G.D. Dube, J.
1. The petitioner was detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as 'the COFEPOSA Act') by an order dated 23-1-1992 of the State Government of U.P. The petitioner challenged his detention by this Habeas Corpus petition.
2. The circumstances alleged in the grounds of detention were that at about 2.00 p.m. on 29-8-1991, the Custom Officers apprehended the petitioner, who was coming on a Yakka from the side of Gulariya Bazar (Nepal), near Mithi Purwa, Behraich. On interrogation, the petitioner informed his name. On search of his person in presence of two witnesses, six gold biscuits, one gold Guinea, Rs. 350/- in Indian Currency and two China made locks were recovered from him. The gold biscuits were found to be of 24 carrat purity and Guinea of 22 carrat purity. Their value was assessed at Rs. 2,16,000/-and Rs. 2,000/- respectively. As the petitioner did not possess any valid permit or custom receipt for bringing into Indian border the foreign gold, a recovery memo in respect of the recovered articles was prepared and the goods were seized. The Custom Officer recorded his statement on the same the petitioner is said to have admitted that he had gone to Kathmandu on 27-1-1992 where he was introduced to a Nepal citizen by one Ram Bharose from where he had purchased the foreign gold and was taking it to Bareilly. He also disclosed that he was going to deliver the said gold to the person holding Telephone No. 74715 and to Krishna Murari of Saraf Bazar. The petitioner had also stated that he arranged the money for purchase of gold, by selling all his articles in a grocery shop and that he had indulged in this smuggling activities for the last three to four years. A chit bearing two Telephone Nos. PLP 507 and PLP 508 of the residence and the shop of Puttu Lal of Palia was recovered from his possession. It was disclosed by the petitioner that Puttu Lal was his father-in-law, but he had no connection with the recovered gold. The detaining authority has mentioned in the grounds that since at the relevant time of passing of the detention order the petitioner was confined in jail, who was making efforts to be released on bail and since it was possible that bail may be granted to him and he may be released thereafter and again involved himself in smuggling activities, hence with a view to prevent him from indulging in such activities and also in transporting and concealing the smuggled goods the Government considered it expedient to pass the order of detention against the petitioner.
3. In the writ petition, the petitioner has challenged his detention on two grounds : firstly that even though the detention order states that the petitioner at the relevant time was making efforts to be released from jail on bail and there was every possibility of his bail being allowed, but in fact the bail had been granted to the petitioner by the High Court on 10-1-1992. The detaining authority was not aware of this fact. On the other hand, in the grounds of detention dated 23-1-1992 the detaining authority had stated that the petitioner was trying to get the bail and the possibility of his bail application being allowed was there. It was urged that this ground was totally meaningless in view of the fact that the petitioner had been granted bail earlier.
4. The second point argued by learned counsel for the petitioner was that the detention order passed after about five months. On account of this time lag in passing the order of detention, it was submitted that, this delay in passing the detention order snaps the live link between the activities of the petitioner and the need to pass the order of detention against the petitioner. In support of his contention, learned counsel for the petitioner has relied upon the decision of a Division Bench of this Court in Hari Bhandari v. Union of India (Habeas Corpus Petn. No. 29533 of 1991) decided on 25-3-1992. In this writ petition also, it was allowed in paragraph 5 that petitioner (Hari Bhandari) was in custody in the Central Jail, Naini under the Customs Act and was attempting to get out on bail and there was possibility that after getting out on bail the petitioner may indulge in smuggling activities. In this case also it was alleged that prior to the passing of the detention order the petitioner had already been directed to be released on bail early as on 6-5-1991 while the detention order was passed on 6-7-1991. The Division Bench had accepted this contention and observed : 'In view of the aforesaid discussions, it cannot be said that the detaining authority had applied his mind to the relevant material and, therefore, the order dated 6-7-1991 suffers from a serious infirmity.' The other argument raised in Had Bhandari's case was that arrest of the petitioner was made in the night between 10th and 11th of January, 1991, whereas the detention order was passed on 6-7-1991. On these facts, the Division Bench held that in the circumstances of the case there was neither any sufficiency of materials nor justification for passing the detention order on 6-7-1991 knowing fully well that the petitioner was under arrest from 10-1-91.
5. Hon'ble Girridhar Malviya and Hon'ble G. P. Mathur, JJ. were not able to agree with the law laid down by the Division Bench in Hari Bhandari's case. Referring to a catena of cases, their Lordships observed that on the two points raised by learned counsel for the petitioner the writ petition could not succeed. In view of the above circumstances, the Division Bench had referred the matter to Hon'ble the Chief Justice for constituting a Larger Bench for answering the controversy. In the above circumstances, the case has come before us.
6. The first point raised by learned counsel for the petitioner stands concluded by a decision of Full Bench of this Court (of which one of us was a member) in Writ Petition No. 1646 of 1991 : Birendra Kumar Rai v. Union of India decided on February 21, 1992 (reported in 1992 Cri LJ 3866). A Special Leave Petition No. 1050 of 1992 : Birendra Kumar Rai alias Virendra Kumar Rai v. Union of India was rejected by the Supreme Court on September 3, 1992 (reported in 1992 AIR SCW 3664).
7. In Virendra Kumar Rai's case, a complaint was filed against the petitioner on 7-11-1990 under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act, 1985) on the basis of some searches made at the petitioner's residence and disclosure in the statements of the father and brother of the -petitioner. These searches were done on some disclosures by two persons who were interrupted and arrested by Officers of Varanasi and Delhi Units of Narcotic Control Bureau at Delhi Airport in the night of 12th/13th August, 1990, Before any warrant of arrest could be served, on the petitioner in respect of the complaint lodged on 7-11-1990, the petitioner was arrested on 21-11-1990 at Ghazipur (U.P.) in a case registered under Arms Act and Motor Vehicles Act. The petitioner moved an application for bail in NDPS Act case on 3-12-1990. The detention order was passed against him on 4-12-1990 under prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act. On the above facts, it was argued before the Full Bench as well as Supreme Court that the facts mentioned in the grounds clearly show that though the complaint under the NDPS Act, 1985 and already been filed on 7-11-1990 yet the detaining authority under the above para No. 21 of the grounds of detention dated 4-12-1990 was mentioning 'that prosecution proceedings under Narcotics Drugs and Psychotropic Substances Act, 1985 are likely to be initiated against you.' It was further submitted that though a warrant of arrest had also been issued by the Court at Varanasi where the case under NDPS Act, 1985 had already been initiated and a bail application had also been moved still the detaining authority was mentioning that the prosecution proceedings under NDPS Act, 1985 were likely to be initiated against the petitioner. It was also argued in this regard that when the petitioner was already in custody and a case had been initiated against him the NDPS Act, 1985, there was no question of any grant of bail and there was no ground or justification for the satisfaction of the detaining authority and to hold that there was any compelling necessity for the detention of the petitioner under the provisions of Section 3(i) of PITNDPS Act, 1988. It was also argued that the grounds of detention did not show that the detaining authority was aware that the petitioner was already in custody in District Jail, Ghazipur for the offences under the Arms Act and the Motor Vehicles Act.
8. The above argument of the petitioner was not accepted by the Full Bench, it was held that unawareness of a fact that the bail application was fixed for disposal before the Sessions Judge, Varanasi, does not affect the validity of the detention order. The Supreme Court in its order had rejected the contention of the petitioner.
9. In Shri Abdul Sathar Ibrahim Manik v. Union of India, (1991) 4 JT (SC) 103 : (1991 Cri LJ 3291), it was held that if the detenu had moved for bail then the application and the order thereon refusing bail even if not placed before the detaining authority, does not amount to suppression of relevant material. It was also held that the question of non-application of mind and satisfaction being impaired does not arise, since the detaining authority was aware of the fact that the detenu was in actual custody.
10. In paragraph 4 of the detention order, the detaining authority has clearly stated that at the time of passing of the order the petitioner was detained in a jail and was moving for getting himself released, on bail. In the list of documents at serial No. 12, the application of the petitioner dated 30-9-1991 moved before the Chief Judicial Magistrate, Behraich for release on bail and an affidavit supporting said application are annexed. The order of Chief Judicial Magistrate Behraich dated 4-9-1991 granting short term bail to the petitioner asking him to appear before the Special Chief Judicial Magistrate, Allahabad is also an Annexure to the order of detaining authority. These documents show that the detaining authority was aware that the petitioner was attempting to get himself released on bail. Hence in view of the observations of the Supreme Court in Abdul Sathar Ibrahim Manik's case (1991 Cri LJ 3291) (supra) even if the order granting bail to the detenu on 10-1-1992 was not placed before the detaining authority, does not impair his satisfaction that there was impelling reason for passing the detention order. The first point, therefore, has no force at all.
11. The following extract from the judgment of Supreme Court in Gora v. State of W.B., AIR 1975 SC 473 : (1975 Cri LJ 429) spells out the law relating to proximity between the alleged lawful activities of the detenu and the detention order (para 2) :
The first contention urged by Mr. Mukhoty, learned counsel appearing amicus curiae on behalf of the petitioner, was that the solitary incident set out in the grounds of detention was so remote from the date of the order of detention-in fact there was a time lag of about six months -- that the District Magistrate could not possibly have arrived at his subjective satisfaction on the basis of that incident. The requirement of proximity said Mr. Mukhoty, was not satisfied and the subjective satisfaction said to have been reached by the District Magistrate could not be regarded as real or genuine. Now it is true, as pointed out by this Court in Golam Hussain v. Commr. of Police, Calcutta, (1974) 4 SCC 530 : AIR 1974 SC 1336 : 1974 Cri LJ 938 that 'there must be a live link between the grounds of criminal activity alleged by the detaining authority and the purpose of detention, namely, inhibition of prejudicial activity of the species specified in the statute. This credible chain is snapped if there is too long and unexplained an interval between the offending acts and the order of detention. Such is the ratio of proximity in Lakshman Khatik v. State of West Bengal, (1974) 4 SCC 1 : AIR 1974 SC 1264 : 1974 Cri LJ 936. No authority, acting rationally, can be satisfied, subjectively or otherwise, of future mischief merely because long ago the detenu had done something evil. To rule otherwise is to sanction a simulacrum of a statutory requirement. But no mechanical test by counting the months of the interval is sound. It all depends on the nature of the acts relied on. grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation. We have to investigate whether the casual connection has been broken in the circumstances of each case, 'There is, therefore, no hard and fast rule that merely because there is a time lag of about six months between the 'offending acts' and the date of the order of detention, the causal link must be taken to be broken and the satisfaction claimed to have been arrived at by the District Magistrate must be regarded as sham or unreal. Whether the acts of the detenu forming the basis for arriving at a subjective, satisfaction are too remote in point of time to (SIC) any reasonable person to reach such subjective satisfaction must depend on the facts and circumstances of each case. The test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the 'offending acts' and the order of detention. It is a subsidiary test evolved by the Court for the purpose of determining the main question whether the past activities of the detenu is such that from it a reasonable prognosis can be made as to the future conduct of the detenu and its utility, therefore, lies only in so far as it subserves that purpose and it cannot be allowed to dominate or drown it. The prejudicial act of the detenu may in a given case be of such a character as to suggest that it is a part of an organised operation of a complex of agencies collaborating to clandestinely and secretly carry on such activities and in such a case the detaining authority may reasonably feel satisfied that the prejudicial act of the detenu which has come to light cannot be a solitary or isolated act, but must be part of a course of conduct of such or similar activities clandestinely or secretly carried on by the detenu and it is, therefore, necessary to detain him with a view to preventing him indulging in such activities in the future.
12. In this case, the Supreme Court considered a solitary daring act of dacoity by the petitioner and his associates sufficient to suggest that if adjudged in correct setting, grave proportions and clear implication it cannot be a stray isolated act but must be the act of a habituated and hardened criminal given to commit dacoities and this could lead the detaining authority to conclude that detention of such a person was essential.
13. In Rabindra Kumar v. State of W.B., AIR 1975 SC 1408 : (1975 Cri LJ 1235), even three months delay was held unreasonable. The Court observed (Para 1) :
The whole purpose and object of the Maintenance of Internal Security Act is that persons who are likely to imperil public order are not allowed to be free to indulge in this dangerous activity. We cannot understand the District Magistrate sleeping over the matter for well nigh three months and then claiming that there is real and imminent danger of prejudicial activity affecting public order. The chain of connection between the dangerous activities relied on and the detention order passed is snapped by his long and unexplained delay. If there were some tenable explanation for this gap we would have been reluctant to interfere with the detention order but none has been stated in the counter affidavit filed to day many months after time was taken for filing a return.
14. In another case Jagannath Biswas v. State of W.B., AIR 1975 SC 1516 : (1975 Cri LJ 1329) under the Maintenance of Internal Security Act, the Supreme Court found that unexplained delay between the occurrences and the order of detention as fatal. In this case, the complained t occurrences had taken place on 6-11-1971, 9-12-1971 and 25-8-1972 whereas the detention order was passed on 27-2-1973. This delay was held fatal.
15. In Smt. Rekhaben v. State of Gujarat, AIR 1979 SC 456 : (1979 Cri LJ 212), the detenu was detained under Section 3 of the Maintenance of Internal Security Act and release on 19-12-74 on cancellation of the order. He was detained in Ahmadabad by order dated 7-2-1977 under Section 3(i) of COFEPOSA Act. Learned counsel for the detenu had submitted before the Supreme Court that no material was considered by the detaining authority that the order was based on any fresh activity of detenu after his release on 9-12-1974 and till 7-2-1977. All his activities relate to the period of 1973-74. The High Court of Gujarat had observed that it cannot be urged that reasonable nexus between the prejudicial activity and the purpose of detention has been snapped by the time lag rendering the impugned order of detention as one without genuine satisfaction of the detaining authority. The Supreme Court did not accept this finding of the High Court after examining the facts of the case. However, the Supreme Court had relied upon the case of Gora (1975 Cri LJ 429) (SC) (supra) where the Supreme Court referring to earlier decisions and had held (Para 8 of AIR 1979 SC 459) :--
The test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the 'offending acts' and the order of detention.
16. In Ashok Narain v. Union of India, AIR 1982 SC 1222 : (1982 Cri LJ 1729), the detenu was arrested on February 23, 1981, the detention order was passed under COFEPOSA Act. The Supreme Court did not accept the contention of the petitioner's learned counsel that lapse of long time exposes the hollowness of claim of the detaining authority that the order was made with a view to prevent the detenu from acting prejudicial to the argumentation of Foreign Exchange. The Supreme Court had looked into the original record of the detaining authority and was satisfied that the matter was examined at various levels and the detaining authority had applied his mind fully and satisfactorily to the question whether the petitioner should be detained.
17. The case in Rajendra Prasad v. State of U.P., AIR 1982 SC 1256 : (1982 Cri LJ 1741 (1)) does not deal with the question regarding delay in passing the detention order.
18. In M. Ahmedkutty v. Union of India, (1990) 1 JT (SC) 143, the Supreme Court, relying upon Rajendra Kumar Natvarlal Shah v. State of Gujarat, (1988) 3 SCC 153 : (1988) 2 JT 409 : (1988 Cri LJ 1775) and the case of Goa (1975 Cri LJ 429) (SC) (supra) and other cases, observed :
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 recketeering 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 illusery or that there was no real nexus between the grounds and the impugned order of detention.
19. In Rajendra Kumar Natvarlal Shah's case (1988 Cri LJ 1775) (supra), the Supreme Court had laid down the broad principles for viewing the delay in passing of detention order in the Conspectus of Article 22(5) of the Constitution. It says :
In the enforcement of law relating to preventive detention like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 there is apt to be some delay, between the prejudicial activities conplained of under Section 3(1) of the Act and the making of an order of detention. When a person is detected in the act of smuggling or foreign exchange racketeering, the Directorate of Enforcement has to make a thorough investigation into all the facts with a view to determine the identity of the persons engaged in these operations which have a deleterious effect on the national economy. Quite often these activities are carried on by persons forming a syndicate or having a wide network and therefore this includes recording of statements of persons involved, examination of their books of accounts and other related documents. Effective administration and realisation of the purposes of the Act is often rendered difficult by reason of the clandestine manner in which the persons engaged in such operations carry on their activities and the consequent difficulties in securing sufficient evidence to comply with the rigid standards, insisted upon by the Courts. Sometimes such investigation has to be carried on for months together due to the magnitude of the operations. Apart from taking various other measures i.e. launching of prosecution of the persons involved for contravention of the various provisions of the Acts in question and initiation of the adjudication proceedings, the Directorate has also to consider whether there was necessity in the public interest to direct the detention of such person or persons under Section 3(1) of the Act with a view to preventing them from acting in any manner prejudicial to the conservation and augmentation of foreign exchange or with a view to preventing them from engaging in smuggling of goods etc. The proposal has to be cleared at the highest quarter and is then placed before a screening Committee. For ought we know, the Screening Committee may meet once or twice a month. If the Screening Committee approves of the proposal, it would place the same before the detaining authority. Being conscious that the requirements of Article 22(5) would not be satisfied unless the 'basic facts and materials' which weighed with him in reaching his subjective satisfaction, are communicated to the detenu and the likelihood that the Court would examine the grounds specified in the order of detention to see whether they were relevant to the circumstances under which the impugned order was passed, the detaining authority would necessarily insist upon sufficiency of the grounds which would justify the taking of the drastic measure of preventively detaining the person.
Viewed from this perspective, we wish to emphasise and make it clear for the guidance of the different High Courts that a distinction must be drawn between the delay in making of an order of detention under a law relating to preventive detention like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and the delay in complying with the procedural safeguards of Article 22(5) of the Constitution. It has been laid down by this Court in a series of decisions that the rule as to unexplained delay in taking action is not inflexible. Quite obviously, in cases of mere delay in making of an order of detention under a law like the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 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 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 is no real nexus between the grounds and the impugned order of detention.
20. In reply to the contention of the petitioner, two counter-affidavits have been filed. One is by Om Prakash Pandey, Deputy Secretary to the Government of U.P., Civil Secretariat, Lucknow and second is by Bachchu Lal, Superintendent, Customs (Preventive Circle), Bahraiach. The two affidavits suffer from casualness and do not furnish full details as to how the case of the petitioner was dealt with at various trials. In paragraph 3 of this counter-affidavit, the deponent Om Prakash Pandey stated that the proposal for the detention of the petitioner was received from the Collector Customs Indo-Nepal Border by the Government of Uttar Pradesh on 21-11-1991. The whole explanation starts from 21-11-1991. Nothing has been stated as to how the matter was dealt with between 29-8-1991 and 21-11-1991.
21. In order to examine the steps taken by the sponsoring authority, we looked into the original records of the department. It transpires that the statement of some witnesses were recorded by the Superintendent Customs under Section 108 of the Customs Act. It also indicates that the searches were made of the houses of Puttu Lal residing in Palia, district Lakhimpur Kheri. Those facts indicate that the sponsoring authorities were investigating the case and had reported for the detention of the petitioner after they had investigated the case to some extent.
22. The office note having heading. ^^Vhis vkSj vkKk;s** states that the Collector Customs, Patna had written a letter to the Government Uttar Pradesh on 7-11-1991. The proceedings for detention was to be initiated by the Customs Authorities of Bahraich (U.P.) The request was to be finally made by the Collector Customs, Patna, under whose jurisdiction Bahraich lies. Thus, in view of the distances some time was bound to be taken in processing the whole proceedings of detention. Since letter was written by the Collector on 7-11-1991, it is obvious that request from Bahraich end, to the department must have been received before the said date. Thus the original record shows that the Customs Department was not sleeping over the matter.
23. In the instant case, the detaining authority had relied upon the statement of the petitioner given under Section 107 of the Customs Act. The statement shows that the petitioner had even sold all the belongings of his shop in order to raise money for engaging himself in the enterprise of smuggling gold. It was urged by learned counsel for the petitioner that his statement under Section 108 of the Customs Act was not recorded and thus he was deprived of a right of retracting his confessional statement under Section 107 of the Customs Act. This Court will not sit in appeal over acts of the Customs Authorities. What is the effect of non-examination of the petitioner under Section 107 of the Customs Act will be seen at the trial. The activity of the petitioner in between his arrest and the detention order, is also very relevant in this matter. The petitioner had been granted a short term bail by the Chief Judicial Magistrate, Bahraich. He had not appeared before the Special Chief Judicial Magistrate at Allahabad on the due date and had appeared only after the Sessions Judge, Bahraich, had issued a warrant of arrest. Thus we find that there was sufficient material before the detaining authority to satisfy him that the petitioner was likely to engage in smuggling activities, if he was not detained.
24. Considering the circumstances of the case, we are of opinion that the alleged time lag is not at all fatal in this case. We cannot hold the detention illegal simply by counting the months elapsing between the impugned act and the detention order. Keeping in view the long standing activities of the petitioner and his clandestine design to engage himself in smuggling even by selling all his articles in his shop and raising money thereby, it cannot be said that the grounds are illusory. The steps taken by the Customs Authorities between arrest and the impugned order indicate that they were investigating the matter of the petitioner. Hence the nexus between arrest and the order was never snapped. The second point has no force.
25. For the reasons mentioned above, we hold that the observations by a Division Bench of this Court in Hari Bhandari's case (supra) are not good law in view of the law laid down by the Supreme Court in its various pronouncements.
26. Since the two points referred have been answered against the petitioner, we do not feel it necessary to send the answer back to the Division Bench for it will amount to unnecessary exercise and waste of valuable time of Court. We, therefore, dismiss the petition.