Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7
PETITIONER:
ABDU SALAM @ THIYYAN S/O THIYYAN MOHAMMAD,DETENU NO. 962, GE
Vs.
RESPONDENT:
UNION OF INDIA AND OTHERS
DATE OF JUDGMENT17/04/1990
BENCH:
REDDY, K. JAYACHANDRA (J)
BENCH:
REDDY, K. JAYACHANDRA (J)
PANDIAN, S.R. (J)
CITATION:
1990 AIR 1446 1990 SCR (2) 517
1990 SCC (3) 15 JT 1990 (3) 74
1990 SCALE (1)31
ACT:
Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act--Section 3(D--Detention order--Mere
delay in arresting detenu--Whether casts doubt on the genu-
ineness of the subjective satisfaction of the detaining
authority--Delay in making the detention order and disposal
of representation by the Central Government whether fatal.
HEADNOTE:
The appellant after his Haj pilgrimage had been to
Jeddah and from Jeddah he landed in Bombay on 15.9.1987.
Thereafter he boarded a bus to go to his native place in
Kerala. On 17.9.1987, the Custom authorities intercepted the
bus wherein the petitioner was travelling and in the
presence of the panch witnesses, searched his person and the
chappals worn by him. On opening the chappals about 13 gold
ingots with foreign markings were found and they were duly
recovered. The appellant confessed that he was introduced to
a person who promised to give him remuneration for carrying
the gold to India and that is how he brought those gold
biscuits. The detaining authority passed the detention order
against the appellant on 21.9.1988, and grounds of detention
were served on him within time and he was informed that if
he so desired he could make a representation to the Advisory
Board, and also that he could make a representation to the
detaining authority or the Central Government. The appellant
challenged his detention by means of a writ petition in the
High Court and the same having been dismissed, he has filed
this appeal after obtaining special leave. The appellant
urged: (i) that the delay in making the detention order and
the disposal of his representation by the Central Government
are fatal and violative of Article 22(5) of the Constitution
of India; and (ii) that the delay in arresting him pursuant
to the detention order casts a doubt on the genuineness of
the subjective satisfaction of the detaining authority.
Dismissing the appeal, this Court,
HELD: Delay ipso facto in passing an order of detention
after an
518
incident is not fatal to the detention of a person. In this
case the delay by itself does not invalidate the detention
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7
but even otherwise it has been reasonably explained. [524G]
From the explanation it can be seen that the representa-
tion was considered most expeditiously and there is no
"negligence or callous inaction or avoidable red-tapism’ ’.
[523C]
It can therefore be seen that on the mere delay in
arresting the detenu pursuant to the order of detention the
subjective satisfaction of the detaining authority cannot be
held to be not genuine. Each case depends on its own facts
and circumstances. The Court has to see whether the delay is
explained reasonably. In the instant case, this Court is
satisfied with the explanation for the delay in arresting
the detenu. [525G-H]
Khudiram Das v. The State of West Bengal & Ors., [1975]
2 S.C.C. 81; Tara Chand v. State of Rajasthan, [1980] 2
S.C.C. 321; Shyam Ambalal Siroya v. Union of India & Ors.,
[1980] 2 S.C.R. 1078; Sabir Ahmed v. Union of India & Ors.,
[1980] 3 SCR 738; Rama Dhondu Borade v.V.K. Saraf, Commis-
sioner of Police & Ors., [1989] 3 S.C.C. 173; T.A. Abdul
Rahman v. State of Kerala & Ors., [1989] 4 S.C.C. 741;
Lakshman Khatik v. The State of West Bengal, [1974] 4 S.C.C.
1; Rajendrakumar Natvarlal Shah v. State of Gujarat & Ors.,
[1988] 3 S.C.C. 153; Yogendra Murari v. State of UP., [1988]
4 S.C.C. 558; Hemlata Kantilal Shah v. State of Maharashtra,
[1981] 4 S.C.C. 647 and SK. Serajul v. State of West Bengal,
[1975] 2 S.C.C. 7a, referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 27
1 of 1990.
From the Judgment and Order dated 16.1.1989 of the Delhi
High Court in Criminal Writ No. 34 of 1989.
K.V. Vishwanathan and S.R. Setia for the Appellant.
T.T. Kunhikanna, Udai Lalit and P. Parmeshwaran for the
Respondents.
The Judgment of the Court was delivered by
K. JAYACHANDRA REDDY, J. Leave granted.
519
This is an appeal seeking a writ of habeas corpus. The
appellant who has been detained under Section 3(1)(i) and
3(1)(iii) of the COFEPOSA Act, 1974, has challenged the
detention order. The appellant is a native of Panakkad,
Malapuram District in Kerala and had been to Jeddah after
his Haj pilgrimage and from Jeddah he landed in Bombay on
15.9.87. Then he started by a bus to go to his native place.
On 17.9.87 the Customs Officials intercepted the bus near
Thiruvannoor and in the presence of panch witnesses, a
search was conducted on the person of the appellant and the
chappals worn by him were inspected and on their being
opened up about 13 gold ingots with foreign marking were
found and they were duly recovered. Further some incriminat-
ing documents were also recovered. The gold was valued at
Rs.4,64,951 and it was found to be smuggled gold. The appel-
lant was interrogated by the Superintendent of Customs and a
statement of the appellant was recorded. He confessed that
he was introduced to a person who promised to give him
remuneration provided he carries the gold to India and
appellant agreed and carried these gold biscuits. Criminal
proceedings were initiated. However, the detaining authori-
ty, the Home Secretary to Government of Kerala being satis-
fied passed the detention order dated 21.9.88 against the
appellant with a view to preventing him from smuggling
activities. The grounds also were served within time and in
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7
the grounds all the above mentioned details are mentioned.
In the grounds the appellant also is informed that if he
desires to make a representation to the Advisory Board, he
may address it to the Chairman, Advisory Board and that he
can also make a representation to the detaining authority or
the Central Government. Questioning the same the present
appeal is filed.
It is submitted that the representation was made on
27.9.88 to the Central Government and it was disposed of on
2.11.88. Therefore there was enormous delay by the Central
Government in rejecting the representation and the delay
amounts to violation of Article 22(5) of the Constitution of
India. The next submission is that though the alleged smug-
gling of gold is said to have been taken place on 17.9.87,
the detention order was passed on 21.5.88 i.e. after a lapse
of eight months and that too it was a solitary instance and
because of the delay, the same has become stale and there is
no other material to establish any nexus or live connection
between the alleged date of smuggling and the date of deten-
tion. The next submission is that there was delay in the
execution of the detention order which was executed only on
6.8.88 though passed on 21.5.88 and that there is no allega-
tion that the appellant was absconding. It is also submitted
that the appellant was not given an effective opportunity to
represent his case before the
520
Advisory Board inasmuch as the appellant was not permitted
to be represented by an advocate or by his next friend.
In the counter-affidavit it is stated that the Collector
of Customs furnished proposals for the detention of the
appellant on 24.3.1988 and the detention order was passed on
21.5.1988 and the appellant was detained on 6.8.1988. The
appellant made a representation to the detaining authority
on 27.9.1988 and it was rejected by the State Government on
1.10.1988 and the Central Government rejected the same on
2.11.1988. Therefore in the counter-affidavit it is admitted
that there is a delay of one month and five days in consid-
ering and rejecting the representation by the Central Gov-
ernment.
It can be seen that so far as the State Government
namely the detaining authority is concerned, there is no
delay but the submission is that the delay in disposing of
the representation by the Central Government also is fatal.
Article 22(5) of the Constitution of India lays down that
when any person is detained in pursuance of an order made
under any law providing for preventive detention, the au-
thority making the order shall, as soon as may be, communi-
cate to such person the grounds on which the order has been
made and shall afford him the earliest opportunity of making
a representation against the order.
It is well-settled that this Clause confers a valuable
fight upon the detenu to make a representation and also
mandates that the detaining authority should dispose of the
same without delay. Therefore the right under this Clause is
two-fold, namely that the authority making the order must
communicate to the detenu the grounds on which the order has
been made, as soon as the order is made and secondly that
the detenu must also be afforded the earliest opportunity of
making a representation against the order.
Article 22(5) itself does not say to whom the represen-
tation is made or who will consider the representation. By
virtue of provisions of the statute under which he has been
detained, the appropriate Government is legally obliged to
comply with these requirements. It is obligatory on the
appropriate Government to consider the detenu’s representa-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7
tion separate from the consideration of the detenu’s case by
the Advisory Board. But what the learned counsel submits is
that the Central Government which has the power to revoke
the detention order passed by the State authority, is also
under legal obligation to dispose of the representation
without delay. Learned counsel relied on some of the deci-
sions of this Court. In Khudiram Das v. The State of
521
West Bengal and Others, [1975] 2 SCC 81 this Court held that
one of the basic requirement of clause (5) of Article 22 is
that the authority making the order must afford the detenu
the earliest opportunity of making a representation against
the order and this requirement will be ineffective unless
there is a corresponding obligation to consider the repre-
sentation of the detenu as early as possible. It may not be
necessary for us to refer to all those decisions which deal
with the delay caused by the appropriate Government in
considering the representation inasmuch as in the instant
case there is no delay in considering the representation by
the State Government which is the detaining authority.
Section 11 of the COFEPOSA Act, 1974 deals with the revo-
cation of detention orders and under Section 11(b) the Cen-
tral Government may, at any time, revoke or modify an order
made by the State Government. Though strictly speaking the
Central Government is not the detaining authority within the
meaning of Article 22(5) yet they are under legal obligation
to dispose of the representation as early as possible but
the question is whether such delay by the Central Government
also should be subjected to such a rigorous scrutiny as is
done in the case of a delay caused by the appropriate Gov-
ernment. namely the detaining authority.
In Tara Chand v. The State of Rajasthan, [1980] 2 SCC
321, this Court held that:
"Once a representation is made to the Central Government, it
is duty bound to consider the same in order to exercise its
discretion either in rejecting or accepting it.if there is
inordinate delay in considering the representation that
would clearly amount to violation of Article 22(5) so as to
render the detention unconstitutional and void."
In Shyam Ambalal Siroya v. Union of India and Ors.,
[1980] 2 SCR 1078 it is held that:
"The power of the Central Government to revoke the order of
detention implies that the detenu can make a representation
for exercise of that power. Any petition for revocation of
an order of detention should be dealt with reasonable expe-
dition ..... It may be permissible for the Central Govern-
ment to take reasonable time for disposing any revocation
petition. But it would not be justified in
522
ignoring the representation for revocation of the detention
as a statutory duty is cast upon the Central Government. It
is necessary that the Government should apply its mind and
either revoke the order of detention or dismiss the peti-
tion, declining to order for revocation."
In Sabir Ahmed v. Union of India and Ors., [1980] 3 SCR
738 dealing with the power of the revocation of the Central
Government it is observed that such power is intended to be
an additional check or safeguard against the improper exer-
cise of its power of detention by the detaining authority or
the State Government and that the Central Government should
consider the same with reasonable expedition and that what
is reasonable expedition depends upon the circumstances of
the particular case. No hard and fast rule as to the measure
of reasonable time can be laid down. It is also observed
that it certainly does not cover the delay due to negli-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7
gence, callous inaction, avoidable red tapism and unduly
protracted procrastination.
In Sabir Ahmed’s case as well as in Shyam Ambalal Si-
roya’s case the representation made by the detenu to the
Central Government has been ignored and left unattended for
a period of about four months and under those circumstances
it was held that there was violation of Article 22(5).
In Rama Dhondu Borade v.V.K. Saraf, Commissioner of
Police and Others, [1989] 3 SCC 173 the detenu made a repre-
sentation to the Central Government on 26.9.1988 and the
decision of the Central Government rejecting the representa-
tion was communicated to the appellant on 31.10.1988. The
explanation submitted by the Central Government was not
accepted on the ground that it is not satisfactory. In T.A.
Abdul Rahman v. State of Kerala and Others, [1989] 4 SCC 741
there was a delay of 72 days and it was observed that the
representation of the detenu has not been given prompt and
expeditious consideration and was allowed to lie without
being properly attended to.
Bearing these principles in mind we shall examine wheth-
er the Central Government has expeditiously considered the
representation or not. We have already noted that the repre-
sentation was made on 27.9.88 and disposed of by the Central
Government on 2.11.88, i.e. within a month and five days. In
the counter-affidavit filed on behalf of the Central Govern-
ment it is stated that the representation dated 27.9.88 was
received in the COFEPOSA Section of the Ministry of Finance
on 10.10.88 and the representation was in Malayalam. It is
also
523
stated that there were some allegations regarding the non-
placement of certain documents and non-supply of certain,
documents to him. Therefore a copy of the representation was
sent to the sponsoring authority i.e. Collector of Customs,
Cochin on that very day and the comments from the Collector
of Customs, Cochin dated 25.10.88 were received in the
COFEPOSA Section on 27.10.88 and that the Additional Secre-
tary examined them and with his comments, they were forward-
ed to the Minister of State for Revenue on 31.10.88, since
29th and 30th October, 1988 were holidays. The Minister of
State for Revenue with this comments forwarded the represen-
tation on the same day i.e. 31.10.88 to the Finance Minis-
ter. The Finance Minister considered and rejected the repre-
sentation on 1.11.88 and the file was received in the Office
on 2.11.88 and on the same day, a memorandum rejecting the
representation was sent to the detenu. From the explanation
it can be seen that the representation was considered most
expeditiously and there is no "negligence or callous inac-
tion or avoidable red-tapism". For these reasons we are
unable to accept this contention of the learned counsel.
The next submission of the learned counsel is that the
date of search was 17.9.87 and the detention order was
passed on 21.5.88 after a long time and therefore there is
no nexus between the alleged incident and the detention
order and therefore there is no genuine satisfaction on the
part of the detaining authority. The learned counsel submits
that there was no live existing connection between the
incident and the detention. In Lakshman Khatik v. The State
of West Bengal, [1974] 4 SCC 1 it is observed that mere
delay in passing a detention order is not conclusive but the
type of grounds given have to be seen and then consider
whether such grounds could really weigh with an officer
after such delay in coming to the conclusion that it was
necessary to detain the detenu. In Rajendrakumar Natvarlal
Shah v. State of Gujarat and Others, [1988] 3 SCC 153. it is
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7
held that the mere delay in passing the detention order is
not fatal unless the court finds that the grounds are stale
or illusory or that there is no real nexus between the
grounds and the detention. In Abdul Rahman’s case seizure of
the gold biscuits was on 30.11.86 and the detention order
was passed 11 months thereafter. On the ground that there
was no satisfactory explanation for this undue, unreasonable
and unexplained delay, it was held that the delay throws a
considerable doubt on the genuineness of the subjective
satisfaction of the detaining authority.
In the counter-affidavit, in the instant case, filed on
behalf of the detaining authority it is stated that the case
records relating to the
524
petitioner were received at the office of the sponsoring
authority on 1.2.88 and they were processed in the Office
and the show-cause notice under the Customs Act was issued
on 9.2.88 and the proposals were sent for COFEPOSA action on
24.3.88 and they were received by the State Government on
2.4.88. The matter was considered by the Screening Committee
which met on 28.4.88 and thereafter submitted the proposals
to the detaining authority. On 2.5.88 the detaining authori-
ty ordered to ascertain the reasons for the delay in spon-
soring the case and accordingly the sponsoring authority at
Cochin was addressed on 2.5.88. He was reminded on 7.5.88
and 12.5.88. His reply was received on 16.5.88 and thereaf-
ter the order was passed on 21.5.88. In our view, the delay
has been reasonably explained. The courts have not laid down
that on mere such delay the detention has to be struck down.
In Yogendra Murari v. State of U.P., [1988] 4 SCC 558, it is
held that:
"It is not right to assume that an order of detention has to
be mechanically struck down if passed after some delay .....
It is necessary to consider the circumstances in each indi-
vidual case to find out whether the delay has been satisfac-
torily explained or not."
That apart, we are unable to agree with the learned counsel
that because of this delay the necessary nexus got severed
and that the grounds have become stale and illusory. In
appreciating such a contention. the Court also has to bear
in mind the nature of the prejudicial activities indulged by
the detenu and the likelihood of his repeating the same. It
is this potentiality in him that has to be taken into con-
sideration and if the detaining authority is satisfied on
the available material then on mere delay as long as it is
not highly unreasonable and undue the Court should not
normally strike down the detention on that ground. In Hemla-
ta Kantilal Shah v. State of Maharashtra, [1981] 4 SCC 647
it is held that delay ipso facto in passing an order of
detention after an incident is not fatal to the detention of
a person. For these reasons we are of the view that in this
case the delay by itself does not invalidate the detention
but even otherwise it has been reasonably explained.
Yet another ground urged by the learned counsel is that
there was delay in arresting the detenu after the detention
order was passed and therefore there is no genuineness in
the detention order. In the counter-affidavit it is stated
that after the detention order was passed, it was sent to
the Superintendent of Police, Malappuram on 23.5.88 for
525
immediate execution and they were passed on to Circle In-
spector, Malappuram. On 29.6.88, it was reported that the
Circle Inspector had made due enquiries but the detenu could
not be apprehended. Thereupon a special squad was deputed as
per-the directions of the Superintendent of Police and
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7
thereafter he was detained on 6.8.88. It is further submit-
ted in the counter-affidavit that the delay in execution of
the order is caused due to detenu’s deliberate attempt to
make himself scarce. That apart there is no decision where a
court has gone to the extent of holding that a mere delay in
arresting the accused renders the detention invalid. In the
instant case, the delay, if at all, is only about 2/1/2
months and the explanation offered for the delay is reasona-
ble. The learned counsel, however, relied on Abdul Rahman’s
case. In that case the detention order was passed on 7.10.87
and the detenu was arrested on 18.1.88. The court found that
there was no reasonable explanation for the delay in the
counter affidavit at all. This ground was taken into consid-
eration alongwith the other important grounds in quashing
the detention. In SK. Serajul v. State of West Bengal,
[1975] 2 SCC 78 it is observed that:
"There was delay, both at the stage of passing the order of
detention and in arresting him, and this delay, unless
satisfactorily explained, would throw considerable doubt on
the genuineness of the subjective satisfaction...
But this must not be misunderstood to mean that whenever
there is delay in making an order of detention or in arrest
ing the detenu pursuant to the order of detention, the sub-.
jective satisfaction of the detaining authority must be held
to be not genuine or colourable. Each case must depend on
its own peculiar facts and circumstances. The detaining
authority may have a reasonable explanation for the
and that might be sufficient to dispel the inference that
its satisfaction was not genuine."
It can therefore be seen that on the mere delay in arresting
me detenu; pursuant to the order of detention the subjective
satisfaction of the detaining authority cannot be held to be
not genuine. Each case. depends on its own facts and circum-
stances. The Court has to see whether the delay is explained
reasonably. As mentioned above, in the instant case, we are
satisfied with the explanation for the delay in arresting
the detenu. Therefore this contention is also liable to be
rejected. For all the above-mentioned reasons, the appeal is
dismissed.
Y. Lal Appeal dismissed.
526