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TMI Blog1981 (10) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... aining authority. If the formalities have been complied with, the Court cannot examine the materials before it and find that the detaining authority should not have been satisfied on the materials before it and detained the detenu under the Preventive Detention Act, for, that is the function of an appellate Court. In the instant case, we are not satisfied that the detaining authority has violated either the relevant provisions of the Constitution or any of the provisions of the Act. This petition has no merit and is rejected. - Writ Petition (Criminal) No. 3662 of 1981 - - - Dated:- 30-10-1981 - ISLAM, BAHARUL AND SEN, A.P., JJ. For the Petitioner : Ram Jethmalani and Miss Rani Jethmalani For the Respondent : O.P. Rana and R.N. Poddar. JUDGMENT BAHARUL ISLAM, J. By this petition under Article 32 of the Constitution of India, Smt. Hemlata Kantilal Shah (hereinafter the wife ) has challenged the detention of her husband Shri Kantilal Nagar Das Shah (hereinafter the detenu) who was detained by the State of Maharashtra (Respondent No. 1) by order dated June 3, 1981 under Subsection (1) of Section 3 of the Conservation of Foreign Exchange and Prevention of Sm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) General Air Conditioner valued at Rs. 15,000. All these articles were also seized by the Customs officer. 4. On the following day, the detenu made a statement which was recorded under Section 108 of the Customs Act. The detenu stated that he had been in Muscat for the last 40 years and had business of ready-made garments there; and that he was a wealthy man with two wives named Hasumati and Hemlata (the petitioner), The two wives were staying in Bombay at Cuff Parade in separate apartments. The detenu further stated that two months ago he had come to Bombay where he had come to know from Zaveri Bazar that smuggling of Palladium was a profitable business. He therefore had purchased the 141 slabs of Palladium of one ounce each for 9000 omani Riyals from one Pursottam Kanji in Muscat who was a dealer in precious metals. Before leaving Muscat for Bombay, he had packed the 141 bars of Palladium in the three containers aforesaid. The detenu also stated that the Sharp 3-in-one had been presented to him by His Highness Sultanbin Hamed-Al-Said of Muscat in October, 1980, and that the other three articles had been purchased by him from the Omani Consul General, Mr. Salim Hakim. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ractitioner in any matter connected with the reference to the Advisory Board. .." Section 8 (e) has not barred representation of a detenu by a lawyer. It only lays down that the detenu cannot claim representation by a lawyer as of right. It has given the Board a discretion to permit or not to permit representation of the detenu by counsel according to the necessity in a particular case. Certain cases may be complicated and assistance of lawyers may be necessary on behalf of the parties to explain the facts and law involved in the case. In the instant case, the submission is that the rejection of the request of the detenus counsel by the advisory Board on the ground that in the past no legal representation had been allowed on behalf of any detenu has been based on a misconception of the law. We are unable to accept the submission of the learned counsel on two grounds; (i) the Advisory Board whose action is complained of is not a party before us; and (ii) our decision on the point would be merely academic. It would be academic because after rejection of the request, the Board reviewed the case of the detenu and gave its opinion whereupon the Government confirmed the detention. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact and the same is not a ground for detention..." In our opinion the request of the detenu for the information whether the detention was inter alia based on the seizures of the four articles mentioned in para 3 of the list of grounds and the reply of the authority to the request were irrelevant. When an order of detention together with the grounds of detention is served on a detenu, the detenu may ask for particulars on which a ground is based if they are not already there. When a document containing what are called "grounds" which often consist of the background of a case, narration of facts and instances of the detenu s activities, is supplied to the detenu, the detenu is not entitled to know which part or parts of the grounds was or were taken into consideration and which not. The Court may not take into consideration any reply given by the detaining authority to such an enquiry; for, the reply may be an afterthought. It will be for the Court to judge whether the facts narrated constitute a ground of detention or which facts might possibly enter and influence the detaining authority in coming to its subjective satisfaction. The information sought as per clause (4) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he object with which the order was passed. If the object was to prevent disruption of supplies of A foodgrains prompt action should be taken. In the absence of any explanation regarding the delay, the order of detention, passed with a view to prevent disruption of supplies of foodgrains on the grounds based on incidents of removal of rice which took place about seven months earlier, was invalid. In A.I.R. 1974 S.C. 2066 (supra), there was inordinate delay and no proximity in point of time between the alleged prejudicial activity of the petitioner and the order of detention. The Court found that a period of nine months had elapsed between the incident and the order of detention; and as the delay of nine months in the making of the order for detention after the alleged incident had not been explained, order of detention was held to be invalid. Delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person, for, in certain cases delay may be unavoidable and reasonable. What is required by law is that the delay must be satisfactorily examined by the detaining authority. In the case in hand in the counter affidavit filed on behalf of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correct to say that if such possibility is not present to the mind of the detaining authority the order of detention is necessarily bad. However, the failure of the detaining authority to consider the possibility of launching a criminal prosecution may, in the circumstances of a case, lead to the conclusion that the detaining authority had not applied its mind to the vital question whether it was necessary to make an order of preventive detention. 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 the question too was borne in mind before the order of detention was made. lf the detaining authority fails to satisfy the Court that the detaining authority so bore the question in mind the Court would be justified in drawing the inference that there was no application of the mind by the detaining authority to the vital question whether it was necessary to preventively detain the detenu." 9. The rule laid down is that a prosec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the first time in the smuggling incident dated 8th/ 9th January, 1981; that the activities of the detenu on the basis of which prognosis was made was reasonably suggestive of a repetitive tendency or inclination on the part of the detenu to act likewise in future; that the order of detention was essentially a precautionary measure and was based on the reasonable prognosis of the future behaviour of a person based on his past conduct judged in the light of the surrounding circumstances. It has further been stated: "Such past conduct may consist of one single act or of a series of acts. I say that large quantum or Palladium metal brought, the nature in which it was concealed coupled with the detenu s conduct in not disclosing the fact when questioned by the customs authorities clearly demonstrate potentiality for continued criminality and indicate previous practice, experiment and expertise. In the given case even the first act of this kind can be termed to be the beginning of continuing criminal activity. I say in the present case the nature of the act and its magnitude clearly justify an inference that if the detenu was not detained he is likely to indulge in co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling between Muscat and India. Admittedly he smuggled the palladium in question in order to make profit by selling it to customers in India. The detaining authority would be within its jurisdiction to take into consideration all these facts and subjectively come to a satisfaction whether or not the offender may be repeating his activities. 15. It is needless to say that the High Court under Article 226 of the Constitution and the Supreme Court either under Article 32 or under Article 136 of the Constitution do not sit on appeal on the orders of preventive detention. The normal law is that when an isolated offence or isolated offences is or are committed, the offender is to be prosecuted. But, if there be a law of preventive detention empowering the authority to detain a particular offender in order to disable him to repeat his offences, it can do so, but it will be obligatory on the part of the detaining authority to formally comply with the provisions of Sub-Article (5) of Article 22 of the Constitution of India. The High Court under Article 226 and the Supreme Court under Article 32 has to see whether the formalities enjoined by Article 22(5) have been complied with by the deta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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