Rajendrakumar Natvarlal Shah v. State of Gujarat &. Ors.
SEN, J. This appeal by special leave brought from the judgment
and order of the. Gujarat High Court dat~d 21st November, 1987 and
the connected petition under Art. 32 of the Constitution are directed D
against an order passed by the District Magistrate, Panchmahals,
Godhra dated 28th May, 1987 for the detention of the appellant under
sub-s. (2) of s. 3 of the Gujarat Prevention of Anti-Social Activities
Act, 1985 on being satisfied that it was necessary to do so, with a view
to preventing him from acting in any manner prejudicial to the mainte-
nance of public order. E
It is not an undisputed fact that the appellant is engaged as a
commission agent or broker in the rather lucrative but illicit business
of liquor traffic at Godhra in the State of Gujarat where there is total
prohibition by importing different varieties of Indian made foreign
liquor in sealed bottles like scotch whisky, beer etc. from wine F
merchants of Vanswada in the State of Rajasthan. But then by engag-
ing himself in such activities he falls within the description of a
'bootlegger' as defined in s. 2(bl and therefore comes within the ambit
of sub-s. (1) of s. 3 of the Act by reason of the legal fiction contained in
sub-s. (4) thereof.
Put very briefly, the essential facts are these. On prior informa
tion that the appellant was about to import Indian made foreign liquor
in bulk in truck bearing registration No. GRY 3832, on the night
between 29/30th December, 1986, the Gujarat police put up a road
block on the bridge near Machan River where on a sign given it failed
to stop. After a long chase, the police jeep was able to intercept the H
292 SUPREME COURT REPORTS I 1988] Supp. 1 S.C.R.
truck at Limdi. Both the driver Ahmed Saiyad Abdul Majid Kalander
and cleaner Sadique Ahmed Yusuf Durvesh Shaikh got down and said
that the truck was empty. However, on a search it was found to be
laden with 77 sealed cases containing 2040 bottles of different brn .. Js
of scotch whisky, beer etc. and it was evident from the statements of
the driver and the cleaner who were arrested, that the appellant was
the person who had purchased the liquor from wine merchants of
Vanswada. On 4th January, 1987 the statements of the witnesses were
recorded. Apparently ;the appellant absconded and he could not be
traced till 2nd February, 1987 when he was arrested but later released
on bail. In the meanwhile, he moved the Sessions Judge, Panchmahals
for anticipatory bail on 21st January, 1987 but no orders were passed
inasmuch as the police made a statement that there was no proposal at
that stage to place him under arrest. The appellant is being prosecuted
for various offences under the Bombay Prohibition Act, 1949 as appli
cable to the State of Gujarat, in Criminal Case No. 154/86. On 28th
May, 1987 i.e. after a lapse of five months the District Magistrate,
Panchmahals, Godhra passed the order of detention along with the
grounds therefore which was served on the appellant on the 30th when
he was taken into custody. The immediate and proximate cause for the
detention was that on 20/30th December, 1986 he transported in bulk
foreign liquor from liquor merchants of Vanswada in the State of
Rajasthan intended and meant for delivery to persons indulged in
anti-social activities by doing illict business of foreign liquor in the
State of Gujarat. Incidentally, the grounds furnish particulars of two
other criminal cases, namely, (i) Criminal Case No. 303/82 on account
of recovery of 142 bottles of foreign liquor recovered and seized from
his residential house on 21st July, 1982, but the case ended in an
acquittal as the prosecution case witnesses turned hostile, and (ii)
Criminal Case No. 150/86 relating to recovery and seizure of 24 bottles
of foreign liquor from his house on 30th May, 1986 which case was still
pending. It was said that persons like the appellant bringing foreign
liquor from other States illegally without a permit on a brokerage and
storing the same in their perrnises are not easily detected and there was
no other method of preventing such persons from engaging in such
anti-social activities except by detention under s. 3(2) o~ the Act.
In the writ petition before the High Court the appellant assailed
the impugned order of detention mainly on two grounds, namely: (i)
The failure of the detaining authority to record his subjective satisfac
tion as required under sub--s. (2) of s. 3 that the importation of foreign
liquor by the appellant from Vansawada across the border was likely to
H affect public health of ihe citizens of Gujarat and therefore it was
of,. RAJENDRAKUMAR v. STAIB OF GUJARAT [SEN. J.[ 293
necessary to detain him with a view to preventing him from acting in
any manner prejudicial to public order, renders the order of detention
bad and invalid. (ii) There was no sufficient material on record on
which such subjective satisfaction of the detaining authority could be
reached. Neither of the two contentions prevailed with the High Court
and it accordingly declined to interfere.
At the time when the judgment was to be delivered by the High
Court, learned counsel appearing for the appellant sought permission
to raise an additional point and he was permitted to do so. It was as to
whether the detention of the detenu at Sabarmati Central Prison,
which was a place other than Godhra where he ordinarily resides, was
tantamount to a breach of the mandate of Art. 21 of the Constitution C
as his detention at a far-off place was not consistent with human
dignity and civilized normes of behaviour. The additional point so
raised also did not find favour with the High Court. The appeal by
special leave is directed against this judgment. Learned counsel for the
appellant has however not preferred to rais these questions over
again. D
In the connected petition under Art. 32 learned counsel for the
appellant has, in substance, put forth the following contentions,
namely: (1) There is no explanation forthcoming for the admitted
delay of five months in making the impugned order of detention and
such inordinate unexplained delay by itself was sufficient to vitiate the E
/ order. (2) The impugned order of detention was bad in law inasmuch
as there was non-application of mind on the part of the detaining
authority. There was nothing to show that there was awareness of the
fact that the appellant had applied for grant· of anticipatory bail nor
was there anything to show that the detaining authority was satisfied
about the compelling necessity to make an order for detention which, F
it is said, was punitive in character. It is said that there was no occasion
to commit the appellant to prison while he was on bail in a criminal
case facing charges under the Bombay Prohibition Act, 1949 merely on
the suspicion of being a bootlegger. (3) The impugned order of deten
tion was ultra vires the District Magistrate and void ab initio as it
displayed lack of certainty and precision on the part of the detaining G
authority as to the purpose of detention. There was clubbing of
purposes as it mentioned that such detention was necessary (i) in the
interests of the nation with a view to stop tiie anti-national activities,
(ii) for ensuring of public peace, (iii) for maintenance of public health,
and (iv) in the interest of the State, all rolled up into one. (4) There
was delay in the disposal of the representation made by the appellant H
294 SUPREME COURT REPORTS [1988) Supp. 1 S.C.R.
to the State Government which renders his continued detention
A invalid and constitutionally impermissible. We shall deal with the
contentions in seriatim.
Point No. (1): It has always been the view of this Court that
detention of individuals without trial for any length of time, however
B short, is wholly inconsistent with the basic ideas of our Government
and the gravity of the evil to the community resulting from anti-social
activities can never furnish an adequate reason for invading the
personal liberty of the citizen except in accordance with the procedure
established by Jaw. The Court has therefore in a series of decisions
forged certain procedural safeguards in the case of preventive deten
tion of citizens. When the life and liberty of citizen was involved, it is
C expected that the Government will ensure that the constitutional safe
guards embodied in Art. 22(5) are strictly observed. When any person
is detained in pursuance of an order made under any law of preventive
detention, the authority making the order shall, as soon as may be,
communicate to such person the grounds on which the order has been
D made and shall afford him the earliest opportunity of making a
representation against the order. These procedural safeguards are ing
rained in our system of judicial interpretation. The power of preven
tive detention by the Government under any law for preventive deten
tion is necessarily subject to the limitations enjoined on the exercise of
·such power by Art. 22(5) as construed by this Court. Thus, this Court
E in Khudiram Das v. State of West Bengal, [1975) 2 SCC 81 speaking
through Bhagwati, J. observed:
"The constitutional imperatives enacted in this article are
two-fold: (1) the detaining authority must, as soon as may
be, that is, as soon as practicable after the detention com
municate to the detenu the grounds on which the order of
detention has been made, and (2) the detaining authority
must afford the detenu the earliest opportunity of making a
representation against the order of detention. These are
the barest minimum safeguards which must be observed
before an executive authority can be permitted to preven
tively detain a person and thereby drown his right of
personal liberty in the name of public good and social
security."
As observed by this Court in Narendra Purshotam Umrao v. B.B.
Gi1jra/, [1979) 2 SCR 315 when the liberty of the subject is involved.
H whether it is under the Preventive Detention Act or the Maintenance
RAJENDRAKUMAR v. STATE OF GUJARAT {SEN, J.] 295
of Internal Security Act or the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act or any other law providing for
preventive detention.
" .. .it is the bounden duty of the Court to satisfy itself that
all the safeguards provided by the law have been scrupul
ously observed and that the subject is not deprived of his
personal liberty otherwise than in accordance with law."
Nevertheless, the community has a vital interest in the proper enforce
ment of its laws particularly in an area such as conservation of foreign
exchange and prevention of smuggling activities in dealing effectively
with persons engaged in such smuggling and foreign exchange racke- C
leering or with persons engaged in anti-national activities which
threaten the very existence of the unity and integrity of the Union or
with persons engaged in anti-social activities seeking to create public
disorder in the worsening law and .order situation, as unfortunately is
the case in some of the States today, by ordering their preventive
detention and at the same time, in assuring that the law is uot used D
arbitrarily to suppress the citizen of his right to life and liberty. The
Court must therefore be circumspect in striking down the impugned
order of detention where it meets with the requirements of Art. 2.2(5)
of the Constitution.
There is an inexorable connection between the obligation on the E
part of the detaining authority to furnish the 'grounds' and the right
given to the detenu to have an 'earliest opportunity' to make the
representation. Since preventive detention is a serious inroad on indi
vidual liberty and its justification is the prevention of inherent danger
of activity prejudicial to the community, the detaining authority must
be satisfied as to the sufficiency t>f the grounds which justify the taking F
of the drastic ::neasure of preventive detention. The requirements of
Art. 22(5) are satisfied once 'basic facts and materials' which weighed
with the detaining authority in reaching his subjective satisfaction are
communicated to the detenu. The test to be applied in respect of the
contents of the grounds for the two purposes are quite different. For
the first, the.test is whether it is sufficient to satisfy the authority, for G
the second, the test is whether it is sufficient to enable the detenu to
make his representation at the earlier opportunity which must, of
course, be a real and effective opportunity. The Court may examine
the 'grounds' specified in the order of detention to see whether they
are relevant to the circumstances under which preventive detention
could be supported e.g. security of India or of a State, .conservation H
A and augmentation of foreign exchange and prevention of smuggling
activities, maintenance of public order, etc. and set the detenu at
lib.erty if there is no rational connection between the alleged activity of
the detenu and the grounds relied upon, say public order.
In the enforcement of a law relating to preventive detention like
B the conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 there is apt to be some delay between the prejudi
cial activity complained of under s. 3(1) of the Act and the making of
an order of detention. When a person is detected in the act of smuggl
ing or foreign exchange racketeering, the Directorate of Enforcement
has to make a thorough investigation into all the facts with a view to
C determine the identity of the persons engaged in these operations
which have a deleterious effect on the national economy. Quite often
these activities are carried on by persons forming a syndicate or having
a wide network and therefore this includes recording of statements of
persons involved, examination of their books of accounts and other
related documents. Effective administration and realisation of the
D purpose of the Act is often rendered difficult by reason of the
clandestine manner in which the persons engaged in such operations
carry on their activities and the cconsequent difficulties in securing
sufficient evidence to comply with the rigid standards, insisted upon by
the Courts. Sometimes such investigation has to be carried on for
months together due to the magnitude of the operations. Apart from
E taking various other measures i.e. launching of prosecution of the
persons involved for contravention of the various provisions of the
Acts in question and initiation of the adjudication proceedings, the
Directorate has also to consider whether there was necesssity in the
public interest to direct the detention of such person or persons under
s. 3(1) of the Act with a view to preventing them from acting in any
F manner prejudicial to the conservation and augmentation of foreign
exchange or with a view to preventing them from engaging in smuggl
ing of goods etc. The proposal has to be cleared at the highest quarter
and is then placed before a Screening Committee. For ought we know,
the Screening Committee may meet once or twice a month. If the
Screening Committee approves of the proposal, it would place the
G same before the detaining authority. Being conscious that the require
ments of Art. 22(5) would not be satisfied unless the 'basic facts and
materials' which weighed with him in reaching his subjective satisfac
tion, are communicated to the detenu and the likelihood that the
Court would examine the grounds specified in the order of detention
to see whether they were relevant to the circumstances under which
H the impugned order was passed, the detaining authority would neces-
RAJENDRAKUMAR v. STATE OF GUJARAT [SEN, J.] 297
sarily insist upon sufficiency of the grounds which would justify the . A
taking of the drastic measure of preventively detaining the person.
Viewed from this perspective, we wish to emphasise and make it
clear for the guidance of the different High Courts that a distinction
must be drawn between the delay in making of an order of detention
under a law relating to preventive detention like the Conservation of
Foreign Exchange & Prevention of Smuggling Activities Act, 1974 and
the delay in complying with the procedural safeguards of Art. 22(5) of
the Constitution. It has been laid down by this Court in a series of
decisions that the rule as to unexplained delay in taking action is not
inflexible. Quite obviously, in cases of mere delay in making of an
order of detention under a law like the Conservation of Foreign
Exchange & Prevention of Smuggling Acticities Act, 1974 enacted for
the purpose of dealing effectively with persons engaged in smuggling
and foreign exchange racketeering who, owing to their large resources
and influence have been posing a serious threat to the economy and
thereby to the security of tbe nation, tbe Courts should not merely on
account of delay in making of an order of detention assume that such
delay, if not satisfactorily explained, must necessarily give rise to an
inference that there was no sufficient material for. the subjective satis
faction of the detaining authority or that such subjective satisfaction
was not genuinely reached. Taking of such a view would not be war
rented unless the Court finds that the grounds are 'stale' or illusory or
that there is no real nexus between the grounds and the impugned
order of detention. The decisions to the contrary by the Delhi High
Court in Anil Kumar Bhasin v. Union of India & Ors., Crl. W. No.
410/86 dated 2.2.1987, Bhupinder Singh v. Union of India & Ors.,
[1985] DLT 493, Anwar Esmail Aibani v. Union of India & Ors., Crl.
W. No. 375/86 dated 11.12.1986, Surinder pal Singh v. M.L. Wadha
wan & Ors., Crl. W. No. 444/86 dated 9.3.1987 and Ramesh Lal v. F
Delhi Admin;;tration, Cr!. W. No. 43/84 dated 16.4.1984 and other
cases taking tbe same view do not lay down good law and are accord
ingly overruled.
!n the present case, the direct and proximate cause for the
impugned order of detention was the importation in bulk of Ind;an G
made foreign liquor by the appellant acting as a broker from across the
border on the night between 29/30th December, 1986. The District
Magistrate in the counter-affidavit has averred that it was revealed
from the statements of the witnesses recorded on 4th January, 1987
that the appellant was the person actually involved. Apprehending his
arrest the appellant applied for anticipatory bail on 21st January, 1987. H
It appears that on the same day the appellant apears to have made a
statement that there was no proposal at that stage to arrest the appel
lant. However, later it was discovered that there was no trace of the
appellant. He was arrested on 2nd February, 1987 and on the same day
he made a statement admitting these facts. Meanwhile, the proposal to
detain the appellant was placed before the District magistrate. It is
averred by the District Magistrate that on a careful consideration of
the material on record he was satisfied that it was necessary to make an
order of detention of the appellant under s. 3(2) of the Act and that
accordingly on 28th May, 1987 he passed the order of detention. The
appellant was taken into custody on 30th May, 1987. He had forwar
ded the report to the State Government on the 28th and the Govern
ment accorded its approval on the 31st.
Even though there was no explanation for the delay between 2nd
February and 28th May, 1987 it could not give rise to a legitimate
inference that the subjective satisfaction arrived at by the District
Magistrate was not genuine or that the gro~nds were stale tir illusory
D or that there was no rational connection between the grounds and the
impugned order of detention. There is a plethora of decisions of this
Court as to the effect of unexplained delay in taking action. These are
admirably dealt with iil Durga Das Basu's Shorter Constitution of
India, 8th edn. at p. 154. We will only notice to a few salient decisions.
In Olia Mallick v. State of West Bengal, [1974] 1SCC594 it was held
E that mere delay in making the order was not sufficient to hold that the
District Magistrate must not have been satisfied about the necessity of
the detention order. Since the activities of the detenu marked him out
as a member of a gang indulging systematically in the cutting of
aluminium electric wire, the District Magistrate could have been well
satisfied, even after the lapse of five months that it was necessary to
F pass the detention order to prevent him from acting in a manner pre
judicial to the maintenance of the supply of electricity. In Go/am
Hussain@ Gama v. The Commissioner of Police, Calcutta & Ors.,
[1974] 3 SCR 613, it was held that the credible chain between the
grounds of criminal activity alleged by the detaining authority and the
purpose of detention, is snapped if there is too long and unexplained
G an interval between the offending acts and the order of detention. But
no 'mechanical test by counting the months of the interval' was 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 informa
tion of participation being available only in the course of an investiga-
H tion. The Court has to investigate whether the casual connection has
RAJENDRAKUMAR v. STATE OF GUJARAT [SEN, J.] 299
been broken in the circumstances of each case. In Odut Ali Miah v.
State of West Bengal, [1974] 4 SCC 127 where the decision of the
detaining authority was reached after about five months, Krishna Iyer,
J. repelled the contention based on the ground of delay as a mere
'weed of straw' and it was held that the 'time-lag' between the dates of
the alleged incidents and the making of the order of detention was not
so large that it could be said that no reasonable person could possibly
have arrived at the satisfaction which the District Magistrate did on the
basis of the alleged incidents. It follows 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 deten
tion. In Vijay Narain Singh v. State of Bihar, [1964] 3 SCC 14, one of us,
Sen, J. observed: ·
"On merits the impugned order cannot be said to be
vitiated because of some of the grounds of detention being
non-existent or irrelevant or too remote in point of time to
furnish a ration.al nexus for the subjective satisfaction of
the detaining authority; It is usually from prior events
showing tendencies or inclinations of a man that an infer
ence can be drawn whether he is likely, in the future, to act
m a manner . prejudicial to the maintenance of public
order."
See also: Gora v. State of West Bengal, [1975] 2 SCR 996; Raj Kumar E
Singh v. State of Bihar & Ors., [1986] 4 SCC 407 and Hemlata kantilal
Shah v. State of Maharashtra, [1981] 4 SCC 647.
Point No. (2): Quite recently, we had occasion to deal with this
aspect in Bal Chand Bansal v. Union of India & Ors., JT (1988) 2 SC
65. In repelling a contention raised on. the dictum in Ramesh Yadav v. F
District Magistrate, Etah, [1985] 4 SCC 232, one of us (Sharma, J.)
drew attention to the observations of Mukharji, J. in Suraj Pal Sahu v.
State of Maharashtra, [1986] 4 SCC 378 that the prejudicial activities of
the person detained were 'so interlinked and continuous in character
and are of such nature' that they fully justified the detention order.
Here the grounds of detention clearly advert to two earlier incidents, G
one of 21st July, 1982 for which the detenu was being prosecuted in
Criminal Case No. 303/82 relating to the recovery and seizure of 142
bottles of foreign liquor from his residential house which ended in an
acquittal because the prosecution witnesses turned hostile,. and the ·•
other of 30th May, 1986 for which Criminal Case No. 150/86 relating to
recovery and seizure of 24 bottles of foreign liquor from his house was H
!
300 SUPREME COURT REPORTS 11988] Supp. 1 S.C.R.
A then still pending, and go on to recite that the launching of the pro
secution had no effect inasmuch as he had not stopped his activities
and was continuing the importation of foreign liquor from across the
border. The earlier two incidents are not really the grounds for deten
tion but they along with the transaction in question of importation of
foreign liquor in bulk show that his activities in this transaction
B afforded sufficient ground for the prognosis that he would indulge in
such anti-social activities again, if not detained. The District Magis
trate in his counter-affidavit has stated that he was aware of the fact
that the detenu had on 21st January, 1987 applied for anticipatory bail
but no orders were passed inasmuch as the police made a statement
that there was no proposal at that stage to place him under arrest. It
however appears that he was arrested on 2nd February, 1987 and on
C his own made a statement admitting the facts. Thereafter, he seems to
have disappeared from Godhra. In the circumstances, it cannot be said
that there was lack of awareness on the part of the District Magistrate
on 28th May, 1987 in passing the order of detention as he did. There is
a mention in the grounds of the two criminal cases pending against the
D detenu and also a recital of the fact that he was continuing his business
surreptitiously and he could not be caught easily and therefore there
was compelling necessity to detain him.
Point No. (3): The contention regarding lack of certainty and
precision on the part of the detaining authority as to the real putpose
E of detention and that they were 'all rolled up into one' at first blush
appears to be attractive but on deeper reflection seems to be of little or
no consequence. The putpose of the detention is with a view to pre
venting the appellant from acting in any manner prejudicial to the
maintenance of public order. It was not seriously disputed before us
that the prejudicial activities carried on by the appellant answer the
F description of a 'bootlegger' as defined in s. 2(b) and therefore he
comes within the purview of sub-s. (1) of s. 3 of the Act, by reason of
sub-s. (4) thereof. Sub-s. (4) of s. 3 with the Explanation appended
thereto gives an enlarged meaning to the words 'acting in any manner
prejudicial to the maintenance of public order' and reads:
"(4) For the putpose of this section, a person shall be
deemed to be 'acting in any manner prejudicial to the
maintenance of public order' when such person is engaged
in or is making preparation for engaging in any activities,
whether as a bootlegger or dangerous person or drug offen
der or immoral traffic offender or property grabber, which
affect adversely or are likely to affect adversely the mainte
nance of public order.
I-
RAJENDRAKUMAR v. STATE OF GUJARAT [SEN, J.) 301
Explanation: For the purpose of this sub-section, public A
order shall be deemed to have been affected adversely or
shall be deemed likely to be affected adversely inter alia, if
any of the activities of any person referred to in this sub-
section directly or indirectly, is causing or is likely to cause
any harrn, danger or alarrn or feeling of insecurity among
the general public of any section thereof or a grave or B
widespread danger to life, property or public health."
The District Magistrate in passing the impugned order has recorded
his subjective satisfaction with respect to the appellant that with a view
to preventing him from acting in any manner prejudicial to the mainte
nance of public order, it is necessary to make an order that he be
detained. In the accompanying grounds for detention this is the basis C
for the formation of his subjective satisfaction. They go on to state that
unless the order of detention was made he would not stop his illicit
liquor traffic on brokerage and therefore it was necessary to detain
him under s. 3(2) of the Act, and recite:
"In order to safeguard the health of the people of D
Gujarat, for public peace and in the interest of the nation,
with a view to stop such anti-national activities ..... for
the purpose of public order and public peace and in the
interest of the State ..... "
In our opinion, these words added by way of superscription were E
wholly unnecessary. They were set out by the District Magistrate Pre
sumably b~cause of total prohibition in the State. In future, it would
be better for the detaining authority acting under ss. 3(1) and 3(2) of
the Act, to avoid such unnecessary verbiage which are of little or no
consequence and give rise to unnecessary debate at the Bar.
Point No. (4): The contention that there was unexplained delay F
in disposal of the representation made by: the appellant to the State
Gonrnment appears to be wholly misconceived. Admittedly, the
appeUant made his representations to the Stat~. Government as well as
to the Advisory Board on 8th June, 1987. The State Government acted
with promptitude and after due consideration r.ejected the same on
12th June, 1987. ·There was no delay much less inordinate delay in G
consideration of the. representation.
The result therefore is that the appeal as well as the writ petition
fail and are dismissed. '
S.L. Appeal & Petition dismissed. H