Case: Rekhaben Virendra Kapadia Vs. State Of Gujarat &amp; Ors

On 22nd September, 1974 the District Magistrate, Surat, directed. the detention of the detenu under section 3(1) (c) (i) and section 3 (2) of the Maintenance of Internal Security Act, 1971. The detenu was supplied with the grounds of detention on 27th September, 1974. The detention order passed under the Maintenance of Internal Security Act A was cancelled on 9th December, 1974 and the detenu was released. On 7th February , 1977 by an order under section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as COFEPOSAA) in the name of Governor, the Under Secretary to Government, respondent 2, directed that it was necessary to detain the detenu with a view to preventing him from engaging in transporting smuggled goods. On the same day by another order issued under section S of the COFEPOSAA the 2nd respondent directed that the detenu shall be detained in the Ahmedabad Central Prison. A declaration under section 12A, sub-section (2) was also passed on the same day by the 2nd respondent stating that it was necessary to detain the detenu for dealing effectively with emergency. In pursuance of the above orders the detenu has been detained in the Ahmedabad Central prison after he surrendered on 4th July, 1977. The grounds of detention were supplied to him on 6th July, 1977. On 2nd August, 1977 a declaration under sect ion 9 of the COFEPOSAA was passed by the 4th respondent stating that he was satisfied that the detenu is likely to I) engage in transporting smuggled goods in the areas around Balashwar and Sachin-Gabheni Road in the State of Gujarat which are area s highly vulnerable to smuggling as defined in section 9 of the COFEPOSAA.The High Court negatived all the contentions raised on behalf of the detenu and held that the order of detention was validly made

Court's reasoning:
To incidents are given: one relating to an incident on 6th August, 1974 and the other to an incident on 25 August, 1974. It is further stated that the Customs, officers contacted one Karltilal Amratlal Thakkar, who was working as accountant of Mohmed KutchiKantilal Amratlal Thakkar in his statement on 7th November, 1976 stated that the detenu was under the employment of the aforesaid Mohmed Kutchi and was getting a salary of Rs. 5, 000 p.m. for arranging landing of contraband goods. Kantilal further disclosed that in the year 1973 the detenu had accompanied one Mohmed Bilal with foreign currency. Reference is also made to the statements recorded from one Mohmed Bilal Haji Usmangani on 8th Novemher, 1976 and 9th Novemher, 1976 before the Customs officers wherein it was stated that the detenu was one of the trusted men of the aforesaid Mohmed Kutchi and always remained with him and used to he1p Mohmed Kutchi in managing his smuggling activities. The statement also referred to the detenu helping his uncle Vinod Sakarlal Kapadia in delivery of smuggled fabrics. The statement of one Ramchandra Schedeva Rajbher is also referred to. According to the statement dated 11th october, 1976 it was stated that the detenu remained present along with one Umer Ibrahim Billimoria and his gang at Kad odra/kamraj near poultry farm where trucks loaded with camouflaged consignments were being fed with smuggled cargo. A reading of these grounds makes it clear that the incidents referred to relate to the years l973 and 1974 and that due to examination of three persons Kantilal Amratlal Thakkar, Mohmed Bilal Haji Usmangani and Ramchandra Sahadeva Rajbher, fuller particulars regarding the activities of the detenu came to be known prima facie it appears that the information which the Customs authorities received related to the activities of the detenu in 1973 and 1974. Mr. Phadke, the learned counsel appearing on behalf of the State, submitted that the statement shows that the activities of the detenu after 1974 were also included in the grounds furnished for detention. In order to satisfy ourselves as to whether the statements related to incidents after 1974, we perused the statements made by all the three persons referred to. .It is very clear t hat the statements do not relate to any incidents after 1974 but only to the activities of the detenu in 1973 and 1974. In the affidavit filed by the 4th respondent" Additional Secretary to the Government of India, it is stated in paragraph 5 o f his affidavit that he considered the detention order, grounds of detention relating to the detenu as well as the report in respect of the detention order by the State Government under section 3(3) and was personally satisfied that the detenu Virendra Ramniklal Kapadia @ Kumar engages and is likely to engage in transporting smuggled goods* Mr. P. M. Shah Under Secretary to the Government of Gujarat, in paragraph 10 of his affidavit stated that "fresh material showing the involvement of the detenu in the activity of transporting smuggled goods was collected by the Customs authorities and therefore it was open to the State Government to pass a fresh order of detention. Further, he stated "As pointed out in the grounds material indicating the involvement of the detenu in the incidents of 6.8.74 and 25-8-74 and his close association with Shri Mohmed Kutchi, * a notorious smuggler, came to be known in October, November and December, 1976 x x x x I say that the material on the basis of which the detenu was earlier detained was scanty and no new material indicating involvement of the detenu as alleged against him came to the light till October, 1976". The case for the State appears to be that they regarded the material on the basis of which the detenu was earlier detained was scanty and fuller particulars came to light in October, 1976 indicating involvement of the detenu in the incidents of 6th August, 1974 and 25th August, 1974. This would indicate that for the fresh order of detention the basis was availability of fuller details regarding clients on which the earlier detention was ordered. It is seen that the High Court also proceeded on the basis that further information obtained in October, November 1976 related to the incidents in the years 1973 and 1974. The High Court observed, "It is no doubt true that some of the, activities attributed to the detenu were of August, 1974. However, the ground that the detenu was in regular employment of one Mohmed Kutchi, who is a notorious smuggler and who is also under detention, *Emphasis Supplied and which fact has been disclosed from the statement of one Kantilal Amratlal Thakkar recorded on November 7, 1976, clearly indicates the connection of the detenu with the said notorious smuggler. The other statements, which have brought home the involvement of the detenu with the aforesaid Mohmed Kutchi and which also attribute the prejudicial activity to the detenu, were recorded somewhere in October and November, 1976." We are unable to read the above passage as meaning that reliance was placed on fresh incidents relating to the detenu after December. 1974. The detenu was detained on 22nd September, 1974 and was released on 9th December, 1974. Further information about the activities of the detenu during the period 1974 obviously before his arrest on 22nd September, 1974 came to light in October and November, 1976. But it is seen that the fresh order of detention under the COFEPO SAA was not passed till 7th February, 1977. If the authorities were in possession of any activities of the detenu after his release on 9th December, 1974 action would have been taken. It is only the statements that were recorded in October and November 1976 which led the authorities to pass the fresh order of detention on 7th February, 1977. We have seen from the statements recorded in October and November, 1976 that no incident that took place after 1974 has been referred to.The High Court observed that it cannot be urged that reasonable nexus between the prejudicial activity and the purpose of detention has been snapped by the time-lag rendering the impugned order of detention as one Without genuine satisfaction of the detaining authority. Whether the time lag between August, 1974 and February, 1977 is enough to snap the reasonable nexus between the prejudicial activity and the purpose of detention would depend upon the facts of the case. It may be that a person in the position of a detenu who was a driver of a well known smuggler on a pay of Rs. 5, 000 p.m. and who was taking part in clearing the smuggled goods may satisfy the authority that he is likely to continue in his activities in the future and as such would justify his detention. In Gore v. State of West Bengal([1975] 2 S.C.R. 996.) this Court after referring to the earlier decisions held 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. The: question is whether the past activities of the detenu are such that the detaining authority can reasonably come to the conclusion that the detenu is likely to continue in his unlawful activities. If the detaining authority in this case had came to the conclusion taking into account the past activities of the detenu that he is likely to continue to indulge in such activities in future there would be no justification for this Court to interfere. It is quite likely that persons who are deeply involved in such activities as smuggling can cause a reasonable apprehension in the minds of the detaining authority that they are likely to continue in their unlawful activities. In this case, the 4th respondent who passed an order under section 9(1) has not stated that he is satisfied that the detenu is likely to engage in transporting all smuggled goods. What he has stated is that the detenu "engages and is likely to engage in transporting smuggled goods. There was no material before the 4th respondent for coming to the conclusion that the detenu "engages" in transporting smuggled goods. To this extent we have to accept the contention of the learned counsel for the appellant that there is no material for coming to the conclusion that the detenu was "engaging" himself in the unlawful activities. The detenu has been under detention from 4th July, 1977 and the period of detention permissible under section 3 is only one year. Section 9(1) enables the authority to make a declaration which would have the effect of extending the period of detention to two years from the date of detention by virtue of amendment to section 10 by Amending Act 20 of 1976. As we have found that the order under section 9(1) has not been validly made and as the detenu has been in detention for more than one year his continuance in detention is not sustainable.