Rekhaben Virendra Kap Adja v. State of Gujarat & Ors.

Judgment

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 105 of 1978 with W.P. No. 833 of 1978. (Appeal by special leave from the Judgment and Order dt. 27.9.77 of the Gujarat High Court in Criminal Sp!. Application No. 176 of 1977). Ram Jethmalani and H. S. Parihar for the appellant in Cr. A. No. 105 and WP No. 833/78. M. N. Phadke and B. D. Sharma and M. N. Shroff for respondent No 1 Girish Chandra for re'spondent no. 4. M. N. Shroff for respondents 1-3. R. B Datar and Miss A. Subhashini for respondents 4-5. The Judgment of the Court was delivered by KAILASAM, J.-After hearing the arguments we allowed the appeal' on 5-10-1978 and directed that the detenu be set at liberty forthwith indicating that the detailed judgment would follow. We now proceed' to give reasons for our orde.r. This appeal is preferred by the wife of one Virendra Ramniklal'

Kapadia,, a detenu, by special leave against the judgment of the High Court of Gujarat at Ahmedabad dismis'sing the writ petition for the issue of a writ of habeas corpus. On 22nd September, 1974 the District Magistrate, Surat, directed the detention of the detenu under section 3(1) (c) (i) and section 3(2) of the Maintenance of Internal Security Act, 1971. The cietenu was supplied with the grounds of detention on 27th September, 1974. Ther REKHABEN v. GUJARAT (Kailasam, J.1 detention order passed under the Maintenance of Internal Security Act was cancelled on 9th December, 1974 and the detenu was released.

On 7th February, 1977 by an order under section 3 (!) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 197 4 (hereinafter referred to a·s COFEPOSAA) in the name of Governor, the Under Secretary to Government, respondent 2, directed that it was nece•- sary to detain the detenu with a view to preventing him from engaging in transporting smuggled goods. On the same day by another order issued under section 5 of the COFEPOSAA the 2nd respondent directed that the detenu shall be detained in the Ahmedabad Central Prison. declaration under section 12A, sub-section (12) was also passed on the. same day by the 2nd respondent stating that it was necessary to detain ·it the detenu for dealing effectively with emergency. In pursuance of the above orders the detenu has been detained in the Ahmedabad Central prison after he surrendered on 4th July, 1977. The grounds of detention were supplied to him on 6th July, 1977.

On 2nd August, 1977 a declaration under section 9 of the COFEPOSAA was passed by the 4th respondent stating that he was satisfied that the detenu is likely to engage in transporting smuggled goods in the areas around Balashwar and Sachin-Gabheni Road in the. State of Gujarat which are areas highly vulnerable to smuggling as defined in section 9 of the COFEPOSAA. The High Court negatived all the contentions raised on behalf of the dctenu and held that the order of de.tention was validly made. Mr. Ram J ethmalani, the learned counsel for the appellant, raised various contentions. The first contention raised by him is that the order passed under section 9 by the 4th respondent is bad because on the face of it, it discloses that the satisfaction arrived at by him is mechanical and without application of his mind.

As the detention is continued beyond the period of one year only by virtue of the order made under ccction 9 the dctenu is entitled to be set at liberty if the order is found to be invalid. On hearing the learned counsel for the appellant and Mr. Phadke on behalf of the S>tate,. we are satisfied that the contention on behalf of the detenu has to be accepted. Before dealing with this point we would just mention the other grounds raised by the learned counsel for the appellant. Ii was submitted that the order passed under ·section 3 is invalid as the. authority did not apply its mind. The detenu was released on 19th December, 1974 and from that date till 7th February, 1977 when the order of detention was passed nothing has been disclosed to implicate the detenu in any fresh activity. As the order was based on the activities of the detenu in 1973 and 197 4 before the detenu was released, the order of detention cannot be sustained. It was next submitted that [ 1979]

2 s.c.R. the detenu was not furnished important material which must have influenced the detaining authority. Lastly, it was submitted that the grounds given are vague and even after a careful reading of the gronnds, it is n0t cleHr as to whether the grounds referred to the incidents that took place in 1973 and 1974 only refer to activities subsequent to his release in December, 1974. As we are upholding the challenge of the learned counsel for the appellant on the validity of the order passed under section 9(1) of the COFEPOSAA we refrain from cleoling with any of the other contentions. The order dated 2nd August, 1977 passed by B. B. Gujral, Addi. Secretary to the Government of India, the 4th responde•1t under section t 9( I) o!f th COFEPOSAA is marked as Anncxure E'. It runs as follows "Whereas Virendra Ramniklal Kapadia @ Kumar has been detained on 4th July, 1977 in pursuance of Order No. SB.

IV /PSA,2876.87 (i) dated the 7th February, 1977 of the Government of Gujarat with a view to preventing him from engaging in transporting smuggled goods. A ND WHEREAS I, the undersigned, specially empowered in this behalf by the Central Government, have carefully coru;idered the material bearing on the matter in my possession; NOW, THEREFORE, I, the undersigned, specially empowered by the Central Government, hereby declare that I am satisfied that the aforesaid Virendra RamniUu! Kapadia @ Kumar engages and is likely to engage in trailsporting smuggled goods in the areas around Baleshwar and Sachin- Gabheni Road in the State of Gujarat, which are areas highly vulnerable to smuggling as defined in explanation to section 9 ( 1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974."

In paragraph 3 respondent 4 declared that he is sati&fied that the detenu engages and is likely to engage in transporting smuggled goods in vulnerable areas as defined in explanation section 9 ( 1) of the COFEPOSAA. It was submitted that there is no material on record on which the 4th respondent could have been satisfied that the dctcnu "engages and is likely to engage in transporting smuggled goods". The impugned order refers to the order of detention dated 7th February, 1977 of the Government of Gujarat. The order of 7th February, 1977 refers to the coasideration of the Government of Gujarat as to whether the detention is necessary for dealing effectively with the emergency referred to in sub- J REKHABEN v. GUJARAT (Kailasam, .T.) section (2) of section 12-A of the Act and states that on a consideration of the materials the Government of Gujarat was satisfied on the basis of information and material in its possession that it was necessary to detain the said person for dealing effectively with the said emergency.

In exercise of its power·s under sub-section (12) of section 12-A the Government dedarec' that it is necessary to detain the detenu for dealing effectively with the said emergency. On the same date the grounds on which the detention was ordered were sent to the detenu through the Supe.rintendent of the Jail. The ground that is alleged against the detenu in paragraph 1 of the order is as follows :- "!. As per the intelligence gathered by the Customs Officers, you were an a·ssociate of a notorious smuggler Mohmed Kutchi of Surat; that you were engaged in piloting smuggled goods loaded in trucks from the place of landing to the place of storage." (underlying ours). Two incidents are given : one relating to an incident on 6th August, 1974 and the other to an incident on 25 August, 1974. It is further stated that the Customs Officers contacted one Kantilal Amratlal Thakkar, who was working as accountant of Mohmed Kutchi.

Kantilal Amratlal Thakkar in his statement on 7th November, 1976 stated that the detenu was under the employment of the af•.>resaid Mohmed Kutchi and was getting a salary of Rs. 5,000 p.m. for :llTanging landing of contraband goods. Kantilal further disclosed that in the year 1973 the cletenu had accompanied one Mohmed Bilal with foreign currency. Re[erence is also made to the statements rccrded from one Mohmed Bilal Haji Usmangani on 8th November, 1976 and 9th November, 1976 before the Customs Officers wherein it was stated that the detenu was one of the trusted men of tl1e aforesaid Mohmed Kutchi and always remained with him and used to help Mohmed Kutchi in managing his smuggling activities. The statement also referred to the detenu helping his uncle Vinod Sakarlal Kapadia in delivery of smuggled fabrics. The statement of one Ramchandra Schedeva Rajbher is also referred to.

According to the statement dated I !th October, 1976 it was stated that the detenu remained present along with one Dmer Ibrahim Billimoria and his gang at Kadodra/Kamraj near poultry farm where trucks loaded with camouflaged consumments were being fed with smuggled cargo. reading of the$e grounds makes it clear that the incidents referred to relate to the years 1973 and 197 4 and that due to examination of three persons Kant'lal Amratlal Thakkar, Mohmed Bilal Haji Usmangani and Ramchandra Sahadeva Rajbher, fuller particulars regarding tl10 activities of the K detenue came to be known Prima facie it appears that the information which the Customs authorities received related to the activities of the detenu in 1973 and 1974. Mr. Phadke, the learned counsel appearing on behalf of the State, submitted that the statement shows that the activities of the detenu after 1974 were also included in the grounds furnished for detention.

In order to satisfy ourselves as to whether the statements related to incidents after 197 4, we l'erused the statements made by alJ the three persons referred 10. It is very clear that the statements do not relate to any incidents after 1974 but only to the activities of the detenu in 1973 and 1974. In the affidavit filed by the 4th respondent,, Additional Secretary to the Government of India, it is stated in paragraph 5 of his affidavit that he, considered the detention order, grounds of detention relating to the detenu as welJ as the report in respect of the detention order by the State Government under section 3 ( 3) and wa·s personally satisfied that the detenu Vircndra Ramniklal Kapadia @ Kumar engages anJ is likely to engage in tra.D.sporting smuggled goods* Mr. P. M. Shah Under Secretary to the Government of Gujarat, in paragraph IO of his affidavit stated that "fresh material showing the involvement of the dctenu in the activity of transporting smuggled goods was collected by the Customs authorities and therefore it was open to the State Government to pass a fresh order of detention.

Further, he stated "As pointed out in the grounds material indicating the involvement of the detenu in the incidents of 6.8.74 and 25-8-74 and his close association with Shr; Mohmed Kutchi,* a notorious smuggler, came to be known in October, November and December, 1976 x x x x I say that the material on the basis of which the detenu was earlier detained was scanty and no ne.w material indicating involvement of the detenu as alleged against him came to the light till October, 1976''. The case for the State appears to be that they regarded the material on the basis of which the detenu was earlier detained was scanty and fuller particulars came to light in October, 1976 indicating involvement of the detenu in the incidents of 6th August, 1974 and 25th August, 1974. This would indicate that for the fresh order of detention the basis was availability of fuller details regarding incidents on which the earlier detention was ordered.

It is seen that the High Court also proceeded on the basis that further information obtained in October. November 1976 related to the incidents in the years 1973 and 1974. The High Court observed, "It is no doubt true that some of the activities attributed to the detenu were of August, 1974. However, the ground that the detenu was in regular employment of one Mohmed Kutchi, who is a notorious smuggler and who is also under detention, *Emphasis Sppluied REKHABEN v. GUJARAT (Kailasam, !.) 2 63 and which fact has been disclosed from the statement of one Kantilal Amratlal Thakkar recorded on November 7, 1976, clearly indicates the connection of the detenu with the said notorious smuggler. The other statements, which have brought home the involvement of the detenu with the aforesaid Mohmed Kutchi and which also attribute the prejudicial activity to the detenu, were recorded somewhere in October and November, 1976."

We are unable to read the above passage as mem1ing that reliance was )placed on fresh incidents relating to the detenu after December. 1974. The detenu was detained on 22nd September, 1974 and was released on 9th December, 1974. Further information about the activities of the detenu during the period 1974 obviously before his arrest on 22nd September, 197 4 came to light in October and November, 1976. But it is seen that the fresh order of detention under the COFEPOSAA was net passed till 7th February, 1977. If the authorities were in possession of any activities of the detenu after his release on 9th December, 1974 action would have been taken. It is only the statements that were recorded in October and November 1976 which led the authorities to pass the fresh order of detention on 7th February, 1977. We have seen from the statements recorded in October and November. 1976 that no incident that took place after 1974 has been referred to.

The High Court observed that it cannot be urged that reasonable nexus between the prejudicial activity and the purpose of detention has been snapped by the time-lag rendering the impugned order of detention as one without genuine satisfaction of the detaining authority. Whether the time lag between August, 197 4 and February, 1977 is enough to snap the reasonable n~xus between the prejudicial activity and the pnrpcse of detention would depend upon the facts of the case. It may be that a /person in the position of a detenu who wa~ a driver of a wellknown smuggler on a pay of Rs. 5,000 p.m. and who was taking part in clearing the smuggled goods may satisfy the authority that he is ;ikely to continue in his activities in the future and as such would justify his detention. In Gore v. State of West Bengal(') this Court after referring to the earlier decisions held that the test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the offending acts and the order of detention.

The question is whether the past activities of the detenu are such that the detaining authority can reasonably come to the conclusion that the detenu is likely to continue in his unlawful activities. If the detaining authority in this case had came to the conclusion taking into account the past (!) [1975] 2 S.C.R. 996. activities of the detenu that he i's likely to continue to indulge in such activities in future there would be no justification for this Court to inter-. fere. It is quite likely that persons who are deeply involved in such activities as smuggling can cause a reasonable apprehension in i:he minds of the detaining authority that they are likely to continue in their unlawful activities. In this case, the 4th respondent who passed an order under section 9 ( 1) has not stated that he is satisfied that the detenu is likely to engage in transporting all smuggled goods. What he ha; stated i• that the detenn "engages and is likely to engage in transporting smuggled goods".

There was no material before the 4th respond~nt for coming to the conclusion that the deterru "engag"es" in transporting smuggled goods. To this extent we have to accept the contention of the learned counsel for the ajppellant that there is no material for coming to the conclusion that the detenu was "engaging" himself in the unlawful activities. The detenu has been under detention from 4th July, 1977 and the period of detention permissible under section 3 is only one year. Section 9 (1) enables the authority to make a declaration which would have the effect of extending the period of detention to two years from the date of detention by virtue of amendment to section 10 by Amending Act 20 of 197 6. As we have found that the order under section 9(1) has not been validly made and as the detenu has been in detention for more than one year his continuance in detention is not gustainable. In the circumstances, we allow the petition. P. B. R. Appeal allowed. ------y---