LexBHAWARLAL GANESHMALJI versus STATE OF TAMIL NADU & ANR.
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' ··~. • 63 3 BHAW ARLAL GANESHMALJI v. STATE OF TAMIL NADU & ANR. December 11, 1978 [N. L. UNTWALIA AND 0. CHINNAPPA REDDY, JJ.] Conservation of Foreign Exchange and Prevention of Smuggling Activities A.ct 1974-0rder of detention made-Detenu absconded for 3 years and later surrendered-Live and proximate link between grournl..r of detention and purpose of detention-Whether snapped. A B Constitution of India 1950-Article 22(5)-0rder of detention made on C .tht basis of intelligence report-Necessity to disclose the identity of the author of the report and the material on which the report is based-Detenu 1101 clainiing di.Jclosure-Whether detenu can assail such order of deten- tion. An order of detention under the Conservation of Foreign Exchange and Prevention of Smuggling ' Activities Act, 1974 was passed in December D 1974 against the appellant. But it could not be executed because the detenu was absconding and could not be apprehended despite a proclamation made under section 7 of the Act. More than three years after the order was passed, the appellant surrendered in February, 1978. His application for a writ of habeas corpus was rejected by the High Court. In his appeal against the judgment of the High Court as well as in a petition E under Art. 32 of the Constitution raising grounds not raised before the High Court, the appellant contended that ( 1) the detention order made more than three years before its execution must be considered to have lapsed without fresh application of the mind of the detaining authority to the facts and circumstances of the case, (2) all the four persons who had made statements against the detenu had resiled from . their earlier statements long before the order of detention and the failure of the detaining authority to consider suc1t F vital material vitiated the order of detention, and (3) the detention order was not based upon any "rationally probative" material, intlsmuch as it was based upon an intelligence report, not disclosed to the detenu and that this had resulted in denial to the detenu of his fundamental right under Art. 22(5) of the c·onstitlltion. Dismissing the appeal anP. writ petition, HELD : I. It is well settled that the purpose of detention under the COFEPOSA is not punitive but preventive, th3.t is to staiy, its purpose is to prevent organised smuggling activities and to conserve and augment Foreign Exchange, that the maximum period of detention under the Act is one year, and that there must be a 'live and proximate link' between the grounds of detention and the avowed purpose of detention. But in appropriate aises the Court can assume that the link is 'snapped' if there is a long and unexplain~ <1d delay between the date of the order of detention and the arrest of the G H 63 4 SUPREME COURT REPORTS [1979] 2 S.c.!. A detenu. \Vhere the delay is not only adequately explained but is found to be the result of the detenu's recalcitrant or refractory conduct in evading arrest, there is warrant to consider the 'link' not snapped but strengthened. [638 B-DJ B c Jn the instant case, the order was made in December, 1974. He was absconding, a proclamation was pub!ished in several leading newspapers that he wn.;; a 'person absconding and a reward was offered for his apprehension. Despite all this he could not be arrested until he surrendered in February .. 1978. Therefore the submission based on delay had no force. [638 E-FJ 2. There is no force in the contention that material facts which might influence the mind of the authority one way or the other, were not placed before it and that this vitiated the order of detention. The detaining autho- rity took into consideration the circumstance that there '.¥'ere 'adjudication' proceedings, that the currency which the appellant was carrying was confis- cated and_ that a penalty of Rs. 5,000 /- was imposed on him. The order of adju4ication by which the currency was Confiscated and penalty was imposed did refer to the circun1stance that persons who had made incriminating state- ments against the detcnu had resiled from those statements. [638 H-639 B] D 3. It cannot be Gaid that the detenu had been denied a reasonable oppor- tunity of making a representation merely because particulars which he never desired in respect of a ground which was not vague were not furnished to- bim. The ground was specific enough. If the detenu w\111ted any
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