S.S. Chadha, J.
(1) This petition under Article 226 of the Constitution of India seeks declarations that the detention order dated July 1, 1975 passed against the petitioner under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and the declaration also made on July 1, 1975 under Section 12A of the said Act are illegal and void ab initio.
(2) The petition has arisen on these facts. Shri Ram Lal Narang, the petitioner pursuant to an order made on October 4, 1974 was detained under Section 3(1) of the Maintenance of Internal Security Act, 1971 (for short called the MISA), as amended by the Maintenance of Internal Security (Amendment) Ordinance, 1974. Misa, as originally enacted did not provide for preventive detention erf persons suspected of smuggling or abetting smuggling, but these activities were brought within its ambit by the said Ordinance. The detention of the petitioner was challenged in the High Court of Bombay by his son Ramesh Narang who sought a writ of Habeas Corpus, being Criminal Application No. 847 of 1974. The said petition was dismissed on December 5, 1974 and the petitioner continued to be detained by virtue of the order under the MISA. The Maintenance of Internal Security (Amendment) Ordinance, 1974 was repealed by Section 14 of 'the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short called the COFEPOSA) and accordingly the amendments made in the Misa ceased to have effect on the commencement of COFEPOSA. Section 3 of the Cofeposa conferred power to make orders detaining certain person also with a view to preventing him from smuggling goods or abetting the Smuggling Activites Act, 1974 (for short called the President on December 13, 1974 and published in the. Gazette of India dated December 13, 1974. It was to come into force on such date (being a date not later than 20th day of December, 1974) as the Central Government may, by notification in the official Gazette appoint. The Central Government appointment the date as December 19, 1947 when Cofeposa came into force by publication of a notification dated December 16, 1974. The detention order made under the Misa, ceased to have effect. The petitioner was technically released from detention under the Misa in morning of December 19, 1974.
(3) In exercise of the powers conferred by sub-section (1) of Section 3 of Cofeposa read with Government's notification dated December 17, 1974, Shri K. B. Srivastava, Secretary to the Government of Maharashtra, having been specially empowered by the Government of Maharashtra for the purpose of Section 3, recorded the satisfaction with respect to the petitioner that with a view to preventing him from smuggling goods, it was necessary to make an order of detention. The petitioner was directed to be detained by an order dated December 19, 1974. The petitioner was arrested on December 19, 1974 and detained in Thana Central Prison, Thana. The petitioner was supplied with the grounds of detention as required under sub-section 3 of Section 3 of Cofeposa Prem Raj Sawhney, father-in-law of the petitioner then moved this Court for the issue of a writ in the nature Habeas Corpus and other appropriate relief for quashing the detention order dated December 19, 1974, being Cr. W. No. 10 of 1975. The petition was mostly confined, at the time of hearing, to the validity of the impugned detention order. The petition was heard and decided by a Bench of this Court on April 30, 1975 when the impugned detention order was quashed and the petitioner was directed to be released from the detention forthwith. The Division Bench had examined each one of the four ground forming the basis of the detention order. As regards second ground, it was held that the inclusion of the allegations about the standing Budha was in casual exercise of power, and that it was not possible to predicate how that aspect influenced the mind of the detaining authority. The inclusion of the allegation about standing Budha was held to vitiate the subjective satisfaction and in consequence the detention order. The Union of India filed on May 1, 1975 a petition for special leave to appeal under Article 136 of the Constitution of India against the judgment Of this Court and the leave prayed for was. granted. The appeal was filed in the Supreme Court. The Union of India also moved an application for stay of the operation of the order of this Court passed on April 30, 1975 but the stay application was rejected by the Supreme Court. The petitioner was, however, directed to report to the Police and to remain within Bombay and or Delhi.
(4) In the meanwhile, the President of India issued on June 25, 1975 a proclamation of emergency under Article 352 of the Constitution of India proclaiming that there exists grave emergency whereby the security of India is threatened by internal disturbances. The Proclamation was published in the Gazette of India-Extraordinary on June 26, 1975. The President also issued on June 27, 1975 a notification under Article 359(1) of the Constitution of India whereby the right of any person to move any Court for the enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution of India and all proceedings pending in any court for the enforcement of the above rights were directed to remain suspended for the period during whichthe Proclamation of emergency made under Clause (1) of Article 352 of the Constitution of India on December 3, 1971 and June 25, 1975 were both in force.
(5) An Ordinance, being No. 6 of 1975 was promulgated on July 1, 1975 by the President of India in exercise of the powers conferred by clause (1) of Article 123 of the Constitution of India, whereby the Cofeposa was amended. By the amending Ordinance, Sections 5A, 12(6) and 12A had been inserted in COFEPOSA.
(6) By an order dated July 1, 1975, the Central Government recorded the satisfaction with respect to the petitioner that with a view to preventing him from smuggling goods, it was necessary to make an order detaining him and, thereforee, in exercise of the powers conferred by sub-section (1) of Section 3 of Cofeposa, the Central Government directed that the petitioner be detained and kept in safe custody in the Thana Central Prison, Thana. Simultaneously.. the Central Government passed another order on July 1, 1975 recording satisfaction on the basis of information and material in its possession at the time of making the order of detention under sub-section (1) of Section 3 of Cofeposa against the petitioner that the detention of the petitioner was necessary for dealing effectively with the emergency under which proclamation referred to in sub-section (1) of Section 12A of the Cofeposa had been issued and thereby declared under sub-section (2) of Section 12A that the detention of the petitioner under sub-section (1) of Section 3 of the Cofeposa was necessary for efftctivelv dealing with the said emergency. The orders were issued by order and in the name of the President. In substance this is a declaration made under Section 12A of the COFEPOSA. The petitioner was arrested on July 1, 1975 and taken into custody in Thana Central Prison, Thana where he was confined. Prem Raj Sawhney, the father-in-law of the petitioner again challenged the detention order by filing a writ petition in this Court, being Cr. W. 115 of 1975. The writ petition was dismissed by this Court on November 25, 1975. According to the law laid down by the Supreme Court and this Court, there was a blanket when at the threshold for filing the writs for enforcement of fundamental rights and the petitioner, thereforee, could not be heard during the currency of the emergency. A Criminal Misc. (SCA) No. 123 of 1975 under Article 134(1)(c) of the Constitution of India was filed and this Court granted the certificate against the said judgment dated November 25, 1975 and the matter is pending in the Supreme Court, being appeal No. 399 of 1976.
(7) The proclamation declared by the President under Article 352 of the Constitution of India was withdrawn on March 21, 1977. The petitioner was released from detention on March 23, 1977.
(8) The President issued another Ordinance, being Ordinance No. 20 of 1975, on November 5, 1975 known as Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Ordinance, 1975. The Ordinance was replaced by the Parliament with Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act 13 of 1976. The said Act came into force with effect from November 5, 1975. In this petition, the petitioner has also made challenge to the virus of the various provisions of the said Act but at the time of the hearing of the petition, the counsel for the petitioner has confined the challenge to the alleged illegal detention order dated July 1, 1975 and the declaration datec July 1, 1975 both made under the provisions of Cofeposa The petitioner had received a notice dated May 31, 1976 under Section 6(1) of the said Act. According to the said notice, the properties mentioned in the schedule in the said notice are stated as illegally acquired properties. The provisions of the said Act apply only to persons specified in sub-section (2) of Section 2 of the said Act. Every person in respect of whom an order of detention has, been made under the Cofeposa provided, inter alia, such order of detention has not been set aside by a Court of competent jurisdiction, is a person named to whom the provisions of the said Act apply. Even though the petitioner has been released from detention, he still challenges the legality and validity of the order of detention dated July 1, 1975 made under Section 3(1) of Cofeposa and the declaration dated July 1, 1975 made under Section 12-A of Cofeposa on various grounds. The petitioner is not seeking a writ of habeas corpus as that can be issued only where he is in actual detention. His relief is for quashing the alleged illegal order of detention which is prejudicially affecting the petitioner in the proceedings under the said Act. If the order of detention remains in the field, then the petitioner's right to property is in jeopardy. The petitioner thus has a right to maintain this petition for declaration of the validity of the detention order and the declaration issued under COFEPOSA.
(9) It is necessary to clear the ground first from the effect of the orders of the President under Article 359(1) of the Constitution. The argument of Mr. A. K. Sen, the learned counsel for the petitioner is that after the withdrawal of the emergency, it is open to the petitioner to seek a declaration from the High Court that the order of detention and the declaration made was not in accordance with the mandatory provisions of the Cofeposa and Articles 21 and 22(5) of the Constitution of India. The declaration made by the President under Article 359(1) of the Constitution enables the President to suspend the right to move the Court during the period indicated in the order and once that period expires, the affected party, says the counsel, can move the Court in the manner prescribed by the Constitution. Reliance is placed on 'Makhan Singh v. State of Punjab', : 1964CriLJ217 wherein it was held that Article 359 is really intended to put off the enforcement of the rights of the people affected by those laws and actions till the expiry of the President's order. Reliance is next placed on 'A.D.M. Jabalpur v. Shiva Kant Shukla Air 1976 Sc 120 wherein it was expressed that only the validity of an attack: based on Articles 14 and 19 (which was the challenge in that case) was suspended during the emergency and that once that embargo was lifted. Articles 14 and 19 of the Constitution of India, whose use was suspended, would strike down any legislation which would have been bad. In other words, the declaration of invalidity is stayed during the emergency. Both Articles 358 and 359(1A) provide that as soon as the proclamation of emergency cease to operate, the effect of suspension must vanish except in respect of things done or omitted to be done before the law so ceases to have effect. This view was quoted with approval in 'Madan Mohan Pathak v. U.O.I.'. : (1978)ILLJ406SC .
(10) The proceedings which are barred by the Presdential order dated June 27, 1975 issued under Article 359(1) of the Constitution are such proceedings' as may be taken by citizens for the enforcement oi Tights conferred by part Iii as may be mentioned in the order but effective during the operation of the Proclamation of Emergency. The Presidential order had mentioned Articles 14, 21 and 22 of the Constitution. In view of the Presidential order dated June 27. 1975, no person could file a writ petition before a High Court for Habeas Corpus or any other writ or order or direction to enforce any fundamental rights under Articles 14, 21 and 22 or in other words to challenge the legality of an order of detention on the ground that the order is not under or in compliance with Cofeposa or is illegal or is vitiated by mala fides, factual or legal, or is based in extraneous grounds. There is no dispute to the withdrawal of the emergency declared under Article 352 of the Constitution. This was done by the notification dated March 21, 1977. By the Presidential order under Article 359(1) the enforcement of the rights under Articles 14, 21 and 22 were directed to remain suspended for the period during which the Proclamation of emergency made under clause (1) of Article 352 was in force. While the Presidential order issued under Article 359 was in operation, the rule of law was not obliterated. The executive was bound to act in accordance with law and not 'in disregard or derogatory of it. The executive could not detain a person contrary to law. If the executive had taken any action contrary to law, it did not get validated by the Presidential order. The Presidential order did not grant any sanction to the carrying cm of any unlawful executive action. Article 359(1) merely suspends the enforcement of any of the fundamental rights and after the Presidential order ceases to be operative, it is open to a citizen to seek a determination of the invalidity by the Court. It was ruled in A.D.M. Jabalpur (supra) as under :
'.... Whilst a Presidential Order issued under Article 359, clause (1) is in operation, the rule of law is not obliterated and it continues to operate in all its vigour. The executive is bound to observe and obey the law and it cannot ignore or disregard it. If the executive commits a breach of the law, its action would be unlawful, but merely the remedy would be temporarily barred where it involves enforcement of any of the fundamental rights specified in the Presidential Order. This would be obvious if we consider what would be the position under the criminal law. If the executive detains a person contrary to law or shoots him dead without justifying circumstances, it would clearly be an offence of wrongful confinement in one case and murder in the other, punishable under the relevant provisions of the Indian Penal Code, unless the case falls within the protective mantle of Section 76 or 79 and the officer who is responsible for the offence would be liable to be prosecuted, if there is no procedural bar built by the Code of Criminal Procedure against the initiation of such prosecution. The Presidential Order suspending the enforcement of Article 21 would not bar such a prosecution and the remedy under the Indian Penal 'Code would be very much available...'
It is conceded by the respondents that the fundamental rights guaranteed to the petitioner under Articles 14, 19, 21 and 22of the Constitution are now available to him. The only contention is that they cannot be invoked to challenge the validity of the two orders impugned in the present case. If there was a blanket ban at the threshold for filing the writs for the enforcement of fundamental rights and the petitioner could not be heard during the currency of the emergency, then certainly he has a right to be heard after the withdrawal of the emergency. The validity of the order of detention and the declaration made under Cofeposa can. be gone into as the determination of the validity of the order of detention has a direct bearing to the proceedings initiated under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act 13 of 1976.
(11) The next submission of the counsel for the petitioner is that the grounds of detention have to be framed, formulated and signed contemporaneously at; the time of passing the detention order. According to the counsel, in the instant case, the grounds were neither formulated nor framed nor signed by the detaining authority i.e. Minister at the time of the passing of the detention order and as such the order is not in accordance with the mandatory provisions of Cofeposa and Articles 21 and 22(5) of the Constitution of India. Reliance is placed on 'Krishan Murari Aggarwal v. U.O.I.', A.I.R 1978 S.C. 1877, 'Shalini Soni v. U.O.I.', : 1980CriLJ1487 and 'Jayantilal Bhagwan Das Shaw v. State of Maharashtra, 1981 Mh. L.J. 487. In the counter-affidavit, it is averred that the detaming authority considered the matter of detaining the petitioner and, in the light of the decision of this Court in the earlier writ petition and after examination of the material befare it, it was decided to detain the petitioner under Section 3(1) of COFEPOSA. Further it was also decided in the context of the said material that it would be necessary that a declaration under Section 12-A of Cofeposa be also made since it would not be in the public interest to disclose the facts or to give an opportunity to the petitioner to make a representation. It is further averred that in the nature of the powers conferred on the Central Government under Section 12-A of Cofeposa and the specific language used in the said section, the disclosure of the grounds of detention is not at all necessary, particularly so when it would not be in the public interest to do so. A claim of privilege is made against the disclosure of the material in the proceedings before us.
(12) However, at the time of hearing, Mr. Chandrasekharan, the learned counsel for the Union of India, fairly produced the original file containing the proposal for the detention of the petitioner, the proposed grounds for detention of the petitioner, the consideration of the proposed grounds by the detaining authority and the order of detention passed and the declaration made by the detaining authority. The return to the Rule is also the original record. The reasons for this are not far to seek. Along with the rejoinder affidavit, the petitioner filed a copy of the affidavit of Shri Padmakar Ganesh Gavai. the Chief Secretary to the Government of Maharashtra Mantralava. Bombay in Special Civil Application No 2752175 'Manoharlal Narang v. U.O.I.' then pending in the High Court of Bombay. The petitioner then stated that all the facts having been disclosed and disclosure having been made of the facts in the Bombay High Court, the claim of privilege of facts which have already been disclosed, is not bona fide. The affidavit of Shri Ganesh Gavai had enumerated the facts taken into consideration for passing the detention order against Shri Manohar Lal Narang who is the brother of the petitioner. The allegations of facts contained in the affidavit are against both the brothers and thus presumed by the petitioner to be the same in this case. The claim of privilege not being pressed we may say no more. The record produced shows that the grounds for the detention of the petitioner were proposed and formulated. The formulated grounds along with the substance of the judgment dated April 30, 1975 on the writ of habeas corpus filed on behalf of the petitioner in this Court and the recommendations that the petitioner be redetained under Section 3(1) of the Cofeposa to prevent him from smuggling goods were made. The recommendations were also made that in the context of smuggling activities and of the emergency, the extent and nature of the petitioner's smuggling activities suggest that it would be necessary that a declaration under Section 12-A of the Cofeposa to that effect was also to be made as it was necessary to detain the petitioner for effectively dealing with the emergency. It was recommended that the information and material was such that it would not be in the public interest to disclose the facts or to give an opportunity to the petitioner to make a representation. These recommendations were submitted for the approval of the Finance Minister who is admittedly the competent detaining authority who himself approved these proposals on July 1, 1975. It is thus clear on facts that the grounds of detention were formulated contemporaneously, and concurrently by the detaining authority at the time of passing the detention order. The basic facts or the grounds existed in formulated form at the time when the detention order was made. The declaration under Section 12-A was also made simultaneously. There is thus compliance with the requirements of law. There is no magic in the detaining authority himself formulating the grounds under his signatures. The adoption of the proposed formulated grounds and its approval by and under the hand of the detaining authority meets the requirement of the conscious application of mind and consideration of the material. The three cases relied upon, thereforee, do not call for any discussion.
(13) A feeble argument was raised and may be dealt with first that the petitioner had made on September 3, 1975 an application under Section 11 of Cofeposa for revocation of the detention order but the application has not been considered by the Central Government. The continued detention of the petitioner, during the emergency, and again from March 21, 1977 to March 23, 1977 when the petitioner was released, was bad in law, says the counsel. Reliance is placed on 'Sabir Ahmed v. U.O.I.', : 3SCR738 and 'Shalini Soni and Others v. U.O.I.', : 1980CriLJ1487 , wherein it was held that if representation made by the detenu had been ignored and left unattended for a considerable period, the detention could not be justified as being according to procedure prescribed by law. In our opinion, the rule of law laid down in the above cases is not applicable to the facts of this case. Section 12-A of Cofeposa is a special provision made in the Act for dealing with the emergency. It provides that while making an order of detention under the Cofeposa if the competent authority considers that the detention of such person is necessary for effectively dealing with the emergency then the authority may make a declaration to that effect and communicate the same to the person concerned. A declaration under Section 12-A(2) was made on July 1, 1975 and communicated to the petitioner. The effect of this declaration is that by force of Section 12-A(4), it was not necessary to dispose the facts or to give an opportunity to the petitioner to make a representation. It was ruled in 'Harish Vohra v. U.0.I. by a Division Bench of this Court, with which we are in respectful agreement that :
'..........Reading sub-section (4) by itself the idea emerges, somewhat clearly that when satisfying himself that grounds exist (under section 3 of the Act) for detaining a person he may 'act on the basis of the information and materials' in 'his possession without disclosng the facts or giving an opportunity of making a representation to the person concerned, if he considers it to be against the public interest to do otherwise'. So paraphrased, as we trust without doing any violence to the language of this provision, it would convey two ideas: (1) when the information and materials before him lead to the view that it would be against the public interest to disclose the same he may make the declaration; (2) in such an event he need not give an opportunity to the person concerned.'
The reconsideration of the detention of any person in respect of whom a declaration has been issued under Section 12-A(2) is provided in Section 12-A(2). The reconsideration is to be done by the appropriate Government within four months from the date of such declaration and thereafter at intervals not exceeding four months The Government is given power to revoke the declaration, if it appears, that the detention of the person is no longer necessary for effectively dealing with the emergency. It is not the petitioner's case that no reconsideration was undertaken by the Government periodically as provided. There is no merit in this submission.
(14) The main contention of the learned counsel is that the order of detention was passed upon no material as there was no fresh material to detain the petitioner after the previous order of detention was quashed by this Court. The satisfaction of the detaining authority is urged to be not bona fide, as the alleged intelligence reports are. concocted. The grounds of detention are presumed to be the same as were in the case of Manohar Lal Narang and disclosed in the said affidavit of Shri Padmakar Ganesh Gavai. Mr. Chandrasekharan the learned counsel for the Government did not controvert it and conceded that it may be taken so and later produced the original file containing the grounds of detention. The counsel for the petitioner urges that the first three grounds are in similar words as were disclosed in the previous order of detention against the petitioner, but they relate to the activities of 1965 to 1968 which would be State in 1975 unless the livelink is provided by the fresh activities attributed to the petitioner in the intelligence reports of '1973 and 1974. Shri A. K. Sen then analysed the grounds of detention with his usual forensic ability to urge that they are devoid of details of being specific, in other words vague and that they had not given the quantity and description of the goods proposed to be purchased and smuggled out of India in the Intelligence Reports of 1973 and 1974. It does not contain as to what Incriminating part is to be played by the petitioner. The only allegation is that the mode of smuggling of the antiques was entrusted to the petitioner and no material is disclosed as to whether any such mode was adopted by the petitioner. The contention further is that the incidents of 1973 and 1974 cannot be relevant material for an order of detention made on July 1, 1975, especially when the petitioner was not hi detention under Misa or Cofeposa, he was operating and not under any surveillance but no smuggling activity has been attributed to the petitioner. It would be opposite to reproduce the grounds' of detention for a detailed examination:
'1.Officers of the Bombay Customs House, detained 4 consignments in all comprising of 16 cases declared to contain 'BRASS TRAYS' which were about to be shipped by M/s. India Products, New Delhi-5, per Ex. S.S. 'YOSHI-NOSAN Marit on 28-10-1965. These 4 consignments were covered by the following 4 shipping bills. The total declared value of the Brass Trays in these 16 cases was Rs. 27,460 : (i) No. 9788 of 21-10-1965 for I case of Indian Brass TRAYS' of value of Rs. 2427.25 f.o.b. exported by Ml$. India Products, New Delhi-5 to M[s. General Imports Company, 5035-5045, Willis Avenue, Dallas, Texas, USA. (ii) No. 9789 of 21-10-1965 for 2 cases of Indian Brass TRAYS' of value of Rs. 3562.50 f.o.b. exported by M/s. India Products, New Delhi-5 to M/s. Royal Athena Galleries, 24 East, 80th Street, New York-21. (iii) No. 9790 of 21-10-1965 for 6 cases of Indian Brass TRAYS' of value of Rs. 9642.00 f.o.b. exported by M/s. India Products, New Delhi-5 to M/s. General Imports Company, Texas, USA. (iv) No. 10083 of 21-10-1965 for 7 cases of Indian Brass TRAYS' value of Rs. 11887.00 f.o.b. exported by M/s. India Products, New Delhi-5 to M/s. Everest Rassiga Inc. 13, East, 75th Street, New York City. USA.'
M/s. India Products, New Delhi, at the material time was a partnership concern of Smt. Saroj Narang alias N. Saroj, wife of Manoharlal alias ., Bombay. The investigations revealed that one Lance Dane had originally purchased the idol and subsequently sold it to one Mr. Bomman Behran. It was revealed that Bomman Behran had sold the subject Nataraja idol along with other idols to Manu Narang for Rs. 5 lakhs, which was paid by a cheque issued on the National Grindlays Bank, Cumballa Hill Branch on 7-12-68 out of the Joint Account No. 10418 maintained by Ramlal Narang, Manu Narang and Om Prakash Narang. Though Ramlal Narang had resigned from Directorship on 14-5-68, he had rejoined on 26-11-68 and as such at the material time of the transaction, Ramlal Narang was a Director. Manu Narang when questioned produced a receipt dt. 29-12-68 purported to be from one Hamain Singh of Delhi to show that he had sold the Nataraja and other idols to the said person. The receipt was signed in Urdu. Further investigations conducted and contemporary documents seized by Tamil Nadu Police officers revealed that Hamarn Singh never used to sign in Urdu but only in English. Further investigations conducted in Usa, through Interpol, revealed that one Ben Heller, who received the Nataraja idol, smuggled out of the country, was closely associated with the Narang brothers. He, Bomman Behran and Lance Dene had attanded the marriage of Ramlal Narang on 24-2-68 and had stayed in a hotel at Delhi. During the course of investigations conducted by the Us authorities, Bon Heller admitted attanding the wedding of Ramlal Narang in 1968 but denied making any deal then to buy the Nataraja from Manu Narang. He admitted that he bought the Nataraja from a man named Harnam Singh and later admitted that this person might have been acting as an agent for some one else, possible Narang. 4. Intelligence available in 1973 and 1974 with the Directorate of Revenue Intelligence indicates that Ramlal Narang and his associates continue to indulge in smuggling antiques out of India: (i) In January, 1973, intelligence received indicates that one 'Peter' was expected to arrive in Bombay on or about 7th January 1973 was to contact Ramlal Narang among others with whose help he was to have acquired very valuable antiques for being eventually smuggled out of India. Ramlal Narang was to have arranged for the smuggling. (ii) According to intelligence gathered around 7-10-74, one 'Seijiro-Matsuoka, Mastuoka Goshi Kaisha, 11-10. 6-0 Tome, Ginza CHUO-KU, Tokyo-104 had been supplied a number of costly antiquities by the Narang Brothers. These antiquities had been earlier smuggle out of India to London from -where they were sent to this Japanese party. In fact, Manu Narang had visited this party on 22-7-1974 in Tokyo and at that time learnt that these antiquities (Indian sculputures) were too costly for any Japanese to buy. Manu Narang was to take back these antiquities from the Japanese party.'
(15) Before analysing the grounds, it may be noted that the substantive power to issue an order of detention is conferred upon the competent authority by Section 3(1) of COFEPOSA. Section 3(3) of the Cofeposa has been incorporated in the statute by reason of the provision contained in Article 22(5) of the Constitution as it says that 'for the purposes of clause (5) of Article 22 of the Constitution.' Article 22(5) provides that when any person is detained in pursuance of an order made under law providing for preventive detention, the authority making- the order shall, as soon as may be. communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. Article 22(5), however, does not specifically require that a law providing for preventive detention shall also contain provisions for communicating the grounds of detention to the detenu or to afford him the earliest opportunity of making a representation against the order. A person detained under a law could invoke Article 22(5) and claim that the grounds of detention should be communicated to him and that he should be afforded the earliest opportunity of making a representation against the detention order. In this case the President issued on June 27. 1975 a notification under Article 359(1) of the Constitution whereby the right of any person to move any Court for the enforcement of the rights conferred by Articles 14, 21 and 22 and all proceedings pending in any Court for the enforcement of the above rights were suspended for the period during which the Proclamation of Emergency made under Clause (1) of Article 352 of the Constitution on December 3, 1971 and June 25, 1975 were both in force. The later declared emergency was lifted on March 21, 1977. By order dated July 1, 1975, the competent authority decided to detain the petitioner under Section 3(1) of COFEPOSA. It was also decided simultaneously on the basis of information and material in the possession of the detaining authority at the time of making the order of detention that the detention was necessary for dealing effectively with the emergency. The declaration under Section 12-A was issued on July 1, 1975. The consequence of which was that it was not necessary to disclose the grounds for the purpose of effective representation. We are, thereforee, not called upon to consider the grounds as affecting the ability of the petitioner to make an effective representation within the meaning of Article 22(5) of the Constitution. We have only to consider the information and material before the detaining authority and the conclusions arrived at for the purpose of satisfaction of competent authority within the meaning of Section 3(1). Another aspect may be considered. Section 12-A of Cofeposa does not confer any independent right to issue an order of detention. Section 12-A is a special provision made in the statute for dealing with the emergency in respect of which the Proclamation under clause (1) of Article 352 of the Constitution has been issued. The declaration issued under Section 12-Arecords the satisfaction that it is necessary to detain such person for effectively dealing with the emergency. The declartion when issued acts as a shield for the detention order made by the competent authority under Section 3 of the Cofeposa inasmuch as it is not necessary to disclose to any person detained under a detention order the grounds on which the order has been made during the period of the declaration. Certain other consequences follow from it but that does not mean that the detention order issued under Section 3(1) of Cofeposa gets any immunity from the declaration issued under Section 12-A.
(16) The object of enacting Article 21 of the Constitution was to emphasise that no person shall be deprived of his life or liberty except according to procedure established by law. Even though the right to move any Court with respect to an order of detention for the enforcement of a right under Article 21 had been suspended, the order of detention has to be made under some authority of law. The power to make orders detaining certain persons is contained in Section 3 of COFEPOSA. The competent authority, may, if satisfied, with respect to any person, inter alia, that with a view to preventing him from smuggling goods or abetting the smuggling of goods, it is necessary so to do, make an order directing that such person be detained. Before an order of detention can be made, certain conditions as laid down in the statute must exist and be fulfillled. There must be certain information and material before the compentent authority. To this bundle of facts or material he must apply his independent mind. After considering the relevant material, he must reach to a. certain conclusion. This conclusion enables him to arrive at necessary satisfaction. Even though there was no occasion for communicating the grounds of detention to the petitioner because of the declaration under Section 12-A being in force, it has to be remembered that the subjective satisfaction is a condition precedent for making a detention order under Section 3. The subjective satisfaction has to be based on the relevant material. It is true that the Court cannot go behind the subjective satisfaction of the detendon authority, but a limited review is permissible. The subjective satisfaction of the detaining authority can be tested on the touchstone objectivity. The subjective satisfaction is a sine qua non for the exercise of power of detention and it has got to be exercised properly and discretely. In 'Khudiram Das v. The State of West Bengal and others', ' : 2SCR832 , the Supreme Court had brought out the scope of scrutiny in these words:
'BUTthat does not mean that the subjective satisfaction of the detaining authority is wholly issue from judicial reviewability. The Courts have by judicial decisions carved out an area,limited though it be, within which the validity of the subjective satisfaction can yet be subjected to judicial scrutiny. The basic postulate on which the courts have proceeded is that the subjective satisfaction being a condition precedent for the exercise of the power conferred on the executive, the court can always examine whether the requisite satisfaction is arrived at by the authority: if it is not, the condition precedent to the exercise of the power would not be fulfillled and the exercise of the power would be bad. There are several grounds evolved by judicial decisions for saying that no subjective satisfaction is arrived at by the authority as required under the statute. The simplest case is whether the authority has not applied its mind at all: in such a case the authority could not possibly be satisfied of regards the fact in respect of which it is required to be satisfied. Emperor v. Shibanath Banerji Air 1943 Sc 75 is a case in point.Then there may be a case where the power is exercised dishonestly or for an improper purpose: such a case would also negative the existance of satisfaction on the part of the authority. The existance of 'improper purpose', that is, a purpose not contemplated by the statute, has been recognised as an independent ground of control in saveral decided cases. The satisfaction, moreover, must be a satisfaction of the authority itself, and thereforee, if, in exercising the power, the authority has acted under the dictation of another body as the Commissioner of Police did in Commr. of Police v. Gordhandas Bhanji, : 1SCR135 and the officer of the Ministry of Labour and National Services did in Simms Motor Units Ltd. v. Minister of Labour and National Service, (1946) 2 All. Er 201 the exercise of the power would be bad and so also would the exercise of the power be vitiated where the authority has disabled itself from applying its mind to the facts of each individual case by self-created rules of policy or in any other manner. The satisfaction said to have been arrived at by the authority would also be bad where it is based on the application of a wrong test or the misconstruction of a statute. Where this happened, the satisfaction of the authority would not be in respect of the thing in regard to which it is required to be satisfied. Then again the satisfaction must be grounded 'on materials' which are of rationally probative value'. Machinder v. King. The grounds on which the satisfaction is based must be usch as a rational human being can consider connected with the fact in respect of which the satisfaction is to be reached. They must be relevant to the subject-matter of the inquiry and must not be extraneous to the scope and purpose of the statute. If the authority has taken into account it may even be with the best of intention, as a relevant factor something which it could not properly take into account in deciding whether or not to exercise the power or the manner or extent to which it should be exercised, the exercise of the power would be bad. Pratap Singh v. State of Punjab, : (1966)ILLJ458SC . If there are to be found in the statute expressly or by implication matters which the authority ought to have regard to, then, in exercising the power, the authority must have regard to those matters. The authority must call its attention to the matters which it is bound to consider.'
The High Court, however, cannot go into the adequacy of the material. In 'State of Gujarat v. Adam Kasam Bhava', : 1981CriLJ1686 , it was held:
'....The High Court in its writ jurisdiction under Art. 226 of the Constitution is to see whether the order of detention has been passed on any materials before it. If it is found that the order has been based by the detaining authority on materials on record, then the Court cannot go further and examine whether the material was adequate or not, which is the function of an appellate authority or Court. It can examine the material on record only for the purpose of seeing whether the order of detention has been based on no material. The satisfaction mentioned in Section 3 of the Act is the satisfaction of the detaining authority and not of the Court. . . . . .'
(17) Though the challenge is also directed to the declaration made under Section 12-A of the Cofeposa, yet no arguments have been addressed, obviously for the reason that the petitioner has already been released from detention. The declaration is not now prejudicially affecting the petitioner. The arguments are concentrated on the detention order. It may be recalled that the grounds of detention have been framed, formulated and signed contempora neously at the time of passing the detention order. We have already expressed that the adoption of the proposed formulated grounds and its approval by and under the hand of the detaining authority meets the requirement of the conscious application of the mind and consideration of the material. The order of preventive detention is also not for any oblique motive. The allegations in support of the plea of want to bona fide is bereft of any particulars. The allegation in support of such a plea has to be clear and cogent. All the necessary facts have to be pleaded to give notice to the opposite side to rebut the same. The alleged mala fide consideration in passing the detention order remains wholly unsubstantiated. About the challenge to the veracity of the Intelligence Reports, we will revert later. The question that falls for consideration is whether the grounds include the primary or basic facts indicating the nature of the activities indulged by the petitioner and whether they point and relate to the activities for the prevention of which the detention order was made. Further whether any conclusion have been drawn by the detaining authority that the petitioner had indulged in the prejudicial activity and it is necessary now to prevent him. Mr. A. K. Sen did not address any detailed arguments as regards grounds I, 2 and 3 which were also the grounds in the earlier detention order dated December 19, 1974 but was more eloquent as regards ground No. 4. A Division Bench of this Court in the earlier writ petition (Cr.W.10 of 1975) had expressed that ground I was neither vague nor could it be said to be based on irrelevant material facts or as being mala fide. The very fact that a prosecution is pending in a competent court in Delhi and Departmental adjudication proceedings are also pending belies the contention. The allegations may be false or true, but then in these proceedings that aspect cannot be commented upon. If further particulars regarding investigation showing the connection of the petitioner and his brother are not mentioned in the ground, it does not vitiate the ground as such particularly in view of the pending prosecution. As regards ground 2, it was expressed that with regard to the Shiva-Parvati sculpture sufficient facts were stated culminating the mention of the charge-sheet having been filed in a competent court in New Delhi. There cannot be any vagueness or irrelevancy as far as this sculpture is concerned. As regards ground 3, the Division Bench had expressed that the connection of the petitioner with the alleged smuggling of dancing Shiva in 1968 was sought to be established by incriminating documents relating to the said idol recovered from M/s Narang Overseas Pvt. Ltd. Bombay but no further material was placed before that Division Bench to show how those documents or stock lists incriminated the petitioner. The basic facts in ground 3 now mentioned indicate the nature of activity indulged by the petitioner. The material spells out detention prone activities which have been taken into consideration by the detaining authority. These primary facts are now argued as stale. It is true that the past conduct of aperson should be proximate in point of time to the order of detention so as to make the conclusion necessary and rational that the detention of the person is necessary. But if a livelink is provided, then those prejudicial activities form relevant material to prevent a person from engaging in which a detention order is made.
(18) Ground 4 before the earlier Division Bench was only that 'Intelligence available in 1973 and 1974 with the Directorate of Revenue Intelligence idicates that you and your associates continue to indulge in smuggling antiques out of India'. No further material was put forward and it was held that the ground was undoubtedly vague. It is of no consequence that the part of the material on the basis of which the earlier order of detention was passed against the petitioner and was quashed by this Court is the same before the detaining authority in this case. In law it is open to the detaining authority to pass fresh orders if earlier detention orders have been quashed on technical grounds. The basis of the judgment was the casual exercise of power in view of the allegation about standing Budha and it was not possible to predicate how that aspect influenced the mind of detaining authority. With insertion of Section 5-A in Cofeposa the invalidity of one ground is of no consequence. Ground No. 4 now details the facts indicating the association of the petitioner in smuggling antiques out of India. We may notice here the essential concept of preventive detention. Preventive detention under Section 3 of the Cofeposa is not concerned with actual smuggling but it is related to the possibility of' smuggling. The action taken is precautionary in nature intended to prevent attempts at future smuggling of the goods. Preventive detention is to be distinguished from punitive action. Preventive action is taken by the competent authority in the larger interest of the society on the basis of subjective satisfaction even though the material on the basis of which the subjective satisfaction is recorded may fall short of the standard of proof in a Court of law. Prohibitory detention is a branch of social defense and protects the community from future injury. Preventive detention is not to punish a person for something but to prevent him, in this case from smuggling. The material is to be looked in that backdrop. The ground contains facts and events which facts and events were taken into consideratiori by the detaining authority to come to the conclusion that the petitioner and his associates continue to indulge in smuggling antiques out of India. The Intelligence Report of 1973 indicated that one Peter was expected to arrive in Bombay on or about January 7; 1973, was to contact the petitioner with whose help 'Peter' was to have acquired valuable antiques for being eventually smuggled out of India. The conclusion is drawn of the prejudicial activity. Intelligence Report of October 7, 1974 revealed that a named party in Japan had been supplied a number of costly antiques by the Narang Brothers and these antiques had earlier been smuggled out of India. These primary facts show some connection of the petitioner to the smuggling activities. Nothing has been brought on the record that the Finance Minister has not expressed the opinion honestly except that the Intelligence Reports of 1973 and 1974 are alleged to be concocted. The scope of the limited judicial reviewbility has not to be forgotten. It has to be remembered that the High Court can neither go into the propriety or otherwise of the satisfaction arrived at by the competent authority on the materials nor has the Court any jurisdiction to go into the falsity or otherwise of the primary facts incorporated in the grounds. It is for the competent authority to satisfy itself about the truth or otherwise of the allegations incorporated in the grounds. Investigation as to the truth or the falsity of the grounds contemplates an enquiry with reference to certain infirmities and attending circumstances as to whether the material constituting the ground can be accepted as true. It necessarily leads to scrutiny of the facts otherwise considered in existence by the detaining authority. There is a fundamental difference between an investigation by the Court of the factual existence or non-existence of the ground and whether the primary facts constituting the ground are materially true or false. The law does not allow the Courts the judicial scrutiny of the veracity thereof. The allegations regarding fabrication of the Intelligence Reports of 1973 and 1974 have, thereforee, to be disregarded. The material is entitled to be considered on its face value. There is also no merit in the argument based on alleged vagueness of ground No. 4. The validity of the order of detention could not be challenged on the basis of the vagueness as affecting the right of effective representation as the grounds were not to be served in view of the declaration under Section 12-A of Cofeposa and further the petitioner's right to move the Court was suspended during the currency of the Presidential order of June 27, 1975. According to the ground, the petitioner continued to induge in smuggling antiques out of India. We find that the allegations name two persons residing outside India and whose particulars have been sufficiently incorporated. The illegal transactions comprise of unauthorised dealings in antiques with those two named persons and eventual smuggling out of this country. This involvement of the petitioner to the detention prone activities is the material before the detaining authority. Merely because of further particulars about the incriminating part actually played by the petitioner have not been given, from that it does not automatically follow, that there was no material for subjective satisfaction. It has to be remembered that the order of detention is concerned, what is known as. a jurisdication of suspicion. A, order of detention can be made on the basis of antecedent activities in the proximate past. The Intelligence Reports of 1973 and 1974 are not State and can validly form the material and the livelink for the conclusion that the petitioner continued to indulge in smuggling antiques out of India, as he was doing in 1965 to 196.8 incorporated in the first three .'rounds. There is no mechanical test by counting months of the interval that can be applied in a given case. It all depends upon the extent aid the nature of the prejudicial activties. the period over which it is spread and the context of the smuggling activities and of the emergency. The clandestine nature of the dealines disclosed in the grounds of detention, the difficulties in unearthing the link and the volume of the antiques smuggled indicate that the time gan between the latest report of October 7. 1974 and the order of detention dated July 1. 1975 cannot be regarded as too remote. The Intelligence Reports are the material before the detaining authority who has formed an opinion and reached its satisfaction, 'The ground on which the saitsfaction is based is such as a rational being can consider connected with the petitioner who was to arrange the smuggling of the antiques. The incidents attributed to the petitioner have connection with the obnoxious activities sought to be prevented by the detention order. The ground is not such as to be incapable of bringing about satisfaction in any rational person. The question whether such ground can,giverise to the satisfaction required for making the detention order is outside the scope of the enquiry by this Court. The Court cannot go further into the material on the record and to examine whether the material was adquate or not to form the satisfaction. Such a function is of the appellate authority and not of this Court in writ jurisdiction under Article 226 of the Constitution.
(19) As a result, the challenge to the validity of the detention order dated July 1, 1975 fail?. The writ petition is dismissed with no order as to costs.