SHIV RATAN MAKLM S/O NANDLAL MAKLM versus UNION OF INDIA AND ORS.

Citation: [1985] SUPP. 3 S.C.R. 843 · Decided: 16-12-1985 · Supreme Court of India · Bench: P.N. BHAGWATI · Disposal: Dismissed

Judgment (excerpt)

I 
843 
SHIV RATAN MAKlM S/O NANDLAL MAKlM 
v. 
UNION OF INDIA AND ORS. 
DcCEMllER 16, 1985 
[P,N, BHAGWATI, C.J. AND R.S. PATHAK, J.] 
Conservation 
of 
Foreign 
Exchange 
and 
Prevention 
of 
Smuggling Activities Act, 1974, s.3 - Detention order - Solitary 
incident - Whether sufficient for detention - Time gap between 
incident and detention order - Whether vitiates order - Detention 
order -
Whether call be made to !:!ubvert, supplant or substitute 
the punitive law. 
The petitioner while returning from Nepal was intercepted 
by the Customs Officers in the morning of' 20th November, 1984 and 
searched in the presence of independent witnesses. From his 
trousers' pocket two pieces of foreign marked gold in the shape 
of round tablets weighing 373.800 gms. were recovered and seized 
under the Customs Act. The petitioner was arrested and on 
interrogation he filed a written statement admitting the search 
and the seizure. On an application made by him he was released on 
bail. 
The second respondent thereafter passed an order dated 11th 
April 1985 under s. 3 of COFEPOSA Act directing the detention of 
the petitioner. The representation of the petitioner was rejected 
by the Central Government. The advisory Board opined that there 
was sufficient cause for the detention of the petitioner and the 
Central Government 
confirmed 
the detention order directing 
detention for one year. 
The petitioner challenged the validity of the order of 
detention before this Court contending: (i) that the order of 
detention was based on a solitary incident and apart from this 
incident there were no other incidents showing that he was 
habitually smuggling gold, (ii) that considerable time had 
elapsed between the date of recovery of gold pieces and the 
detention order, and this long lapse of time showed that the 
detention order was vitiated by malafides, and (iii) that the 
detention order was made with a view to circumventing or 
by-passing the criminal prosecution and that the power of 
detention cannot be used to subvert, supplant or substitute the 
punitive law. 
A 
B 
c 
D 
E 
F 
G 
H 
844 
SUPREME COURT RE.PORTS 
[1985] SUPP, 3 s.c.R. 
A 
Dismissing the petition, 
llE1D : 1, Having regard to the nature of the activity and 
the circumstances in which the petitioner was caught smuggling 
gold, and the facts set out by him in his written statement, the 
B second respondent was justified in reaching the ~atisfaction that 
the petitioner was engaged in smuggling gold and that with a view 
to preventing him, it was necessary to detain him, [847 E-F] 
2. Where an unreasonably long period has elapsed between 
the date of the incident and the date of the order of detention, 
an inference may legitimately be drawn that there is no nexus 
c between the incident and the order of detention and the order of 
detention may be liable to be struck down as invalid. But there 
can be no hard and fast rule as to what is the length of time 
which ahould be regarded sufficient to snap the nexus between the 
incident and the order of detnetion, (646 A-Bl 
In the instant case, the lapse of time bet...,en the date of 
o the incident and the date of order of detention has been 
sufficiently explained by the detaining authority. No inference 
of malafides can, therefore, be drawn. (846 B-<;] 
3, The object of making an order of detention is preventive 
while the object of a criminal prosecution is punitive. Even if a 
E criminal prosecution fails and an order of detention is then 
made, it would not invalidate the order of detention. 
If an 
order of detention is made only in order to bypass a criminal 
prosecution which may be irksome because of the inconvenience of 
proving guilt in a Court of law,' it would certainly be an abuse 
of the power of prevent! ve detention and the order of detention 
F would be bad. But if the object of making the order cf detention 
is to prevent the colllllission in future of activities injurious to 
the comwnity, it would be a perfectly legitimate exercise of 
power to make the order of detention. The Court would have to 
consider all the facts and circumstances of the case in order to 
determine on which side of the line the order of detention 
G falla. (846 F; 649 B-il] 
In the instant case, the petitioner was caught in the act I 
of smuggling gold and the circumstances in which the gold was 
being smuggled as also the facts set out in the written statement 
of the petitioner clearly indicate that the petitioner w

Excerpt shown. Read the full judgment & AI analysis in Lexace.