection with the diamonds seized at Sahar International Airport on 10-8-1997 from him. Later on 20-8-1997 the said 54 packets taken over were valued at Rs. 54,71,068.75 by Appraisers and Trade Panel Members of Diamond Plaza.
5. The search of the premises No. B/13, Sikkanagar, V.P. Road, Mumbai- 400 004, was conducted on 11-8-1997. Mr. Pramod was not available at the premises, but Mr. Pravinchandra Haridas Jogi was available. During the course of the search, a person, by name, Mr. Mohammed Salim Abdul Hameed brought Rs. 15,99,000/- to be handed over to Mr. Pramod. The search resulted in recovery of Rs. 15,99,000/- under the reasonable belief that it may be the sale proceeds of the diamonds seized and documents: (1) Super Delux Note Book - pages 1 to 82; (2) Super delux note book page 1 to 140 and (3) Loose note sheets Sr. Nos. 1 to 42 duly signed by the panchas were also seized.
6. In the statement dated 10-8-1997 recorded under section 108 of the Customs Act, 1962, the detenu has stated, inter alia, that he was unemployed and helped his father Mr. Gulam Mohammed Kasim Bham, who had given him money to purchase air ticket (Cathey Pacific C.X-750) for Bombay Bangkok - Bombay and Bangkok - Yangon - Bangkok and he did so on 8-8-97 for the flight C.X-750 dated 10-8-97 at 5.00 hrs and his father at the time of departure handed over a zipper bag and informed him that there were diamonds concealed inside a false cavity in the bottom of the suitcase and he had to deliver them at Bangkok and Yangon. He was instructed by his father that all diamonds, except 11 packets (one packet 'R 11' marking and Ten packets with marking 'R'), were to be handed over to one Mr. Zubair Bhat at Bangkok after contacting him over the phone (Phone No. 2333303) and the balance 11 packets, as stated above were to be handed over to Mr. Shah Ajay Rashiklal at Yangon after verifying the Passport No. M-893676, date of birth : 15-10-1970. Date of Issue: 14-12-1992 and Telephone No. 294399 and 396906. He further stated that he knew Mr. Zubair Bhai as he was introduced by his father during his visit to Bangkok with family in the end of 1994 and stated further that on 20-12-1996 as per his father's instructions, he had smuggled similar quantity of diamonds and handed over to Mr. Zubair Bhai at Bangkok, except four to five packets which were handed over to one Ganesh at Yangon after verifying the number of a five rupee note as per the number given to him by his father having the name of the person, passport, particulars and telephone number which he does not remember except the fact that the so called person was a Gujarathi. He further stated that he was surrendering the Passport No. A- 3491330 issued on 30-6-1997 and Passport No. E- 205399 issued on 8-2-1988, he further stated that his father informed him that a part of the diamonds belonged to one Mr. Farook Bhai having Telephone No. 2679198 and a part belonged to Mr. Mehmood Bhai and Mr. Noohu. The detenu also admitted that he knew that the carrying of diamonds out of India without proper documents is a punishable offence under the Customs Act and he did so only to help his father in smuggling.
7. Mr. Hameed Farook in his statement dated 10-8-1997 recorded under section 108 of the Customs Act, inter alia, stated that he had previously sent, on two occasions, illegal consignments to Hongkong through his father, to be handed over to a company by name 'Ahmed & Co.' owned by Shri Sayyed B. Com. at Bangkok, and he has further stated that these diamonds were purchased from the traders at Surat. He confirmed that he had given (41) packets with markings such as S.B.B packets; P.J.R-13 packets; PT-8 packets; P.D-1 and D.M. - 11 packets to his father Babu Bhai (Shri Gulam Mohammed Kasim Bham) to be illegally smuggled out of India and to be handed over to Shri Deen and Shri Zuber of 'Adnaan' International at Bangkok and these diamonds were purchased from Shri Pramod having phone number 9820082903 and Shri Vicky having phone No. 3633093. He stated that Rs. 25,000/- Indian Currency seized, were the part of the sale proceeds of the part of diamonds seized.
8. Mr. Rajesh Sacheti @ Vicky in his statement, on 11-8-1997, has stated that out of 54 packets of diamonds seized only 36 packets were wrapped in different Jangadh which were containing details of 51 packets of diamonds and the remaining 3 packets were not covered under Jangadh. He has further stated that he knew Mr. Hameed Farook through business/trade relations for the past 1.1/2 months and he had supplied 25 days back 100 carets valuing 3.50 lakhs for which he had already received payments and on 9-8-1997, he had supplied 400 carets for which he is yet to receive payments. Rajesh Sacheti @ Vicky in his further statement stated that he had given 400 carets of diamonds to Shri Hameed Farook without any markings end he had purchased these diamonds through different brokers who did not have any permanent office and also dealt on commission basis of 1% of the value of diamonds. Regarding the 54 packets he had confirmed that they were procured from different companies through different brokers who did not have any office or shop and were meant for different buyers who had earlier required them.
9. Mr. Pravinchandra Haridas Jogi in his statement recorded on 12-8-1997, under section 108 of the Customs Act, 1962, interalia, has stated that his brother Mr. Dinakarbhai Jogi also resides with him and his son Kaushikbhai D. Jogi is in Bangkok and is engaged in Diamond business; and that Mr. Pramodbhai Amritlal Ashra is his nephew and is associated with them in their diamond business. He further clarified that the documents seized under panchanama dated 11-8-1997 were written and maintained by his brothers and these were the dealings between his brother and his son and he also stated that he does not know Mr. Mohammed Salim Abdul Hameed who brought Indian currency equivalent to Rs. 15,99,000/- to his residence to hand over to Shri Pramodbhai Ashra.
10. Mr. Mohammed Salim Abdul Hameed in his statement dated 12-8-1997, under section 108 of the Customs Act, interalia, stated that he went to Mr. Ajmeri's office at Karakna near Mumbadevi Temple in diamond market on 11-8-1997 and he was asked to hand over the money, around 16 lacs to Mr. Pramod for which he would be paid Rs. 500/-. He further stated that during June he was handed over 2 lacs to Mr. Pramod and he used to bring electronic goods from various parties in Mumbai to Ajmeri for a compensation of Rs. 50/- per day. Mr. Mohammed Salim Abdul Hameed stated that he does not know the profession of Mr. Pramod and he was told by Ajmeri that he deals in electronic goods; office of Mr. Ajmeri is situated in a gali between hotel Sadanand and hotel Firdaus, opp. Man Masjid on the 1st floor in the Crawford market area and the entrance is through the stairs adjacent to a barber's shop. On reaching, the said place was found locked and one in the neighbourhood could identify the said Mr. Ajmeri.
11. The letter of the detenu dated 10-10-1997 revealed that his father was not concerned in the case alleged against him and the detenu has stated that he involved his father in the earlier statement due to coercive action and his father was not a part of the conspiracy alleged in the remand application moved before the Court. However, on verification of the diaries seized vide panchanama dated 11-8-1997 from the residence of Mr. Pravinchandra Haridas Jogi, it is revealed that there are in all various transactions in the last many years worth many crores of rupees with codes, names and figures. However, from the diaries it is seen that there are transactions totally over 50 lacs each in the last few months in the name of Chhaganlal. Pratap Bhai, Yogesh Bhai, Ajmeri, Mukesh Bhai and Noohu besides many more transactions of over 2 to 5 lacs each with Vinodbhai, Pradeepbhai, Pramodbhai, Prakash, Haribhai, Kaushik Bhai, Praveen, Preeti, Danjibhai and Rajeev Bhai and others.
12. Inspite of repeated summons issued to Mohammed Hussain, Dinakar Haridas Jogi, Pramod Bhai, Ashra, so far they have not come forward to give the statements or to clarify the further details or extend their co-operation in the investigation. However, summons could not be served to Mr. Ajmeri as the said place was found locked inspite of various attempts.
13. From the records, it appears that Mr. Dinakarbhai Jogi is the king pin and along with Mr. Pramod, Ajmeri and Noohu are the main financers and organisers of the smuggling activities.
14. The detenu and Hameed Farooq were arrested on 10-8-1997 and Rajesh Sacheti @ Vicky was arrested on 12-8-1997 under section 104 of the Customs Act, 1962 and produced before the Additional Chief Metropolitan Magistrate, who remanded them to judicial custody which was extended from time to time. He has filed the application for interim bail/retraction before the Hon'ble Additional Chief Metropolitan Magistrate, Esplanade, Mumbai on 13-8-1997 and application for bail on 4-9-1997. Application for bail has been filed in the High Court being Cri. Application No. 2274/97, and the High Court granted bail to Hameed Farooq on certain conditions, and he availed of it on 1-9-1997. The detenu was ordered to be released on bail with certain condition on 4-9-1997 and the detenu availed of it on 4-9-1997. Additional Chief Metropolitan Magistrate also granted bail to Rajesh Sacheti.
15. Having taken into consideration of all the prejudicial activities above mentioned and the materials placed along with the bail application, though the detaining authority has denied the retraction on the allegations contained in the retraction as clearly an after thought and satisfied that the prejudicial activities committed by the detenu along with the collaboration of others and arrived at the subjective satisfaction to the effect that his activities committed already have been proved nearly prejudicial to the maintenance of the relevant provisions of the COFEPOSA and that therefore after giving all the statutory warnings and the intimations as contemplated by the constitutional mandates, has passed the impugned order of detention by virtue to section 3 of the COFEPOSA read with Article 22(5) of the Constitution of India, on 24-2-1998, and this order of detention passed against the detenu is being challenged by the sister of the detenu as above referred.
16. Mr. G.S. Sandhti, Secretary to the Government of Maharashtra, Home Department (Preventive Detention) and Detaining Authority, Mantralaya, Mumbai and also Mr. B.S. Wankhede, Desk Officer, Home Department (Special), Government of Maharashtra, Mantralaya, Mumbai, and Mr. Malkit Singh, Assistant Commissioner of Customs. COFEPOSA Cell, Sahar Airport, Mumbai-400 099, as being the sponsoring authority, have also filed their detailed sworn affidavits/returns respectively denying and counteracting each and every one of the contentions/grounds made on behalf of the detenu by, however, justifying the impugned order of detention clamped against the detenu.
17. We have heard the rival submissions on behalf of the respective parties from the Bar.
18. Mr. Shirish Gupte, learned Counsel appearing for and on behalf of the writ petitioner, has dwelt his attack upon the impugned order of detention, in the instant case, on the following three main grounds amongst other grounds raised in the writ petition itself.
19. (1) The impugned order of detention passed in the instant case by the 2nd respondent - detaining authority - has become vitiated for non-application of mind, that is to say, a show cause notice dated 6-2-1998 giving all substratum of the contentions and grounds made by the detaining authority in the said show cause notice, though was issued to the detenu and called for an explanation, the same, however, has not been conspicuously and consistently placed before the detaining authority on the date of the impugned order of detention was passed and that however, non-placement of the said show cause notice, since it occupies a very prominent and important document and contents of the same are very vital in its nature, would become fatal to the impugned order of detention clamped against the detenu and that the explanation offered by the detaining authority or the sponsoring authority in their respective affidavits to that respect, cannot at all be accepted and that therefore upon this ground alone the impugned order of detention has become vitiated;
(2) The sponsoring authority, though during the time of searches made while investigating the case in hand, recovered the diaries containing relevant entries depicting various transactions which transpired between the smugglers inter-se and upon the basis of which the detaining authority has formulated the contents paragraphs 13 and 14 of the grounds of detention, has not furnished the copies of the said document to the detenu and that therefore the said non-furnishing of the copies, has deprived the detenu to make an effective and efficacious representation to the authorities concerned and that therefore the impugned order of detention would come clearly within the teeth of Article 22(5) of the Constitution of India and on this ground also the impugned order became vulnerable and to be set aside; and
(3) the intercepting the detenu and the recoveries and searches made on 10-8-1997 and the investigation thereof consequently were over within a short span of time since the impugned order of detention was passed on 24-2-1998, there was an inordinate and unexplained delay in passing the detention order to the extent of about six months and that the above delay has remained unexplained and not adequately explained. The said aspect would snap the very existing of the nexus between prejudicial activities and the clamping of the detention order and that therefore the impugned order of detention, on this ground, also would become vitiated.
20. Mrs. V.K. Tahilramani, learned Public Prosecutor appearing for the respondents, challenged the above three contentions of the learned Counsel for the petitioner by making endeavour in persuading us to take that the show cause notice dated 6-2-1998 given to the detenu by the detaining authority for its non-reply amounting to any retraction or any new ground in favour of the detenu, would not assume any significance or importance and that as such the said issuance of the show cause notice was not a vital document and that therefore it has not necessarily be placed before the detaining authority for arriving at the subjective satisfaction so as to clamp the impugned order of detention. The learned Public Prosecutor further added that the recovery of the diaries from the close associates of the detenu, though contained the relevant entries transposing certain transactions involving considerable monetary aspects which formulates the grounds pertained in ground Nos. 13 and 14 of the grounds of detention cannot at all be deemed to be the sole criteria for formulating the grounds for clamping the order of detention against the detenu and that therefore the said non-furnishing of copies of the diaries to the detenu has not become, in this context, a very vital document and that as such it would not cause any prejudice or violate any fundamental right of the detenu in this behalf and that therefore the said ground No. 2 of the learned Counsel cannot be countenanced so much so the learned Public Prosecutor would contend that paragraphs 13 and 14 of the grounds of detention on the basis of the so-called recovered diaries, have been referred in the grounds of detention only as a matter of sequence of the factual matrix and cannot at all be deemed to be the sole object and grounds for formulating or arriving at the subjective satisfaction against the detenu and that with regard to the third ground, Mrs. V.K. Tahilramani, learned Public Prosecutor would take us through the sworn affidavits/returns filed by the detaining authority and the sponsoring authority pertaining to the written explanation offered by themselves to explain the delay particularly from the month of December, 1997, till the date of passing the order of detention on the one hand and on the other with regard to the previous period from the date of prejudicial activities claimed so far. In short to say, all the three grounds projected by Mr. Shirish Gupte, learned Counsel appearing for and on behalf of the petitioner, in our respectful consideration and view, have been struggled over by the learned Public Prosecutor on behalf of the respondents.
21. It is significant to note that learned Counsel for both sides took strong reliance upon various case laws decided by the High Courts as well as Apex Court on very many cases and it will be our endeavour to refer to all of them in the appropriate context and reference for the purpose of proper adjudication of this matter in hand.
22. Before going to deal with legal ratios held in the above legal aspects, let us make our endeavour to deal with the factual matrix pertaining to these three grounds as pointed out by Mr. Shirish Gupte, learned Counsel appearing for the petitioner. Regarding the first ground raised by Mr. Shirish Gupte, it has become necessary for us to advert to the show cause notice issued by the detaining authority under section 134 of the Customs Act, 1962, on 6-2-1998, shown in Annexure - F of the compilation of the documents. This show cause notice, though runs from pages 47 of the compilation to 67 of the same, nearly about 20 pages, issued by the Assistant Commissioner of Customs, Air Intelligence Unit, Sahar Airport, Mumbai, to the detenu calling for the explanation from him, has not been replied at all conspicuously and for obvious reasons known to the detenu, nor the detenu with any reply notice, nor the entire averments or the contents made therein have been retracted in whatsoever manner known to the detenu. In short to say, there was no reply at all or no retraction. As was rightly pointed out by Smt. V.K. Tahilramani, learned Public Prosecutor, the whole contents of this show cause notice is the exact replica of substratum of the documents contained in the list of documents shown in Annexure-C and the copies of the same have been placed before the compilation in full. It is also significant to note that the copies of all the documents which were found fresh in the entire compilation have been supplied to the detenu and with regard to the same there was no dispute or controversy amongst the Bar for the respective parties. This would mean on factual aspect that the contents of the very show cause notice is the exact replica of the substratum of all the documents contained in the entire compilation of the documents and the list of documents appended to and gone through the detaining authority, as placed by the sponsoring authority before him to pass the impugned order of detention against the detenu. It is, therefore, under the circumstances, made it clear that the whole of the contents of the said show cause notice was totally found against the writ petitioner viz., the detenu himself and as there was no reply at all, nor retraction for the single word of the said contents of the show cause notice, it is conspicuous to find that not a single word is available or piece is made available in favour of the detenu so as to place before the detaining authority before clamping the order of detention. Short to say, in the instant case, it was claimed that the contents of the show cause notice alone ipse dixit were claimed to have been important and vital document to be placed before the detaining authority to arrive at a subjective satisfaction and that is what the main contention advanced by Shri Shirish Gupte, the learned Counsel for the petitioner, but, with great respect to him, we are not in a position to concede his conception that the said show cause notice alone does not form part of the other records, viz. possible reply or retraction or the other story of the detenu could have been sent either to the sponsoring authority or the detaining authority. Therefore, to consider the show cause notice alone in isolation with the other materials, conspicuously not sent to the detenu, it is very difficult for us on the factual matrix of the case to take the same as a vital document to be placed before the detaining authority. We are taking this view for the simple reasoning that the show cause notice has been extracted from all the documents relied on in the compilation and essence of the same has been given in the contents of the same and for which copies of all the documents have been furnished to the detenu. Therefore, it was always open and imperative for the detenu to send a retraction or reply in this regard if so advised and if he felt it necessary. In the context of the above, in our view, we are at every difficult to countenance the main submission of Mr. Shirish Gupte on the first contention.
23. To substantiate the said contention, Mr. Shirish Gupte, learned Counsel for the petitioner has placed reliance upon the case held between Kurjibhai Dhanjibhai Patel v. State of Gujarat and others, 1985 (1) SCALE 136 for the position that the ratio held in that case revealed the fact that it cannot be disputed that the show cause notice and the detenu's reply thereto particularly the latter, though these documents formed part of adjudication proceedings constituted the most relevant material which was essentially to be placed before the detaining authority before the issuance of the impugned order and admittedly this has not been done and that the relevant material viz., the detenu's reply dated 5-3-1984 certainly had a bearing and would have influenced the subjective satisfaction of the detaining authority one way or the other before issuing the detention order and such relevant material was not placed by the sponsoring authority before the detaining authority at the appropriate time.
24. The learned Counsel for the petitioner next relied on a case law decided between Sunil Longiya v. Union of India and others, held by a Division Bench of Rajasthan High Court reported in 1992(3) Crimes 825 for, more or less, the similar ratio. He also relied on unreported judgment held by the Bench of this Court in Criminal Writ Petition No. 879 of 1998 dated 12/13th October, 1998 for, more or less, the similar legal ratio. Criminal Writ Petition No. 1 of 1988 held between Smt. Diwaliben Narottamdas Kava v. The Union of India and others, dated 10-3-1998 was also relied on by Mr. Shirish Gupte to substantiate his first contention. So also Mr. Shirish Gupte relied on an unreported judgment rendered by the Bench of this Court delivered in Criminal Writ Petition No. 156 of 1998 dated 6-10-1998 to which one of us (N. Arumugham, J.) is a party for the position that the show cause notice issued by either the sponsoring authority or the detaining authority to the detenu, with its reply or no reply, with retraction or no retraction, or placing new ground or no new ground, assumes significance and vital factors, and that, therefore, both the said documents should be placed before the detaining authority by the sponsoring authority so as to facilitate the detaining authority to arrive at the subjective satisfaction and failure to do so is a constitutional failure and non-fulfilling of the mandatory nature and that therefore the order of detention clamped against the detenu under the provisions of the COFEPOSA would be rendered a nullity. That would mean the order of passing the detention has become vitiated on the ground of non-application of mind.
25. After having carefully and meticulously considered the legal ratio and observations enunciated in the above case laws, we are totally unable to persuade us to agree with the contention of Mr. Shirish Gupte that the show cause notice given to the detenu, assumes every significance and importance and that therefore they should have been placed before the detaining authority to arrive at a subjective satisfaction. After having gone through the case laws, we find it very convenient to distinguish the same for the simple reason that in all the cases for all the show cause notices issued by the authorities to the detenu, there appears to be a candid and categorical reply either amounting to retraction favouring the case of detenu or not, but, however, placing a new ground which was found in favour of the detenu, were forwarded to the authorities which issued the show cause notice and that, therefore, the higher hierarchy of the courts of law appears to have held the view that both the reply and the show cause notice automatically assumes vitality and importance and that therefore they are to be placed before the detaining authority to arrive at a subject satisfaction. But however in the instant case, as we have already referred to, there was no reply at all, nor retraction even, nor a new ground formulated by the detenu which is found in his favour. Therefore, we are of the conceded and firm view that the detaining authority is not supposed to look into the show cause notice once again which is, in our view, if so, would amount to a bare repetition of the same in the absence of any reply or retraction.
26. On the other hand, to substantiate the rival contentions made by learned Public Prosecutor Mrs. V.K. Tahilramani relied upon and brought to our notice a plethora of authorities which however would fortify our view and consideration which are referred herein under.
27. In Issac Babu v. Union of India and another, : (1990)4SCC135 , the Supreme Court has held as follows:--
'It was not incumbent on the authorities to wait till the issue of theshow cause notice. The need to issue a show cause notice within6 months has nothing to do with the processing of the detentionpapers. Therefore, the explanation is far from satisfactory.'
In a case held between Meena Mahendra Vakharia v. K.L. Varma andothers, the Division Bench of this Court in 1997 All.M.R. (Cri.) 1172 had theoccasion to observe the following :---
'If a document is a basic document or a document which contains the pith and substance of primary facts which are the basis of the grounds of detention, such a document must be communicated to the detenu in order to comply with the constitutional obligation under Article 22(5) of the Constitution of India. This, however, does not mean that it is necessary for the detaining authority to furnish to the detenu each and every document, howsoever insignificant or inconsequential it may be, and to which a mere reference is made in the grounds of detention, and which can, therefore, be said to have been incorporated by reference in the grounds of detention.
2. In other words, if it transpires that a particular document is neither a basic document nor does it contain the pith and substance of primary facts but is only a subsidiary details of the grounds of detention, or is an elaboration of the modus operandi adopted by the detenu, in our view, it is unnecessary for the detaining authority to furnish such a document to the detenu. If the facts which are not disclosed are not the basic facts, then non disclosure does not affect the detenu's rights under Article 22(5) of the Constitution of India.
3. It would, therefore, follow that all the basic facts on which the detaining authority has based its conclusion in making the order of detention must be communicated to the detenu so as to comply with the plain requirement of the first safeguard of Article 22(5) of the Constitution but this does not mean that 'other particulars' apart from the material constituting the grounds of detention which 'other particulars' do not form the basis of the making of the order of detention should also be disclosed to the detenu.
4. The documents or facts to which a mere casual or passing reference is made in the grounds of detention, but which do not constitute the basic material for recording the satisfaction in the grounds of detention need not be communicated to the detenu.'
In a case held between Deepesh Mahesh Zaveri v. Union of India and others, of the judgment, a Division Bench of this Court has observed in this regard which are extracted as herein under
'The fifth contention is that the annexure to the letter dated 22nd July, 1995, sent by the petitioner to the Deputy Director of Enforcement, at Bombay, was not placed before the detaining authority. The contention has been raised in ground (x). Reply to this ground is that the annexure to the said letter dated 22nd July, 1995, addressed by the detenu to the Deputy Director of Enforcement at Bombay was fully legible. However, the letter shows that the information mentioned in the annexure was already available to the detaining authority and there was nothing new about it, viz. position of Jagat Shah as Director of M/s. Golden Jewels Enterprises, Hongkong. In the affidavit, the detaining authority has given a list of documents from which the position of Jagat Shah as a Director of M/s. Golden Jewel Enterprises could be ascertained. Hence, it is contended that there was nothing vital in the partially illegible annexure to the letter dated 22nd July, 1995. Hence, the satisfaction recorded in the order of detention is not in any manner impaired. We have perused the said letter dated 22nd July, 1995 and the annexure thereto. In our view, there is nothing vital in the said document viz. annexure to the letter dated 22nd July, 1995, which was partially illegible when it was sent to the Deputy Director and the perusal of the letter and the copy of its annexure annexed to this petition shows that all the basic facts on which the order of detention and the grounds have been formulated were already before the detaining authority. There were no new facts, relevant or material, which could have affected the satisfaction of the detaining authority one way or the other and hence, in our view no grievance can be made of this failure on the part of the Deputy Director of Enforcement to place the annexure to the letter dated 22nd July, 1995, before the detaining authority. Accordingly, we reject the contention of Mr. Karmali.'
In a case held between Smt. Sharifa Abubaker Zariwala v. The Union of India & others, 1997 All.M.R. (Cri.) 528, a Division Bench of this Court, after having followed the ratio held in Madan Lal Anand v. Union of India, : 1990CriLJ659 and the ratio held by this Court in Criminal Writ Petition No. 746 of 1994 Sarah v. Union of India, a Division Bench of this Court had occasion to consider at page 547 the following:-
'In the present case, considering the nature of the document in relation to which the complaint has been made by the present detenu, namely, the statement of the co-detenu Abhrani recorded on 7.8.1995, i.e. subsequent to the passing of the detention order against the detenu, it cannot be said that the statement of the co-detenu Abhrani was a document which could have influenced the decision of either the Advisory Board or of the Central Government, which is the confirming authority, in favour of the detenu inasmuch as there is nothing in that statement which could even remotely be said to be in favour of the detenu. Ground Nos. 10 and 12, therefore, are devoid of any substance.'
27A. To be on the safer side, the learned Public Prosecutor would also submit a contention basing upon section 5-A of the COFEPOSA to the effect that clamping of the detention is based on more than one grounds and if the Court, for a moment, assuming for the sake of argument, found vitiates the order of detention on one or two grounds by virtue of section 5-A, the clamping of detention order on the other grounds would sustain for which she has placed reliance upon the case held by the Constitutional Bench of the Supreme Court held between Attorney General for India etc. v. Amratlal Prajivandas and others etc., : 1995CriLJ426 in para 48 which are stated as herein under:-
'Now, take a case, where three orders of detention are made against the same person under COFEPOSA. Each of the orders is based upon only one ground which is supplied to the detenu. It is found that the ground of detention in support of two of such orders is either vague or irrelevant. But the ground in support of the third order is relevant, definite and proximate. In such a case, while the first two orders would be quashed, the third order would stand. This is precisely what the first part (the main part) of section 5-A seeks to do. Where the order of detention is based on more than one ground, the section creates a legal fiction, viz., it must be deemed that there are as many orders of detention as there are grounds which means that each of such orders is an independent order. The result is the same as the one in the illustration given by us hereinabove. The second part of it is merely clarificatory and explanatory., which is evident from the fact that it begins with the word 'accordingly' - apart from the fact that it is joined to the first part by the word 'and'. In such a situation, we are unable to see how can the section be characterised as inconsistent with Article 22(5). Had there been no first part, and had the section consisted only of the second part, one can understand the contention that the section is in the teeth of Article 22(5) as interpreted by this Court - this was indeed the situation in K. Yadigiri Reddy v. The Commissioner of Police, I.L.R (1972) AP 1025, as we shall presently indicate. It is difficult to conceive any inconsistency or conflict between Art. 22(5) and the first - the main part of section 5-A. The Parliament is competent to create a legal fiction and it did so in this case. Article 22(5) does not in terms or otherwise prohibit making of one than one order simultaneously against the same person, on different grounds. No decision saying so has been brought to our notice. Be that as it may, we do not see why the Parliament is not competent to say, by creating a legal fiction, that where an order of detention is made on more than one ground, it must be deemed that there are as many orders of detention as there are grounds. If this creation of a legal fiction is competent, then no question of any inconsistency between the section and Article 22(5) can arise.'
In another case held between L.M.S. Ummu Saleema v. B.B. Gujural and another, : 3SCR647 , the Apex Court has observed the ratio as follows:-
'Every failure to furnish a copy of a document to which reference is made in the grounds of detention under section 3(1) of the Act is not an infringement of Art. 22(5), fatal to the order of detention. It is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effective representation that amounts to a violation of fundamental rights guaranteed by Art. 22(5).'
In Kamarunnissa v. Union of India and another, : 1991CriLJ2058 , has observed the following:-
'The detenues would have been entitled to any document which was taken into consideration while formulating the grounds of detention but mere mention of the fact that certain scratches were carried out in the course of investigation, which have no relevance to the detention of the detenues cannot cast an obligation on the detaining authority to supply copies of those documents. Much less can an obligation be cast on the detaining authority to supply copies of those documents in Tamil language. In the peculiar circumstances of the present petitions we are of the opinion that the view taken by the High Court cannot be assailed. Reliance was, however, placed on a decision of the Delhi High Court in Gurdeep Singh v. Union of India, Criminal Writ Petition No. 257 of 1988 decided on 7th October, 1988, 1989 Cri.L.J. 41 (Delhi) wherein Malik Shariefuddin, J., observed that the settled legal position was that all the documents relied upon for the purpose of ordering detention ought to be supplied pari passu with the grounds of detention to the detenu and documents not relied upon but casually referred to for the purpose of narration of facts were also to be supplied to the detenu if demanded. Where documents of the latter category are supplied after the meeting of the Advisory Board is over it was held that that would seriously impair the detenu's right to make an effective and purposeful representation which would vitiate the detention. Counsel for the petitioners, therefore, submitted that in the present case also since the search authorisations were supplied after meeting of the Advisory Board, the detention orders stood vitiated. But in order to succeed it must be shown that the search authorisations had a bearing on the detention orders. If merely an incidental reference is made to some part of the investigation concerning a co-accused in the grounds of detention which has no relevance to the case set up against the detenues it is difficult to understand how the detenus could contend that they were denied the right to make an effective representation. It is not sufficient to say that the detenus were not supplied the copies of the documents in time on demand but it must further be shown that the non-supply has impaired the detenu's right to make an effective and purposeful representation. Demand of any or every document, however irrelevant it may be for the concerned detenu, merely on the ground that there is a reference thereto in the grounds of detention cannot vitiate an otherwise legal detention order. No hard and fast rule can be laid down in this behalf but what is essential is that the detenu must show that the failure to supply the documents before the meeting of the Advisory Board had impaired or prejudiced his right however slight or insignificant it may be. In the present case, except stating that the documents were not supplied before the meeting of the Advisory Board, there is no pleading that it had resulted in the impairment of his right nor could Counsel for the petitioners point out any such prejudice. We are, therefore, of the opinion that the view taken by the Bombay High Court in this behalf is unassailable.'
28. In the light of the above legal ratio held in the above case laws by the Apex Court and the Division Bench of this Court and importing the same to the factual matrix of the instant case, we have already observed that the whole substratum of all the documents relied upon by the detaining authority to which copies of the same have already been furnished to the detenu, have been merely extracted in the show cause notice dated 6-2-1998 and thus the detenu in the instant case was duly and wholly informed of the substance of every documents which formulated the grounds for clamping the order of detention, but, however, informed of the substance of every documents which formulated the grounds for clamping the order of detention, but however, significantly and most importantly all the said contents of either the show cause notice or the documents or the grounds of detention were totally found unfavourable to the detenu and that since there was no reply of any kind whatsoever amounting to a retraction, otherwise, or a new ground favourable to the detenu has not, since, been forwarded, in our considered view, the question of placing the show cause notice before the detaining authority prior to clamping of the detention order does not assume any vitality in its nature nor an important embargo, nor caused any iota of prejudice to the detenu and that therefore we are in the entirely in disagreement with the first contention of Mr. Shirish Gupte, learned Counsel appearing for the petitioner in the instant case. Therefore, it fails.
29. Mr. Shirish Gupte, learned Counsel appearing for the petitioner, next contended that the recovery of the diaries from one of the co-detenu at the relevant day consisting of several entries pertaining to the multifarious monetary transactions taken place amongst the detenu, inter se, various in nature, though formulating the ground Nos. 13 and 14 of the grounds of detention, copies of the same have not since been supplied to the detenu, the impugned order of detention becomes vitiated on this ground alone. The said contention was controverted by Mrs. V.K. Tahilramani, learned Public Prosecutor by contending that though the said recovery of the diaries from the house of one of the detenus on the following day which contains entries depicting various monetary transactions transpired amongst the detenu, infer se but however they are not incriminating documents in so far as the present detenu is concerned to formulate the grounds of detention and consequently to clamp the order of detention against him. In this context of rival contention, we have perused the various entries found in the diary which contains in form 'C' as one of the documents relied upon by the detaining authority and that our perusal would clearly demonstrate the fact that though it contains several monetary transactions taken place amongst the detenus inter-se which, however do not pertain to the detenu by name or by any code words or other things. Therefore, for the said reason, we are very much impressed upon by the argument advanced by the learned Public Prosecutor in this regard that this is not the only incriminating document or the documents among the incriminating one which forms the very basis for arriving at the subjective satisfaction to claim the order of detention against the present detenu. As the learned Public Prosecutor has rightly contended that paras 13 and 14 of the grounds of detention is the resultant factor of multifarious entries found in the recovered diary among the detenu and co detenu's inter se and that the said paragraphs are being referred to in the grounds of detention as a matter of sequence and that therefore the said paragraph Nos. 13 and 14 cannot, at all, be segregated or isolated from the other grounds so to say that the said paragraphs Nos. 13 and 14 are the only grounds formulated against the present detenu by the detaining authority.
30. On the other hand, we are not impressed by the argument advanced by Mr. Shirish Gupte, learned Counsel appearing for the petitioner in this regard, though we can appreciate his efforts in trying to persuade us to agree with his contention. On this ground alone, for the reasons above referred, this ground also must fail.
31. In this context, it has become relevant for us to refer to the reply given in paragraph Nos. 9 and 10 of the reply affidavit filed by Mr. G.S. Sandhu, the detaining authority to the following effect.
'9. With reference to para 4(v) of the petition, I say that though the copies of the diaries have not been supplied to the detenu, the copy of panchanama dated 11-8-97 has been supplied to the detenu which appears at Sr. No. 26, page Nos. 79-85 of the list of documents. I say that the diaries referred in para 13 of the grounds were seized on 11-8-1997 from the residence of Mr. Pravinchandra Haridas Jogi. I say that the present detention order is in no way based on the said diaries or the entries therein. I have made a passing reference to the diary entries to complete the narration of facts in the said case. These diary entries are in no way concerned with the detenu. His name does not figure in any of the entries in the said diary. Hence I have not placed any reliance thereon, for issuing the order of detention against the present detenu. I reiterate that the said diaries and the entries therein did not constitute the basic facts upon which I had arrived at my subjective satisfaction while passing the order of detention. I say that the said diaries and the entries therein were not vital documents for the purpose of passing the order of detention against the detenu. In the circumstances, the non-supply of the said diaries or entries made therein, does not vitiate the order of detention. I deny that I have been influenced by the contents of the said diaries adversely or otherwise and the question therefore of furnishing the copies thereof to the detenu would not and did not arise. I deny that non-supply of the diaries or the entries therein amounts to non-communication of the grounds of detention as alleged. I deny that the detenu has been denied the earliest opportunity to make an effective representation. In view of this, it is denied that the order of detention is mala fide, ab-initio null and void, as also it violates the facets of Article 22(5) of the Constitution of India.
10. With reference to para 4(vi) of the petition, it is stated that the proposal along with the documents mentioned in the list of documents was placed before me, after considering the same, I came to the conclusion as stated in para 13 of the grounds of detention. It is true that though the diaries seized under panchanama dated 11-8-1997 were not placed before me, it is submitted that the panchanama dated 11-8-1997 had been placed before me and the copies thereof have been supplied to the detenu along with the other documents with annexure 'A' and 'B' which is at pages 79-85 of the list of documents. It is, therefore, dented that the conclusion drawn by me is based on non-existing and illusory facts and materials.'
In the light of the above elucidating explanation given in paras 9 and 10 of the reply affidavit and the rival contention made by the learned Public Prosecutor basing upon the legal ratio above referred, we are of the considered view that mere referring of paragraphs 13 and 14 of the grounds of detention, is a mere extraction of recovery of the diaries and the relevant entries contained therein however, which has no bearing at all to the detenu but as a matter of sequence it has been done so and that, therefore, it does not amount to any importance or vital thing taken to formulate the grounds of detention and that, therefore no copies need be given to the detenu and failure to furnish the same does not violate fundamental rights conferred under Article 22(5) of the Constitution of India, to the detenu. Therefore this ground also must fail.
32. It was next contended that since prejudicial activities, in the instant case, had happened on 10-8-1997 and clamping of the detention order against the detenu was made on 24-2-1998, there was a delay of merely about six months which has not at all, been explained, according to the learned Counsel for the petitioner, adequately and sufficiently and that therefore it goes to the root of the very clamping of the detention as it becomes vitiated.
33. Pertinent at this stage to advert the explanation given by Mr. G.S. Sandhu, the detaining authority, in paragraph 5 of his sworn affidavit to the following effect.
'With reference to para 4(i) of the petition, I say that the Assistant Commissioner of Customs, COFEPOSA CELL, Air Port, Mumbai submitted the proposal in respect of the detenu and the co-accused along with the concerned documents, which was received in the Home Department on 5-12-97. The concerned Desk Officer prepared the file and submitted the same to the Deputy Secretary on 8-12-1997. There was a closed holiday on 7-12-1997. The Deputy Secretary considered it and he submitted the file as I was on leave to the then Detaining Authority on 9-12-1997. for consideration. The then Detaining Authority considered the same from 10-12-1997. After going through the papers it was felt that some additional information was necessary. The additional information/documents regarding copy of Adjudication, copy of Show Cause Notice, legible copies of page Nos. 75, 101, 134, 135, 149 to 151, 156 and 157 to 159 etc., were called from the Sponsoring Authority vide Government Letter, Home Department dated 29-12-1997. It is submitted from 22-1-1998 that the proposal of the detenu as well as the co-accused was under my consideration. The concerned Desk Officer prepared the detailed note and submitted the same to the Under Secretary on 20-1-1998. The Under Secretary submitted the same to the Deputy Secretary on the same day. The Deputy Secretary also prepared the detailed note on 22-1-1998 and submitted the same to me. I considered all the papers on 22nd and 23rd January 1998. The above said required information called from the Sponsoring Authority was not received hence reminder was sent vide Government letter, Home Department dated 14-1-1998 and 16-1-1998. Part of the required information was received in the Home Department on 21-1-1998. The remaining information/ documents were called for vide Government letter Home Department dated 29-1-1998. The required information/ documents were received in the Home Department on 29-1-1998 from the Sponsoring Authority. The concerned Desk Officer prepared the detailed note and submitted the same to the Under Secretary and Deputy Secretary on 29-1-1998 and the same was submitted to me. I considered the proposal and scrutinised all the documents carefully and formulated the draft Grounds of Detention on 12-2-1998 and the same was sent for typing the fair copy. The typed fair copy of the grounds of detention, order etc. was submitted to me on 23-2-1998 (22-2-1998 being holiday). I carefully considered all the papers and issued the detention order on 24-2-1998 and contemporaneously finalised the grounds of detention. No additional documents were thereafter received. In view of this there is no inordinate delay in issuing the detention order. It is further stated that the claim of the detenu that crucial part of investigation was over by 28-8-1997 is not correct. Whereas the documents generated during the course of investigation were being forwarded to me till 28-1-1998 by the Sponsoring Authority. After considering the proposal and scrutinising the documents, and after arriving at my subjective satisfaction that it was necessary to detain the detenu with a view to prevent him in future from smuggling of goods. Hence, I issued the detention order on 24-2-1998.'
34. Mr. Malkit Singh, Assistant Commissioner of Customs, COFEPOSA CELL, Sahar Airport, Mumbai, in paragraph 3 of his sworn affidavit at page 88 of the compilation has stated as follows.
'With reference to para 4(i) of the petition, I say that the contents thereof are not admitted. The instant seizure was booked on 10-8-97. Thereafter the case was investigated and later processed by the Sponsoring Authority for putting up the proposal for detention of the said accused before the Screening Committee Meeting. The Screening Committee Meeting was held on 27-10-1997. The decision of the Screening Committee Meeting was made known on 4-11-1997. The investigation in the meantime was being continued by the investigating cell. As a result of which the proposal could only be submitted to the Detaining Authority on 4-12-1997. Further developments in the case was sent to the Detaining Authority vide letter dated 28-1-1998 and the detention order was finally issued on 24-2-1998. As can be seen from the above, there has been no delay on the part of the authorities in the issuance of the Detention Order. Moreover, it is submitted that there is no bar under law that the Detention Order cannot be issued after the accused has been released on bail.'
35. In so far as the delay of about six months from the date of committing the alleged prejudicial activities and clamping of the order of detention against the detenu in the instant case is concerned, it is stated that there is a delay of about six months in clamping the order of detention and this delay, since remained unexplained, it was contended that the said delay would snap the very existence of the nexus between the prejudicial activities and clamping of the detention order and that therefore the impugned order of detention would become vitiated. As has been pointed out by Mrs. Tahilramani, learned Public Prosecutor, the above delay between the two instances has been explained by the sponsoring authority as well as detaining authority in their sworn affidavits reply as extracted above. In our view, in the context of the same, the detaining authority from the date of receipt of the proposal, has not committed any latches on his part in formulating the subjective satisfaction upon the prejudicial activities of the detenu and clamping the order of detention with any delay whatsoever. But however, there appears to be some delay between the prejudicial activities and sending the proposal to pass the order of detention by the sponsoring authority and that too has been explained by the sponsoring authority attributing the delay for the reason of consideration of entire proposal by the Screening Committee. Thus, as a whole, the delay of about six months has been explained by the authorities.
36. In Ayyub s/o Lat Khan Pathan v. A.K. Srivastava & others, in a reported judgment rendered by a Division Bench of this Court in 1998 (4) L.J. 717 the Division Bench of this Court, while condoning delay of merely 61/2 months in passing the order of detention, has referred the following case laws held by the Apex Court as well as cases in which Bench of this Court consisting of A.V. Savant and Vishnu Sahai, JJ., in Rafique Abdul Karim Merchant v. Rajendra Singh, Secretary to the Government of Maharashtra, : 1998(2)MhLj496 496 had occasion to observe as follows.
'The general rule is that it would be vitiated if there is no explanation for the same. In this connection, it would be pertinent to refer to the observations contained in paragraph 16 of the decision of the Apex Court in the case of Hemlata K. Shah v. The State of Maharastra, : 1982CriLJ150 which reads thus:
'Delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person, for, in certain cases delay maybe unavoidable and reasonable. What is required by law is that the delay must be satisfactorily examined sic explained by the detaining authority'.
10A. But in a case of preventive detention under the COFEPOSA or PITNDPS even unexplained delay in the issuance of the detention order, by itself would not vitiate the same. In such cases, it will only be vitiated if on account of delay the live like sic link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him is snapped.
For determining whether such a live link has been severed or not, the propensity and potentiality of the detenu to commit prejudicial activities would be very material. If there is no material to indicate that the detenu had propensity and potentiality to commit them, unexplained delay simpliciter in the issuance for of the detention order would be fatal and the same would be vitiated because the live-link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him would be snapped.
On the converse if there is material to show that the propensity and potentiality of the detenu to commit prejudicial activities was there then despite the unexplained delay in the issuance of the detention order the live-link between the prejudicial activities of the detenu and the rationale of clamping a detention order on him would not be lost and the detention order would not be vitiated.'
37. Importing the said legal ratio, the Bench of this Court in the above ruling had occasion to condone the delay of merely six and half months in the above case law. We can also unhesitatingly derived the said legal ratio to the facts of the instant case, not only for the reason that the delay of about six and half months has been explained properly by the detaining authority from December onwards till the date of passing of the detention order by the sponsoring authority from the date of prejudicial activities to forward the proposal to pass the detention order in their respective affidavits/returns and by doing so we have to necessarily constrained, by ourselves, to hold that the so-called delay, if any, would not amount to vitiate the clamping of the detention order against the detenu for the simple reason that the propensity and potentiality of the detenu, amongst others, would spread naturally to a scenario to vast extent and the area with several transactions with multifarious persons and that, therefore, we are, for no minute, to consider the vitiation of the impugned order of detention clamped against the detenu as contended by Mr. Shirish Gupte, learned Counsel appearing for the petitioner. On the other hand, we would fully endorse the view with the submission of Mrs. Tahilramani, learned Public Prosecutor in convincing us that this is not a case at all to consider the contention in favour of the detenu and for the said reasoning and for very many observations given above, we feel that this writ petition must fail.
37A. No other substantial points have been projected before us for consideration by and on behalf of either of the parties.
38. In the result, for all the foregoing reasonings and observations, we are firm in saying that this writ petition must fail and accordingly it is dismissed. Accordingly, the rule issued already has, thus, been discharged.
39. Issuance of the certified copy is expedited.
40. Petition dismissed.