Criminal Appeal No 3 18 of 1989
From the Judgment and Order dated 15688 of the Kerala High Court in Original Petition No 3299 of 1988
R Sasiprabhu and PK Manohar for the Appellant
B Dutta Additional Solicitor General P Parmeshwaran Pramod Swarup and TT Kunhikannan for the Respondents
The Judgment of the Court was delivered by section RATNAVEL PANDIAN J
This appeal under Article 136 of the Constitution of India is preferred by the appellant Abdul Rahman questioning the validity and correctness of the order of detention passed by the first Respondent on 7101987 in exercise of the powers conferred by section 31iii and 31iv of the Conservation of Foreign Ex change and Prevention of Smuggling Activities Act 1974 Central Act 52 of 1974 hereinafter referred to as the Act  whereby detaining the appellant s brother Sri TA Sirajudeen  Siraj the detenu herein with a view to pre venting the detenu from engaging in transporting or conceal ing or keeping smuggled gold or dealing in smuggled gold otherwise than by engaging in transporting or concealing or keeping smuggled gold
Though the impugned order was passed on 7101987 the detenu 949 was arrested on 1811988 and detained in the Central pris on Trivandrum from 1911988 onwards
The detenu was fur nished with copies of the grounds of detention and other connected material documents on 2111988
The detenu made a representation to the third Respondent praying for revoca tion of the detention order on 2511988 which was rejected on 1141988
Meanwhile on 1121988 a declaration by the third Respondent under Section 91 of the Act was made whereby the detenu was ordered to be detained for a contin ued detention for a further period of 6 months over one year
The first Respondent made a reference under section 8 of the Act on 55 1988 to the Advisory Board which has reported that there is in its opinion sufficient cause for the detention of the detenu
The material facts which neces sitated the passing of the detention order can be briefly stated thus On 30111986 Superintendent of Central Excise Manjeri Range and party searched the permanent residence of the detenu in his presence which did not result in the seizure of any contraband goods or the recovery of any incriminating documents
But on questioning by the officer the detenu confessed that he had buried eleven gold biscuits in the backyard of his house
He dug up the spot and produced the relavent gold biscuits which were kept concealed under the ground
Each of the gold biscuits was found wrapped in black carbon paper bearing foreign markings and weighing 10 tolas each with the purity of 24 carats
The total weight of the eleven gold biscuits was 1282600 gms
 the market value of which as on that date was Rs314237
The contraband goods were seized under a Mahazar
On 30111986 a statement was recorded from the detenu by the Superintendent of the Cen tral Excise under section 108 of the Customs Act in which the detenu had given a detailed note of his involvement in the smuggling activities
On 9121986 also the Superintend ent of Central Excise searched the residence of the detenu in the reasonable belief that there was concealment of more smuggled gold in the said house
During this search the detenu pointed out to the Superintendent one packet which had been placed in the thatched roofing of his house
The Superintendent took out the packet and it was found contain ing four gold ingots bearing foreign markings weighing 466400 gms
with 24 carat purity all to the value of Rs 114268
The detaining authority taking into consideration of the seizure effected on two occasions and the statement of the detenu admitting his involvement in the prejudicial activities mentioned in the grounds of detention reached its subjective satisfaction of the necessity of passing the impugned order and passed the same on 7101987
The appel lant filed a Writ Petition under Article 950 226 of the Constitution of India for quashing the impugned order of detention but was not successful
Hence this appeal
Of the several grounds urged in the Special Leave Peti tion the learned counsel appearing on behalf of the appel lant stressed only the following two contentions seeking to set aside the order of detention
1 As there is no proximity in time to provide a rational nexus between the alleged prejudicial activity that is the seizure of the gold biscuits on 30111986 and the pass ing of the impugned order of detention after 11 months ie on 7101987 and as there is no reasonable and satisfactory explanation given by the first Respondent for this undue and unreasonable delay the order is liable to be quashed on the ground that the credible chain between the grounds of the alleged criminal activities and the purpose of detention is snapped
Further the unreasonable and unex plained delay between the date of the order of detention on 71087 and the date of arrest of the detenu after a lapse of 3 months on 1811988 throws considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to an infer ence that there was no real and genuine sub jective satisfaction as regards the necessity to detain the detenu with a view to preventing him from acting in prejudicial manner
2 The representation submitted by the detenu to the third Respondent on 2511988 challenging the impugned order clamped upon him had been disposed of by a delay of 72 days ie on 1141988 and this long and avoid able delay vitiates the order of detention as being violative of Article 225 of the Con stitution of India
We shall now deal with the first contention which is referred under ground Nos
II  III of the Grounds in the Special Leave Petition which read thus For that the High Court ought to have seen that the petitioner was detained on the basis of a alleged solitary incident occurred on 30111986 and the detention order was passed after lapse of 11 months ie on 7101987 and the petitioner was arrested and detained on 1911988 For that the High Court ought to have seen that there was 951 no proximity between the alleged incident and subsequent detention
The time factor has not been considered by the detaining authority and he has mechanically passed the detention order without paying any attention to the loose grounds and quick sands in the reports of the sponsoring officer
 The above two contentions are sought to be answered by the first Respondent in his counter stating that the inves tigating officer had to question a number of persons and to conduct extensive search of various premises in different places in connection with the information gathered during interrogation and the Superintendent issued summons to the brothers of the detenu namely Haneefa and Abdul Rahman for appearance on 10387 and 3387 respectively but Abdul Rahman was absconding and that on 10287 the statement of CK Madhavan referred to in the statement of the detenu was recorded and that on 1851987 show cause notices were issued to persons connected with this case and immediately after completion of the investigation the Customs authori ties sponsored the proposal for detention of the detenu by their letter dated 2681987 and that the proposal was screened by the Screening Committee on 1191987 and there after the detention order was passed on 7101987
Coming to the delay in securing the detenu by arrest the explanation is given as follows The detention order was forwarded to the Malappuram Superintendent of Police for its execution by letter dated 910
The Police executed the order on 181
From the above facts it is clear that there is no delay in passing or executing the order of detention as alleged in the petition for Special Leave to Appeal
 There is no denying the fact that the impugned order has been passed after lapse of 11 months from the date of sei zure of the eleven gold biscuits from the back courtyard of the house of the detenu
As repeatedly pointed out by this court that there is no hard and fast rule that merely be cause there is a time lag between the offending acts and the date of order of detention the causal link must be taken to be snapped and the satisfaction reached by the detaining authority should be regarded as unreal but it all depends upon the facts and circumstances of each case and the nature of the explanation offered by the detaining authority for the delay that had occurred in passing the 952 order
There is a catena of decisions on this point but we feel that it is not necessary to recapitulate all those decisions except a salient few
This court in Golam Hussain alias Garna vs Commnr
of Police of Calcutta  Ors
  wherein there was a time lag of 6 months between the incident and the date of order of detention while an swering a similar contention laid down the ratio of proxim ity as follows No authority acting rationally can be satisfied subjectively or otherwise of future mischief merely because long ago the detenu had done something evil
To rule other wise is to sanction a simulacrum of a statuto ry requirement
But no mechanical test by counting the months of the interval is sound
It all depends on the nature of the acts relied on grave and determined or less seri ous and corrigible on the length of the gap short or long on the reason for the delay in taking preventive action like information of participation being available only in the course of an investigation
We have to inves tigate whether the causal connection has been broken in the circumstances of each case
Gora vs State of West Bengal  has held thus There is therefore no hard and fast rule that merely because there is a time lag of about six months between the offending acts  and the date of the order of detention the causal link must be taken to be broken and the satisfaction claimed to have been arrived at by the District Magistrate must be regarded as sham or unreal
Whether the acts of the detenu forming the basis for arriving at a subjective satisfaction are too remote in point of time to induce any reasonable person to reach such subjective satisfaction must depend on the facts and circumstances of each case
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
It is a subsidiary test evolved by the court for the purpose of determining the main question whether the past activities of the detenu is such that from it a reasonable prognosis can be made as to the future conduct of the detenu and its utility therefore lies only in so far as it subserves that purpose and it cannot be allowed to dominate or drawn it
The prejudicial act of the detenu may in a given case be of such a character as to sug gest that it is a part of an organised opera tion of a complex of agencies collaborating 953 to clandestinely and secretly carry on such activities and in such a case the detaining authority may reasonably feel satisfied that the prejudicial act of the detenu which has come to light cannot be a solitary or isolated act but must be part of a course of conduct of such or similar activities clandestinely or secretly carried on by the detenu and it is therefore necessary to detain him with a view to preventing him from indulging in such activities in the future
 In Hemlata Kantilal Shah vs State of Maharashtra   this Court held Delay ipso facto in passing an order of detention 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 satisfactori ly examined by the detaining authority
 See also SK Serajul vs State of West Bengal  Rekhaben Virendra Karadia vs State of Gujarat  Ors   Harnek Singh vs State of Punjab  Shiv Ratan Makin vs Union of India and Others  Smt
K Aruna Kumari vs Government of Andhra Pradesh and Ors  and Rajendra Kumar Natvarlal Shah vs State of Gujarat and Others  In a recent decision in Yogendra Murari vs State of UP and Others   this Court has reiterated the earlier view consistently taken by this Court observing   it is not right to assume that an order of detention has to be mechanically struck down if passed after some delay  
It is necessary to con sider the circumstances in each individual case to find out whether the delay has been satisfactorily explained or not The conspectus of the above decisions can be summarised thus The question whether the prejudicial activities of a person necessitating to pass an order of detention is proxi mate to the time when the order is made or the live link between the prejudicial activities and the purpose of deten tion is snapped depends on the facts and circumstances of each case
No hard and fast rule can be precisely formulated that would be applicable under all circumstances and no exhaustive 954 guidelines can be laid down in that behalf
It follows that the test of proximity is not a rigid or mechanical test by merely counting number of months between the offending acts and the order of detention
However when there is undue and long delay between the prejudicial activities and the pass ing of detention order the Court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned when called upon to answer and further the Court has to investigate whether the causal connection has been broken in the circumstances of each case
Similarly when there is unsatisfactory and unexplained delay between the date of order of detention and the date of securing the arrest of the detenu such a delay would throw considerable doubt on the genuineness of the subjective satisfaction of the detaining authority leading to a legiti mate inference that the detaining authority was not really and genuinely satisfied as regards the necessity for detain ing the detenu with a view to preventing him from acting in a prejudicial manner
In the light of the above proposition of law we shall now examine the first contention which has been raised for the first time before this Court
From the reading of the counter affidavit filed on behalf of the first Respondent it is seen that the detaining authority has attempted to explain the laxity that has occasioned in passing the im pugned order but miserably failed in explaining the delay of three months in securing the arrest of the detenu from the date of the passing of the order and keeps stunned silence on that score
The learned counsel appearing for the first respondent when queried by this Court whether he could give any reason for this undue delay in arresting the detenu on 1811988 in pursuance of the impugned order of detention made on 7101987 he has frankly admitted that he could not do so rightly so in our view in the absence of any expla nation in the counter affidavit
The Superintendent of Police Malapurram to whom the detention order was forwarded for execution has not filed any supporting affidavit ex plaining the delay in securing the arrest of the detenu
Under these circumstances we hold that leaving apart the question of delay in passing the order of detention from the date of the seizure of the gold the fact remains that the detaining authority has failed to explain the long delay in securing the arrest of the detenu after three months from the date of the passing of the detention order and this non explanation in our view throws a considerable doubt on the genuineness of the subjective satisfaction of the de taining authority 955 vitiating the validity of the order of detention
The next contention stressed by the learned counsel for the appellant is with regard to the delay of 72 days in the disposal of the representation made by the appellant to the third respondent on 251
This contention is raised in ground Nos
VIII and IX of the Grounds in the Special Leave Petition
This is resisted by the third respondent in para graph 8 of his counter stating that a representation dated 221988 was received in the COFEPOSA Section of Ministry of Finance on 1621988 with a letter dated 521988 from the Government of Kerala that as certain information was not available with the Central Government the Collector of Customs was asked to get a copy of the representation from the State Government and to send his comments that Collec tor of Customs informed the Central Government by a telex message dated 131988 which was received in the COFEPOSA Section on 831988 informing that the representation was not available with the Home Department that thereafter a copy of the representation was forwarded to the Collector of Customs by post on 831988 that the comments of the Col lector were received back on 2831988 that then the repre sentation along with the comments were placed before the Joint Secretary COFEPOSA Section on 30388 who forwarded the same to the Minister of State for Revenue on the same day and on 4488 the Minister of State forwarded his com ments to the Finance Minister who considered and rejected the representation on 8488
According to the third Re spondent the representation was considered expeditiously and as such there is no violation of Article 225 of the Constitution of India
The learned counsel for the appellant has explained that the representation was submitted originally on 2511988 but was got back and resubmitted on 221988
According to him it is surprising that the said representation was received by the third respondent only on 1621988 after a considerable delay of two weeks and thenceforth there was a considerable delay from 16288 to 28388 in receiving the comments of the Collector of Customs and again there was a delay of 7 days in forwarding the representation to the Minister of State for Revenue with the comments of the Joint Secretary COFEPOSA Section
The long interval in receipt of the representation and the comments of the Collector of Customs Cochin indicate the casual and indifferent attitude displayed by the authorities concerned dealing with the representation
In our opinion the manner in which the representation has been 956 dealt with reveals a sorry state of affair in the matter of consideration of the representation made by the detenu
Further we fail to understand why such a long delay from 16288 to 28388 had occasioned in getting the comments from the Collector of Customs
The only futile explanation now offered by the third respondent is that this delay had occasioned because the Collector of Customs was not able to get a copy of the representation from the Home Department Kerala and thereafter the Collector got a copy of the repre sentation on being forwarded by the third respondent on 83 1988
Even then there is a delay of 20 days in getting the comments of the Collector and that delay is not at all explained
This Court in Rama Dhondu Borade vs Shri VK Saraf Commissioner of Police  Ors 1989 I Scale Vol
4 22 after referring to various decisions has observed thus The detenu has an independent constitutional right to make his representation under Article 225 of the Constitution of India
Corre spondingly there is a constitutional mandate commanding the concerned authority to whom the detenu forwards his representation questioning the correctness of the detention order clamped upon him and requesting for his release to consider the said representation with reasona ble dispatch and to dispose the same as expe ditiously as possible
This constitutional requirement must be satisfied with respect but if this constitutional imperative is observed in breach it would amount to negation of the constitutional obligation rendering the con tinued detention constitutionally impermissi ble and illegal since such a breach would defeat the very concept of liberty the highly cherished right which is enshrined in Article 21 of the Constitution   
What is reasonable dispatch de pends on the facts and circumstances of each case and no hard and fast rule can be laid down in that regard
However in case the gap between the receipt of the representation and its consideration by the authority is so unreasonably long and the explanation offered by the authority is so unsatisfactory such delay could vitiate the order of detention
 Bearing in mind the above principle when we approach the facts of the present case we are of the firm view that the representation of 957 the detenu has not been given prompt and expeditious consid eration and was allowed to lie without being properly attended to
The explanation now offered by the third re spondent that the delay has occurred in seeking the comments of the Collector of Customs etc
is not a convincing and acceptable explanation
In our view the delay in 72 days in the absence of satisfactory explanation is too long a period for ignoring the indolence on the part of the concerned authority
Hence we hold that the unexplained delay in disposal of the representation of the detenu is violative of Article 225 of the Constitution of India rendering the order of detention invalid
For all the above mentioned reasons we allow this criminal appeal by setting aside the judgment of the High Court quash the impugned order of detention and direct the detenu to set at liberty forthwith
Y Lal Appeal allowed


Summary:
The petitioners in these special leave petitions and writ petitions claim the right to engage in trading business on the pavements of roads of the city of Delhi
The special leave petitions are against the judgments of the Delhi High Court dismissing their claim
It is contended on behalf of the petitioners that i they were allowed by the respondents to transact their business by occupying a particular area on the pavements on payment of certain charges described as Tehbazari and the refusal by the municipal authorities to permit them to continue with their trade is violative of their fundamental right guaranteed under Article 191g of the Constitution and ii the petitioners are poor people and depend on their business for their livelihood and if they are not allowed to occupy some specific places demarcated on the pavements on a permanent basis for conducting their business they may starve which will lead to violation of their fundamental right under Article 21 of the Constitution
The respondents on the other hand contend that nobody has got a legal right to occupy exclusively a particular area on the road pavement for pursuing a trading business and nobody can claim any fundamental right in this regard whatsoever
1039 Disposing of the petitions and remitting the cases to the appropriate Division Bench for final disposal in accord ance with this judgment this Court HELD ES Venkataramiah C J section Natarajan LM Sharma and ND Ojha JJ Per LM Sharma J 1 A member of the public is entitled to legitimate user of the road other than actually passing or re passing through it provided that he does not create an unreasonable obstruction which may inconvenience other persons having similar right to pass and does not make excessive use of the road to the prejudice of the others
Liberty of an individu al comes to an end where the liberty of another commences
1050C A B 2 What will constitute public nuisance and what can be included in the legitimate user can be ascertained only by taking into account all the relevant circumstances including the size of the road the amount of traffic and the nature of the additional use one wants to make of the public streets
This has to be judged objectively and here comes the role of public authorities
1051E 3 The right to carry on trade or business mentioned in Article 191g of the Constitution on street pavements if properly regulated cannot be denied on the ground that the streets are meant exclusively for passing or re passing and for no other use
Proper regulation is however a necessary condition as otherwise the very object of laying out roads to facilitate traffic may be defeated
Allowing the right to trade without appropriate control is likely to lead to unhealthy competition and quarrel between traders and traveling public and sometimes amongst the traders themselves resulting in chaos
The right is subject to reasonable restrictions under clause 6 of Article 19
1052C D 4 The proposition that all public streets and roads in India vest in the State but that the State holds them as trustee on behalf of the public and the members of the public are entitled as beneficiaries to use them as a matter of right and that this right is limited only by the similar rights possessed by every other citizens to use the pathways and further that the State as trustee is entitled to impose all necessary limitations on the character and extent of the user should be treated as of universal application
The provisions of the Municipal Acts should be 1040 construed in the light of the above proposition and they should receive a beneficent interpretation
1052E G MA Pal Mohd vs RK Sadarangani AIR 1985 Mad 23 CSS Motor Service vs Madras State AIR 1953 Mad 279 Saghir Ahmad vs The State of UP  Ors   liarper vs GN Haden  Sons Ltd  Bombay Hawkers Union  Ors
vs Bombay Municipal Corporation 5 The petitioners do have the fundamental right to carry on a trade or business of their choice but not to do so on a particular place as circumstances are likely to change from time to time
But that does not mean that the licence has to be granted on a daily basis that arrangement cannot be convenient to anybody except in special circum stances
1053F 1057F Fertilizer Corporation Kamgar Union vs Union of India   K Rajendran vs State of Tamil Nadu   referred to
6 Article 21 is not attracted in the case of trade or business either big or small
The right to carry on any trade or business and the concept of life and personal liberty within Article 21 are too remote to be connected together
1054G Olga Tellis  Orsv
Bombay Municipal Corporation  Ors   distinguished
7 The provisions of the Delhi Municipal Corporation Act 1957 are clear and the Municipal Corporation of Delhi has full authority to permit hawkers and squatters on the side walks where they consider it practical and convenient
1052G H 8 The provisions of the Punjab Municipal Act 1911 as applicable to New Delhi area should receive a liberal construction so that the New Delhi Municipal Committee may be in a position to exercise full authority to permit hawk ers and squatters on pavements in certain areas
1053A C Pyarelal vs NDMC  overruled
9 A scheme should be drawn up as soon as possible contain ing 1041 detailed necessary provisions dealing with all relevant aspects and capable of solving the problems arising in the situation in a fair and equitable manner
1057B C 10 The demand of the petitioners that hawkers must be permitted on every road in the city cannot be allowed
If a road is not wide enough to conveniently manage the traffic on it no hawking may be permitted at all or may be sanc tioned only once a week say on Sundays when the rush con siderably thins out
Hawking may also be justifiably prohib ited near hospitals or where necessity of security measures so demands
There may still be other circumstances justify ing refusal to permit any kind of business on a particular road
1057E 11 Some of the hawkers in big cities are selling very costly luxury articles including sophisticated electronic goods sometimes imported or smuggled
The authorities will be fully justified to deny to such hawkers any facility
They may frame rules in such manner that it may benefit only the poor hawkers incapable of investing a substantial amount for starting the business
Attempt should be made to make the scheme comprehensive dealing with every relevant as pect for example the charges to be levied the procedure for grant and revocation of the licences etc
1057H 1058B Per Kuldip Singh J 1 The guarantee under Article 191g extends to practice any profession or to carry on any occupation trade or business
The object of using four analogous and overlapping words in Article 191g is to make the guaran teed right as comprehensive as possible to include all the avenues and modes through which a man may earn his liveli hood
In a nut shell the guarantee takes into its fold any activity carried on by a citizen of India to earn his liv ing
The activity must of course be legitimate and no anti social like gambling trafficking in women and the like
1058H 1059C 2 Once street trading is accepted as legitimate trade business or occupation it automatically comes within the protection guaranteed under Article 191g of the Consti tution of India
1062E 3 Street trading is an age old vocation adopted by human beings to earn living
It is one of the traditionally recognised business or trade in England
This is so in spite of the fact that there is a complete social security in that country and as such no compulsion on the citizens to be 1042 driven to street trading out of poverty or unemployment
On the other hand abysmal poverty in India warrants outright rejection of the argument that nobody has a right to engage himself in street trading 
1059D1062A B 4 There is no justification to deny the citizens of their right to earn livelihood by using the public streets for the purpose of trade and business
1063B Saghir Ahmad vs The State of UP  Ors   Manjur Hasan vs Mohammed Zaman 52 IA 61 Himat Lal K Shah vs Commissioner of Police Ahmedabad  Anr
   referred to
5 Street trading being a fundamental right has to be made available to the citizens subject to Article 196 of the constitution
It is within the domain of the State to make any law imposing reasonable restrictions in the inter est of general public
This can be done by an enactment on the same lines as in England or by any other law permissible under Article 196 of the Constitution
1064B Bombay Hawkers Union  Ors
vs Bombay Municipal Corpora tion  Ors  Municipal Corporation of Delhi vs Gurnam Kaur   referred to
6 The skeletal provisions in the Delhi Municipal Corporation Act 1957 and the Punjab Municipal Act 1911 can hardly provide any regulatory measures to the enormous and complicated problems of street trading in these areas