law: Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974
  3. Power to make orders detaining certain persons -
  (1) 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, specially empowered for the purposes of this section by that
  
  Government, or any officer of the State Government, not below the rank of a
  
  Secretary to that Government, specially empowered for the purposes 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) harboring persons engaged in smuggling
  
  goods or in abetting the smuggling of goods,
  It is necessary so to do, make an order directing that such
  
  person be detained :
  [(Note:- Added by Act No.46 of 1988, S.15 (w.e.f . 4-7-1988) Provided that no order of detention
  
  shall be made on any of the grounds specified in this sub-section on which an
  
  order of detention may bemade under section 3 of the
  
  Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances
  
  Act, 1988 or under section 3 of the Jammu and Kashmir Prevention of Illicit
  
  Traffic in Narcotic Drugs and Psychotropic Substances Ordinance, 1988].
  
  (J&K Ordinance, 1 of 1988).
  (2) When any order of detention is made by a State Government or
  
  by an officer empowered by a State Government, the State Government shall,
  
  within ten days, forward to the Central Government a report in respect of the
  
  order.
  (3) For the purposes 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 five days,
  
  and in exceptional circumstances and for reasons to be recorded in writing, not
  
  later than fifteen days, from the date of detention.
  COMMENTS
  A. Subjective satisfaction - Validity of
  It is well settled that the subjective satisfaction requisite on
  
  the part of the detaining authority, the formation of which is a condition
  
  precedent to the passing of the detention order will get initiated if material
  
  or vital facts which would have a bearing on the issue and would influence the
  
  mind of the detaining authority one way or the other are ignored or not
  
  considered by the detaining authority before issuing the detention order. [ Varinder Singh Batra  v.Union of India & Ors., (1993) 3 Crimes 637 (Delhi)].
  
  R / t: Ashadevi v.Shivraj 
  
  & Anr ., AIR 1979 Sc 447. R/t. Ayya 
  
  alias Ayub v.State of U.P
  
  & Anr ., (1989) 1 Crimes 8 (S.C.).
  If a piece of evidence which might reasonably have affected the
  
  decision whether or not to pass an order of detention is excluded from
  
  consideration, there would be a failure of application of mind, which in turn,
  
  vitiates the detention. [ abid ].
  There would be vitiation of the detention order on grounds of
  
  non-application of mind if a piece of evidence which was relevant though not
  
  binding, had not been considered at all. [ibid].
  If an important document on which reliance has been placed by
  
  the detaining authority and it has not been supplied to the detenu 
  
  it is sufficient to vitiate the order of detention. [Mohammed  Salim / Khatri v.Union 
  
  of India & Anr ., (1993) 3 Crimes 867 (Delhi)].
  It is the duty of the sponsoring authority to collect all the
  
  relevant material and place it before the detaining authority. The requisite
  
  subjective satisfaction the formation of which is a condition precedent to
  
  passing of a detention order will get vitiated if material or vital facts which
  
  would have bearing on the issue and weighted the satisfaction of the detaining
  
  authority one way or the other and influenced his mind are either withheld or
  
  suppressed by the sponsoring authority or ignored and not considered by the
  
  detaining authority before issuing the detention order. [ibid] R/t.  Dharamdas Shamlal  Agarwal v.Police Commissioner
  
  & Anr ., AIR 1989 SC 1282 as also  Madan Gopal alias  Madan Bhaiya v.Union 
  
  of India & Ors. (1993) 49 Delhi Law Times 174.
  Every failure to furnish copy of a document to which reference
  
  is made in the grounds of detention under section 3(1) of COFEPOSA is not an
  
  infringement of article 22(5) of the Constitution fatal to the order of
  
  detention. It is only failure of 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 article 22(5).[ abid ] R/t Mst . L.M.S.  Ummu Saleema v.B.B .
  
   Gujaral & Anr ., AIR
  
  1981 SC 1191.
  When the non-supply of copies of relevant documents has
  
  prevented the detenu from making an effect and
  
  purposeful representation, it results in violation of article 22(5) of the
  
  Constitution of India read with section 3(3) of the COFEPOSA. [ibid].
  Documents cannot be said irrelevant when they have been
  
  mentioned in the detention order and reliance has been placed upon them.
  
  [ibid].
  B. Grounds - Communication of
  Since the order is based on grounds to be served on the  detenu , the order of detention could be passed only if the
  
  grounds are in existence and are prepared contemporaneously, otherwise the
  
  order of detention becomes purely illusory. [ Pakhar 
  
  Singh v.Union of India & Anr .,
  
  (1993) 3 Crimes 765 (P & H) R/t. Krishna Murari  Aggarwal v.Union of India, AIR
  
  1975 SC 1877.
  It is the duty of the detaining authority to satisfy the court
  
  about the existence of the material and that he has not acted in a mechanical
  
  or cavalier manner while exercising the power. The detaining authority owes a duty
  
  to the detenu as wall as to the Court. An obligation
  
  of the detaining authority is to satisfy the Court that he has acted in
  
  accordance with law. [ abid ] R/t. Mohiuddin 
  
   Tayab Sony v.State of  Maharashtra & Anr ., 1980  Crl . LJ. 1040 ( Bom .) D.B.
  It is well settled that judicial scrutiny cannot be shut our
  
  merely on the ipsedixit of the detaining authority. [ abid ]. Ibid.
  The grounds of detention must be communicated in the language
  
  understood by the detenu . [In re: Smt .
  
   B.Ramprannamma , 1993 FAJ 485 (Cal Circuit Bench at
  
  Port Blair) D.B.]
  Article 22(5) of the Constitution requires that the grounds of
  
  detention must be communicated to the detenu .
  
  "Communicate" is a strong word. It requires that sufficient knowledge
  
  of the basic-facts constituting the grounds should be imparted effectively and
  
  fully to the detenu in writing in a language which he
  
  understands, so as to enable him to make a purposeful and effective
  
  representation. If the grounds are only verbally explained to the  detenu and nothing in writing is left with him in a
  
  language which he understands, then that purpose is not served, and the
  
  constitutional mandate in article 22(5) is infringed. This follows from the
  
  decisions in Harikisan v. State of  Maharashtra , AIR 1962 SC 911, and Hadibandhu 
  
   Das v.District Magistrate,  Cuttack and Ors., AIR 1969 SC 43.
  In the case of Smt .  Raziya Umar Bakshi 
  
   v.Union of India and Ors., AIR 1980 SC 1751, it was
  
  held by the Supreme Court that the service of the ground of detention on the  detenue is a very precious constitutional right and where
  
  the grounds are couched in a language which is not known to the  detenu , unless the contents of the grounds are fully
  
  explained and translated to the detenu , it will
  
  tantamount to not serving the grounds of detention to the detenue 
  
  and would thus vitiate the detention ex-facie. In case where the detaining
  
  authority is satisfied that the grounds are couched in a language which is not
  
  known to the detenue , it must see to it that the
  
  grounds are explained to the detenu , a translated
  
  script is given to him and the grounds bear some sort of a certificate to show
  
  that the grounds have been explained to the detenue 
  
  in the language which he understands. A bare statement at the stage when Habeas
  
  Corpus petition is filed in the Court by the detaining authority that these
  
  formalities were observed would be of no consequence particularly when it is
  
  not supported by any document or by any affidavit of the person who had done
  
  the job of explaining or translation.
  In the case of Mr. Kubic  Dariusz v. Union of India and other, AIR 1990 SC 605, the
  
  Supreme Court observed that 'it is settled law that the communication of the
  
  grounds which is required by the earlier part of clause (5) of article 22 is
  
  for the purpose of enabling the detenu to make a
  
  representation, the right to which is guaranteed by the latter part of the
  
  clause'. A communication in this context, must, therefore, mean imparting to
  
  the detenu sufficient and effective knowledge of the
  
  facts and circumstances on which the order of detention is passed, that is, of
  
  the prejudicial acts which the authorities attribute to him. Such a
  
  communication would be there when it is made in a language understood by the  detenu .
  C. Execution - Prior to
  It is well settled that the High Courts have the powers to
  
  entertain and examine the grievances against the detention order prior to its
  
  execution. [ Pakhar Singh v. Union of India &  Anr ., (1993) 3 Crimes 765 (P & H). R/t. Addl. Secretary
  
  to the Government of India & Ors. V.Smt .  Alka Subhash Gadia 
  
  & Anr ., 1992 SCC ( Crl .)
  
  301.
  The grounds on which the courts have interfered with them at the
  
  pre execution stage are necessarily very limited in scope and number, viz.,
  
  where the courts are prima facie satisfied
  ( i ) that the
  
  impugned order is not passed under the Act under which it is purported to have
  
  been passed,
  (ii) that it is sought to be executed against
  
  a wrong person,
  (iii) that it is passed for a wrong purpose,
  (iv) that it is passed on vague, extraneous
  
  and irrelevant grounds, or
  (v) that the authority which passed it has no
  
  authority to do so.
  It is well settled in our Constitution frame word that the power
  
  of directing preventive detention given to the appropriate authorities must be
  
  exercised in exceptional cases as contemplated by the various provisions of the
  
  different statutes dealing with preventive detention and should be used with
  
  great deal of circumspection. There must be awareness of the facts
  
  necessitating preventive custody of a person for social defense. If a man is in
  
  custody and there is no imminent possibility of his being released, the power
  
  of preventive detention should not be exercised. [ Ibrahim 
  
   Umarbhaya v. State of Gujarat & Ors., (1993) 3
  
  Crimes 730 ( Guj .) D.B.] R/t. Rameshwar 
  
  Shaw v. District Magistrate, AIR 1964 SC 334.
  D. Pre-execution stage - Challenge at
  Detention order under the Act cannot be challenged at
  
  pre-execution stage merely on the ground that there was delay in its execution.
  
  [ Inderjit Singh Chani v.
  
  Union of India & Anr ., (1994) 1 Crimes 539
  
  (Delhi)].
  E. Delay - Effect of
  Long and undue delay in passing the detention order snaps the
  
  nexus between the activity alleged and the activity sought to be curbed and
  
  shows that the detention order was passed mechanically without application of
  
  mind.
  When the detention order has been passed after a long delay and
  
  the service was also effected after delay the detention order is liable to be
  
  quashed. [ Daljit Singh Sandhu 
  
  v. Union of India & Ors., (1993) 3 Crimes 629 (Delhi)].
  No doubt it is true that if the detaining authority shows that
  
  there is a reasonable nexus between the prejudicial activity and the purpose of
  
  detention, the delay in passing the detention order has to be overlooked.
  
  [ibid].
  The delay in passing the detention order, if not adequately
  
  explained, vitiates the same. [ibid].
  Indeed more delay in passing a detention order is not
  
  conclusive. The authorities concerned must have due regard to the object with
  
  which the order is passed. Inordinate delay in passing of a detention order
  
  will raise genuine doubt about the satisfaction of the Detaining Authority.
  The test as to whether the detention order should be quashed on
  
  the ground of delay is not a rigid or mechanical test by merely counting the
  
  number of days or months; the court should examine whether the Detaining
  
  Authority has satisfactorily explained the delay. [ Gurvinder 
  
  Singh v. Under-Secretary, Home, Government of Punjab, (1993) 3 Crimes 760 (P
  
  & H) R/t. Lakshman Khatik 
  
  v. State of W.B., AIR 1974 SC 1264 as also T.A. Abdul Rehman 
  
  v. State of Kerala , (1989) 2 All India Criminal
  
  Law Reporter 294 (S.C.)].
  The detenu had been evading execution
  
  of the detention order hardly gives credit to the authorities  incharge of enforcing the orders of detention. In case
  
  where the authorities are guilty of inaction after passing of the order, a
  
  reasonable conclusion has to be drawn that the detention order has lost nexus
  
  with the prejudicial activities. [ibid].