# ' ··~. • 63 3 BHAW ARLAL GANESHMALJI v. STATE OF TAMIL NADU & ANR

- **Citation:** [1979] 2 S.C.R. 633
- **Court:** Supreme Court of India
- **Decided:** 1978-12-11
- **Case number:** Criminal Appeal No. 233 of 1978
- **Bench:** N. L. Untwalia, 0. Chinnappa Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/63-3-bhaw-arlal-ganeshmalji-v-state-of-tamil-nadu-anr-7620
- **Pages:** 8

## Headnote

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 detention.
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
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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 authority took into consideration the circumstance that there
'.¥'ere
'adjudication'
proceedings, that the currency which the appellant was carrying was confiscated 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 statements against the detcnu had resiled from those statements.
[638 H-639 B]
D
3. It cannot be Gaid that th

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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 detention.
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 authority took into consideration the circumstance that there
'.¥'ere
'adjudication'
proceedings, that the currency which the appellant was carrying was confiscated 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 statements 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 opportunity of making a representation merely because particulars which he never
desired in respect of a ground which was not vague were not furnished tobim. The ground was specific enough.
If the detenu
w\111ted
any
more
palticulars such as the name of the intelligence officer or other
information~
he could have asked for them before making his
representation. That he
never did.
It was not as if any privilege had been claimed by the GovernE
ment in respect of the intelligence reports. The intelligence reports were produced before the High Court at the hearing of the writ petition. There was
no compllaiint that the detenu wanted to peruse the reports but \vas denied the
opportunity of doing so. [649 B, 639 H-640 A]
---"
F
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CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 233
of 1978.
Appeal by Special Leave from the' Judgment and Order dated the
20th April, 1978 of the Madras High Court in Writ Petition No. 988
of 1978.
AND
WRIT PETITION NO. 4327 OF 1978
(Under Article 32 of the Constitution of India)
Ram Jethmalani, M. G. Kurnali and Vineet Kumar for the Appel"
!ant/Petitioner.
A. V. Rangam for the Respondent.
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BHAWARLAL v. TAMIL NADU (Chinnappa Reddy, J.)
635
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J. Bhawarlal Ganeshmalji whose application
for the issue of a Writ of Habeas Corpus was rejected by the High
Court of Madras, is the appellant in Criminal Appeal No. 233 of 1978.
A
He has also filed Writ Petition No. 4327 of 1978 for the issue of a
Wrir of Habeas Corpus under Article 32 of the Constitution in which
B
be has raised certain grounds which had not been raised before the
Madras High Court.
The appeal and the Writ petition were heard
together by us and are disposed of by this common order.
The impugned detention order was made on 19th December, 1974
by the Government of Tamil Nadu and the grounds for the order
C
were contained in a memorandum dated 20th December, 197 4 of the
Government of Tamil Nadu.
The order of detention could not be
executed immediately as the appellant-petitioner was absconding and
could not be apprehended despite a proclamation made pursuant to
Section 7 of the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974.
The appellant-petitioner, however,
surrendered himself before the Commissioner of Police, Madras on
D
ht February, 1978. First the order of detention and later the
grounds of detention] were served on the appellant-petitioner.
There were two grounds of derention which were as follows :
"(i) On 23-2-1972 an inland registered parcel bearing
No. 325 emanating from one T. Chowdiah No. 2, Sanjeevilppa Lane, Bangalore, and addressed to
M/s. Raj Metal
House, 77, Mint St. Madras was intercepted by Preventive
Officers of the Madras Customs at the Madras General Post
Office and it was found to contain Indian currency amounting to Rs. 1,20,000/- and the currency was seized under
the Customs Act.
Sukanraj, owner of M/s. Raj
Metal
House on being questioned admitted in a written statement
·dated 23-2-1972 that the currency was sent hy one R. G.
Bhandari's man from Bangalore, to be received by him and
handed over to one Bhoormal, a partner of R. G. Bhandari,
residing with the latter. He also stated that he knew well
that R. G. Bhandari was dealing in smuggled gold at Bangalore; Sukanraj further stated that within the previous two
months, 5 or 6 parcels were received by him and by his
brother Motilal.
Motilal also gave an independent statement on the same day corroborating the facts mentioned by
his brother that R. G. Bhandari was dealing in
smuggled
gold and that the currencies in post parcels were the sale
proceeds of smuggled gold. On enquiry at the Park Town
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[1979] 2 s.c.1..
A
Post Office it was found that seven registereq parcels liild
been delivered to M/s. Raj Metal Works between 18-1-1972
and 17-2-1972 and received either by Sukhanraj or Motilal.
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At Bangalore, the premises at No. 2, Sailjeevappa Lano
the address mentioned on post parcel, was searched on
23-2-1972. T. Chowdiah, the sender of the said parcel was
not there. But one Ghaverchand Samarthajee was present.
He admitted in his statement dated 24-2-1972 that he was an
employee of R. G. Bhandari and on the latter's instructions
he was disposing of smuggled gold in Bangalore on behalf of
his master and despatching the sale proceeds to Madras. The
postal receipt bearing the No. 325 Avenue Road Post Office,
Bangalore, in respect of · the parcel which was seized at
Madras was also seized.
This and his confessional statemerit revealed that he had previously despatched seven registered parcels to M/ s. Raj Metal
Work~ containing
amounts to the tune of Rs. 8,84,000/- nsing the name 6f
T. Chowdiah and that he had disposed of 3900 bars of smuggled gold valued at Rs. 80 lakhs within a short time olf less
than a month.
Bhawarlal, the servant of Bhoormal in Madras identified Ghaverchand Samarthajee as an employee of
R. B. Bhandari nsed for gold smuggling business at Bangalore.
The case was adjudicated and the currency was confiscated. A personal penalty of Rs. 5000/- was imposed on
Thim R. S. Bhandari.
(ii) On
20-4-1974,
40
bars
of
gold
weighing
23,274.100 grams valued at Rs. 12,75,420/- was seized by
Thiru Ramanathan Supdt Central Excise, Madras from a
secret vacity of an Ambassador can MOE 9399 at the commercial Check Post, Hosur.
T. Ramamurthy of Porayar
(driver) and Thim Ganesan occupied the car. Their statements revealed that the gold was sent by Sikku Govidaswami of Porayar, a notea transport agent for contraband
goods. Ganesan also admitted that the car with the contraband
was to be
handed
over to one Marwari, at
Bangalore at an appointed place.
The intelligence report
dt. 17-4-74 and 19-4-74 by the Intelligence Otficer to the
Directorate of Revenue Intelligence which had been received earlier on the basis of which the aforesaid car was intercepted and the seizure was effected, had disclosed that the
Marwari referred to was R. G. Bhandari".
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BHAWARLAL v. TAMIL NADU (Chinnappa Reddy, J.)
637 l •
Shri Jethmalani learned Counsel for the detenu submitted that
the order of detention which was made more than three years before
its execution must be considered to have lapsed or ceased to be
effective without a fresh
application of the mind of the
detaining
authority to the facts and circumstances of the case and the necessity
for preventive detention.
otherwise, the learned Counsel submitted
the order of preventive detention would change its character and be·
·come an order of punishment for an unproven crime. In regard to
the first ground mentioned in the Memorandum of the Government,
the learned Counsel submitted that all the four persons who had made
-statements on 23rd February, 1972 and 24th February, 1972, and
which were the basis of the first ground, had resiled from their
~tatements long before the order of detention was made.
The circumstance that all of them had resiled from their earlier statements
was not brought to the notice of the detaining authority and the failure
<>I the detaining authority to consider such vital material before
'-1!rriving at its subjective satisfaction vitiated the ground and, therefore,
the order of detention itself.
Shri Jethmalani urged that the order of
detention had necessarily to be struck down even if a single ground
out of many was bad since the order had been made at a time
when Section SA of
the COFEPOSA had
not yet
been
brought into the Statute Book. In regard to the second ground of
-detention the submission of Shri Jethmalani was that it was not based
upon any "rationally probative" material.
The ground WaS invalid
inasmuch as it was based upon an intelligence report. It was further
<:ontended that the ground would be innocuous without the aid of the
intelligence report mentioned therein
and since no privilege
was
claimed in respect of the intelligence report, the identity of the author
of the report should have been disclosed as also the material on which
the report was based.
Failure to do so had resulted in a denial of the
petitioner's fundamental right, under Article 22(5) of the Constitution.
Shri A. V. Rangam, learned Counsel for the State of Tamil Nadu
11rged that the appellant-petitioner was himself responsible for the
long delay in the execution of the order of detention and he could
not be allowed to take advantage of his own wrong.
With r~gard to
the first ground of detention he submitted that the circumstance that
the persons who had incriminated the detenu had rcs1led from their
former statements had been mentioned in the adjudication
order
passed by the Customs authorities and that order had been placed
befo!'~ the detaining authority
before the order of detention
was
made.
In regard to the second ground of detention the
learned
Counsel argued that it was
not based merely on the intelligence
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SUPREME COURT REPORTS
[ 1979] 2 s.c.R.
report and in any case, since no privilege was claimed, it was always
open to ilie detenu to have asked for more particulars ii he so desired,
but which he failed to do.
Tt is true that the purpose of detention under the COFEPOSA is
not punitive but preventive.
The purpose is to prevent organised
smuggling activities and to conserve and augment Foreign Exchange.
It ls true that the maximum period for which a person may be
detained under the COFEPOSA is one year.
It is further true that
there must be a 'live and proximate link' between the grcunds of
detention alleged by the detaining authority and the avowed purpose
of detention namely the prevention of smuggling activities.
We may
in appropriate cases assume that the link is 'snapped' if there is
a
long and unexplained delay between the date of the order of detention and the arrest of the detenu.
In such a case we may
strike
down an order of detention unless the grounds mdicate a fresh applicatio~ of the mind of the detaining authority to the new ,;ituation an,sl/
the changed circumstances. But where the delay
is
not only adequately explained but is found to be the result of the recalcitrant or
refractory conduct of the detenu in evading arrest, there is warrant
to consider the 'link' not snapped but strengthened. That,
precisely,
is the state of affairs before us.
The order of detention was made
on 19th December, 1974.
The detenu was found to be absconding.
Action 'was taken pursuant to Section 7 of the COFEPOSA and he
was procl3irued as a
person absconding
under Section 82 of
the
Criminal Procedure Code.
The
proclamation
was
published
in
several leading English and local language daily newspapers.
His
photograph was exhibited in Cinema halls.
A reward of Rs. 5,000/-
was also announced for his apprehension.
Despite all
this
effort
he could not be arrested until he surrendered on !st February, 1978.
We do not have any hesitation in over-ruling the submission of Shri
Jetllmaiani based on the
delay in the
execution of the order of
detention.
G
The second submission made on behalf of the de1e11u that the
detaining authority had not before it the circumstance that the four
persons who had made statements implicating the detenu had later,
but Jong before the order of detention, resiled from their statements
is also devoid of force.
The proposition that the failure to place
before the detaining authority relevant and material facts which may
H
influence the mind of such authority one way or the other will vitiate
the order of detention is unexceptionable.
But a perusal of the first
ground of detention shows that the
detaining authority took
into
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BHAWARLAL v. TAMIL NADU (Chinnappa Reddy, !.)
63 9
consideration the circumstance that there were 'adjuoication' proceediHgs, that the currency was
confiscated and that a penalty of
Rs. 5,000/• was imposed on the detenu. It was not disputed and
it was not alleged in the petition that the orde( vf adjudication by
whlth the currency was confiscated and penalty was imposed did
refer to the circumstance that persons who had made incriminatin5
stitteirients against the detenu had
resiled from those
statements.
The circumstance that persons who had earlier incriminated
the
detcnu had later resiled from those statements was therefore, before
the detaining authority. There is thus no factual foundation for this
submission of the learned Counsel, which we accordingly rejecL
We now proceed to consider the last submission of the learned
Counsel based on the reference to the contents of the intelligence
report in the second ground of detention. It was pointed out by the
petitioner's learned Counsel that the statement of Ramamurthy and
Ganesan merely showed that the contraband was to be delivered to
a :1farwari at Bangalore at an appointed place. It was the intelligence report alone that fixed the identity of the lvlarwari as the detenu.
Without the intelligence report it would be impossible to connect the
detenu with the person mentioned as the lvlarwari in the statements
o[ Ganesan and Ramamurthy.
Now the submission ol the learned
Counsel was that the identity of the author of the intelligence report
as well as the report and the material on which the report was based
ought to have been disclosed to the detenu if the detenu was to effectiYely exercise his fundamental right under Article 22 ( 5) of
the
Constitution and
to make a
representation against the order of
detention.
We agree with the learned Counsel for the
petitioner
that in order to make a representation against the oracr of detention
and thus to exercise the fundamental right guaranteed by
Article
22(5) of the Constitution, a detenu is entitled to be furnished with
all essential particulars forming the basis of the grounds of detention.
So it is that where insufficient
particulars are mentioned in
the
grounds, the detenu is entitled to call for better particuhrs. That is
a right which flows from the Constitutional right to be afforded
a
reasonable opportunity to make representation. Of course, where the
grounds are vague, no question would arise of the detenu asking for
better particulars. But the present case is not a case of a vague
ground.
The ground is specific enough.
IE the detenu wanted any
mere particulars such as the name of the intelli[ence officer or other
information, he could have well asked
for the particulars. before
making his representation. That he never did. It was not as
if
any privilege had been claimed by the Government in respect of the
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SUPREME COURT REP OR TS
[1979] 2 s.c.R.
intelligence reports.
In fact, we find that the intelligence
reports
were produced before the learned Judges of the High Court at the
hearing of the Writ Petition there.
There was no complaint hefore
us that the detenu or his Counsel wanted
to peruse the reports
and were denied the opportunity of doing so.
We do not think that
the detenu could be said to have been denied a reasonable opportunity of making a representation merely because particulars which he
neyer desired in respect of a ground which was not vague were not
furnished to him.
We are unable to see any force in any of the submissions advanced on behalf of the detenu.
In the result, we reject the appeal and the writ petition.
N.V.K.
Appeal & petition dismissed.
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