PETITIONER: <NAME>. Vs. RESPONDENT: STATE OF KARNATAKA AND ANR. ETC. DATE OF JUDGMENT28/02/1992 BENCH: PANDIAN, S.R. (J) BENCH: PANDIAN, S.R. (J) KULDIP SINGH (J) SAHAI, <NAME> (J) CITATION: 1992 AIR 1353 1992 SCR (1)1075 1992 SCC (2) 295 JT 1992 (3) 610 1992 SCALE (1)525 CITATOR INFO : D 1992 SC1937 (6) ACT: Conservation of Foreign Exchange and Prevention of Smuggling Activities Act , 1974 : Section 3(1) -Detention Order-Undue and unreasonable delay in execution-Maintainability. HEADNOTE: The appellant, on 12.11.1990, was found carrying two gold pellets with foreign markings each weighing ten tolas, without any valid permit. The order of detention under S.3(1) of the conservation of Foreign Exchange and Prevention of Smuggling Activities Act , 1974 was passed on 7.1.1991. The detention order was served on him on 28.6.1991. The Writ Petition challenging the detention order, inter alia, on the ground of undue and reasonable delay in its execution was dismissed by <ORG>. The detenu filed the appeal by special leave against <ORG>'s order as also the writ petition under Article 32 of the Constitution before this <ORG>. Allowing the appeal and disposing of the writ petition, this <ORG>, HELD: 1.1 The order of detention cannot be sustained since the `live and proximate link' between the ground of detention and the purpose of detention is snapped on account of the undue and unreasonable delay in securing the appellant/detenu and detaining him. The order of detention is liable to be set aside on this ground alone. [p. 1080A-B] 1.2 Though the two gold pellets (the contrabands) were seized from the appellant on 12.11.1990, the order of detention was passed on 7.1.1991, and the detention order was executed after a period of 5 months and 11 days. {pp. 1078F; 1079G-H; 1080A] 1076 2.1 No sufficient cause is shown for not taking any action under s.7 of the COFEPOSA Act . The explanation-that though COFEPOSA section in the office of <ORG> requested <ORG> on 19.4.1991 to initiate action under s.7(1) (b) of the Act it was not done so because the seizing unit was asked to make one more attempt to trace out the appellant-is not satisfactory and reasonable one. [pp. 1078G-H; 1079A-B] 2.2 No serious and sincere effort was taken by the arresting officers: There was only exchange of correspondence between the <ORG> and the arresting officers. It is incomprehensible as to why no effort was made to secure the appellant/detenu during the two days, namely, on 6th and 20th Feb.91, when he appeared before the Assistant Collector of <ORG>. [pp. 1079F-G] JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 144 of 1992.

From the Judgement and Order dated 27.9.1991 of <ORG> in W.P. No. 113 of 1991.

WITH Writ Petition (Crl.) No. 1394 of 1991.

<NAME> and <NAME> for the Appellant. <NAME>, Addl. Solicitor General, <NAME>, <NAME>, <NAME> and <NAME> (For the State of Karnataka) for the Respondents.

The Judgment of the Court was delivered by <NAME>, <NAME> granted.

The appellant/petitioner <NAME> by the above appeal is challenging the correctness and legality of the order dated 27th September 1991 made by <ORG> dismissing the Writ Petition filed by the appellant challenging the legality and validity of the order of detention dated 7.1.1991 passed by the State of Karnataka. The first respondent in the appeal, namely, the State of Karnataka in exercise of the powers conferred by the Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974 (hereinafter referred to as `the Act') passed the impugned detention order on 7th January 1991 with a view to preventing him from engaging in keeping and transporting smuggled goods falling within the mischief of Section 3(1)(iii) of the Act. The appellant was directed to be detained and kept in the custody of the central prison, Banglore.

The brief facts of the case which led to the passing of the impugned order can be summarised as follows:

On 12.11.1990 the Superintendent of Central Excise on information interrogated the appellant at the Balgaum bus stand on his arrival from Bombay in the presence of some panchas and recorved two gold pellets with foreign markings each weighing ten tolas, wrapped in a paper packet from his front side right watch pocket of his pant. The appellant was not having any valid permit and also was not able to give any satisfactory explanation for possessing the gold pellets. Therefore, the Superintendent entertaining a reasonable belief that they were smuggled gold pellets recorded the statement of the appellant. <ORG> on the information passed on by the sponsoring authority passed the impugned order on 7.1.1991 on being subjectively satisfied of the necessity of passing the impugned order on the materials placed before it. The detention order was served on the detenu only on 28.6.1991 from which date onwards he has been detained. Challenging the detention order, the petitioner filed a Writ Petition No. 113/91 before <ORG> and raised several contentions; those being (1) the order of detention is based on a solitary incident; (2) there has been an undue and prolonged delay in serving the order on the detenu; and (3) the materials placed before the detaining authority were not sufficient for drawing the requisite satisfaction for passing the impugned order. <ORG> rejected all those contentions and dismissed the Writ Petition. Hence this appeal.

Before this Court the petitioner has filed a separate Writ Petition under Article 32 of the Constitution of India raising certain additional grounds. Those grounds are: (1) The detenu made a request to the detaining authority to forward a copy of his representation to <ORG> and that the detaining authority has not forwarded the same to <ORG> as requested by him. Even assuming that it has been forwarded, his represe tation has not been disposed of in time and as such there is violation of Article 22(5) of the Constitution of India.

(2) The normal criminal process which would be adequate to take care of the possession of the gold has not been followed; and (3) The first respondent in the Writ Petition (<ORG>) has failed in its duty to inform the petitioner regarding the <ORG> instruction issued to the sponsoring agencies not to make an order of detention in cases where the value of the smuggled goods is less than Rs.1 lakh.

In the Writ Petition both the State Government as well as the Central Government have filed their counter affidavits refuting all the additional grounds.

Before scrutinising the additional grounds raised in the Writ Petition, we shall now examine the contentions raised in the appeal and find out whether the order of <ORG> warrants interference.

Mr. <NAME>, the learned counsel appearing on behalf of the appellant contends that the delay of more than five months in executing the order of detention is not only an inordinate and unreasonable one but also stands un- explained and on that ground <ORG> ought to have set aside the order of detention. According to him, <ORG> has not gone deep into that question but summarily disposed of the same holding "The explanation offered by the 1st respondent, in para 9 of the statement of objection is quite acceptable."

Of course, this contention has not been specifically taken in the Memorandum of Appeal, but there can be no bar to advance a legal argument in a case of this nature and especially when such a contention has been raised before <ORG>. We want through the explanation given in para 9 of the counter affidavit filed on behalf of the first respondent by the then commissioner and Secretary to <ORG>, <ORG>. It is not denied that the detention order was executed after a period of 5 months and 11 days. What the first respondent states is that various efforts were taken to trace the detenu at Tellicherry at the address given in the grounds of detention as well as in the Bombay address, but he could not be secured. Further it has been stated that though the arresting officers attempted to secure him at <ORG> at Belgaum on 6.3.91, 28.3.91 and 14.5.91 on which dates the criminal case aS against him stood posted before that court, the officers could not do so as the appellant did not appear before the court for hearing. Further it is mentioned that though COFEPOSA Section in the office of <ORG>

torate of <ORG> requested <ORG> on 19.4.91 to initiate action under Section 7(1)(b) of the Act it was not done so because the seizing unit was asked to make one more attempt to trace out and detain the appellant. This explanation is not a satisfactory and reasonable one for the following reasons :

(1) No sufficient cause is shown for not taking any action under Section 7 of the Act.

(2) It appears from the paragraph 9 of the counter that the officers came to know of the correct address of the appellant at Bombay, but they could not trace him. It may be pointed out that the Bombay address at which place the appellant detenu was attempted to be secured is not given in the counter. Had it been given, the Court would have been in a position to verify the averments made in the grounds of detention stating that the address at Bombay given by the appellant was a fictitious one.

In paragraph 17 of the Writ Petition filed before <ORG>, the appellant has asserted that he appeared before the Asstt. Collector of <ORG>, Marine Lines, Bombay on 6.2.91 and 20.2.91 but no attempt was made to arrest and detain him. This specific averment is not all denied in the counter. This indicates that the arresting officers did not take any real and genuine effort to secure and detain the appellant. The explanation now offered stating that the appellant was fugitive, eluding the dragnet of the detention order cannot be accepted, because during the alleged period of search he has appeared before the Assistant Collector of <ORG>, Bombay on two occasions during Feb. 1991, that is after passing of the detention order.

All the above points show that no serious and sincere effort appears to have been taken by the arresting officers and that there was only exchange of correspondence between the <ORG> and the arresting officers. It is incomprehensible as to why no effort has been made to secure the appellant/detenu during the two days, namely, on 6th and 20th February when he appeared before the Assistant Collector of <ORG>. No supporting affidavits or documents are filed to substantiate the averments made in the counter. Incidentally, it may be mentioned that though the two gold pellets (the contrabans) were seized from the appellant on 12.11.90 the authorities concerned passed these orders only on 7.1.1991, i.e. nearly after two months.

Under these circumstances, we are of the view that the order of detention cannot be sustained since the `live and proximate link' between the grounds of detention and the purpose of detention is snapped on account of the undue and unreasonable delay in securing the appellant/detenu and detaining him. As we have now come to the conclusion that the order of detention is liable to be set aside on this ground alone we are not dealing with other contentions raised in the Memorandum of Appeal as well as in the Writ Petition.

Hence for the reasons stated above we allow the appeal, set aside the order of <ORG> and quash the impugned detention order and direct the detenu to be set at liberty forthwith. In view of the order in this present appeal, no order is necessary in the Writ Petition.

R.P. Appeal allowed.


CASE NO.: Appeal (civil) 19 of 1955 PETITIONER: DIRECTOR OF ENDOWMENTS GOVERNMENT OF HYDERABAD & ORS. RESPONDENT: AKRAM ALI DATE OF JUDGMENT: 22/04/1955 BENCH: B.K. MUKHERJEE (CJ) & V. BOSE & B. JAGANNADHADAS & T.L.V. AIYYAR & S.J. IMAM JUDGMENT:

<NAME> 1956 SC 60 Bose, J.

1. The respondent filed a petition under Article 226 of the Constitution in <ORG> at Hyderabad asking for a 'mandamus' against the Director of Endowments of <ORG>. His prayer was that the Director be ordered to hand over the management and possession of a certain <ORG> called the <ORG> of Jehangir and Burhanud-din Piran and also the adjoining "hereditary lands" together with the income and profits, to the respondent.

2. <ORG> granted the writ and the State of Hyderabad appeals.

3. The respondent's case is that the Dargah contains the tomb of one of his ancestors and that he and his ancestors have been the hereditary Sajjadas and Mutawallis of the Dargah for generations. In the year 1914, when the respondent's brother <NAME> was in possession, <ORG> stepped in and entrusted the supervision of the Dargah to one <NAME>.

He was removed in 1920 and <ORG> took over the supervision under a <NAME> of the <ORG> which directed the Department to supervise the <ORG> until the rights of the parties have been enquired into and decided. The respondent states that these rights were investigated by the civil Courts. The matter went up to <ORG> and the decision all through was in his favour. Despite this he has not been given possession and he seeks a 'mandamus' against the Director and asks that the Director be ordered to hand over the management and possession to him.

4. <ORG> granted his prayer, <NAME> held that the Firman of the <ORG> ceased to be valid after the Constitution, therefore, the possession of <ORG> after that date was unlawful. He also held that <ORG> took possession from the respondent and so it was bound to hand the Dargah back to him. The other learned Judge <NAME> held that the Firman had served its purpose, therefore, as the Dargah was not wakf property, the supervision of the <ORG> should be brought to an end.

Consequently, as the respondent's opponent was worsted in the civil litigation, and as the respondent had been out of possession for a generation and so could be assumed to have learnt a lesson, he should be placed in possession,

5. The learned Attorney-General, who appeared for the appellants challenged the accuracy of most of the facts on which the learned <ORG> Judges founded but we do not think it necessary to go into that. We were taken through the documents in great detail by the respondent's learned counsel and he sought to establish from them his possession and that of his ancestors for generations, and also that <ORG> took over possession from him.

He also said that his descent from at least <NAME>, his grandfather, was proved and that it was also established that <NAME> was a hereditary Sajjada of the <NAME>. All this is, in our opinion, beside the point. The petition and the appeal can be disposed of very shortly on another ground.

6. We do not intend to say anything about the facts of title and possession lest it prejudice future litigation, should there be any. We will assume, without deciding, that all that the respondent says about his hereditary rights and his possession is true. But whether he was in possession or not, whatever rights to possession he may have had were held in abeyance by the <NAME> of 31-12-1920 and there is no subsequent order of <ORG> removing the bar.

Therefore, as he has no 'present' right to possession, no 'mandamus' can be issued. We do not mean to imply that a writ would be the appropriate remedy if and when the respondent can establish a right to possession: that is a question that does not arise because in fact he has no present right to possession.

7. The facts that led up to the passing of the <ORG> are as follows. Disputes about the right to possession and supervision of the <ORG> seem to have started about the year 1914, for it is the respondent's case, as set out in his petition, that the supervision was handed over to <NAME> by <ORG> in or about the year 1914. Further trouble arose in 1918 and a complaint seems to have been made to <NAME> about undue police interference.

This occasioned a letter from the Director of <ORG> to the Home Secretary on 8-9-1918 in which the Director suggested that the Dargah and its income should be kept under Government supervision till one or other of the various claimants established his right.

8. On 27-1-1920 the same Director delivered what has been called a judgment. He set out the disputes between the various claimants and said that as the dispute was about title it would have to be decided by a Court of law and not by <ORG>. He, therefore, directed that whoever was out of possession should go to the Courts to establish his rights.

Then he proceeded to consider who were in possession and held that <NAME>, <NAME> (the respondent's brother) and <NAME>, 'Mujawirs', were in possession before they were dispossessed and so decided that these three persons should be given possession and that the person out of possession should be directed to seek his remedy in a Court of law.

9. The matter seems to have been sent up to the <NAME> by the Ecclesiastical Department because on 31-12-1920 he issued the following Firman in pursuance of a petition from that Department --

"Pending enquiry of the case the said <NAME> need not be handed over to anyone. Let it remain in the supervision of the Government. I should be informed of whatever the results of the enquiry establishes so that proper orders may be passed".

10. Now the <NAME> was an absolute sovereign regarding all domestic matters at that time and his word was law. It does not matter whether this be called legislation or an executive act or a judicial determination because there is in fact no clear cut dividing line between the various functions of an absolute ruler whose will is law. Whatever he proclaimed through his Firmans had the combined effect of law and the decree of a court: see the judgment of this Court in --' <CITATION> ', AIR1955SC352 .

Therefore, the effect of this <ORG> was to deprive the respondent and all other claimants of all rights to possession "pending enquiry of the case". Exactly what this means is not clear but, taken in conjunction with the surrounding circumstances and with the decision of the Director of <ORG> to which we have referred, it is fair to assume that it means, pending the enquiry by the civil Courts about which the Director had twice spoken, that is to say, if there was a right to possession it was held in abeyance till established by the civil Courts.

11. Now, as we have said, the <NAME> was at that time an absolute ruler and could do what he pleased. His will, as expressed in his Firman, was the law of the land. Therefore, even if it be assumed that the respondent was in possession, his rights to immediate possession, whatever they may have been, were taken away and held in abeyance till he could establish them in the civil <ORG>.

The question now arises whether this enured after the Constitution and whether the respondent's right to possession, assuming he had any, revived when the Constitution came into being. We are clear that the Constitution effected no change.

12. It was conceded that the <NAME> had power to confiscate the property and to take it away from the respondent 'in toto' and it was conceded that if he had done so the rights so destroyed would not have revived because the Constitution only guarantees to a citizen such rights as he had at the date it came into force; it does not alter them or add to them: all it guarantees is that he shall not be deprived of such rights as he has except in such ways as the Constitution allows. But if the <NAME> could take away every vestige of right by a Firman he could equally take away a part of them and at the date of the passing of the Constitution the respondent would only have the balance of the rights left to him and not the whole, for what applies to the whole applies equally to the part.

Therefore, even if we accept all the respondent's facts, the position would still be that at the date the Constitution came into force he had no right to immediate possession; the utmost he had was a right to be restored to possession if and when he established his rights in a Court of law.

13. <ORG> has relied on a decision of this Court in -- ' <CITATION> ', : 4SCR404 , and has held that the <ORG>s of the <ORG> that conflict with the Constitution are 'ultra vires'. But the learned Judges have failed to observe that in that case the <ORG> was issued after the Constitution and not before. But it was argued that even if that decision does not apply there are others that do and they hold that a law which would have been bad if it had been passed after the Constitution ceases to have effect after that date.

The decisions referred to were considered in -- ' <CITATION> ', : 1953CriLJ862 and the law laid down by the majority was this (page 161).

"The effect of Article 13(1) of the Constitution is not to obliterate the entire operation of the inconsistent laws or to wipe them out altogether from the statute book; for to do so will be to give them retrospective effect which they do not possess. Such laws must be held to be valid for all past transactions 'and for enforcing rights and liabilities accrued before the advent of the Constitution' ".

That, in our opinion concludes the matter.

14. The only question that remains is whether the respondent has obtained a decision in the civil <ORG> confirming his right to get possession of the Dargah plus whatever else <ORG> took over under the <NAME>. As we have already indicated, the matter was agitated in the civil <ORG>. We need not trace the history of this litigation nor need we examine its fortunes from stage to stage. All we are concerned with is the final judgment which was given by <ORG>.

15. The suit was filed by <NAME> who had been entrusted with the supervision of the Dargah by <ORG> in 1914 and who was removed in 1920. The present respondent <NAME> was one of the defendants. When the matter reached <ORG> the learned Judges found as follows :

"The fact of the plaintiff" (<NAME>) "or his ancestors or any of the descendants of the saint of the Dargah being a Sajjada is not established by the evidence. It is also not proved that there has been 'any other Sajjada' in respect of this Dargah and that the office of <NAME> has been founded or continued there....in our opinion the <NAME> of none of the defendants is proved.

In fact, for the very reasons as given by us above none of the defendants is proved to be entitled to the office of <NAME>. In the result, it is not proved that any one of the parties is entitled to the <NAME>. The objections to the evidence of the plaintiff apply equally to the evidence of the defendants and when the very existence of <NAME> in the Dargah Sharif is not proved, no question remains as to who is the <NAME> ..........

It cannot be gainsaid that the evidence of the plaintiff is stronger and more weighty than the evidence of the defendants.... ....If we were obliged to hold any one of the parties as <NAME> on the evidence produced, our judgment would have been in plaintiff's favour".

The decisions of the lower Courts dismissing the plaintiff's suit were accordingly upheld.

16. The learned counsel for the defendant-respondent argued that this judgment does not come in the way of his client because, even if he is not the <NAME>, that would make no difference. He insists that his client was in possession at all relevant times, that is to say, he equates the brother's possession to that of his client and contends that now that the civil litigation has ended unfavourably to his opponent <NAME>, the respondent must be restored to possession.

But that is not what the <NAME> says. The respondent's rights, if any, at the date of the Constitution, and now, are that he must establish his right to possession in a civil <ORG> before he can ask to be put in possession. There is no decision of a civil <ORG> declaring the respondent's right to possession, therefore, on that short ground he cannot get the writ he seeks.

17. The appeal is allowed. The decision of <ORG> is set aside and the respondent's petition for a writ is dismissed.

There will be no order about costs in any of the Courts.