Kerala High Court
Waheeda Ashraf vs The Union Of India on 8 April, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943
WP(Crl.).No.255 OF 2020
PETITIONER:
WAHEEDA ASHRAF
AGED 48 YEARS, W/O. ASHARF COT,
NASEEB HOUSE, SS ROAD, THALASSERY, KANNUR-670 104
BY ADVS.
SRI.P.A.AUGUSTIAN
SMT.SWATHY E.S.
RESPONDENTS:
1 THE UNION OF INDIA,
REPRESENTED BY DIRECTOR GENERAL,
CENTRAL ECONOMIC INTELLIGENCE BUREAU,
6TH FLOOR, 'B' WING, JANPATH BHAWAN,
JANPATH NEW DELHI-110 001.
2 STATE OF KERALA
REPRESENTED BY PRINCIPAL SECRETARY,
HOME (SSA) DEPARTMENT, THIRUVANANTHAPURAM-695 001
3 THE SUPERINTENDENT, CENTRAL PRISON, THIRUVANANTHAPURAM
4 SENIOR INTELLIGENCE OFFICER,
DIRECTORATE OF REVENUE INTELLIGENCE,
COCHIN ZONAL UNIT, PALARIVATTOM, COCHIN-682 025
R1 BY ADV. SRI.N.S.DAYA SINDHU SHREE HARI
R2-3 BY ADDL.DIRECTOR GENERAL OF PROSECUTION
R2-3 BY GOVERNMENT PLEADER
R4 BY SHRI.S.MANU, CGC, DIRECTORATE OF REVENUE INTELLIGENCE KERALA
REGIONAL UNIT
OTHER PRESENT:
GP K A ANAS
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 25-03-2021, ALONG WITH
WP(Crl.).279 & 280/2020, THE COURT ON 08-04-2021 DELIVERED THE FOLLOWING:
W.P.(Crl)Nos.255, 279 & 280/2020 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943
WP(Crl.).No.279 OF 2020
PETITIONER:
SA ADUDHEEN N.K., A.K.A. SAHADUDHEEN,
S/O. USSAIN N.K., KUDILATTUMMAL HOUSE, THOTTUMOOLA,
AVILORA P.O., KOZHIKODE DISTRICT,PIN-673 572
BY ADVS.
SHRI.M.AJAY
SRI.V.P.PRASAD
RESPONDENTS:
1 THE UNION OF INDIA
( REPRESENTED BY ITS SPECIAL SECRETARY AND DIRECTOR GENERAL
CENTRAL ECONOMIC INTELLIGENCE BUREAU), MINISTRY OF FINANCE,
DEPARTMENT OF REVENUE, 5TH FLOOR, 'B' WING, JANPATH BHAVAN,
JANPATH, NEW DELHI,PIN-110 001
2 THE JOINT SECRETARY (COFEPOSA),
GOVERNMENT OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF
REVENUE, CENTRAL ECONOMIC INTELLIGENCE BUREAU, MINISTRY OF
FINANCE, DEPARTMENT OF REVENUE, 5TH FLOOR, 'B' WING,
JANPATH BHAVAN, JANPATH, NEW DELHI,PIN-110 001
3 THE DIRECTORATE OF REVENUE INTELLIGENCE,
(REPRESENTED HEREIN BY ITS PRINCIPAL ADDITIONAL DIRECTOR
GENERAL) ZONAL UNIT, 32/641A, VYLOPPILLI ROAD, ST.THOMAS LANE,
PALLINADA, PALARIVATTOM, KOCHI,PIN-682 025.
4 THE COFEPOSA ADVISORY BOARD, HIGH COURT OF KERALA,
(REPRESENTED BY THE SECRETARY, (COFEPOSA), REGISTRAR
(JUDICIAL), HIGH COURT BUILDINGS, ERNAKULAM,PIN-682 031
5 THE SUPERINTENDENT, CENTRAL PRISON AND CORRECTIONAL HOME,
POOJAPPURA, THIRUVANANTHAPURAM,PIN-695 012
6 THE STATE POLICE CHIEF AND DIRECTOR OF POLICE,
POLICE HEADQUARTERS, VAZHUTHACAUD,
THIRUVANANTHAPURAM,PIN-695 014
7 THE DISTRICT POLICE CHIEF, KOZHIKODE (RURAL), DPC OFFICE,
VADAKARA, KOZHIKODE DISTRICT, PIN-673 101
W.P.(Crl)Nos.255, 279 & 280/2020 3
R1-2 BY SRI.JAISHANKAR V.NAIR, CGC
R3-4 BY SHRI.S.MANU, CGC, DIRECTORATE OF REVENUE INTELLIGENCE
KERALA REGIONAL UNIT
R5-7 BY ADDL.DIRECTOR GENERAL OF PROSECUTION
OTHER PRESENT:
GP K A ANAS
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 25-03-2021,
ALONG WITH WP(Crl.).255 & 280/2020, THE COURT ON 08-04-2021 DELIVERED THE
FOLLOWING:
W.P.(Crl)Nos.255, 279 & 280/2020 4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 08TH DAY OF APRIL 2021 / 18TH CHAITHRA, 1943
WP(Crl.).No.280 OF 2020
PETITIONER:
SA ADUDHEEN N.K., A.K.A SAHADUDHEEN
S/O. USSAIN N.K, KUDILATTUMMAL HOUSE, THOTTUMALA,
AVILORA P.O, KOZHIKODE DISTRICT, PIN-673572
BY ADVS. SHRI.M.AJAY
SRI.V.P.PRASAD
RESPONDENTS:
1 THE UNION OF INDIA, (REPRESENTED BY ITS SPECIAL SECRETARY AND
DIRECTOR GENERAL, CENTRAL ECONOMIC INTELLIGENCE BUREAU),
MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, 5TH FLOOR, B WING,
JANPATH BHAVAN, JANPATH, NEW DELHI, PIN-110 001
2 THE JOINT SECRETARY (COFEPOSA), GOVERNMENT OF INDIA, MINISTRY
OF FINANCE, DEPARTMENT OF REVENUE, CENTRAL ECONOMIC
INTELLIGENCE BUREAU, 5TH FLOOR,B WING, JANPATH BHAVAN,
NEW DELHI, PIN-110 001
3 THE DIRECTORATE OF REVENUE INTELLIGENCE,
(REPRESENTED HEREIN BY ITS PRINCIPAL ADDITIONAL DIRECTOR
GENERAL), ZONAL UNIT, 32/621A VYLOPPILLI ROAD, ST. THOMAS LANE,
PALLINADA, PALARIVATTOM, KOCHI, PIN-682 025.
4 THE COFEPOSA ADVISORY BOARD, HIGH COURT OF KERALA,
(REPRESENTEDBY THE SECRETARY, (COFEPOSA), REGISTRAR
(JUDICIAL), HIGH COURT BUILDINGS, ERNAKULAM, PIN-682 031.
5 THE SUPERINTENDENT, CENTRAL PRISON AND CORRECTIONAL HOME,
POOJAPPURA, THIRUVANANTHAPURAM, PIN-695 012.
6 THE STATE POLICE CHIEF AND DIRECTOR GENERAL OF POLICE, POLICE
HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM, PIN-695 014
7 THE DISTRICT POLICE CHIEF, KOZHIKODE (RURAL), DPC OFFICE,
VADAKARA, KOZHIKODE DISTRICT, PIN-673 101
R1-2 BY SRI.SUVIN R.MENON, CGC
R3-4 BY SHRI.S.MANU, CGC, DRI, KERALA REGIONAL UNIT
R5-7 BY ADDL.DIRECTOR GENERAL OF PROSECUTION
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 25-03-2021,
ALONG WITH WP(Crl.).255 & 279 /2020, THE COURT ON 08-04-2021 DELIVERED THE
FOLLOWING:
W.P.(Crl)Nos.255, 279 & 280/2020 5
(C.R.)
JUDGMENT
A.K.Jayasankaran Nambiar & Gopinath.P., JJ
"I do not doubt the right of Parliament and of the executive to place
restrictions upon a man's freedom. I fully agree that the fundamental
rights conferred by the Constitution are not absolute. They are limited. In
some cases the limitations are imposed by the Constitution itself. In others,
Parliament has been given the power to impose further restrictions and in
doing so to confer authority on the executive to carry its purpose into effect.
But in every case it is the rights which are fundamental, not the limitations;
and it is the duty of this Court and of all courts in the land to guard and
defend these rights jealously. It is our duty and privilege to see that rights
which were intended to be fundamental are kept fundamental and to see
that neither Parliament nor the executive exceed the bounds within which
they are confined by the Constitution when given the power to impose a
restricted set of fetters on these freedoms; and in the case of the executive,
to see further that it does not travel beyond the powers conferred by
Parliament. We are here to preserve intact for the peoples of India the
freedoms which have now been guaranteed to them and which they have
learned through the years to cherish, to the very fullest extent of the
guarantee, and to ensure that they are not whittled away or brought to
nought either by Parliamentary legislation or by executive action."
Vivian Bose. J. in Ram Singh v. State of Delhi1
We are in these writ petitions concerned with the personal liberty of
detenues under the COFEPOSA Act. Their relatives have come forth with these
petitions seeking their immediate release through the issuance of a writ of
Habeas Corpus. Inasmuch as the learned counsel for the petitioners as well as
the respondents advanced lengthy arguments before us, we have thought it
apposite to first draw out the contours, and explain the nature, of the
1AIR 1951 SC 270
jurisdiction that we exercise in such matters, before proceeding to examine the
facts of the individual cases.
The concept of Liberty:
2. The English philosopher John Stuart Mill considered a society in
which liberties were not respected as one that, irrespective of the form of its
governance, was never free. For him a free society was one where liberty existed
as an absolute and unqualified concept. Liberty comprised essentially of three
components viz. (i) liberty of thought and expression - the freedom to express
your ideas and beliefs; (ii) liberty of tastes and pursuits - the freedom to do
what one wants without any obstruction from fellow citizens so long as it did not
harm them and (iii) liberty of combination of individuals - the freedom to unite
for any purpose not involving harm to others. The worth of a State lay in the
worth of the individuals composing it and accordingly, a free State was one
where the collective liberties of its citizens were duly recognised and respected.
Liberty under our Constitution:
3. Our Constitution recognises the concept of Liberty - of thought,
expression, belief, faith and worship. This is borne out in its Preamble. In order
to understand the true sense in which the concept of liberty was perceived by
the framers of our Constitution, we have to first understand the nature of the
Constitution itself. As observed by Granville Austin 2, "The Indian Constitution
2Granville Austin, The Indian Constitution; Cornerstone of a Nation
is first and foremost a social document for majority of its provisions are either
directly aimed at furthering the goals of the social revolution or attempt to
foster this revolution by establishing the conditions necessary for its
achievement. The core of the commitment to social revolution lies in Parts III
and IV, in the fundamental rights and in the Directive Principles of State
Policy. Together, they constitute the Conscience of the Constitution. The
provisions of Part III and IV have their roots deep in the struggle for
independence and they were included in the Constitution in the hope that one
day the tree of true liberty would bloom in India."
4. Under our Constitution, therefore, personal liberty in its fullest
sense is sought to be achieved through the guarantee of the fundamental
freedoms in Part III. This was designed to fulfill the aspiration of the Indian
people to enjoy the same extent of personal freedom in India, as were enjoyed
by their colonial masters in England. More importantly, the thrust of the
protection of fundamental rights is in respect of each individual so as to bring
about an egalitarian society where all citizens were equally free. Liberty is
therefore no longer the sole preserve of a select few in society. The guarantee
against violation of fundamental rights is achieved not only through negative
obligations imposed on the State, not to interfere with the liberties of citizens,
but also through the positive obligation imposed on the State to protect the
citizens rights from encroachment by society.
Preventive Detention - a jurisdiction of suspicion:
5. Art. 21 of our Constitution states that no person shall be deprived of
his life or personal liberty except according to procedure established by law. As
an express limitation on legislative power, the Article envisages that the word
"law" contained therein has the same meaning as the American phrase "due
process of law", meaning thereby a law which hears before it condemns, which
proceeds upon inquiry and renders judgment only after trial. Art.22 of our
Constitution, however, carves out an exception in the case of preventive
detention by making it clear that the procedural safeguards against arbitrary
arrest and detention, that are ordinarily available to persons in our country, are
not applicable to any person who is arrested or detained under any law
providing for preventive detention. The latter, it must be noted, deprives a
person of his liberty consequent to proceedings where there is no charge
formulated, offense proved, or criminal conviction warranted by legal evidence.
It is a jurisdiction of suspicion and is justified on the argument that preventive
justice requires action to be taken to prevent apprehended objectionable
activities. Notwithstanding the disgruntlement of our people with similar laws
under colonial rule, the decision to retain a provision for preventive detention
was a deliberate one taken by the makers of our constitution. It therefore comes
as no surprise that, notwithstanding that the concept of preventive detention
runs counter to the principle of protection against arbitrary arrest and detention
guaranteed in most democratic republics governed by the rule of law, and
recognised by the United Nations under Art.9 of the International Convention
on Civil and Political Rights to which India is a signatory, the Indian
Government entered a reservation to Art.9 of the ICCPR by making it clear that
it takes the position that the provisions of the Article shall be so applied as to be
in consonance with the provisions of clauses (3) to (7) of Art.22 of the
Constitution of India3.
6. Our constitution, while conceding the power of preventive
detention, has nevertheless, through clauses (4) to (7) of Art.22, provided
procedural safeguards with a view to protecting the citizen against arbitrary and
unjustified invasion of personal liberty, and our courts have zealously tried to
uphold and enforce these safeguards4. Consequently, if the detaining authority
wants to preventively detain a smuggler, it can certainly do so, but only in
accordance with the provisions of the constitution and the law, and if there is a
breach of any such provision, the rule of law requires that the detenu must be
set at liberty, however wicked or mischievous he may be. It is therefore that
when an application for a writ of Habeas corpus is filed before us, we feel duty
bound to satisfy ourselves that all the safeguards provided by the law have been
scrupulously observed, and the citizen is not deprived of his personal liberty
3Derek P Jinks, 'The Anatomy of an Institutionalised Emergency: Preventive Detention and Personal
Liberty in India' - (2001) 22 Michigan Journal of International Law 311, 27
4Smt. Icchu Devi Choraria v UOI & Ors - 1980 (4) SCC 531; UOI v Yumnam Anand M - 2007 (10) SCC
190; Kamleshkumar Ishwardas Patel v UOI -1995 (4) SCC 51
otherwise than in accordance with law. While considering such applications, our
courts do not follow strict rules of pleading, and often relax the rigour of the
evidentiary rules governing burden of proof. The detaining authority, on the
other hand, is called upon to place all materials before the court to show that the
detention is legal and in conformity with the mandatory provisions of the law
authorizing such detention.
Preventive Detention - Procedural Safeguards:
7. Art.22 (4) of our constitution mandates that no law providing for
preventive detention shall authorise the detention of a person for a longer
period than three months unless an Advisory Board constituted in accordance
with the said provision has reported its opinion as regards sufficient cause for
such detention not exceeding the maximum period prescribed under the
relevant statute, or the statute concerned expressly provides for a prolonged
detention without obtaining the opinion of the Advisory Board.
Grounds, and communication thereof:
8. Art.22 (5) states that when a person is detained in pursuance of a
detention order, the detaining authority shall, as soon as may be, communicate
to such person the grounds, save such facts which the authority considers to be
against public interest to disclose, on which the order has been made and shall
afford him the earliest opportunity of making a representation against the
order. S.3 (3) of the COFEPOSA Act fixes the outer time limit for
communicating the grounds of detention as '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'. Thus, the immediate serving of
the grounds of detention and the affording of an opportunity to make a
representation against the order of detention are the barest minimum
safeguards which must be observed before an executive authority can be
permitted to preventively detain a person and 'thereby drown his right of
personal liberty in the name of public good and social security'5.
9. For an effective communication of the grounds of detention to the
detenu, they must be furnished in their entirety. If there are any documents,
statements or other materials relied upon in the grounds of detention, they
must also be communicated to the detenu, because being incorporated in the
grounds of detention, they form part of the grounds, and the grounds furnished
to the detenu cannot be said to be complete without them. It has to be borne in
mind that the primary object of communicating the grounds of detention to the
detenu is to enable the detenu, at the earliest opportunity, to make a
representation against his detention, and he cannot make an effective
representation unless he is also furnished copies of the documents, statements
and other materials relied upon in the grounds of detention. The right to be
5 State of Bombay v Atma Ram Vaidya - AIR 1951 SC 157; Khudiram Das v State of West Bengal - AIR
1975 SC 550
supplied copies of the documents, statements and other materials relied upon in
the grounds of detention, without any delay, flows directly as a necessary
corollary from the right conferred on the detenu to be afforded the earliest
opportunity of making a representation against the detention, because unless
the former right is available, the latter cannot be meaningfully exercised. If the
grounds of detention, as above, were not furnished to the detenu within the time
permitted under the law, the continued detention of the detenu would be illegal
and void.6
10. We believe in this connection that the reference to 'grounds of
detention' in Art.22 (5) of our constitution, as well as in S.3 of the COFEPOSA
Act, must be taken as alluding to the train of thought in the detaining authority,
leading from a consideration of the offensive acts/omissions attributed to the
detenu, to the formation of the opinion that the detenue ought to be detained in
order to prevent the commission of prejudicial acts in future. An effective
communication of the grounds for detention must therefore include a
communication of the reasons that weighed with the detaining authority for
forming such an opinion based on the material scrutinized by him. The said
requirement can be deduced from the decision of the nine judge bench of the
Supreme Court in Amratlal Prajivandas7 that held, while interpreting the
6 Smt. Icchu Devi Choraria v UOI & Ors - 1980 (4) SCC 531; Ramachandra A Kamat v UOI & Ors - 1980
(2) SCC 270
7. Attorney General for India v Amratlal Prajivandas - 1994 (5) SCC 54
provisions of S.5A of the COFEPOSA Act, that though ordinarily one act may
not be held sufficient to sustain an order of detention, one act may sustain an
order of detention if the act is of such a nature as to indicate that it is an
organized act or manifestation of organized activity. The gravity and nature of
the act is also relevant and the test is whether the act is such that it gives rise to
an inference that the person would continue to indulge in similar prejudicial
activity. That inference by the detaining authority can be arrived at only after an
application of mind as to the nature of the act, which exercise must be apparent
from the reasons furnished by him for his decision.
Subjective satisfaction of the detaining authority:
11. The detaining authority cannot merely state that he is satisfied that
the person is required to be detained; he must go further and state the reasons
why he came to be so satisfied on the basis of the material available and
scrutinized by him. The supply of reasons is what clothes his 'subjective
satisfaction' with the legitimacy that is required of action designed to deprive a
person of his/her fundamental right to personal liberty. In its absence, the
detenu does not get an effective right of representation against the detention, or
an opportunity to show that there were no valid reasons to support the same. It
is by now well settled that the subjective satisfaction that informs the decision of
the detaining authority is amenable to judicial review in an application for
habeas corpus. While the statute may express the confidence of the legislature
in an authority entrusted with the power to detain a citizen, the principles
integral to the rule of law that inform the exercise of judicial review recognise
that the subjective satisfaction of the detaining authority cannot be absolute.
Accordingly, if it were found that the order of the detaining authority is not
based on any relevant material, or does not contain any reason for his decision,
this court would step in to free the detenu from the shackles of an illegal
detention. This is not to say that the court would substitute its opinion for that
of the detaining authority or objectively assess the material considered by the
said authority. The court would only ascertain as to whether any relevant
material existed, on the basis of which the detaining authority could have
arrived at his subjective satisfaction through a proper application of mind to the
said material. A reviewing authority can satisfy itself of the application of mind
by the detaining authority only by looking at the reasons furnished for the
detention by the said authority.
Unexplained delay vitiates detention:
12. The procedural safeguards envisaged for the detenu also mandate
that the communication of the grounds of detention, as also the consideration of
the representation of the detenu against the order of detention, have to be
within the time prescribed by the statute. An unexplained delay at any stage,
commencing from the passing of the detention order to its execution and
thereafter, during the stages of making of the representation by the detenu and
a consideration of the same by the detaining authority, sponsoring authority
and the advisory board, will vitiate the detention order and entitle the detenu to
an immediate release from detention. If the delay is caused on account of any
indifference or lapse in considering the representation such delay will adversely
affect further detention of the prisoner. It is therefore for the authority
concerned to explain the delay, if any, in disposing the representation. In that
process, it is not enough to say that the delay was very short as the test is not the
duration or range of delay, but how it is explained by the authority concerned. 8
A delay in executing the detention order may also vitiate the detention since an
unexplained delay leads the court to infer that there was no subjective
satisfaction arrived at by the detaining authority as regards the need to detain
the detenu. However, merely because the execution of the order of detention is
delayed, the proposed detenu cannot take advantage of the passage of time and
claim that the 'live and proximate link' has snapped, especially when it is found
that the delay was on account of his recalcitrant conduct in evading arrest 9.
Manner of consideration of representation:
8 K.M.Abdullah Kunhi and B.L.Abdul Khader v UOI - 1991 (1) SCC 476; Rajammal v State of Tamil
Nadu - 1999 (1) SCC 417; Rattan Singh & Anr v State of Punjab & Ors - 1981 (4) SCC 481; Vijay Kumar v
State of J&K & Ors - 1982 (2) SCC 43; Youssef Abbas v UOI - 1982 (2) SCC 380; Prabhakar Shankar
Dhuri v SH.S.G.Pradhan & Ors - 1971(3) SCC 896; Abdul Nasar Ismail v State of Maharashtra - 2013
(4) SCC 435
9Saeed Zakir Hussain Malik v State of Maharashtra & Ors - 2012 (8) SCC 233; Subhash Popatlal Dave v
UOI & Ors - 2014 (1) SCC 280
13. The constitutional right to make a representation under Art.22 (5),
by necessary implication, guarantees the constitutional right to a proper
consideration of the representation. As regards the manner in which such
representations are to be considered by the various authorities it has been
clarified that the detaining authority, the appropriate government as well as the
advisory board have to independently consider the representation of the detenu.
The obligation of the government to consider the representation is different
from the obligation of the board to consider the representation at the time of
hearing the references. The government considers the representation to
ascertain essentially whether the order is in conformity with the power under
the law. The board, on the other hand, considers the representation and the case
of the detenu to examine whether there is sufficient cause for the detention. In
that sense, the consideration by the board is an additional safeguard and not a
substitute for consideration of the representation by the Government. 10
14. Bearing in mind the aforesaid principles, we proceed to examine
the facts in the individual cases before us. The fate of the detenues, and their
claim for restoration of their personal liberty, will depend upon our findings on
the following issues viz.
(i) Whether there was a significant lapse of time between the last
prejudicial act of the detenu and the order of detention passed in
10K.M.Abdullah Kunhi and B.L.Abdul Khader v UOI - 1991 (1) SCC 476; Ankit Ashok Jalan v UOI & Ors
- 2020 (16) SCC 127
relation to him? An unexplained delay in passing the order of
detention would cast doubts on the genuineness of the subjective
satisfaction of the detaining authority that informed the order of
detention.
(ii) Whether there was any significant and unexplained delay in the
execution of the detention order through an arrest of the detenu? An
unexplained delay would suggest that the detaining authority was not
serious in implementing the detention order and consequently, that
there was no perceived need to detain the detenu.
(iii) Whether the grounds of detention were served on the detenu within
the time permitted under Art. 22(5) of our Constitution read with the
provisions of the COFEPOSA Act?
(iv) Whether the communication of the grounds of detention, in terms of
Art.22 (5) of our Constitution, was complete in all respects and
included copies of all material relied upon by the detaining authority
while passing the detention order?
(v) Whether the communication of the grounds of detention were
sufficient to enable the detenu to submit his representation against the
detention before the detaining authority, appropriate government and
the advisory board?
(vi) Whether the representation of the detenu was considered
expeditiously and without delay by the authorities concerned? Any
unexplained delay in consideration of the representation would vitiate
the detention order itself and entitle the detenu to an immediate
release from custody.
(vii) Whether the subjective satisfaction of the detaining authority, as
regards the need for detention, was based on relevant material and
contained reasons that would demonstrate an application of mind by
the said authority?
15. W.P (Crl) No.255 of 2020 arises out of an order of detention issued
on 31-03-2017 having regard to certain incidents relating to smuggling of
cigarettes while W.P (Crl) Nos.279 & 280 of 2020 are connected, and relate to
orders of detention issued against two individuals who are brothers, on
18-07-2019 in relation to certain incidents of smuggling of gold. Since several of
the legal issues raised are common to all three cases, we deem it appropriate to
dispose these cases by this common judgment.
16. We have heard the submissions of Sri. P.A. Augustian the learned
counsel for the petitioner in W.P (Crl) No.255 of 2020, Sri. M.Ajay, the learned
counsel for the petitioner in W.P (Crl) Nos.279 & 280 of 2020, Sri.Jaishankar
V. Nair, Sri.Suvesh.R.Menon, Sri Daya Sindhu Sreehari, learned Central
Government Counsel for the Union of India, Sri. K.A. Anas, learned
Government Pleader appearing for the State of Kerala and Sri. S. Manu, the
learned counsel appearing for the Directorate of Revenue Intelligence
(hereinafter referred to as 'the DRI').
17. The basic facts & the submissions of the learned counsel for the
parties in each of the Writ Petitions, the contentions raised, the precedents
relied upon and our findings on each of the contentions are as follows:
W.P.(Crl.) 255 of 2020:
18. The petitioner is the mother of one Mohammed Mahasin who has
been detained pursuant to Ext.P1 order of detention issued by the 2 nd
respondent on 31-03-2017. Though the detention order was issued on 31-03-
2017, the aforesaid Mohammed Mahasin (hereinafter referred to as 'detenue')
was arrested and detained under that order only on 12/13-07-2020. On 15-02-
2016 the detenue was apprehended at Bangalore with about 45 cartons of
imported cigarettes having a market value of Rs.40,50,000/- and an
international price/value of Rs.19,44,000/-. The statement recorded from the
detenue at that time revealed that the said consignment of cigarettes had been
imported through Cochin Port after concealing the same in a consignment of
gypsum powder. The detenue was granted bail on 16-02-2016, which came to be
cancelled on 19-02-2016 on account of non-compliance of bail conditions. On
being further remanded, the detenue remained in custody till 01-06-2016, on
which date he was again granted bail by the competent Court. About 6 months
later, 06-09-2016 the officers of the Directorate of Revenue Intelligence
intercepted a cargo of about 672 pieces of gypsum board, and on examination it
was revealed that 6560 cartons of cigarettes having a market value of
2,20,41,600/-, and an international price/value of 94,46,400/-, was concealed
amongst the imported items. The statement recorded from various persons
associated with the aforesaid import of gypsum boards revealed the role of the
detenue in the smuggling activity. It may not be out of place to mention here
that the modus operandi, and the item smuggled (foreign cigarettes bearing the
brand name 'Gudang-Garam') were identical in respect of the smuggling
incident which was detected on 15-02-2016 at Bangalore and that which was
detected on 06-09-2016 at Vallarpadam, Kochi.
19. On 02-02-2017 a proposal was made by the 4 th respondent
sponsoring authority, for detention of the detenue under the provisions of the
COFEPOSA Act. The detaining authority received this proposal on 07-02-2017.
The proposal was placed before the screening committee on 22-02-2017 and, on
31-03-2017, Ext.P1 order of detention was issued. It is not disputed that on the
date of issuance of Ext.P1 order i.e., 31-03-2017, the detenue was not in India
and he remained abroad till he arrived in India on 12/13-07-2020 on which date
he was detained and served with the order of detention. The grounds of
detention were served on the detenue on 22-07-2020. Although the detenue
preferred a representation to the Advisory Board on 07-09-2020, the same was
rejected by the Advisory Board on 01-11-2020. Thereafter, through Ext.P11
order dated 01-10-2020 the detaining authority confirmed Ext.P1 order under
Section 8 (f) of the COFEPOSA Act, and ordered the detention of the detenue
for a period of one year with effect from 22-07-2020. This order of detention is
challenged on various grounds and is alleged to be in violation of the procedural
safeguards incorporated into Article 22 (5) of the Constitution of India and the
provisions of the COFEPOSA Act.
20. The learned counsel for the petitioner placed reliance on the
judgment of the Supreme Court in Saeed Zakir Hussain Malik v. State of
Maharashtra11 to contend that the fact that the order of detention dated 31-
03-2017 was executed only on 12-07-2020 is sufficient to establish that the very
purpose of passing an order of preventive detention became unattainable since
such orders are issued to prevent the detenue from engaging in prejudicial
activities for the period specified in the order of detention. He would submit
that no proper explanation has been given regarding the inordinate delay in
executing the order of detention. He refers to the judgment of the Supreme
Court in Indradeo Mahato v. State of West Bengal 12 to contend that a
long gap between the order of detention and the actual detention shows that
there was no real and genuine apprehension that the detenue was likely to act in
a manner prejudicial to public interest in the manner specified under Section 3
of the Act. He refers to the judgment of the Bombay High Court in Smt.
Najama v. State of Maharashtra and others 13 to contend that the failure
to apprehend the detenue within a reasonable time from the order of detention,
and the casual and lethargic manner in which the authorities have attempted to
serve the order of detention, shows that there was a complete absence of
112012 (3) KLJ 468
12AIR 1973 SC 1062
131996 (1) Bom.CR 181
reasons to curtail the personal liberty of the detenue through an order of
preventive detention under the COFEPOSA Act. He would submit that the live
and proximate link between the grounds of detention and the purpose of
detention had been clearly snapped. He then refers to the judgment of the
Supreme Court in T.A. Abdul Rahman v. State of Kerala and others 14
again to contend that the dates on which the alleged prejudicial activities took
place, the date of issuance of the order of detention and the date of its execution
clearly shows that the live link between the prejudicial activities and the purpose
of detention had clearly snapped. He also relied on the judgment of the
Supreme Court in Shafiq Ahmad v. District Magistrate, Meerut and
others15 to contend that the failure to take recourse to Sec. 87 & 88 of the
Criminal Procedure Code would lead one to believe that the delay was
unreasonable and that that there was no real and genuine apprehension that the
petitioner was likely to act in any manner prejudicial to public interest.
21. The learned counsel also refers to the guidelines issued by the
Central Economic Intelligence Bureau dated 02-07-2001, regarding the
procedural safeguards required to be followed in dealing with matters arising
under the COFEPOSA Act, to show that if at all there was an apprehension of
the nature contemplated under Section 3 of the COFEPOSA Act, it was the duty
of the sponsoring/detaining authority to issue an order of detention, as quickly
14AIR 1990 SC 225
15(1989) 4 SCC 556
as possible after the incident which led to the formation of a belief that an order
of preventive detention had to be issued in the case on hand. He submits that
the guidelines also require the expeditious execution of a detention order and
that if the person against whom the order of detention had been issued, was
absconding, steps are required to be taken immediately under Section 7 of the
COFEPOSA Act. He would point out that, in the facts of the present case, a
publication as contemplated under Section 7 (1) (b) of the COFEPOSA Act was
issued only on 11-07-2017. Reliance is placed on the judgment of the learned
Single Judge of the High Court of Delhi in Manish Gadodia v. Union of
India and another16 to contend that the unexplained delay in passing and
serving the detention order is a violation of the constitutional safeguards under
Article 22 (5) of the Constitution of India. The learned counsel then contends,
with reference to the judgment of a Division Bench of the Madras High Court in
A. Vellanai Pandian v. Collector , that non-placing of materials before the
Advisory Board (in particular the order-in-original following the adjudication of
the Bangalore incident that took place on 15-02-2016) vitiated the order of
detention.
22. After the hearing in this case was concluded, the learned counsel
for the petitioner placed an argument note in which certain additional
contentions have been raised. In particular these additional contentions are (i)
16Judgment dated 04-12-2014 in W.P (Crl.) No.1695/2014
that there is a delay of nearly 4 ½ years in initiation of prosecution against the
detenue; (ii) that non-cancellation of the bail order vitiates the order of
detention; (iii) that even in the absence of a specific representation addressed
to the detaining authority, the representation before the advisory board ought to
have been considered and disposed of by the detaining authority; (iv) the
failure to supply certain pages of the bail order which is relied upon document
vitiates the order of detention; and (v) that the delay in disposal of Exhibit P 12
and P13 representations filed before the Government of India and the detaining
authority respectively vitiates the order of detention. Considering the fact that
this is a case involving personal liberty of an individual we propose to consider
these grounds/contentions as well.
23. The learned counsel appearing for the DRI contends that there is
no delay in passing the order of detention considering the fact that the last
prejudicial activity, which was noticed by the Directorate of Revenue
Intelligence (DRI), was on 06-09-2016. It is submitted that following the
incident on 06-09-2016, the DRI was continuing with the investigation, as is
evident from the documents relied upon in the order of detention. He relies on
the judgment of the Supreme Court in Rajendrakumar Natvarlal Shah v.
State of Gujarat and others17 to contend that, considering the nature of the
activity, and the purpose for which the COFEPOSA Act was enacted, there is a
17(1988) 3 SCC 153
real likelihood of some delay being occasioned between the prejudicial activity
contemplated in under Section 3 (1) of the COFEPOSA Act and the making of an
order of detention. He placed specific reliance on paragraphs 9 and 10 of the
aforesaid judgment to contend that, often a time-consuming investigation
would be required before a proposal for an order of detention is initiated. He
submits, with reference to the findings in paragraph 10 of the aforesaid
judgment, that the courts must make a distinction between delay in making an
order of detention and the delay in complying with the procedural safeguards
under Articles 22 (5) of the Constitution of India. He submits that, on the facts
of the instant case, if at all there has been any delay in issuing an order of
detention, the same was only on account of the detailed investigation that was
required to be carried out before an order of detention was issued. He also
placed reliance on a judgment of the Supreme Court in Malwa Shah v. State
of West Bengal18 to buttress his contention that delay in issuing the order of
detention is not fatal to the order itself. The learned counsel also places reliance
on the judgment in Mukesh Tikaji Bora v. Union of India and others 19,
to contend that a detenue who was absconding cannot have a complaint
regarding the non-execution of the order of detention. He submits that the
Supreme Court in Mukesh Tikaji Bora (supra) also placed reliance on its
earlier judgment in Bhawarlal Ganeshmalji v. State of TamilNadu and
18(1974) 4 SCC 127
19(2007) 9 SCC 28
others20 where it was held that, insofar as an absconding detenue is concerned,
the live link between the incident and the purpose of detention was not snapped
but strengthened on account of the conduct of the detenue. In reply to the
contention of the learned counsel for the petitioner, that the authorities could
have served the grounds of detention immediately on the issuance of Exts.P1 &
P2, the learned counsel submits that the time for serving the grounds of
detention had been validly extended though Ext.P3 on account of the COVID-19
pandemic and that, unlike in the case of Ext.P1 & P2, the contents of the
grounds of detention could not have been made known to the detenue
immediately on the serving of Exts.P1 & P2 or within the period of 5 days as
contemplated in Section 3 (iii) of the COFEPOSA Act.
24. The learned Government Pleader appearing for the State of Kerala
vehemently opposed the contentions raised on behalf of the detenue and
detailed the steps taken by the authorities to execute the order of detention. He
would submit that the delay in executing the order could not, in the facts of this
case, vitiate the order of detention.
25. The learned counsel appearing for the Union of India completely
supported the arguments of the learned counsel for the DRI and prays for a
dismissal of the Writ Petition.
201979 Crl. LJ 462
26. On a consideration of the rival submissions, the first question that
we deem it apposite to consider is whether there was any delay in either issuing
the order of detention or executing it? The sequence of events noticed above
would reveal that the alleged second prejudicial activity was detected on
6-9-2016. In the month of February 2017, a proposal for preventive detention
was initiated by the DRI. The proposal was received by the detaining authority
on 7-2-2017, and it was considered by the screening committee on 22-2-2017.
On 31-3-2017, the order of detention was issued. It is pertinent that insofar as
the second prejudicial activity is concerned, the detenue was neither
apprehended nor was there any material, other than the uncorroborated
statements of those apprehended, to establish his direct involvement in the
transaction. However, the statements recorded from those directly involved
with that transaction, and the investigations carried out by the DRI revealed
that the detenue was part of an organized smuggling racket involved in the
smuggling of cigarettes into India. As already noticed, the modus operandi and
the smuggled goods were almost identical to that in the earlier incident at
Bangalore where the direct involvement of the detenue was established. We are
also persuaded to accept the submission of the learned counsel for the DRI that,
in some instances, a detailed investigation may be required before even a
proposal is put up for the preventive detention of a person involved in
smuggling activity. We therefore hold that there is no culpable delay between
the alleged prejudicial activities and the date of issuance of the order of
detention as would vitiate the order of detention. The question then arises as to
whether there was a substantial delay between the date of the order of detention
and the date of execution of the order that would suggest that the live link
between the prejudicial activity and the purpose of detention had been snapped.
The decisions referred to by the learned counsel for the petitioner no doubt
holds that any unexplained and unjustified delay between the order of detention
and its execution would in certain cases demonstrate that there was no live link
between the alleged prejudicial activity and the requirement of keeping
someone in preventive detention to prevent him from engaging in similar
prejudicial activity. Our reading of the precedent suggests that this is an aspect
that has to be determined on the facts of each case. In the facts of the present
case, it is not disputed that for the entire period from the date of the detention
order, until and up to the date of execution of the detention order, the detenue
was abroad. It is clear from the affidavits filed by the respondents that efforts
were taken to execute the order of detention and that steps as contemplated
under Section 7(1)(b) of the COFEPOSA Act were initiated. Under such
circumstances, we fail to see how there was any unexplained delay in the
execution of the detention order in the instant case. Further, it is trite that an
absconding detenue cannot cite a delay in the execution of the order to contend
that the detention order must be quashed on that ground.
27. The next question to be considered is whether there was any delay
in serving the grounds of detention, in the facts and circumstances of this case.
The detenue was detained pursuant to the order of detention on 12/13-7-2017.
He was immediately served with a copy of the detention order. Going by the
provisions contained in Section 3 (3) of the COFEPOSA Act, the grounds of
detention had to be served within an outer time limit of 5 days however making
provision for extending the time, in exceptional circumstances to a maximum
period of 15 days from the date of detention. The order in this case extending
the time limit for serving the order of detention shows that the extra time was
granted on account of the COVID-19 pandemic. It is not disputed that the
grounds were served on 22-7-2021. In the above circumstances we hold that the
extension of the time for serving of the grounds of detention does not amount to
violation of the right guaranteed under Article 22(5) of the Constitution of India
and that the said delay does not vitiate the order of detention.
28. The further contention that, on account of the delay of nearly 4 ½
years in initiation of prosecution against the detenue, the detention order must
fail, also does not pass muster. Indeed, the law laid down in Bhut Nath Mete
v. State of W.B.21, on which considerable reliance was placed to bolster this
contention, does not hold so. That was a case where an order of detention under
the Maintenance of Internal Security Act, 1971 was challenged and the very
21(1974) 1 SCC 645
instances that led to the order of detention were the subject matter of regular
criminal prosecution that had resulted in orders of acquittal. It was in these
circumstances that it was held:
"After all, however well-meaning the Government may be, detention
power cannot be quietly used to subvert, supplant or to substitute the
punitive law of the Penal Code. The immune expedient of throwing into
a prison cell one whom the ordinary law would take care of, merely
because it is irksome to undertake the inconvenience of proving guilt in
Court is unfair abuse. To detain a person after a court has held the
charge false is to expose oneself to the criticism of absence of due care
and of rational material for subjective satisfaction."
The facts in this case are quite different and we do find the mere failure to
initiate criminal prosecution within reasonable time, to vitiate the order of
detention.
29. The contention that non-cancellation of the bail order vitiates the
order of detention is based entirely on the decision of the Supreme Court
in P.M. Hari Kumar v. Union of India22. A reading of the judgement in
Harikumar (supra) suggests that the decision was one made with reference to
the peculiar facts of that case. We cannot read the said judgement as having laid
down any absolute principle that failure to apply for, or obtain, cancellation of
the bail obtained by the detenue in regular criminal proceedings vitiates the
order of detention. We therefore reject this contention.
22(1995) 5 SCC 691
30. The contention that even in the absence of a specific representation
addressed to the detaining authority, the representation before the advisory
board ought to have been considered and disposed by the detaining authority
also does not appeal to us, in the facts and circumstances of this case. Amir
Shad Khan v. L. Hmingliana23, on which reliance is placed in support of
this contention, was a case where the detenue had made a request to the
Detaining Authority to take out copies of his representation and forward them
to the Central Government for consideration. It was held that the failure to do
so vitiated the order of detention. In Gracy (Smt) v. State of Kerala24 the
question was whether there would be any infraction of the guarantee under
Article 22(5) of the Constitution as a result of Central Government's omission to
consider the detenu's representation even when such representation is
addressed only to the Advisory Board to which it was submitted during
pendency of the reference to the Advisory Board. This question was answered in
the affirmative. However, in Jasbir Singh v. Lt. Governor, Delhi 25, Gracy
(supra) was distinguished and it was held :-
"4. ....... But the question for consideration is when the representation has
not been addressed to the Central Government, but is addressed to the
Advisory Board, can it be said that the Central Government also owes an
obligation to consider the same and decide one way or the other. It may
be stated at this stage that while serving the grounds of detention on the
detenu it was clearly indicated that if the detenu wishes to make any
representation against the order of detention he may do so to the Lt.
23(1991) 4 SCC 39
24(1991) 2 SCC 1
25(1999) 4 SCC 228
Governor of the National Capital Territory of Delhi and to the Central
Government and for that purpose he may address it to the Lt. Governor
or to the Secretary to the Government of India, Ministry of Finance,
Department of Revenue. It was further stated that if he desires to make
any representation to the Advisory Board then he may address to the
Chairman, Advisory Board, COFEPOSA State, High Court of Delhi, Sher
Shah Road, New Delhi. In the decision of this Court in Gracy [(1991) 2
SCC 1 : 1991 SCC (Cri) 467] relied upon by the learned counsel for the
appellant, what has been stated by the Court is that if there is one
representation by the detenu addressed to the detaining authority then
the obligation arises under Article 22(5) of its consideration by the
detaining authority independent of the opinion of the Advisory Board in
addition to its consideration by the Advisory Board and, therefore, when
the representation of the detenu was addressed to the detaining
authority and in that case it was the Central Government and not to the
Advisory Board yet the Advisory Board was duty-bound to consider the
same, as such a representation is the only right of the detenu under
Article 22(5) of the Constitution. It was further stated that any
representation of the detenu against the order of detention has to be
considered and decided by the detaining authority and the consideration
by the Advisory Board was an additional requirement implied by
reading together clauses 4 and 5 of Article 22. In the said case the Central
Government was the detaining authority and, therefore, in that case the
Court held that the representation though may not have been addressed
to the Advisory Board but the same was also required to be considered by
the Central Government. We fail to understand how the aforesaid ratio
can be held to be applicable in the present case where the detaining
authority was the Lt. Governor of Delhi. In such a case if the
representation had not been addressed to the Central Government even
though indicated in the grounds of detention then it cannot be said that
any representation made by the detenu to the Advisory Board ought to
have been considered by the Central Government. That apart the detenu
also did file a representation to the Central Government on 22-6-1994
and the same was disposed of by the Central Government on 12-7-1995
and, therefore, in the said premises, the question of infraction of the
constitutional right of the detenu because of the representation addressed
to the Advisory Board had not been considered by the Central
Government does not arise. This contention, therefore, was rightly
rejected by the High Court."
In R. Keshava v. M.B. Prakash26, considering Gracy (supra) and Jasbir
(supra) it was held: -
"17. We are satisfied that the detenu in this case was apprised of his right
to make representation to the appropriate Government/authorities
against his order of detention as mandated in Article 22(5) of the
Constitution. Despite knowledge, the detenu did not avail of the
opportunity. Instead of making a representation to the appropriate
Government or the confirming authority, the detenu chose to address a
representation to the Advisory Board alone even without a request to
send its copy to the authorities concerned under the Act. In the absence of
representation or the knowledge of the representation having been made
by the detenu, the appropriate Government was justified in confirming
the order of detention on perusal of record and documents excluding the
representation made by the detenu to the Advisory Board. For this
alleged failure of the appropriate Government, the order of detention of
the appropriate Government is neither rendered unconstitutional nor
illegal."
Again, in Union of India v. Sneha Khemka,27 it was held: -
"22. In Gracy [(1991) 2 SCC 1 : 1991 SCC (Cri) 467] , the detenu's case was
referred to the Central Advisory Board by the Central Government and
during the pendency of the reference before it, a representation was
made to the Advisory Board. The Advisory Board considered the
reference relating to the detenu made by the Central Government and
also the detenu's representation submitted to it and opined that there
was sufficient cause to justify his preventive detention. The order of the
Central Government confirming his detention was passed thereafter.
This Court, in the fact situation obtaining therein, held that the detenu
has a dual right to get his representation disposed of by the Advisory
Board and the detaining authority independently, stating: (SCC p. 7,
para 9)
"The contents of Article 22(5) as well as the nature of duty imposed
thereby on the detaining authority support the view that so long as there
is a representation made by the detenu against the order of detention, the
aforesaid dual obligation under Article 22(5) arises irrespective of the
fact whether the representation is addressed to the detaining authority
26(2001) 2 SCC 145
27(2004) 2 SCC 570
or to the Advisory Board or to both. The mode of address is only a matter
of form which cannot whittle down the requirement of the constitutional
mandate in Article 22(5) enacted as one of the safeguards provided to the
detenu in case of preventive detention."
After referring to the decision of the Constitution Bench
in Kamleshkumar Ishwardas Patel28 it was held: -
26. The decisions of this Court whereupon reliance has been placed by the
High Court, therefore, nowhere state that copy of the representation
made by the detenu to one authority must be placed before all the
authorities and all such authorities also should consider and pass orders
on those representations, though really not made to any one of them."
Coming to the facts of this case, we must notice that as in Jasbir Singh
(supra), the detenue in this case had made separate representations to the
detaining authority and to the Central Government. That apart we also notice
that the representation before the advisory board was not made by the detenue
but by the petitioner in this case (mother of the detenue). Neither the detaining
authority nor the central government was aware of the representation made to
the advisory board. The advisory board did not have any responsibility to
forward the representation to the detaining authority or to the Central
Government. We therefore see no reason to hold that the detention order is bad
for the reason that either the detaining authority or the Central Government did
not independently consider the representation that was preferred to the
advisory board. Our view, as above, stands fortified by the judgment of another
Division Bench of this Court in Ayisha Shinas v. Union of India & Ors.29
28(1995) 4 SCC 51
29 I.L.R 2021 (2) Kerala 29
31. The next contention is that the failure to supply certain pages of the
bail order, which is a relied upon document, vitiates the order of detention.
Though this is not a matter which is pleaded and upon which the respondents
have had a chance to rebut, since this is a matter involving the personal liberty
of an individual we have nevertheless attempted to address this issue by
referring to the grounds of detention (Ext.P.4). There is a reference to the order
on the bail petition in paragraph 26 of Exhibit P4. Thereafter, the detaining
authority has, in paragraph 26 referred to the bail orders dated 16-2-2016 and
1-6-2016 for the purpose of establishing that the detenue had not stopped
prejudicial activities even after the first incident at Bangalore and had continued
with such activities. It is also noted that the bail conditions are likely to be
relaxed and that they were not sufficient to prevent the detenu from committing
prejudicial activities. Apart from contending that certain pages of the 'bail order'
are not available in the documents served together with the grounds of
detention, there is no pleading or contention regarding the issue. Even
assuming that the case put forth by the detenue is correct, we are unable to find
that the non-supply of the 4 pages of the bail order has in any manner affected
the right of the detenue to make an effective representation. The detenue also
did not make a request for the supply of any document. He also did not raise
this issue before the advisory board. For these reasons we reject the contention
of the detenue that he was not served with clear copies of all the relied upon
documents amongst the documents supplied to him. We also hold that the
communication of grounds, in the facts of the present case, satisfies the
requirements of Article 22 (5) of the Constitution of India.
33. The next issue is whether Ext.P.12 & P.13 representations made by
the petitioner, after the matter was considered by the Advisory Board, were
expeditiously considered by the authorities concerned. This is also an issue not
pleaded in the Writ petition. However, for reasons already indicated we are
inclined not to apply strict rule of pleadings in considering a matter relating to
the personal liberty of a citizen. The learned counsel for the petitioner submits
that the detenue had submitted Ext.P12 representation to the 1 st respondent and
exhibit P 13 representation to the 2nd respondent. The representations are dated
14-10-2020. They have been considered and disposed of by the 2 nd respondent
on 4-11-2020 and by the 1 st respondent, on 6-11-2020. In so far as the
representation to the 1st respondent is concerned, that representation was
received by the 1st respondent through e-mail, on 15-10-2020. Comments of the
detaining authority and the sponsoring authority were sought on 16.10.2020.
The sponsoring authority provided its comments on 23-10-2020 and the
detaining authority did the same on 5-11-2020. The representation was
disposed of on 6-11-2020 which was a Friday. The memo regarding disposal of
representation was dispatched by Speed Post on 9-11-2020 and the same was
delivered to the Superintendent of Prisons on 13-11-2020 and was served to the
detenue the same day. In so far as the representation made to the detaining
authority (State Government) is concerned , the same was, as already noticed
disposed of on 4-11-2020. We find that both the representations have been
disposed of with reasonable expedition and that the detention order is not
vitiated in any manner on account of the alleged delay in disposal of the Ext.P.12
& P.13 representations.
34. An incidental issue that arises for consideration is as regards the
period of detention of the detenue. As already noticed above the detenue was
detained on 12-07-2020 and Ext.P1 order of detention was served on him on
13-07-2020. In Ext.P11 order, the detention is seen confirmed for a period of
one year from 22-07-2020. It is stated that this was on account of the fact that
on account of the COVID-19 pandemic the detenue was undergoing quarantine
for the period from 12/13-07-2020 to 22-07-2020 and therefore that the period
of detention should be counted from 22-07-2020. We are of the opinion that the
detenue having been detained in terms of Ext.P1 order of detention, on 12-07-
2020, the period of one year has to be counted with effect from 12-07-2020 and
not from 22-07-2020 as stated in Ext.P11 order.
W.P.(Crl.) Nos. 279 & 280 of 2020:
35. The facts relevant for a disposal of both the above writ petitions are
that, on 25-12-2018, one Muhammed Shan arrived at Kannur International
airport from Abu Dhabi. It was found that he had smuggled gold by concealing
the same inside some electrical appliances. It is stated that, together with
another person named Bhakthavalsalan, one Abdussameem was waiting outside
to receive the aforesaid Muhammed Shan and that Abdussameem had, on
coming to know that the aforesaid Muhammed Shan had been intercepted by
the officers of the Directorate of Revenue Intelligence [DRI], fled that spot.
Muhammed Shan and Bhakthavalsalan were taken into custody on the same
day. On the basis of further investigation and intelligence inputs, it was learnt
that the aforesaid Abdussameem and his brother one Faisal were part of a gang
of smugglers who were regularly engaged in the smuggling of gold into India.
On the basis of a lookout notice, Abdussameem was arrested on 4-3-2019 while
attempting to fly out of Bangalore Airport. A raid carried out at the residential
premises of Abdussameem resulted in the recovery of certain
documents/diaries that contained details of gold smuggled into India from 25-
12-2018. The diary/records were apparently maintained by Faisal, brother of
Abdussameem. Both Abdussameem and Faisal were questioned on 4-3-2019/5-
3-2019 and their statements were recorded. Their arrest was recorded on the
evening of 5-3-2019, and they were produced before the competent Magistrate
at Thalassery, on 6-3-2019. On 23-3-2019, they were released on bail by the
Additional Chief Judicial Magistrate (Economic Officers), Ernakulam. For the
purposes of this case it would be relevant to note that in July, 2019, applications
were filed by both Abdussameem and Faisal for modification of the bail
conditions. On 18-7-2019, orders of detention under the COFEPOSA Act were
issued against both Abdussameem and Faisal. It is stated that, though a counter
affidavit was filed by the DRI officials on 23-7-2019, resisting the application
filed for modification of the bail conditions, no mention was made in the said
affidavit of the issuance of the orders of detention. Pursuant to the detention
order dated 18-7-2019, Abdussameem was detained on 29-5-2020 and Faisal
was detained on 1-7-2020.
36. On 1-7-2020, Abdussameem addressed a request to the detaining
authority as well as to the Senior Intelligence Officer of the DRI to supply him
with certain materials and documents required for making an effective
representation under Article 22(5) of the Constitution of India read with the
relevant provisions of the COFEPOSA Act. He also pointed out that certain
relied upon documents like whatsapp chats, including audio chats, which were
analysed by the C-DAC, and the material extracted and supplied by C-DAC in
electronic form, were not given to him. This request for relied upon
documents/material was disposed on 13-7-2020 by Ext.P11 communication in
W.P.(Crl)No.280/2020 stating that, in view of the law laid down by the
Supreme Court in Ankit Ashok Jalan v. Union of India and others 30, the
request would be considered after the matter was disposed by the Advisory
Board. Following the procedure before the Advisory Board, which rejected the
30AIR 2020 SC 1936
representation of Abdussameem, the request for documents was rejected by
Ext.P13 in W.P (Crl.) No.280/2020. Abdussameem, thereafter, preferred
Ext.P14 representation dated 11-8-2020 before the Central Government seeking
revocation of his detention order. A similar representation was made before the
detaining authority as well. Ext.P14 representation was rejected by an order
dated 31-8-2020 and Ext.P15 representation was rejected by an order dated 26-
8-2020. In the meanwhile, following the report of the Advisory Board, the
order of detention was confirmed for a period of one year in the case of
Abdussameem by Ext.P16 order dated 20-8-2020.
37. Insofar as the case of Faisal is concerned, he had also requested for
further materials and documents in order to make effective representations,
following the grounds of detention being served on him, on 11-7-2020. Through
Ext.P8 dated 27-7-2020, the Government of India rejected this representation
as if it were a representation under Art. 22(5), though it was essentially a
request for documents. Through Ext.P10 communication dated 10.8.2020,
Faisal was also informed that his request dated 22-7-2020 was considered in
terms of the law laid down in Ankit Ashok Jalan (supra). By Ext.P15 order
dated 16-9-2020, Faisal was informed that, in view of the opinion of the
Advisory Board, the order of detention had been confirmed in terms of Section
8(f) of the COFEPOSA Act (See Ext.P15 in W.P.(Crl.) No.279/2020). The orders
of detention issued against Abdussameem and Faisal are challenged in separate
writ petitions (W.P.(Crl)No.279/2020 relates to the detention of Faisal and
W.P.(Crl.) No.280/2020 relates to the detention of Abdussameem). Since the
issues and contentions in these two cases are similar we deem it appropriate to
consider them together.
38. The first ground of challenge to the order of detention is that there
was non-supply of certain relied upon documents that vitiates the order of
detention. The learned counsel for the petitioner submits that the request made
by both Abdussameem and Faisal for supply of documents in order to make an
effective representation was rejected without any application of mind. In the
case of Faisal, the request for documents was considered as a representation
under Art.22(5) of the Constitution of India and rejected by Ext.P8 in W.P.
(Crl)No.279/2020 on 6-8-2020, whereas in the case of Abdussameem, the
request dated 01-07-2020 was rejected only on 13-7-2020 by Ext.P13 in W.P.
(Crl.) No.280/2020. He would submit that, while the non-supply of relied upon
documents clearly vitiates the detention, in the case of other documents referred
to in the grounds of detention, a prejudice has to be necessarily shown. The
second ground on which the order of detention is challenged is that there
is considerable delay in execution of the detention order which shows that the
live link between the alleged prejudicial activities and the purpose of detention
has clearly snapped. Thirdly, it is contented that there is considerable delay in
the consideration of representations resulting in the order of detention being
vitiated. Fourthly, it is contented that in so far as the detenue Faisal is
concerned, the representation submitted before the advisory board should have
been considered independently by the detaining authority as well. Lastly, it is
contended that the failure of the Central Government to consider the requests
made for information, independently of the detaining authority, vitiates the
order of detention. We now proceed to examine each of these contentions.
39. In support of his contention that the non-supply of documents has
vitiated the order of detention, the learned counsel has referred to the following
judgments viz. (i) State of Bombay v. Atma Ram Sridhar Vaidya31,
where the Supreme Court held that, apart from the right to receive the grounds
of detention, the detenu detained under Preventive Detention Law has the right
to ask for materials to enable him to make an effective representation. It was
held that even if one of the two rights, i.e. first the right to be served with the
grounds of detention and then the right to receive copies of documents
requested for, was violated, the detention order would be vitiated; (ii)
Harikisan v. State of Maharashtra and others32, where the Supreme
Court held that in order to make an effective representation, it is not only
31AIR 1951 SC 157
32AIR 1962 SC 911
sufficient that the detenu has been physically delivered the means of knowledge
with which to make his representation, but he is also entitled to know with
sufficient certainty all the grounds on the basis of which the order of detention
is made; (iii) Moti Lal Jain v. State of Bihar and Others33, in which the
Supreme Court held that the communication of grounds and materials cannot
be done in a casual manner; (iv) Ramchandra A. Kamat v. Union of
India and others34, where the Supreme Court held that in order to make
additional representation, the detenu is entitled to obtain information relating
to the grounds of detention, and that, if there is undue delay in furnishing
statements and documents referred to in the grounds of detention, the right to
make an effective representation is denied; (v) Smt. Icchu Devi Choraria
v. Union of India and Others35, where it was established that the detenu is
entitled not merely to a bare recital of the grounds of detention, but copies of
the documents, statements and other materials relied upon in the grounds of
detention, in order to constitute a proper compliance with clause (5) of Art.22
and sub-section (3) of Section 3 of the COFEPOSA Act and that, if such
materials were not supplied, the order of detention would be vitiated; (vi)
Mangalbhai Motiram Patel v. State of Maharashtra and others36,
where it was held, following Ramchandra A. Kamat (supra), that all the
33AIR 1968 SC 1509
34(1980) 2 SCC 270
35(1980) 4 SCC 531
36(1980) 4 SCC 470
documents relied upon, on the grounds of detention must be supplied to the
detenu; (vii) Kirti Kumar Chamanlal Kundaliya v. Union of India 37,
where it was held, referring to Ramchandra A. Kamat (supra) and
Thushar Thakker v. Union of India38, that the detenu is entitled to be
furnished with copies of all materials relied upon or referred to in the grounds
of detention with reasonable expedition; (viii) Kamala Kanyalal
Khushalani v. State of Maharashtra and Another 39, where again it was
held that all documents relied upon in the grounds of detention should be
supplied to the detenu; (ix) Thahira Haris and others v. Government of
Karnataka and others40, where it was held that the detenu is entitled to be
supplied with all particulars sufficient to enable him to make a representation;
(x) Beevi Kunju K.A. and another v. Union of India and others41,
where it was held by a Division Bench of this Court that non-supply of certain
video footage, which was relied upon by the detaining authority, vitiates the
order of detention (This decision is relied on to buttress the contention that
non-supply of copy of the electronic media, which contains the visual and other
details contained in the report of the C-DAC, vitiates the order of detention);
(xi) Sophia Gulam Mohd. Bham v. State of Maharashtra and
others42, where again it was held that non-supply of material documents
37(1981) 2 SCC 436
38(1980) 4 SCC 499
39(1981) 1 SCC 748
40(2009) 11 SCC 438
412020 KHC 167
42(1999) 6 SCC 593
vitiates the order of detention in as much as non-supply affects the right to
make a proper and effective representation; (xii) Thakor Mulchandani v.
Assistant Secretary to Govt. of Maharashtra 43, where it was held that
even if the materials not supplied to the detenu along with the grounds of
detention were those referred to in the statements given by the detenu himself,
the detenue had a right obtain such materials; (xiii) Powanammal v. State
of TamilNadu and Another44, where it was held that non-supply of relied
upon documents clearly vitiates the detention straightaway while the non-
supply is of referred documents, the detenu has to show prejudice.
40. Per contra, the learned counsel for the DRI would contend that a
reading of the judgment of the Supreme Court in Ramchandra A. Kamat
(supra) suggests that that was a case where the detenu under the Preventive
Detention Law was only served with the grounds of detention and not with all
materials (relied upon documents etc.) in order to enable him to make an
effective representation. He submits that this is clear from paragraphs 7 and 8
of the judgment in the aforesaid case, where a distinction has been made by the
Supreme Court in respect of a request for supply of documents referred to in the
grounds of detention, and other documents requested for by the detenu. It is
also pointed out that, in paragraph 10 of the aforesaid judgment, it is clarified
43(1982) 3 SCC 321
44(1999) 2 SCC 413
that, for the purposes of making an additional representation, the detenu need
have only copies of statements and documents relied on in the grounds of
detention and not all the documents that are referred to in the grounds of
detention. He therefore submits that, following the development of the law on
the subject, decisions such as Atma Ram (supra) & Ramchandra A.
Kamat (supra) must not be read in the manner that the learned counsel for the
petitioner wants us to read it. The learned counsel has placed reliance on
L.M.S Ummu Saleema v. B.B. Gujaral and Others45, Radhakrishnan
Prabhakaran v. The State of TamilNadu and Others 46, State of
TamilNadu and Others v. Adbullah Kadher Batcha and others47,
Syed Farooq Mohammed v. Union of India (UOI) and Others 48 and on
State of Punjab & Ors v. Jagdev Singh Talwandi49, to contend that a
failure to consider the request for documents, other than relied upon
documents, is not fatal to the detention order. He submits that there is no
obligation on the part of the detaining authority or the sponsoring authority to
supply materials other than the relied upon documents. The learned central
government counsel would submit that the non-supply of the USB containing
the images and other data extracted by the C-DAC does not amount to non-
supply of relied upon documents. He submits that a reading of paragraph xxix
45(1981) 3 SCC 317
46(2000) 9 SCC 170
47(2009) 1 SCC 333
48(1990) 3 SCC 537
49AIR 1984 SC 444
of the detention order clearly shows that the detaining authority had not relied
on any material other than those already supplied to the detenues. He would
refer to J.Abdul Hakeem v. State of TamilNadu50, Radhakrishnan
Prabhakaran (supra) & Batcha (supra) to buttress his contention.
41. Our reading of the voluminous precedents leads us to conclude that
the law regarding supply of documents requires no re-iteration at our hands.
Our summation of the law at the inception of this judgment shows that it is well
settled that the detenue has the right to receive all the relied upon documents
and also such other documents that may be necessary to enable him to make a
proper and effective representation against the order of detention. That said, the
question as to whether there was, in fact, a failure to supply any relied upon
document is a matter to be determined on a case-to-case basis. Kirit Kumar
Chaman Lal Kundaliya (supra) holds that once the documents are referred
to in the grounds of detention it becomes the bounden duty of the detaining
authority to supply the same to the detenu as part of the grounds and that there
is "no particular charm in the expressions "relied on", "referred to" or "based
on" because ultimately all these expressions signify one thing, namely, that the
subjective satisfaction of the detaining authority has been arrived at on the
documents mentioned in the grounds of detention" and further that "the
question whether the grounds have been referred to, relied on or based on is
50(2005) 7 SCC 70
merely a matter of describing the nature of the grounds". Indeed, the decisions
in Ummu Saleema; Radhakrishnan Prabhakaran; Batcha,
Talwandi & J. Abdul Hakeem (all of which are referred to supra), on
which considerable reliance was placed by the learned counsel for the
respondents, also do not take a different view. In the facts of these cases, the
request for documents is Exhibit P7 in WP (Crl.) 279/2020 and Exhibit P6 in
WP (Crl.) 280/2020. These representations are substantially similar in nature
save that certain additional materials are also sought for in Exhibit P6 in WP
(Crl.) 280/2020. Reference to the grounds of detention supplied to each of the
petitioners in these cases (Ext.P.4 in WP (Crl.) 279/2020 and Exhibit P3 in WP
(Crl.) 280/2020) show that they begin with the narration of the facts presented
by the sponsoring authority. The consideration by the detaining authority is
contained in paragraphs 2 to 13 of Ext.P4 in WP (Crl.) 279/2020 and again in
paragraphs 2 to 13 Exhibit P3 in WP (Crl.) 280/2020. Keeping in mind the fact
that the law requires only the subjective satisfaction of the detaining authority,
and keeping in mind the fact that the jurisdiction to detain under a law
providing for preventive detention is 'a jurisdiction of suspicion' we have
examined Ext.P4 in WP (Crl.) 279/2020 and Exhibit P3 in WP (Crl.) 280/2020
to determine whether the non-supply of documents requested for therein has
prevented the detenues from making a proper representation, which is a right
guaranteed under Art. 22(5) of the Constitution. Our reading of the detention
order, together with the request for documents in the instant cases, leads us to
conclude that the denial of the documents requested for has indeed affected the
right of the detenues concerned to make a proper and effective representation.
We base our findings on the following reasons:-
a) A reading of the grounds of detention, and in particular paragraph xxix thereof
(in both the cases), shows that there is considerable reliance on the details
contained in the USB named "USBSTORE01" which contains the report of the
CDAC. A reading of the same paragraph also shows that the report was put to
Abdusameem and that he had answered with reference to the contents of that
report. A reading of paragraph xxx in the grounds of detention, in both the
cases, suggests that the detaining authority had placed considerable reliance on
the contents of the report and had noticed and accepted the conclusions drawn
by the sponsoring authority regarding the activities of the detenues. We cannot
but hold that, the non-supply of a copy of the report in electronic form, that
would have enabled the detenues to view it before making a representation,
clearly vitiates the order of detention in both these cases. In holding so, we are
fortified by the decision in Beevi Kunju (supra).
b) The other materials sought for, especially the details regarding any order issued
against Riyas & Mujib who are alleged to be part of the same syndicate,
retraction statements (if any) in respect of statements given under Section 108
of the Customs Act, and the non-supply of documents clearly shown to be
illegible, has also, in our opinion, affected the right of the detenue to make an
effective and meaningful representation thereby vitiating the order of detention
in both these cases.
42. Though this finding of ours would be sufficient to direct the release
of the detenues, we feel that it is only appropriate that we consider the other
contentions that have been raised, as well.
43. The next ground raised is that there is a substantial delay in the
execution of the detention order which shows that the live link between the
prejudicial activities and the purpose of detention has clearly snapped. The
learned counsel places reliance on S.K.Serajul v. State of West Bengal51;
Manju Ramesh Nahar v. Union of India and Others 52; Kadhar Naina
Ushman v. Union of India and Others53; Saeed Zakir Hussain
Malik v. State of Maharashtra and Others54 and T.A. Abdul Rahman
v. State of Kerala and others55 where it has been held that the delay in
execution of the detention order was found to vitiate the order of detention. The
learned counsel for the petitioners would also submit that there was no mention
about the order of detention in the counter affidavit filed in the applications for
modification of bail conditions, even though the said counter affidavit was filed
after the date on which the detention orders were issued. The learned counsel
for the petitioners would further submit that the fact that the summons issued
by the customs authorities had been duly served on the detenues shows that
they were very much available at their house and were not absconding. He says
that the lackadaisical attitude in the execution of the detention order clearly
points to the lack of bonafides in the detaining authority while recording his
subjective satisfaction as regards the need to detain the detenues so as to
prevent them for engaging in prejudicial activities in future.
51(1975) 2 SCC 78
52(1999) 4 SCC 116
53(2008) 17 SCC 725
54(2012) 8 SCC 233
55(1989) 4 SCC 741
44. The learned counsel for the DRI submits that in the facts and
circumstances of these cases there is absolutely no delay in execution of the
detention orders. He refers to the various steps taken to ensure the timely
execution of the detention orders. He submits that the failure to mention about
the order of detention in the counter affidavit filed in the applications for
modification of bail conditions does not cause any prejudice to the detenues.
With reference to Vinod K. Chawala v. Union of India (UOI) and
Others56, Syed Farooq Mohammad v. Union of India (UOI) and
Others57, Meena Jayendra Thakur v. Union of India (UOI) and
Others58 and Mukesh Tikaji Bora v. Union of India (UOI) and Others 59
the learned counsel contends that the alleged delay in the execution of the order
of detention against the aforesaid Faisal and Abdussameem was not fatal to the
detention order in the facts and circumstances of the case. He submits that both
the DRI and the State Police had taken steps under Section 7 of the COFEPOSA
Act to secure the arrest and detention of the aforesaid persons. In response to
the contention of the learned counsel for the petitioners that there were clear
lapses in the execution of the orders of detention since both the detenues were
available at their house, he submits that Kartarey and Others v. The State
of Uttar Pradesh60 and K.T.M.S. Abdul Cader and others v. The
56(2006) 7 SCC 337
57(1990) 3 SCC 537
58(1999) 8 SCC 177
59(2007) 9 SCC 28)
60(1976) 1 SCC 172
Union of India61 are authorities for the proposition that to be an absconder, it
is not necessary that a person should have run away from his home, and that it
is sufficient if he hides himself to evade the process of law, even if the hiding
place be his own home. He also submits, with reference to paragraphs 2 and 3 of
the judgment in Indradeo Mahato v. The State of West Bengal62 that the
failure to take coercive action does not vitiate the detention order.
45. In the facts of these cases, we notice that as far as the detenue in
W.P. (Crl.) No.279/2020 (Faisal) is concerned, the order of detention is dated
18-7-2019. A gazette notification as contemplated under Section 7 of the
COFEPOSA Act, was issued on 21-11-2019. This was followed by a paper
publication issued on 29-1-2020. Summons' for appearance were issued on 25-
2-2020, 28-2-2020 & 3-3-2020. Admittedly, these summons' were duly served
although the aforesaid Faisal failed to respond to them. On 9-3-2020, an
application for the cancellation of bail was also filed before the Economic
Offences Court and the order was executed on 1-7-2020. In the case of the
detenue in W.P. (Crl.) No.279/2020 (Abdusameem), the order of detention is
dated 18-7-2019. A gazette notification as contemplated under Section 7 of the
COFEPOSA Act, was issued on 21-11-2019. This was followed by a paper
publication issued on 29-1-2020. A lookout circular was issued on 5-2-2020.
61(AIR) 1977 Mad 386
62(1973) 4 SCC 4
Summons' were issued for appearance on 25-2-2020, 28-2-2020 & 3-3-2020.
Admittedly these summons' were duly served but the aforesaid Abdusameem
failed to respond to them. On 9-3-2020 an application for the cancellation of
bail was also filed before the Economic Offences Court and on 10-3-2020, a
report under Section 7(1)(a) of the COFEPOSA Act was also filed before that
Court. The order of detention was executed on 29-5-2020. Kartarey (supra)
was not a case under preventive detention law. It however deals with the
question as to who is an absconder and holds that "To be an "absconder" in the
eye of law, it is not necessary that a person should have run away from his
home, it is sufficient if he hides himself to evade the process of law, even if the
hiding place be his own home." In K.T.M.S. Abdul Cader (supra) a Full
Bench of the Madras High Court took the same view. We are of the view that in
considering the question as to whether the delay in execution of the detention
order vitiates the same, the Court can refer to the background facts that led to
the issuance of the detention order. There is no other way to determine this
question. Here, on the facts of these cases, although the allegations that led to
the order of detention are in relation to syndicated and organised smuggling of
gold, we find the delay in execution of the detention order unjustified, more so
when the detaining authority itself did not mention the fact of the detention
order in its counter affidavit filed before the Magistrate while opposing the
application for relaxation of bail conditions filed by the detenu concerned. It is
also significant that while the detaining authority refers to the steps allegedly
taken by the police authorities in the State to arrest the detenus, there is no
explanation offered for the admitted service of summons on the detenus at their
residential address. We are at a loss to understand why the detention orders
could not have been executed, by apprehending the detenus much earlier, if
indeed the object of the whole exercise was to prevent them from engaging in
prejudicial acts in future. The cavalier attitude of the detaining authority in the
instant cases cannot be countenanced and, at any rate, cannot justify the
continued detention of the detenus concerned.
46. The learned counsel next contends that there is long and
unexplained delay in the disposal of representations by the authorities
concerned which results in the order of detention being vitiated. He places
reliance on Rajammal v. State of TamilNadu63, where it was held that a
representation left attended for five days since the Minister for Law was not
available in station, was not a justifiable explanation when the liberty of citizens
is involved, on Prabhakar Sankar Dhuri v. S.G. Pradhan and Others64,
which holds that the delay of 16 days is fatal unless there is justifiable
explanation when the personal liberty of citizens is in question and the person
concerned has been detained without trial, on Venugopal v. State of Kerala
63(1999) 1 SCC 417
64(1971) 3 SCC 896
and Others65, where it was held by a Division Bench of this Court that the
delay from the date of submission of the representation to the date of disposal
and communication of the same to the detenu should be explained by the
detaining authority, on Ratten Singh and Another v. State of Punjab
and Others66, where it was held that the delay was occasioned in the hands of
the Jail Superintendent in forwarding a representation to the Central
Government, vitiated the order of detention, on Pebam Ningol Mikoi Devi
v. State of Manipur and Others67, where seven days in forwarding the
representation to the Central Government was found to vitiate the order of
detention, on Vijay Kumar v. State of Jammu and Kashmir and
Others68, where again delay in 14 days in transmitting the representation and
19 days in consideration was held as delay for which there was no satisfactory
explanation resulting in the order of detention being vitiated, on Youssuf
Abbas v. Union of India69, where again unexplained delay in consideration of
representation was held to be fatal to the order of detention, on Abdul Nasar
Adam Ismail v. State of Maharashtra and Others 70, where delay in
forwarding representation by Jail Superintendent was found to be fatal, on
Kenneth Jideofor v. Union of India, Ministry of Finance and
652015(4) KHC 601
66(1981) 4 SCC 481
67(2019) 9 SCC 618
68(1982) 2 SCC 43
69(1982) 2 SCC 380
70(2013) 4 SCC 435
Revenue and Ors71, where the representation submitted was forwarded by
email only to the sponsoring authority and not to the officer empowered to
consider the representation, and the detention order was found to be vitiated as
there was no reason not to communicate the representation to the specially
empowered officer by email.
47. The learned Central Government Counsel contends that there is
absolutely no delay in the consideration of any representation, in these cases. In
so far as Faisal, the detenu in W.P (Crl.) 279/2020, is concerned, the
representation dated 22-7-2020 submitted by him was received by the detaining
authority on 30-7-2020. The comments of the sponsoring authority were sought
by the detaining authority on the same day. The sponsoring authority had
responded to the detaining authority on 5-8-2020 and the detaining authority
had disposed the representation on 6-8-2020. The representation dated 18-8-
2020 seeking parole addressed to the detaining authority was received on 19-8-
2020. Comments were sought from the Jail Superintendent on 20-8-2020. The
comments were received on 23-8-2020. The detaining authority rejected the
request on 25-8-2020 and this was intimated to the respective parties on
26-8-2020. In so far as Abdusameem, the detenu in W.P (Cri.) 280/2020, is
concerned, the request for copies of documents dated 1.7.2020 was sent to the
Joint Secretary (COFEPOSA) and to the sponsoring authority by the Jail
71Manu/KA/4637/2020 DB KAR
Superintendent through registered post. The sponsoring authority received the
request before it was received by the Joint Secretary (COFEPOSA) and
forwarded their comments through e-mail on 10-7-2020. On request (through
telephone) to forward a copy of the representation itself, the sponsoring
authority forwarded the same on 10-7-2020 itself. Copy of the representation
addressed directly to the Joint Secretary (COFEPOSA) was received by the
officer on 13-7-2020. The request/representation was disposed of on the same
day i.e. 13-7-2020. Abdusameem thereafter filed Ext.P14 representation before
the Central government which was received by the officers concerned on 18-8-
2020. Comments were sought regarding the same from the sponsoring
authority on 20-8-2020. The comments of the sponsoring authority were
received on 28-8-2020 (Friday) at 5.51 P.M. The representation was rejected by
a memorandum dated 31-8-2020 (Ext.P.18). Ext.P.15 representation addressed
to the detaining authority was received by that authority on 13-8-2020 through
e-mail. Comments were sought from the sponsoring authority on 14-8-2020.
The hard copy of the representation was received on 18-8-2020 by the detaining
authority. The comments from the sponsoring authority were received on 23-8-
2020 (a Sunday). The representation was rejected on 26-8-2020 through
Ext.P.17. The request for parole for Abdusameem was received by the competent
officers of the central government on 18-8-2020. Comments were requested for
from the jail authority on 20-8-2020. The comments of the Jail authorities were
received on 23-8-2020. The request was disposed of on 25-8-2020 a memo to
this effect was issued on 26-8-2020.
48. It is settled that the law frowns only upon unexplained delay. The
law surely allows reasonable time to the authorities. As held in K.M.Abdulla
Kunhi (supra) there should not be "supine indifference/slackness or callous
attitude" in considering the representation. In the facts and circumstances of
these cases, we find that there is absolutely no delay in the disposal of the
various representations detailed above.
49. The contention raised by the learned counsel for the petitioner in
W.P (Cri.) 279/2020 that the representation made by the detenue (Faisal) to the
Advisory Board should have been considered independently by all authorities
competent to revoke the order of detention can only be rejected in the light of
our findings on the same issue in W.P (Cri) No.255 of 2020.
50. The contention that the failure of the Central Government to consider
the requests made for information, immediately after the grounds of detention
were served on the detenus, and independently of the detaining authority
vitiates the order of detention is only to be rejected. Abdulla Kunhi (supra)
on which considerable reliance has been placed to buttress this contention
certainly does not hold so. It is true that in Abdulla Kunhi (supra) and in
Raziya v. State of Kerala72 which is the other decision relied upon to further
this contention, it has been held that the right to make a representation to the
advisory board and to the central government are distinct and independent
rights and the opinion of the advisory board need not detain the government
from exercising its power to revoke an order of detention. While this
proposition cannot be doubted, it does not appear to us that the decision lays
down a proposition that whenever request for information is made by the
detenue to the detaining authority, the central government must independently
consider that request. We therefore have no hesitation to reject this contention
of the learned counsel for the petitioners.
51. We also reject the contention raised by the learned counsel for the
petitioners that the affidavit in these cases should have been sworn to by the
detaining authority himself, in view of the decision in Madan Lal Anand
(supra).
52. No other point has been raised.
53. In view of our findings, these petitions are disposed of in the
following manner: -
72(2004) 2 SCC 621
(i) W.P (Crl.) 255 of 2020 fails and will stand dismissed; subject
however to the condition that the detention shall run for a period of one year
from 12-07-2020 and not from 22-07-2020 as stated in Ext.P11 order.
(ii) W.P (Crl.) 279/2020 & W.P (Crl.) 280/2020 will stand allowed,
and the detenus, Sri. Faisal Kudilattummal and Sri.Abdussameem are forthwith
set at liberty. Registry shall communicate this direction to the Superintendent of
Prison, Central Prison and Correctional Home, Poojapura,
Thiruvananthapuram, immediately, and on receipt of the same, the
Superintendent of Prison shall release the aforesaid detenus without awaiting
for a copy of this judgment, provided they are not wanted in connection with
any other case.
54. Before we part with these cases we deem it appropriate to place on
record our sincere appreciation for the erudite submissions of counsel who
appeared for various parties in these cases.
(Sd/-)
A.K. JAYASANKARAN NAMBIAR
JUDGE
(Sd/-)
GOPINATH P.
JUDGE
acd/AMG
APPENDIXOF WP(Crl.) 255/2020
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF IMPUGNED ORDER PASSED UNDER SECTION
3 (1) (I) AND 3 (1) (II) OF THE COFEPOSA AGAINST
DETENU
EXHIBIT P2 TRUE COPY OF THE NOTICE DATED 14.07.2020
EXHIBIT P3 TRUE COPY OF THE NOTICE DATED 17.07.2020
EXHIBIT P4 TRUE COPY OF THE GROUNDS OF DETENTION WITH COPY
OF THE LIST OF RELIED UPON DOCUMENTS
EXHIBIT P5 TRUE COPY OF THE LETTER DATED 20.08.2020
EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 26.08.2020 IN WPC
NO.17634 OF 2020
EXHIBIT P7 TRUE COPY OF THE COMMUNICATION DATED 26.08.2020
EXHIBIT P8 TRUE COPY OF THE LETTER DATED 03.09.2020
EXHIBIT P9 TRUE COPY OF THE REPRESENTATION DATED 07.09.2020
EXHIBIT P10 TRUE COPY OF THE COMMUNICATION DATED 08.09.2020
EXHIBIT P11 TRUE COPY OF THE ORDER DATED 01.10.2020
EXHIBIT P12 TRUE COPY OF THE REPRESENTATION DATED 14.10.2020
EXHIBIT P13 TRUE COPY OF THE REPRESENTATION DATED 14.10.2020
EXHIBIT P14 TRUE COPY OF THE ORDER NO 12371/SSA4/2017/HOME
DATED 4/11/2020 ISSUED BY RESPONDENT NO.2
EXHIBIT P15 TRUE COPY OF THE ORDER F.NO.PD-19013/01/2020-
COFEPOSA DATED 6/11/2020 ISSUED BY RESPONDENT
NO.1
APPENDIX OF WP(Crl.) 279/2020
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE ORDER OF DETENTION F.NO.PD
12001/41/2019-COFEPOSA ISSUED BY THE SECOND
RESPONDENT DATED 18.7.19
EXHIBIT P2 A TRUE COPY OF THE EMAIL SENT BY THE DETENUE TO
THE SEVENTH RESPONDENT DATED 30.6.20
EXHIBIT P3 A TRUE COPY OF THE COMMUNICATION ISSUED BY THE
DEPUTY SECRETARY OF THE FIRST RESPONDENT (DS,GO1)
F.NO.PD-12001/41/2019-COFEPOSA TO THE THIRD
RESPONDENT DATED 3.7.20
EXHIBIT P4 A TRUE COPY OF THE GROUNDS OF DETENTION SERVED ON
THE DETENUE BY THE OFFICERS OF THE THIRD
RESPONDENT DATED 11.7.20
EXHIBIT P5 A TRUE COPY OF THE LIST OF DOCUMENTS ISSUED TO THE
DETENU ALONG WITH THE GROUNDS OF DETENTION
EXHIBIT P6 A TRUE COPY OF THE LIST OF DOCUMENTS IN MALAYALAM
ISSUED TO THE DETENU
EXHIBIT P7 A TRUE COPY OF THE REQUEST SENT BY THE DETENU TO
THE SECOND RESPONDENT DATED 1.7.20
EXHIBIT P8 A TRUE COPY OF THE COMMUNICATION PD-15001/14/2020-
COFEPOSA ISSUED BY THE DS, GOI TO THE DETENU DATED
6.8.20
EXHIBIT P9 A TRUE COPY OF THE REPRESENTATION SENT BY THE
DETENU TO THE FOURTH RESPONDENT THROUGH THE FIFTH
RESPONDENT DATED 8.8.20
EXHIBIT P10 A TRUE COPY OF THE COMMUNICATION PD-13001/01/2020
ISSUED BY THE DS, GOI TO THE SECRETARY OF THE AB
DATED 10.8.20
EXHIBIT P11 A TRUE COPY OF THE APPLICATION FOR PAROLE FILED BY
THE DETENU THROUGH THE FIFTH RESPONDENT TO THE DG,
CEIB DATED 18.8.20
EXHIBIT P12 A TRUE COPY OF THE REQUEST FOR PAROLE SENT BY THE
FATHER TO THE DETENU DATED 18.8.20
EXHIBIT P13 A TRUE COPY OF THE APPLICATION SENT BY THE COUNSEL
FOR THE DETENU TO THE DG, CEIB BY EMAIL DATED
18.8.20
EXHIBIT P14 A TRUE COPY OF THE MEMORANDUM PD-15001/19/2020-
COFEPOSA ISSUED BY THE DS, GOI DATED 26.8.20
EXHIBIT P15 A TRUE COPY OF THE ORDER 12001/41/2019-COFEPOSA
ISSUED BY THE DS, GOI DATED 16.9.20
APPENDIX OF WP(Crl.) 280/2020
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE ORDER OF DETENTION F.NO. PD
12001/42/2019-COFEPOSA ISSUED BY THE SECOND
RESPONDENT DATED 18.7.2019.
EXHIBIT P2 A TRUE COPY OF THE ORDER ISSUED BY THE DEPUTY
SECRETARY OF THE FIRST RESPONDENT (DS,GO) F.NO.
PD 12001/42/2019-COFEPOSA TO THE THIRD RESPONDENT
DATED 2.6.20.
EXHIBIT P3 A TRUE COPY OF THE GROUNDS OF DETENTION SERVED ON
THE DETENU BY THE OFFICERS OF THE THIRD
RESPONDENT DATED 18.7.20.
EXHIBIT P4 A TRUE COPY OF THE LIST OF DOCUMENTS ISSUED TO
THE DETENUE ALONG WITH THE GROUNDS OF DETENTION.
EXHIBIT P5 A TRUE COPY OF THE LIST OF DOCUMENTS SUPPLIED TO
THE DETENUE TRANSLATED INTO MALAYALAM.
EXHIBIT P6 A TRUE COPY OF THE REQUEST SENT BY THE DETENUE TO
THE SECOND RESPONDENT DATED 1.7.20.
EXHIBIT P7 A TRUE COPY OF THE COMMUNICATION NO. PD
13001/01/2020-COFEPOSA ISSUED BY THE DS, GOI
DATED 3.7.20.
EXHIBIT P8 A TRUE COPY OF THE COMMUNICATION SENT BY THE
DETENUE TO THE AB DATED 6.7.20.
EXHIBIT P9 A TRUE COPY OF THE COMMUNICATION OF THE SECRETARY
OF THE AB ADDRESSED TO THE DS, GOI DATED DATED
6.7.20.
EXHIBIT P10 A TRUE COPY OF THE COMMUNICATION NO. PD
13001/01/2020-COFEPOSA ISSUED BY THE DS, GOI
DATED 9.7.20.
EXHIBIT P11 A TRUE COPY OF THE COMMUNICATION NO. PD
13001/01/2020-COFEPOSA ISSUED BY DS. GOI TO THE
SECRETARY OF THE AB DATED 13.7.20.
EXHIBIT P12 A TRUE COPY OF THE REPRESENTATON SENT BY THE
DETENUE TO THE AB DATED 13.7.20.
EXHIBIT P13 A TRUE COPY OF THE MEMORANDUM PD 12001/42/2019-
COFEPOSA SENT BY THE DS, GOI TO THE DETENUE DATED
13.7.20.
EXHIBIT P14 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY
THE DETENUE BEFORE THE DG, CEIB DATED 11.8.20.
EXHIBIT P15 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY
THE DETENUE BEFORE THE SECOND RESPONDENT DATED
11.8.20.
EXHIBIT P16 A TRUE COPY OF THE ORDER NO. PD12001/42/2019-
COFEPOSA ISSUED BY THE DS, GOI DATED 26.8.20.
EXHIBIT P17 A TRUE COPY OF THE MEMORANDUM PD 15001/15/2020
COFEPOSA DATED 26.8.20 ISSUED BY THE DS, GOI TO
THE DETENUE SERVED ON 27.8.20.
EXHIBIT P18 A TRUE COPY OF THE MEMORANDUM PD 15001/18/2020-
COFEPOSA DATED 31.8.20 ISSUED BY THE DS, GOI TO
THE DETENUE SERVED ON 8.9.20.
