Madras High Court
S.Zahir Hussain vs The State Rep. By on 19 September, 2023
2023:MHC:4313
HCP No.1333 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.09.2023
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MR.JUSTICE R.SAKTHIVEL
H.C.P.No.1333 of 2023
S.Zahir Hussain
S/o.Sahul Hameed .. Petitioner
Vs.
1. The State rep. by
Secretary to Government
Public (S.C.) Department
Chennai-600 009.
2. The Directorate of Revenue Intelligence
Represented by Additional Director General
Department of Revenue
Ministry of Finance
Government of India
No.25, Gopalakrishna Iyer Street
T.Nagar, Chennai-600 017.
3. The Superintendent
Central Prison-II
Puzhal, Chennai-600 066.
..Respondents
Petition filed under Article 226 of the Constitution of India praying for
issuance of a writ of habeas corpus to direct the respondents to produce the
petitioner, now detained at Central Prison, Puzhal, before this Hon'ble Court,
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call for the records of detention order passed by the 1st respondent vide
COFEPOSA detention order vide G.O.No.SR.1/723-5/2010 Public (S.C.)
Department dated 30.12.2020 and set aside the same and set him at liberty.
For Petitioner : Mr.Abdul Hameed
Senior counsel
for Mr.S.Elambharathi
For Respondents : Mr.A.Gokulakrishnan
Additional Public Prosecutor
for R1 & R3
Mr.R.Rajesh Vivekananthan,
Deputy Solicitor General of India
for R2
ORDER
[Order of the Court was made by M.SUNDAR, J.,]
This order will now dispose of the captioned 'Habeas Corpus Petition'
[hereinafter 'HCP' for the sake of brevity, convenience and clarity].
2. When the captioned HCP was listed for Admission on 24.07.2023,
the following proceedings / orders were made:
'H.CP.No.1333 of 2023
M.SUNDAR. J.,
AND
R.SAKTHIVEL. J.,
Captioned 'Habeas Corpus Petition' ['HCP' for the sake
of brevity] has been filed assailing a 'preventive detention order
dated 30.12.2010 bearing reference G.O.No.SR.1/723-5/2010
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Public (S.C.) Department made by the first respondent'
[hereinafter 'impugned preventive detention order' for the sake
of brevity, convenience and clarity].
2. Mr.Abdul Hameed, learned Senior counsel instructed
by counsel on record Mr.S.Elambharathi, is before this Court in
the Admission Board.
3. Short facts are that impugned preventive detention
order has been made by the 'first respondent' [hereinafter
'Detaining Authority' for the sake of convenience and clarity];
that impugned preventive detention order has been made by the
Detaining Authority under Section 3(1) 'The Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act,
1974 (Central Act 52 of 1974)' [hereinafter 'COFEPOSA Act'
for the sake of convenience]; that after the impugned preventive
detention order was made, petitioner moved this Court by of a
writ petition being W.P.No.25319 of 2011 together with
W.M.P.No.3943 of 2020 thereat with a prayer to forbear arrest
and execution pursuant to impugned preventive detention order;
that in the writ petition an interim order was granted on
08.11.2011; that the writ petition ultimately came to be
dismissed on 03.01.2023; that the dismissal of writ petition was
carried to Hon'ble Supreme Court vide Special Leave to Appeal
(Crl.) No.933 of 2023; that this SLP came to be dismissed at the
SLP stage itself (pre-leave stage) on 30.01.2023 by the Hon'ble
Supreme Court; that thereafter the detenu (to be noted, the
detenu himself is the habeas corpus petitioner before us) was
arrested on 30.05.2023; that according to learned Senior
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HCP No.1333 of 2023
counsel detenu sent a representation dated 24.06.2023; that the
Advisory Board met on 05.07.2023 but the detenu is not aware
of the outcome; that the captioned HCP has not been filed in this
Court on 17.07.2023 post Advisory Board meeting on
05.07.2023; that it is submitted that in the earlier writ petition,
the impugned preventive detention order was not assailed and
only a mandamus restraining arrest and detention pursuant to
impugned preventive detention order was sought is learned
Senior counsel's say; that while earlier writ was prior to
detention, it has now become necessary to assail the impugned
preventive detention order by way of a writ of habeas corpus as
the detenu has been arrested (pursuant to impugned preventive
detention order) and is now incarcerated.
4. In his campaign against the impugned preventive
detention order, learned Senior counsel submits that a)
statements given in 2010 by two importers who imported
decorative items (glass) is the substratum qua impugned
preventive detention order but the importers have not been
detained; b) the habeas corpus petitioner is a practising
Advocate and the impugned preventive detention order is an
attempt to interfere with the professional work of the petitioner
and c) it is vitiated by non-application of mind.
5.To be noted, the above are some of the points projected
in the Admission Board and several other points have been
raised / urged in the support affidavit qua captioned HCP.
6. Admit. Issue notice returnable by a fortnight i.e.,
returnable by 07.08.2023.
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7. Applying second limb sub-rule (3) of Rule 19 of
'Madras High Court Writ Rules, 2021' [hereinafter 'MHC Writ
Rules' for the sake of convenience] which provides for issue of
Rule Nisi returnable earlier than four weeks, we have issued
notice returnable in a fortnight considering the peculiar facts
and circumstances of this case making it clear that this will not
serve as a precedent in all cases. In other words, resorting to
Rule 19(3) of MHC Writ Rules will not be a routine and it will be
in exceptional cases and the discretion of the Hon'ble Court
concerned, if the need arises. To be noted, the issue of shorter
Rule Nisi notice has been referred to Hon'ble Rule Committee in
another matter.
8. Mr.A.Gokulakrishnan, learned Additional Public
Prosecutor accepts notice for Respondents 1 and 3. As regards
Respondent No.2, besides notice, counsel on record for habeas
corpus petitioner is permitted to serve on Mr.R.Rajesh
Vivekananthan, learned Deputy Solicitor General of India,
clearly mentioning the returnable date.
List on 07.08.2023.'
3. Post Admission in the listing on 31.08.2023, captioned HCP was
heard for some time and proceedings made on that day are as follows:
'H.C.P.No.1333 of 2023
M.SUNDAR, J.,
and
R.SAKTHIVEL, J.
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(Order of the Court was made by M.SUNDAR, J.,)
Read this in conjunction with and in continuation of earlier
proceedings made in the previous listings.
2. Today, Mr.Abdul Hameed, learned Senior counsel
instructed by Mr.S.Elambharathi, learned counsel on record for the
petitioner, Mr.A.Gokulakrishnan, learned State Additional Public
Prosecutor for Respondents 1 & 3 and Mr.R.Rajesh
Vivekananthan, learned Deputy Solicitor General of India for the
second respondent (Sponsoring Authority) were before us.
3. Learned Senior counsel in his campaign against the
impugned preventive detention order inter alia raised three points
and they are as follows:
i) in Sub-paragraph (xvii) of the opening paragraph of the
grounds of impugned preventive detention order, the Detaining
Authority has recorded that anticipatory bail petitions filed by the
detenu and another in which a common counter dated 14.12.2010
had been filed by the Sponsoring Authority is pending whereas the
anticipatory bail plea was dismissed on 23.12.2010 by a Hon'ble
single Judge of this Court. To be noted, the impugned preventive
detention order is dated 30.12.2010. According to learned Senior
counsel, this is a) non-application of mind; and b) impairment of
subjective satisfaction regarding imminent possibility of detenu
being enlarged on bail;
ii) Adverting to paragraph 11 of the counter affidavit filed
by the Detaining Authority, it was submitted that there was delay in
considering the 24.06.2023 representation of the petitioner. It was
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submitted that there is leap in certain dates in the chronicle
/chronology recorded there;
iii) 'Live and proximate link' between grounds of detention
and purpose of detention has snapped for two reasons:
a) the writ petition (mandamus writ petition) being
W.P.No.25319 of 2011 was dismissed on 03.01.2023 and thereafter
there was no arrest though SLP came to be dismissed only on
30.01.2023;
b) Post 30.01.2023, (SLP dismissal also), the arrest was only
on 30.05.2023;
4. Learned State Additional Public Prosecutor adverting to
Section 5A of 'The Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974 (Central Act 52 of
1974)' [hereinafter 'COFEPOSA Act' for the sake of convenience]
submitted that the 'grounds' on which a preventive detention order
is made are not severable. The neat question that falls for
consideration is whether this would be 'grounds' adumbrated in
Section 3(1) of COFEPOSA Act and as to whether Section 5A will
come in the way when Banik principle [Sushanta Kumar Banik
Vs. State of Tripura & others reported in 2022 LiveLaw (SC) 813
: 2022 SCC OnLine SC 1333] or impairment of subjective
satisfaction across the Board principle are canvassed.
5. Both sides requested for some time to examine the
position and revert to this Court. Request of both sides acceded to.
List on Tuesday. List on 05.09.2023.'
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4. Aforementioned Admission Board proceedings dated 24.07.2023
and proceedings made in the listing on 31.08.2023 shall now be read as an
integral part and parcel of this final order. This means that short forms,
abbreviations and short references used in the aforementioned earlier
proceedings / orders shall continue to be used in this final order also for the
sake of brevity, convenience and clarity. Be that as it may, as the
aforementioned orders / proceedings capture all essentials i.e., factual matrix
in a nutshell that is imperative for appreciating this final order as well as the
trajectory the matter has taken thus far and grounds that have been urged by
Mr.Abdul Hameed, learned Senior counsel in his campaign against the
impugned preventive detention order, we are not setting out the same again in
this final order. In the 24.07.2023 Admission Board order, in paragraph
No.3, a typographical error has crept in '......captioned HCP has not been filed
in this Court on 17.07.2023.........' should read as '...............captioned HCP
has now been filed in this Court on 17.07.2023...............'. This has to be
read as an Errata. As regards paragraph No.7 of same Admission Board
order, reference to Rule Committee is the question of providing shorter Rule
Nisi (less than 4 weeks) across the Board for HCPs.
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5. As regards the point turning on Section 5-A of COFEPOSA Act,
learned Senior counsel drew our attention to paragraph No.5 of grounds of
the impugned preventive detention order which reads as follows:
5. The State Government are satisfied that on the facts and
material mentioned above, if you remain at large, you will indulge
in such prejudicial activities again. The State Government are
also satisfied that further recourse to normal criminal law would
not have the desired effect of effectively preventing you from
indulging in such activities. The State Government, therefore,
consider that, it is necessary to detain you under Section 3(1)(i) of
the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974, with a view to preventing you from
smuggling of goods in future.'
{underlining made by this Court is
for ease of reference and for emphasis}
6. Adverting to aforementioned paragraph No.5 of grounds of
impugned preventive detention order and taking us through Section 3 of
COFEPOSA Act, it was submitted that preventive detention orders under
COFEPOSA Act can be clamped on as many as 5 'grounds' and in the case on
hand, it is clamped on only one ground vide Section 3(1)(i) of COFEPOSA
Act namely, 'smuggling goods'. Learned Senior counsel submitted that only
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when a preventive detention order is clamped on a detenu on two or more
grounds adumbrated in under Section 3(1) of COFEPOSA Act, Section 5-A of
COFEPOSA Act would kick in. On a careful perusal of Section 5-A of
COFEPOSA Act and some of the case laws {to be noted as regards case laws,
one of the case laws for an illustration is Madan Lal Anand case [Madan
Lal Anand Vs. Union of India and others reported in 1990 1 SCC 81]} we
are convinced that in a case where preventive detention order under
COFEPOSA Act is clamped on only one of the grounds adumbrated in
Section 3(1) of COFEPOSA Act, Section 5-A of COFEPOSA Act will not
apply. To be noted, as regards Madan Lal Anand case, preventive detention
order was clamped on two grounds under Section 3(1) of COFEPOSA Act
namely, (i) smuggling goods and (iv) dealing in smuggled goods otherwise
than by engaging in transporting or concealing or keeping smuggled goods.
This is evident from paragraph No.2 of Madan Lal Anand case which reads
as follows:
'2. This appeal is directed against the judgment of the
High Court of Punjab & Haryana, dismissing the writ petition
filed by three detenues including one Madan Lal Anand, the
husband of the appellant, challenging the validity of the orders of
detention, all dated September 30, 1988, passed by the Joint
Secretary to the Government of India, the detaining authority,
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under section 3(1) of the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act, 1974, hereinafter referred
to as the 'COFEPOSA Act'. So far as the detenu Madan Lal
Anand is concerned, the order of detention was passed 'with a
view to preventing the detenu from abetting the smuggling of
goods and dealing in smuggled goods otherwise than by
engaging in transporting or concealing or keeping smuggled
goods'. The order of detention along with the grounds of such
detention was served on the detenu on October 18, 1988 and a
declaration under section 9 of the COFEPOSA Act was made on
November 2, 1988 and served on him on November 3, 1988.'
7. It is in this context that Hon'ble Supreme Court in paragraph No.29
of Madan Lal Anand case has held as follows:
29. In the instant case, even assuming that the ground
relating to the confessional statement made by the detenu under
section 108 of the Customs Act was an inadmissible ground as the
subsequent retraction of the confessional statement was not
considered by the detaining authority, still then that would not
make the detention order bad, for in the view of this Court, such
order of detention shall be deemed to have been made separately
on each of such grounds. Therefore, even excluding the
inadmissible ground, the order of detention can be justified. The
High Court has also overruled the contention of the detenu in this
regard and, in our opinion, rightly.'
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8. To be noted, aforementioned Madan Lal Anand case is cited only
as an illustration to say that Section 5-A of COFEPOSA Act would kick in
and operate only in cases where preventive detention order is made on two or
more grounds. In other words, preventive detention order should have been
made on atleast two out of five grounds, for Section 5-A of COFEPOSA Act
to be attracted. In the case on hand, paragraph No.5 of grounds of impugned
preventive detention order (extracted and reproduced supra and alluded to
supra) makes it clear that impugned preventive detention order has been
made only on one ground and therefore, Section 5-A of COFEPOSA Act does
not apply. This clears the clutter or in other words this clears Section 5-A of
COFEPOSA Act point that was urged and that has been captured in our
proceedings made in the listing on 31.08.2023.
9. This Court, now proceeds to consider the three points that were
urged by learned Senior counsel in his campaign against the impugned
preventive detention order. To be noted, these three points are captured in
our earlier proceedings dated 31.08.2023. We take Banik's principle point
first i.e., 'live and proximate link' between the grounds of detention and
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purpose of detention having snapped. In this regard, our attention was drawn
to a tabulation in sub-paragraph (i) of paragraph No.29 of counter affidavit of
first respondent (Detaining Authority) which reads as follows:
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10. In the aforementioned tabulation, S.Nos.4 and 7 are of relevance.
This means that while proposal has been made by Sponsoring Authority i.e.,
second respondent on 06.11.2010, impugned preventive detention order has
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been made only on 30.12.2010 by the Detaining Authority (first respondent).
As would be evident from the tabulation, the period between 06.11.2010 and
30.12.2010 (nearly eight weeks) talks only about queries and replies as
between the Sponsoring Authority and Detaining Authority. As regards
Banik's principle, which arises under 'Prevention of Illicit Traffic in Narcotic
Drugs and Psychotropic Substances Act, 1988' [hereinafter 'PIT NDPS Act'
for the sake of brevity], the same is reiteration of time honoured Bhawarlal
Ganeshmalji case [Bhawarlal Ganeshmalji v. State of Tamil Nadu reported
in (1979) 1 SCC 465] principle. The delay in making of impugned
preventive detention order i.e., time consumed between the date of proposal
for detention by Sponsoring Authority and the actual date of making of
impugned preventive detention order was considered, it relied on Bhawarlal
Ganeshmalji ratio and it was held that 'live and proximate link' between the
grounds of detention and purpose of detention has snapped. Relevant
paragraphs in Banik's principle as reported in LiveLaw are paragraph
Nos.18, 20 and 21 which read as follows:
'18. Chinnappa Reddy, J. speaking for the Bench in
Bhawarlal Ganeshmalji v. State of Tamil Nadu, (1979) 1 SCC 465,
has explained as follow:
“It is further true that there must be a “live and proximate
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link” between the grounds of detention alleged by the detaining
authority and the avowed purpose of detention namely the
prevention of smuggling activities. We may in appropriate cases
assume that the link is “snapped” if there is a long and unexplained
delay between the date of the order of detention and the arrest of
the detenu. In such a case, we may strike down an order of
detention unless the grounds indicate a fresh application of the
mind of the detaining authority to the new situation and the
changed circumstances. But where the delay is not only adequately
explained but is found to be the result of the recalcitrant or
refractory conduct of the detenu in evading arrest, there is warrant
to consider the “link” not snapped but strengthened.”
(Emphasis supplied)
20. It is manifestly clear from a conspectus of the above
decisions of this Court, that the underlying principle is that if there
is unreasonable delay between the date of the order of detention &
actual arrest of the detenu and in the same manner from the date of
the proposal and passing of the order of detention, such delay
unless satisfactorily explained throws a considerable doubt on the
genuineness of the requisite subjective satisfaction of the detaining
authority in passing the detention order and consequently render
the detention order bad and invalid because the “live and
proximate link” between the grounds of detention and the purpose
of detention is snapped in arresting the detenu. A question whether
the delay is unreasonable and stands unexplained depends on the
facts and circumstances of each case.
21. In the present case, the circumstances indicate that the
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detaining authority after the receipt of the proposal from the
sponsoring authority was indifferent in passing the order of
detention with greater promptitude. The “live and proximate link”
between the grounds of detention and the purpose of detention
stood snapped in arresting the detenu. More importantly the delay
has not been explained in any manner & though this point of delay
was specifically raised & argued before the High Court as evident
from Para 14 of the impugned judgment yet the High Court has not
recorded any finding on the same.'
11. In the case on hand, from the tabulation supra, more particularly
S.Nos.4 and 7 thereat, we have no hesitation in saying that Banik's principle
applies, impugned preventive detention order is vitiated as 'live and proximate
link' between the grounds of detention and purpose of detention has snapped.
12. As the impugned preventive detention order has been made on only
one of three grounds vide Section 3(1) of COFEPOSA Act, the
aforementioned one point will suffice to dislodge the impugned preventive
detention order in a habeas legal drill. However, as we have captured other
two points also, we deem it appropriate to deal with the same. Before we
deal with the same, we make it clear that we had recorded the time consumed
between the date of dismissal of writ petition on 03.01.2023 and the date of
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dismissal of SLP on 30.01.2023 besides the time consumed between
30.01.2023, (SLP dismissal date) and the actual date of arrest i.e., on
30.05.2023 but without going into the same as there is delay in making of
the impugned preventive detention order, we have proceeded to sustain the
Banik's principle argument on the basis of what has been delineated supra.
13. The next point that was urged is, representation dated 24.06.2023
and delay in considering the same. As regards the delay point, counter
affidavit filed by Detaining Authority (first respondent) and paragraph No.11
thereat is of relevance. The chronology set out therein i.e., in paragraph
No.11 of counter affidavit of Detaining Authority (counter affidavit dated
21.08.2023) is as follows:
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14. Adverting to the above, learned Senior counsel submitted that as
regards S.No.2, 30.06.2023 (Friday) was a working day but that remains
unexplained. Likewise, 03.07.2023 and 04.07.2023 (Monday and Tuesday)
were working days but this remain unexplained. Adverting to S.No.7,
learned Senior counsel submitted that 11.07.2023 (Tuesday) was a working
day and that remains unexplained. These leaps i.e., unexplained leaps are
good enough to say that there has been delay in considering the
representation sent qua impugned preventive detention order. Considering
the representation qua any preventive detention order is a sanctus/sacrosanct
constitutional safeguard ingrained in Article 22(5) of Constitution of India
and violation of the same leads to vitiation of the impugned preventive
detention order, leaving it liable for being dislodged in a habeas legal drill. In
the light of the narrative thus far, we have no difficulty in sustaining the
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second point also and saying that there is a delay in considering the
representation and consequent breach of Article 22(5) of the Constitution of
India safeguard and therefore, impugned preventive detention order deserves
to be dislodged on this ground also.
15. As regards the first point urged, we find that dates are indisputable
and therefore there is no difficulty in accepting the submission that Detaining
Authority has proceeded on the basis that anticipatory bail petition is pending
even as on 30.12.2010 (date of impugned preventive detention order) though
it was dismissed by Hon'ble single Judge of this Court on 23.12.2010.
This is non-application of mind which is more than obvious.
16. As would be evident from the narrative, discussion and dispositive
reasoning supra, we have copiously extracted from counter affidavit of
Detaining Authority as well as Sponsoring Authority. Therefore, as regards
the stand of Mr.R.Rajesh Vivekananthan, learned Deputy Solicitor General of
India for second respondent and Mr.A.Gokulakrishnan, learned State
Additional Public Prosecutor for respondents 1 and 3, the matter turns
heavily on records and therefore, we have gone only by counter affidavits that
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have been placed before us. Suffice to say that the points turning on Section
5-A of COFEPOSA Act raised by learned Prosecutor and learned Deputy
Solicitor General captured in our earlier proceedings dated 31.08.2023 have
now remain answered.
17. For the sake of completion of facts, we deem it appropriate to
record that proceedings of the State Advisory Board under COFEPOSA Act
being proceedings dated 05.07.2023 bearing reference No.01/2023 has been
placed before us and the Advisory Board has sustained the order of detention
but that really does not have any impact qua habeas legal drill on hand
which has been tested on the aforementioned points.
18. The sum sequitur of the narrative, discussion and dispositive
reasoning thus far is, impugned preventive detention order is vitiated and the
same is liable to be dislodged in this habeas legal drill.
19. Ergo, sequitur is captioned HCP is allowed. Impugned preventive
detention order dated 30.12.2010 bearing reference G.O.No.SR.1/723-5/2010
Public (S.C.) Department made by the first respondent is set aside and the
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detenu Thiru.Zahir Hussain, male, aged 41 years, son of Thiru.Sahul
Hameed, is directed to be set at liberty forthwith, if not required in connection
with any other case / cases. There shall be no order as to costs.
(M.S.,J.) (R.S.V.,J.)
19.09.2023
Index : Yes
Speaking
Neutral Citation : Yes
mk
P.S: Registry to forthwith communicate this order to Jail authorities in
Central Prison, Chennai.
To
1. The State rep. by
Secretary to Government
Public (S.C.) Department
Chennai-600 009.
2. The Directorate of Revenue Intelligence
Represented by Additional Director General
Department of Revenue
Ministry of Finance
Government of India
No.25, Gopalakrishna Iyer Street
T.Nagar, Chennai-600 017.
3. The Superintendent
Central Prison-II
Puzhal, Chennai-600 066.
4. The Public Prosecutor
High Court, Madras.
M.SUNDAR, J.,
and
R.SAKTHIVEL, J.,
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mk
H.C.P.No.1333 of 2023
19.09.2023
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