Criminal Appeal No 49 of 1990
From the Judgment and Order dated 1321989 of Delhi High Court in Crl
W No 25 of 1989
SR Setia CS Vaidyanathan and KV Viswanathan for the Appellant
VC Mahajan Ms Sushma Suri P Parmeshwaran AK Srivastava and TT Kunhikannan for the Respondents
The Judgment of the Court was delivered by KN SAIKIA J
Special leave granted
After the Appellant landed at Trivandrum Airport from Abu Dhabi he was intercepted by the customs officials detecting that he smuggled 13 gold sheets weighing 1280 gms
valued at Rs426240 concealed inside the plywood panels of his blue suitcase which was seized along with his two pass ports old and new
He was arrested on 31 1 1988 and was produced before the Chief Judicial Magistrate Economic Offences Ernakulam who remanded him to judicial custody till 12 2 1988
On 12 2 1988 he was granted bail on condi tion inter alia that he would report before the Superintendent Intelligence Air Customs Trivandrum on every Wednesday until further orders and that he would not change his residence without prior permission of Court to 25 2 1988
 The impugned detention order dated 25 6 1988 was passed by the Home Secretary Government of Kerala
It stated that the Government of Kerala was satisfied with respect to the appellant that with a view to preventing him from smuggling gold it was necessary to detain him and therefore in exercise of powers conferred by section 31i of the Conservation of Foreign Exchange and Preven tion of Smuggling Activities Act 1974 Central Act 52 of 1974 hereinafter referred to as the COFEPOSA Act the Government of Kerala directed that he be detained and kept in custody in the Central Prison Trivandrum
The grounds of detention which were also served inter alia gave the details as to how the smuggled gold was detected in his possession having been smuggled 214 into India in violation of the provisions of the  Foreign Exchange Regulation Act 1973 and Import and Export Control Act 1947 what were his statements at the time of seizure of his blue suitcase his new and old passports and the air ticket used for the journey from Dubai to Trivandrum and the return open air ticket from Bombay to Abu Dhabi and the gist of his statements given on 3031 1988 under section 108 of the before the Intelligence Superintendent Air Customs Trivandrum
It was also stated that after his arrest on 31 1 1988 he was pro duced before the Additional Chief Judicial Magistrate Economic Offences Ernakulam on the same date and he was remanded to judicial custody and was subsequently released on bail and that even though the departmental adjudication and prosecution proceedings under were pending against him the detaining authority was satisfied that he should be detained under section 31i of the COFEPOSA Act with a view to prevent him from smuggling gold to Trivan drum
On 23 8 1988 the appropriate authority declared that he was satisfied that the detenu was likely to smuggle goods into and through Trivandrum Airport which was an area highly vulnerable to smuggling as defined in Explanation 1 to section 91 of the COFEPOSA Act
On 24th September 1988 the detenu appeared before the Advisory Board which reported that there was sufficient cause for his detention
The detenu challenged his detention moving a Habeas Corpus petition under Article 226 of the Constitution of India read with section 483 Cr
CP in the High Court of Delhi and the same having been dismissed in limine the appellant appeals therefrom by special leave
In para 11 of the Special Leave Petition it has been stated that the various grounds urged in the writ petition before the High Court have also been added in this petition and the writ petition itself has been annexed as Vol
II to the Special Leave Petition
The main grounds on which the detention order is being challenged by the learned counsel for the appellant Mr CS Vaidyanathan inter alia are that after the event there was inordinate delay in passing the detention order which showed that there was no genuine need for detention of the appel lant that there was inordinate and unexplained delay of 38 days in execution of the detention order that all the documents and materials particularly the appellant s bail application the bail order the show cause notice and his reply thereto were not placed before the detaining authori ty that these documents and the fact that the appellant s old and new passports were seized and without those it would not be possible for the appellant to carry on 215 smuggling were not brought to the notice of the declaring authority and hat there was non application of mind
Mr TT Kunhikannan the learned counsel for the State of Kerala submits inter alia that there was no such delay between the date of detention and the date of passing the impugned order of detention as to make the grounds stale or to snap the relation that the delay in execution of the detention order has been explained that the bail applica tion as well as the bail order were placed before the de taining authority but the same having not been referred to or relied on by the detaining authority the copy thereof was not required to be furnished to the detenu along with the grounds of detention that all the papers which were placed before the detaining authority for passing the order of detention were also placed before the declaring authority and it was not necessary to place the show cause notice and the detenu s reply thereto and that the detention order suffered from no infirmity whatsoever and this appeal is liable to be dismissed
Mr VC Mahajan the learned coun sel for the Union of India emphatically submits that all the documents and materials that were required to be placed before the declaring authority were duly placed and on consideration of the relevant materials the declaring au thority validly made the declaration which was therefore unassailable
We now take the first submission namely delay in passing the detention order
Mr Vaidyanathan referring to paragraph 6 of the Writ Petition submits that while the interception and seizure took place on 30 1 1988 and the detenu was arrested formally on 31 1 1988 the detention order was passed only 25 6 1988 and this delay remained unexplained and as such there was no nexus between the incident and the detention
In the counter affidavit filed in this Court there is no specific denial on this point
Mr Kunhikannan submits that it so happened because this ground was not taken in the Special Leave Petition
The appellant having stated that the grounds urged in the Writ Petition should also be added it cannot be said that this ground was not taken
Of course when other ground surged in the Writ Petition have also been taken specifically in the Special Leave Petition this ground could also have been so taken
However on the basis of the Records Mr Kunhikannan submits that the Collector of Customs sent the proposal for deten tion on 27 5 1988 along with the draft grounds and the Screening Committee meeting proposed to be held on 10th June 1988 was postponed and was held on 21 6 1988 on which date the detenu s case was considered to be fit for deten tion under the COFEPOSA Act
It is submitted for the State that thorough investigation of the case was 216 required on the part of the Customs authorities both for the proceedings under the and for prosecution in the criminal Court and as such the proposal could not have been hurried through
These facts have not been shown to be untrue
Under the above circumstances can it reasonably be held that the nexus between the Smuggling Act and the deten tion order was snapped or that the grounds became stale Where the seemingly long time taken for passing the detention order after the prejudicial act is the result of full and detailed investigation and consideration of the facts of the case the ground cannot be held to be remote and the detention cannot be held to be bad on that ground
In Ashok Narain vs Union of India  where the detenu was apprehended for breach of Foreign Exchange Regulation in February 1981 and without launching any prosecution the detenu was detained in October 1981 the passage of time being the result of full and detailed con sideration of facts and circumstances of the case after thorough examination at various levels this Court observed that it could not be said that the detention was in any way illegal inasmuch as the detaining authority had fully and satisfactorily applied his mind to the question of deten tion
As was held in Smt
Rekhaben Virendra Kapadia vs State of Gujarat   whether the time lag between the commission of the offence and the detention was enough to snap the reasonable nexus between the prejudicial activi ty and the purpose of detention would depend upon the facts of each case
The test of proximity is not a rigid or me chanical calendar test to be blindly applied by merely counting the number of months and days between the offending act and the order of detention
The question is whether the past activities of the detenu were such that the detaining authority could reasonably come to the conclusion that the detenu was likely to continue in his unlawful activities
In Sheikh Salirn vs The State of West Bengal   there was a gap of about 4 months in between
The explanation of the interval was that the petitioner was being prosecuted and the order of discharge had to be ob tained on June 17 1972
The order of detention was passed 4 days before the order of discharge was passed
This Court repelling the contention observed We do not suppose that the length time which a decision takes necessarily reflects the care or openness brought to bear upon it
 217 In Rajendrakumar Natvarlal Shah vs State of Gujarat   even unexplained delay of 5 months in that case in making the order against economic offenders under the COFEPOSA Act or other anti social elements such as those involved in illicit traffic in liquor trade under Gujarat Prevention of Anti Social Activities Act having large resources and influence it was held would not be sufficient to vitiate the order if the grounds were not stale and the nexus between the grounds and the order of detention still existed
It was observed 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 COFEPOSA Act and the delay in complying with the proce dural 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
Mere delay in making of an order of deten tion under a law like the COFEPOSA Act 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 the 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 war ranted unless the Court finds that the grounds are stale or illusory or that there was no real nexus between the grounds and the impugned order of detention
In that case there was no explanation for the delay between February 2 and May 28 1987 yet it could not give rise to 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 order of detention
This Court reiterat ed what was stated in Olia Mallick vs The State of West Bengal  Golam Hussain vs The Commissioner of Police   Odut Ali Miah vs The State of West Bengal and Vijay Narain Singh vs State of Bihar The Court also referred to Gora vs State of West Bengal   Raj Kumar Singh vs State of Bihar  and Smt
Hemlata Kantilal Shah vs State of Maharashtra  Applying the law enunciated and settled by the foregoing decisions we are of the view that in this case considering the given explanation of the period in between the intercep tion on 30 1 1988 and the 218 order of detention on 25 6 1988 the nexus was not snapped and the ground was not rendered stale and the order of detention was not rendered invalid thereby
The submission is accordingly rejected
As regards the submission as to delay in execution it was urged
that there was inordinate and unexplained delay in execution of the detention order passed on 25 6 1988 as the detenu was taken into custody only on 2 8 1988 despite the fact that the detenu was reporting in compliance of the bail order
Relying on a full bench decision of the Delhi High Court in Mohammed Saleem vs Union of India since reported in 19893 Delhi Lawyer 77 it is submitted that this delay of 38 days was indicative of the fact that there was no genuine need for the detention order
This ground though taken in the Writ Petition was not repeated specifi cally in the Special Leave Petition and Mr Kunhikannan prayed for an opportunity for filing an additional counter affidavit which we declined
However explaining the delay counsel points out from the Records that on 27 6 1988 the Home Secretary wrote to the Superintendent of Police Malap uram with detailed instructions requesting him to arrange for the immediate execution of the detention order
On 19 7 1988 a teleprinter message was sent by the Home Secre tary to the Superintendent of Police in the nature of a reminder requesting that the person be immediately appre hended and compliance reported and that the delay in execu tion may also be reported
On 27 7 1988 the Superintendent of Police Malapuram wrote back to the Home Secretary that the detention order could not be executed since the warran tee was absconding and his present  whereabouts were not known and that the CI had been instructed to make all possible efforts to apprehend the warrantee
On 2 8 1988 the Superintendent of Police Malapuram sent a wireless message to the Home Secretary stating that the detention order had been served on the detenu on 2 8 1988 at his residence and his acknowledgement obtained and he had been sent to the Central Prison Trivandrum
Mr Vaidyanathan s submission that the detenu could not have been absconding in view of his reporting as required by the bail order is not accept able
The second condition in the bail order said that he will not change residents without prior permission of Court to 25 2 1988
There was no mention regarding the period thereafter
There is also no statement in the affidavit to the effect that the detenu was all along available at his residence or that he had not changed it
But even assuming that he was residing there there is no reason to disbelieve the statement of the police that they were unable to find him earlier than they actually did
219 Where the passage of time is caused by the detenu him self by absconding the satisfaction of the detaining au thority cannot be doubted and the detention cannot be held to be bad on that ground
In Bhawarlal Ganeshmalji vs State of Tamil Nadu and Anr   where the appel lant had been evading arrest and surrendering after three years of the making of order of detention under the COFEPOSA Act the order was held to be still effective as the detenu himself was to be blamed for the delay
This Court observed that there must be a live and proximate link  between the grounds of detention alleged by the detaining authority and the avowed purpose of detention namely the prevention of smuggling activities
In appropriate cases it could be assumed that the link was snapped if there was a long and unexplained delay between the date of order of detention and the arrest of the detenu and in such a case the order of detention could be struck down unless the grounds indicated a fresh application of mind of the detaining authority to the new situation and the changed circumstances
But where the delay is not only adequately explained but also is found to be the result of the recalcitrant or refractory conduct of the detenu in evading arrest there is warrant to consid er the link  not snapped but strengthened
In that case the order of detention was made on December 19 1974
The detenu was found to be absconding
Action was taken pursuant to section 7 of the COFEPOSA Act and he was proclaimed as a person absconding under section 82 of the Criminal Procedure Code
The proclamation was published in several leading English and local daily newspapers
Several other steps were taken despite which he could not be arrested until he sur rendered himself on February 1 1978
In Shafiq Ahmad vs District Magistrate Meerut 989 4 SCC 556 relied on by appellant it has been clearly held that what amounts to unreasonable delay depends on facts and circumstances of each case
Where reason for the delay was stated to be abscondence of the detenu mere failure on the part of the authorities to take action under section 7 of the National Security Act by itself was not sufficient to vitiate the order in view of the fact that the Police force remained extremely busy in tackling the serious law and order problem
However it was not accepted as a proper explanation for the delay in arresting the detenu
In that case the alleged incidents were on April 239 1988
The detention order was passed on April 15 1988 and the detenu was arrested on October 2 1988
The submission was that there was inordinate delay in arresting the petitioner pursuant to the order and that it indicated that the order was not based on a bona fide and genuine belief that the action or conduct of the petitioner were 220 such that the same were prejudicial to the maintenance of public order
Sabyasachi Mukharji J as my Lord the Chief Justice then was observed that whether there was unreasona ble delay or not would depend upon the facts and circum stances of a particular situation and if in a situation the person concerned was not available and could not be served then the mere fact that the action under section 7 of the Act had not been taken would not be a ground for holding that the detention order was bad
Failure to take action even if there was no scope for action under section 7 of the COFEPOSA Act would not by itself be a decisive or determi native of the question whether there was undue delay in serving the order of detention
In Shafiq s case the affidavit affirmed by the detaining authority showed that several raids of the petitioner s premises for the service of the order dated 15 4 1988 were conducted and the authorities had made all efforts to serve the order on the detenu but he was all along absconding and the house of the petitioner for this purpose was raided on several occasions
However in view of the fact that in that case from April 15 1988 to May 12 1988 no attempt had been made to contact or arrest the petitioner and there was no explanation as to why from September 27 1988 to October 2 1988 no attempt had been made there was unexplained delay and it was therefore not possible for the Court to be satisfied that the District Magistrate had applied his mind and arrived at the subjective satisfaction that there was genuine need for detention of the detenu
The detention order was accordingly quashed
We have already noted how in the instant case the Home Secretary sent detailed instructions to the Superintendent of Police Malapuram on 27 6 1988 and sent the teleprinter message on 19 7 1988 and the Superintendent of Police wrote back on 27 7 1988 stating that the detenu was absconding and his whereabouts were not known and all possible efforts were being made to execute the order and on 2 8 1988 the Superin tendent of Police reported that the order was served on 2 8 1988 at his residence and that he was sent to the Cen tral Prison Trivandrum
Though it could not be denied that the detenu was reporting before the Superintendent Intelli gence Air Customs Trivandrum on every Wednesday the Superintendent of Police Malapuram apparently was not aware of it
Under the above facts and circumstances we are of the view that there was no inordinate and unexplained delay in the period of 38 days between the detention order and its execution so as to snap the nexus between the two or to render the grounds stale or to indicate that the detaining authority was 221 not satisfied as to the genuine need for detention of the detenu
This submission is accordingly rejected
We may pause here to point out that the circumstances in the present case seem to indicate a certain degree of lack of coordination between the detaining authorities and those entrusted with the execution of the detention order
This is clearly seen from two circumstances in the present case
Though the detention order was sent for service on 27 6 1988 a reminder was issued only on 19 7 1988
Apparently the Superintendent of Police was finding it difficult to trace the detenu but he did not report this immediately and mentioned it to the detaining authority only on 27 7 1988
He was obviously not aware that under the terms of the bail order the detenu had to report every week at the Customs Office
If he had reported his difficulty earlier or if the detaining authorities had apprised him of the terms of the bail order it would have been possible to have had the detention order served earlier
These communication gaps should we think be avoided since it is of the very essence of a detention order to have it served at the earliest
While we have accepted the explanation tendered in the present case for this delay we would like the State to ensure that such delays do not occur as apart from giving the detenu a ground for attacking the detention order
such delay really tends to frustrate and defeat the very purpose of preventive detention
The next submission of counsel was that the detaining authority should have realised that the seizure of the detenu s passports was by itself sufficient to restrain the detenu s smuggling activities if any and refrained from passing the order of detention
We see no force in this contention
This was no doubt one of the factors that the detaining authority should have taken and did in fact take into account but it was for him to assess the weight to be attached to such a circumstance in arriving at his final decision and it is not open to us to interfere with the merits of his decision
We therefore reject this conten tion of Mr Vaidyanathan
The next submission is that of non supply of the bail application and the bail order
This Court as was observed in Mangalbhai Motiram Patel vs State of Maharashtra   has forged  certain procedural safeguards for citizens under preventive detention
The Constitutional imperatives in Article 225 are two fold a The detaining authority must as soon as may be ie as soon as practica ble after the detention communicate to the detenu the grounds on which the order of detention has been made and 2 the detaining authority 222 must afford the detenu the earliest opportunity of making the representation against the order of detention
The right is to make an effective representation and when some docu ments are referred to or relied on in the grounds of deten tion without copies of such documents the grounds of detention would not be complete
The detenu has therefore the right to be furnished with the grounds of detention along with the documents so referred to or relied on
If there is failure or even delay in furnishing those documents it would amount to denial of the right to make an effective representation
This has been settled by a long line of decisions Ramachandra A Kamat vs Union of India   Frances Coralie Mullin vs WC Kharnbra  Ors   Smt
Ichhu Devi Chararia vs Union of India   Pritam Nath Hoon vs Union of India   Shri Tushar Thakkar vs Union of India  Lallubhai Jogibhai Patel vs Union of India   Kirit Kumar Chaman Lal Kundaliya vs Union of India and Smt
Ana Carelina D Souza vs Union of India It is immaterial whether the detenu already knew about their contents or not
In Mehrunissa vs State of Maharash tra  it was held that the fact that the detenu was aware of the contents of the documents not fur nished was immaterial and non furnishing of the copy of the seizure list was held to be fatal
To appreciate this point one has to bear in mind that the detenu is in jail and has no access to his own documents
In Mohd Zakir vs Delhi Administration 16 it was reiterated that it being a Constitutional imperative for the detaining authori ty to give the documents relied on and referred to in the order of detention pari passue the grounds of detention those should be furnished at the earliest so that the detenu could make an effective representation immediately instead of waiting for the documents to be supplied with
The ques tion of demanding the documents was wholly irrelevant and the infirmity in that regard was violative of Constitutional safeguards enshrined in Article 225
It is also imperative that if the detenu was already in jail the grounds of detention are to show the awareness of that fact on the part of the detaining authority otherwise there would be non application of mind and detention order vitiated thereby
In the instant case though the order of detention ex facie did not mention of the detenu having been in jail in paragraph 3 of the grounds of detention it was said that he was arrested by the Superintendent Intelli gence Air Customs Trivandrum on 31 1 1988 and he was produced before the Additional Chief Judicial Magistrate Economic Offences Erna 223 kulam the same day
It was clearly said You were remanded to judicial custody and you were subsequently released on bail From the Records it appears that the bail application and the bail order were furnished to the detaining authority on his enquiry
It cannot therefore be said that the detaining authority did not consider or rely on them
It is difficult therefore to accept the submission of Mr Kunhi kannan that those were not relied on by the detaining au thority
The bail application contained the grounds for bail including that he had been falsely implicated as an accused in the case at the instance of persons who were inimically disposed towards him and the bail order contained the conditions subject to which the bail was granted including that the accused if released on bail would report to the Superintendent Intelligence Air Customs Trivandrum on every Wednesday until further order and that he will not change his residence without prior permission of court to 25 2 1988
This being the position in law and non supply of the bail application and the bail order having been apparent the legal consequence is bound to follow
In Khudiram Das vs State of West Bengal   this Court held that where the liberty of the subject is involved 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
The Constitutional requirement of Article 225 is that all the basic facts and particulars which influenced the detaining authority in arriving at the requisite satisfac tion leading to making the detention order must be communi cated to the detenu so that the detenu may have an opportu nity of making an effective representation against the order of detention
It is therefore not only the right of the Court but also its duty as well to examine what are the basic facts and materials which actually and in fact weighed with the detaining authority in reaching the requisite satisfaction
The judicial scrutiny cannot be foreclosed by a mere statement of the detaining authority that it has taken into account only certain basic facts and materials and though other basic facts and materials were before it it has not allowed them to influence its satisfaction
The Court is entitled to examine the correctness of this state ment and determine for itself whether there were any other basic facts or materials apart from those admitted by it which could have reasonably influenced the decision of the detaining authority and for that purpose the Court can certainly require the detaining authority to produce and make available to the Court the entire record of the case which was before it
That is the least the Court can do to ensure observance of the requirements of law by the detain ing authority
 224 From the decision in Ramesh Yadav vs District Magis trate Etah  Ors
  it can be said that the facts of the detenu having been in jail and his being granted bail are by themselves not enough to justify the passing of the detention order
In that case it was men tioned in the grounds of detention At this time you were detained in the District Jail Main puri and you have filed an application for bail in the court of law which is fixed for hearing on September 17 1984 and there is positive apprehension that after having bail you will come out of the jail and I am convinced that after being released on bail you will indulge in activities preju dicial to the maintenance of public order
 It was observed that the detention order was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area
If the apprehension of the detaining authority was true the bail application had to be opposed and in case bail was granted challenge against that order in the higher forum had to be raised
Merely on the ground that an accused in detention as an under trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed
The detention order was accordingly quashed
In State of UP vs Kamal Kishore Saini   the application of a co accused as well as statements made in the bail application filed on behalf of the detenu alleging that the detenu was falsely implicated and the Police report thereon were not produced before the detaining authority before passing the detention order
Holding that the detention order was invalid on that ground it was observed Similarly with regard to ground No 3 the application of the co accused as well as the statement made in the bail application filed on behalf of the detenus alleging that they had been falsely implicated in the same case and the police report thereon were not produced before the detain ing authority before passing of the detention order  
It is incumbent to place all the vital materials before the detaining authority to enable him to come to a subjective satisfaction as to the passing of the order of detention as mandatorily required under the Act
 225 Non consideration of the bail order would have there fore in this case amounted to non application of mind
In Union of India vs Manoharlal Narang   the Supreme Court s interim order in pending appeal against High Court s quashing of a previous order of detention against the same detenu was not considered by the detaining authori ty while making the impugned subsequent order against him
By the interim order Supreme Court had permitted the detenu to be at large on condition of his reporting to the police station daily
It was held that non consideration of the interim order which constituted a relevant and important material was fatal to the subsequent detention order on ground of non application of mind
If the detaining authori ty considered that order one could not state with definite ness which way his subjective satisfaction would have react ed and it could have persuaded the detaining authority to desist from passing the order of detention
If in the in stant case the bail order on condition of the detenu s reporting to the Customs authorities was not considered the detention order itself would have been affected
Therefore it cannot be held that while passing the detention order the bail order was not relied on by the detaining authority
In section Gurdip Singh vs Union of India  follow ing Ichhu Devi Choraria vs Union of India supra and Smt
Shalini Soni vs Union of India   it was reiterated that if the documents which formed the basis of the order of detention were not served on the detenu along with the grounds of detention in the eye of law there would be no service of the grounds of detention and that circum stances would vitiate his detention and make it void ab initio
Mr Kunhikannan relies on Haridas Amarchand Shah VKL Verma   wherein the application for bail and the order dated September 15 1987 passed by the Metro politan Magistrate granting conditional bail were placed before the detaining authority but the application dated September 21 1987 for variation of the conditions and the order made by the Metropolitan Magistrate thereon were not placed before the detaining authority this Court held that the application for variation of conditions on bail and the order passed by the Metropolitan Magistrate varying the conditions of bail were in its opinion not vital and material documents inasmuch as the granting of bail by the Magistrate enabled the detenu to come out and carry on his business as before and variation of the conditions were not considered vital for the satisfaction as to need for deten tion
That case is therefore distinguishable on facts
Considering the facts in the instant case the bail applica tion and 226 the bail order were vital materials for consideration
If those were not considered the satisfaction of the detaining authority itself would have been impaired and if those had been considered they would be documents relied on by the detaining authority though the specifically mentioned in the annexure to the order of detention and those ought to have formed part of the documents
supplied to the detenu with the grounds of detention and without them the grounds them selves could not be said to have been complete
We have therefore no alternative but to hold that it amounted to denial of the detenu s right to make an effective represen tation and that it resulted in violation of Article of the Constitution of India rendering the continued detention of the detenu illegal and entitling the detenu to be set at liberty in this case
Mr Vaidyanathan s last submission is that the order of declaration dated 23 8 1988 is bad on the ground that the show cause notice dated 7 7 1988 and his reply thereto dated 26 7 1988 the bail application and the bail order dated 12 2 1988 as also the fact that the two passports of the detenu were seized were not placed before the declaring authority before he issued the declaration order under section 91 of the COFEPOSA Act
Mr Mahajan clearly stated that all the materials that were placed before the detaining authority were also placed before the declaring authority which meant that the show cause notice the reply thereto and the seizure list of the passports were not placed before him
The declaration made under section 9 of the COFEPOSA Act by the Additional Secretary to the Government of India on 23 8 1988 reads as under Whereas Shri M Ahamedkutty So Shri Cheriya Saidukutty has been detained on 2 8 1988 in pursuance of order No 35158SSAI88Home dated 25 6 1988 of the Government of Kerala made under Section 31 of the Conservation of For eign Exchange and Prevention of Smuggling Activities Act 1974 with a view to preventing him from smuggling gold And whereas I the undersigned specially empowered in this behalf by the Central Government have carefully considered the grounds of detention and the material served on the detenu 227 Now therefore I the undersigned hereby declare that I am satisfied that the aforesaid Shri Ahamedkutty SO Shri Cheriya Saidukutty is likely to smuggle goods into and through Trivandrum Airport which is an area highly vulnera ble to smuggling as defined in Explanation 1 to Section 91 of the 
 This order ex facie says that the declaring authority had carefully considered the grounds of detention and the materials served on the detenu and on those materials the authority was satisfied that the detenu was likely to smug gle goods into and through Trivandrum Airport which was an area highly vulnerable to smuggling as defined in Explana tion 1 to section 91 of the COFEPOSA Act
The question is whether there were adequate materials for the authority being satisfied that the detenu was likely to smuggle goods
The detenu having already been under detention and his detention confirmed by the Government under section 8 the Advisory Board having reported that there was sufficient cause for continued detention of the detenu were there still enough materials to be satisfied that the detenu was likely to smuggle goods into Trivandrum vulnerable area To decide this question Mr Vaidyanathan urged it is neces sary to remember that the passports of the detenu had been seized by the authorities
According to counsel if the detaining authority had applied his mind to this important fact he could not have been satisfied that his detention was necessary to restrain the detenu s activities of smug gling
This point we have touched upon earlier
In any event Mr Vaidyanathan submits the declaring authority could not have been satisfied that the detenu was likely to smuggle goods into and through the Trivandrum airport which is the vulnerable area for without a passport he could not come in or go out through the airport
In Smt
Rekhaben Virendra Kapadia vs State of Gujarat  Ors   the declaring authority who passed an order under section 91 had also stated that the detenu engages and is likely to engage in transporting smuggled goods
To that extent it was observed by this Court that there was no material for coming to the conclusion that the detenu was engaging himself in the unlawful activities as the detenu had been under detention
However in an appro priate case if the declaring authority came to the conclu sion taking into account the past activities of the detenu that he was likely to continue to indulge in such activities in future there might be no justification for this Court to interfere
It was quite likely that persons 228 who were systematically involved in smuggling activities could cause reasonable apprehension in the minds of the declaring authority that they were likely to continue their prejudicial activities
The emphasis in section 9 appears to be on the satisfac tion that the detenu a smuggles or is likely to smuggle goods into out of or through any area highly vulnerable to smuggling or b abets or is likely to abet the smuggling of goods into out of or through any area highly vulnerable to smuggling or c engages or is likely to engage in transporting or concealing or keeping smuggled goods in any area highly  vulnerable to smuggling and in making a decla ration to that effect within 5 weeks of the detention of the person
Explanation i defines area highly vulnerable to smuggling and Explanation 2 defines customs airport and the customs station
It is true that under section 10 of the COFEPOSA Act where the provisions of section 9 apply the maximum period of detention shall be a period of two years from the date of detention or the specified period whichever period expires later
However nothing contained in section 9 shall affect the power of the appropriate Government in either case to revoke or modify the detention order at any earlier time
This may imply an obligation on the part of the detaining authority to place the facts and materials that occurred between the date of detention and the date of declaration so as to justify prolongation of the period of detention
In Smt
Madhu Khanna vs Administra tor Union Territory Delhi  where detenu s representation was rejected and declaration under section 91 was made on the same day but in different files mere non reference of the representation in the declaration was held not to have shown failure of the declaring authority to consider the representation before making the declaration
However as we have taken the view that non furnishing of the copies of the bail application and the bail order has resulted in violation of Article 225 of the Constitution we do not express any opinion on this submission
In the result the detention order and the impugned judgment are set aside the appeal is allowed and the detenu is to be set at liberty in this case
RSS Appeal allowed


Summary:
A will executed jointly by three persons contained inter alia the following recitals  We have hereby settled and agreed that all the moveable and immoveable properties acquired jointly and separately by us till now and those which we may be so acquiring in future and those which have devolved on us and those which we may yet be obtaining shall be held by us in our possession and under our control and dealt with by us as we please till our death
 There were bequests in favour of certain persons and the will provided that in the event of the executants effecting any transfers or alienations of the said properties either jointly or severally till their death the aforesaid persons shall have the right only in respect of the remaining items of the properties
Two of the testators having died the third claimed that he had become entitled by surviorship to all the properties disposed of by the document on the footing that it was in effect a transfer of all their individual properties to themselves jointly as joint tenants
Held that the document was a testamentary disposition by the three testators of their properties operating on the death of each testator on his properties and was in effect three wills combined in one
The properties were held by the testators at tenants in common and the legatees mentioned in the will would become entitled to the properties of the testator who dies