S. A. Kader,J. - (1.) THIS is a writ Petition filed under Article 226 of the constitution of India, seeking the issuance of a write a habeas corpus for quashing the order of detention passed by the first respondent State of Tamil Nadu against the petitioner-detenu, dated 21. 2. 1985 and for setting him at liberty.
(2.) THE impugned order of detention has been passed by the first respondent-State of Tamil Nadu, under S. 3 (l) (ii) of the Conservation of foreign Exchange and Prevention of Smuggling Activities Act 1974, hereinafter referred to as the Act with a view to preventing the detenu from abetting the smuggling of goods. In pursuance of this order the second respondent-Joint secretary to the Government of India, Ministry of Finance has made a declaration under S. 9 (l) of the Act, as a result of which, the period of detention has been extended to two years. Mr. B. Kumar, learned counsel for the petitioner, urged before us the following points challenging the validity of the order of detention passed by the first respondent and the declaration made by the 2nd respondent: (1) Inordinate delay of 8 months and 15 days in passing the order of detention. (2) Inordinate delay in arresting the detenue. (3) Non-furnishing of some of the documents referred to and relied by the detaining authority to the detenu along with the grounds of detention. (4) Non-application of the mind of the detaining authority in passing the order of detention. (5) Constitutional validity of S. 9 (1) of the Act. (6) Non-application of the mind of the authority making the declaration under S. 9 (l) of the Act. Point 1: The incident which has given rise to the passing of the impugned order of detention occurred on 6. 6. 1984, while the order of detention has been passed on 21. 2. 1985 after a delay of 8 months and 15 days. It is, therefore. , contended by the learned counsel for the petitioner that the nexus between the incident and the order of detention is snapped and the order of detention cannot stand. In Hemlata v. State of Maharashtra , a. I. R. 1982 S. C. 8: (1982) Crl. L. J. 150: (1981) 4 S. C. C. 647: (1982) S. C. C. (Crl) 16: (1982) 1 S. C. R. 1028, their Lordships of the Supreme Court pointed out: 'delay ipso facto in passing an order of detention after an incident is nqt fatal to the detention of a person, for, in certain cases, delay may be unavoidable and reasonable. What is required by law is that the delay must be satisfactorily explained by the detaining authority. The detaining is in no legal liability to tell or satisfy the detenu as to the cause of delay; it is under an obligation to satisfy the Court as to the cause of delay to show that there was no infraction of the constitutional provisions laid down under sub-Art. (5) of Art. 22 of the Constitution.' In a very recent decision in Shiv Narain Hakim v. Union of India, A. I. R. 1986 S. C. 610: (1986) Crl. L. J. 813: (1986) 1 S. C. C. 404: (1986) S. C. C. (Crl) 74, the learned Judges of the Supreme Court observed: 'it is no doubt true that where an unreasonably long period has elapsed between the date of incident and the order of detention, an inference may legistimately be drawn that there is no nexus between the incident and the order of detention and the order of detention may be liable to be struck down as invalid.' Paragraph 11 of the counter affidavit filed on behalf of the first respondent deals with the delay as follows: 'regarding the averments made in paragraph 11 of the affidavit, it is submitted, that the averments are untenable. In this connection, it is submitted that the seizure was effected on 6. 6. 1984/7. 6. 1984. This is a case involving several persons in Indi a and abroad who engaged in a conspiracy to smuggle various goods in India . The investigation therefore was prolonged and the same was over by August, 1984. The proposals for detention under the provisions of the Conservation of Foreign exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974) were received by this respondent on 29. 9. 1984. Thereafter, the case records were processed, perused, and subjective satisfaction arrived at and then the detention order was passed on 21. 2. 1985. During this period the matter was under the continuous consideration of the customs department in initial stage and thereafter by this respondent. A letter seeking clarification was sent to customs authorities on 20. 10. 1984, and reply was received from Customs on 16. 11. 1984. The proposal was processed and after going through the statements and documents which are voluminous, the file was sent in circulation seeking orders of Government. In the meantime, the petitioner has sent a telegram to Government to stop Conservation of Foreign Exchange and Prevention of Smuggling Activities proceedings which was followed by a representation dated 27. 1. 1985. Another person Thiru R. T. Ramachandran involved in this case also sent a representation dated 27. 1. 1985 to Government. After taking into consideration of the contents of these representations, the Government issued orders on 21. 2. 1985. Hence it could be seen from the above that the Government have taken reasonably a period of five months from the date of receipt of the proposal for issuing the detention order. The contention of the petitioner that there was a long gap between the date of occurrence and the issue of the detention order is not acceptable.' A perusal of the aforesaid explanation would show the lethargic attitude in which the Government and the Customs officials have dealt with the matter. Admittedly, the investigation was over by August, 1984. But, it is only on 29. 9. 1984, after delay of 28 days the proposal for detention has emanated from the Customs department. The file has slept for nearly 20 days in the Secretariat before a clarification has been called for on 20. 10. 1984. It has taken another 25 days from the Customs Department to sent a reply on 16. 11. 1984 and another 3 months and 4 days had passed before the order of detention was passed on 21. 2. 1985. The fact that a representation has been received from the petitioner on 27. 1. 1985 is hardly an explanation, for, even before 27. 1. 1985, more than two months and ten days have passed since the receipt of the clarification from the Customs department. Neither the government nor the Customs Officials seem to have any sense of time or the importance of the matter dealt with by them. We hold that there is no proper explanation for this delay of 8 months and 15 days and the order of detention is untenable.
(3.) POINT 2: The order of detention has been passed on 21. 2. 1985, but, the detenu has been arrested and detained only on 5. 2. 1987 after nearly two years and this is sought to be made much of. But, it must be remembered that the petitioner has filed a write petition before this Court in w. P. 4517 of 1985, and has obtained a stay of execution of the order of detention. The writ has been dismissed on 16. 12. 1985. Thereafter, a writ appeal in W. A. 1172 of 1985 has been filed and it was dismissed only 10. 2. 1986. The copy of the order has been received by the Government only on 19. 3. 1986. Meanwhile the petitioner filed a writ before the High Court of Andra Pradesh in w. P. 88758 of 1986 and it was dismissed only on 12th December, 1986. Against the said order a writ appeal in W. A. 1371 of 1986 has been filed before the same high Court and it was dismissed on 22nd December, 1986. A copy thereof was received only on 21st January, 1987. No doubt, there has been no stay during the pendency of the writ proceedings before the High Court of Andhra Pradesh, but, in view of the pendency of these proceedings the Government have stayed their hands and this cannot be pitted against them. The Government also seem to have made a notification under S. 7 (l) of the Act. In the circumstances, we are unable to hold that the delay in arresting the detenu and detaining him is due to any default on the part of the first respondent-State of Tamil Nadu, and this is no ground for quashing the order of detention. Point 3 It is urged on behalf of the petitioner that the ship's manifest of the vessel'm. V. Chidambaram'the search warrants in respect of the petitioner and his associates Chandrakanth shah, Manicka Rao and Ramachandran, the bail applications of the petitioner and his associates and the orders thereon which have been referred to in the grounds of detention, have not been furnished to the petitioner along with the grounds and the order is vitiated thereby. It is admitted in the counter filed by the first respondent that these documents were not furnished to the detenu. But, according to the learned Public Prosecutor they were not relied on by the detaining authority and there was only a passing reference to them in the grounds of detention and hence their non-supply to the detenu does not invalidate the order of detention. It is further pointed out that after the detenu asked for these documents copies have been furnished and the detenu is not, therefore, prejudiced. The grounds of detention furnished to the detenu specifically refer to the ship's manifest which contains the list of the goods of passengers and the orders passed thereon and these documents must have influenced the mind of the detaining authority one way or the other and the non furnishing of copies of these documents in fatal to the order of detention. As pointed out by the Supreme Court in Shalini Soni v. Union of India, A. I. R. 1981 s. C. 431: (1980) Crl. L. J. 1487: (1980) 4 S. C. C. 544: (1981) S. C. C. (Crl) 38: (1981) 1 S. C. R. 962: 'the Constitution and the statute cast a duty on the detaining authority to communicate the grounds of detention to the detenu. From what we have said above, it follows that the grounds communicated to the detenu must reveal the whole of the factual material considered by the detaining authority and not merely the inferences of fact arrived at by the detaining authority. The matter may also be looked at from the point of view of the second facet of Art. 22 (5 ). An opportunity to make a representation against the order of detention necessarily implies that the detenu is informed of all that has been taken into account against him in arriving at the decision to detain him. It means that the detenu is to be informed not merely, as we said, of the inferences of fact but of all the factual materials which have led to the inference of fact. If the detenu is not to be so informed, the opportunity so solemnly guaranteed by the Constitution becomes reduced to an exercise in futility. Whatever angle from which the question is looked at, it is clear that 'grounds'in Art. 22 (5) do not mean mere factual inferences but mean factual inferences plus factual materials which led to such factual inferences. The'grounds'must be self-sufficient and self-explanatory. In our view, copies of documents to which reference is made in the'grounds'must be supplied to the detenu as part of the 'grounds'.' In Hirit Kumar Chimanlal Kundalaya v. Union of India, a. I. R. 1981 S. C. 691, the learned Judges again pointed out: 'once the documents are referred to in the grounds of detention it becomes the bounden duty of the detaining authority to supply the same to the detenu as part of the grounds or pari passu the grounds of detention. Thus, it is absolutely clear to us that whether the documents concerned are referred to, relied upon or taken into consideration by the detaining authority they have to be supplied to the detenu as part of the grounds so as to enable the detenu to make an effective representation immediately on receiving the grounds of detention.' (emphasis ours ). The fact that the documents have been subsequently at the request of the detenu furnished to him will not absolve the detaining authority of its liability for the non-fumishing of the documents along with the grounds. In the documents along with the grounds. In Md. Zakir v. Delhi Administration, a. I. R. 1982 S. C. 696 some of material documents were furnished subsequently and the learned Judges held that this infirmity is clearly violative of the constitutional safeguard enshrined in Art. 22 (5) of the Constitution of India. It was observed: 'it is manifest that the question of demanding the documents is wholly irrelevant because it is the Constitutional mandate which requires the detaining authority to give the documents relied on or referred to in the order of detention pari passu the grounds of detention in order that the detenu may make an effective representation immediately instead of waiting for the documents to be supplied with.' We are, therefore, constrained to hold that the non-supply of the aforesaid documents infringes the Constitutional mandate laid down in art. 22 (5) of the Constitution and renders the order of detention invalid. ;