Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO._872 OF 2014

(@SPECIAL LEAVE PETITION (CRL.) No.988 of 2014)

LICIL ANTONY ..... APPELLANT

VERSUS

STATE OF KERALA & ANR. .... RESPONDENTS

J U D G M E N T

Chandramauli Kr. Prasad

Petitioner Licil Antony happens to be the

wife of detenu Antony Morris and aggrieved by

the order dated 6

th

of November, 2013 passed by

a Division Bench of the Kerala High Court in

Writ Petition (Criminal) No. 412 of 2013

declining to quash the order of detention

passed under Conservation of Foreign Exchange

and Prevention of Smuggling Activities Act,

Page 2 1974, hereinafter referred to as “COFEPOSA”,

has preferred this special leave petition.

Leave granted.

Shorn of unnecessary details, facts

giving rise to the present appeal are that on

the allegation that the appellant’s husband

Antony Morris, hereinafter referred to as the

detenu, intended to export red sanders through

International Container Trans-shipment

Terminal, was arrested on 17

th

of November,

2012 by the Directorate of Revenue

Intelligence and a case was registered against

him. He was released on bail by the

Additional Chief Judicial Magistrate (Economic

Offences), Ernakulam. The Directorate of

Revenue Intelligence, hereinafter referred to

as ‘DRI’, by its letter dated 17

th

of December,

2012 made recommendation for the detenu’s

detention besides two others under Section 3

of the COFEPOSA alleging that they are part of

2

Page 3 a well-organised gang operating in smuggling

of red sanders in India and abroad. The

proposals of the DRI, hereinafter referred to

as the sponsoring authority, were received in

the office of the detaining authority on 21

st

of December, 2012. The detaining authority

after scrutiny and evaluation of the proposals

and the documents, decided on 25

th

of January,

2013 to place the proposals before the

screening committee and forwarded the same to

it on 1

st

of February, 2013. The proposals of

the detenu’s detention along with two others

were considered by the screening committee

which concurred with the recommendation of the

sponsoring authority. The detaining authority

considered the facts and circumstances of the

case as also the reports of the sponsoring

authority and the screening committee and

other materials running over 1000 pages and

took decision on 15

th

of April, 2013 to detain

the detenu and two others. Draft grounds for

detention in English were approved on 19

th

of

3

Page 4 April, 2013 and as one of the detenue was a

Tamilian, time till 3

rd

of May, 2013 was taken

for translation of the documents relied on in

Malyalam and Tamil and for preparation of

sufficient number of copies. Ultimately, with

a view to prevent the detenu from engaging in

the smuggling of goods, the detaining

authority passed order of detention dated 6

th

of May, 2013. It was served on the detenu on

11

th

of June, 2013. The grounds of detention

dated 8

th

of May, 2013 were made available to

the detenu on 13

th

of June, 2013. The detenu

was produced before the Advisory Board, which

found sufficient grounds for his continued

detention and, accordingly, the detaining

authority issued order dated 24

th

of August,

2013, and confirmed the order of detention for

a period of one year with effect from 11

th

of

June, 2013, the date of detention.

It is relevant here to state that detenu

was earlier arrested in connection with Kallur

4

Page 5 Police Station FIR No.57 of 2012 under Section

29 and 32 of A.P. Forest Act, 1937; Section 29

of the Wildlife Protection Act, 1972; Section

55(2) of the Biological Diversity Act, 2002;

Rule 3 of the A.P. Sandalwood and Red Sanders

Wood Transit Rules, 1969 and Section 379 of

the Indian Penal Code. Judicial Magistrate

(First Class), Pakala by order dated 30

th

of

November, 2012 released him on bail and while

doing so directed him to appear before the

concerned police station on specified days.

The appellant challenged her husband’s

detention before the High Court in a writ

petition. By the impugned order the same has

been dismissed.

Mr. Raghenth Basant, learned counsel for

the appellant submits that there is inordinate

delay in passing the order of detention and

that itself vitiates the same. He points out

5

Page 6 that the last prejudicial activity which

prompted the detaining authority to pass the

order of detention had taken place on 17

th

of

November, 2012; whereas the order of detention

has been passed on 6

th

of May, 2013. He

submits that delay in passing the order has

not been explained.

Mr. M.T. George, learned counsel

appearing on behalf of the respondents does

not join issue and admits that the sponsoring

authority wrote about the necessity of

preventive detention in its letter dated 17

th

of December, 2012 for the prejudicial activity

of the detenu which had taken place on 17

th

of

November, 2012 and the order of detention was

passed on 6

th

of May, 2013 but this delay has

sufficiently been explained. He submits that

mere delay itself is not sufficient to hold

that the order of detention is illegal.

6

Page 7 We have given our thoughtful

consideration to the rival submissions and we

have no doubt in our mind that there has to be

live link between the prejudicial activity and

the order of detention. COFEPOSA intends to

deal with persons engaged in smuggling

activities who pose a serious threat to the

economy and thereby security of the nation.

Such persons by virtue of their large

resources and influence cause delay in making

of an order of detention. While dealing with

the question of delay in making an order of

detention, the court is required to be

circumspect and has to take a pragmatic view.

No hard and fast formula is possible to be

laid or has been laid in this regard.

However, one thing is clear that in case of

delay, that has to be satisfactorily

explained. After all, the purpose of

preventive detention is to take immediate

steps for preventing the detenu from indulging

in prejudicial activity. If there is undue

7

Page 8 and long delay between the prejudicial

activity and making of the order of detention

and the delay has not been explained, the

order of detention becomes vulnerable. Delay

in issuing the order of detention, if not

satisfactorily explained, itself is a ground

to quash the order of detention. No rule with

precision has been formulated in this regard.

The test of proximity is not a rigid or a

mechanical test. In case of undue and long

delay the court has to investigate whether the

link has been broken in the circumstances of

each case.

There are a large number of authorities

which take this view and, therefore, it is

unnecessary to refer to all of them. In the

case of Adishwar Jain v. Union of India

(2006) 11 SCC 339 , this Court observed as

follows:

“8. Indisputably, delay to some

extent stands explained. But, we

fail to understand as to why despite

8

Page 9 the fact that the proposal for

detention was made on 2-12-2004, the

order of detention was passed after

four months. We must also notice

that in the meantime on 20-12-2004,

the authorities of the DRI had

clearly stated that transactions

after 11-10-2003 were not under the

scrutiny stating:

“… In our letter mentioned

above, your office was

requested not to issue the DEPB

scripts to M/s Girnar Impex

Limited and M/s Siri Amar

Exports, only in respect of the

pending application, if any,

filed by these parties up to

the date of action i.e. 11-10-

2003 as the past exports were

under scrutiny being doubtful

as per the intelligence

received in this office. This

office never intended to stop

the export incentives occurring

to the parties, after the date

of action i.e. 11-10-2003. In

the civil ( sic) your office

Letter No. B.L.-2/Misc. Am-

2003/Ldh dated 17-5-2004 is

being referred to, which is not

received in this office. You

are, therefore, requested to

supply photocopy of the said

letter to the bearer of this

letter as this letter is

required for filing reply to

the Hon’ble Court.”

9. Furthermore, as noticed

hereinbefore, the authorities of the

9

Page 10 DRI by a letter dated 28-2-2005

requested the bank to defreeze the

bank accounts of the appellant.

10. The said documents, in our

opinion, were material.

11. It was, therefore, difficult

to appreciate why order of detention

could not be passed on the basis of

the materials gathered by them.

12. It is no doubt true that if

the delay is sufficiently explained,

the same would not be a ground for

quashing an order of detention under

COFEPOSA, but as in this case a

major part of delay remains

unexplained.”

Further, this Court had the occasion to

consider this question in the case of Rajinder

Arora v. Union of India, (2006) 4 SCC 796 in

which it has been held as follows:

“20. Furthermore no explanation

whatsoever has been offered by the

respondent as to why the order of

detention has been issued after such

a long time. The said question has

also not been examined by the

Authorities before issuing the order

of detention.

21. The question as regards delay

in issuing the order of detention

has been held to be a valid ground

10

Page 11 for quashing an order of detention

by this Court in T.A. Abdul Rahman

v. State of Kerala (1989) 4 SCC 741

stating: (SCC pp. 748-49, paras 10-

11)

“10. The conspectus of the

above decisions can be

summarised thus: The question

whether the prejudicial

activities of a person

necessitating to pass an order

of detention is proximate to

the time when the order is

made or the live-link between

the prejudicial activities and

the purpose of detention is

snapped depends on the facts

and circumstances of each

case. No hard-and-fast rule

can be precisely formulated

that would be applicable under

all circumstances and no

exhaustive guidelines can be

laid down in that behalf. It

follows that the test of

proximity is not a rigid or

mechanical test by merely

counting number of months

between the offending acts and

the order of detention.

However, when there is undue

and long delay between the

prejudicial activities and the

passing of detention order,

the court has to scrutinise

whether the detaining

authority has satisfactorily

examined such a delay and

afforded a tenable and

reasonable explanation as to

why such a delay has

occasioned, when called upon

11

Page 12 to answer and further the

court has to investigate

whether the causal connection

has been broken in the

circumstances of each case.

11. Similarly when there is

unsatisfactory and unexplained

delay between the date of

order of detention and the

date of securing the arrest of

the detenu, such a delay would

throw considerable doubt on

the genuineness of the

subjective satisfaction of the

detaining authority leading to

a legitimate inference that

the detaining authority was

not really and genuinely

satisfied as regards the

necessity for detaining the

detenu with a view to

preventing him from acting in

a prejudicial manner.”

22. The delay caused in this case

in issuing the order of detention

has not been explained. In fact, no

reason in that behalf whatsoever has

been assigned at all.”

Bearing in mind the principles aforesaid,

we proceed to examine the facts of the present

case. Prejudicial activity which prompted the

sponsoring authority to recommend for detention

of the detenu under COFEPOSA had taken place on

17

th

of November, 2012. The allegation related

12

Page 13 to export of red sanders through International

Container Trans-shipment Terminal. The

sponsoring authority took some time to

determine whether the prejudicial activity of

the detenu justifies detention. During the

inquiry it transpired that the detenu and two

others were part of a well-organised gang

operating in smuggling of red sanders in India

and abroad. It is only thereafter that on 17

th

of December, 2012, the sponsoring authority

made recommendation for the detention of the

detenu and two others under Section 3 of the

COFEPOSA. As the allegation had international

ramification, the time taken by the sponsoring

authority in making recommendation cannot be

said to be inordinate. The proposals of the

sponsoring authority were received in the

office of the detaining authority on 21

st

of

December, 2012. As detention affects the

liberty of a citizen, it has to be scrutinised

and evaluated with great care, caution and

circumspection. The detaining authority upon

13

Page 14 such scrutiny and evaluation decided on 25

th

of

January, 2013 to place the proposals before the

screening committee and forwarded the same to

it on 1

st

of February, 2013. If one expects

care and caution in scrutiny and evaluation of

the proposals, the time taken by the detaining

authority to place the proposals before the

screening committee cannot be said to have been

taken after inordinate delay. The meeting of

the screening committee took place on 1

st

of

February, 2013 in which the cases of the detenu

and the two others were considered. The

screening committee concurred with the

recommendation of the sponsoring authority. As

stated by the respondents in the counter

affidavit, the record of the sponsoring

authority, the screening committee and other

materials consisted of over 1000 pages. As the

final call was to be taken by the detaining

authority, it was expected to scrutinise,

evaluate and analyse all the materials in

detail. After the said process, the detaining

14

Page 15 authority decided on 15

th

of April, 2013 to

detain the detenu and two others. The time

taken for coming to the decision has

sufficiently been explained. After the

decision to detain the detenu and two others

was taken, draft grounds were prepared and

approved on 19

th

of April, 2013. As one of the

detenue was a Tamilian, the grounds of

detention were translated in Malyalam and Tamil

which took some time and ultimately sufficient

number of copies and the documents relied on

were prepared by 3

rd

of May, 2013. Thereafter,

the order of detention was passed on 6

th

of May,

2013.

From what we have stated above, it cannot

be said that there is undue delay in passing

the order of detention and the live nexus

between the prejudicial activity has snapped.

As observed earlier, the question whether the

prejudicial activity of a person necessitating

to pass an order of detention is proximate to

15

Page 16 the time when the order is made or the live

link between the prejudicial activity and the

purpose of detention is snapped depends on the

facts and circumstances of each case. Even in

a case of undue or long delay between the

prejudicial activity and the passing of

detention order, if the same is satisfactorily

explained and a tenable and reasonable

explanation is offered, the order of detention

is not vitiated. We must bear in mind that

distinction exists between the delay in making

of an order of detention under a law relating

to preventive detention like COFEPOSA and the

delay in complying with procedural safeguards

enshrined under Article 22(5) of the

Constitution. In view of the factual scenario

as aforesaid, we are of the opinion that the

order of detention is not fit to be quashed on

the ground of delay in passing the same. The

conclusion which we have reached is in tune

with what has been observed by this Court in

16

Page 17 the case of M. Ahamedkutty v. Union of India,

(1990) 2 SCC 1. It reads as follows:

“10........ Mere delay in making of

an order of detention 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 warranted 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.”

17

Page 18 Mr. Basant, then assails the order of

detention on the ground of its delayed

execution. He points out that the order of

detention was passed on 6

th

of May, 2013

whereas it was served on the detenu on 11

th

of

June, 2013. He submits that had the detenu

been absconding, the appropriate Government

ought to have taken recourse to Section 7 of

the COFEPOSA. Section 7 of the COFEPOSA

confers power on the detaining authority to

make a report to a competent Magistrate in

relation to an absconding person so as to

apply the provisions of Section 82, 83, 84 and

85 of the Code of Criminal Procedure. It also

provides for publication of an order in the

Official Gazette, directing the detenu to

appear. It is an admitted position that no

such report or publication was made.

Accordingly, Mr. Basant submits that the order

of detention is vitiated on the ground of

delay in its execution also. In support of

the submission he has placed reliance on a

18

Page 19 large number of authorities. We are entirely

in agreement with Mr. Basant that undue and

unexplained delay in execution of the order of

detention vitiates it, but in the facts of the

present case, it cannot be said that such

delay has occurred. As stated earlier, the

order of detention dated 6

th

of May, 2013 was

served on the detenu on 11

th

of June, 2013. It

is expected of the detaining authority to take

recourse to ordinary process at the first

instance for service of the order of detention

on a detenu and it is only after the order of

detention is not served through the said

process that recourse to the modes provided

under Section 7 of the COFEPOSA are to be

resorted. Here, in the present case, that

occasion did not arise as the order of

detention was served on the detenu on 11

th

of

June, 2013. Therefore, in our opinion, the

order of detention cannot be said to have been

vitiated on this ground also.

19

Page 20 Lastly, Mr. Basant submits that the detenu

was arrested in a case at Andhra Pradesh and

while granting bail, the trial court at Andhra

Pradesh put following conditions:

“7) The petitioner/accused No.4 shall

appear and sign before the concerned

Station House Officer in between

10.30 AM to 2.00 PM on the first week

Wednesday of every succeeding month

for a period till the date of filing

of charge sheet or until further

orders and co-operate with the

Investigating Officer.

8) The petitioner/accused No.4 shall

not tamper with the evidence of

prosecution witnesses in any way.”

Mr. Basant submits that the order granting

bail to the detenu and the conditions put have

not been considered by the detaining

authority, while passing the order of

detention. He submits that an order of

preventive detention deprives a citizen of his

precious fundamental right of liberty and as

such, the detaining authority erred in passing

the order of detention without considering the

20

Page 21 same. Mr. George, however, submits that as

the said order was passed by the trial court

at Andhra Pradesh, it was not within the

knowledge of the detaining authority. In any

view of the matter, according to him, the same

has no relevance in decision making process

and, therefore, the omission to consider that

will not render the order of detention

unconstitutional. On thoughtful consideration

of the rival submissions, the plea put forth

by Mr. George commends us. We cannot expect

the detaining authority to know each and every

detail concerning the detenu in different

parts of the country. Not only this, the

conditions imposed while granting bail to the

detenu which we have reproduced above in no

way restrains him from continuing with his

prejudicial activity or the consequences, if

he continues to indulge. We are in agreement

with the High Court that the bail order passed

by the trial court in Andhra Pradesh is not a

crucial and vital document and the omission by

21

Page 22 the detaining authority to consider the same

has, in no way affected its subjective

satisfaction.

From the conspectus of what we have

observed, we do not find any error in the

order of detention and the order passed by the

High Court, refusing to quash the same. In

the result, we do not find any merit in the

appeal and the same is dismissed accordingly.

……………………………………………………………… J.

(CHANDRAMAULI KR. PRASAD)

……………………………………………………………… J.

(PINAKI CHANDRA GHOSE)

NEW DELHI,

APRIL 15, 2014.

22