Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974
3. Power to make orders detaining certain persons –
(1) The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of the State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from –
(i) smuggling goods, or
(ii) abetting the smuggling of goods, or
(iii) engaging in transporting or concealing or keeping smuggled goods, or
(iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or
(v) harboring persons engaged in smuggling goods or in abetting the smuggling of goods,
It is necessary so to do, make an order directing that such person be detained :
[(Note:- Added by Act No.46 of 1988, S.15 (w.e.f. 4-7-1988) Provided that no order of detention shall be made on any of the grounds specified in this sub-section on which an order of detention may bemade under section 3 of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 or under section 3 of the Jammu and Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Ordinance, 1988]. (J&K Ordinance, 1 of 1988).
(2) When any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order.
(3) For the purposes of clause (5) of article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention.
A. Subjective satisfaction - Validity of
It is well settled that the subjective satisfaction requisite on the part of the detaining authority, the formation of which is a condition precedent to the passing of the detention order will get initiated if material or vital facts which would have a bearing on the issue and would influence the mind of the detaining authority one way or the other are ignored or not considered by the detaining authority before issuing the detention order. [Varinder Singh Batra v.Union of India & Ors., (1993) 3 Crimes 637 (Delhi)]. R / t: Ashadevi v.Shivraj & Anr., AIR 1979 Sc 447. R/t. Ayya alias Ayub v.State of U.P & Anr., (1989) 1 Crimes 8 (S.C.).
If a piece of evidence which might reasonably have affected the decision whether or not to pass an order of detention is excluded from consideration, there would be a failure of application of mind, which in turn, vitiates the detention. [abid].
There would be vitiation of the detention order on grounds of non-application of mind if a piece of evidence which was relevant though not binding, had not been considered at all. [ibid].
If an important document on which reliance has been placed by the detaining authority and it has not been supplied to the detenu it is sufficient to vitiate the order of detention. [Mohammed Salim /Khatri v.Union of India & Anr., (1993) 3 Crimes 867 (Delhi)].
It is the duty of the sponsoring authority to collect all the relevant material and place it before the detaining authority. The requisite subjective satisfaction the formation of which is a condition precedent to passing of a detention order will get vitiated if material or vital facts which would have bearing on the issue and weighted the satisfaction of the detaining authority one way or the other and influenced his mind are either withheld or suppressed by the sponsoring authority or ignored and not considered by the detaining authority before issuing the detention order. [ibid] R/t. Dharamdas Shamlal Agarwal v.Police Commissioner & Anr., AIR 1989 SC 1282 as also Madan Gopal alias Madan Bhaiya v.Union of India & Ors. (1993) 49 Delhi Law Times 174.
Every failure to furnish copy of a document to which reference is made in the grounds of detention under section 3(1) of COFEPOSA is not an infringement of article 22(5) of the Constitution fatal to the order of detention. It is only failure of furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effective representation that amounts to a violation of fundamental rights guaranteed by article 22(5).[abid] R/t Mst. L.M.S. Ummu Saleema v.B.B. Gujaral & Anr., AIR 1981 SC 1191.
When the non-supply of copies of relevant documents has prevented the detenu from making an effect and purposeful representation, it results in violation of article 22(5) of the Constitution of India read with section 3(3) of the COFEPOSA. [ibid].
Documents cannot be said irrelevant when they have been mentioned in the detention order and reliance has been placed upon them. [ibid].
B. Grounds - Communication of
Since the order is based on grounds to be served on the detenu, the order of detention could be passed only if the grounds are in existence and are prepared contemporaneously, otherwise the order of detention becomes purely illusory. [Pakhar Singh v.Union of India & Anr., (1993) 3 Crimes 765 (P & H) R/t. Krishna Murari Aggarwal v.Union of India, AIR 1975 SC 1877.
It is the duty of the detaining authority to satisfy the court about the existence of the material and that he has not acted in a mechanical or cavalier manner while exercising the power. The detaining authority owes a duty to the detenu as wall as to the Court. An obligation of the detaining authority is to satisfy the Court that he has acted in accordance with law. [abid] R/t. Mohiuddin Tayab Sony v.State of Maharashtra & Anr., 1980 Crl. LJ. 1040 (Bom.) D.B.
It is well settled that judicial scrutiny cannot be shut our merely on the ipsedixit of the detaining authority. [abid]. Ibid.
The grounds of detention must be communicated in the language understood by the detenu. [In re: Smt. B.Ramprannamma, 1993 FAJ 485 (Cal Circuit Bench at Port Blair) D.B.]
Article 22(5) of the Constitution requires that the grounds of detention must be communicated to the detenu. "Communicate" is a strong word. It requires that sufficient knowledge of the basic-facts constituting the grounds should be imparted effectively and fully to the detenu in writing in a language which he understands, so as to enable him to make a purposeful and effective representation. If the grounds are only verbally explained to the detenu and nothing in writing is left with him in a language which he understands, then that purpose is not served, and the constitutional mandate in article 22(5) is infringed. This follows from the decisions in Harikisan v. State of Maharashtra, AIR 1962 SC 911, and Hadibandhu Das v.District Magistrate, Cuttack and Ors., AIR 1969 SC 43.
In the case of Smt. Raziya Umar Bakshi v.Union of India and Ors., AIR 1980 SC 1751, it was held by the Supreme Court that the service of the ground of detention on the detenue is a very precious constitutional right and where the grounds are couched in a language which is not known to the detenu, unless the contents of the grounds are fully explained and translated to the detenu, it will tantamount to not serving the grounds of detention to the detenue and would thus vitiate the detention ex-facie. In case where the detaining authority is satisfied that the grounds are couched in a language which is not known to the detenue, it must see to it that the grounds are explained to the detenu, a translated script is given to him and the grounds bear some sort of a certificate to show that the grounds have been explained to the detenue in the language which he understands. A bare statement at the stage when Habeas Corpus petition is filed in the Court by the detaining authority that these formalities were observed would be of no consequence particularly when it is not supported by any document or by any affidavit of the person who had done the job of explaining or translation.
In the case of Mr. Kubic Dariusz v. Union of India and other, AIR 1990 SC 605, the Supreme Court observed that 'it is settled law that the communication of the grounds which is required by the earlier part of clause (5) of article 22 is for the purpose of enabling the detenu to make a representation, the right to which is guaranteed by the latter part of the clause'. A communication in this context, must, therefore, mean imparting to the detenu sufficient and effective knowledge of the facts and circumstances on which the order of detention is passed, that is, of the prejudicial acts which the authorities attribute to him. Such a communication would be there when it is made in a language understood by the detenu.
C. Execution - Prior to
It is well settled that the High Courts have the powers to entertain and examine the grievances against the detention order prior to its execution. [Pakhar Singh v. Union of India & Anr., (1993) 3 Crimes 765 (P & H). R/t. Addl. Secretary to the Government of India & Ors. V.Smt. Alka Subhash Gadia & Anr., 1992 SCC (Crl.) 301.
The grounds on which the courts have interfered with them at the pre execution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied
(i) that the impugned order is not passed under the Act under which it is purported to have been passed,
(ii) that it is sought to be executed against a wrong person,
(iii) that it is passed for a wrong purpose,
(iv) that it is passed on vague, extraneous and irrelevant grounds, or
(v) that the authority which passed it has no authority to do so.
It is well settled in our Constitution frame word that the power of directing preventive detention given to the appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of the different statutes dealing with preventive detention and should be used with great deal of circumspection. There must be awareness of the facts necessitating preventive custody of a person for social defense. If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. [Ibrahim Umarbhaya v. State of Gujarat & Ors., (1993) 3 Crimes 730 (Guj.) D.B.] R/t. Rameshwar Shaw v. District Magistrate, AIR 1964 SC 334.
D. Pre-execution stage - Challenge at
Detention order under the Act cannot be challenged at pre-execution stage merely on the ground that there was delay in its execution. [Inderjit Singh Chani v. Union of India & Anr., (1994) 1 Crimes 539 (Delhi)].
E. Delay - Effect of
Long and undue delay in passing the detention order snaps the nexus between the activity alleged and the activity sought to be curbed and shows that the detention order was passed mechanically without application of mind.
When the detention order has been passed after a long delay and the service was also effected after delay the detention order is liable to be quashed. [Daljit Singh Sandhu v. Union of India & Ors., (1993) 3 Crimes 629 (Delhi)].
No doubt it is true that if the detaining authority shows that there is a reasonable nexus between the prejudicial activity and the purpose of detention, the delay in passing the detention order has to be overlooked. [ibid].
The delay in passing the detention order, if not adequately explained, vitiates the same. [ibid].
Indeed more 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. Inordinate delay in passing of a detention order will raise genuine doubt about the satisfaction of the Detaining Authority.
The test as to whether the detention order should be quashed on the ground of delay is not a rigid or mechanical test by merely counting the number of days or months; the court should examine whether the Detaining Authority has satisfactorily explained the delay. [Gurvinder Singh v. Under-Secretary, Home, Government of Punjab, (1993) 3 Crimes 760 (P & H) R/t. Lakshman Khatik v. State of W.B., AIR 1974 SC 1264 as also T.A. Abdul Rehman v. State of Kerala, (1989) 2 All India Criminal Law Reporter 294 (S.C.)].
The detenu had been evading execution of the detention order hardly gives credit to the authorities incharge of enforcing the orders of detention. In case where the authorities are guilty of inaction after passing of the order, a reasonable conclusion has to be drawn that the detention order has lost nexus with the prejudicial activities. [ibid].