S. Rangarajan, J.
1. Daya Shankar Kapoor (hereinafter referred as the detenu) was arrested and detained under the Maintenance of Internal Security Act, 1971 (hereinafter called the MISA) on 24-9-1974 by the District Magistrate, Delhi, which order was quashed in Cr. Writ 37 of 1974 by a Division Bench of this Court (consisting of Tatachari and Ansarl, JJ.), reported in 2nd (1975) Delhi 492. On 4-2-1975 he was arrested and detained by the Delhi Administration under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter called the COFEPOSA), which order was quashed in Cr. Writ 12 of 1975 by a Division Bench of this Court (consisting of Prakash Narain and Ansari, JJ.) on 8-5-1975 (copy of the said order is Annexure G to this petition). After the COFEPOSA was amended by an Ordinance (later Act of 1975) the detenu was again arrested and detained by an order passed by the Ministry of Finance on 1-7-1975. But the declaration under Section 12-A of the COFEPOSA was only made on 11-7-1975. The present petition was filed in this Court on 1-8-1975. On account of the challenge to the validity of the declaration made after a lapse of ten days the order of detention, passed on 1-7-1975, was revoked and a fresh order of arrest along with the fresh declaration was made on 1-9-1975. Subsequently the petitioner filed an additional affidavit challenging the orders of detention dated 1-9-1975 in which some of the attacks made on the constitutional validity on the statutory amendment to the COFEPOSA, the Constitution (Thirty-Eighth) Amendment etc. were given up; questions pertaining to the said order having been made mala fide and in violation of the provisions of the Act have alone been argued.
2. Mr. Frank Anthony, learned Counsel for the petitioner, has put forward the following contentions:
(1) The declaration made in this case under Section 12-A of the COFEPOSA was a colourable exercise of power; all the grounds had been disclosed previously and there was no fresh ground or material, the declaration itself did not state that it was not in the public interest to disclose the facts to the detenu or give an opportunity to make a representation. There is not even any pleading in this case that it was against the public interest to disclose the information and materials on the basis of which the said declaration was made and why it was not necessary to give an opportunity to the detenu of making a representation.
(2) Successive orders of detention which were necessitated ex facie by reason of the concerned official(s) being inept, negligent or slipshod in the exercise of the power to detain-which has been frowned upon by the Supreme Court in several decided cases-are contrary to the scheme even of the COFEPOSA, as it is at present, even after the amendment, and could not be resorted to.
(3) After the Court had quashed an order of detention, as in the present case, there could be, no fresh detention at all.
(4) Even if there could be another order of detention it could not be on the same grounds as were considered by the court on the previous occasion without fresh material justifying the later detention.
(5) The Division Bench held, in Cr. Writ 12 of 1975, that all the grounds in support of the detention were bad; they could not by themselves support another order of detention.
3. Before discussing the contentions put forward on behalf of the detenu it is necessary to refer briefly to a few salient facts and the nature of the grounds which had been communicated to the detenu in connection with his two detentions by orders dated 24-9-1974 and 4-2-1975.
4. In connection with the first detention the following three grounds were supplied to the detenu:
(i) You are a bullion dealer and have been persistently active in smuggling gold and dealing in smuggled gold for over a decade.
(ii) You have been involved in the following specific cases relating to smuggling, abetting of smuggling and dealing in smuggled goods.
(a) In September 1961, during the course of scrutiny of the records of the refinery of M/s. R. K. Chander Bhan and R. B. Chander Bhan Multani, it was observed that large quantities of gold had been tendered by Ishvar Chand and Hari Chand on your behalf and on behalf of one Salig Ram, both of M/s. Kapoor Brothers, Bullion Merchants, Chandni Chowk, Delhi. In a statement recorded during the course of investigation it was admitted that the gold had been supplied to you by some persons of Amritsar on the 29th September 1961 and that you had melted the gold and had mixed some alloy in it so that it could be tendered in the refinery for changing its shape. On that day, 1,970.750 gms. of gold was seized in this case.
(iii) There is reliable evidence of your having linked with other smugglers. The following specific instances are mentioned.
5. Since the District Magistrate had used the disjunctive in the order of detention, it was held that he was not certain as to whether he was detaining the petitioner in order to prevent him from smuggling goods or from abetting other persons to smuggle goods or from dealing in smuggled goods, and that without applying his mind he had merely mechanically reproduced the language of the Act and the detention was quashed.
6. Ground (1) was held to be vague; with regard to ground 2 (a) it was pointed out that the District Magistrate had not taken into consideration the fact of the gold seized from the detenu having been returned to him under the orders of Government, a feature which made the ground itself irrelevant. The later order under the COFEPOSA passed by the District Magistrate on 4-2-1975 was on the basis of the same grounds except grounds 1 and 2 (a) which had been held to be bad in this Court's judgment dated 22-11-1974 in Cr. Writ 37 of 1974.
7. The grounds were furnished in the second order of detention which was passed on 4-2-1975 (a copy of the grounds served on the detenu on the second occasion when he was arrested on 4-2-1975 is Annexure F to the petition). It may be noticed at the outset, without going into several details mentioned therein, that they referred to three intelligence reports received in the years 1963, 1964 and 1973:
(i) relating to intelligence report received in September 1963 in the Directorate of Revenue Intelligence about the detenu being involved in conspiracy to smuggle gold on a large scale on account of some Pakistani nationals some of whom had infiltrated into India without even travel documents and under false Hindu names;
(ii) yet another intelligence report received in September 1964 concerning similar activities; and
(iii) intelligence reports received in the month of April 1973 relating to smuggling of gold with foreign markings concealed in plastic beads packed in a gunny bag (155 bars of smuggled gold having been seized from a car belonging to one Mohd. Masoom), and a further statement being recorded from him revealing that the detenu had known him since 1970 and had entered into an agreement with him for supply of smuggled gold from Bombay to Delhi by concealing it in plastic goods ordered by him for his shop etc. It further transpired that articles of haberdashery with smuggled gold concealed therein packed in gunny bags and booked as luggage of Railway tickets ostensibly for passengers who never travelled and the tickets after booking the luggage were destroyed. Details, to which reference may not be made here were referred to indicate that but for the seizure by the Customs authorities certain quantities of smuggled gold would have been delivered to the detenu. It is also of some importance to notice that the Administrator had stated in Annexure F:
The Administrator considers it to be against public interest to disclose the source of intelligence in Grounds Nos. 1, 2 and 3 above and further considers it against public interest to disclose further facts in the intelligence referred to in Grounds Nos. 1, 2 and 3 above.(emphasis added)
8. Ansari, J., speaking for the Division Bench, in Cr. Writ No. 12 of 1975, : reported in found as follows:....in substance they were the same grounds as were contained in the grounds of detention dated September 28th, 1974 except grounds Nos. (i) and (ii) (a) of the earlier grounds of detention which had been held to be bad by this Court in its judgment dated November 22, 1974.
The order of detention is based upon three grounds. It is not necessary for the purpose of this petition to refer to grounds Nos. 1 and 2 in detail. But it is sufficient to state that the facts mentioned in the first ground relate to the year 1963 and the facts mentioned in the second ground relate to the year 1964. Grounds Nos. 1 and 2 by themselves would not be valid grounds for the detain of the detenu, as these grounds are remote and stale. It is only if these grounds are considered along with ground No. 3 which is in the nature of a live link that grounds Nos. 1 and 2 would also be valid grounds for the detention of the detenu.
9. It was observed that ground. No. 3 which furnished the vital link (grounds 1 and 2 being considered to have become stale) had been formulated without taking certain relevant material into consideration, to the details of which we shall revert presently. The conclusion was expressed in the following terms:
As already stated, ground No. 3 forms the live link with grounds Nos. 1 and 2 and if ground No. 3 is not a valid ground, then grounds Nos. 1 and 2, being remote and stale, would not be valid grounds for the detention of the detenu The validity of ground No. 3 depends upon the detenu's connection with the incidents mentioned in ground No. 3 and the sole basis of his connection is Mohd Masoom's statements. It is admitted that Mohd. Masoom had retracted these statements by his telegram dated 13-4-1974 and his letter dated 1-5-1973. The failure on the part of the Administrator to take into consideration these relevant facts shows casualness on his part and lack of application of his mind to all the relevant facts. For these reasons, ground No. 3 vitiates the order of detention.
10. Ansari, J. also expressed displeasure at the District Magistrate having suggested in the note which he had put up to the Administrator before the order of detention dated 4-2-1975 was passed indicating that the earlier order dated 22-11-1974 of this Court in Cr. Writ 37 of 1974 had quashed the order of detention passed under the MISA on 'technical grounds.' The following observations were made in that connection:
This is a wholly unwarranted remark by the District Magistrate. The grounds on which the earlier order of detention under the MISA had been quashed by this Court have been already stated in the earlier portion of this judgment and these grounds cannot be called technical grounds. 'The use of the disjunctive in the order of detention under the MISA indicated uncertainty and lack of application of mind on the part of the detaining authority which vitiated his subjective satisfaction. Ground No. (i) was not based upon any facts or particulars and could not form the basis of a valid detention order. With regard to ground No. (ii) (a), the detaining authority had not taken into consideration relevant facts and the ground was held to be irrelevant for the purpose of passing the detention order. It is unfortunate that the District Magistrate who wrote the note put up before the Administrator, has chosen to characterise the grounds on which this Court had quashed the earlier order of detention as technical grounds, The administrator has obviously been influenced by these remarks made by the District Magistrate in the said note while arriving at his subjective satisfaction. His subjective satisfaction is, thereforee, based upon a misreading of the judgment of this Court in Cr. Writ 37 of 1974-For this reason also, the order of detention passed against the detenu under the Act cannot be sustained.
11. This contention of Mr, Frank Anthony has been considered by us in extenso in Cr. Writ No. 116 of 1975 reported in 2nd (1976) 3 Delhi 192 (Harish Vohra v. Union of India), the judgment in which has been pronounced: today. It would be needless to repeat herein all that has been stated when. considering this contention in that case. It may be sufficient to merely indicate, briefly, what we have held therein to the extent it bears on this case. Public interest, which the declaring authority (as we choose to call him in order to distinguish his capacity as detaining authority) would have to keep in mind, is not the claim of privilege, may be in the public interest, which can be put forward: under Section 123 of the Evidence Act. The public interest against disclosure need not be in respect of all the facts (contained in the information and material in his possession) on the basis of which the declaring authority wishes to act; it would be sufficient for this purpose if at least some of the facts relevant to the making of the declaration are not to be disclosed in the public interest: The mere fact that the grounds had been previously disclosed to the detenu would hardly be relevant while making the declaration because the grounds are distinct from and more than the facts. Even when under Article 22 (5) of the Constitution the grounds have to be supplied to the detenu, the facts pertaining to them need not be disclosed if they are not in the public interest to disclose; in other words, even in a case where the detenu has a constitutional right to the supply of grounds under sub-article (5) it would be for the authority concerned to. consider whether facts should be disclosed or not having regard to public interest. There is, however, no constitutional right to the grounds during the-present emergency because of the suspension of Article 22 of the Constitution among others. Section 12-A (1) of the COFEPOSA, as amended, no doubt provides that the provisions of the said section would have operation during this period notwithstanding anything contained in the Act or any rule of natural justice. Rules of natural justice may have to be read into a statute on the principle of the 'common law supplying the omission in the statute' whenever this course is required and possible. But recourse to this principle cannot be had when the statute itself expressly or by necessary implication provides differently vis-a-vis natural justice, namely the rule of audi alteram partem, in this context. Sub-section (4) has given only a limited right of disclosure of the facts when the declaring authority wishes to act on the basis of information and material in its possession; facts (information and materials) which would not be in the public interest to disclose would not be divulged. This feature has an important bearing on the opportunity which the detenu would have to be given, otherwise, to make a representation. The opportunity to make a representation necessarily postulates a full, fair and effective opportunity, there will be no such opportunity if all relevant facts are not to be disclosed. In almost the same breath the said provision enables the declaring authority not to disclose facts while acting on the basis of information and materials in his possession and to act without giving an opportunity of making a representation; they seem to be coterminous. It would, thereforee, follow that the declaring authority could proceed to make the declaration without disclosing the facts and giving an opportunity of making a representation if he forms the view that it would be against the public interest-in some contexts it is permissible to read 'or' as 'and'-to disclose facts while acting on the basis of the information and materials in his possession. This is a purely executive act, as one can make it from the language of Section 12-A; words like 'decide' etc., used in the former enactments in the context of review or re-consideration, which led to court decisions indicating the exercise of quasijudicial powers, have been carefully eschewed from the COFEPOSA as it is now stands amended. This has a bearing again on the question of the limited compliance with the rule of natural justice; the principle of natural justice is not to have its full sway. Like any executive act, especially when it has civil, or even evil, consequences, it would be liable to challenge on the ground of being ultra vires.
12. It would of course be altogether different if it is possible to draw the inference that the declaring authority did not apply his mind at all to the question of public interest or there was at least a reasonable probability of his not having applied his mind to it. In an endeavor to show non-application of mind, Mr. Frank Anthony placed on record in this case the reply which had been filed by the respondents in Cr. W. 116 of 1975. We have held, after referring to the pleadings in extenso in that case, that there is nothing in the said reply to indicate that the declaring authority was of the view that even regardless of the question of public interest facts need not be disclosed and that no opportunity of making a representation need be given to the person concerned.
13. Mr. Subramaniam, learned Counsel for the respondents did, however, argue in this case before us that on a proper construction of Sub-section (4) it was needless for the declaring authority to advert to the aspect of public interest. While we have no doubt that this is an extreme contention, not warranted by the language of Sub-section (4) as we have indicated more fully in our judgment in Crl. Writ 116 of 1975 reported in 2nd (1976) 1 Delhi 192 delivered today), we are unable to attribute such a view of Sub-section (4) to the declaring authority in this case. We are, thereforee, of the view that this legal contention, which in our view has been wrongly put forward by counsel, will not vitiate the declaration when there is nothing to indicate that the declaring authority in this case acted on such a view of Sub-section (4).
14. We have also referred in the said judgment to the guidelines to be spelt out from the provisions of the COFKPOSA itself and we also referred to the Statement of Objects and Reasons for the Amending Bill of 1975, which makes these guidelines even clearer. While the grounds of detention are those which have been referred to in Section 3 of the COFEPOSA there are certain further matters to be considered in the matter of making a declaration; a declaration need not be made in every case of detention. Such facts which bear upon the making of the declaration would include the gravity of smuggling operations such as we find in this case-aspects such as scale, area, clandestine manner, net-work of operations etc.-would be relevant to assessing the 'gravity' of smuggling operations. Smuggling of such kind has without doubt a deleterious effect on the national economy. The present emergency has reference to the state of the country's present economy. Those engaged in smuggling have to be immobilised by detention. The activities are carried on clandestinely and it has naturally been difficult to procure sufficient evidence to secure the conviction of such offenders by courts. Some of the orders of detention under this Act had been previously quashed by courts by holding the grounds to be vague, irrelevant or otherwise invalid. But at least some of the persons engaged in smuggling having been posing a serious threat to the nation's economy, the disclosure of grounds of detention to such persons and compliance of usual procedures such as referring to the Advisory Boards were not considered by the legislature, in its wisdom, to be in the larger interest of the nation. In order to remove the above-mentioned difficulties and to make special provisions in respect of persons whose detention is necessary for dealing effectively with the emergency the power to make the declaration was newly conferred under Section 12-A. Once such a declaration was made the grounds would not have to be supplied to the detenu; his case would not also have to go to the Advisory Board for its opinion. Both these rights, to the extent they are permitted by this statute, are no doubt valuable rights; it may not be proper to debate which is even more important than the other-the right of having the case considered by the Advisory Board was stressed as being even more important- because both the rights flow from the disclosure of facts and the avowed object of the statute is not to give a right of representation at all to those who have to be dealt with more effectively during this emergency. It is worth emphasizing, by way of repetition, that what would be relevant for making the declaration are not the grounds per se (which would be relevant for making the order of detention, which may or may not be followed by a declaration) but something more as set out earlier, the facts being wider than the grounds. The declaration itself is subject to a review by a higher authority but when the highest authority himself makes a declaration, as in this case, there is no room for even confirmation of that declaration by way of review, by a superior officer.
15. The constitutionality of the provisions of the COFEPOSA not having been challenged in this case we have only to consider whether the acts of detention and declaration, which are purely executive acts, were made under the Act or not; in other words, whether they are ultra virus the statute.
16. No mala fides in fact has been attributed to the detaining and declaring authority in this case. The case of non-application of mind is also one which is not tenable having regard to the discussion in our judgment in Cr. Writ 116 of 1975. There is no attack, which now survives, of any non-compliance of any mandatory provisions of the Act, the previous detention and declaration having been quashed or account of the declaration not being made simultaneously with the detention and fresh orders of detention as well as declaration having been passed. We have also repelled the contention that at the time of making an order of declaration itself the detaining authority should have stated that it was against the public interest to disclose facts; we have also pointed out (and it is true of this case as well) there has been no specific challenge on the ground that the declaring authority did not advert to the question of public interest (as distinct from mentioning this fact in the order) at the time of making the declaration despite the petitioner having annexed a copy of the grounds communicated on the previous occasion (annexure F to the petition), wherein it was expressly stated that the Administrator even then considered it against public interest to disclose not only the source of intelligence reports but also the intelligence reports vis-a-vis grounds 1 to 3.
17. This does not appear to be a case where it can even be urged that the declaring authority did not or even could not have and material for thinking that it was against the public interest to disclose facts; the facts, on the contrary, seem to point out in the opposite direction. Apart from the Administrator having held such a view of public interest previously, the very nature of the operations and the article (gold) said to be smuggled (it was silver in Crl. Writ 116/1975) and the net-work said to include Pakistani nationals would suggest that it was not in the public interest to disclose all the facts. There does not seem to be any cogent reason even for thinking, that the declaring authority either acted capriciously, maliciously, without due care and caution or without applying his mind. The declaration in this case, for the reasons we have discussed elaborately in Cr. Writ 116 of 1975, appears to have been one passed under the provisions of the Act, not colourably or without application of mind. The first contention of Mr. Frank Anthony, thereforee, seems to be without force.
18. This contention has also been dealt with by us in our judgment in Crl. Writ 116 of 1975. Any order passed under any previous Act (the MISA) could not bar an order under a later statute, namely, the COFEPOSA. The order of detention passed under the COFEPOSA on 4-2-1975 was quashed by a Division Bench of this Court in Cr. Writ 12 of 1975 : reported in Delhi. After the detenu was released the COFEPOSA was amended and he was again arrested and detained by the Ministry of Finance on 1-7-1975 and a declaration was passed on 11-7-1975 which was challenged by a petition presented in this Court on 1-8-1975. The challenge, inter alia, included the delay in making the declaration. The order of detention was revoked and fresh order of detention and declaration were made on the same date, namely on 1-9-1975 by the Minister of State for Finance as permitted by Section 11 (2), the order of detention passed on 1-7-1975 itself having been under the COFEPOSA, as amended. We are unable to find any other circumstance sufficient to indicate that the impugned orders of detention and declaration were made mala fide, in the widest meaning of this term. This contention also is not tenable.
Contentions 3 to 5:
19. The grounds on which Ansari, J., speaking for the Division Bench in Cr. Writ 12 of 1975 : quashed the order of detention dated 4-2-1975 have already been extracted. The contentions for the petitioner are:
Ground 3, the live link, had been formulated without taking the relevant material into consideration. The validity of ground 3 depended upon the detenu's connection with institutions mentioned in ground 3; the sole basis of the detenu's connection was a statement by Mohd. Masoom, Mohd. Masoom has retracted those statements. The Administrator had failed to take into consideration the said retraction. This showed casualness and lack of application of mind of all the relevant facts. This was further aggravated by the fact that the District Magistrate has tried to pass off the quashing of the first detention order under the MISA (dated 24-9-1975) as having been made on technical grounds.
20. While there has been no criticism by the Division Bench of the statement of Mohd. Masoom or the other material, a perusal of Annexure 'F' to the petition, namely, the grounds which had been supplied to the detenu, shows the nature and extent of the smuggling activity with which the petitioner is said to have been associated:
A complaint was filed in respect of the activities mentioned in ground 1 and a case is pending in the court of the Chief Metropolitan Magistrate, New Delhi. The second ground referred to the detenu being a member of the conspiracy headed by a Pakistani national, Mohd. Eslam, in the matter of smuggling gold out of India. Particulars referred to in the second ground pertained to certain Pakistani nationals entering India without travel documents and under assumed Hindu names renting out premises, namely D-115, defense Colony, New Delhi, in the name of Madan Lal (an assumed name). C-276 and C-450, defense Colony were said to have been rented at the instance of two Muslims but the family of Ramesh Kapoor was made to reside there so as to provide cover to the illegal activities for receipt and disposal of the smuggled gold. The connection was sought to be established by the members of the conspiracy in respect of disposal of smuggled gold, during the first six months of 1964. of the value of Rs. 48 lakhs as per the statement of one Kanwar Krishan, Reference was also made to the Pakistani Syndicate building up a self-contained organisation in India for maintaining steady supply of gold from Kabul smuggled into India, disposed of here and transferring, in foreign currency, the sale proceeds out of India. It was sought to be established that the petitioner was one of the members of that conspiracy. A case was also pending against the detenu in this connection. The third ground which spoke of the receipt of intelligence in the beginning of the month of April 1973 was said to provide the live-link; it related to the seizure of 155 bars of smuggled gold, each bearing foreign markings and weighing 10 tolas, concealed in plastic beads, packed in a gunny bag and carried in car No. DH 1056 belonging to Mohd. Massom. Some Indian currency notes and travellers cheques along with some other documents said to be useful and relevant to the enquiry were also recovered and seized. In the statement which Mohd. Masoom made on 11-4-1973 he had referred to the detenu having known him from about 1970 and to having entered into an agreement for the detenu getting a supply of smuggled gold from Bombay to Delhi by concealment into plastic goods ordered by him for his shop.
21. The Administrator had then considered that it will be against the public interest to disclose the source of intelligence reports and to disclose further facts in the intelligence in respect of grounds 1 to 3.
22. It is pertinent to note that so far as ground 3 is concerned the Division Bench rested its decision on the retraction of Mohd. Masoom not having been considered by the detaining authority. In these circumstances it cannot be said that the Division Bench had quashed ground 3 on account of its having been bad, There is no question of ''repairing' the said ground. If the retraction by Mohd. Masoom had not then been considered by the detaining authority it could certainly form the basis of later consideration while making the order of detention which is now impugned. In fact, Ansari, J., speaking for the Division Bench, felt sorry for such anti-social activities such as black-marketing and profiteering not being effectively tackled because it had been frustrated by the lapse on the part of the District Magistrate, the detaining authority. He had exhorted that the District Magistrate should in future, take greater care and caution in the matter of exercise of power conferred on him by the Act. Having regard to the grounds on which the prior detention had been quashed it does not seem possible to contend that another detention order namely, the impugned one, was not permissible. It does not seem permissible to contend that the order of detention, as in the present case, having been quashed by the court there could be no fresh detention at all. Nor does it seem correct to say that there cannot be a fresh detention order on grounds as were considered by the court on previous occasion without fresh material. The principle of issue of estoppel could not have operation except in regard to grounds which were actually held to be bad. In the present case there has been no ground which has been held to be bad. What was held to be vitiated was the satisfaction of the detaining authority. The vitiation of such satisfaction, for the reason, as in this case, of not considering the fact of Mohd. Masoom's retraction from his statement, does not seem to be a feature which will vitiate the ground itself. Any defect in the matter of expressing or formulating grounds and communicating them could have no possible impact on the detaining authority considering whether substantial grounds exist for detaining the person concerned under Section 3 of the Act. None of these contentions of Mr. Frank Anthony seems to have any force; we have dealt with them more fully in our judgment in Cr. Writ 116 of 1975 Reported 2nd (1976) 1 Delhi 192 (Harish Vohra v. Union of India) in which we pronounced judgment today.
23. The impugned order of detection and declaration cannot, thereforee, be availed. This Criminal Writ petition is accordingly dismissed.