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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 6th 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,

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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  17th 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 17th 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  

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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 21st  

of  December,  2012.   The  detaining  authority  

after scrutiny and evaluation of the proposals  

and the documents, decided on 25th of January,  

2013  to  place  the  proposals  before  the  

screening committee and forwarded the same to  

it on 1st 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 15th of April, 2013 to detain  

the detenu and two others.   Draft grounds for  

detention in English were approved on 19th of  

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April, 2013 and as one of the detenue was a  

Tamilian, time till 3rd 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 6th  

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

11th of June, 2013.  The grounds of detention  

dated 8th of May, 2013 were made available to  

the detenu on 13th 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  24th of  August,  

2013, and confirmed the order of detention for  

a period of one year with effect from 11th of  

June, 2013, the date of detention.  

It is relevant here to state that detenu  

was earlier arrested in connection with Kallur  

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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 30th 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  

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that  the  last  prejudicial  activity  which  

prompted the detaining authority to pass the  

order of detention had taken place on 17th of  

November, 2012; whereas the order of detention  

has  been  passed  on  6th 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 17th  

of December, 2012 for the prejudicial activity  

of the detenu which had taken place on 17th of  

November, 2012 and the order of detention was  

passed on 6th 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.

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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  

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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  

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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  

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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  

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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  

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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  

17th of November, 2012.  The allegation related  

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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 17th  

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 21st 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  

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such scrutiny and evaluation decided on 25th of  

January, 2013 to place the proposals before the  

screening committee and forwarded the same to  

it on 1st 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 1st 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  

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authority  decided  on  15th 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 19th 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 3rd of May, 2013.  Thereafter,  

the order of detention was passed on 6th 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  

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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  

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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.”

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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  6th of  May,  2013  

whereas it was served on the detenu on 11th 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  

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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 6th of May, 2013 was  

served on the detenu on 11th 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 11th of  

June, 2013.  Therefore, in our opinion, the  

order of detention cannot be said to have been  

vitiated on this ground also.   

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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  

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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  

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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.  

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