Full Judgment Text
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CASE NO.:
Appeal (crl.) 21 of 2002
PETITIONER:
Union of India
RESPONDENT:
Paul Nanickan and Anr.
DATE OF JUDGMENT: 13/10/2003
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT.
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
An order of detention under Section 3 (1)(i) of the Conservation
of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in
short the ’Act’) was passed on 26.4.2000 by the Secretary to Government
of Tamil Nadu, Public (Law and Order) Department. As a consequence of
such mittimus, Smt. Ratnamala (hereinafter referred to as ’the detenue’)
was interned in Special Jail for Women, Vellore. In the grounds of
detention it was, inter alia, stated that on 26.2.2000 she was found to
be in possession of huge quantity of contraband articles. On her
personal search as well as search of her baggages it was found that she
was carrying gold in addition to the other articles like cellular phones
etc. without any valid permission or documents for importation of goods
and she was attempting to smuggle these articles by concealing them in
emergency lamp and by wearing crude gold on her person and there was no
declaration made. The articles were seized under the provision of
Customs Act, 1962 (in short the ’Customs Act’) read with Foreign Trade
(Development and Regulation) Act, 1992. The detenu made voluntary
statements on 26.2.2000 which were recorded under Section 108 of the
Customs Act. The order of detention was passed purportedly with an idea
of preventing her from carrying out smuggling activities in future. On
11.5.2000 the respondent who is the detenu’s father addressed a
representation on behalf of his daughter to the President of India. Four
days thereafter i.e. on 15.5.2000 a habeas corpus petition was filed
before the Madras High Court challenging the detention order. When the
matter was listed on 8.6.2000 notice was issued. It had been indicated
in the writ petition filed by the respondent that a representation by
registered post was sent to the State of Tamil Nadu and another was sent
to the Union of India represented by Secretary to Government, Ministry
of Finance (Department of Revenue) by speed post. They were the two
respondents in the writ petition. A grievance was made in the writ
petition that the said respondents were duty bound to explain to the
Court that the representation had been considered without any delay and
in accordance with the constitutional requirements. It was also
indicated that though in the representation a request was made to supply
various documents and details, nothing had in fact been furnished. The
delay and the failure indicated above constituted violation of
constitutional safeguards. It was brought to the notice of the High
Court by the respondents before it that there was no representation made
as claimed when the matter was taken up on 28.9.2000. Only three grounds
were urged by the present respondent before the High Court. It was first
contended that there was no material to support the conclusion that the
detenu is a remand prisoner as was contended by the present appellant.
Secondly, the materials/documents furnished to the detenu were illegible
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and this disabled the detenu from making an effective representation
resulting in violation of the protection guaranteed under Article 22(5)
of the Constitution of India, 1950 (in short ’the Constitution’).
Finally, it was contended that the documents supplied were illegible
and, therefore, the detention order was vitiated and there was no
necessity of going into the question whether the documents were relied
upon or material documents or otherwise. The High Court did not find any
merit in the aforesaid three contentions and since no other point was
pressed, the writ petition was dismissed. An application for review was
filed on 8.12.2000. Notice was issued in the review application. For the
first time it was stated by the respondent in the review petition that
in fact no representation was filed before the concerned State
Government i.e. State of Tamil Nadu or the Union of India. In fact the
representation was made to the President of India. The Court considered
the periods spent from the date the representation reached the
President’s Secretariat till its final disposal, and held that there
was an unexplained delay from the stage of dispatch from the President’s
Secretariat till it reached the Government of Tamil Nadu and the Union
of India. This according to the High Court constituted violation of the
imperative requirement of dealing with the representation with utmost
expedition. Accordingly, the order of detention was quashed.
In the present appeal the Union of India has raised several issues
which need to be carefully considered. Firstly it is submitted that in
the order (grounds) of detention it was specifically indicated to the
detenu that she had a right to make a representation to the detaining
authority/State Government and also to the Government of India, if she
so desired, in writing against the order under which she was kept in
detention. It was also indicated that in case she wanted to make a
representation the same was to be addressed to the Secretary to the
Government of Tamil Nadu, Public (Law and Order) Department,
Secretariat, Chennai or to the Government of India, Ministry of Finance,
Department of Revenue, (COFEPOSA Unit), Central Economic Intelligence
Bureau, New Delhi, as the case may be, and it should be forwarded
through Superintendent of Prison, Special Prison for Women, Vellore in
which she was confined.
Strangely, the representation was not made to the authorities
clearly indicated in the order (grounds) of detention. For the first
time in review petition a stand was taken that representation was filed
before the President of India, though in the writ petition it was stated
representations were made to the Government of Tamil Nadu as well as to
the Union of India. This clearly constituted a suppression of fact and
the High Court was not approached with clean hands and fraud was
practised. Secondly, it was not open to the High Court to substitute its
original order by a fresh order which is impermissible in a review
application particularly on such grounds. Thirdly, the High Court having
accepted that there was no delay in dealing with the representation by
the State Government and the Union of India after it reached them, it
ought not to have held that there was unexplained delay in dealing with
the representation. A person should not be allowed to take advantage of
the concern shown by the courts to protect personal liberty resorting to
dubious and fraudulent methods to gain undeserved benefits by such
manipulations. He should not be permitted to gain any advantage from
such acts. It was further submitted that renegades who disturb peace and
tranquility of citizens are like termites which corrode financial
stability of the country with vicious designs file petitions full of
falsehood and at times approach this Court under Article 32 even without
approaching the jurisdictional High Court. It was in essence submitted
that prerogative writs should not be issued in such cases to encourage
the deceiters from gaining any advantage.
In response, learned counsel for the respondent submitted that the
detenu was really arrested on 27.2.2000 and the order of detention was
passed after two months i.e. on 26.4.2000 and the High Court’s order on
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review is dated 13.2.2001. Therefore, the detenu has undergone the
detention for about the whole period. On that score alone, the appeal
has practically become infructuous and no decision should be rendered on
academic issues. It was submitted with emphasis that representation to
the President of India was sufficient and merely because the
representation was not sent to any of the indicated authorities that
cannot alter the position in law.
It was further submitted that detenu was already in custody and on
presumption and surmises that she may be released on bail the order of
detention was passed without proper application of mind regarding her
incarceration in custody.
Though technically speaking the detenu has suffered detention for
almost the whole period for which she was directed to detained, yet
considering the several important issues which have been raised by the
parties we think it appropriate to deal with them.
The writ of habeas corpus called by Blackstone as the great and
efficacious writ in all manner of illegal confinement, really represents
another aspect of due process of law. As early as 1839 it was proclaimed
by Lord Denman that it had been for ages effectual to an extent never
known in any other country. Lord Halsbury L.C. stated in Cox v. Hakes,
(1890) 15 AC 506, that the right to an instant determination as to the
lawfulness of an existing imprisonment is the substantial right made
available by this writ. Article 22 of the Constitution confers four
fundamental rights on every person, except in two cases mentioned in
Clause (3), as essential requirements and safeguards to be followed when
it is necessary to deprive any person, for any cause whatsoever and for,
however brief a period of his personal liberty by placing him under
arrest or keeping him in detention. Those are (i) to be informed, as
soon as may be, of grounds of such arrest; (ii) not to be denied the
right to consult and to be defended by a legal practitioner of his
choice; (iii) to be produced before the nearest Magistrate within a
period of twenty-four hours of such arrest excluding the time necessary
for the journey from the place of arrest to the Court of the Magistrate,
(iv) not to be detained in custody beyond the said period of twenty-four
hours without the authority of a Magistrate, Clauses (1) and (2) contain
the guarantee of the four fundamental rights enumerated above, Clause
(3) contains two exceptions and provides that the constitutional
guarantees do not apply to (a) enemy aliens, and (b) persons arrested or
detained under any law providing for preventive detention. Clauses (4)
and (7) are devoted to laying down certain fundamental principles as to
preventive detention and guaranteeing certain fundamental rights to
persons who are arrested under any law for preventive detention. The
fundamental rights guaranteed by Clauses (4) to (7) to persons detained
under any law for preventive detention relate to the maximum period of
detention, the provision of an Advisory Board to consider and report on
the sufficiency of the cause for detention and the right to have the
earliest opportunity of making a representation against the order of
detention. Preventive detention is an anticipatory measure and does not
relate to an offence while the criminal proceedings are to punish a
person for an offence committed by him. They are not parallel
proceedings. The object of the law of preventive detention is not
punitive but only preventive. It is resorted to when the Executive is
convinced on the materials available and placed before it that such
detention is necessary in order to prevent the person detained from
acting in a matter prejudicial to certain objects which are specified by
the law. The action of Executive in detaining a person being only
precautionary, the matter has necessarily to be left to the discretion
of the Executive Authority. It is not practicable to lay down objective
rules of conduct, the failure to conform to which alone should lead to
detention. In case of preventive detention of a citizen, Article 22(5)
of the Constitution enjoins the obligation of the appropriate Government
of the Detaining Authority to accord the detenu the earliest opportunity
to make a representation and to consider that representation speedily.
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The right to make a representation implies right of making an effective
representation. It is the constitutional right of the detenu to get all
the ground on which the order has been made. As has been said by
Benjamin Cardozo, "A Constitution states or ought to state not rules
for the passing hour but the principles for an expanding future". The
concept of grounds used in the context of detention in Article 22(5) has
to receive an interpretation which will keep it meaningful in tune with
contemporary notions of the realities of the society, and the purposes
of the Act in the light of concepts of liberty; and fundamental
freedoms. While the expression "grounds" for that matter includes not
only conclusions of fact but also all the basic facts on which those
conclusions were founded; they are different from subsidiary facts or
further particulars of the basic facts. The detenu is entitled to obtain
particulars as to the grounds which will enable him to make an effective
representation against the order of detention.
It has been said that the history of liberty has largely been the
history of observance of procedural safeguards. The procedural sinews
strengthening the substance of the right to move the Court against
executive invasion of personal liberty and the due dispatch of judicial
business touching violations of this great right is stressed in the
words of Lord Denning as follows:
"Whenever one of the King’s Judges takes his seat,
there is one application which by long tradition has
priority over all other, Counsel has but to say: My
Lord, I have an application which concerns the
liberty of the subject and forthwith the Judge will
put all other matter aside and hear it. It may be an
application for a writ of habeas corpus, or an
application for bail but whatever form it takes, it
is heard first." (Freedom under the Law, Hamlyn
Lectures, 1949).
The constitutional philosophy of personal liberty is an idealistic
view, the curtailment of liberty for reasons of States’ security, public
order, disruption of national economic discipline etc. being envisaged
as a necessary evil to be administered under strict constitutional
restrictions. In Smt. Ichhu Devi v. Union of India (AIR 1980 SC 1983),
this judicial commitment was highlighted in the following words:
"The Court has always regarded personal liberty as
the most precious possession of mankind and refused
to tolerate illegal detention, regardless of the
social cost involved in the release of a possible
renegade".
"This is an area where the Court has been most
strict and scrupulous in ensuring observance with the
requirement of the law and even where a requirement
of the law is breached in the slightest measure, the
Court has not hesitated to strike down the order of
detention".
In Vijay Narain Singh v. State of Bihar (AIR 1984 SC 1334), Justice
Chinnappa Reddy in his concurring majority view said:
".....I do not agree with the view that those who
are responsible for the national security or for the
maintenance of public order must be the sole Judges
of what the national security or public requires. It
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is too perilous a proposition. Our Constitution does
not give as carte blanche to any organ of the State
to be the sole arbiter in such matter......"
[Page 1336 (of AIR)]
".....There are two sentinels, one at either end.
The legislature is required to mark the law
circumscribing the limits within which persons may be
preventively detained and providing for safeguards
prescribed by the Constitution and the Courts are
required to examine, when demanded, whether there has
been any excessive detention, that is whether the
limits set by the Constitution and the legislature
have been transgressed.....".
In Hem Lall Bhandari v. State of Sikkim (AIR 1987 SC 762 at page 766),
it was observed:
"It is not permissible in matters relating to the
personal liberty and freedom of a citizen to take
either a liberal or a generous view of the lapses on
the part of the officers.....".
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."
One of the points raised by the respondent was that detenu being
in custody, the anticipated and apprehended acts were practical
impossibilities.
So far as this question relating to procedure to be adopted in
case the detenu is already in custody is concerned, the matter has been
dealt with in several cases. Where detention orders are passed in
relation to persons who are already in Jail under some other laws, the
detaining authorities should apply their mind and show their awareness
in this regard in the grounds of detention, the chances of release of
such persons on bail. The necessity of keeping such persons in detention
under the preventive detention laws has to be clearly indicated.
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Subsisting custody of the detenu by itself does not invalidate an order
of his preventive detention, and decision in this regard must depend on
the facts of the particular case. Preventive detention being necessary
to prevent the detenu from acting in any manner prejudicial to the
security of the State or to the maintenance of public order or economic
stability, etc. ordinarily, it is not needed when detenu is already in
custody. The detaining authority must show its awareness to the fact of
subsisting custody of the detenu and take that factor into account while
making the order. If the detaining authority is reasonably satisfied on
cogent materials that there is likelihood of his release and in view of
his antecedent activities which are proximate in point of time, he must
be detained in order to prevent him from indulging such prejudicial
activities the detention order can be validly made. Where the detention
order in respect of a person already in custody does not indicate that
the detenu was likely to be released on bail, the order would be
vitiated. (See N. Meera Rani v. Govt. of Tamil Nadu: (AIR 1989 SC 2027:
Dharmendra Suganchand v. Union of India: AIR 1990 SC 1196). The point
was gone into detail in Kamarunnissa v. Union of India (AIR 1991 SC
1640). The principles were set out as follows. Even in the case of a
person in custody, a detention order can be validly passed (1) If the
authority passing the order is aware of the fact that he is actually in
custody; (2) if he has reason to believe on the basis of reliable
material placed before him; (a) that there is a real possibility of his
release on bail, and (b) that on being released, he would in all
probability indulge in prejudicial activities, and (3) if it is felt
essential to detain him to prevent him from so doing. If an order is
passed after recording satisfaction in that regard, the order would be
valid. In the case at hand the order of detention and grounds of
detention show awareness of custody and/or possibility of release on
bail.
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 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
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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.
Coming to the question whether the representation to the President
of India meets with the requirement of law it has to be noted that in
Raghavendra Singh v. Superintendent, District Jail, Kanpur and Ors.
(1986 (1) SCC 650) and Rumana Begum v. State of Andhra Pradesh and Anr.
(1993 Supp (2) SCC 341) it was held that a representation to the
President of India or the Governor, as the case may be, would amount to
representation to the Central Government and the State Government
respectively. Therefore, the representation made to the President of
India or the Governor would amount to representation to the Central
Government and the State Government. But this cannot be allowed to
create a smokescreen by an unscrupulous detenu to take the authorities
by surprise, acting surreptitiously or with ulterior motives. In the
present case, the order (grounds) of detention specifically indicated
the authority to whom the representation was to be made. Such indication
is also part of the move to facilitate an expeditious consideration of
the representations actually made.
The respondent does not appear to have come with clean hands to
the Court. In the writ petition there was no mention that the
representation was made to the President; instead it was specifically
stated in paragraph 23 that the representation was made by registered
post to the first respondent on 11.5.2000 and a similar representation
was made to the second respondent. Before the High Court in the writ
petition the first and the second respondent were described as follows:
"1. State of Tamil Nadu
Rep. By its Secretary,
Government of Tamil Nadu,
Public (SC) Department,
Fort St. George,
Chennai, 600 009.
2. Union of India,
Rep. By its Secretary
Ministry of Finance,
Department of Revenue,
New Delhi."
As noted supra, for the first time in the review application it
was disclosed that the representation was made to the President of India
and no representation was made to the State of Tamil Nadu or the Union
of India who were arrayed in the writ petition as parties. This appears
to be a deliberate attempt to create confusion and reap an undeserved
benefit by adopting such dubious device. The High Court also
transgressed its jurisdiction in entertaining the review petition with
an entirely a new substratum of issues. Considering the limited scope
for review the High Court ought not to have taken into account factual
aspects which were not disclosed or were concealed in the writ
petition. While dealing with a habeas corpus application undue
importance is not to be attached to technicalities, but at the same time
where the court is satisfied that an attempt has been made to deflect
the course of justice by letting loose red herrings the Court has to
take serious note of unclean approach. Whenever a representation is made
to the President and the Governor instead of the indicated authorities,
it is but natural that the representation should indicate as to why the
representation was made to the President or the Governor and not the
indicated authorities. It should also be clearly indicated as to whom
the representation has been made specifically, and not in the manner
done in the case at hand. The President as well as the Governor, no
doubt are constitutional Heads of the respective Governments but day to
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day administration at respective levels are carried on by the Heads
of the Department-Ministries concerned and designated officers who alone
are ultimately responsible and accountable for the action taken or to be
taken in a given case. It really the citizen concerned genuinely and
honestly felt or interested in getting an expeditious consideration or
disposal of his grievance, he would and should honestly approach the
really concerned authorities and would not adopt any dubious devices
with the sole aim of deliberately creating a situation for delay in
consideration and cry for relief on his own manipulated ground, by
directing his representation to an authority which is not directly
immediately concerned with such consideration.
It was nowhere indicated in the representation by the respondent
as to why the representation was not being made to the indicated
authorities and instead was being made to the President of India. This
appears to be a deliberate view to take advantage of the concern shown
by this Court in protecting personal liberty of citizens. Where however
a person alleging infraction of personal liberty tries to act in a
manner which is more aimed at deflecting the course of justice than for
protection of his personal right, the Court has to make a deliberate
balancing of the fact situation to ensure that the mere factum of some
delay alone is made use of to grant relief. If a fraud has been
practiced or perpetrated that may in a given case nullify the cherished
goal of protecting personal liberty, which obligated this Court to
device guidelines to ensure such protection by balancing individual
rights and the interests of the nation, as well.
In R. Keshava v. M.B. Prakash and Ors. (2001 (2) SCC 145) it was
observed by this Court as follows:
"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".
Another aspect which has been highlighted is that many
unscrupulous petitioners are approaching this Court under Article 32 of
the Constitution challenging the order of detention directly without
first approaching the concerned High Courts. It is appropriate that the
concerned High Court under whose jurisdiction the order of detention has
been passed by the State Government or Union Territory should be
approached first. In order to invoke jurisdiction under Article 32 of
the Constitution to approach this Court directly, it has to be shown by
the petitioner as to why the High Court has not been approached, could
not be approached or it is futile to approach the High Court. Unless
satisfactory reasons are indicated in this regard, filing of petition on
such matters, directly under Article 32 of the Constitution is to be
discouraged.
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In view of the fact that the detenu has suffered detention for
about the whole period of detention, we do not consider this a fit case
for interference. We dismiss it subject to the observations made above.