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Thaneshwar Singh Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Constitution
CourtDelhi High Court
Decided On
Case NumberCriminal Writ Appeal No. 6 of 1978
Judge
Reported in1979CriLJ94; 15(1979)DLT245; ILR1979Delhi170; 1979RLR46
ActsConstitution of India - Article 22(5)
AppellantThaneshwar Singh
RespondentUnion of India and ors.
Advocates: A.K. Sen,; Harjinder Singh,; Amarjit Singh,;
Cases Referred and Nagendra Natht Mondal v. The State of West Bengal
Excerpt:
constitution of india - article 22(5)--conservation of foreign exchange and prevention of smuggling activities act, 1974, sections 3(1) & 5a--construction of--in the new context of repeal of misa and confining preventive detention only to cofeposa--satisfaction under section 3(1), nature of--detention, whether sustainable only one valid ground even if other grounds are invalid in view of section 5a.; (per deshpande, j.):- ; (1) in view of the essential difference between preventive detention of economic and anti-social detenus and other persons, approach to construction of article 22(5) of the constitution read with section 3(1) of the cofeposa would have to be different since it is applied to economic and anti-social offenders, than the approach when article 22(5) used to be applied.....v.s. deshpande, j. (1) the background : the objects and reasons of the law of preventive detention and the statutory content of it have recently undergone a sea change. while clauses (3) to (7) of article 22 read with article 21 enabled parliament to validly enact a law relating to preventive detention, the statutes relating to preventive detention from 1950 onwards were generally aimed at those who were a danger to the security of the state or maintenance of public order. later the law was broadened to strike at anti-social activities and economic offences also. recently there was a general feeling against the preventive detention law so far as it could be used against political offenders. not only the maintenance of internal security act, 1971 (misa) was repealed, but a greatly.....
Judgment:

V.S. Deshpande, J.

(1) The Background : The objects and reasons of the law of preventive detention and the statutory content of it have recently undergone a sea change. While clauses (3) to (7) of Article 22 read with Article 21 enabled Parliament to validly enact a law relating to preventive detention, the statutes relating to preventive detention from 1950 onwards were generally aimed at those who were a danger to the security of the State or maintenance of public order. Later the law was broadened to strike at anti-social activities and economic offences also. Recently there was a general feeling against the preventive detention law so far as it could be used against political offenders. Not only the Maintenance of Internal Security Act, 1971 (MISA) was repealed, but a greatly liberalised version of it proposed by a Bill to be inserted into the Criminal Procedure Code was also withdrawn by the Government in Parliament. Steps had already been taken to separate preventive detention legislation aimed against social and economic crimes which culminated in the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA). During the debates on the Constitution (Forty-fifth Amendment) Bill, 1978 in the last session of the Parliament, which has just come to an end, all the parties agreed that the provisions enabling enactment of preventive detention law in the Constitution should be continued and the Government defended their continuance only on, the ground that preventive detention was necessary to deal with anti-social and economic offences. The consensus must thus be taken to be in favor of continuing the Cofeposa, but not the Misa, that is to say, a law of preventive detention should be used only against anti-social activities and economic offences' but not against political offenders, even though some hot-heads and revolutionaries among them may create law and order problems.

(2) The Constitution of India stands alone in enabling the enactment of preventive detention laws. With the increasing awareness of the importance of personal liberty and the possibility of preventive detention being abused to put down political dissent, a consensus of public opinion has developed demanding abolition of such preventive detention laws as could be used against political opponents. The courts from the very beginning frowned upon preventive detention laws primairly aimed against political offenders and evolved special rules of interpretation of the preventive detention laws and the relevant provisions of the Constitution to narrow down the ambit of the preventive detention and to broaden the scope of personal liberty. Though this interpretation was intended to benefit the political offenders in preventive detention, it had the unintended effect of giving the same benefit to economic offenders also when the same law dealt with both. Differentiation between the two could not be made so long as the same law dealt with both of them. The Question :

(3) For the first time now preventive detention for political offenders is abolished and a separate law is enacted to continue the same only against one section of the economic offenders covered by section 3 of the COFEPOSA. Further section 5A was inserted in the Cofeposa by the amending Act of 1975 expressly changing the rule of interpretation which had been evolved by the Supreme Court primarily in construing preventive detention laws framed against political offenders (and at times economic offenders because they were then dealt with by the same law). A question of first impression, arises. Or it is a question of interplay between this case and the class of cases projected from it. It is this. Whether a new approach in the construction not only of Cofeposa, but also of clause (5) of Article 22 would be warranted because of these changed circumstances Such a new approach would also be appropriate because of the basic differences in the nature of economic and social offences, on the one hand, and other officer (including political ones), on the other. These differences are summed up by the Law Commission in their Forty-seventh Report (p. 2 para 1.4) as follows : 'By now, the concept of anti-social acts and economic offences has become familiar to those acquainted with the progress of the criminal law and its relationship to the achievement of social objectives. Still, it may not bf out of place to draw attention to some of the salient features of these. offences. Briefly, these may be summarised : (1) Motive of the criminal is avarice or rapaciousness (not lust or hate). (2) Backgrouund of the crime is non-emotional unlike murder, rape, defamation, etc.). There is no emotional reaction as between the victim and the offender. (3) The victim is usually the State or a section of the public, particularly the consuming public (i.e. that portion of the which consumes goods of services, buys shares or securities or other intangibles). Even where there is an individual victim, the more important element of the offence is harm to society. (4) Mode of operation of the offender is fraud, not force, (5) Usually, the act is deliberate and willful. (6) Interest protected is two-fold (a) Social interest in the preservation of (i) the property or wealth or health of its individual members, and national resources, and (ii) the general economic system as a whole from (i) exploitation, or (ii) waste by individual or groups. (b) Social interest in the augmentation of the wealth of the country by enforcing the laws relating to the taxes and duties, foreign exci'iange, foreigncommerce, industries and the like.' Preventive Detention And The Rule Of Law

(4) It is only because of the essential difference between the ordinary offences, on the one hand, and the an,ti-social acts and economic offences, on the other, that the Law Commission on Mature consideration agreed that if preventive detention is to be retained at all in the Constitution it should be so retained only for preventing these antisocial acts and economic offences. I quote from the report para 16.3 : 'We believe that preventive detention is an anachronism in a democratic society like ours, based on the principle of the rule of law. The detention of individuals without trial for any length of time, howsoever short, is thoroughly inconsistent with the basic ideals of our Government. The Constitution indeed does not countenance any general power of preventive detention and both the Union and the State Governments have been empowered to make laws authorising such detention only for specified purposes. These powers have been given by way of necessity because it was felt that, howsoever, repugnant the idea of preventive detention, may be, in certain situations and for certain purposes it was advisable to resort to (.his extreme power rather than take the grave risks which the State will have to face in the absence of such power. We would naturally be reluctant to recommend extension of that power to any new areas. But, after careful consideration, we have come to the conclusion that, if preventive detention were ever justified, it would be for the purpose of preventing some of the offences under consideration, namely, offences against the regulation of foreign exchange, excise and customs. These offences acquire an ominous character because of the immense impact they have on the well-being of the entire nation by virtue of their pernicious effect on vital national policies. In times of war and other emergencies they acquire a further and even more dangerous dimensions because of the usual association of smuggling with espionage. We are, thereforee, satisfied that the Union Government should not be without power to detain preventively hardened offenders against the laws of customs, excise and foreign exchange. The Facts :

(5) Orders of preventive detention under section 3(1) of the Cofeposa were passed by the Administrator of the Union Territory of Delhi (that is the Central Government within the meaning of section 2(8)(b)(iii) of the General Clauses Act) against Thaneshwar Singh and his father Jagat Singh on 2nd January, 1978. The grounds of detention were served upon them on 6th January, 1978. Thaneshwar Singh submitted representation on 12th January, 1978 against his detention by registered post, which was received in, the office of the Administrator on 16th January, 1978 and marked to the Secretary (Home) on 17th January, 1978. The Home Department decided to send the same for the comments of the Customs department of the Central Government. The request for the comments was made on 28th January, 1978. The comments were received on 8th February, 1978. After processing the same the files along with the representation were put up to the Administrator on 9th February, 1978 and the representation, was rejected by the Administrator on 10th February, 1978. Thaneshwar Singh filed Criminal writ 6 of 1978 on 1st February, 1978, while his father Jagat Singh. filed Criminal writ 9 of 1978 on 17th February, 1978. The whole of the argument of the learned counsel was confined to Thaneshwar Singh's writ petition. No separate argument was addressed regarding Jagat Singh's writ petition, but both the writ petitions have been considered together by us and will be so disposed of. Briefly summarised, the grounds for detention were the following; 1. On 31st August, 1962 smuggled gold bars bearing foreign markings were recovered from Thaneshwar, Jagat Singh and one Sohan Lal. The gold was confiscated in adjudication proceedings by the Customs Department. The Customs Authorities also levied penalties on Jagat Singh and Sohan Lal. They were also prosecuted and convicted in criminal court for one year rigorous imprisonment and payment of fine of Rs. 500. According to Thaneshwar Singh he was under 12 years of age at that time and probably for that reason no action was taken against him; 2. In September, 1967 information was received from the Deputy Collector of Central Excise, Amritsar that one Mohan Singh and Udham Singh of village Maluwal, District Arnritsar were very active in smuggling activities on the Gurdaspur Border (Village: Chaura and Dera Baba Nanak) of the. India Pakistan Border, along with Jagat Singh, Thaneshwar Singh and other associates. It was also learnt that Jagat Singh was running Hotel Apsara in Karol Bagh, New Delhi ; 3. On the night between 9th and 10th June, 1970 rooms 21 and 23, which were in the possession of Jagat Singh and Thaneshwar Singh in Hotel Apsara were searched and biscuits of gold bearing foreign markings were seized. Their residence was also searched and 399 bobbins of smuggled redian,t yarn made in Japan and incriminating documents were seized. In the adjudication proceedings by the Customs Department the gold and currency notes worth Rs. 1,05,000 were confiscated and penalties of Rs. 10,000 and Rs. 3,000 were imposed on Jagat Singh and Thaneshwar Singh respectively ; 4. On 12th September, 1973 the Directorate of Revenue Intelligence got the information that Jagat Singh received smuggled gold from Bombay, brought from Bombay by Thaneshwar Singh and an associate. The gold was sold to Jagdish and Lala of Sirsa. Surveillance was kept, but it was not possible to apprehend the culprits ; 5. Intelligence reports were received during July, 1976 from secret sources that Jagat Singh and Thaneshwar Singh were actively engaged in dealing in smuggled gold;

(6) In pursuance of further information watch was kept on Jagat Singh and Thaneshhwar Singh, who on the night between 1st and 2nd June, 1977 at 4.00 a.m. were found to travel on a motorcycle, Dhx 4530. Jagat Singh got down at the bus stand and Thaneshwar Singh was found to carry one iron roller and one 'L' shaped spanner of hexagonal cross-section. On one end of the roller there was a hexagonal socket and a seam was visible on this end. The joint could not he opened despite efforts. It was later unscrewed with the aforesaid spanner and a device. The iron roller was found to contain 20 gold biscuits hearing foreign markings which was seized under section, 110 of the Customs Act. lmmediately thereafter the residence of Jagat Singh and Thaneshwar Singh was searched and a similar roller was recovered and seized under section 110 of the Customs Act. Jagat Singh an,d Thareshwar Singh both stated that the gold was being carried to Bhiwani for Sale;

(7) Intelligence reports received in September, 1977 indicate that both of them still continued to deal in smuggled gold ; and

(8) Under Article 22(6) of the Constitution, the Administrator considered it against public interest to disclose the source of information or intelligence mentioned in grounds 2 to 7 above and considered it against public interest to disclose further facts regarding the information referred to in grounds 2 to 7 above. 6. The contentions against the validity of the detention of Thaneshwar Singh advanced by Shri A.K. Sen and Shri Harjinder Singh may be summed up as below : (1) The satisfaction for passing the detention order has to be of the Administrator himself and not of officers subordinate to him. The counter-affidavits in the present case should have been sworn by the Administrator himself and not by the officer's subordinate to him ; (2) The grounds of detention were non-existent, irrelevant, vague and stale; (3) Even if one of the grounds of detention is held to be bad the whole of the order of detention is vitiated and is liable to be quashed: (4) Section 5A of the Cofeposa relates to the satisfaction of the detaining authority. It does not affect the interpretation of Article 22(5) settled by the Supreme Court decisions which supports the fourth ground of attack urged by the' petitioner above; (5) The order of detention, was passed too long after the last incident alleged against the two petitioners as having taken place on 2nd June, 1977 ; and (6) The delay in dealing with the representation by the Administrator was fatal to the continuance of the detention. Nature. of Satisfaction under Section 3(1) : 7. There is a fundamental dichotomy between the two authorities empowered by section 3(1) to make an. order of detention cl a person if the authority is satisfied that detention is necessary with a view to prevent a person from acting in any manner prejudicial to the conservation or augmentation, of foreign exchange or indulging in smuggling activities or such other activities as specified towards the end of section 3(1). On the one hand, the power is vested in the Central Government or the State Government. On the other hand, it is vested in definite persons being the officer's described in section 3(1). The satisfaction of a definite person can be easily located in him. It is such a definite person who is empowered who must be satisfied under section, 3(1). He cannot rely upon the satisfaction of some one else without applying his own mind to the material on the basis of which he orders detention,. 8. But the Central or the State Government is not such a definite. person. It is an, organisation and it is working as an institution. The executive power of the Central Government may be derived either from the Constitution or from a statute. In a broad sense the Union of India or the State Government comprehends the whole of the Government. But the Constitution divides it into three branches, the executive, the legislature and the judiciary. According to Article 53 of the Constitution the executive power of the Union shall be vested in the President. This is because the power is exercised by the executive branch of the State which is headed by the President. The President, however, does not exercise all these powers himself. He does so mostly through officers subordinate to him in accordance with the Constitution. This is how it comes about that the decision of the Central executive acting in the name of the President and of the State executive acting in the name of the Governor is generally an institutional decision. Except in the few cases in which the personal satisfaction of the President or the Governor may be necessary, on the vast majority of occasions such satisfaction, would not be personal satisfaction either of the President or the Governor, but only the satisfaction of the Government which means the satisfaction of the offices subordinate to the President of the Government through whom they act.

(9) Under Article 239 of the Constitution, a Union Territory is administered by the President either by himself in, accordance with article 53 of the Constitution or through an Administrator appointed for that purpose. The question is whether an order of detention under section 3(1) in a Union Territory is passed by the Central Government or by the Administrator as a persona designata. Section 3(1) does not mention the Administrator as being an officer authorised to pass such an order. On the other hand, under section 2(8)(b)(iii) of the General Clauses Act, the Central Government in a Union Territory after the commencement of the Constitution is the Administrator of the Union Territory. The status of the Administrator is thus that of the Central Government and not that of an officer authorised under section 3(1). The Administrator thus functions as the Government and not as an authorised person. Since he is only the head of the Central Government in the Union Territory, he cannot do all things himself, but must function through his subordinates. He has also a whole Secretariat to assist him in the administration. The nature of the administration in a Union Territory is similar to that of the Administration in the Central or State Government. This is shown, by the Union Territories Act, 1963 and the Delhi Administration Act, 1966. Apart from the institutional nature in which the Delhi Administration functions the administrator has also delegated powers vested in him under the Constitution and the different statutes. A perusal of the counter-affidavits and the detention files produced in this case shows that the proposal for detention from the Customs Department first came to the Home Department and was then considered by a screening committee of Secretaries including the Home and the Law Secretaries who recorded a note and then acting on, that note that the Lt. Governor passed an order of detention. The satisfaction, of the Central Government is thus spread over several officers such as the Deputy Secretary. Home, who really studied all the materials, the screening committee who considered legal and other aspects of the same and who gave their opinion in favor of detention which opinion was approved by the Administrator. This is the only way in which the Government can work.

(10) The distinction between the manner in, which an institutional decision is taken as distinguished from a personal decision, is reflected in the change of view from the earlier decisions like Gullapalli Nageshwara Rao and others v. Andhra Pradesh State Road Transport Corporation and another (1959) Supp. I S.C.R. 319, The State of Uttar Pradesh v. Bubu Ram Upadhya, : 1961CriLJ773 , Jayantilal Arnrit Lal Shodhan v. F.N. Rana and others, : [1964]5SCR294 , B.K. Sardari Lal v. Union of India and others, : (1971)ILLJ315SC , and Union, of India v. Jyoti Prakash Mitter, : (1971)ILLJ256SC , on the one hand, to the later decisions like Kalyan Singh v. State of U.P. (1962) Supp. 2 S.C.R. 76, Ishwarlal Girdharilal Joshi, Etc. v. State of Gujarat, : [1968]2SCR267 , A.S. Naidu v. State of Madras, : [1970]3SCR505 , Bejoy Lakshmi Cotton Mills Ltd. v. State of West Bengal and others : [1967]2SCR406 , and the seven-Judge Bench decision of the Supreme Court in, Samsher Singh v. State of Punjab : (1974)IILLJ465SC , on the other. The development of law culminating in the last mentioned decision of the larger Bench is that it is not the personal saitsfaction of the President or the Governor, but the institutional satisfaction of the Central Government or the State' Government as such, which is relevant for compliance with Constitutional or statutory requirements. A fuller discussion of the development of the case law will be found in two Articles (1) 'The one who decides must hear' (1960) 2 J I L I 423, and (2) 'The President, his powers and their exercise' (1971) 13 J I L I 326.

(11) In the present case, the satisfaction under section 3(1) was primarily that of Mr. T. R. Kalia, Deputy Secretary, Home Department, who considered the material placed before him by the Customs Department proposing that order or detention may be passed against the two petitioners and secondarily that of the screening committee of the secretaries of the Delhi Administration, and lastly, that of the Administrator himself. The Government as a whole is a composite legal entity. Each officer in the hierarchy contributes to the decision making process. It cannot be expected that all the steps in the said process will be taken only by the man at the top. Such expectation would be contrary to the very structure and functioning of the Government. We are of the view, thereforee that the satisfaction under section 3(1) did not have to be the personal satisfaction of the Administrator alone,, but the composite satisfaction, of the officers concerned in the decision making process. The counter-affidavit had to be filed by the person who has applied his mind to the original material on which the decision to detain is based. That person is Mr. T.R. Kalia. We have found in, the files the most detailed notes of the material recorded by him. He more than any one else knows the facts of the case. He was, thereforee, the most appropriate person to file the counter-affidavit. The first contention of the petitioner thus fails. How Is Section 5A Of The Cofeposa Related To Articles 21 And 22(5) & (6) A. Constitutional Background

(12) Article 21 of the Constitution guarantees that no person shall be deprived of his life or personal liberty except according to procedure established by law. The various laws empowering the executive to detain a person to prevent him from committing anti-social acts involving grave consequences to the security or stability of the State or society, if the executive authority is satisfied that material exists, have been upheld by the Supreme Court as being 'procedure established by law'. Cofeposa including the amendment by which section 5A was inserted in, it has been put into the Ninth Schedule of the Constitution so as to be beyond challenge as being contrary to any provision of part Iii (Fundamental Rights) of the constitution. Nevertheless, the power of detention so exercised has always come into some kind of conflict with the rights of the detenu guaranteed by Article 22(5). The authority making the order must firstly communicate to the detent the grounds on which the order has been made and shall secondly efford him the opportunity of maiding the representation against the order. The very grounds on which the order of detention . is based have to be communicated to the detenu. The grounds on which the so-called subjective satisfaction of the detaining authority is found to validly rest under section 3(1) of the Act which in turn is valid as procedure established by law under article 21 of the constitution are suddenly exposed to the objective scrutiny of the Advisory Board or the law courts when they are commun,icated to the detenu. The reason is that these grounds must be such as to enable the detenu to make an effective representation against each of these grounds. The dilemma was first posed in State of Bombay v. Atma Ram : 1951CriLJ373 . The three learned Judges constituting the majority held that the court could objectively decide whether these grounds are such as to comply with the requirements of the .fundamental right of the detenu to be able to make an effective representation against his detention under Article 22(5) in, spite of the fact that the merits of the same grounds for sustaining the order of detention could be decided only by the detaining authority in its subjective satisfaction so that the sufficiency of those grounds was not ..justiciable by the courts in respect of the order of detention but the ; same was justiciable under Article 22(5) in relation to the right of representation. The two learned Judges who formed the minority could . not persuade themselves that the same grounds could be non-justiciable in respect of the satisfaction of the detaining authority but coulld become justiciable under Article 22(5). But when the question again came up for consideration in Dr. Ram Krishan Bhardwaj v. The State of Delhi and others : 1953CriLJ1241 , the Constitution, Bench approved the majority view in State of Bombay v. Atma Ram (supra). , The two learned Judges forming the minority in State of Bombay v. Atma Ram changed (heir view and become a party to the unanimous decision in Dr. Ram Krishan, Bhardwaj. In fact the judgment for the court was written by Patanjali Sastri,C.J.,who had dissented from the majority in State of Bombay v.Atma Rain. The reason - why the scope of judicial review of the grounds of detention was since then continuously extended under Article 22(5) was the basic injustice involved in preventive detention particularly of political offenders'. In their anxiety to crib and confine the power of detention and to extend the power of the court to give relief to the detenu the courts developed, the doctrine that even if one of the grounds of detention was invalid and all the rest .were valid, still the detention as a whole would be vitiated. The clearest statement of this doctrine drawn up with great care and balance is by Jagannadhadas J. in DwarkaDass Bhatia v. The State of Jammu & Kashmir : 1957CriLJ316 . The reason given by the court for this view is the 'the matter being on,e for subjective satisfaction it must be properly based on all the reasons on. which it purports to be based. If some out of them are found to be non-existent or irrelevant, the court cannot predicate what the subjective satisfaction of the said authority would have been on, the exclusion of those grounds or reasons, 'to uphold the validity of such an order in spite of the invalidity of some of the reasons or grounds would be to substitute the objective standards of the court for the subjective satisfaction of the statutory authority'.

(13) It will be observed that the very deference extended by the courts to the subjective satisfaction of the detaining authority has been, turned into the main argument for extending the scope of judicial review under Article 22(5). The court, however, placed one limitation on the power of judicial review. It is this: 'In applying these principles, however, the court must be satisfied that the vagua or irrelevant grounds are such as, if excluded, might reasonably have affected the subjective satisfaction of the appropriate authority.' Dua to the antipathy of the court to preventive detention the salutory limitation stated above has not always been kept in view in the courts in examining detention orders. For instance, the six-Judge Bench in Motilal Jain v. State of Bihar & others, : 1969CriLJ33 , held that as one ground was vague and irrelevant and an,othei was non-existent, these defects were sufficient to vitiate the order of detention 'as it is not possible to hold that those grounds could not have influenced the decision of the detaining authority'. While approving the statement of law in Dwarka Nath Bhatia the larger Bench in, Motilal Jain almost unconsciously reversed the burden of proof. According to Dwarka Nath Bhatia invalidity of some grounds would not vitiate the whole of the detention order unless the burden of proof was discharged by the person attacking the validity of the detention order to show that the inyalid grounds are such as, if excluded, might reasonably have affected the subjective satisfaction of the detaining authority. In Motilal Jain the burden of proof is reversed and it was required of the detaining authority to show that the invalid groun,ds could not have influenced the decision of the detaining authority. Perhaps the difference in the statement of law in Motilal Jain was due to an unconscious mental reservation about the power of preventive detention, and was not meant to be a departure from the rule laid down in Dwarka Nath Bhatia. For, in Manu Bhusan Roy Prodhan v. State of West Bengal and others, : 1974CriLJ401 , the ratio of the decision in Motilal Jain, was' construed to be a reaflirmation of the ratio of the decision in Dwarka Nath Bhatia. B. Subjectivity of the statutes modified by the objectivity of Constitution

(14) Though preventive detention could be ordered on the sub' jective satisfaction of the executive authority without contravening Article 21 according to the decision in A. K. Gopalan v. State of Madras : 1950CriLJ1383 , the scrutiny of the same grounds on which subjective satisfaction is based is made objectively under Article 22(5) and this inevitably affects the construction of the statutory provision regarding the subjective satisfaction under the statute. The judicial review of the grounds of subjective satisfaction is thus enlarged as pointed out above. The ultimate justification seems to be that the power of preventive detention should be whittled down as much as possible.

(15) The relevancy of the consideration of the relationship of section 5A to Article 21, on the one hand, and Article 22(5) and (6) on, the other, is to show how the so-called subjective satisfaction required by section 3(1) of the Act does not act as a bar to an objective scrutiny of the same grounds under Article 22(5) even though certain matters may have been withheld in the communication of the grounds made to the deten,u in view of Article 22(6). The argument that the subjective satisfaction of the detaining authority in respect of the grounds of detention cannot be judicially reviewed in respect of the sufficiency of the grounds loses much of its utility when it is realised that the sufficiency of these very grounds is justiciable under Article 22(5) by the courts, though for a different purpose. The reason is that the right guaranteed by Article 22(5) to make an effective representation against grounds of detention is objectively worded and the compliance with the requirements of Article 22(5) is to be determined objectively by the courts. C. Approach to socio-economic legislation

(16) The Parliament has made a distinction between the two different objects for which preventive detention, laws were passed, namely, (1) prevention of activities prejudicial to the security of the State, etc., i.e. activities of political nature or threats to public order, and (2) activities which are sordidly motivated by desire for private gain and aimed at the stability and welfare of the society as a whole, but not against any particular individual, i.e. socio-economic offences. Acting on this distinction the former set of preventive detention; law (MISA) has been repealed. The distinction has been accentuated by confining the use of the enabling provisions of the Constitution to only one kind of preventive detention law, namelv. Cofeposa directed against economic offences. Adeparture from the Misa is also made by the addition of section 5A to the COFEPOSA. These .circumstances would justify a difference in the approach to the construction of section 5A which should not be fettered by the construction of 'the' Misa made by the Supreme Court when no distinction was drawn between potential political and potential economic offenders. For these reason's, it is necessary to give a full effect to the language of section 5A and consider the validity of the order of detention deeming it to be based separately on each of the grounds. A difference in the approach to construction of legislation aimed at economic regulation and other legislation has been adumbrated by the Supreme Court in Superintendent & RemembraH, cer of Legal Affairs, West Bengal v. Girish Kumar Navalakaha & others, : 1975CriLJ874 and B. Banerjee v. Anita Pan, : [1975]2SCR774 . Enactment of Section 5A and the repeat of the Misa :

(17) The object of insertion of section 5A was to ensure under the Cofeposa (as distinguished from the MISA) .thfrdismantling the indivisibility of the various grounds of detention and to enable the detention to be upheld on the valid ground without being affected by the invalidity of other grounds. The main reason, for whittling down the scope of, the. detention power also disappeared with the repeal of MISA. Further, section 5A is unassailable as contravening any of the fundamental rights due to the protection of the Ninth Schedule given to it. The result is that section 5A must be given its full application, so that even if only one of the grounds of detention is valid the detention will be deemed to be made on that ground alone and would not be vitiated by the invalidity of the other grounds. The statutory presumption enacted by section 5A is in accordance with the objectivity which attaches to the construction of Article 22(5). This brings the law of preventive detention in line with the general law that invalidity of some grounds would not affect the validity of the other grounds if the impugned order could besupported on the valid grounds [State of Orissa v. Bidya Bhushan, : (1963)ILLJ239SC , State of Maharashtra v. Babulal Takkamore, : [1967]2SCR583 and Zora Singh v. J. M. Tandon, : AIR1971SC1537 Scrutiny Of The Grounds Of Detention :.

(18) A scrutiny of the grounds of detention would show that grounds 1, 3 and 6 are statement of facts which have been proved by the 87 seizure of gold from Jagat Singh in close association with Thaneshwar Singh; the two being father and son the complicity of Thaneshwar Singh was obvious to the detaining authority. These three grounds are, thereforee, beyond all challenge. Ground 2 is merely an introduction to ground 3. There may be many persons bearing the name of Mohan Singh and Udham Singh in village Maluwal, District Amrit- sar. Since the ground is only introductory it was not necessary for the detaining authority to specify in respect of which of them the information was received by the Customs Department. Similarly, grounds 4 and 5 are intelligence reports. The detaining authority would seek the protection of Article 22(6) against the disclosure of the names of the intelligence agents, etc. The same remarks apply to ground 7. In ground 8 the Administrator has expressly claimed the privilege of non-disclosure under Article 22(6). In our view, thereforee, none of the grounds are irrelevant, non-existent or vague. Are they state

(19) The investigation of the case was primarily done by the Customs Department. It shows that from August, 1962 onwards the petitioners were found by the Customs Department to be continuously involved in the smuggling of gold. The petitioners are really the history sheeters of the Customs Department. A mere recitation of the history does not make the grounds against the petitioners State Just because the history starts as early as in 1962. On the other hand, there is a live link throughout their operations from 1962 till 1977. The grounds are not, thereforee, stale. Was the Detention Order delayed too long after the incident of 2-6-1977:

(20) The supplementary affidavit dated 19th August, 1978, filed by Shri K. L. Marwah, Assistant Collector of Customs (Preventive), New Delhi, explains in detail the steps taken by the Customs Department for obtaining the order of detention against the petitioners from the Central Government. Shri Marwah was the concerned Assistant cellector from May, 1976 to 1st August, 1978, thus covering the whole time from 2-6-1977 to 2-1-1978 which was taken in passing the detention order after the incident of 2nd June, 1977. The Explanationn given by him for the delay is as follows: 2-6-1977 Statement of the petitioner, Jagat Singh, 'Was recorded. 3-6-1977 He disclosed that he had purchased the recovered smug4-6-1977 gled foreign marked gold fro mone Banwarilal of Bombay Devi, Sarafa Bazar, Bombay and that he was disposing of the said gold in the past to three persons named Lakshman, Ram Avtar and Santa of Sarafa Bazar, Bhiwani (Haryana). Both the petitioners disclosed that the seized gold was intended to be disposed of at Bhiwani. Enquiries in Haryana: 3-6-1977 A letter was addressed to the Assistant Collector (Preventive), Chandigarh, to make necessary enquiries and to intimate the result. 30-6-1977 The Assistant Collector (Preventive) Chandigarh, intimated that one person named Santa could not be traced out while enquiries with regard to Lakshman and Ram Avtar were in progress and further that the said information was also passed on for enquiry to Assistant Collector, Rohtak, into the complicity of Lakshman and Ram Avtar. 23-6-1977 Lakshman and Ram Avtar were traced out by the officials 24-3-1977 of the Customs and Central Excise Division Rohtak, and & searches were conducted on 24-6-1977 and 23-6-1977 20-7-1977 about which information was received by the deponent on 20-7-1977. 22-7-1977 The Assistant Collector, Rohtak, also wrote about the result of the enquiry pertaining to Santa saying that there was no shop of Santa at Bhiwani in the Sarafa Bazar. Enquiries at Bombay : 3-6-1977 Bombay Preventive Branch of the Customs Department was requested for further enquiry into the information disclosed by Jagat Singh about his procuring foreign marked gold from Banwari Lal. 14-7-1977 A reminder was sent to them. 25-7-1977 Letter dated 19-7-1977 was received from the Assistant Collector of Customs, Bombay, expressing inability to trace out Banwari Lal for want of adequate particulars and address. 30-7-1977 A further communication and a telegram was sent to 23-8-1977 Bombay Customs who after making further efforts finally reported their inability to trace out Banwari Lal by thenletter of 22-9-1977. Proposal For Detention : 25-9-1977 As the links between the petitioners and the other persons 12-10-1977 disclosed in the statements could not be traced out any & longer the proposal for detention of the petitioners was 18-10-1977 mooted on 25-9-1977 and submitted to the Assistant Collector, who submitted it to the Deputy Collector on 12-10-1977, who approved it on 18-10-1977. 27-10-1977 After securing approval to the proposal the material was assimilated and was put up to the Assistant Collector. 30-10-1977 The Assistant Collector put it up to the Deputy Collector. 17-11-1977 The Deputy Collector submitted it to the Collector. 23-11-1977 The Collector approved it and sent it to the Delhi Administration. A show cause notice for adjudication proceedings under the Customs Act was issued along with copies of statements to the petitioners. 1-12-1977 Copies of various documents referred to in the detailed proposal were submitted to the Delhi Administration. 5-12-1977 The deponent in response to a letter from the Deputy Secretary (Home), Delhi Administration, submitted the relevant case files. Consideration Of The Proposal By The Delhi Administration : The supplementary affidavit of Shri P. C. Misra, Under Secretary (Home), dated 18th August, 1978, explains this: 26-11-1977 Shri T. R. Kalia, Deputy Secretary (Home), wrote a detailed note to the effect that before the proposal is sub mitted for examination by the screening committee, Secretary, Law and Judicial, who was the Chairman of the said committee, may convene a meeting of the said committee for consideration of the proposal so that the relevant files of the case could be obtained from the Customs Department to be placed before the committee. This note was put up to the special Secretary (Home), who agreed with Shri Kalia. The meeting of the screening committee was fixed for 5-12-1977 in the office of the Secretary, Law and Judicial. 1902-12-1977 Files were called from the Customs Department to be placed before the screening committee and notices issued of the proposed meeting. 5-12-1977 The committee met and recorded the fact of production of the records of the proposal for detention. The proposal for detention ran into five pages on the file of the Administration. The Customs Department in continuation of the proposal had also submitted, in the meantime, photostat copies of the statements of the petitioners and the documents evidencing the seizure of gold from them. 8-12-1977 On receipt of the report of the screening committee along with the material the Home department processed the case and submitted it to the Law Department on 8-12-1977. The Law Department raised a query if the petitioner had been ever detained earlier on the basis of these grounds. 15-12-1977 Answer in the negative to the above question was received from the Customs Department. 16-12-1977 The draft of the grounds of detention was prepared and and submitted to the Law Department. 17-12-1977 19-12-1977 Shri T. R. Kalia, Deputy Secretary (Home), submitted the complete case to the Home Secretary. 26-12-1977 After examining the case, the Home Secretary submitted it to the Chief Secretary. The Chief Secretary submitted it to the Lt. Governor. 27-12-1977 The Lt. Governor approved the proposal. 2-1-1978 The order of detention was passed.

(21) The reasons for the delay are of two kinds. Firstly, the activities of the petitioners as perceived by the Customs Department having spread over Haryana as well as Bombay, enquiries had to be made in those places which necessarily took time. The time spent in these enquiries cannot be said to be too long keeping in view the multiplicity of authorities and the distance of the places from Delhi. Secondly, the consideration of the proposal by the Customs Department and by the Secretariat of the Delhi Administration also took considerable time. It is always essential that the officials concerned should deal with the proposal for preventing detention as quickly as possible. But .in considering the time taken by them the following facts have to be borne in mind : (1) The more careful the consideration and larger the number of officials involved in the consideration, the greater the possibility that the consideration would be careful reflecting different points of view. This really benefits the persons against whom detention is contemplated. A hurried proposal for detention considered by fewer persons in lesser time might likely to result in an order of detention, justification for which has not been fully considered; (2) The working of the officials is a part of the general system of administration current in our country. We are all dissatisfied with administrative delays and yet the normal delays of administrative action have to be tolerated so long as a new system is not substituted in place of the present system. It is only when delay is abnormal that it would be intolerable ; (3) The material involved in the investigation made against .the petitioners was considerable and the study of such material by the officials concerned took time. No complaint can be made that more time was taken in considering the material and that less time should have been taken because undue haste would have prejudiced the petitioners themselves. The time devoted to the consideration of the case of the petitioner by the officials was, in our view, the normal time taken in administrative action according to the present procedures and we cannot find fault with it so long as the procedures are not revolutionised and replaced by a new system altogether. Was The Consideration Of The Representation Unduly Delayed ?:

(22) The files produced by the respondents and the supplementary affidavit filed by Shri P. C. Misra, Under Secretary (Home), Delhi Administration, show how the representation made by the petitioners against the order of detention was dealt with by the Delhi Ad- ministration : 16-1-1978 The representation dated 12-1-1978 filed by Shri Harjinder Singh on behalf of the petitioner, Thaneshwar Singh, sent by registered post was received at the Raj Niwas office of the Lt. Governor. 17-1-1978 It was referred to the Secretary (Home). 28-1-1978 The Home Department asked for the comments of the Customs Department on the representation sending to the Customs a copy of the representation. 8-2-1978 Comments from the Collector of Customs receiver vide letter dated 7-2-1978. 9-2-1978 Files along with representation put up to the Administrator. 10-2-1978 The representation was rejected by the Administrator. 15-2-1978 The rejection was communicated to Shri Harjinder Singh, Advocate for the petitioner.

(23) The time taken in the Home Department from 17-1-1978 to 28-1-1978 was unduly long because after taking so much time the Home Department only asked for the comments of the Customs Department. The question is whether any fundamental or statutory right of the petitioner is violated by this delay. We are unable to find any such right either in the Constitution or in the COFEPOSA. Consequently this delay by itself would not be sufficient ground for quashing the order of detention. It would certainly be one of the circumstances to be taken into consideration in assessing the validity of the detention order. But taking into account the other circumstances of the case, namely, the actual seizure of contraband gold from the petitioners on no less than three occasions and the evidence found against them during the investigation of the case about their involvement in continuous activity of smuggling and disposing of the same, it would be impossible to conclude that the detention of the petitioners is unjustified merely on the ground of this delay. Two SUB-CONTENTIONS :

(24) In assailing ground 6 of detention the petitioner, Thaneshwar Singh, made two allegations which may be specifically considered. Firstly, it was said that a copy of the statement dated 2-6-1977 was not given to the petitioner. In the last paragraph of the affidavit of Shri Marwah, it has been stated that when the show cause notice for adjudication in the Customs Department was issued to the petitioners on 23-11-1977 copies of statements were sent to both the petitioners. Secondly, it was stated that the petitioner had withdrawn and retracted his statement. The petitioner has not stated' when and before whom the petitioner had retracted his statement and whether any such retraction was recorded and if so by what authority. In the absence of such averment it is not possible to regard this statement of the petitioner to be a proper pleading. In the absence of a proper leading it is not worthy of being considered.

(25) Since no separate argument was addressed about the detention of Jagat Singh and the arguments addressed in favor of Thaneshwar Singh have been fully considered above and found to be unsustainable. the examination of the case of the petitioner, Thaneshwar Singh and conclusions formed thereon are equally applicable to the case of Jagat Singh also. The writ petitions are dismissed with no order as to costs. M. L. Jain, J. 1 agree with my learned brother Deshpande, J., that these writ petitions deserve to be and so are hereby dismissed. I need not repeat the facts so ably marshalled by his Lordship but will most respectfully like to add a few reasons of my own in support of the order.

(26) The petitioners, father and son, were detained under section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, (for short COFEPOSA) by two separate orders of the Administrator of the Union Territory of Delhi made on January 2, 1978. The detention is being challenged as vocative of clause (5) of Art. 22 of the Constitution. The principal contention is that some (and not all) of the grounds supplied to the detenus were vague or non-existent. It has been held by the Supreme Court in several of its decisions, to refer to a few of them, Dwarka Dass Bhatia v. The State of Jammu and Kashmir, : 1957CriLJ316 , Motilal Jain v. State of Bihar and others, : 1969CriLJ33 , and Manu Bhusan Roy Prodhan v. State of West Bengal and others, : 1974CriLJ401 , that before an order of detention is struck down on account of any of the several grounds being invalid, the court must be satisfied, firstly, that the ground is non-existent, vague, or irrelevant, and secondly, it is of such an essence as might, if excluded, reasonably have affected the subjective satisfaction of the detaining authority, or it cannot be said in respect thereof that it may not have influenced the detaining authority in making Up its mind, or the court cannot predicate what the subjective satisfaction of the authority would have been. But, 'it Is not merely because some ground or reason of a comparatively unessential nature is defective that such an order based on subjective satisfaction can be held to be invalid. The court while anxious to safeguard the personal liberty of the individual will not lightly interfere with such orders', vide Dwarka Dass Bhatia. It followed there from that if any ground not being the sole ground of detention, is unessential and could not have swayed the mind of the authority, then it cannot, even if it be vague or irrelevant, vitiate the order. Upon an examination of all the grounds, I do not find that any of the grounds falls into such a category.

(27) Even otherwise, this contention is no more available to the petitioners because the effect of the inclusion in the Ninth Schedule to the Constitution, of Cofeposa along with its amendment, is that the fundamental right guaranteed by Art. 22 of the Constitution and as explained by the Supreme Court stands modified. The provisions of the Constitution and Cofeposa put together make a sort of a Code in respect of the law of preventive detention in so far as it relates to foreign exchange and smuggling. Section 5A of Cofeposa provides that where a person has been detained in pursuance of an order of detention under sub-section (1) of section 3 which had been made on grounds more than one, (i) such order of detention shall be deemed to have been made separately on each of such grounds, (ii) such order shall not be deemed to be invalid or inoperative merely because one or some of the grounds is or are vague, non-existent, not relevant, not connected or not proximately connected with such person, or invalid for any other reason whatsoever, and (iii) if one or more of the grounds is or are invalid, the order shall be deemed to have been made with reference to the remaining good ground or grounds. It, thereforee,appears to me that where an order of detention is passed upon several grounds, it is, on account of the legal fiction so created, rather a sort of multiple order. It has to be construed as if there are as many orders as there are grounds. thereforee, even if one ground is good, the detention order shall have to be sustained. In order to escape this position, it was urged strenuously and quite ingeniously by the learned counsel for the petitioners that section 5A protects only the satisfaction part of the detention and does not curtail the further right of the detenu to make a representation under clause (5) of Art. 22 which he can, according to the Supreme Court, do effectively only when all the grounds supplied to him for making such representation are good grounds. There is no warrant .for such a contention because section 5A comes into play only after the order has been made and a person has been detained. By then, the satisfaction stage is over long. before and the stage of representation has arrived. It is then that the single order shall be read as if it were several orders. It is rather the later part of section 5A which provides that such an order shall not be deemed to be invalid or inoperative even where it is not possible for the court to hold that after exclusion of any ground which suffers from any of the infirmities as are specified in the section, the detaining authority would still have been satisfied on the remaining ground or grounds and made the order of detention. If the Parliament intends to say that all the grounds need not be good ground and one good ground is sufficient, then the court would not be permitted to entertain any doubt in its mind that the detaining authority would perhaps not have been satisfied if the grounds are an amalgam of grounds, some valid and some invalid. The argument advanced by the learned counselfor the State that a representation made by the detenu under clause (5) of Art. 22 relates back to the examination of the satisfaction of the detaining authority and as long as there is one valid .ground available for such satisfaction, then it cannot be said that the detenu was deprived of making an effective representation against that valid ground, provides complete answer to the point sought to be canvassed. The aforesaid provisions have been designed to overcome the argument often made and sometimes upheld by the courts that the reasons or grounds of detention are not severable and if one is invalid, all are so. As observed in Khudiram Das v. The State of West Bengal and others, : [1975]2SCR832 , what the court does is to 'examine what are the basic facts and materials which actually and in fact weighed with the detaining authority in reaching the requisite satisfaction'. It is a sort of an autopsy. I, thereforee, see no reason to hold that the provisions of section 5A of Cofeposa are confined to the satisfaction part alone and will deprive the detenu of an opportunity of effective representation if all the grounds supplied to him are not good grounds. Divan, C.J in a Full Bench decision in Smt. Pushpaben Kantilal Shah v. K. N. Zutshi and others , has observed and correctly, if I may say so with respect, that the effect of the enactment of section 5A is that unless all the grounds are found to be bad, the order of detention cannot be struck down as an invalid order. That disposes of the main contention.

(28) It was next contended that the subjective satisfaction was not that of the Administrator but some officers in his Secretariat. This is not borne out by the record which was shown to the Court. After a thorough examination at all levels concerned of all the basic and material facts, the papers were placed before the Administrator for his decision and order. That completely repels the contention that the subjective satisfaction was not that of the detaining authority. The power of the Administrator to make the order was not challenged before us. It is difficult to subscribe to the contention that because the matter wa,s, in the first instance, thoroughly gone into by the Deputy Secretary, Home Department, and then by a screening committee, it was the satisfaction of the said Secretary or the screening committee and not that of the Administrator. After having got the matter examined and perusing the papers, if the Administrator agrees to issue .an order, it must be held that the Administrator was satisfied that grounds for detention did there exist. His was the final satisfaction. Every one only knows too well the wariness of the courts in the matter of preventive detentions and it will be improper to presume that the Administrator will approve the proposal without himself having perused all the basic facts and material. The second contention also fails.

(29) The third contention was of comparatively less importance and it does not appear to me that the detention order suffers from such delay as, if unexplained, can throw out the order of detention. It was on the night of 2nd June 1977 that Jagat Singh and Thaneshwar Singh were going on a motorcycle and upon apprehension they were found to carry one iron roller containing foreign gold. The order of detention was made 7 months after that occurrence. It has been satisfactorily explained how this time of 7 months was spent in having the matter investigated and all the antecedents and past of the petitioners examined, first at the level of the Collector of Customs and thereafter the office of the Administrator, and lastly the Administrator. Indeed, it would have been very concerning if the detention order were made hastily soon after the event without detailed examination. The severe scrutiny of the material made by the officers concerned exhibits an anxiety on the part of the detaining authority not to detain a man unless the whole material was thoroughly gone into and considered. The examination of the past record, reports and antecedents relating to a detenu will be made, as was here done, by any dataining authority if it does not want to make an order without full satisfaction that apart from a mere law and order problem, the detenu has to be prevented from mischief, which cannot be controlled by the ordinary legal procedure. The basic material for it must no doubt have a live link but such link need not be immediate. Moreover, section 5A has also taken care of 'proximity' and has provided against any contention that may be raised in this regard. The third contention is hereby rejected.

(30) The fourth objection that was raised was that there was delay in consideration of the representations made by the petitioners. Delay in consideration of the representations is unconstitutional and may prove fatal, but no definite time could be laid down within which a representation should be dealt with save except that it was a constitutional right of the detenu to have his representation considered as expeditiously as possible. The court would look into the facts and circumstances of each case, and decide whether the detaining authority in exercise of its extraordinary power to detain a person without trial has discharged its duty with sufficient alacrity and without undue tardiness, vide Jayanarayan Sukul v. State of West Bengal, : 1970CriLJ743 , Ranjit Dam v. The State of West Bengal, : AIR1972SC1753 , and Nagendra Natht Mondal v. The State of West Bengal, : 1972CriLJ482 . The representations were submitted on January 12, 1978, which were received in the office of the 197 Administrator Oh January 16, 1978, and were marked to the Secretary (Home), on January 17, 1978. The Home Department requested the Department of Customs for comments on January 28, 1978. The comments were received on February 8, 1978, and the papers were put up before the Administrator on February 9, 1978, and the Administrator rejected the representations on February 10, 1978. I have not been able to understand as to at what level any delay can be said to have occurred in the disposal of the representations. They have been considered and disposed of quite expeditiously considering that such matters while brook no delay, can also not be decided in haste.

(31) Yet one more contention deserves to be dealt with. It was complained that the detenus were unable to make effective representations because the copies of their statements dated June 2, 1977, were not given to them. But, this seems to be incorrect because these statements were sent to the petitioners in the adjudication proceedings. Another grievance that was made was that the petitioners had retracted those statements and the copies of those retracted statements were not supplied to them. This seems to be a grievance unsupported by any reliable facts. The petitioners have not stated when and before whom they had retracted their previous statements and in the absence of any such data, no one could expect the detaining authority to supply them with the retracted statements which were simply not available with the detaining auhority. Connected with this was the further contention that the detaining authority had considered additional material such as the report of the screening committee which was not supplied to the detenus. I do not think that the result of examination made by the screening committee was any part of the grounds. It is certainly not a basic and material fact. The contention is rejected.

(32) Lastly, as to mala fides, it was urged that the detaining authority has not answered the charge of mala fides. I have gone through the petition. No such charge was or could be leveled against the detaining authority. If the customs authorities found that the petitioners had been indulging in anti-social activities and they desired that they should be prevented from continuing them, it is not acting mala fide. Malice in fact or in law must be founded in some other source which was not connected with the objectionable activities and has been operating on the mind of the detaining authority. The charge is frivolous and is hereby rejected.

(33) I, thus, find no force in any of the arguments put forward on behalf of the petitioners and disallow both the writ petitions.


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