Smt. Anjali Lahiri Hariya Vs. Union of India and Others - Court Judgment

J.G. Chitre, J.

1. The petitioner who happens to be the wife of the detenu Lahiri Hariya is hereby assailing the correctness, propriety and legality of the order which has been passed by the Joint Secretary to Government of India, Revenue Finance Department dated 14-11-2000 whereby by virtue of provisions of Section 3 of Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974 (hereinafter referred to for convenience as 'COFEPOSA Act'). Her husband Lahiri Hariya s/o Vasant Hariya r/o 23, Rajesh Nagar, Indore, has been detained. The petitioner mainly attacked the said order on following grounds:--

(1) The order of detention has been passed after considerable delay.

(2) All necessary and relevant documents have not been furnished to the detenu and it prevented the detenu from filing effective representation and that infringed his fundamental right guaranteed by Art. 22(5) of the Constitution of India.

(3) Though it was not demanded, it was the duty of the detaining authority to supply him copies of all documents on which it not only relied upon but referred to.

(4) The detenu is already facing a criminal prosecution in view of provisions of Section 135 of the Customs Act and, therefore, this preventive action was not at all necessary.

2. Shri E.G. Neema pointed out in countering the submissions advanced by Shri Rawal who has been assisted by Shri Amarsingh and Shri Bhagwansingh, Advocates that the order of detention which has been passed by the detaining authority has been well justified and supported by the materialwhich reveals that there has been reasonable approach taken by the detaining authority and the detaining authority took the decision of detaining the detenu after due subjective satisfaction. Shri Neema submitted that the grounds of attack put-forth on behalf of the detenu are not sufficient enough to shatter the order of detention and the detention order cannot be called in any way perverse or illegal and therefore, this petition deserves to be dismissed and it be dismissed.

3. Shri Neema pointed out that the material which has been put-forth justifying the detention order is self-eloquent and that shows that these documents have been considered by the detaining authority for passing the detention order which were relevant to the cause. He submitted further that copies of all these documents have been furnished to the detenu and, therefore, the detenu could file the effective representation which has been considered by the Government of India and, therefore, when the matter was referred to the Board it has been also duly considered and both Government of India and the Board were pleased to dismiss the representation.

4. During the course of the submissions the learned counsel appearing for the parties made reference to various judgments which would be referred to in the course of this judgment whenever they are necessary to be referred to.

5. The first point which has been put-forth by Shri Rawal, counsel appearing for the detenu is that the material which was available with the detaining authority was totally insufficient to detain the detenu for dealing with this first point of attack- The short history of the matter will have to be mentioned because that would be necessary not only for providing an answer to this ground but would be unfolding the matter and would be giving the idea as to how the detenu came to be detained.

6. On 9-12-99 a truck which was coming from Dewas side bearing No. HR-46-9898 having orange colour tarpaulin cover was apprehended by the Police because they suspected that the said truck was loaded with articles obtained by committing theft. After the said truck was apprehended some preliminary interrogation was done with Driver Makhansingh and Cleaner Dukhran Rai who were present in the said truck. It was revealed that the said truck was carrying some articles-- Ball Bearings, manufactured by some companies situated in countries like Korea, Japan, Romania and Argentina. The said consignment was loaded by M/s. Assam Graphite Pvt. Ltd., Bogaigaon, Assam vide Invoice No. 1028 on 28-11-99 and was consigned to M/s. Sandoz India Graphite, LBS Marg, Bhadup, Mumbai. It was with challan bearing No. 129 dated 28-11-99 issued by M/s. Golden Roadways, Calcutta. After the said truck was apprehended, these persons were taken in custody in view of the provisions of Section 41(1)(4) of the Code of Criminal Procedure (hereinafter referred to as the 'Code' for short). They were produced before the Addl. Chief Judicial Magistrate, Indore. The Addl. Chief Judicial Magistrate, Indore after making relevant legal inquiry decided to hand-overthe case and the accused as well as the said truck to Customs Department. Therefore, in view of the order passed by the Addl. Chief Judicial Magistrate, Indore, dated 13-12-99, on 14-12-99 the Customs Authorities of local office at Indore drew Panchnama in presence of two Panch witnesses and noted that those Ball Bearings were bearing different brands like N.A.C.H.I., K.B.C., U.R.B., N.T.N., A.P.Z., D.O.D. Japan, Korea, Romania and Argentina. Those Ball Bearings numbering 1,81,703. A person named Madhav Das Pariyani was invited for helping them in assessing the valuation of the said articles. According to the information of said Madhav Das Pariyani, the said Ball Bearings were worth Rs. 1,17,48,215/- and the truck was worth Rs. 4,00,000/-. At the time of said interrogation and seizure, a note-book was found from the cabin of the said truck which was bearing entry of a telephone No. '07285-63230'. A secret cavity was also found behind the cabin. In addition to that another cavity was found near it which was having the depth of 8'. From the possession of truck driver Makhan Singh one telephone diary was seized and it was having entry of a Mobile No. '98260-15260 98260-15260 '. The further investigation disclosed that the said Mobile number was allotted to one Manish Bhai. It was also revealed that said Makhan Singh was to contact said Manish Bhai who was to give him further instructions of the further planned movements of the said truck and the consignment. The said truck was found to be belonging to one Gurudayal Singh s/o Ummed Singh r/o Rohtak Mandi, Haryana. The investigation disclosed that 'M/s. Assam Graphite Pvt. Ltd., Bogaigaon, Assam was a non-existent firm. The same was the case in respect of M/s. Golden Roadways, Calcutta. It was also revealed that the said consignment was not truly consigned by M/s. Assam Graphite Pvt. Ltd. to M/s. Sandoz India Graphite, Mumbai.

7. Thereafter appropriate cognizance was taken and the matter was investigated further which revealed some transactions in respect of Mobile bearing No. 98260-15260. The information was sought in respect of these two mobiles and it was revealed that these mobiles were used for conversation with some persons whose names need to be given for understanding the matter properly. These names are-- (1) Smt. Sharda Lalwani, (2) Smt. Manju Devi Batra, (3) STD/PCO Booth, Malviya Nagar, Indore, (4) Rajesh Kumar Ahuja, Jail Road, Indore, (5) STD/PCO Booth, Sanver Road, Indore, and (6) Police Station, Bhanwar Kuan, Indore.

8. Further investigation further revealed some names which need to be given here for unfolding the matter in a more belter way. Those names are : (1) Basant Textiles, Indore, (2) Shankarlal Vadhwani, Novelty Market, Indore, (3) Kishore Adwani, Novelty Market, Indore, (4) Rajesh Kumar Ahuja, Krishna Market, Indore, (5) Kailash Jaisinhani, Novelty Market, Indore, (6) Jai Bharat Ele. Company, Jail Road, Indore and (7) Laxman Das Keshav Das, Jail Road, Indore.

In view of all these things, Smt. Manju Batra (Telephone No. 550230), and Smt. Sharda Lalwani (Telephone No. 762192) were interrogated. It wasrevealed that the detenu Lahiri Haria was having telephone No. 282127, 478308 and Batra, Lalwani and Haria families were friends.

9. The investigation further levealed through a Panchnama, some documents which were indicating Champaran, Adapur, Ruxaul (Bihar) alongwith some postal Parcel Booking Receipts indicating that some consignments were booked for M/s. Basant Textiles Agency and Basant Enterprises, Indore. Those documents also revealed name of Hotel Classic (Telephone No. 24070) Beerganj, Adarsh Nagar, Nepal.

10. The address of Classic Hotel, Beerganj, Nepal and further investigation might have revealed some facts which the authorities took into cognizance. Those facts need to be mentioned as they are relevant in dealing and deciding the present petition.

11. It has been revealed in the investigation that these persons had visited Nepal. It also revealed that Harish Lalwani happens to be having a shop in Sitala Mata Bazar, Indore known as 'Chici Apparells'. He used to visit Ruxaul and Beerganj often. It was revealed that he did contacuone Ramgopal Marwadi who was running one shop under style M/s. Arvind Impex, Beerganj, Nepal. It has been disclosed by the said investigation that said Harish Lalwani had visited Kathmandu and he was staying in Hotel Classic where he came in contact with Ramgopal as well as Murari Lal Gupta, Shankar Guliyani and Vijay Todhi. They had some meetings about the business. We are not concerned with the talks in detail initiated between them here but it is necessary to make reference to their activities at Nepal. These persons were meeting with each other frequently on various occasions. These persons used to visit Nepal and used to stay in the said Hotel alongwith their respective wives. They used to eat together and they were talking with each other also during the said stay and according to the detaining authority, that resulted in deals and despatch of the consignments on various occasions and that also resulted in despatch of the present consignment which was apprehended near Malviya Nagar and therefore, the STD/PCO Telephone number of the Booth at Malviya Nagar, Indore, assumed importance.

12. After such investigation was over, the detenu was prosecuted in a Criminal Court and the detention order came to be passed.

13. All these investigation and collection of the information for the purpose of subjective satisfaction has resulted in delay of some months in passing the order. Shri Rawal has attacked again on detaining authorities by pointing out the delay. Therefore, it will have to be seen whether that delay was unreasonable or was caused by reasonable cause. Shri Rawal has placed reliance on the judgment of Delhi High Court in the matter of Ram Dass Chauhan V/s. The Administrator and others, reported in 1987 (12) Delhi Reported Judgments Page 66; wherein the Division Bench of the Delhi High Court held that when there is no satisfactory explanation for the delay in the detention of the detenu and further that he has been denied an opportunity of effective representation by non-supply of copies of the anticipatory bailapplication the blank sheet of paper said to contain his signature and the visiting card which have been relied upon by the detaining authority in reaching the conclusion that he should be detained is no compliance of legal provisions. In view of those circumstances and the facts of the said matter the Division Bench of the High Court of Delhi came to the conclusion that the continuation of the detention of the detenu was not justified and he should be released immediately.

14. He has also placed reliance on the judgment of the Delhi High Court in the matter of P. Susheelan v. Commissioner & Secretary (Home), Govt. of Kerala, reported in 1987 (31) E.L.T. 676; wherein the Single Bench of Delhi High Court held that from the date of the arrest of detenu on 7th Oct., 1985 the detaining authority straight away jumped to 10th April, 1986, when the name of detenu was proposed for detention. The said delay was unexplainable. The advantage of that delay was given to the detenu and his detention was quashed and he was directed to be released. Shri Rawal submitted that in this case when all the material was within the knowledge of the Customs Department on 13-12-99, there should not have been delay in detaining the detenu. He pointed out that the normal trend is to detain the persons who are dangerously doing the activities causing a serious prejudice to the national interest and the fiscal policy of the nation, they are detained as soon as possible. Therefore, according to Shri Rawal had there been a real ground for detention of the present detenu he could have been and he should have been detained in the proximity of date 13-12-99 and the detention order should not have been prolonged. Shri Rawal submitted that it is by itself revealing that detaining authority was not confident because it did not have sufficient grounds to put the fetters on the liberty of the detenu by passing the detention order. Shri Rawal submitted that the main cause was that the detaining authority was itself of the opinion that there was no point for detaining him but on account of the unfortunate things the detenu came to be detained.

15. Shri Rawal submitted that the detention order came to be passed on 14-11-2000 and the detenu was apprehended on 20th Dec., 2000. That shown that there was no imminent apprehension of detenu engaging himself in prejudicial activities which necessitated his detention. We do not agree with the submissions of Shri Rawal on these two points for the reasons stated hereunder.

16. On 10-12-99 the said truck was apprehended, as submitted by Shri Neema under the belief that it was carrying the goods obtained by theft. Therefore, till the said truck was apprehended, those driver and cleaner were interrogated, and were produced before the Addl. Chief Judicial Magistrate, the police of Bhanwarkuan were not knowing the activities of the concerned persons which were disclosed by further investigation. Even on 13-12-99, when the said truck, two persons and the articles were handed over to Customs Department, they were not knowing the detenu and the concerned persons and their relations with each other and talks or negotiations with RamgopalMarwari and Murarilal Gupta. They knew about their activities only after the investigation was done in that context and that too after getting the telephone numbers from the person who was arrested alongwith the said truck that means Makhan Singh and the information which was obtained from the secret chamber, kept in the cabin and near the cabin, when an inquiry was made by way of those mobiles and through the said mobile numbers the said authorities got the further clues and they proceeded further for the purpose of investigation into the matter. That investigation laid them to the concerned persons at Assam and the consignment which was despatched through the said truck which revealed that both these firms were fake firms and the consignment was sent in a fake and clandestine way. That led further the authorities to Ruxaul, Beerganj, Classic Hotel, Nepal, Ramgopal Marwari, Murarilal Gupta and further negotiations. Then the authorities must have got the idea as to how the activities of the detenu were dangerous to the interest of the nation and fiscal policy and therefore, they might have taken the decision for detaining the detenu and thus, the order came to be passed. This does not show any illegality on the part of the acts committed by the detaining authorities or callousness on its part or does not indicate any ulterior motive on the part of it. Its decision makes it clear that the authority was really satisfied by a due process of finding out the truth and after when it came to know about the truth, it passed the order on 14-11-2000. Therefore how it can be said that the authority was blamable for the delay. How it can be said that the said delay was caused on account of unreasonable ground How it can be said that the authority was lacking of sufficient information substantiating its action ?

17. That leads us to the further aspect of the matter and that was the apprehension of the detenu some days thereafter. It has been mentioned in the submissions advanced on behalf of the detenu himself that the house of the detenu was visited by the officers of the authority. However, the authority was required to make the Panchnama of such visits and was required to take note of such visits. In fact, the detenu has made the grievance that copies of those activities were not given to the detenu and, therefore, the detenu was unable to make a representation in proper time. That gives the explanation of the delay caused in putting the fingers on him of the tales for detaining him. It implicitly explains that the detenu was not available for detention. At this juncture, it is to be noted that Ramgopal Marwari, Murarilal Gupta and his other associates are still absconding. It gives the indicator as to what must have been the trend of the activities of the detenu through out the period when he was not detained- That implicitly indicate his evasiveness and the attitude of avoiding the order of detention. When the person is not found how he could be apprehended or detained or arrested That squarely gives answer to the criticism levelled by the side of the detenu for the purpose of creating codent in the order, for the purpose of entitling him to canvass for a writ in the nature of Habeas Corpus.

18. Therefore the detenu cannot take the advantage of the opinion ofthe Division Bench of Delhi High Court and its Single Bench. Thus, we dismiss the submission which has been advanced on behalf of the detenu.

119. Shri Rawal has submitted that the material which was before the detaining authority was very much insufficient to warrant the detention of the detenu. That submission cannot be upheld because as it has been pointed out in above mentioned paragraphs - the detailed inquiry has been made and the activities of the detenu and his associates and fellow travellers have been noticed after careful watch and that has been categorically mentioned in the detention order itself. Shri Rawal further submitted that all the documents on which the detaining authority placed the reliance have not been supplied to the detenu. He submitted further that it is the duty of the detaining authority to furnish the copies of all the documents which may be and have been used for basing the order of detention. He submitted that the documents which have been referred to while passing the order of detention, copies of those documents have to be furnished to the detenu and the detaining authority cannot exonerate itself by saying that on account of 'no demand' of those copies from the detenu, it was not obliged to furnish the copies of those documents. For the purpose of pointing out the infirmity in this context Shri Rawal pointed out that following copies of the documents were not supplied to the detenu and that caused not only a serious prejudice to the detenu in presenting the representation but it infringed the fundamental right of the detenu guaranteed by Art. 22(5) of the Constitution of India. Those documents which have been dealt with by Shri Rawal in his submissions can be enumerated as mentioned hereunder:--

(i) Copy of the seizure memo made by police in view of provisions of Section 41(1)(4) and Section 102 of the Code.

(ii) Non-supply of Police case-diary.

(iii) The copy of the statement of Deepak Lalwani dated 23-12-99 in view of provisions of Section 108 of the Customs Act.

(iv) The copy of the telephone diary found from the secret cabin of the truck which was seized from the possession of the driver Makhan Singh.

(v) The seizure memo by which the articles from the said truck have been seized.

(vi) The copies of summons sent to the detenu when the officers of the concerned department visited his house and found that he was found missing; and other documents as mentioned in the writ petition referred to on internal page No. 5 onwards of the petition which include,--

(a) Panchnama dated 14-12-99.

(b) The documents mentioned in the said Panchnama, indicated on internal page 8.

(c) Property Seizure memo by Police.

(d) Arrest and Court surrender memo in respect of the detenu.

(e) Memorandum pages of the memorandum drawn in view of provision of Section 27 of the Evidence Act and other documents.

He submitted that as those documents have not been furnished to the detenu, his fundamental right as envisaged by Art. 22(5) of the Constitution, has been infringed and, therefore, in view of the judgments of various High Courts and the Supreme Court of India, the detention needs to be quashed by issuing appropriate writ.

He also submitted that on account of non-supply of these copies it is not sure whether the detaining authority did apply its mind qua those documents while passing the order of detention. He made reference to the judgment of the Supreme Court in the matter of Ahamed Nassar v. The State of Tamil Nadu and others, reported in 1999 (6) SCALE Page 539; wherein the Supreme Court did observe that non-placement of two relevant letters before the detaining authority - one letter dated 19-4-99 by the advocate of detenu to the sponsoring authority - other letter dated 23-4-99 by the detenu before the detaining authority - These were relevant, likely to affect the satisfaction of the detaining authority. He also pointed out the judgment of the Kerala High Court (Division Bench) in the matter of MRS.. Pathooty v. State of Kerala and another, reported in 2000 Cr.LJ 1189. In the said matter the Division Bench of Kerala High Court held that the fact that detenu was arrested, moved a bail application and bail was granted and non-mentioning of it in the order of detention and connecting documents and non-supply of copies thereof, amounted to non-application of mind by detaining authority. In view of that, Division Bench of Kerala High Court held that detention was vitiated. The Kerala High Court further held that it is immaterial whether detenu had knowledge about such bail orders or not.

20. Shri Rawal placed reliance on the judgment of the Supreme Court in the matter of Mehrunissa v. State of Maharashtra, reported in AIR 1981 SC 1861, where in the Supreme Court held that the contention that the detenu was already aware of the contents of the documents referred to, cannot be accepted to be an answer to the submissions made on behalf of the detenu. The detenu was entitled to be supplied with the copies of all material documents instead of making him having to rely upon his memory in regard to the contents of the documents. He also placed reliance on the judgment of the Supreme Court in the matter of Kirit Kumar Chamanlal Kundaliya v. Union of India and others, reported in AIR 1981 SC 1621, wherein the Supreme Court held that the detaining authority is obliged to give copies of all the documents concerned which have been referred to, relied upon or taken into consideration by the detaining authority enabling him to make an effective representation immediately on receiving the grounds of detention. It held that where it is not done, the detention would be void. He placed reliance on the judgment of the Supreme Court in the matter of Mohd. Zakir v. Delhi Administration and others, reported in AIR 1982 SC 696, wherein the SupremeCourt held that it is the constitutional mandate which requires the detaining authority to give the documents relied on or referred to in the order of detention pari passu the grounds of detention in order that the detenu may make an effective representation immediately instead of waiting for the documents to be supplied with. It is manifest that question of demanding the documents is wholly irrelevant. The infirmity in this regard is violative of constitutional safeguard enshrined in Art. 22(5) of the Constitution.

21. Countering this, Shri Neema placed reliance on the judgment of the Supreme Court in the matter of Mst. L.M.S. Ummu Saleema v. B.B. Gujaral and another, reported in AIR 1981 SC 1191, where in the Supreme Court held that where the detenu under Section 3(1) of the Act was not furnished with copies of the documents to which only casual or passing reference was made in course of narration of facts but which were not relied upon by the detaining authority while making the order of detention, it could not be said that the detenu was prevented from making an effective representation and consequently right guaranteed by Art. 22(5) was violated. It went on holding further that every failure to furnish copy of a document to which reference is made in the grounds of detention under Section 3(1) of the Act is not an infringement of Art. 22(5), fatal to the order of detention. It is only failure to furnish copies of such documents as were relied upon by the detaining authority, making it difficult for the detenu to make an effective representation that amounts to a violation of fundamental rights guaranteed by Art. 22(5).

22. The satisfaction should be subjective and it is for the Court to decide whether the subjective satisfaction was consistent with the material on record. It is also for the Court to come to a conclusion whether the detenu has been prejudiced in his right of making effective representation. The copies of number of documents have been supplied to detenu as it has been indicated by the list annexed to the order of detention. Copies of 66 documents have been furnished to the detenu. Those copies dealt with the letter dated 9-12-99 written to the C.S.P. of Bhanwarkuan Police Station also and it starts from it up to the last copy of the document and that is the statement dated 12-10-2000 of Sumit Gupta under Section 108 of the Customs Act, 1962. This list travels through number of documents which are the important spots and do deal with important aspects of the process which continued till it ended to the passing of the order of detention. It refers to the application dated 10-12-99 filed before the Court of Judicial Magistrate Ist Class, Indore on behalf of the department, the order passed by the Judicial Magistrate Ist Class, Indore on 13-12-99 which has been dealt with in above mentioned paragraphs. It also indicates that the copy of bail application dated 9-2-2000 filed by Shri Makhansingh and Dukhran Rai, Driver and Cleaner of the said truck. It mentions the copy of the seizure memo dated 14-12-99 by which foreign origin ball bearings valued at Rs. 1.17 crores were seized from the said truck. Thereafter it shows that copies of the pocket telephone diary, seized from the possession of Makhansingh, Challan No. 245 dated 28-11-99 of M/s. Assam Graphite Pvt. Ltd., Bongaigaon, Assam and Challan No. 129 dated 28-11-99 of M/s. GoldenRoadways, Calcutta were also supplied to the detenu. The copy of statement of Makhansingh, driver, recorded under Section 108 of the Customs Act, copy of the statement of Dukhran Rai, the cleaner recorded under the same section were also supplied to the detenu. A letter bearing C. No. IV (16) 2/follow-up/DB/AE/98/7644-45, dated 27-12-99 of Assistant Commissioner, Dubri was also furnished to the detenu.

23. Not only that, copy of the 'Panchnama dated 23-12-99 drawn at the residence of Smt. Manju Batra (Mrs. Manju Batra is reported to be absconding) was furnished. The copy of the Panchnama dated 23-12-99 drawn at the residence of Smt. Sharda Lalwani has been also supplied. Not only that, but the statement dated 23-12-99 of Narendra Batra recorded under Section 108 of the Customs Act, Retraction letter dated 24-12-99 of Narendra Batra have been also supplied. Not only that, but call details of Mobile No. 98260-12501 98260-12501 and telephone No. 282127 have been also furnished. Not only that, but some documents relating to the progress of the investigation pertaining to M.P. Maharashtra Roadways and statement of Paras Hariya have also beep furnished. Panchnama at the residence Harbans Singh, statement of Rajendrakumar, statement of Shankar Wadhwani, Panchnama drawn at the residence of Harish Lalwani & Harbans Singh have been also furnished. Arrest Memo dated 12-5-2000 regarding the arrest of Harish Lalwani has also been furnished. Copies of Misc. Cr. Application bearing No. 1929/2000 and 1930/2000 filed in the High Court of M.P., Indore Bench on behalf of Harish Lalwani and Lahiri Hariya have been furnished. Panchnama dated 20-6-2000 drawn at the residence of Shri Amarject Singh has also been furnished. Letter bearing C. No. SRU/VNS/SEIZ/05/2000/304, dated 6-6-2000 of Senior Intelligence Officer, DRI, Varanasi has also been furnished. Call details qf telephone No. 282127 have also been furnished. Not only that, but the popy of Panchnamas dated 2-6-2000, 18-7-2000, 18-8-2000, 13-9-2000 and 12-10-2000 drawn at the residence of Murarilal Gupta has been also furnished. Therefore, now it cannot lie in the mouth of the petitioner to make a grievance that copies of important documents were not furnished to the detenu and on account of that the detenu was prevented from making an effective representation. It is to be noted that at the time of dealing with such submissions it has to be seen whether on account of non-supply of the copy pf any document, a prejudice has been caused to the fundamental right of the detenu which would be jeopardize his right to get protection from the constitutional provisions as indicated under Art. 22(5). It gets brushed aside in view of a detailed order by which detention has been heralded. Though Shri Rawal has criticised the order by submitting that the detention order prima facie shows that it is dealing with the important facets of the matter not in category-wise details but in flow showing, a show has been made that all the important facets have been dealt with. When the order is detailed, it is dealing with all necessary facets of the matter and it is annexed with the letters showing that copies of number of documents have been furnished to the detenu, it will have to be judged whether there a show made or whether a real prejudice is caused to thedetenu in getting a safe guard guaranteed by Art. 22(5) of the Constitution or whether real justice has been done by passing a good order.

24. The Court has to consider whether the subjective satisfaction of the detaining authority was really based on some material which was justifying it or whether it is dehors in quality and lacks in sufficiency of the material in it. On these two important points the detention order passed the test and, therefore, we have no alternative but to dismiss the submissions advanced on behalf of the detenu on this point.

25. Shri Rawal made a submission that copy of the Retraction of the statement by Amarjeetsingh was not been furnished to the detenu. We do not find that it in any way dents the detention order because the main portion of the activities enumerated in the order are revolving around the present detenu, Mrs. Sharda Lalwani, Ramgopal Marwari, Murarilal Gupta, Shankar Wadhwani revolving their stay in Kathmandu in Classic Hotel and their talks of the business during their stay at Kathmandu on telephone or at the time of dinners. That is the pivotal point unfolding as to now the idea was hatched up to despatch the consignment from Kathmandu via Raxaul through the firm which despatched the consignment to despatchee firm through transport company via Assam to Indore which was destined to Bhadup, Mumbai. That is the crux of the matter and it does not prima facie indicate that Amarjeetsingh was materially involved in it so far as the cause of detention of present detenu is concerned.

26. Section 3 of COFEPOSA starts with the sentence 'The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government or any officer of the State Government, not below the rank of a Secretary to that Government, especially empowered for the purpose of this section by that Government may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from-

(i) smuggling goods, or

(ii) abetting the smuggling of goods, or

(iii) engaging in transporting or concealing or keeping smuggled goods, or

(iv) dealing in smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, or

(v) harbouring persons engaged in smuggling goods or in abetting thesmuggling of goods, it is necessary so to do, make an order directing that such persons be detained'.

Sub-section (3) provides that for the purpose of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than fivedays, and in exceptional circumstances and for reasons to be recorded in writing, not later than fifteen days, from the date of detention,

27. At this juncture and in context with this point, it is necessary to mention the observations of the Supreme Court in the case of Moor Salman Makani v. Union of India and others, wherein the Supreme Court held, as reported in AIR 1994 SC 575, subsequent retraction of confession by detenu which has been found to be afterthought would not be sufficient enough to vitiate the subjective satisfaction of the authority. It would be also important to mention that in the matter of Mst. L.M.S. Umma Saleema's case (supra) it has been held that where the detenu against whom an order of detention was passed under Section 3(1) alleged that he had retracted from the original statement made by him long before the order of detention was made, by addressing a letter to the Assistant Collector of Customs retracting from his former statement which was sent under certificate of posting but the same could not be traced by the detaining authority in spite of a thorough search, it could be said that the alleged letter of retraction was only a myth and that no such letter was posted as claimed by detenu. When the detenu with his representation forwarded a photostat copy of the certificate of posting whereunder letter of retraction was alleged to have been sent but omitted to forward a copy of the letter of retraction itself. As such, it could not be said that the detaining authority did not apply its mind to the representation. Therefore, in view of this observation of the Supreme Court also, the grievance made by the detenu in respect of non-furnishing of the copy of the retracted statement of Amarjeetsingh would be loosing the value and would not be sufficient enough to dent the detention order.

28. The detention contemplated in view of the provisions of Section 3 of the COFEPOSA Act is for the purpose of preventing the persons from indulging in the activities of smuggling and bringing smuggled goods in India causing a serious prejudice to the interest of the nation. Stricter action has been indicated because such activities not only create prejudice and injustice to tax payer but create a serious danger to fiscal policy of nation and the industrial growth of the nation. Therefore, a serious view has to be taken and it has to be seen reasonably whether the authority detaining with such a detenu was really careful enough in getting itself to the subjective satisfaction through the material which was available with it so as to allow it to have proper subjective satisfaction and when it was so, the submission advanced on behalf of the detenu will have to be discarded as not sufficient enough to dent or shatter detention order. At this juncture it is necessary to mention the observation of the Supreme Court in the matter of Frances Coralie Mullin v. W.C. Khambra and others, in AIR 1980 SC 849, wherein the Supreme Court held that the role of the Court in cases of preventive detention has to be one of eternal vigilance. No freedom is higher than personal freedom and no duty higher than to maintain it unimpaired. The Court's writ is the ultimate insurance against illegal detention. The Constitution enjoins conformance with the provisions of Art. 22 and the Court exacts 2compliance. Art. 22(5) vests inthe detenu the right to be provided with an opportunity to make a representation. The principal enemy of the detenu and his right to make a representation is neither high-handedness nor mean-mindedness but the casual indifference, the mindless insensibility, the routine and the red-tape of the bureaucratic machine. The procedure prescribed for making representation is aimed at shielding personal freedom against indifference, insensibility; routine and red-tape and thus to secure to the detenu the right to make an effective representation.

29. In the same judgment the Supreme Court further observed that expedition is essential at every stage. However, the time-imperative can never be absolute or obsessive. There has to be lee-way, depending on the necessities of the case. But no allowance can be made for lethargic indifference. No allowance can be made for needless procrastination. But allowance must surely be made for necessary consultation where legal intricacies and factual ramifications are involved. The burden of explaining the necessity for the slightest departure from the time-imperative is on the detaining authority.

30. Keeping in view these observations also if the detention order is examined, this Court finds no perversity in it; no illegality in it and nothing which would infringe the fundamental right guaranteed by Art. 22(5) of the Constitution of India.

31. It is to be noted that in the matter of Union of India v. Arvind Shergill, reported in 2000 (121) ELT 3 (SC), the Supreme Court pointed out that the High Court can only examine the grounds disclosed by Government for ordering detention in order to see whether they are relevant to the object viz. to prevent the detenu from engaging in smuggling activity, and is not competent to substitute its own judgment as to sufficiency of the materials on which Government's satisfaction was grounded. This is the dictum of the Supreme Court, in view of Article 141 of the Constitution of India it has to be taken as law of the land. Keeping in view this, this Court restrains itself and brings it within its own limit of the jurisdiction while dealing with the submissions advanced on behalf of the detenu, touching the merit of the material and its sufficiency for detention.

32. Shri Rawal counsel appearing for the detenu submitted that the detenu is a young boy and is languishing in detention for a period of more than six months. He submitted that the role attributed to the detenu is not important role and he was like a messenger. He submitted further that the detenu has got clean record in his life and, therefore, the period of detention undergone be treated as sufficient for his alleged involvement. Shri Rawal in that context placed reliance on the judgment in the matter of K. Satyanarayan Subudhi v. Union of India, reported in AIR 1991 SC 1375.

33. Shri Neema did not agree with the submissions advanced by Shri Rawal. In this context it is to be noted that though he might have been shown to be a messenger, the activities which look place in Classic Hotel, Kathmandu, Nepal and the way in which various persons did transactions/business, asindicated in the order seriousness behind the act of detenu gets importance. It is to be noted that when the conspiracy is hatched up every person plays his role in it as allotted and it is meant for taking the flag of conspiracy to success. It is just like a train starting from one destination to another. Number of persons connected with such train of conspiracy board in and may alight also in the journey but everybody plays his own role which has been attributed to him. Therefore, unless there are compelling grounds, the role played by such persons cannot be treated to be unimportant if there is a common thread of oneness present. The role played by such persons will have to be considered in that context of achieving the goal. It is like that and in that context the transactions and the business dealt with in Classic Hotel at Nepal will have to be kept in view and, therefore, in view of the observations of the Supreme Court in the cases quoted above the conduct and behaviour of detenu will have to be given its effect, in view of the larger interest of the Nation and national security.

34. Thus, the result would be the dismissal of the petition but keeping in view the fact that detenu happens to be in detention, no order as to the cost.