Full Judgment Text
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CASE NO.:
Appeal (crl.) 546 of 2007
PETITIONER:
Union of India
RESPONDENT:
Yumnam Anand M. @ Bocha @ Kora @ Suraj & Anr
DATE OF JUDGMENT: 12/04/2007
BENCH:
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NO. 546 OF 2007
(Arising out of SLP (Crl.) No. 6033 of 2006)
Dr. ARIJIT PASAYAT, J.
Leave granted.
Challenge in this appeal is to the judgment of the
Division Bench of the Gauhati High Court, Imphal Bench,
allowing the habeas corpus petition filed by respondent no.1.
In the writ petition before the High Court the order of the
District Magistrate Tamenglong passed in exercise of powers
conferred under sub-section (3) of Section 3 of the National
Security Act, 1980 (in short the ’Act’) read with Home
Department’s Order No.17(1)/49/80-S(Pt) dated 31.5.2005
was challenged. Though several grounds were urged in
support of the application, the High Court accepted the stand
that there was unexplained delay in disposing of the
representation made. It is to be noted that counter affidavit
had been filed giving details of the steps taken after the receipt
of the representation. It was explained that some time was
taken to obtain the view of the sponsoring authority. The High
Court held that the views of the sponsoring authority were not
necessary to be taken and, therefore, the delay had not been
properly explained. Accordingly the order of detention was
quashed.
Learned counsel for the appellant submitted that the
view expressed by the High Court is clearly contrary to the
views expressed by this Court in several cases.
There is no appearance on behalf of respondent no.1 in
spite of the service of the notice.
The factual position needs to be noted before dealing with
the contention as to desirability of obtaining views of
sponsoring authority. The order of detention dated 3.9.2005
was served on respondent no.1 (hereinafter referred to as the
’detenu’) on 14.9.2005. The detention was approved by the
Governor of Manipur on 26.9.2005. The Ministry of Home
Affairs received the representation made by the detenu
against the detention on 3.11.2005. Immediately the parawise
comments were called for from the sponsoring authority. The
comments were received on 19.12.2005 and on 20.12.2005
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the representation was rejected. On 7.11.2005 detenu filed a
Writ Petition (Crl.) No. 50 of 2005 before the Gauhati High
Court Imphal Bench for quashing the order of detention. It
was submitted that there was unusual delay in disposing of
the writ petition filed by the detenu.
So far as the pivotal question whether there was delay
in disposal of the representation is concerned, same has to
be considered in the background of Article 22(5) of the
Constitution. A constitutional protection is given to every
detenu which mandates the grant of liberty to the detenu to
make a representation against detention, as imperated in
Article 22(5) of the Constitution. It also imperates the
authority to whom the representation is addressed to deal
with the same with utmost expedition. The representation is
to be considered in its right perspective keeping in view the
fact that the detention of the detenu is based on subjective
satisfaction of the authority concerned, and infringement of
the constitutional right conferred under Article 22(5)
invalidates the detention order. Personal liberty protected
under Article 21 is so sacrosanct and so high in the scale of
constitutional values that it is the obligation of the detaining
authority to show that the impugned detention meticulously
accords with the procedure established by law. The
stringency and concern of the judicial vigilance that is
needed was aptly described in the following words in Thomas
Pacham Dales’ case: (1881 (6) QBD 376):
"Then comes the question upon the habeas
corpus. It is a general rule, which has always
been acted upon by the Courts of England,
that if any person procures the imprisonment
of another he must take care to do so by
steps, all of which are entirely regular, and
that if he fails to follow every step in the
process with extreme regularity the Court will
not allow the imprisonment to continue."
Article 21 of the Constitution having declared that no
person shall be deprived of life and liberty except in
accordance with the procedure established by law, a
machinery was definitely needed to examine the question of
illegal detention with utmost promptitude. The writ of habeas
corpus is a device of this nature. Blackstone called it "the
great and efficacious writ in all manner of illegal confinement".
The writ has been described as a writ of right which is
grantable ex dobito justitae. Though a writ of right, it is not a
writ of course. The applicant must show a prima facie case of
his unlawful detention. Once, however, he shows such a
cause and the return is not good and sufficient, he is entitled
to this writ as of right.
In case of preventive detention no offence is proved, nor
any charge is formulated and the justification of such
detention is suspicion or reasonability and there is no criminal
conviction which can only be warranted by legal evidence.
Preventive justice requires an action to be taken to prevent
apprehended objectionable activities. (See Rex v. Nallidev
(1917 AC 260); Mr. Kubic Dariusz v. Union of India and
others (AIR 1990 SC 605). But at the same time, a person’s
greatest of human freedoms, i.e., personal liberty is deprived,
and, therefore, the laws of preventive detention are strictly
construed, and a meticulous compliance with the procedural
safeguard, however, technical is mandatory. The compulsions
of the primordial need to maintain order in society, without
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which enjoyment of all rights, including the right of personal
liberty would lose all their meanings, are the true justifications
for the laws of preventive detention. This jurisdiction has been
described as a "jurisdiction of suspicion", and the compulsions
to preserve the values of freedom of a democratic society and
social order sometimes merit the curtailment of the individual
liberty. (See Ayya alias Ayub v. State of U.P. and another (AIR
1989 SC 364). To lose our country by a scrupulous adherence
to the written law, said Thomas Jafferson, would be to lose the
law, absurdly sacrificing the end to the means. No law is an
end itself and the curtailment of liberty for reasons of State’s
security and national economic discipline as a necessary evil
has to be administered under strict constitutional restrictions.
No carte blanche is given to any organ of the State to be the
sole arbiter in such matters.
The High Court was of the view that parawise comments
were not required to be called for and it was held that the
same was fatal to the detention.
The question as to whether the views of the sponsoring
authority are to be called for and whether they are necessary
have been dealt with in several cases. In Kamarunnissa v.
Union of India and Anr. (1991 (1) SCC 128) it was observed as
under:
"The learned counsel for the petitioners
raised several contentions including the
contentions negatived by the High Court of
Bombay. It was firstly contended that the
detenus had made representations on
December 18, 1989 which were rejected by the
communication dated January 30, 1990 after
an inordinate delay. The representations
dated December 18, 1989 were delivered to the
jail authorities on December 20, 1989. The jail
authorities dispatched them by registered post.
December 23, 24 and 25, 1989 were non-
working days. The representations were
received by the COFEPOSA Unit on December
28, 1989. On the very next day i.e. December
29, 1989 they were forwarded to the
sponsoring authority for comments. December
30 and 31, 1989 were non-working days.
Similarly, January 6 and 7, 1990 were non-
working days. The comments of the
sponsoring authority were forwarded to the
COFEPOSA Unit on January 9, 1990. Thus it
is obvious that the sponsoring authority could
not have received the representation before
January 1, 1990. Between January 1, 1990
and January 8, 1990 there were two non-
working days, namely, January 6 and 7, 1990
and, therefore, the sponsoring authority can be
said to have offered the comments within the
four or five days available to it. It cannot,
therefore, be said that the sponsoring
authority was guilty of inordinate delay. The
contention that the views of the sponsoring
authority were totally unnecessary and the
time taken by that authority could have been
saved does not appeal to us because
consulting the authority which initiated the
proposal can never be said to be an
unwarranted exercise. After the COFEPOSA
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Unit received the comments of the sponsoring
authority it dealt with the representations and
rejected them on January 16, 1990. The
comments were dispatched on January 9,
1990 and were received by the COFEPOSA
Unit on January 11, 1990. The file was
promptly submitted to the Finance Minister on
the 12th; 13th and 14th being non-working days,
he took the decision to reject the
representation on January 16, 1990 and the
memo of rejection was dispatched by post on
January 18, 1990. It appears that there was
postal delay in the receipt of the
communication by the detenus but for that the
detaining authority cannot be blamed. It is,
therefore, obvious from the explanation given
in the counter that there was no delay on the
part of the detaining authority in dealing with
the representations of the detenus. Our
attention was drawn to the case law in this
behalf but we do not consider it necessary to
refer to the same as the question of delay has
to be answered in the facts and circumstances
of each case. Whether or not the delay, if any,
is properly explained would depend on the
facts of each case and in the present case we
are satisfied that there was no delay at all as is
apparent from the facts narrated above. We,
therefore, do not find any merit in this
submission."
Again in Dr. Prakash v. State of T.N. and Ors. (2002 (7)
SC 759) it was held as follows:
"It is lastly contended that the State
Government was prejudiced by the opinion
rendered by the detaining authority. This
argument is built around the fact that the
State Government sought parawise remarks
from the 2nd respondent while dealing with the
petitioner’s representation. In response to that
the 2nd respondent while sending his remarks
in the last para stated that the petitioner’s
representation may be rejected. This
recommendation according to the learned
counsel has weighed in the mind of the
confirming authority to reject the petitioner’s
representation. We are unable to accept this
argument also. It is normal under the rules of
business for the Government to seek the
remarks of the officer against whose order a
representation is made to the Government. As
a matter of fact, if such remarks are not called
for and statutory representations are rejected
summarily by the Government it would be
considered as a rejection without application of
mind. Therefore, in cases where the
considering authority feels that the remarks of
the officer who made the original order are
necessary then such superior authority must
call for such remarks. In the instant case, the
representation filed by the detenu did raise
certain factual points which without the
comment of the detaining authority might have
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been difficult to be dealt with. Therefore, in
our opinion, the authority considering the
representation had justly called for the
remarks. The next limb of this argument that
the State Government was influenced by the
remarks of the detaining authority to dismiss
the representation is too far-fetched. In the
instant case, the Government of Tamil Nadu
has been authorized to be the authority to
consider the representation against the
detention order made by the Commissioner of
Police who is subordinate to it. Therefore, to
presume that such higher authority would be
influenced by an observation made by the
subordinate to such an extent as to surrender
its independent authority is to demean the
independence of authority exercised by the
State Government, hence this argument is
recorded here only to be rejected."
In the circumstances, the High Court’s impugned order is
clearly indefensible and is set aside. However, the detaining
authority shall decide within a period of two months if it would
be desirable to take back the respondent no.1 to custody.
The appeal is allowed.