IGINAL JURISDICTION Criminal Appeal No 319 of 1988 From the Judgment and Order dated 21111987 of the Gujarat High Court in Special Criminal Application No 732 of 1987
AND Writ Petition Criminal No 906 of 1987
MC Kapadia SS Khanduja and YP Dhingra for the AppellantPetitioner
GA Shah and MN Shroff for the Respondents
The Judgment of the Court was delivered by SEN J
This appeal by special leave brought from the judgment and order of the Gujarat High Court dated 21st November 1987 and the connected petition under article 32 of the Constitution are directed against an order passed by the District Magistrate Panchmahals Godhra dated 28th May 1987 for the detention of the appellant under sub section
2 of section 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 maintenance of public order
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 merchants of Vanswada in the State of Rajasthan
But then by engaging himself in such activities he falls within the description of a bootlegger  as defined in section 2b and therefore comes within the ambit of sub section
1 of section 3 of the Act by reason of the legal fiction contained in sub section
4 thereof
Put very briefly the essential facts are these
On prior information that the appellant was about to import Indian made foreign liquor in bulk in truck bearing registration No GRY 3832 on the night between 2930th 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 292 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 brands 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 applicable to the State of Gujarat in Criminal Case No 15486
On 28th May 1987 ie 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 2030th 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 30382 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 15086 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 permises 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 section 32 of 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 satisfaction as required under sub section
2 of section 3 that the importation of foreign liquor by the appellant from Vansawada across the border was likely to affect public health of the citizens of Gujarat and therefore it was 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 article 21 of the Constitution 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
In the connected petition under article 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 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 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 detention was ultra vires the District Magistrate and void ab initio as it displayed lack of certainty and precision on the part of the detaining 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 the 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 294 to the State Government which renders his continued detention 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 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 law
The Court has therefore in a series of decisions forged certain procedural safeguards in the case of preventive detention of citizens
When the life and liberty of citizen was involved it is expected that the Government will ensure that the constitutional safeguards embodied in article 225 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 made and shall afford him the earliest opportunity of making a representation against the order
These procedural safeguards are ingrained in our system of judicial interpretation
The power of preventive detention by the Government under any law for preventive detention is necessarily subject to the limitations enjoined on the exercise of such power by article 225 as construed by this Court
Thus this Court in Khudiram Das vs State of West Bengal  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 communicate 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 preventively 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 vs BB Gujral  when the liberty of the subject is involved whether it is under the Preventive Detention Act or the Maintenance 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 scrupulously 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 enforcement 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 racketeering 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 not used 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 article 225 of the Constitution
There is an inexorable connection between the obligation on the 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 individual 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 of the grounds which justify the taking of the drastic measure of preventive detention
The requirements of article 225 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 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 eg security of India or of a State conservation 296 and augmentation of foreign exchange and prevention of smuggling activities maintenance of public order etc
and set the detenu at liberty 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 the conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 there is apt to be some delay between the prejudicial activity complained of under section 31 of the Act and the making of an order of detention
When a person is detected in the act of smuggling or foreign exchange racketeering the Directorate of Enforcement has to make a thorough investigation into all the facts with a view to 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 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 consequent 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 taking various other measures ie 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 necessity in the public interest to direct the detention of such person or persons under section 31 of the Act with a view to preventing them from acting in any manner prejudicial to the conservation and augmentation of foreign exchange or with a view to preventing them from engaging in smuggling 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 same before the detaining authority
Being conscious that the requirements of article 225 would not be satisfied unless the basic facts and materials  which weighed with him in reaching his subjective satisfaction 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 the impugned order was passed the detaining authority would neces 297 sarily insist upon sufficiency of the grounds which would justify the 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 article 225 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 Activities 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 the nation the 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 satisfaction of the detaining authority or that such subjective satisfaction was not genuinely reached
Taking of such a view would not be warrented 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 vs Union of India  Ors Crl
W No 41086 dated 221987 Bhupinder Singh vs Union of India  Ors  Anwar Esmail Aibani vs Union of India  Ors Crl
W No 37586 dated 11121986 Surinder pal Singh vs ML Wadhawan  Ors Crl
W No 44486 dated 931987 and Ramesh Lal vs Delhi Administration Crl
W No 4384 dated 1641984 and other cases taking the same view do not lay down good law and are accordingly overruled
In the present case the direct and proximate cause for the impugned order of detention was the importation in bulk of Indian made foreign liquor by the appellant acting as a broker from across the border on the night between 2930th 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
298 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 appellant
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 section 32 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 forwarded the report to the State Government on the 28th and the Government 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 grounds were stale or illusory 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 in 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 vs State of West Bengal it was held 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 pass the detention order to prevent him from acting in a manner prejudicial to the maintenance of the supply of electricity
In Golam Hussain  Gama vs The Commissioner of Police Calcutta  Ors   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 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 information of participation being available only in the course of an investigation
The Court has to investigate whether the casual connection has 299 been broken in the circumstances of each case
In Odut Ali Miah vs State of West Bengal 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 detention
In Vijay Narain Singh vs 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 rational nexus for the subjective satisfaction of the detaining authority
It is usually from prior events showing tendencies or inclinations of a man that an inference can be drawn whether he is likely in the future to act in a manner prejudicial to the maintenance of public order
 See also Gora vs State of West Bengal   Raj Kumar Singh vs State of Bihar  Ors  and Hemlata kantilal Shah vs State of Maharashtra  Point No 2 Quite recently we had occasion to deal with this aspect in Bal Chand Bansal vs Union of India  Ors JT In repelling a contention raised on the dictum in Ramesh Yadav vs District Magistrate Etah  one of us Sharma J drew attention to the observations of Mukharji J in Suraj Pal Sahu vs State of Maharashtra  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 one of 21st July 1982 for which the detenu was being prosecuted in Criminal Case No 30382 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 15086 relating to recovery and seizure of 24 bottles of foreign liquor from his house was 300 then still pending and go on to recite that the launching of the prosecution 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 detention but they along with the transaction in question of importation of foreign liquor in bulk show that his activities in this transaction afforded sufficient ground for the prognosis that he would indulge in such anti social activities again if not detained
The District Magistrate 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 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 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 purpose 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 purpose of the detention is with a view to preventing 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 description of a bootlegger  as defined in section 2b and therefore he comes within the purview of sub section
1 of section 3 of the Act by reason of sub section
4 thereof
Sub section
4 of section 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 purpose 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 offender or immoral traffic offender or property grabber which affect adversely or are likely to affect adversely the maintenance of public order
301 Explanation For the purpose of this sub section public 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 harm danger or alarm or feeling of insecurity among the general public of any section thereof or a grave or 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 maintenance of public order it is necessary to make an order that he be detained
In the accompanying grounds for detention this is the basis 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 section 32 of the Act and recite In order to safeguard the health of the people of 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 wholly unnecessary
They were set out by the District Magistrate Presumably because of total prohibition in the State
In future it would be better for the detaining authority acting under sections 31 and 32 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 in disposal of the representation made by the appellant to the State Government appears to be wholly misconceived
Admittedly the appellant made his representations to the State Government as well as to the Advisory Board on 8th June 1987
The State Government acted with promptitude and after due consideration rejected the same on 12th June 1987
There was no delay much less inordinate delay in consideration of the representation
The result therefore is that the appeal as well as the writ petition fail and are dismissed
SL Appeal  Petition dismissed


Summary:
The prosecution case was The appellant who was working under PW1 developed intimacy with PW1 s wife
However on being found out by her daughter PW2 the wife was forced to terminate this relationship
Then on 2071985 the appellant saw a late night film containing murder scenes of four women and told his friend PW5 that he would take revenge for the betrayal by a lady
Thereafter he went to the house of PW1 and attacked the wife with knife and killed her son when he intervened
He also caused grievous injury to the daughter
The appellant was convicted by the trial court under section 302 IPC for double murder of the woman and her son and also under section 307 IPC for attempting to kill her daughter and for house trespass in order to commit the aforesaid offences and sentenced to death and life imprisonment respectively
The High Court dismissed the appeal and confirmed the death sentence
In the appeal by special leave it was contended that although the appellant was not in such a mental state as to attract section 84 of the IPC he was certainly so agitated on account of the circumstances beyond his control that he should be spared from the extreme penalty of death
Allowing the appeal 223  HELD The deceased was an elderly lady with two children who took a defiant attitude defending her conduct when she was first confronted by her own daughter which suggests that the unfortunate relationship between her and the appellant in his mid 20s had developed with her encouragement
When suddenly spurned by his partner the appellant must have experienced the disappointment of a discarded lover
His mental agitation was further fuelled by the movie showing murder after murder
And when this upsets a youngman already vulnerably disturbed the society cannot be completely absolved of sharing the responsibility for the tragedy resulting from the vicious effect of films picturising violence
225F H 226A B Considering all these circumstances and having regard to the fact that when commanded by PW16 the appellant stopped immediately thereby resulting in the life of the daughter being saved and that he did not attempt to escape the sentence of death passed against the appellant under section 302 Indian Penal Code is converted to imprisonment for life
226B C