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TMI Blog1978 (12) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... nds which had not been raised before the Madras High Court. The appeal and the Writ petition were heard together by us and are disposed of by this common order. The impugned detention order was made on 19th December, 1974 by the Government of Tamil Nadu and the grounds for the order were contained in a memorandum dated 20th December, 1974 of the Government of Tamil Nadu. The order of detention could not be executed immediately as the appellant petitioner was absconding and could not be apprehended despite a proclamation made pursuant to Section 7 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The appellant-petitioner, however, surrendered himself before the Commissioner of Police, Madras on 1st Fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eived either by Sukhanraj or Motilal. At Bangalore, the premises at No. 2, Sanjeev appa Lane the address mentioned on post parcel, was searched on 23-2-1972. T. Chowdiah, the sender of the said parcel was not there. But one Ghaverchand Samarthajee was present. He admitted in his statement dated 24-2-1972 that he was an employee of R. G. Bhandari and on the latter's instructions he was disposing of smuggled gold in Bangalore on behalf of his master and despatching the sale proceeds to Madras. The postal receipt bearing the No. 325 Avenue Road Post Office, Bangalore, in respect of the parcel which was seized at Madras was also seized. This and his confessional statement revealed that he had previously despatched seven registered parcels to M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... execution must be considered to have lapsed or ceased to be effective without a fresh application of the mind of the detaining authority to the facts and circumstances of the case and the necessity for preventive detention. Otherwise, the learned Counsel submitted the order of preventive detention would change its character and be- come an order of punishment for an unproven crime. In regard to the first ground mentioned in the Memorandum of the Government, the learned Counsel submitted that all the four persons who had made statements on 23rd February, 1972 and 24th February, 1972, and which were the basis of the first ground, had resiled from their statements long before the order of detention was made. The circumstance that all of them h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the circumstance that the persons who had incriminated the detenu had resiled from their former statements had been mentioned in the judication order passed by the Customs authorities and that order had been placed before the detaining authority before the order of detention was made. In regard to the second ground of detention the learned Counsel argued that it was not based merely on the intelligence report and in any case, since no privilege was claimed, it was always open to the detenu to have asked for more particulars if he so desired, but which he failed to do. It is true that the purpose of detention under the COFEPOSA is not punitive but preventive. The purpose is to prevent organised smuggling activities and to conserve an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l he surrendered on 1st February, 1978. We do not have any hesitation in overruling the submission of Shri Jethmalani based on the delay in the execution of the order of detention The second submission made on behalf of the detenu that the detaining authority had not before it the circumstance that the four persons who had made statements implicating the detenu had later, but long before the order of detention, resiled from their statements is also devoid of force. The proposition that the failure to place before the detaining authority relevant and material facts which may influence the mind of such authority one way or the other will vitiate the order of detention is unexceptionable. But a perusal of the first ground of detention shows t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the report and the material on which the report was based ought to have been disclosed to the detenu if the detenu was to effectively exercise his fundamental right under Article 22(5) of the Constitution and to make a representation against the order of detention We agree with the learned Counsel for the petitioner that in order to make a representation against the order of detention and thus to exercise the fundamental right guaranteed by Article 22(5) of the Constitution, a detenu is entitled to be furnished with all essential particulars forming the basis of the grounds of detention. so it is that where insufficient particulars are mentioned in the grounds, the detenu is entitled to call for better particulars. That is a right which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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