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Yogesh Shantilal Choksi Vs. Home Secretary, Govt. of Kerala and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1983CriLJ393
AppellantYogesh Shantilal Choksi
RespondentHome Secretary, Govt. of Kerala and anr.
Cases ReferredJayantilal Bhagwandas Shah v. State of Maharashtra
Excerpt:
- - however, not satisfied with the same, the customs officers took the petitioner and others to customs house and the ornaments were seized. 3. on the ground that the petitioner and other persons were involved in an offence of attempting to export silver items to dubai without obtaining the necessary government approval and hence the ornaments were liable for confiscation and the persons were liable to be penalised under the customs act, the petitioner as well as the other persons were served with a show cause notice on 7-4-1980. the petitioner filed his reply dt. 16-9-1981 that efforts made to trace the petitioner in bombay by the customs department as well as by the police department did not prove successful and the petitioner's whereabouts are not known. 8. the government was.....ordert. chandrasekhara menon, j.1. the petitioner who is a resident of bombay city seeks in this writ petition to quash the order of detention passed against him by the state of kerala, the 2nd respondent herein (the 1st respondent being the home secretary, government of kerala) under the provisions of the conservation of foreign exchange and prevention of smuggling activities act, 1974, on 29th april, 1980, with a further and consequential prayer to prohibit the two respondents from executing the said order. the petitioner is working in his father's concern m/s. shantilal kalidas chokshi & co., gold and silver merchants, at bombay.2. petitioner's case:2nd november, 1979, the petitioner had been to kolhapur to a firm by name rathod arts at kolhapur. from there, at the suggestion of the.....
Judgment:
ORDER

T. Chandrasekhara Menon, J.

1. The petitioner who is a resident of Bombay City seeks in this writ petition to quash the order of detention passed against him by the State of Kerala, the 2nd respondent herein (the 1st respondent being the Home Secretary, Government of Kerala) under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, on 29th April, 1980, with a further and consequential prayer to prohibit the two respondents from executing the said order. The petitioner is working in his father's concern M/s. Shantilal Kalidas Chokshi & Co., Gold and Silver Merchants, at Bombay.

2. Petitioner's case:

2nd November, 1979, the petitioner had been to Kolhapur to a firm by name Rathod Arts at Kolhapur. From there, at the suggestion of the said Rathod, for disposal of 120 kgs. of silver ornaments which he had taken from Bombay for sale, the petitioner proceeded to Bhatkal by car. He was not successful in selling the ornaments there. From Bhatkal he proceeded to Mangalore with three other persons in the car. As it was Sunday when they reached Mangalore and the petitioner cannot sell the ornaments there, it is alleged, someone suggested that they can proceed to Calicut and then to Trivandrum, where they will be able to dispose of the ornaments and then they can fly back to Bombay. The car gave some trouble and was sent back with the driver. Since the jewellers at Calicut did not buy the same ornaments, the petitioner, one Mohamad Irfan and one Abdul Razak proceeded by a taxi to Trivandrum. On the way, near Cochin, the car was stopped by the Customs Officers. When they noticed the ornaments on search, they asked for documentary proof in respect of the purchase of the same. The petitioner produced an authority letter of the said firm as regards the same and its destination. However, not satisfied with the same, the Customs Officers took the petitioner and others to Customs House and the ornaments were seized. The petitioner and others were detained there for four days. The Customs Officers extracted confessional statements from the said persons to the effect that the said ornaments were meant for export to Dubai through Trivandrum. They were then released on bail for a sum of Rs. 2.000/- in Nov., 1979 by a Judicial Magistrate at Cochin before whom they had been produced by the Customs Department.

3. On the ground that the petitioner and other persons were involved in an offence of attempting to export silver items to Dubai without obtaining the necessary Government approval and hence the ornaments were liable for confiscation and the persons were liable to be penalised under the Customs Act, the petitioner as well as the other persons were served with a show cause notice on 7-4-1980. The petitioner filed his reply Dt. 25-11-1980. The hearing was over in the matter in July, 1981. The Collector of Customs, imposed a penalty of Rs. 30.000/- on the petitioner for an offence Under Section 114 of the Customs Act but directed the return of Rupees 1,000/- taken from the petitioner at the time of seizure of the ornaments.

4. It might be noted here that after his release on bail in Nov., 1979 by the Judicial Magistrate, the petitioner had written to the Cochin Customs alleging that statements have been taken from him under threat and coercion. He had received the show cause notice, etc. at his residential address at Bombay.

5. Having got knowledge from the Customs Officers of the Bombay Customs who visited his residents at Bombay in his absence that the petitioner is to be detained under the provisions of the COFEPOSA Act, 1974 as per the order of the 1st respondent Dt. 29-4-1980, the petitioner moved the Bombay High Court on 5-10-1981 challenging the said order of detention. However, on legal advise he withdrew the said petition with the permission of the Bombay High Court on 7-10-1981. The petitioner has now approached this Court for quashing the order of detention because according to him this Court alone has got jurisdiction in the matter. The order is challenged on the following grounds:

(1) The inordinate delay in passing the order of detention in respect of the incident which forms the basis of the subject-matter of detention and the further delay in seeking to execute the same. The incident occurred on 5-11-1979 and the order of detention is passed six months thereafter. This is sought to be executed after a period of 16 months. There must, according to the petitioner, exist a close and proximate nexus in point of time between the time at which the alleged incident happened and the date on which the detention order was passed.

(2) There has been no application of mind by the authorities on relevant materials in passing the order.

and (3) The detaining authority has not applied its mind to the fact that the prosecution case has been initiated by the Customs Authorities.

6. Respondents' case:

The Additional Secretary (Home Department) has filed a counter-affidavit in the- matter. There it is stated that the Collector of Customs and Central Excise, Cochin by his communication Dt. 22-3-1980 requested the 2nd respondent to consider a proposal for detaining the petitioner and one Mohammed Irfan under the provisions of the COFEPOSA Act, 1974. The Collector also placed before the Government the grounds and materials on which the detention of the petitioner is sponsored by the customs authorities. It is on that basis that the order of detention was passed on 18-4-1980. This order was forwarded to the Commissioner of Police, Trivandrum City on 18-4-1980 itself for due execution. Earnest effort's were made by the Police of the State to execute the order of detention. Repeated messages were being issued by the 1st respondent to the Police Officers of the State reminding them to execute the order. A senior Police Officer was deputed to Bombay to execute the order of detention. But the petitioner could not be found as he was evading detention. Therefore the State Police returned the order of detention unexecuted on 9-3-1981. Thereafter the order of detention was forwarded to the Commissioner of Police, Crime, Bombay, on 13-3-1981. The Additional Commissioner of Police, Crime, Bombay, informed the Government, the 2nd respondent, in his letter Dt. 16-9-1981 that efforts made to trace the petitioner in Bombay by the Customs Department as well as by the Police Department did not prove successful and the petitioner's whereabouts are not known. Therefore it has to be inferred that the petitioner is evading the execution of the order of detention. The petitioner's wife preferred a petition dt. 28-3-1981 before the Minister of State for Finance, Government of India North Block, New Delhi referring to the order of detention passed against the petitioner and seeking redressal against the order of detention from the Central Government, from which it can be found that the petitioner removed himself from his usual place of residence with a view to evade detention.

7. According to the respondents none of the grounds urged by the petitioner is available to him for getting relief in the matter. There was absolutely no avoidable delay in passing Ext. R1 order. Even though the petitioner and others were intercepted on 5-11-1979 by the Customs authorities, the Customs authorities conducted detailed investigation in the case to ensure that all material is collected and placed before Government. The investigating agency questioned and recorded statements of witnesses at different places up to 15-2-1980. Thereafter, as stated earlier, a report was made to Government on 22-3-1980 giving the grounds for detention and the materials collected at the investigation after which the order of detention was passed without delay.

8. The Government was satisfied that the detention of the petitioner is necessary to prevent similar activities in future. From the facts and materials revealed at the investigation conducted by the Customs Department, Government is satisfied that. The 206 kgs. of silver articles valued at Us. 4,94,400/- seized from the petitioner and others on 5-11-1979 were intended to be exported to Dubai in violation of the provisions of the Customs Act, 1962 and the Export Trade Control Restrictions. Government was also satisfied that the petitioner is likely to indulge in similar activities in future. This led to the order of detention. According to the respondents the petition is not maintainable since the petitioner has intentionally evaded the execution of the order of detention. They would also submit that the petition to quash Ext. R1 order is highly belated and the explanation offered by the petitioner would not be accepted.

9. Before going into the matter it might be necessary to just refer to the grounds for detention of the petitioner. These grounds have been disclosed by the learned Additional Advocate General appearing for the respondents. In the statement of grounds, first it is stated that on 24-6-1971, the Officers of the Marine and Preventive Division, Bombay, seized a Jeep bearing No. GJF 2163, with eight occupants and recover-ed from seven of them eighty nine slabs of silver, weighing in all 83.296 kgs. and in the Adjudication Proceedings drawn up by the Collector of Customs (Preventive) Bombay in his order No. VIII (b) 10 (95) Cus/71 dt. 30-11-1972, imposed penalties of Rs. 10,000/- on Shri Shantilal Kali Das Choksi, petitioner's father and Rs. 5.000/- on the petitioner and varying penalties on the other persons involved, and confiscated the silver and Jeep to Government.

10. Then the grounds for detention give details relating to the seizure of the Lorry from the petitioner and others on 5-11-1979. It is stated there that on examination it was found that the silver articles were of crude form not normally used to be worn on person, made in shapes and forms in order to look as though they are silver ornaments. It refers to the letter which the petitioner has produced in the letterhead of his father's firm wherein it was stated that 120 kgs. of assorted silver jewellery were sent through the petitioner for approval. From the brief case of the petitioner a reservation ticket of M/s. Mohan Travels, Kolhapur, issued from Bombay for the petitioner's journey on 2-11-1979 by 9.30 p.m. from Bombay to Kolhapur was recovered. From the possession of Shri Mohamed Irfan, a cotraveller, two bills for Rs. 32.60 and Rs. 36,00 being the telephone charges and room rent issued by hotel 'Ratnagiri', Calicut were recovered. An amount of Rs. 26,000/- was recovered from the petitioner and Mohammed Irfan. An amount of 95 Dirhams was found out from the possession of one Abdul Razak, a co-passenger travelling with the petitioner and from the underwear pocket of Abdul Razak a passport issued at Dubai in his name and a Gulf Air passenger ticket from Bombay to Dubai were also found out. On the personal examination of the person of Mohammed Irfari, a passport issued at Madras to him and a Kuwait Airways passenger ticket were also found out. The consignment of silver articles was weighed and found to be 206 kgs. Then the grounds proceeded to deal with the statement given by the petitioner at the time wherein it was stated that the articles were transported to Trivandrum for subsequent removal to Dubai under the guise of personal baggage as there were restrictions in the transport of silver bars/ornaments. It is further stated that from the statement given by the petitioner and Mohammed Irfan it was evident that the restrictions regarding the export of silver was discussed by the petitioner with Mohammed Irfan and the petitioner knowingly procured 120 Kgs. of silver with the intention of making it available to Mohammed Irfan for export to Dubai illegally and aided and abetted with Mohammed Irfan in the attempt to smuggle out the silver articles and jewellery. The grounds of detention then details the statement of petitioner dt. 5-11-1979 where he had denied all the accusations against him and given explanation as to how the silver was taken to Trivandrum. It is pointed out that M/s. Shet Jewellers had stated that they have no dealings with Shantilal Kali Das Choksi, Bombay or the petitioner and they did not purchase old silver jewellery and have not ordered for silver bullion in crude ornaments form as stated by the petitioner. The. grounds of detention then proceeds by stating that from the statements dt. 5-11-1979 of the petitioner and Mohammed Irfan and statement of M/s. Shet Jewellers, Mangalore and evidence on record it is evident that the petitioner had attempted to export the silver evading the Trade Control Regulations and in violation of the provisions of Customs Act, 1962.

11. Decision of the Court : On a very reading of the grounds of detention, it has to be set aside. The difference between preventive detention and punitive detention has been dealt with in H. Saha v. State of W.B. : 1974CriLJ1479 . In that case the constitutional validity of the Maintenance of Internal Security Act, 1971 had been challenged as violative of Articles 19, 21, 22(5) and 14 of the Constitution of India. Ray, C. J. speaking for a Constitutional Bench of the court pointed out that the power of preventive detention is qualitatively different from punitive detention. The power of preventive detention is a precautionary power exercised in reasonable anticipation. It may or may not relate to an offence. It is not a parallel proceeding. It does not overlap with prosecution even if it relies on certain facts for which prosecution may be launched or may have been launched. An order of preventive detention may be made before Or during prosecution. An order of preventive detention may be made with or without prosecution and in anticipation or after discharge or even acquittal. The pendency of prosecution is no bar to an order of preventive detention. An order of preventive detention is also not a bar to prosecution. I have referred to this decision because the fact that the petitioner might have committed an offence punishable under the Customs Act or any other statute is no reason why he should be detained. The order of detention should specifically mention that the reason for detention is to prevent offence being committed by the petitioner which can be reasonably anticipated, in view of his past conduct. As. Ray, C. J., pointed out the power of preventive detention is really a precautionary power. The detention should be based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances. No doubt an earlier offence was committed by the Firm of his father, where he was also implicated in 1971. which is mentioned in the ground for detention.

12. In Bhut Nath v. State of West Bengal : 1974CriLJ690 Krishna Iyer J. and Sarkaria, J. have expressed apprehension against the power of detention being used to subvert, supplant or to substitute the punitive law of the Penal Code. They said that the immune expedient of throwing into a prison cell one whom the ordinary law would take care of, merely because it is irksome to undertake the inconvenience of proving guilt in court is unfair abuse. The same Judges observed in Dulal Roy v. Dist. Magistrate, Burdwan : 1975CriLJ1322 that the satisfaction of the authority as to the inclination of such person to act in any prejudicial manner is sine qua non for making an order of his detention. There must be a proximate nexus between the preventive action and the past activity of the detenu on which it is founded. In Abdul Gaffer v. State of West Bengal : 1975CriLJ1233 the order of detention was passed on a few instances of theft of railway property for which the petitioner had been prosecuted. The contention before the court was that the order of detention was passed mechanically without applying its mind to the question. The facts disclosed the tendency of the petitioner to act prejudicially in the manner mentioned in the detention order. The bald but sweeping allegation in the counter Hied on behalf of the State that witnesses were also afraid of giving evidence in court against the petitioner (detenu) was considered by the court to be incredulous and cannot be swallowed. The learned Judge Sarkaria, J., then observed that the conclusion is inescapable that the petitioner has been preventively detained without application of mind as to whether the prosecution against him was foredoomed to failure on the ground of witnesses being afraid to depose against the detenu in court. The impugned order has been made in a casual and cavalier manner. The power of detention should not be used in a colourable manner as a clerk for subverting the process of Criminal Law and irksome court procedure.

13. In Kanchanlal v. State of Gujarat : 1979CriLJ1306 Justice Chinnappa Reddy speaking for a Bench of three Judges pointed ed out after discussing the important case laws on the point that the possibility of launching a criminal prosecution is not an absolute bar to an order of preventive detention, nor is it correct to say that if such possibility is not present to the mind of the detaining authority the order of detention is necessarily bad. Where an express allegation is made that the order of detention was issued in a mechanical fashion without keeping present to its mind the question whether it was necessary to make such an order when an ordinary criminal prosecution could well serve the purpose, the detaining authority must satisfy the Court that that question too was borne in mind before the order of detention was made.

14. On this basis let us consider what the petitioner stated about this in his writ petition. It is said that in this case the only allegation against him is to the effect that he was found in possession of 120 Kgs. of silver ornaments while travelling near Cochin and that according to the Department, certain other persons intended to export these ornaments out of India. The petitioner points out that possession of silver ornament itself is no offence under the Customs Act or any other law. The petitioner states that he is not a habitual offender and cannot be placed in the category of persons whom law requires should be prevented from repeating the similar offences. He pointed out that in 1971 he was prosecuted for an alleged offence under Section 135(1)(ii) of the Customs Act, 1962 but was acquitted by the Chief Metropolitan Magistrate, Bombay. Then he states that he was sought to be prosecuted in respect of the said incident in Cochin but had been released on bail by the court in Cochin. There was no legal evidence on which the prosecution can succeed, as it relies only on an alleged confessional statement of the petitioner obtained illegally and also on statements of co-accused and accomplices and not on any independent evidence whatever apart from lacking in any corroboration. The petitioner contends that it is obvious that the order of detention has been passed because the Customs authorities and the detaining authority have realised that the prosecution against the petitioner is bound to fail. The order of detention is therefore punitive in character and is passed mala fide to circumvent the ordinary process of law and is for that reason also illegal and void, In spite of the decisions of the Supreme Court where it has been said that the detaining authority in the face of such allegation should satisfy the court that the order of detention was not issued in mechanical fashion and that the detaining authority kept in mind the possibility of prosecution, what is stated in the counter is that from the facts and materials revealed at the investigation conducted by the Customs Department, Government was satisfied that the 206 Kgs. of silver articles valued at Rupees 4,94,400/- seized from the petitioner and others on 5-11-1979 were intended to be exported to Dubai in violation of the provisions of the Customs Act 1962 and the Export Trade Control Restrictions and that the Govt. was also further satisfied that the petitioner is likely to indulge in similar activities in future and therefore the order of detention is legal and valid. None of the materials on the basis of which Government was satisfied has been placed before the court and in the grounds for detention there is not even a statement that from any particular fact or facts Government was satisfied that the petitioner is likely to indulge in similar activities in future. It is no doubt true that in regard to the order of detention this Court is only to see that the order is passed on materials on record and this Court should not enquire into the adequacy of such materials. That is so with regard to any administrative order but there should be some materials on record on the basis of which the authority should have been satisfied. When there were such materials it is the duty of the detaining authority to refer to these materials on the basis of which it was satisfied. That has not been done here.

15. Certainly this Court would not be justified in holding that the materials that were before the authority were adequate or not. That is the function of the appellate authority and not of the court under Article 226 in regard to such orders. As pointed out in the decision referred to by the Additional Advocate General himself in State of Gujarat v. Adam Kasam Bhava : 1981CriLJ1686 , the High Court has only to see whether the order of detention has been based on materials on record. It is well settled and I need not refer authorities for that, if no reasonable conviction can be drawn on the basis of the materials before the authority, that the person ought to be detained for preventing offences which he was likely to commit, the order of detention would be bad.

16. In regard to the grounds of delay also there is no proper explanation by the detaining authority. In Lakshman Khatik v. State of West Bengal : 1974CriLJ936 the Supreme Court has said that though mere delay in passing a detention order is not conclusive, the authorities concerned must have due regard to the object with which the order is passed. If the object was to prevent disruption of supplies of foodgrains, as was alleged in that case, prompt action should be taken. In the absence of any explanation regarding the delay, the court said the order of detention passed with a view to prevent disruption of supplies of ; foodgrains on the grounds based on incident's of removal of rice which took place about seven months earlier, was invalid. Here in this case the petitioner has pointed out that though the incident had occurred on 5-11-1979, the order of detention is passed more than six months afterwards. Ext. R1 produced by the respondents show that it was passed on 18-4-1980. The delay is sought to be explained in the following manner:

It is also submitted that there is absolutely no avoidable delay in passing Ext. R1 order. Even though the petitioner and others were intercepted on 5-11-1979 by the Customs Authorities, it is seen that the Customs Authorities conducted detailed investigation in the case to ensure that all material is collected and placed before Government. It is also seen that the investigating agency questioned and recorded statement of witnesses at different places up to 15-2-1980. Thereafter as stated earlier a report was made to Government on 22-3-1980 giving the grounds for detention and the materials collected at the investigation. It is submitted that there is no intentional or avoidable delay in passing the order Ext. R1.

17. The learned Additional Advocate General was kind enough to place the relevant grounds of detention the detaining authority had on record before this Court. In regard to the incident of 5-11-1979 all the details as to how the petitioner and others were questioned and to the silver articles that were found out and seized and what was subsequently explained to the Customs Authorities by the petitioner are all pointed out. But the authorities seem to forget that the detention cannot be bad as punishment for the offence which the petitioner is said to have committed. It can only be for the purpose of preventing future activities of similar nature by the petitioner and for the matter no materials have been disclosed in the grounds of detention except the prior prosecution in 1972. I do not understand why the further investigation by the customs authorities for the specific offence should prevent the authorities from reporting the matter to the Government and the Government passing orders for detention, Therefore there is [much force in the petitioner's contention that the order of detention was passed because it was found by the customs authorities that it is not possible for them to get a conviction on the specific offence alleged against the petitioner. The Supreme Court has said in Kan-chanlal v. State of Gujarat : 1979CriLJ1306 that (at p. 1307 of Cri LJ):

First merely because a detenu is liable to be tried in a criminal court for the commission of a criminal offence or to be proceeded against for preventing him from committing offences dealt with in Chapter VIII of the Code of Criminal Procedure would not by itself debar the Government from taking action for his detention under the Act. Second, the fact that the police arrests a person and later on enlarges him on bail and initiates steps to prosecute him under Code of Criminal Procedure and even lodges a first information report may be no bar against the District Magistrate issuing an order under the preventive detention. Third, where the concerned person is actually in jail custody at the time when an order of detention is passed against him and is not likely to be released for a fair length of time, it may be possible to contend that there could be no satisfaction on the part of the detaining authority as to the likelihood of such a person indulging in activities which would jeopardise the security of the State or the public order. Fourth the mere circumstance that a detention order is passed during the pendency of the prosecution will not violate the order. Fifth, the order of detention is a precautionary measure. It is based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances.

If this be the principle where detention can be ordered, it cannot be said that there was any reasonable ground for the delay of six months that had been occasioned before the order of detention was passed. In Golam Hussain v. Police Commr., Calcutta : 1974CriLJ938 Justice Krishna Iyer speaking for himself and Justice Khanna pointed out that merely because the grounds of detention have been the subject-matter of criminal cases which have ended in discharge, it cannot be said that the order of detention is mala fide because the basic imperative of proof beyond reasonable doubt does not apply to the subjective satisfaction component of imprisonment for reasons of internal security. It is true that there must be a live link between the grounds of criminal activity alleged by the detaining authority and the purpose of detention. No authority, acting rationally can be satisfied, subjectively or otherwise, of future mischief merely because long ago the detenu had done something evil. But no mechanical test by counting the months of the interval is sound. It all depends on the nature of the acts relied on grave and determined or less serious and corrigible, on the length of the gap short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation. If the detaining authority takes the chance of conviction and, when court verdict goes against it, falls back on its detention power to punish one whom the court would not convict, it is an abuse and virtual nullification of the judicial process. But if honestly finding a dangerous person getting away with it by overawing witnesses or concealing the commission cleverly, an authority thinks on the material before him that there is likelihood of and need to interdict public disorder at his instance he may validly direct detention. In that case where the acts were serious, being bomb hurling and brickbat throwing in public places creating panic; the involvement of the detenu was discovered only during the investigation of the offences; the witnesses were scared away deposing and in these special circumstances if the Commissioner formed the satisfaction requisite for ordering preventive detention, the detention order cannot be said to be bad on the grounds that there had been a long interval of nine months.

18. On the facts disclosed earlier here on 5-11-1979 the statement of all persons were taken. They were released on bail after 4 days. There were nothing further as disclosed in the grounds of detention except the grounds which the petitioner placed before the customs authorities in the show cause notice issued to him. It has been placed as a new material before the Government. In such circumstances how can it be said that the delay in taking steps for passing the order of detention was reasonable? In Sk. Serajul v. State of West Bengal : AIR1975SC1517 the Supreme Court said that there was delay both at the stage of passing the order of detention and in arresting him, and this delay, unless satisfactorily explained, would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining Magistrate recited in the order of detention. It would be reasonable to assume that if the detaining Magistrate was really and genuinely satisfied after proper application of mind to I he materials before him that it was necessary to detain the petitioner with a view to preventing him from acting in a prejudicial manner, he would have acted with greater promptitude both in making the order of detention as also in securing the arrest of the petitioner, and the petitioner would not have been allowed to remain at large for such a long period of time to carry on his nefarious activities. I am not able to understand from any of the circumstances, that has been revealed in the case as to why there should have been six months of delay before the order of detention should have been passed in the case except for the fact that on a detailed investigation into the case the authorities might have found that they may not be successful in prosecuting the petitioner under relevant statutes. No doubt the Supreme Court itself has pointed out in the aforesaid decision that it must not be understood to mean that whenever there is delay in making an order of detention, the subjective satisfaction of the detaining authority must be held to be-not genuine. The detaining authority may have a reasonable explanation for the delay and that might be sufficient to dispel the inference that its satisfaction was not genuine. But, however, the State has to explain the delay which should satisfy the court. There is no such explanation here. In Mohiuddin v. State of Mah. 1980 Mah LJ 742 : 1980 Cri LJ 1040 it is pointed out that though there is no occasion for communicating the grounds of detention to the person concerned unless he is actually detained in execution of the order, the subjective satisfaction of the authority concerned is a condition precedent for making an order of detention under the COFEPOSA Act. Thus the subjective satisfaction being condition precedent for exercise of the power conferred on the executive, the court can always examine the question as to whether requisite satisfaction has been arrived at by the authority. If it is found that it is not so arrived at then the condition precedent to the exercise of power would not be fulfilled and the exercise of power would be bad in itself. There is nothing like unfettered discretion wholly immune from judicial review ability. Though the court cannot go behind the subjective satisfaction of the detaining authority that does not mean that the Act confers a blanket power on the detaining authority to act in a ruthless or arbitrary manner. Judicial decisions have carved out an area, though limited within which the subjective satisfaction of the detaining authority can be tested on the touchstone of objectivity. There the cases in : 1976CriLJ945 and : [1978]2SCR621 have been relied on. The Bombay decision further proceeds that once a prima facie case is made out by the petitioner challenging his detention indicating that the said satisfaction of the detaining authority is not based on any material or order issued and is not in conformity with provisions of the COFEPOSA Act. the burden cannot be discharged by the detaining authority by merely filing an affidavit denying the allegations. It is the duty of the authority to satisfy the court about the existence of material for arriving at such satisfaction when no privilege is claimed under Section 123 or 124 of the Evidence Act and that he has not acted in a mechanical or cavalier manner while exercising the power. In the counter affidavit the detaining authority must in such a case broadly indicate the nature of prejudicial activities or material before him from which an inference could be drawn in favour of the detaining authority that there was some material before him on the basis of which subjective satisfaction could be arrived at Judicial scrutiny cannot be shut out merely on the strength of ipse dixit Of the detaining authority, No doubt in this case the grounds of detention have been placed before the court. I do not think that there is anything there on which apart from the question of the petitioner being proceeded against as a punitive measure for the offence he might have committed there is anything which indicate that he should be detained as preventive action in the interest of the State.

19. No doubt in this case the petitioner is not arrested. That does not mean that he should submit himself to arrest before he can approach this Court for relief. That would be insisting on an unreasonable, unwarranted and illegal condition as the Bombay High Court pointed out in Jayantilal Bhagwandas Shah v. State of Maharashtra 1981 Cri LJ 767. The fundamental rights guaranteed by the Constitution particularly by Articles 14, 19 and 21 confer on any person likely to be affected by such order an implicit right to approach the court and knock at its door at any time, and the court will not and cannot refuse relief to such persons by insisting that he should first surrender his liberty. Article 21 of the Constitution enshrines the most inherently fundamental of hitman rights, the right to life and personal liberty. It declares that no person shall be deprived of his life and personal liberty except according to the procedure established, by law. Article 226 of the Constitution clothes the High Courts with authority to issue to any person or authority throughout the territories in relation to which they exercise jurisdiction, directions, orders or writs, for the enforcement of the rights conferred, inter alia, by Article 21 also. As the Bombay High Court pointed out Article 226 is couched in language wide enough to protect a person against an illegal invasion of his right to freedom by protecting him while still free and by regaining his freedom for him if he has already been wrongfully detained. In the light of this discussion I quash Ext. R1. I make no order as to costs.

Issue carbon copy to counsel appearing for the parties on usual terms.


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