Holding

Section 8(e) does not confer a right to counsel but allows discretion, and the detention order is valid despite the alleged procedural deficiencies.

Summary

The petitioners challenged the preventive detention of Kantilal Nagar Das Shah under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 after customs seized 141 slabs of palladium he had smuggled from Muscat. The wife argued that the detenu was denied legal representation before the Advisory Board, was not provided sufficient particulars of the grounds of detention, suffered an unjustified delay in the detention order, and that the detention was discriminatory and unnecessary when ordinary prosecution was possible. The Supreme Court held that Section 8(e) of the Act does not grant an absolute right to counsel but permits discretion, and that the detaining authority is not obliged to specify which parts of the grounds were relied upon. The Court further ruled that a delay in issuing the detention order is not fatal if satisfactorily explained, that preventive detention is permissible even where prosecution is feasible, and that confidential government guidelines have no force of law. Past conduct may be taken into account, and courts under Articles 32, 226 and 136 cannot substitute their satisfaction for that of the detaining authority. Consequently, the petition was dismissed.

Issues considered

Whether Section 8(e) of the COFEPOSA Act bars a detenu's right to legal representation before the Advisory Board.
Whether the detenu is entitled to know which specific parts of the grounds of detention were considered by the authority.
Whether the import of palladium is prohibited and whether the detenu's ignorance of its status is a valid defence.
Whether the delay between arrest and issuance of the detention order invalidates the detention.
Whether preventive detention is permissible when ordinary criminal prosecution is available.
Whether confidential guidelines issued to officials have the force of law.
Whether past conduct of the detenu can be considered in a detention order.
Whether courts can substitute their satisfaction for that of the detaining authority under Articles 32, 226 and 136.

Legislation cited

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974s. 3(1), s. 8(c), s. 8(e)
Customs Acts. 108
Imports (Control) Order, 1955 (as amended up to March 31, 1980)

Subjects

preventive detentionCOFEPOSAlegal representationadvisory boarddelay in detention ordersmugglingpalladiumcustomsconfidential guidelinespast conductArticle 32Article 22(5)

Judgment

A 102s

HEMLATA KANTJLAL SHAH

v.

B STATE OF MAHARASHTRA & ORS.

October 30, 1981

(A.P. SEN AND BAHARUL ISLAM, JJ.j

-
Conservation of Foreign Exchange and Prevention of Smugg/fng Activities
c Act, 1974-Section 8 (e)-Representation of detenu by lawyer before Advisory
Board-If could be claimed as of right.

Detaining authority gave grounds of detention-Whether should also state the
particular ground on which the detenu was detained-Whether should state that
certain metal is a precious metal.

D Delay in passing rorder of detentlon-Whethtr fatal to the order of deten~
tion in all cases-Detaining a person under preventive detntion law instead of prose·
cuting him under ordinary law-When permitted.

Confidential guidelines issued to officials of department-Whether have force
•
of law.

E Past conduct of detenu-If could be taken into consideration in detaining an
offender.

Procedure-Supreme Court and High Court-Jurisdiction under articles 32,
136 and 226 in preventive detention cases-Courts, if could substitute their own
satisfaction for that of detaining authority.

F On their arrival at the airport from Muscat the Customs Authorities appre-
hended the petitioner and her husband (the detenu) and recovered 141 slabs of
palladium (a precious metal) each slab weighing one ounce, concealed in different
parts of their baggage. In his statement under section 108 of the Customs Act
the detenu stated that he was smuggling the metal because of the huge profit
involved in it and that he alone was responsible for the smuggling. He was detai-
ned under the provisions of section 3(1) of the Conservation of Foreign Exchange
and Prevention of Smuggling Activities Act. 1974.

In a petition under article 32 of the Constitution filed by the detenu's wife
it was contended on behalf of the detenu that: (1) arbitrary rejection of his
request for legal representation before the Advisory Board caused serious pre-
judice to him; (2) as a result of the authority's refusal to give information on five
H out of six points asked for by the detenu he was deprived of the opportunity to
make a proper representation; (3) there was no reason for detaining him
on June 6, 1981 although he was apprehenr;IC".d on January 8, 1981 and this long
llEMi.AtA v. MAHARASHTRA 1019
delay had prejudiced his case: (4) on the fac1s and circumstances of the case A
although prosecution was the normal remedy he was unjustifiably detained under
the COFEPOSA Act; and (5) failure of the auLhorities to follow the guide-
lin~s framed by the Government rendered the detention 111a!afide and discrimina-
tory.

Dismissing the petition,

HELD : 1. Section 8{e) of the Act does not bar representation by a lawyer
but only lays down that the detenu cannot claim representation by a lawyer as
of right. The Act has given the Board a discretion to permit or not to permit
representation of the detenu by counsel according to necessity in a particular

... case. In the instant case after the rejection of the request the Board reviewed

-
his case and gave its opinion on which alone the Government confirmed the
detention. [1033 G]
c
2 (a) When a document containing the grounds of detention is supplied to
the detenu he is not entitled to know which part or parts of the grounds was or
were taken into consideration by the detaining authority in detaining him. It
will be for the Court to judge whether the facts narrated constituted the grounds
of detention or which facts might possibly enter and influence the detaining
authority in coming to its subjective satisfaction. [1035 F·G]
0
(b) The question whether or not import of palladium is prohibited is an
information on a question of law and could have been obtained by the detenu
from the relevant statutes, rules etc. The Government is not under any
obligation to furnish him with legal information which is available from
legal Jiterature. The detaining authority is only required to comply with the
requirements of article 22(5) of the Constitution. i1336 A-BJ
(c) The plea 1hat the detenu did not know whether palladium was a E
precious n1etal is not a permissible plea on the ground of public policy. Any
detenu may plead that he had no know1edge that gold or silver is a precious
metal. That apart, the detenu in his statement before the Customs Authorities
had stated that he purchased the metal from a dealer in precious metals and
that he had smuggled it to n1ake profit. Though not a prohibited article, it is a
dutiable article. [1036 E-F]

3. In passing a detention order, the authorities concerned must have due
regard to the object \Vith which the order was passed. Delay simpliciter in passing
an order of detention after an incident is not fatal to the detention. In certain
cases delay may be unavoidable and reasonable. What is required by !av.· is that
the delay must be satisfactorily explained by the detaining authority. Neither
has the detaining authority any liab:lity to tell or satisfy the detenu as to the
causes of-delay. It should satisfy the Court that there was no infraction of the G
constitutional provisions. Jn tile instant case eleven staten1ents of the detenu and
his wife were recorded on various dates between January 9, 1981 and April 7,
1981 and the order of detention had been issued after the completion of the
investigation. [1037 C-D; 1038 A-BJ

4. A prosecution or the absence of it is not an absolute bar to an order of H
preventive detention. If the authority is satisfied that the offender has a tendency
to violate laws there will be no bar to detain a person under the Preventive
I()3() SUPREME cotJRt REPORTS [19821 1 s.c.R..

A Detenti~n Act in order to disable him to repeat such offences. What is required
is that the detaining authority should satisfy the Court that it had in mind the
question whether prosecution was sufficient in the circumstances of the case. In
the instant case the detaining authority stated that the prosecution under the
ordinary law was not sufficient for preventing the detenu from indulging in simi·
Jar activities in future. [1039 B-D

ll 5 (a) The guidelines issued by the Government, were of a confidential
nature and intended to guide the customs and the intelligence officials and have
no force of law. There can be no valid complaint of discrimination in arresting
and bringing to book a particular offender under the Customs Act or under
any Preventive Detention Law. [1040 H]

(b) The past conduct or antecedent history of a person can appropriately
c be taken into consideration in making a detention order. In the instant case the
detenu admitted that he had a home in Bombay and business in Muscat; his
passport showed that he was moving between India and Muscat; he smuggled
palladium into India to make profit. The de1aining. authority was well within
its jurisdiction in taking into consideration all these facts and subjectively
coming to the satisfaction whether or not he would be repeating his activities,
[1041 C-D]
D
6. The High Court under article 226 and this Court either under article 32
or Article 136 of the Constitution do not sit in appeal on the orders of preventive
detention. They have to see whether the formalities enjoined by article 22(5)
have been complied with by the detaining authority and if that has been done the
Court cannot examine the materials before it and find that the detaining autho-
rity should not have been satisfied on the materials before it and detained him
E under the Preventive Detention Act. That is the function of an appellate
court. [1041 F-H]

ORIGINAL JURISDICTION : Writ Petition (Criminal) No. 3662
of 1981

(Under Article 32 of the Constitution of India)
F
Ram Jethma/ani and Miss Rani Jethma/ani for the Peti-
tioner.

O.P. Rana and R.N. Poddor for the Respondents.

G The Judgment of the Court was delivered by

BAHARUL ISLAM, J. By this petition under Article 32 of the
Constitution of India, Smt. Hemlata Kantilal Shah (hereinafter the
'wife') has challenged the detention of her husband Shri Kantilal
Nagar Das Shah (hereinafter the detenu) who was detained by the
H
State of Maharashtra (Respondent No. I) by order dated June 3,
J981 under Sub-section (I) of Section 3 of the Conservation of
HEMLATA v. MAHARASHTRA (Baharui ls/am, J.) 1031
Foreign Exchange and Prevention of Smuggling Activities Act, 1974 A
(hereinafter the 'Act'). The material facts on which the grounds of
detention have been based may be briefly stated as follows :

2. On January 8, 1981, the detenu with his wife and their
minor daughter, Miss Chaya Kantilal Shah, arrived in Bombay from
Muscat by Flight No. AI 883. The petitioner at the customs clea- 8
rance counter of the airport appeared nervous and was hasty in
clearing her baggage. The Intelligence Officer of the Air Customs
Unit who had been present at the counter on receipt of se~ret
information kept a close watch on her. When the family reported
at the customs counter, the Intelligence Officer approached them

- and asked for their passports. It was found that the detenu, the
petitioner and their daughter were all holding Indian passports
and were frequent travellers. When asked about the contents of
the baggages and for declaration in respect of gold, watches, and
c

other valuable items, the detenu replied in the negative. The wife
was asked to present her purse which was kept in a corner of the
Customs counter covered with other pieces of baggage. In the said D
purse, one small tobacco tin marked "Three Nuns" was found.
The tin appeared to be unusually heavy and as such the detenu was
asked again to declare the contents. The declaration was that
the contents were some coins and that the tin was to be deli-
vered to one Torahim in Bombay. Not being satisfied with the
reply, two independent panchas were cllled and in their presence E
and in presence of the detenu and his wife, the tin was opened and
48 slabs of 'Palladium' metal each weighing one ounce were found.
The baggage was then thoroughly examined in the presence of the
detenu and his wife and the panchas. The examination resulted in
recovery of 93 more slabs of 'Palladium' concealed in cheese packets,
and in thermocol. Thus altogether 141 slabs of 'Palladium' valued F
at Rs. 3,54,192.00 were recovered. They were seized by the Cus-
toms Officer.

3. The detenu and his wife were then led to their residential
premises of Flat No. 194, 19th floor, Persepolis Apartment, Cuff G
Parade, Bombay-5, standing in the name of the wife. The premises
were searched under a search warrant. The search resulted in the
recovery of (I) Philips colour T. V. valued at Rs. 18,000 UO; (2) Akai
Video Cassettee Recorder valued at Rs. 24,000; (3) Sharp 3-in-one
Model valued at Rs. 6,000.00 and (4) General Air Conditioner H
valued at Rs. 15,000.00. All these articles were also seized by the
Customs Officer.
1032 SUPREME COURT REPORTS f1982j I S.C.it.
A 4. On the following day, the detenu made a statement which
was recorded under Section I 08 of the Customs Act. The detenu
stated that be had been in Muscat for the last 40 years and had
business of ready-made garments there; and that he was a wealthy
man with two wives named Hasumati and Hemlata (the petitioner),
The two wives were staying in Born bay at Cuff Parade in separate
B apartments. The detenu further stated that two months ago be had
come to Bomba~ where he had come to know from Zaveri Bazar
that smuggling of 'Palladium' was a profitable business. He there-
fore had purchased the 141 slabs of 'Palladium' of one ounce each
for 9000 Omani Riyals from one Pursottam Kanji in Muscat who

c
was a dealer in precious metals. Before leaving Muscat for Bombay,
he had packed the 141 bars of Palladium in the three containers
aforesaid. The detenu also stated that the Sharp 3-in-one had been
presented to him by His Highness Sultanbin Hamed-Al·Said of
-
Muscat in October, 1980, and that the other three articles had been
purchased by him from the Omani Consul General, Mr. Salim
Hakim. The detenu further stated that he took full responsibility
D for the 141 bars of Palladium seized and his wife had nothing to do
with them.

5. Mr. Ram Jethmalani, learned counsel appearing for the
petitioner makes the following submissions before us :

E (I) The deteml asked for legal representation befo; e the
Advisory Board by letter dated July 31, 1981 but it
was arbitrarily rejected on August 3, 1981, thereby
causing serious prejudice to the detenu.

F
(II) After his detention, the detenu asked for six parti-
culars to enable him to make the representation; only
one particular was furnished and five were refused by
-
the authority by its letter dated July 21, 1981 (Ex. A),
thereby depriving the detenu from making a proper
representation.
G (Ill} The Government had framed guidelines in regard to
detention. The authority however did not follow
these guidelines in the case of the petitioner; so the
order of detention was ma/a fide and discriminatory.
H (JV) That the case of the petitioner is peculiarly a case in
which the prosecution was the normal remedy; and
HEMLATA v. MAHARASHTRA (Ba/wrul Islam, J.) 1033

(V) That the cause of detention arose on January 8, 1981
A
in the airport and there was no reason for the unusual
delay in passing the order of detention on June 6,
1981.

6. We now proceed to examine the contentions one by one.
B
(I) Legal representation before the Advisory Board.

Learned counsel for the petitioner has placed before us a
copy of the letter dated July 31, 1981, addresed to the Secretary,
Advisory Board by the detenu's counsel, M.-. G.L. Ajwani.

- Mr. Ajwani referred to an earlier letter dated July 10, 1981, wherein
he had requested, inter alia, for permission to the detenu to be
represented by an advocate before the Advisory Board. The
c

• Secretary of the Advisory Board sent a reply to Mr. Ajwani, who
was informed that in view of Section 8 (e) of the Act, the detenu
"is not entitled to appear before the Advisory Board by any legal
practitioner. The Advisory Board has not permitted a legal practitio- D
ner to appear in any reference made to it under the aforesaid Act
and hence your request cannot be acceded to."

Section 8 (c) reads as follows :-

"For the purposes of sub-clause (a) of clause (4), and E
sub-clause (c) of clause (7), of article 22 of the Constitu·
tion,-

(e) a person against whom an order of detention has been F
made under this Act shall not be entitled to appear by
any legal practitioner in any matter connected with the
reference to the Advisory Board .... "

Section 8 (e) has not barred representation of a detenu by a
lawyer. It only lays down that the detenu cannot claim represen·
G
tation by a lawyer as of right. It has given the Board a discretion
to permit or not to permit representation of the detenu by counsel
according to the necessity in a particular case. Certain cases may
be complicated and assistance of lawyers may be necessary on behalf
of the parties to explain the facts and law involved in the case.
H
In the instant case, the submission is that the rejection of the request
of the detenu's counsel by the Advisory Board on the ground th<1t
1034 SUPREME COURT REPORTS [1982] l S.C.R.

A in the past no legal representation had been allowed on behalf of
any detenu has been based on a misconception of the law. We
are unable to accept the submission of the learned counsel on two
grounds; (i) the Advisory Board whose action is complained of is
not a party before us; and (ii) our decision on the point would be
merely academic. It would be academic because after rejection of
8 the request, the Board reviewed the case of the detenu and gave its
opinion whereupon the Government confirmed the detention.

{II) The second submission of learned counsel was with
regard to non-supply with particulars. Mr. Ajwani
aforesaid sent a letter (Ex. A) dated July I 0, 198 l to
c the Assistant Secretary to the Government, Horne ,..I
Department {Special), Government of Maharashtra.
In that letter he requested the Government to furnish
six 'informations' mentioned in the letter. They were
as follows :-

D {I) The name and designation of the officer on
whose satisfaction the order of detention was
made and relevant authority under the rules of
business, enabling the said officer to pass deten-
tion orders on behalf of the Government.

E (2) The date on which the proposal to detain was
received by the detaining authority.

(3) Whether facts mentioned in Para 3 of the grounds
of detention have been used against the detenu
for making the order of detention.
F
(4) The provision of law under which the import of
Palladium is prohibited. __.

(5) Whether the detaining authority has accepted or
rejected my client's story about the acquisition of
G colour T.V., Akai cassete Video recorder; Air-
conditioner etc. If it bas been rejected, then the
material on the basis of which this decision was
taken, and

u (6) Whether any inquiries, if any, were made from
Oman consulate or from consul General Mr. Salim
Hakim."
liEMLATA v. MAI-IARASHTRA /Baharui Nam, J.) J03S

Learned counsel submits that the 'information' sought under A
item (!) of the letter has been furnished and he has no grievance
about it. But none of the remaining five 'informations' were fur-
nished. The submission of learned counsel is that the Government
is bound to disclose under which provision of law import of Palla-
dium is prohibited; their failure to disclose this 'information' depri-
B
ves the detenu from making a proper representation.

Items 3, 5 and 6 are akin. With regard to item (3), whether
the facts mentioned in para (3) of the grounds of detention were
• used against the detenu for making the order of detention, Shri D.N.

-
I
Capoor, Secretary to the Government of Maharashtra, Home
Department, in his counter affidavit, has stated in paragraph 20 of
the affidavit :
c

" ... I have not passed the order of detention on the
ground that the four items seized from the detenu's house D
were smuggled. I say that I have mentioned the seizure of
the said goods in the grounds of detention as narration of
facts. I say that paras 3 and 4 of the grounds of deten-
tion are the narrations of the fact and the same is not a
ground for detention ... "
E
In our opinion the request of the detenu for the information
whether the detention was inter alia based on the seizures of the
four articles mentioned in para 3 of the list of grounds and the
reply of the authority to the request were irrelevant. When an
order of detention together with the grounds of detention is served
on a detenu, the detenu may ask for particulars on which a ground
F
is based if they are not already there. When a document
containing what are called "grounds" which often consist of the
background of a case, narration of facts and instances of the
detenu's activities, is supplied to the detenu, the detenu is not
entitled to know which part or parts of the 'grounds' was or were
taken into consideration and which not. The Court may not
G
take into consid~ration any reply given by the detaining authority
to such an enquiry; for, the reply may be an afterthought. It will
be for the Court to judge whether the facts narrated constitute a
ground of detention or which facts might possibly enter and
H
influence the detaining authority in coming to its subjective satis-
faction.
fo.36 SUPREME COURt REPORTS [ 1982] 1 s.c.a.

A The information sought as per clause (4) of the letter, namely,
the provision under which the import of Palladium is prohibited is
equally untenable. Whether or not the import of Palladium is
prohibited or not is an information on a question of law and can be
obtained from Statutes, Rules or Notifications. Jn our opinion,
the Government is not under any liability to furnish the detenu with
8 legal information available from legal literature. The liability of
the detaining authority is only to comply with the requirement of
Sub-Article (5) of Article 22 of the Constitution.

Jn this case, it appears from Schedule I, Appendix 2 to the

-
Imports (Control) Order, 1955 (as amended upto March 31, 1980)
c that the articles mentioned against item 71.09 as "Platinum and
other metals of the platinum group, unwrought or semi-manufac-
tured" appearing under Chapter 71 under which are mentioned
'Pearls, precious and semi-precious Stones, precious Metals, Rolled
Precious Metals, and Articles thereof; Imitation Jewellery, Coin.'
In the counter affidavit the detaining authority has stated that
D Palladium is a precious metal belonging to the platinum group.
The submission of learned counsel is that the detenu even did not
know whether Palladium was a precious metal belonging to
the Platinum group and the Government's failure to
furnish him with that 'information' prevented him from filing a
proper representation. We are unable to accept this submission,
E inasmuch as the pela is not permissible on the ground of public,
policy for, any detenu may plead that he does not know whether gold
or silver is a precious metal. Be that as it may, the detenu
stated in his statement that he had purchased the palladium from
the shop of a dealer in precious metal at Muscat and that he had
smuggled that metal to make profits. Though palladium may not
F be a prohibited article it is admittedly a dutiable article and it was
a1mittedly smuggled by the detenu.

(V) Delay
r
The sub111ission of learned counsel is that the dctenu was
G arrested on January 9, 1981 but was detained on July 6, 1981. The
submission is that this delay was fatal. In support of his conten-
tion, learned counsel for the petitioner cited before us three deci·
sions of this Court reported in A.LR. 1974 S.C. 1264, A.LR. 1974
S.C. 2066 and A.LR. 1975 S.C. 1408. In A.LR. 1974 S.C. 1264,
H
this Court held that in passing a detention order, the authorities
concerned must have due regard to the object with which the order
HBMLATA v. MAHARASHTRA (Ba/zarnl Islam, J.) 1037

was passed. If the object was to prevent disruption of supplies of A
foodgrains prompt action should be taken. In the absence of any
explanation regarding the delay, the order of detention, passed with
a view to prevent disruption of supplies of foodgrains on the grounds
based on incidents of removal of rice which took place about seven
months earlier, was invalid. In A.LR. I 974 S.C. 2066 (supra),
there was inordinate delay and no proximity in point of time bet- B
ween the alleged prejudicial activity of the petitioner and the order
of detention. The Court found that a period of nine months had
elapsed between the incident and the order of detention; and as the
delay of nine months in the making of the order for detention after

- the alleged incident had not been explained, order of detention
was held to be invalid. Delay ipso facto in passing an order of
detention after an incident is not fatal to the detention of a person,
c
for, in certain cases delay may be unavoidable and reasonable.
What is required by law is that the delay must be satisfactorily
examined by the detaining authority.

Tn the case in hand in the counter affidavit filed on behal1 of
D
the detaining authority, it has been stated in paragraph 16 as
follows:-

" ··the detenu was arrested on 9th January, 1981
and was detained on 6th July, 1981. Thereafter the
E
Customs Authorities carried on further investigation and as
can be seen from the list of the statements and documents
annexed to the grounds of detention, 11 statements of the
detenu including the statement dated 7th April, 1981 were
recorded by the Customs Authorities ..... I therefore say
that there is no delay in passing the order of detention as
F
alleged by the petitioner ... the present order of detention
h1s been issued after completing the investigation."

From the foot of the document containing the grounds of
detention, it appears that the eleven statements of the detenu and
his wife were recorded on various dates betw :en January 9, 1981
G
and April 7, 1981.

7. The submission of learned counsel is that his grievance is
not so much on the time lag or delay between the date of arrest and
the date of detention; his real grievance is in not furnishing with the H
information as to the cause of the delay so as to enable the detenu
to file a proper represent~tion before tl\e A,dvisory Board for its
1038 SUPREME COURT REPORTS (19~2J 1 S.C.R,

A consideration. In our opinion, the submission is untenable. The
detaining authority is in no legal liability to tell or satisfy the detenu
as the causes of delay; it is under an obligation to satisfy the court
as to the causes of delay to show that there was no infraction of the
constitutional provisions laid down under Sub-Article (5) of Article
22 of the Constitution. In our opinion, the delay has been satisfac-
B torily explained by the authority in its affidavit and it has not
vitiated the detention.

8. (IV) PROSECUTION

The next point urged by Mr. Ram Jethmalani is that in the
c instant case, the proper course for the Government was to prosecute
and convict the detenu for the offence, if any, for violation of the
provisions of the Customs Act. In support of his contention he
-
cites a decision of this Court reported in [ 1980] ; S.C.R. 54. In that
decision, the Court after reviewing a number of cases summarised
the law as follows :-
D
"The ordinary criminal process is not to be circum-
vented or shortcircuited by ready resort to preventive
detention. But, the possibility of launching a criminal
prosecution is not an absolute bar to an order of preventive
detention. Nor is it correct to say that if such possibility is
E not present to the mind of the detaining authority the
order of detention is necessarily bad. However, the failure
of the detaining authority to consider the possibility -·
of launching a criminal prosecution may, in the
circumstances of a case, lead to the conclusion that the
detaining authority had not applied its mind to the vital
F question whether ii was necessary to make an order of pre-
ventive detention. Where an express allegation is made that
the order of detention was issued in a mechanical fashion
without keeping present to its mind the question whether
it was necessary to make such an order when an ordinary
crin1inal prosecution could well serve the purpose, the
G detaining authority must satisfy the Court that the ques.
tion too was borne in mind before the order of detention
was made. If the detaining authority fails to satisfy the
Court that the detaining authority so bore the question in
mind the Court would be justified in drawing the inference
H that there was no application of the mind by the detaining
authority to the vital question whether it was necessary to
preventively detain the detenu."
HEMLATA v. MAHARASHTRA (Bahmu/ [.1/am, J.) 1039

9. The rule laid down is that a prosecution or the absence of A
it is not an absolute bar to an order of preventive detention; the
authority may prosecute the offender for an isolated act or acts of an
offence for violation of any criminal law, but if it is satisfied that the
offender has a tendency to go on violating such Jaws, then there will
be no bar for the State to detain him under a Preventive Detention
Act in order to disable him to repeat such offences. What is required 8
is that the detaining authority is to satisfy the Court that it had in
mind the question whether prosecution of the offender was possible
and sufficient in the circumstances of the case. In some cases of
• prosecution it may not be possible to bring home the culprit to

- book as in case of a professional bully, a murderer or a dacoit, as
witnesses do not come forward to de;iose against him out of fear,
or in case of international smuggling, it may not be possible to
c
collect all necessary evidence without unreasonable delay and
expenditure to prove the guilt of the offender beyond reasonable
doubt.
D
10. In the instant case it has been submitted by Mr. Jeth-
malani that on the facts of this case, the prosecution under the ordi-
nary law would have been sufficient; resort to preventive detention
on the face of it was manifestly unreasonable. In the counter affi-
davit it has been stated by the detaining authority that it was aware E
that the detenu was being prosecuted under the ordinary law; but
it was satisfied that the prosecution under the ordinary law was not
sufficient for preventing the detenu fro:n indulging in similar activi-
ties in future. This statement of the authority ·satisfies the require-
ment of the rule laid down by this Court in (1980] 1 S.C.R. 54
(supra). F

I I. (III) The last submission of learned counsel was that the
detention was ma/a fide and discriminatory. The submission was
that it was opposed to the guidelines laid down J'1d publicised bv the
Government; under the said guidelines, it was submitted, dete~tion
was not ordered except when the activities of the person concerned G
were a part of an organised crime involving conspiracy and continu-
ed activities; the guidelines did not permit or envisage detention for
isolated act of contravention of the Customs Law. In reply it has
been stated in the counter affidavit that the detaining authority was
aware that the detenu came to the advers~ notice of the Customs
Authorities for the first time jn the smug~lin~ incident d11ted 8th/
1040 SUPREME COURT REPORTS [1982] I S.C.R.

A 9th January. 1981; that the activities of the detenu on the basis of
which prognosis was made was reasonably suggestive of a repetitive
tendency or inclination on the part of the detenu to act likewise in
future; that the order of detention was essentially a precautionary
measure and was based on the reasonable prognosis of the future
behaviour of a person ba;ed on his past conduct judged in the light
B of the surrounding circumstances. It has further been stated : "Such
past conduct may consist of one single act or of a series of acts. I say
that large quantum of Palladium metal brought, the nature in which
it was concealed coupled with the detenu's conduct in not disclosing
the fact when questioned by the customs authorities clearly demons-

c trate potentiality for continued criminality and indicate previous
practice, experiment and expertise. In the given case even the first
act of this kind can be termed to be the beginning of continuing
-
criminal activity. I say in the present case the nature of the act and
its magnitude clearly justify an inference that if the detenu was not
detained he is likely to indulge in commission of such acts in future.
D I say that the detenu admitted in his statement dated January 9, 1981
that he wanted to smuggle the goods under seizure as he wanted to
sell the same in Bombay market and earn profit.

12. The past conduct or antecedent history ofa person can
E appropriately be taken into account in making a detention order. It
is indeed largely from prior events showing tendencies or inclinations
of a person that an inference can be drawn whether he is likely in
the future to act in a manner prejudicial to the maintenance of
supplies and services essential to the community or his act of viola-
tior of foreign exchange regulations and his smuggling activities are
F likely to have deleterious effect on the national economy.

13. With regard to the confidential guidelines, the averment
of the detaining authority in the counter affidavit is that the guide-
+
lines given by the Government were secret and confidential instruc-
tions which had no binding force; but yet they were taken into
consideration while passing the order of detention.
G
The guidelines were necessarily of a confidential nature and
were intended to guide the Customs or Intelligence Officers as to
how to act and what to do .in the detection and apprehension of
smugglers. They do not have any force of law; and there cannot be
any valid complaint of discrimination, if any, in arresting and bring-
HEMLATA v. MAHARASHTRA (Baharul Islam J.) 1041

ing to book a particular offender under the Customs Act or under A
any Preventive Detention Law.

14, With regard to the inquiry of the detenu as to whether the
facts narrated in paragrah 3 in the document containing the grounds
of detention were taken into consideration, it may be said with justi- B
fication that although paragraph 3 may not constitute an indepen-
dent ground of detention, there cannot be any objection if this fact
possibly entered into the subjective satisfaction of the detaining
authority before passing the order of detention. The detaining autho-
rity had of necessity to take into account all the relevant materials
placed before it and after due consideration thereof might justifiably
come to the conclusion that the activities of a particular person were
c
such that he had a tendency to repeat his illegal activities. In the
case in hand, the detenu himself admitted in his confession that he
has his home in Bombay and business in Muscat. His passport
disclosed that he was frequently shuttling between Muscat and India. D
Admittedly he smuggled the palladium in question in order to make
profit by selling it to customers in India. The detaining authority
would be within its jurisdiction to take into consideration all these
facts and subjectively come to a satisfaction whether or not the
offender may be repeating his activities.

15. It is needless to say that the High Court under Article 226 E
of the Constitution and the Supreme Court either under Article 32
or under Article 136 of the Constitution do not. sit on appeal on
the orders of preventive detention. The normal law is that when an
isolated offence or isolated offences is or are committed the offen-
der is to be prosecuted. But, if t ere be a law of preven;ive deten-
tion empowering the authonty to detain a particular offender in F
order to disable him to repeat his offences, it can do so, but it will
be obligat?ry on the .p.art of the detaining authority to formally
comply with the prov1S1ons of Sub-Article (5) of Article 22 of the
Constitution of India. The High Court under Artcle 226 and the
Su?~eme Court .under Article 32 has to see whether the formalities
en101ned
. by. Article 22(5) have been complied with by ti1e d ea1n-
t · G
rng authonty. If the formalities have been complied with, the Court
cannot. examme the materials before it and find that the detaining
· Is beLore
authority. should not have been ·satisfied on th e mat eria c ·
1t
and ~etamed th~ detenu under the Preventive Detention Act for
that IS the function of an appellate Court. ' ' H
1042 SUPREME COURT REMRtS (19821 I s.c.a.
A 16. In the instant case, we are not satisfied that the detaining
authority has violated either the relevant provisions of the Constitu-
tion or any of the provisions of the Act. This petition has no merit
and is rejected.

P.B.R. Petition dis1nisscd.