UOI AND ORS Vs. SALEENA
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 1251 of 2015, Judgment Date: Jan 29, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1251 OF 2015
(@ SPECIAL LEAVE PETITION (CRIMINAL) NO. 5890 OF 2014)
Union of India & Ors. ... Appellant(s)
Versus
Saleena ... Respondent(s)
J U D G M E N T
Dipak Misra, J.
Calling in question the defensibility of the judgment and order dated
24.10.2015 passed by the High Court of Kerala by which the Division Bench
has quashed the order of detention passed against Abdu Rahiman (detenu),
the husband of the respondent, under Section 3(1) of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for
brevity, ‘the COFEPOSA Act’), the instant appeal, by special leave, has
been preferred.
2. Shorn of unnecessary details, the facts which are essential to be
stated for adjudication of this appeal are that an order of detention was
issued on 08.02.2013 under Section 3(1) of the COFEPOSA Act. The said
order, as the facts would uncurtain, came into existence on the basis of
proposal of the Sponsoring Authority (Directorate of Enforcement) and the
Empowered Officer of the Central Government (the Detaining Authority). The
grounds of detention were communicated to the detenu vide communication
dated 08.02.2013. By the said communication in compliance with Article
22(5) of the Constitution and Section 3(3) of the COFEPOSA Act, the detenu
was informed of his right to make a representation against his detention to
the Detaining Authority. Be it stated, pursuant to the order of detention,
the detenu was detained on 25.02.2013 and lodged in the Central Prison,
Thiruvananthapuram.
3. The detenu made a representation on 11.04.2013 which was received on
18.04.2013 by the Jail Superintendent which was forwarded to the competent
authority and thereafter the Special Secretary-cum-Director General,
Central Economic Intelligence Bureau, Ministry of Finance, Department of
Revenue, rejected the representation on behalf of the Central Government on
26.04.2013 after due consideration. The order of rejection was communicated
to the detenu vide memorandum dated 29.04.2013 by the Under Secretary,
Government of India. Keeping in view the prescription enshrined under
Section 8(1) of the COFEPOSA Act, reference was made to the Advisory Board
and the detenu was heard by the Advisory Board on 04.05.2013, and
thereafter vide order dated 21.05.2013, he was informed that the Advisory
Board was of the opinion that sufficient reasons existed for his detention.
On the basis of the opinion of the Advisory Board, the Central Government
confirmed the order of detention and directed that the detention of the
detenu would remain in force for a period of one year commencing from the
date of his detention.
4. Aggrieved by the aforesaid order, the wife of the detenu filed Writ
Petition (Criminal) No. 406 of 2013 before the High Court seeking a writ of
habeas corpus. It was urged before the High Court that the decision of the
competent authority was not communicated to the detenu; that there was
inordinate and unexplained delay in passing the order of detention; that
the report submitted by the sponsoring authority was not served on the
detenu; that there was delay in considering his representation; that the
translated copy of the order of detention was not served on him; that he
was not served the order rejecting his representation; and that the order
of rejection passed by the competent authority indicating the reasons was
not communicated to the detenu.
5. Counter affidavit was filed by the respondents putting forth the
stand that before rejecting the representation of the detenu, the requisite
process was adhered to, and in support of the same it was asserted that
after receipt of the representation of the detenu from the Jail
Superintendent by the Deputy Director, Calicut, the same was sent to the
Ministry with para-wise comments on 25.4.2013. On 26.4.2013, after
examining the issue raised in the representation, the Under Secretary put
up the file before the Joint Secretary who is the Competent Authority under
Section 3(1) of the COFEPOSA Act. The said Authority recorded its comments
and submitted the file to the Special Secretary and Director General,
Central Economic Intelligence Bureau for consideration, who vide order
dated 26.4.2013 rejected the same.
6. The High Court noting the submissions of the learned counsel for the
parties adverted to the decisions in Devji Vallabhbhai Tandel v. The
Administrator of Goa, Daman and Diu and Anr.[1], Lekha Nandakumar v.
Government of India[2], A.C. Razia v. Government of Kerala and others[3],
Saliyal Beevi and others v. State of Kerala and others[4] and some other
authorities and eventually came to hold as follows:-
“As we have already stated, a detenu, who makes a representation availing
of his constitutional rights under Article 22(5) of the Constitution of
India is entitled to have proper consideration of his representation and
that process of consideration is completed, only when a decision on his
representation is also communicated to him. That constitutional
requirement will not be satisfied if an authority subordinate to the
competent authority informs the detenu that his representation is rejected.
Admittedly, in this case, the decision of the competent authority was not
communicated to the detenu and on the other hand, the only communication
that was issued to the detenu is that of the Under Secretary to the
Government of India, where, it was laconically stated that his
representation is rejected. In our view, this is a case where the right of
the detenu under Article 22(5) of the Constitution of India is violated and
the issue canvassed by the petitioner is fully covered in her favour by the
principles laid down by the Division Bench of this Court in Lekha
Nandakumar’s case (supra).”
Be it stated, all other grounds urged before the High Court did not
find favour and were regarded as unacceptable. Thus, the only ground that
impressed the High Court is the one that is mentioned in the aforequoted
passage.
7. Criticizing the aforesaid analysis and the ultimate view expressed by
the High Court, Mr. N.K. Kaul, learned Additional Solicitor General
appearing for the Union of India has submitted that the High Court has
fallen into error by opining that in the obtaining factual matrix, Article
22(5) of the Constitution of India has been violated. It is urged by him
that the decision of the Division Bench of the High Court in Lekha
Nandakumar (supra) had already been diluted in Babu v. State of Kerala[5],
but the High Court by the impugned order placed reliance on the earlier
view. It is his further submission that the detenu has no vested right
neither under Article 22(5) of the Constitution nor under Section 3(1) and
(3) of the COFEPOSA Act to assert that unless the order rejecting the
representation itself is communicated there is a procedural irregularity
which invalidates the detention. It has been further canvassed by him that
there has been no abuse of discretion but on the contrary a complete
application of mind, for all relevant materials have been taken into
consideration which is reflective from the file and in such a situation,
the order of detention is not vulnerable in law. Elaborating further, it
is put forth by him that once a subjective satisfaction has been arrived at
on consideration of the relevant materials placed before the detaining
authority by the sponsoring authority, the order is absolutely legally
sustainable and there was no warrant for any interference by the High
Court. It is argued by him that the High Court has been wholly misguided
by the aspect that the order rejecting the representation was not
communicated by the detaining authority, for there is no requirement in law
that it has to be communicated by the said authority. Emphasis has to be
on the satisfaction of the competent authority which is demonstrable from
the file and that would suffice the legal requirement. To bolster the
aforesaid submissions, Mr. Kaul has placed reliance on Haradhan Saha v.
State of West Bengal[6], Ashok Narain v. Union of India[7], Gurdev Singh v.
Union of India[8] and Ujagar Singh v. State of Punjab[9].
8. Mr. R. Basant, learned senior counsel appearing for the respondent,
per contra, would contend that right to represent as provided under Article
22(5) includes the right to fair and proper consideration and the said
position in law has been settled by the Constitution Bench in K.M. Abdulla
Kunhi v. Union of India[10]. It is urged by him that the right for proper
consideration, has been taken a step forward by the High Court of Kerala in
Lekha Nandakumar (supra) by holding that detenu has a right to be
communicated the order rejecting his representation and the non-compliance
explicitly shows non- application of mind. It is put forth by the learned
senior counsel that when the order passed rejecting the representation is
communicated, the detenu would have been apprised of the fact that there
had been a consideration of his representation in a fair and impartial
manner indicating application of mind, but when the communication, as the
fact situation in the present case would show, is fundamentally a non-
communication to sustain an order of such nature, would be contrary to high
values relating to life, freedom and liberty, inasmuch as such procedural
violation vitiates the order of detention. Learned senior counsel would
argue with vehemence that the order must be self-evident that the
representation has been considered in an impartial and dispassionate manner
and, therefore, the communication of the order passed by the competent
authority is imperative, for it would clearly convey that there has been
real and proper consideration. Lastly it is propounded by Mr. Basant that
if this Court would be inclined to set aside the judgment of the High
Court, it may not send back the accused to undergo the remaining period of
detention as there exists no proximate temporal nexus between the period of
detention and today. That apart, submits the learned senior counsel,
nothing has been brought on record to indicate the desirability of further
or continued detention. In support of the order of the High Court, learned
senior counsel has placed reliance on Haradhan Saha (supra), Lekha
Nandakumar (supra), K.M. Abdulla Kunhi (supra) and Bhut Nath Mete v. State
of West Bengal[11] and for the second limb of submission, he has drawn
inspiration from Sunil Fulchand Shah v. Union of India[12], State of Tamil
Nadu v. Kethiyan Perumal[13], State of Tamil Nadu v. Alagar[14] and
Chandrakant Baddi v. ADM & Police Commr[15].
9. When the matter was taken up for hearing on 12.3.2015, Mr. Basant,
learned senior counsel appearing for the respondent had pleaded for
sustenance of the order impugned on the foundation of the principles stated
in Haradhan Saha (supra) and Lekha Nandakumar (supra). His singular
submission was that unless the order itself is communicated, there is a
procedural illegality which invalidates the detention. When the matter was
taken up on 26.3.2015, the following order came to be passed:-
“Mr. Neeraj Kishan Kaul, learned Additional Solicitor General commended us
to the Division Bench decision of the Kerala High Court in Babu Vs. State
of Kerala [(2010) (1) KLT 230] wherein paragraph 13 it has been held thus:
“Of course a reading of the portions emphasized above in the passage might
suggest that communication by another of the order passed by the authority
may not be sufficient. The portions emphasized above might create
confusion as to whether that is the law. But we find it difficult to
accept such understanding of the law based on the above observations. The
order passed by the authority may be extracted in extensor or completely by
a subordinate officer and that may be communicated to the detenu. In such
a case it cannot possibly be contended that there is no communication for
the reason that the order was not communicated by the authority which
passed the order or that the order as such has not been communicated. The
observations extracted above understood properly in the context, according
to us, can only means and insist that the order must be communicated
effectively and not that the order as such must be communicated or that the
authority which passed the order must himself communicate the order.”
Mr. Basant, learned senior counsel, explaining the aforesaid judgment,
submitted that effective communication of the order would tantamount to
substantial compliance and in the said case the order passed by the
competent authority was extracted. Mr. Kaul, learned Additional Solicitor
General, submitted that the order need not be a speaking one and what is to
be seen is that there is recording of subjective satisfaction by the
competent authority. The communication by the lower authority putting the
order in indirect speech would not affect the order of detention. In
addition, he would submit that the court can, for its own satisfaction,
peruse the record to find out whether procedural safeguards have been taken
care of or not.”
10. The purpose of referring to the aforesaid order is that the sole
contention raised in the case, whether non-communication of the order
rejecting the representation in an effective manner would invalidate or
vitiate the order of detention. To appreciate the said submission, we had
permitted the learned Additional Solicitor General to produce the file for
our perusal.
11. We have already stated about the date of detention, date of
submission of representation and rejection of representation. There is no
dispute that the order of rejecting the representation has been
communicated by the Under Secretary on 29.4.2013. The said order reads as
follows:-
“With reference to his representation dated 11.04.2013 (in regional
language) received through the Jail Superintendent, Central Prison,
Thiruvananthapuram on 18.04.2013 in the Ministry, Shri Abdu Rahiman @
Atheeq, a COFEPOSA detenu is hereby informed that the aforesaid
representation has been carefully considered by the Special Secretary &
Director General, Central Economic Intelligence Bureau, Ministry of
Finance, Department of Revenue, New Delhi on behalf of the Central
Government, but it is regretted that the same has been rejected.”
12. The gravamen of the submission is whether non-
communication of the order by the competent authority or absence of an
effective communication would vitiate the order of detention. To
appreciate the controversy in proper perspective, we may refer to Article
22(5) of the Constitution which reads as follows:-
“When any person is detained in pursuance of an order made under any law
providing for preventive detention, the authority making the order shall,
as soon as may be, communicate 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.”
13. Section 3 of the COFEPOSA Act reads as follows:-
“Section 3. Power to make orders detaining certain persons.- (1) The
Central Government or the State Government or any officer of the Central
Government, not below the rank of a Joint Secretary to that Government,
specially empowered for the purposes of this section by that Government, or
any officer of the State Government, not below the rank of a Secretary to
that Government, specially empowered for the purposes of this section by
that Government, may, if satisfied, with respect to any person (including a
foreigner), that, with a view to preventing him from acting in any manner
prejudicial to the conservation or augmentation of foreign exchange or with
a view to preventing him from-
(i) smuggling goods, or
(ii) abetting the smuggling of goods, or
(iii) engaging in transporting or concealing or
keeping smuggled goods, or
(iv) dealing in smuggled goods otherwise than
by engaging in transporting or concealing or keeping smuggled goods, or
(v) harbouring persons engaged in smuggling goods or in abetting the
smuggling of goods,
it is necessary so to do, make an order directing that such person be
detained:
Provided that no order of detention shall be made on any of the
grounds specified in this sub-section on which an order of detention may be
made under section 3 of the Prevention of Illicit Traffic in Narcotic Drugs
and Psychotropic Substances Act, 1988 or under section 3 of the Jammu and
Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Ordinance, 1988 (J&K Ordinance 1 of 1988).
(2) When any order of detention is made by a State Government or by an
officer empowered by a State Government, the State Government shall, within
ten days, forward to the Central Government a report in respect of the
order.
(3) For the purposes of clause (5) of Article 22 of the Constitution, the
communication to a person detained in pursuance of a detention order of the
grounds on which the order has been made shall be made as soon as may be
after the detention, but ordinarily 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.”
14. We shall analyse what the Division Bench of the High Court of Kerala
in Lekha Nandakumar (supra) has laid down in the backdrop of the
constitutional mandate, the statutory command and the view expressed by
this Court. In the said case the Division Bench stated that it was not
considering the correctness of application of mind pertaining to the
satisfaction of the authority or merits of the case, but addressing to the
aspect whether constitutional safeguards prescribed by law were complied
with or not. It noted the four contentions raised by the petitioner
therein. One of the contention was that the representation was not properly
disposed of by the appropriate authority and it was not sent to him by the
competent authority but the rejection order was communicated by another
authority without stating any reason. The High Court referred to the
nature of allegations, the protection granted under Article 22(5) of the
Constitution and Section 11 of the COFEPOSA Act, the duty of the authority
who deals with the representation, took note of the fact that the
representation addressed to the Secretary was considered by the Joint
Secretary and in that context proceeded to state as follows:-
“Even though various contentions including non-supply of necessary
documents etc. were mentioned in the representation, there is no
application of mind by the Secretary to Government. The Secretary has just
rejected the representation. It does not show that he has applied his mind.
When the Authority disposes a representation, which is a constitutional
right of the detenu, it cannot be disposed of like this in a casual manner.
Further, the Secretary has not communicated his order to the detenu, but
only the Under Secretary has communicated the order. It is true that even
though making of representation is a constitutional right, there is no
obligation for the Central Government to grant a hearing. It is also not
necessary that an elaborate speaking order should be passed. But from the
order it should appear that the authority has applied its mind while
disposing of the representation. The order should be sent to the detenu.
Here the order passed by the Secretary was not sent to the detenu, but only
the factum of rejection of his representation was intimated by the Under
Secretary keeping the detenu in dark regarding the way in which his
representation was disposed of. There is nothing on record to show that the
concerned authority has applied its mind. Even if the Under Secretary
informed him that Secretary has disposed of his representation, this is not
the way a constitutional obligation is to be discharged by the Government
Secretary. Therefore, there is no proper disposal of the representation. We
are of the view that on this ground alone the detention order will not
stand as there is procedural violation.”
[underlining is by us]
15. In Babu (supra), a subsequent Division Bench posed the question which
reads as follows:-
“Does the communication by anyone other than the authority passing the
order of the fate of the representation made by the detenu (and not the
order as such) infringe such fundamental right of the detenu?”
16. Dealing with the said issue, the Court opined that the order must be
communicated effectively and not that the order as such must be
communicated or that the authority which passed the order must himself
communicate the order. Thereafter, the Division Bench proceeded to lay
down the principle relating to effective communication and in that regard
came to hold as follows:-
“… The order passed by the authority may be extracted in extenso or
completely by a subordinate officer and that may be communicated to the
detenu. In such a case it cannot possibly be contended that there is no
communication for the reason that the order was not communicated by the
authority which passed the order or that the order as such has not been
communicated. The observations extracted above understood properly in the
context, according to us, can only mean and insist that the order must be
communicated effectively and not that the order as such must be
communicated or that the authority which passed the order must himself
communicate the order.”
17. Thus, the decision in Lekha Nandakumar (supra) lays down that there
has to be a communication by the competent authority failing which the
order of detention is invalid. The second Division Bench explains the
first one and goes by the concept of “effective communication”. It states
that the order passed by the competent authority should be properly
extracted in the order of communication and it must indicate subjective
satisfaction. The question is whether the principles stated in both the
decisions are correct or to put it differently, whether non-communication
of the order by the competent authority or for that matter non-extraction
of the order of the competent authority by the communicating authority
would straightaway invalidate the order of detention. In this regard, we
may usefully refer to the authority in Haradhan Saha (supra). In the said
case, the Constitution Bench was dealing with the constitutional validity
of the Maintenance of Internal Security Act, 1971. While dealing with the
consideration of representation, the larger Bench opined thus:-
“24. The representation of a detenu is to be considered. There is an
obligation on the State to consider the representation. The Advisory Board
has adequate power to examine the entire material. The Board can also call
for more materials. The Board may call the detenu at his request. The
constitution of the Board shows that it is to consist of Judges or persons
qualified to be Judges of the High Court. The constitution of the Board
observes the fundamental of fair play and principles of natural justice. It
is not the requirement of principles of natural justice that there must be
an oral hearing. Section 8 of the Act which casts an obligation on the
State to consider the representation affords the detenu all the rights
which are guaranteed by Article 22(5). 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
whether in the light of the representation there is sufficient cause for
detention.
xxxxx xxxxx
26. The opinion of the Board as well as the order of the Government
rejecting the representation of the detenu must be after proper
consideration. There need not be a speaking order. There is also no failure
of justice by the order not being a speaking order. All that is necessary
is that there should be real and proper consideration by the Government and
the Advisory Board.”
[Emphasis added]
The Court elucidating the said aspect in the backdrop of natural
justice expressed thus:-
“30. Elaborate rules of natural justice are excluded either expressly or by
necessary implication where procedural provisions are made in the statute
or where disclosure of relevant information to an interested party would be
contrary to the public interest. If a statutory provision excludes the
application of any or all the principles of natural justice then the court
does not completely ignore the mandate of the legislature. The court
notices the distinction between the duty to act fairly and a duty to act
judicially in accordance with natural justice. The detaining authority is
under a duty to give fair consideration to the representation made by the
detenu but it is not under a duty to disclose to the detenu any evidence or
information. The duty to act fairly is discharged even if there is not an
oral hearing. Fairness denotes abstention from abuse of discretion.
31. Article 22 which provides for preventive detention lays down
substantive limitations as well as procedural safeguards. The principles of
natural justice insofar as they are compatible with detention laws find
place in Article 22 itself and also in the Act. Even if Article 19 be
examined in regard to preventive detention, it does not increase the
content of reasonableness required to be observed in respect of orders of
preventive detention. The procedure in the Act provides for fair
consideration to the representation. Whether in a particular case, a detenu
has not been afforded an opportunity of making a representation or whether
the detaining authority is abusing the powers of detention can be brought
before the court of law.”
[Emphasis supplied]
18. From the aforesaid authority, it is clear as day that while rejecting
the representation, a speaking order need not be passed and what is
necessary is that there should be real and proper consideration by the
Government and the Advisory Board. The Constitution Bench has limited the
application of principles of natural justice to the sphere of deliberation.
It has confined it to real and proper consideration; application of mind.
Dealing with the concept of fairness, it has been observed that fairness
denotes abstention from abuse of discretion. Understanding the said
principle correctly, it can be said that the use of discretion has to be
based on fairness of approach. The authority concerned may not give
reasons but there has to be application of mind. Mr. Kaul, learned
Additional Solicitor General would submit that even if the order itself
does not indicate application of mind by the competent authority or it has
been communicated by another authority not indicating the approach of the
competent authority the Court has ample power to call for the file and
satisfy itself. In this regard, he has drawn our attention to the view
expressed by this Court in Ashok Narain (supra). In the said case, one
Santosh Kumar Jain was engaged in illegal foreign exchange operations and
he apprehended by the Enforcement Directorate of the Ministry of Finance.
On the basis of certain materials, he was arrested under Section 35 of the
Foreign Exchange Regulation Act and remanded to judicial custody and
thereafter he was released on bail. After he was enlarged on bail, an
order of detention was passed under COFEPOSA Act. The said detention was
challenged under Article 32 of the Constitution before this Court, and it
was contended before this Court that the failure to launch the prosecution,
taken along with the circumstance, that a long time was allowed to lapse
before the order of detention was made, was sufficient to expose the
hollowness of the claim that the order was made with a view to prevent the
detenu from acting in any manner prejudicial to the augmentation of foreign
exchange. To appreciate the said submission, the Court called for the
original file and upon perusal of the file held thus:-
“In order to satisfy ourselves that there was no undue or unnecessary delay
in making the order of detention, we sent for the original files and we
have perused them. We are satisfied that the matter was examined thoroughly
at various levels and the detaining authority applied his mind fully and
satisfactorily to the question whether the petitioner should be detained
under the COFEPOSA. The passage of time from the date of initial
apprehension of the detenu and the making of the order of detention was not
occasioned by any laxity on the part of the agencies concerned, but was the
result of a full and detailed consideration of the facts and circumstances
of the case by the various departments involved. We find from the file that
the very question whether the passage of time had made it unnecessary to
order the detention of the detenu was also considered by the detaining
authority. We are unable to hold in the circumstances of this case that
there was any tardiness on the part of any one or that the detention is in
any manner illegal.”
19. In this regard, we may profitably refer to the decision in Gurdev
Singh (supra). In the said case, it was contended by the appellant
therein that the order of detention was vitiated because of non-
consideration of relevant materials by the detaining authority. The Court
referred to the decisions in A. Sowkath Ali v. Union of India[16], Ahamed
Nassar v. State of T.N.[17], Sanjay Kumar Aggarwal v. Union of India[18]
and Ashadevi v. K. Shivraj, Addl. Chief Secretary to the Govt. of
Gujarat[19] and came to rule thus:-
“Testing the case at hand on the touchstone of the principles laid down in
the decisions noted above, we find that the subjective satisfaction arrived
at by the detaining authority in the case is based on consideration of all
the relevant materials placed before it by the sponsoring authority. It is
not the case of the appellant that the sponsoring authority did not place
before the detaining authority any material in its possession which is
relevant and material for the purpose and such material, if considered by
the detaining authority, might have resulted in taking a different view in
the matter. All that is contended on behalf of the detenu is that the
detaining authority should have taken further steps before being satisfied
that a case for detention under the COFEPOSA Act has been made out against
the detenu. Whether the detention order suffers from non-application of
mind by the detaining authority is not a matter to be examined according to
any straitjacket formula or set principles. It depends on the facts and
circumstances of the case, the nature of the activities alleged against the
detenu, the materials collected in support of such allegations, the
propensity and potentiality of the detenu in indulging in such activities
etc. The Act does not lay down any set parameters for arriving at the
subjective satisfaction by the detaining authority. Keeping in view the
purpose for which the enactment is made and the purpose it is intended to
achieve, Parliament in its wisdom, has not laid down any set standards for
the detaining authority to decide whether an order of detention should be
passed against a person. The matter is left to the subjective satisfaction
of the competent authority.”
20. Be it stated, Mr. Kaul, learned Additional Solicitor General, relying
on the said passage has urged that where after communicating detailed
grounds of the detention order and upon receipt of the representation from
the detenu, the same has been properly considered, mere non-supply of the
original order of rejection of the detenu’s representation would not
vitiate the detention order itself and it can never be a ground for
interference in the order of detention by the High Court under Article 226
of the Constitution.
21. Resisting the said submission, it is propounded by Mr. Basant that
incorporation of the extract of the order passed by the competent authority
where another authority communicates the order is a constitutional
safeguard as envisaged under Article 22(5) of the Constitution. In Babu
(supra), the Division Bench of the High Court, while dealing with the
deprivation of right to life and liberty of the citizens, held that it is
obligatory on the competent authority to make aware the reasoning of the
decision to the detenu and intimation in laconic style has to be avoided.
That apart, the authority must not be prisoner of the notes submitted by
the subordinate, for it is its duty to consider the representation in
proper perspective. Emphasis has been laid on individual freedom and
liberty especially in preventive detention where it gets vitiated only when
there is violation of procedural safeguards. To arrive at the said
conclusion, heavy reliance has been placed on Article 22(5) of the
Constitution. The said decision, as we notice, has engrafted the principle
that unless the extract of the original order is communicated, the
detention is vitiated, as there is a violation of the constitutional
safeguard. We may hasten to state that Babu (supra) clarifies the
proposition of law laid down in Lekha Nandakumar (supra) but the base of
both the decisions is that unless the detenu is made aware of the order
passed by the competent authority, the said order is bound to suffer from
legal impropriety. It has been laid down in Haradhan Saha (supra) that
there may not be a speaking order but application of mind. In Gurdev
Singh (supra), this Court had made it clear that whether the detention
orders suffer from non-application of mind by the detaining authority is
not a matter to be examined according to any straitjacket formula or set
principles and it would depend on the facts and circumstances of the case.
Therefore, the stress is on the application of mind. Communication of
grounds on which the order of detention has been made cannot be equated
with communication of the order rejecting the representation. There is a
constitutional command to intimate the grounds on which the order of
detention has been made. There is a statutory mandate that grounds of
detention have to be communicated within five days and delay upto fifteen
days is allowed, if reason is given in writing. There can be no shadow of
doubt that if reasons are not communicated within the said time, the order
of detention would be vitiated. There can be no trace of doubt that in
both the stages there has to be application of mind which would be in the
realm of subjective satisfaction based on consideration of all the relevant
materials placed before the competent authority. The satisfaction of the
competent authority regarding sufficiency of materials on which the
satisfaction is recorded is subjective in nature. In this regard, it is
seemly to reproduce the observations made by this Court in Union of India
v. Arvind Shergill[20] :-
“The High Court has virtually decided the matter as if it was sitting in
appeal on the order passed by the detaining authority. The action by way of
preventive detention is largely based on suspicion and the court is not an
appropriate forum to investigate the question whether the circumstances of
suspicion exist warranting the restraint on a person. The language of
Section 3 clearly indicates that the responsibility for making a detention
order rests upon the detaining authority which alone is entrusted with the
duty in that regard and it will be a serious derogation from that
responsibility if the court substitutes its judgment for the satisfaction
of that authority on an investigation undertaken regarding sufficiency of
the materials on which such satisfaction was grounded. The court can only
examine the grounds disclosed by the Government in order to see whether
they are relevant to the object which the legislation has in view, that is,
to prevent the detenu from engaging in smuggling activity. The said
satisfaction is subjective in nature and such a satisfaction, if based on
relevant grounds, cannot be stated to be invalid. The authorities concerned
have to take note of the various facts including the fact that this was a
solitary incident in the case of the detenu and that he had been granted
bail earlier in respect of which the application for cancellation of the
same was made but was rejected by the Court. In this case, there has been
due application of mind by the authority concerned to that aspect of the
matter as we have indicated in the course of narration of facts. Therefore,
the view taken by the High Court in the circumstances of the case cannot be
sustained.”
22. This being the position of law, when there is allegation that there
has been non-application of mind and the representation has been rejected
in a laconic or mechanical manner by the competent authority, we are
disposed to think, the Court can always call for the file and peruse the
notes and the proceedings whether there has been application of mind by the
competent authority or not. Our said conclusion gets support from the
decision in Ashok Narain (supra). In the said case, this Court on perusal
of file has expressed its opinion that there had been no tardiness on
behalf of any one and, therefore, the detention in no manner was illegal.
23. We are absolutely conscious that liberty of an individual is sacred.
The individual liberty has to be given paramount importance. But such
liberty can be controlled by taking recourse to law. Preventive detention
is constitutionally permissible. The Courts can interfere where such
detention has taken place in violation of constitutional or statutory
safeguards. Treating the issue of communication of rejection of the
representation by the competent authority or incorporation of the order
passed by the competent authority in the order of communication as a
constitutional safeguard, would not be correct. The duty of the Court in
this regard is to see whether the representation submitted by the detenu
has been rejected in a mechanical manner without application of mind. We
are inclined to hold that for the said purpose, the relevant file can be
called for and perused and, accordingly, keeping that in view, in the
course of hearing, we had asked for production of the file and the same had
been produced.
24. On a perusal of the file, we find that after receipt of the
representation, the Under Secretary, COFEPOSA, had narrated the grounds of
detention and the file pertaining to the detention was also placed on
record. Parawise comments of the sponsoring authority, that is, the
Directorate of Enforcement, Kochi has been obtained. Various contentions
have been raised in the representation that the detenu had studied only
upto 10th standard in the Malayalam medium school of his native place and
though he can write and read certain English words, he does not have enough
knowledge to understand the meaning of the English words and sentences. In
the comment, it has been mentioned that free Malayalam translation of the
grounds of detention and relied upon documents had been supplied to the
detenu to make him aware of the grounds and reasons for his detention under
the COFEPOSA Act and, therefore, the ground had no relevance. As indicated
earlier, such a ground was raised before the High Court and not found
favour. It was also urged in the representation that he was unable to
understand the documents which were furnished to him in Malayalam as they
were not legible. It has been commented that the relevant writings were
very much legible and photocopies of the FIR and Search List were furnished
to the detenu. A further ground was urged that he was not supplied the
reasons of his detention and the documents were not supplied within five
days or maximum within fifteen days. As has been stated in the comment, he
was supplied the documents in the language known to him, that is, Malayalam
within the statutory period and acknowledgement was obtained from him.
All the assertions made in the representation were commented by the Under
Secretary and every aspect has been stated in detail. The competent
authority has passed the following order:-
“I have gone through the representation. I do not find sufficient ground
for exercising powers under Section 11 of the COFEPOSA Act. The
representation is rejected.”
25. The order that has been communicated to him by the Under Secretary
indicates that the representation submitted by the detenu had been
carefully considered by the competent authority.
26. We have already referred to the Constitution Bench decision in
Haradhan Saha (supra) in the context of duty of the Government while
considering the representation; and the power of the Advisory Board. It
has been clearly stated that the Government considers the representation to
ascertain whether the order has been made within power under the law and
the Board, on the other hand, considers whether in the light of the
representation, there is sufficient cause for detention. The Court has
expressed the view that the order of the Government rejecting the
representation of the detenu should show real and proper consideration by
the Government. The ratio of the said authority has to be appositely
understood. The competent authority while considering the representation is
not required to pass a speaking order but it must reflect that there has
been real and proper consideration of the representation. It is, as has
been held in Gurdev Singh (supra), a subjective satisfaction. But the
subjective satisfaction must show that the authority had the opportunity to
peruse the material obtained against the detenu. To elucidate, the material
documents are to be produced before the competent authority who has the
competence to deal with the representation. On a scrutiny of the file, we
find that the entire file relating to the detention was produced before the
competent authority alongwith detailed comments. The said authority has
clearly stated that he has gone through the representation and does not
find any sufficient ground to exercise the jurisdiction under the COFEPOSA
Act. In our considered opinion, this would tantamount to real and proper
consideration, for the competent authority is not required to pass an
adjudicatory order. The High Court of Kerala in Lekha Nandakumar (supra)
lays down that the order passed by the competent authority has to be
communicated to the detenu and the decision in Babu (supra) clarifies that
the order passed by the authority may be extracted in extenso or
completely by a subordinate officer and that may be communicated to the
detenu. Thus, in Babu (supra), the emphasis is on the effective
communication.
27. Mr. Kaul, learned Additional Solicitor General, has submitted that
the both the decisions have not laid down the correct principles of law and
further the factual score in Babu (supra) is quite different.
28. At this juncture, it would be quite pertinent to refer to the
authority in John Martin v. State of West Bengal[21], wherein a three-Judge
Bench dealt with the rejection of representation of the petitioner therein
against the order of detention and in that context, opined that appropriate
Government cannot reject the representation of the detenu in a casual and
mechanical manner and it must bring to bear on the consideration of the
representation an unbiased mind. The Court referred to Haradhan Saha
(supra) wherein it has been stated that there has to be “a real and proper
consideration” of the representation by the appropriate Government and
thereafter proceeded to opine thus:-
“We cannot over-emphasise the need for the closest and most zealous
scrutiny of the representation for the purpose of deciding whether the
detention of the petitioner is justified.”
29. A contention was raised in the said case that the order passed by the
State Government rejecting the representation of the detenu should be a
reasoned order. The three-Judge Bench on consideration of the principles
laid down in Haradhan Saha (supra), quoted a passage therefrom and observed
as follows:-
“These observations must give a quietus to the contention that the order of
the State Government must be a reasoned order. It is true that in Bhut Nath
Mete v. State of W.B.[22] Krishna Iyer, J., speaking on behalf of a
Division Bench of this Court observed that: [SCC p. 659 para 23, SCC (CRI)
p. 314]
“It must be self-evident from the order that the substance of the charge
and the essential answers in the representation have been impartially
considered”,
but if we read the judgment as a whole there can be no doubt that these
observations were not meant to lay down a legal requirement that the order
of the State Government must be a speaking order but they were intended to
convey an admonition to the State Government that it would be eminently
desirable if the order disclosed that “the substance of the charge and the
essential answers in the representation” had been impartially considered.
The learned Judge in fact started the discussion of this point by stating:
[SCC p. 659 para 23, SCC (CRI) p. 314]
“We are not persuaded that a speaking order should be passed by the
Government or by the Advisory Board while approving or advising continuance
of detention;”
In any event, the decision in Haradhan Saha case being a decision rendered
by a Bench of five judges must prevail with us. We, therefore, reject the
present contention of the petitioner.”
30. From the aforesaid analysis, it is quite limpid that whatever has
been stated in Bhut Nath Mete (supra) has been explained in John Martin
(supra) and it has reiterated the principle that a speaking order need not
be passed by the government or by the Advisory Board. It has also been
explained that the observations made in Bhut Nath Mete (supra) were not
meant to lay down a legal requirement that the order of the State
Government must be a speaking order. Reliance was placed on the
Constitution Bench decision in Haradhan Saha (supra) to lay down that Bhut
Nath Mete (supra) is not a binding precedent. The said delineation makes
it absolutely clear that the Court should be guided by the principles
stated in Haradhan Saha (supra) and not by Bhut Nath Mete (supra). Thus
the principle behind “real and proper consideration” would only mean as
has been stated in John Martin (supra), the representation cannot be
rejected in a casual and mechanical manner. Overemphasis cannot be placed
on “real and proper consideration”. What has to be seen by the competent
authority is that the materials are placed before him and such materials
come within the purview of the statute and it must show that there has been
subjective satisfaction. The word “satisfaction” need not be used while
rejecting the representation. To elaborate, the consideration by the
competent authority the government is to ascertain essentially whether the
order is in consonance with the power conferred under the law and the
allegations made against the detenu come within the purview of the said
law. The real and proper consideration by the appropriate government means
the order of rejection should indicate that there has been subjective
satisfaction by the competent authority to reject the representation. As
has been held in John Martin (supra), there cannot be zealous scrutiny of
the representation for the purpose of deciding whether the detention of the
petitioner is justified. In the said case, analyzing the principle stated
in Haradhan Saha (supra), it has been reiterated that the order need not be
a speaking order and non-speaking order does not amount to failure of
justice. The said controversy, as has been observed by the three-Judge
Bench, should be given a quietus. That being the legal position, on a
careful perusal of the file, we find that there has been subjective
satisfaction on the basis of the materials placed before the competent
authority along with the representation. It cannot be said that the
subjective satisfaction is not discernible from the order passed. In view
of the analysis, the decision in Lekha Nandakumar (supra) by the Division
Bench of the High Court stating the principle that the order passed by the
competent authority should be communicated failing which there will be a
violation of the constitutional command engrafted under Article 22(5) is
not correct. The Court can always call for the file and peruse whether
there has been rejection of the representation as required under the law.
31. The decision in Babu (supra) while explaining the Lekha Nandakumar
(supra) states that if an order is communicated by the Under Secretary do
not meet the constitutional obligation, for the order passed by the
authority would be extracted in extenso completely by a subordinate officer
and that may be communicated to the detenu. Thus, the said decision
introduces principle of effective communication in a different way. This
approach, in our view, is erroneous. If the order is communicated by
another authority and eventually the order is affirmed by the Advisory
Board and the same is challenged, the constitutional courts have ample
power to call for the records and verify how the representation has been
rejected. We are not adverting to the facts in Babu (supra) whether there
had been real and proper consideration or not, but suffice it to say that
jurisdiction of the court is only to see whether there has been any
subjective satisfaction that the proper law had been applied at the time of
detention of the detenu. There is no need on the part of the competent
authority to pass a speaking order and to give reasons on any facet. Thus
analysed, the extended proposition in Babu (supra) is not legally correct.
32. In this context, we may fruitfully refer to a four-Judge Bench
decision in Khudiram Das v. The State of West Bengal and others[23] wherein
explaining the observations made in Bhut Nath Mete (supra), the Court
observed that:-
“It was, however, sought to be contended on behalf of the petitioner,
relying on the observation of this Court in Bhut Nath Mete v. State of W.B
that the exercise of the power of detention “implies a quasi-judicial
approach”, that the power must be registered as a quasi-judicial power. But
we do not think it would be right to read this observation in the manner
contended on behalf of the petitioner. This observation was not meant to
convey that the power of detention is a quasi-judicial power. The only
thing which it intended to emphasise was that the detaining authority must
exercise due care and caution and act fairly and justly in exercising the
power of detention.
33. In the said case, while dealing with subjective satisfaction, the
Court observed:-
“There are several grounds evolved by judicial decisions for saying that no
subjective satisfaction is arrived at by the authority as required under
the statute. The simplest case is whether the authority has not applied its
mind at all; in such a case the authority could not possibly be satisfied
as regards the fact in respect of which it is required to be satisfied.
Emperor v. Shibnath Bannerji[24] is a case in point. Then there may be a
case where the power is exercised dishonestly or for an improper purpose :
such a case would also negative the existence of satisfaction on the part
of the authority. The existence of “improper purpose”, that is, a purpose
not contemplated by the statute, has been recognised as an independent
ground of control in several decided cases. The satisfaction, moreover,
must be a satisfaction of the authority itself, and therefore, if, in
exercising the power, the authority has acted under the dictation of
another body as the Commissionerof Police did in Commissioner of Police v.
Gordhandas Bhanji[25] and the officer of the Ministry of Labour and
National Service did in Simms Motor Units Ltd. v. Minister of Labour and
National Service[26] the exercise of the power would be bad and so also
would the exercise of the power be vitiated where the authority has
disabled itself from applying its mind to the facts of each individual case
by self-created rules of policy or in any other manner. The satisfaction
said to have been arrived at by the authority would also be bad where it is
based on the application of a wrong test or the misconstruction of a
statute. Where this happens, the satisfaction of the authority would not be
in respect of the thing in regard to which it is required to be satisfied.
Then again the satisfaction must be grounded “on materials which are of
rationally probative value”. Machindar v. King[27]. The grounds on which
the satisfaction is based must be such as a rational human being can
consider connected with the fact in respect of which the satisfaction is to
be reached. They must be relevant to the subject-matter of the inquiry and
must not be extraneous to the scope and purpose of the statute. If the
authority has taken into account, it may even be with the best of
intention, as a relevant factor something which it could not properly take
into account in deciding whether or not to exercise the power or the manner
or extent to which it should be exercised, the exercise of the power would
be bad. Pratap Singh v. State of Punjab[28]. If there are to be found in
the statute expressly or by implication matters which the authority ought
to have regard to, then, in exercising the power, the authority must have
regard to those matters.”
34. We have referred to the aforesaid passage only to highlight that how
the subjective satisfaction has been understood by this Court especially in
the context of preventive detention. The detaining authority on the basis
of certain material passes an order of detention. The same has to be
communicated at the earliest as mandated under Article 22(5) of the
Constitution. A period has been determined. Non-communication within the
said period would be an impediment for sustaining the order of detention.
Similarly, if a representation is made and not considered with promptitude
and there is inordinate delay that would make the detention order
unsustainable. In Raj Kishore Prasad v. State of Bihar and others[29] while
dealing with an order of detention passed the National Security Act, 1980
the Court was dealing with the contention that as there was inordinate
delay in considering the representation of the detenu and the unexplained
delay in considering the representation of the detenu could vitiate the
order. The two-Judge Bench referred to Section 3(2) of the 1980 Act and in
the backdrop of the statutory scheme proceeded to state that when there has
been a long delay of 28 days in disposing of the representation, it would
invalidate the order.
35. In Vijay Kumar v. State of Jammu & Kashmir and others[30] while
dealing with the order of detention passed under Section 8 of the Jammu &
Kashmir Public Safety Act, 1978, took into consideration the delay in
disposal of representation and in that context opined:-
“In Khudiram Das v. State of W.B., (1975) 2 SCC 81, this Court held that
one of the basic requirements of clause (5) of Article 22 is that the
authority making the order of detention must afford the detenu the earliest
opportunity of making a representation against the order of detention and
this requirement would become illusory unless there is a corresponding
obligation on the detaining authority to consider the representation of the
detenu as early as possible. Thus, in the facts of this case we are not
satisfied that the representation was dealt with as early as possible or as
expeditiously as possible, and, therefore, there would be contravention of
Section 13 of the Act which would result in the invalidation of the order.”
36. We have referred to the said authorities solely to emphasise the duty
of the appropriate government to dispose of the representation at the
earliest and what is understood by the concept of subjective satisfaction.
The Government has to follow the safeguards provided under Article 22(5)
and the provisions of the statute. It is because without a trial a person
is deprived of his liberty. Promptitude of action within the statutory
scheme is imperative. In the case at hand, these aspects which have been
raised before the High Court have been negatived, and rightly so. On a
scrutiny of the file which has been produced before us, we find that the
competent authority of the appropriate government has passed an order on
the basis of the material produced before it. It cannot be said that there
is no subjective satisfaction. We may ingeminate that when the material,
the file, the representation and the comments on the representation were
produced before the authority and he had mentioned in the order that he had
gone through the representation and not found sufficient ground for
exercising the power under Section 11 of the COFEPOSA Act, it cannot be
said that there has been no subjective satisfaction. The Constitution Bench
in Haradhan Saha (supra) has laid down that the order need not be a
speaking one but there should be real and proper consideration. The
principle stated by the Constitution Bench has to be properly understood.
The said principle has been explained in John Martin (supra) and Khudiram
Das (supra). Succinctly put, it is to be seen by the said authority that
the materials on record on the basis of which the order is passed are under
appropriate statute; that the detaining authority has not travelled beyond
the grounds that are within the framework of the statute; and that the
grounds are not vague, etc., and all these come within the scope and ambit
of subjective satisfaction and need not be objectively pronounced by an
order. There is no trace of doubt that “subjective satisfaction” is not
insusceptible from judicial reviewability. Thus analysed, the impugned
order granting the writ of habeas corpus and directing the detenu to be set
at liberty is totally vulnerable and accordingly we set aside the same.
37. Now, we shall proceed to deal with the alternative submission of Mr.
Basant, learned senior counsel for the respondent. It is urged by him that
the detenu was detained on 25.2.2013 and released on 24.10.2013 and in this
backdrop, the detenu should not be sent back to undergo the remaining
period of detention, for there exists no proximate temporal nexus between
the period of detention indicated in the order for which the detenu was
required to be detained and the date when the detenu is required to be
detained if the order is set aside. Learned senior counsel would urge that
there is a necessity on the part of the authorities to be satisfied whether
it is desirable that the detenu should be further detained for the balance
period of detention. Mr. Basant has commended us to certain authorities
which we shall proceed to deal with it.
38. In Sunil Fulchand Shah (supra), the Constitution Bench was dealing
with the issue whether the period of detention under the COFEPOSA Act is a
fixed period running from the date specified in the detention order and
ending with the expiry of that period or the period is automatically
extended by any period of parole granted to the detenu. While dealing with
the said issue, the majority speaking through the learned Chief Justice
noted the observation made in State of Gujarat v. Adam Kasam Bhaya[31],
viz., “if he has served a part of the period of detention, he will have to
serve out the balance” and adverted to various facets and eventually
recorded the following conclusion in respect of the said issue:-
“33.6. The quashing of an order of detention by the High Court brings to an
end such an order and if an appeal is allowed against the order of the High
Court, the question whether or not the detenu should be made to surrender
to undergo the remaining period of detention, would depend upon a variety
of factors and in particular on the question of lapse of time between the
date of detention, the order of the High Court, and the order of this
Court, setting aside the order of the High Court.
A detenu need not be sent back to undergo the remaining period of
detention, after a long lapse of time, when even the maximum prescribed
period intended in the order of detention has expired, unless there still
exists a proximate temporal nexus between the period of detention indicated
in the order by which the detenu was required to be detained and the date
when the detenu is required to be detained pursuant to the appellate order
and the State is able to satisfy the court about the desirability of
“further” or “continued” detention.
7. That where, however, a long time has not lapsed or the period of
detention initially fixed in the order of detention has not expired, the
detenu may be sent back to undergo the balance period of detention. It is
open to the appellate court, considering the facts and circumstances of
each case, to decide whether the period during which the detenu was free on
the basis of an erroneous order should be excluded while computing the
total period of detention as indicated in the order of detention though
normally the period during which the detenu was free on the basis of such
an erroneous order may not be given as a “set-off” against the total period
of detention. The actual period of incarceration cannot, however, be
permitted to exceed the maximum period of detention, as fixed in the order,
as per the prescription of the statute.”
39. In Kethiyan Perumal (supra), a two-Judge Bench, after referring to
the Constitution Bench decision in Sunil Fulchand Shah (supra), directed as
follows:-
“… it is for the appropriate State to consider whether the impact of the
acts, which led to the order of detention, still survives and whether it
would be desirable to send back the detenu for serving the remainder period
of detention. Necessary order in this regard shall be passed within two
months by the appellant State. Passage of time in all cases cannot be a
ground not to send the detenu to serve the remainder of the period of
detention. It all depends on the facts of the act and the continuance or
otherwise of the effect of the objectionable acts. The State shall consider
whether there still exists a proximate temporal nexus between the period of
detention indicated in the order by which the detenu was required to be
detained and the date when the detenu is required to be detained pursuant
to the appellate order.”
40. In Alagar (supra), similar observations were made. In Chandrakant
Baddi (supra), a two-Judge Bench referred to the earlier decisions and
opined that:-
“A reading of the abovequoted paragraphs would reveal that when an order of
a court quashing the detention is set aside, the remittance of the detenu
to jail to serve out the balance period of detention does not automatically
follow and it is open to the detaining authority to go into the various
factors delineated in the judgments aforequoted so as to find out as to
whether it would be appropriate to send the detenu back to serve out the
balance period of detention. …”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1251 OF 2015
(@ SPECIAL LEAVE PETITION (CRIMINAL) NO. 5890 OF 2014)
Union of India & Ors. ... Appellant(s)
Versus
Saleena ... Respondent(s)
J U D G M E N T
Dipak Misra, J.
Calling in question the defensibility of the judgment and order dated
24.10.2015 passed by the High Court of Kerala by which the Division Bench
has quashed the order of detention passed against Abdu Rahiman (detenu),
the husband of the respondent, under Section 3(1) of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for
brevity, ‘the COFEPOSA Act’), the instant appeal, by special leave, has
been preferred.
2. Shorn of unnecessary details, the facts which are essential to be
stated for adjudication of this appeal are that an order of detention was
issued on 08.02.2013 under Section 3(1) of the COFEPOSA Act. The said
order, as the facts would uncurtain, came into existence on the basis of
proposal of the Sponsoring Authority (Directorate of Enforcement) and the
Empowered Officer of the Central Government (the Detaining Authority). The
grounds of detention were communicated to the detenu vide communication
dated 08.02.2013. By the said communication in compliance with Article
22(5) of the Constitution and Section 3(3) of the COFEPOSA Act, the detenu
was informed of his right to make a representation against his detention to
the Detaining Authority. Be it stated, pursuant to the order of detention,
the detenu was detained on 25.02.2013 and lodged in the Central Prison,
Thiruvananthapuram.
3. The detenu made a representation on 11.04.2013 which was received on
18.04.2013 by the Jail Superintendent which was forwarded to the competent
authority and thereafter the Special Secretary-cum-Director General,
Central Economic Intelligence Bureau, Ministry of Finance, Department of
Revenue, rejected the representation on behalf of the Central Government on
26.04.2013 after due consideration. The order of rejection was communicated
to the detenu vide memorandum dated 29.04.2013 by the Under Secretary,
Government of India. Keeping in view the prescription enshrined under
Section 8(1) of the COFEPOSA Act, reference was made to the Advisory Board
and the detenu was heard by the Advisory Board on 04.05.2013, and
thereafter vide order dated 21.05.2013, he was informed that the Advisory
Board was of the opinion that sufficient reasons existed for his detention.
On the basis of the opinion of the Advisory Board, the Central Government
confirmed the order of detention and directed that the detention of the
detenu would remain in force for a period of one year commencing from the
date of his detention.
4. Aggrieved by the aforesaid order, the wife of the detenu filed Writ
Petition (Criminal) No. 406 of 2013 before the High Court seeking a writ of
habeas corpus. It was urged before the High Court that the decision of the
competent authority was not communicated to the detenu; that there was
inordinate and unexplained delay in passing the order of detention; that
the report submitted by the sponsoring authority was not served on the
detenu; that there was delay in considering his representation; that the
translated copy of the order of detention was not served on him; that he
was not served the order rejecting his representation; and that the order
of rejection passed by the competent authority indicating the reasons was
not communicated to the detenu.
5. Counter affidavit was filed by the respondents putting forth the
stand that before rejecting the representation of the detenu, the requisite
process was adhered to, and in support of the same it was asserted that
after receipt of the representation of the detenu from the Jail
Superintendent by the Deputy Director, Calicut, the same was sent to the
Ministry with para-wise comments on 25.4.2013. On 26.4.2013, after
examining the issue raised in the representation, the Under Secretary put
up the file before the Joint Secretary who is the Competent Authority under
Section 3(1) of the COFEPOSA Act. The said Authority recorded its comments
and submitted the file to the Special Secretary and Director General,
Central Economic Intelligence Bureau for consideration, who vide order
dated 26.4.2013 rejected the same.
6. The High Court noting the submissions of the learned counsel for the
parties adverted to the decisions in Devji Vallabhbhai Tandel v. The
Administrator of Goa, Daman and Diu and Anr.[1], Lekha Nandakumar v.
Government of India[2], A.C. Razia v. Government of Kerala and others[3],
Saliyal Beevi and others v. State of Kerala and others[4] and some other
authorities and eventually came to hold as follows:-
“As we have already stated, a detenu, who makes a representation availing
of his constitutional rights under Article 22(5) of the Constitution of
India is entitled to have proper consideration of his representation and
that process of consideration is completed, only when a decision on his
representation is also communicated to him. That constitutional
requirement will not be satisfied if an authority subordinate to the
competent authority informs the detenu that his representation is rejected.
Admittedly, in this case, the decision of the competent authority was not
communicated to the detenu and on the other hand, the only communication
that was issued to the detenu is that of the Under Secretary to the
Government of India, where, it was laconically stated that his
representation is rejected. In our view, this is a case where the right of
the detenu under Article 22(5) of the Constitution of India is violated and
the issue canvassed by the petitioner is fully covered in her favour by the
principles laid down by the Division Bench of this Court in Lekha
Nandakumar’s case (supra).”
Be it stated, all other grounds urged before the High Court did not
find favour and were regarded as unacceptable. Thus, the only ground that
impressed the High Court is the one that is mentioned in the aforequoted
passage.
7. Criticizing the aforesaid analysis and the ultimate view expressed by
the High Court, Mr. N.K. Kaul, learned Additional Solicitor General
appearing for the Union of India has submitted that the High Court has
fallen into error by opining that in the obtaining factual matrix, Article
22(5) of the Constitution of India has been violated. It is urged by him
that the decision of the Division Bench of the High Court in Lekha
Nandakumar (supra) had already been diluted in Babu v. State of Kerala[5],
but the High Court by the impugned order placed reliance on the earlier
view. It is his further submission that the detenu has no vested right
neither under Article 22(5) of the Constitution nor under Section 3(1) and
(3) of the COFEPOSA Act to assert that unless the order rejecting the
representation itself is communicated there is a procedural irregularity
which invalidates the detention. It has been further canvassed by him that
there has been no abuse of discretion but on the contrary a complete
application of mind, for all relevant materials have been taken into
consideration which is reflective from the file and in such a situation,
the order of detention is not vulnerable in law. Elaborating further, it
is put forth by him that once a subjective satisfaction has been arrived at
on consideration of the relevant materials placed before the detaining
authority by the sponsoring authority, the order is absolutely legally
sustainable and there was no warrant for any interference by the High
Court. It is argued by him that the High Court has been wholly misguided
by the aspect that the order rejecting the representation was not
communicated by the detaining authority, for there is no requirement in law
that it has to be communicated by the said authority. Emphasis has to be
on the satisfaction of the competent authority which is demonstrable from
the file and that would suffice the legal requirement. To bolster the
aforesaid submissions, Mr. Kaul has placed reliance on Haradhan Saha v.
State of West Bengal[6], Ashok Narain v. Union of India[7], Gurdev Singh v.
Union of India[8] and Ujagar Singh v. State of Punjab[9].
8. Mr. R. Basant, learned senior counsel appearing for the respondent,
per contra, would contend that right to represent as provided under Article
22(5) includes the right to fair and proper consideration and the said
position in law has been settled by the Constitution Bench in K.M. Abdulla
Kunhi v. Union of India[10]. It is urged by him that the right for proper
consideration, has been taken a step forward by the High Court of Kerala in
Lekha Nandakumar (supra) by holding that detenu has a right to be
communicated the order rejecting his representation and the non-compliance
explicitly shows non- application of mind. It is put forth by the learned
senior counsel that when the order passed rejecting the representation is
communicated, the detenu would have been apprised of the fact that there
had been a consideration of his representation in a fair and impartial
manner indicating application of mind, but when the communication, as the
fact situation in the present case would show, is fundamentally a non-
communication to sustain an order of such nature, would be contrary to high
values relating to life, freedom and liberty, inasmuch as such procedural
violation vitiates the order of detention. Learned senior counsel would
argue with vehemence that the order must be self-evident that the
representation has been considered in an impartial and dispassionate manner
and, therefore, the communication of the order passed by the competent
authority is imperative, for it would clearly convey that there has been
real and proper consideration. Lastly it is propounded by Mr. Basant that
if this Court would be inclined to set aside the judgment of the High
Court, it may not send back the accused to undergo the remaining period of
detention as there exists no proximate temporal nexus between the period of
detention and today. That apart, submits the learned senior counsel,
nothing has been brought on record to indicate the desirability of further
or continued detention. In support of the order of the High Court, learned
senior counsel has placed reliance on Haradhan Saha (supra), Lekha
Nandakumar (supra), K.M. Abdulla Kunhi (supra) and Bhut Nath Mete v. State
of West Bengal[11] and for the second limb of submission, he has drawn
inspiration from Sunil Fulchand Shah v. Union of India[12], State of Tamil
Nadu v. Kethiyan Perumal[13], State of Tamil Nadu v. Alagar[14] and
Chandrakant Baddi v. ADM & Police Commr[15].
9. When the matter was taken up for hearing on 12.3.2015, Mr. Basant,
learned senior counsel appearing for the respondent had pleaded for
sustenance of the order impugned on the foundation of the principles stated
in Haradhan Saha (supra) and Lekha Nandakumar (supra). His singular
submission was that unless the order itself is communicated, there is a
procedural illegality which invalidates the detention. When the matter was
taken up on 26.3.2015, the following order came to be passed:-
“Mr. Neeraj Kishan Kaul, learned Additional Solicitor General commended us
to the Division Bench decision of the Kerala High Court in Babu Vs. State
of Kerala [(2010) (1) KLT 230] wherein paragraph 13 it has been held thus:
“Of course a reading of the portions emphasized above in the passage might
suggest that communication by another of the order passed by the authority
may not be sufficient. The portions emphasized above might create
confusion as to whether that is the law. But we find it difficult to
accept such understanding of the law based on the above observations. The
order passed by the authority may be extracted in extensor or completely by
a subordinate officer and that may be communicated to the detenu. In such
a case it cannot possibly be contended that there is no communication for
the reason that the order was not communicated by the authority which
passed the order or that the order as such has not been communicated. The
observations extracted above understood properly in the context, according
to us, can only means and insist that the order must be communicated
effectively and not that the order as such must be communicated or that the
authority which passed the order must himself communicate the order.”
Mr. Basant, learned senior counsel, explaining the aforesaid judgment,
submitted that effective communication of the order would tantamount to
substantial compliance and in the said case the order passed by the
competent authority was extracted. Mr. Kaul, learned Additional Solicitor
General, submitted that the order need not be a speaking one and what is to
be seen is that there is recording of subjective satisfaction by the
competent authority. The communication by the lower authority putting the
order in indirect speech would not affect the order of detention. In
addition, he would submit that the court can, for its own satisfaction,
peruse the record to find out whether procedural safeguards have been taken
care of or not.”
10. The purpose of referring to the aforesaid order is that the sole
contention raised in the case, whether non-communication of the order
rejecting the representation in an effective manner would invalidate or
vitiate the order of detention. To appreciate the said submission, we had
permitted the learned Additional Solicitor General to produce the file for
our perusal.
11. We have already stated about the date of detention, date of
submission of representation and rejection of representation. There is no
dispute that the order of rejecting the representation has been
communicated by the Under Secretary on 29.4.2013. The said order reads as
follows:-
“With reference to his representation dated 11.04.2013 (in regional
language) received through the Jail Superintendent, Central Prison,
Thiruvananthapuram on 18.04.2013 in the Ministry, Shri Abdu Rahiman @
Atheeq, a COFEPOSA detenu is hereby informed that the aforesaid
representation has been carefully considered by the Special Secretary &
Director General, Central Economic Intelligence Bureau, Ministry of
Finance, Department of Revenue, New Delhi on behalf of the Central
Government, but it is regretted that the same has been rejected.”
12. The gravamen of the submission is whether non-
communication of the order by the competent authority or absence of an
effective communication would vitiate the order of detention. To
appreciate the controversy in proper perspective, we may refer to Article
22(5) of the Constitution which reads as follows:-
“When any person is detained in pursuance of an order made under any law
providing for preventive detention, the authority making the order shall,
as soon as may be, communicate 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.”
13. Section 3 of the COFEPOSA Act reads as follows:-
“Section 3. Power to make orders detaining certain persons.- (1) The
Central Government or the State Government or any officer of the Central
Government, not below the rank of a Joint Secretary to that Government,
specially empowered for the purposes of this section by that Government, or
any officer of the State Government, not below the rank of a Secretary to
that Government, specially empowered for the purposes of this section by
that Government, may, if satisfied, with respect to any person (including a
foreigner), that, with a view to preventing him from acting in any manner
prejudicial to the conservation or augmentation of foreign exchange or with
a view to preventing him from-
(i) smuggling goods, or
(ii) abetting the smuggling of goods, or
(iii) engaging in transporting or concealing or
keeping smuggled goods, or
(iv) dealing in smuggled goods otherwise than
by engaging in transporting or concealing or keeping smuggled goods, or
(v) harbouring persons engaged in smuggling goods or in abetting the
smuggling of goods,
it is necessary so to do, make an order directing that such person be
detained:
Provided that no order of detention shall be made on any of the
grounds specified in this sub-section on which an order of detention may be
made under section 3 of the Prevention of Illicit Traffic in Narcotic Drugs
and Psychotropic Substances Act, 1988 or under section 3 of the Jammu and
Kashmir Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic
Substances Ordinance, 1988 (J&K Ordinance 1 of 1988).
(2) When any order of detention is made by a State Government or by an
officer empowered by a State Government, the State Government shall, within
ten days, forward to the Central Government a report in respect of the
order.
(3) For the purposes of clause (5) of Article 22 of the Constitution, the
communication to a person detained in pursuance of a detention order of the
grounds on which the order has been made shall be made as soon as may be
after the detention, but ordinarily 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.”
14. We shall analyse what the Division Bench of the High Court of Kerala
in Lekha Nandakumar (supra) has laid down in the backdrop of the
constitutional mandate, the statutory command and the view expressed by
this Court. In the said case the Division Bench stated that it was not
considering the correctness of application of mind pertaining to the
satisfaction of the authority or merits of the case, but addressing to the
aspect whether constitutional safeguards prescribed by law were complied
with or not. It noted the four contentions raised by the petitioner
therein. One of the contention was that the representation was not properly
disposed of by the appropriate authority and it was not sent to him by the
competent authority but the rejection order was communicated by another
authority without stating any reason. The High Court referred to the
nature of allegations, the protection granted under Article 22(5) of the
Constitution and Section 11 of the COFEPOSA Act, the duty of the authority
who deals with the representation, took note of the fact that the
representation addressed to the Secretary was considered by the Joint
Secretary and in that context proceeded to state as follows:-
“Even though various contentions including non-supply of necessary
documents etc. were mentioned in the representation, there is no
application of mind by the Secretary to Government. The Secretary has just
rejected the representation. It does not show that he has applied his mind.
When the Authority disposes a representation, which is a constitutional
right of the detenu, it cannot be disposed of like this in a casual manner.
Further, the Secretary has not communicated his order to the detenu, but
only the Under Secretary has communicated the order. It is true that even
though making of representation is a constitutional right, there is no
obligation for the Central Government to grant a hearing. It is also not
necessary that an elaborate speaking order should be passed. But from the
order it should appear that the authority has applied its mind while
disposing of the representation. The order should be sent to the detenu.
Here the order passed by the Secretary was not sent to the detenu, but only
the factum of rejection of his representation was intimated by the Under
Secretary keeping the detenu in dark regarding the way in which his
representation was disposed of. There is nothing on record to show that the
concerned authority has applied its mind. Even if the Under Secretary
informed him that Secretary has disposed of his representation, this is not
the way a constitutional obligation is to be discharged by the Government
Secretary. Therefore, there is no proper disposal of the representation. We
are of the view that on this ground alone the detention order will not
stand as there is procedural violation.”
[underlining is by us]
15. In Babu (supra), a subsequent Division Bench posed the question which
reads as follows:-
“Does the communication by anyone other than the authority passing the
order of the fate of the representation made by the detenu (and not the
order as such) infringe such fundamental right of the detenu?”
16. Dealing with the said issue, the Court opined that the order must be
communicated effectively and not that the order as such must be
communicated or that the authority which passed the order must himself
communicate the order. Thereafter, the Division Bench proceeded to lay
down the principle relating to effective communication and in that regard
came to hold as follows:-
“… The order passed by the authority may be extracted in extenso or
completely by a subordinate officer and that may be communicated to the
detenu. In such a case it cannot possibly be contended that there is no
communication for the reason that the order was not communicated by the
authority which passed the order or that the order as such has not been
communicated. The observations extracted above understood properly in the
context, according to us, can only mean and insist that the order must be
communicated effectively and not that the order as such must be
communicated or that the authority which passed the order must himself
communicate the order.”
17. Thus, the decision in Lekha Nandakumar (supra) lays down that there
has to be a communication by the competent authority failing which the
order of detention is invalid. The second Division Bench explains the
first one and goes by the concept of “effective communication”. It states
that the order passed by the competent authority should be properly
extracted in the order of communication and it must indicate subjective
satisfaction. The question is whether the principles stated in both the
decisions are correct or to put it differently, whether non-communication
of the order by the competent authority or for that matter non-extraction
of the order of the competent authority by the communicating authority
would straightaway invalidate the order of detention. In this regard, we
may usefully refer to the authority in Haradhan Saha (supra). In the said
case, the Constitution Bench was dealing with the constitutional validity
of the Maintenance of Internal Security Act, 1971. While dealing with the
consideration of representation, the larger Bench opined thus:-
“24. The representation of a detenu is to be considered. There is an
obligation on the State to consider the representation. The Advisory Board
has adequate power to examine the entire material. The Board can also call
for more materials. The Board may call the detenu at his request. The
constitution of the Board shows that it is to consist of Judges or persons
qualified to be Judges of the High Court. The constitution of the Board
observes the fundamental of fair play and principles of natural justice. It
is not the requirement of principles of natural justice that there must be
an oral hearing. Section 8 of the Act which casts an obligation on the
State to consider the representation affords the detenu all the rights
which are guaranteed by Article 22(5). 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
whether in the light of the representation there is sufficient cause for
detention.
xxxxx xxxxx
26. The opinion of the Board as well as the order of the Government
rejecting the representation of the detenu must be after proper
consideration. There need not be a speaking order. There is also no failure
of justice by the order not being a speaking order. All that is necessary
is that there should be real and proper consideration by the Government and
the Advisory Board.”
[Emphasis added]
The Court elucidating the said aspect in the backdrop of natural
justice expressed thus:-
“30. Elaborate rules of natural justice are excluded either expressly or by
necessary implication where procedural provisions are made in the statute
or where disclosure of relevant information to an interested party would be
contrary to the public interest. If a statutory provision excludes the
application of any or all the principles of natural justice then the court
does not completely ignore the mandate of the legislature. The court
notices the distinction between the duty to act fairly and a duty to act
judicially in accordance with natural justice. The detaining authority is
under a duty to give fair consideration to the representation made by the
detenu but it is not under a duty to disclose to the detenu any evidence or
information. The duty to act fairly is discharged even if there is not an
oral hearing. Fairness denotes abstention from abuse of discretion.
31. Article 22 which provides for preventive detention lays down
substantive limitations as well as procedural safeguards. The principles of
natural justice insofar as they are compatible with detention laws find
place in Article 22 itself and also in the Act. Even if Article 19 be
examined in regard to preventive detention, it does not increase the
content of reasonableness required to be observed in respect of orders of
preventive detention. The procedure in the Act provides for fair
consideration to the representation. Whether in a particular case, a detenu
has not been afforded an opportunity of making a representation or whether
the detaining authority is abusing the powers of detention can be brought
before the court of law.”
[Emphasis supplied]
18. From the aforesaid authority, it is clear as day that while rejecting
the representation, a speaking order need not be passed and what is
necessary is that there should be real and proper consideration by the
Government and the Advisory Board. The Constitution Bench has limited the
application of principles of natural justice to the sphere of deliberation.
It has confined it to real and proper consideration; application of mind.
Dealing with the concept of fairness, it has been observed that fairness
denotes abstention from abuse of discretion. Understanding the said
principle correctly, it can be said that the use of discretion has to be
based on fairness of approach. The authority concerned may not give
reasons but there has to be application of mind. Mr. Kaul, learned
Additional Solicitor General would submit that even if the order itself
does not indicate application of mind by the competent authority or it has
been communicated by another authority not indicating the approach of the
competent authority the Court has ample power to call for the file and
satisfy itself. In this regard, he has drawn our attention to the view
expressed by this Court in Ashok Narain (supra). In the said case, one
Santosh Kumar Jain was engaged in illegal foreign exchange operations and
he apprehended by the Enforcement Directorate of the Ministry of Finance.
On the basis of certain materials, he was arrested under Section 35 of the
Foreign Exchange Regulation Act and remanded to judicial custody and
thereafter he was released on bail. After he was enlarged on bail, an
order of detention was passed under COFEPOSA Act. The said detention was
challenged under Article 32 of the Constitution before this Court, and it
was contended before this Court that the failure to launch the prosecution,
taken along with the circumstance, that a long time was allowed to lapse
before the order of detention was made, was sufficient to expose the
hollowness of the claim that the order was made with a view to prevent the
detenu from acting in any manner prejudicial to the augmentation of foreign
exchange. To appreciate the said submission, the Court called for the
original file and upon perusal of the file held thus:-
“In order to satisfy ourselves that there was no undue or unnecessary delay
in making the order of detention, we sent for the original files and we
have perused them. We are satisfied that the matter was examined thoroughly
at various levels and the detaining authority applied his mind fully and
satisfactorily to the question whether the petitioner should be detained
under the COFEPOSA. The passage of time from the date of initial
apprehension of the detenu and the making of the order of detention was not
occasioned by any laxity on the part of the agencies concerned, but was the
result of a full and detailed consideration of the facts and circumstances
of the case by the various departments involved. We find from the file that
the very question whether the passage of time had made it unnecessary to
order the detention of the detenu was also considered by the detaining
authority. We are unable to hold in the circumstances of this case that
there was any tardiness on the part of any one or that the detention is in
any manner illegal.”
19. In this regard, we may profitably refer to the decision in Gurdev
Singh (supra). In the said case, it was contended by the appellant
therein that the order of detention was vitiated because of non-
consideration of relevant materials by the detaining authority. The Court
referred to the decisions in A. Sowkath Ali v. Union of India[16], Ahamed
Nassar v. State of T.N.[17], Sanjay Kumar Aggarwal v. Union of India[18]
and Ashadevi v. K. Shivraj, Addl. Chief Secretary to the Govt. of
Gujarat[19] and came to rule thus:-
“Testing the case at hand on the touchstone of the principles laid down in
the decisions noted above, we find that the subjective satisfaction arrived
at by the detaining authority in the case is based on consideration of all
the relevant materials placed before it by the sponsoring authority. It is
not the case of the appellant that the sponsoring authority did not place
before the detaining authority any material in its possession which is
relevant and material for the purpose and such material, if considered by
the detaining authority, might have resulted in taking a different view in
the matter. All that is contended on behalf of the detenu is that the
detaining authority should have taken further steps before being satisfied
that a case for detention under the COFEPOSA Act has been made out against
the detenu. Whether the detention order suffers from non-application of
mind by the detaining authority is not a matter to be examined according to
any straitjacket formula or set principles. It depends on the facts and
circumstances of the case, the nature of the activities alleged against the
detenu, the materials collected in support of such allegations, the
propensity and potentiality of the detenu in indulging in such activities
etc. The Act does not lay down any set parameters for arriving at the
subjective satisfaction by the detaining authority. Keeping in view the
purpose for which the enactment is made and the purpose it is intended to
achieve, Parliament in its wisdom, has not laid down any set standards for
the detaining authority to decide whether an order of detention should be
passed against a person. The matter is left to the subjective satisfaction
of the competent authority.”
20. Be it stated, Mr. Kaul, learned Additional Solicitor General, relying
on the said passage has urged that where after communicating detailed
grounds of the detention order and upon receipt of the representation from
the detenu, the same has been properly considered, mere non-supply of the
original order of rejection of the detenu’s representation would not
vitiate the detention order itself and it can never be a ground for
interference in the order of detention by the High Court under Article 226
of the Constitution.
21. Resisting the said submission, it is propounded by Mr. Basant that
incorporation of the extract of the order passed by the competent authority
where another authority communicates the order is a constitutional
safeguard as envisaged under Article 22(5) of the Constitution. In Babu
(supra), the Division Bench of the High Court, while dealing with the
deprivation of right to life and liberty of the citizens, held that it is
obligatory on the competent authority to make aware the reasoning of the
decision to the detenu and intimation in laconic style has to be avoided.
That apart, the authority must not be prisoner of the notes submitted by
the subordinate, for it is its duty to consider the representation in
proper perspective. Emphasis has been laid on individual freedom and
liberty especially in preventive detention where it gets vitiated only when
there is violation of procedural safeguards. To arrive at the said
conclusion, heavy reliance has been placed on Article 22(5) of the
Constitution. The said decision, as we notice, has engrafted the principle
that unless the extract of the original order is communicated, the
detention is vitiated, as there is a violation of the constitutional
safeguard. We may hasten to state that Babu (supra) clarifies the
proposition of law laid down in Lekha Nandakumar (supra) but the base of
both the decisions is that unless the detenu is made aware of the order
passed by the competent authority, the said order is bound to suffer from
legal impropriety. It has been laid down in Haradhan Saha (supra) that
there may not be a speaking order but application of mind. In Gurdev
Singh (supra), this Court had made it clear that whether the detention
orders suffer from non-application of mind by the detaining authority is
not a matter to be examined according to any straitjacket formula or set
principles and it would depend on the facts and circumstances of the case.
Therefore, the stress is on the application of mind. Communication of
grounds on which the order of detention has been made cannot be equated
with communication of the order rejecting the representation. There is a
constitutional command to intimate the grounds on which the order of
detention has been made. There is a statutory mandate that grounds of
detention have to be communicated within five days and delay upto fifteen
days is allowed, if reason is given in writing. There can be no shadow of
doubt that if reasons are not communicated within the said time, the order
of detention would be vitiated. There can be no trace of doubt that in
both the stages there has to be application of mind which would be in the
realm of subjective satisfaction based on consideration of all the relevant
materials placed before the competent authority. The satisfaction of the
competent authority regarding sufficiency of materials on which the
satisfaction is recorded is subjective in nature. In this regard, it is
seemly to reproduce the observations made by this Court in Union of India
v. Arvind Shergill[20] :-
“The High Court has virtually decided the matter as if it was sitting in
appeal on the order passed by the detaining authority. The action by way of
preventive detention is largely based on suspicion and the court is not an
appropriate forum to investigate the question whether the circumstances of
suspicion exist warranting the restraint on a person. The language of
Section 3 clearly indicates that the responsibility for making a detention
order rests upon the detaining authority which alone is entrusted with the
duty in that regard and it will be a serious derogation from that
responsibility if the court substitutes its judgment for the satisfaction
of that authority on an investigation undertaken regarding sufficiency of
the materials on which such satisfaction was grounded. The court can only
examine the grounds disclosed by the Government in order to see whether
they are relevant to the object which the legislation has in view, that is,
to prevent the detenu from engaging in smuggling activity. The said
satisfaction is subjective in nature and such a satisfaction, if based on
relevant grounds, cannot be stated to be invalid. The authorities concerned
have to take note of the various facts including the fact that this was a
solitary incident in the case of the detenu and that he had been granted
bail earlier in respect of which the application for cancellation of the
same was made but was rejected by the Court. In this case, there has been
due application of mind by the authority concerned to that aspect of the
matter as we have indicated in the course of narration of facts. Therefore,
the view taken by the High Court in the circumstances of the case cannot be
sustained.”
22. This being the position of law, when there is allegation that there
has been non-application of mind and the representation has been rejected
in a laconic or mechanical manner by the competent authority, we are
disposed to think, the Court can always call for the file and peruse the
notes and the proceedings whether there has been application of mind by the
competent authority or not. Our said conclusion gets support from the
decision in Ashok Narain (supra). In the said case, this Court on perusal
of file has expressed its opinion that there had been no tardiness on
behalf of any one and, therefore, the detention in no manner was illegal.
23. We are absolutely conscious that liberty of an individual is sacred.
The individual liberty has to be given paramount importance. But such
liberty can be controlled by taking recourse to law. Preventive detention
is constitutionally permissible. The Courts can interfere where such
detention has taken place in violation of constitutional or statutory
safeguards. Treating the issue of communication of rejection of the
representation by the competent authority or incorporation of the order
passed by the competent authority in the order of communication as a
constitutional safeguard, would not be correct. The duty of the Court in
this regard is to see whether the representation submitted by the detenu
has been rejected in a mechanical manner without application of mind. We
are inclined to hold that for the said purpose, the relevant file can be
called for and perused and, accordingly, keeping that in view, in the
course of hearing, we had asked for production of the file and the same had
been produced.
24. On a perusal of the file, we find that after receipt of the
representation, the Under Secretary, COFEPOSA, had narrated the grounds of
detention and the file pertaining to the detention was also placed on
record. Parawise comments of the sponsoring authority, that is, the
Directorate of Enforcement, Kochi has been obtained. Various contentions
have been raised in the representation that the detenu had studied only
upto 10th standard in the Malayalam medium school of his native place and
though he can write and read certain English words, he does not have enough
knowledge to understand the meaning of the English words and sentences. In
the comment, it has been mentioned that free Malayalam translation of the
grounds of detention and relied upon documents had been supplied to the
detenu to make him aware of the grounds and reasons for his detention under
the COFEPOSA Act and, therefore, the ground had no relevance. As indicated
earlier, such a ground was raised before the High Court and not found
favour. It was also urged in the representation that he was unable to
understand the documents which were furnished to him in Malayalam as they
were not legible. It has been commented that the relevant writings were
very much legible and photocopies of the FIR and Search List were furnished
to the detenu. A further ground was urged that he was not supplied the
reasons of his detention and the documents were not supplied within five
days or maximum within fifteen days. As has been stated in the comment, he
was supplied the documents in the language known to him, that is, Malayalam
within the statutory period and acknowledgement was obtained from him.
All the assertions made in the representation were commented by the Under
Secretary and every aspect has been stated in detail. The competent
authority has passed the following order:-
“I have gone through the representation. I do not find sufficient ground
for exercising powers under Section 11 of the COFEPOSA Act. The
representation is rejected.”
25. The order that has been communicated to him by the Under Secretary
indicates that the representation submitted by the detenu had been
carefully considered by the competent authority.
26. We have already referred to the Constitution Bench decision in
Haradhan Saha (supra) in the context of duty of the Government while
considering the representation; and the power of the Advisory Board. It
has been clearly stated that the Government considers the representation to
ascertain whether the order has been made within power under the law and
the Board, on the other hand, considers whether in the light of the
representation, there is sufficient cause for detention. The Court has
expressed the view that the order of the Government rejecting the
representation of the detenu should show real and proper consideration by
the Government. The ratio of the said authority has to be appositely
understood. The competent authority while considering the representation is
not required to pass a speaking order but it must reflect that there has
been real and proper consideration of the representation. It is, as has
been held in Gurdev Singh (supra), a subjective satisfaction. But the
subjective satisfaction must show that the authority had the opportunity to
peruse the material obtained against the detenu. To elucidate, the material
documents are to be produced before the competent authority who has the
competence to deal with the representation. On a scrutiny of the file, we
find that the entire file relating to the detention was produced before the
competent authority alongwith detailed comments. The said authority has
clearly stated that he has gone through the representation and does not
find any sufficient ground to exercise the jurisdiction under the COFEPOSA
Act. In our considered opinion, this would tantamount to real and proper
consideration, for the competent authority is not required to pass an
adjudicatory order. The High Court of Kerala in Lekha Nandakumar (supra)
lays down that the order passed by the competent authority has to be
communicated to the detenu and the decision in Babu (supra) clarifies that
the order passed by the authority may be extracted in extenso or
completely by a subordinate officer and that may be communicated to the
detenu. Thus, in Babu (supra), the emphasis is on the effective
communication.
27. Mr. Kaul, learned Additional Solicitor General, has submitted that
the both the decisions have not laid down the correct principles of law and
further the factual score in Babu (supra) is quite different.
28. At this juncture, it would be quite pertinent to refer to the
authority in John Martin v. State of West Bengal[21], wherein a three-Judge
Bench dealt with the rejection of representation of the petitioner therein
against the order of detention and in that context, opined that appropriate
Government cannot reject the representation of the detenu in a casual and
mechanical manner and it must bring to bear on the consideration of the
representation an unbiased mind. The Court referred to Haradhan Saha
(supra) wherein it has been stated that there has to be “a real and proper
consideration” of the representation by the appropriate Government and
thereafter proceeded to opine thus:-
“We cannot over-emphasise the need for the closest and most zealous
scrutiny of the representation for the purpose of deciding whether the
detention of the petitioner is justified.”
29. A contention was raised in the said case that the order passed by the
State Government rejecting the representation of the detenu should be a
reasoned order. The three-Judge Bench on consideration of the principles
laid down in Haradhan Saha (supra), quoted a passage therefrom and observed
as follows:-
“These observations must give a quietus to the contention that the order of
the State Government must be a reasoned order. It is true that in Bhut Nath
Mete v. State of W.B.[22] Krishna Iyer, J., speaking on behalf of a
Division Bench of this Court observed that: [SCC p. 659 para 23, SCC (CRI)
p. 314]
“It must be self-evident from the order that the substance of the charge
and the essential answers in the representation have been impartially
considered”,
but if we read the judgment as a whole there can be no doubt that these
observations were not meant to lay down a legal requirement that the order
of the State Government must be a speaking order but they were intended to
convey an admonition to the State Government that it would be eminently
desirable if the order disclosed that “the substance of the charge and the
essential answers in the representation” had been impartially considered.
The learned Judge in fact started the discussion of this point by stating:
[SCC p. 659 para 23, SCC (CRI) p. 314]
“We are not persuaded that a speaking order should be passed by the
Government or by the Advisory Board while approving or advising continuance
of detention;”
In any event, the decision in Haradhan Saha case being a decision rendered
by a Bench of five judges must prevail with us. We, therefore, reject the
present contention of the petitioner.”
30. From the aforesaid analysis, it is quite limpid that whatever has
been stated in Bhut Nath Mete (supra) has been explained in John Martin
(supra) and it has reiterated the principle that a speaking order need not
be passed by the government or by the Advisory Board. It has also been
explained that the observations made in Bhut Nath Mete (supra) were not
meant to lay down a legal requirement that the order of the State
Government must be a speaking order. Reliance was placed on the
Constitution Bench decision in Haradhan Saha (supra) to lay down that Bhut
Nath Mete (supra) is not a binding precedent. The said delineation makes
it absolutely clear that the Court should be guided by the principles
stated in Haradhan Saha (supra) and not by Bhut Nath Mete (supra). Thus
the principle behind “real and proper consideration” would only mean as
has been stated in John Martin (supra), the representation cannot be
rejected in a casual and mechanical manner. Overemphasis cannot be placed
on “real and proper consideration”. What has to be seen by the competent
authority is that the materials are placed before him and such materials
come within the purview of the statute and it must show that there has been
subjective satisfaction. The word “satisfaction” need not be used while
rejecting the representation. To elaborate, the consideration by the
competent authority the government is to ascertain essentially whether the
order is in consonance with the power conferred under the law and the
allegations made against the detenu come within the purview of the said
law. The real and proper consideration by the appropriate government means
the order of rejection should indicate that there has been subjective
satisfaction by the competent authority to reject the representation. As
has been held in John Martin (supra), there cannot be zealous scrutiny of
the representation for the purpose of deciding whether the detention of the
petitioner is justified. In the said case, analyzing the principle stated
in Haradhan Saha (supra), it has been reiterated that the order need not be
a speaking order and non-speaking order does not amount to failure of
justice. The said controversy, as has been observed by the three-Judge
Bench, should be given a quietus. That being the legal position, on a
careful perusal of the file, we find that there has been subjective
satisfaction on the basis of the materials placed before the competent
authority along with the representation. It cannot be said that the
subjective satisfaction is not discernible from the order passed. In view
of the analysis, the decision in Lekha Nandakumar (supra) by the Division
Bench of the High Court stating the principle that the order passed by the
competent authority should be communicated failing which there will be a
violation of the constitutional command engrafted under Article 22(5) is
not correct. The Court can always call for the file and peruse whether
there has been rejection of the representation as required under the law.
31. The decision in Babu (supra) while explaining the Lekha Nandakumar
(supra) states that if an order is communicated by the Under Secretary do
not meet the constitutional obligation, for the order passed by the
authority would be extracted in extenso completely by a subordinate officer
and that may be communicated to the detenu. Thus, the said decision
introduces principle of effective communication in a different way. This
approach, in our view, is erroneous. If the order is communicated by
another authority and eventually the order is affirmed by the Advisory
Board and the same is challenged, the constitutional courts have ample
power to call for the records and verify how the representation has been
rejected. We are not adverting to the facts in Babu (supra) whether there
had been real and proper consideration or not, but suffice it to say that
jurisdiction of the court is only to see whether there has been any
subjective satisfaction that the proper law had been applied at the time of
detention of the detenu. There is no need on the part of the competent
authority to pass a speaking order and to give reasons on any facet. Thus
analysed, the extended proposition in Babu (supra) is not legally correct.
32. In this context, we may fruitfully refer to a four-Judge Bench
decision in Khudiram Das v. The State of West Bengal and others[23] wherein
explaining the observations made in Bhut Nath Mete (supra), the Court
observed that:-
“It was, however, sought to be contended on behalf of the petitioner,
relying on the observation of this Court in Bhut Nath Mete v. State of W.B
that the exercise of the power of detention “implies a quasi-judicial
approach”, that the power must be registered as a quasi-judicial power. But
we do not think it would be right to read this observation in the manner
contended on behalf of the petitioner. This observation was not meant to
convey that the power of detention is a quasi-judicial power. The only
thing which it intended to emphasise was that the detaining authority must
exercise due care and caution and act fairly and justly in exercising the
power of detention.
33. In the said case, while dealing with subjective satisfaction, the
Court observed:-
“There are several grounds evolved by judicial decisions for saying that no
subjective satisfaction is arrived at by the authority as required under
the statute. The simplest case is whether the authority has not applied its
mind at all; in such a case the authority could not possibly be satisfied
as regards the fact in respect of which it is required to be satisfied.
Emperor v. Shibnath Bannerji[24] is a case in point. Then there may be a
case where the power is exercised dishonestly or for an improper purpose :
such a case would also negative the existence of satisfaction on the part
of the authority. The existence of “improper purpose”, that is, a purpose
not contemplated by the statute, has been recognised as an independent
ground of control in several decided cases. The satisfaction, moreover,
must be a satisfaction of the authority itself, and therefore, if, in
exercising the power, the authority has acted under the dictation of
another body as the Commissionerof Police did in Commissioner of Police v.
Gordhandas Bhanji[25] and the officer of the Ministry of Labour and
National Service did in Simms Motor Units Ltd. v. Minister of Labour and
National Service[26] the exercise of the power would be bad and so also
would the exercise of the power be vitiated where the authority has
disabled itself from applying its mind to the facts of each individual case
by self-created rules of policy or in any other manner. The satisfaction
said to have been arrived at by the authority would also be bad where it is
based on the application of a wrong test or the misconstruction of a
statute. Where this happens, the satisfaction of the authority would not be
in respect of the thing in regard to which it is required to be satisfied.
Then again the satisfaction must be grounded “on materials which are of
rationally probative value”. Machindar v. King[27]. The grounds on which
the satisfaction is based must be such as a rational human being can
consider connected with the fact in respect of which the satisfaction is to
be reached. They must be relevant to the subject-matter of the inquiry and
must not be extraneous to the scope and purpose of the statute. If the
authority has taken into account, it may even be with the best of
intention, as a relevant factor something which it could not properly take
into account in deciding whether or not to exercise the power or the manner
or extent to which it should be exercised, the exercise of the power would
be bad. Pratap Singh v. State of Punjab[28]. If there are to be found in
the statute expressly or by implication matters which the authority ought
to have regard to, then, in exercising the power, the authority must have
regard to those matters.”
34. We have referred to the aforesaid passage only to highlight that how
the subjective satisfaction has been understood by this Court especially in
the context of preventive detention. The detaining authority on the basis
of certain material passes an order of detention. The same has to be
communicated at the earliest as mandated under Article 22(5) of the
Constitution. A period has been determined. Non-communication within the
said period would be an impediment for sustaining the order of detention.
Similarly, if a representation is made and not considered with promptitude
and there is inordinate delay that would make the detention order
unsustainable. In Raj Kishore Prasad v. State of Bihar and others[29] while
dealing with an order of detention passed the National Security Act, 1980
the Court was dealing with the contention that as there was inordinate
delay in considering the representation of the detenu and the unexplained
delay in considering the representation of the detenu could vitiate the
order. The two-Judge Bench referred to Section 3(2) of the 1980 Act and in
the backdrop of the statutory scheme proceeded to state that when there has
been a long delay of 28 days in disposing of the representation, it would
invalidate the order.
35. In Vijay Kumar v. State of Jammu & Kashmir and others[30] while
dealing with the order of detention passed under Section 8 of the Jammu &
Kashmir Public Safety Act, 1978, took into consideration the delay in
disposal of representation and in that context opined:-
“In Khudiram Das v. State of W.B., (1975) 2 SCC 81, this Court held that
one of the basic requirements of clause (5) of Article 22 is that the
authority making the order of detention must afford the detenu the earliest
opportunity of making a representation against the order of detention and
this requirement would become illusory unless there is a corresponding
obligation on the detaining authority to consider the representation of the
detenu as early as possible. Thus, in the facts of this case we are not
satisfied that the representation was dealt with as early as possible or as
expeditiously as possible, and, therefore, there would be contravention of
Section 13 of the Act which would result in the invalidation of the order.”
36. We have referred to the said authorities solely to emphasise the duty
of the appropriate government to dispose of the representation at the
earliest and what is understood by the concept of subjective satisfaction.
The Government has to follow the safeguards provided under Article 22(5)
and the provisions of the statute. It is because without a trial a person
is deprived of his liberty. Promptitude of action within the statutory
scheme is imperative. In the case at hand, these aspects which have been
raised before the High Court have been negatived, and rightly so. On a
scrutiny of the file which has been produced before us, we find that the
competent authority of the appropriate government has passed an order on
the basis of the material produced before it. It cannot be said that there
is no subjective satisfaction. We may ingeminate that when the material,
the file, the representation and the comments on the representation were
produced before the authority and he had mentioned in the order that he had
gone through the representation and not found sufficient ground for
exercising the power under Section 11 of the COFEPOSA Act, it cannot be
said that there has been no subjective satisfaction. The Constitution Bench
in Haradhan Saha (supra) has laid down that the order need not be a
speaking one but there should be real and proper consideration. The
principle stated by the Constitution Bench has to be properly understood.
The said principle has been explained in John Martin (supra) and Khudiram
Das (supra). Succinctly put, it is to be seen by the said authority that
the materials on record on the basis of which the order is passed are under
appropriate statute; that the detaining authority has not travelled beyond
the grounds that are within the framework of the statute; and that the
grounds are not vague, etc., and all these come within the scope and ambit
of subjective satisfaction and need not be objectively pronounced by an
order. There is no trace of doubt that “subjective satisfaction” is not
insusceptible from judicial reviewability. Thus analysed, the impugned
order granting the writ of habeas corpus and directing the detenu to be set
at liberty is totally vulnerable and accordingly we set aside the same.
37. Now, we shall proceed to deal with the alternative submission of Mr.
Basant, learned senior counsel for the respondent. It is urged by him that
the detenu was detained on 25.2.2013 and released on 24.10.2013 and in this
backdrop, the detenu should not be sent back to undergo the remaining
period of detention, for there exists no proximate temporal nexus between
the period of detention indicated in the order for which the detenu was
required to be detained and the date when the detenu is required to be
detained if the order is set aside. Learned senior counsel would urge that
there is a necessity on the part of the authorities to be satisfied whether
it is desirable that the detenu should be further detained for the balance
period of detention. Mr. Basant has commended us to certain authorities
which we shall proceed to deal with it.
38. In Sunil Fulchand Shah (supra), the Constitution Bench was dealing
with the issue whether the period of detention under the COFEPOSA Act is a
fixed period running from the date specified in the detention order and
ending with the expiry of that period or the period is automatically
extended by any period of parole granted to the detenu. While dealing with
the said issue, the majority speaking through the learned Chief Justice
noted the observation made in State of Gujarat v. Adam Kasam Bhaya[31],
viz., “if he has served a part of the period of detention, he will have to
serve out the balance” and adverted to various facets and eventually
recorded the following conclusion in respect of the said issue:-
“33.6. The quashing of an order of detention by the High Court brings to an
end such an order and if an appeal is allowed against the order of the High
Court, the question whether or not the detenu should be made to surrender
to undergo the remaining period of detention, would depend upon a variety
of factors and in particular on the question of lapse of time between the
date of detention, the order of the High Court, and the order of this
Court, setting aside the order of the High Court.
A detenu need not be sent back to undergo the remaining period of
detention, after a long lapse of time, when even the maximum prescribed
period intended in the order of detention has expired, unless there still
exists a proximate temporal nexus between the period of detention indicated
in the order by which the detenu was required to be detained and the date
when the detenu is required to be detained pursuant to the appellate order
and the State is able to satisfy the court about the desirability of
“further” or “continued” detention.
7. That where, however, a long time has not lapsed or the period of
detention initially fixed in the order of detention has not expired, the
detenu may be sent back to undergo the balance period of detention. It is
open to the appellate court, considering the facts and circumstances of
each case, to decide whether the period during which the detenu was free on
the basis of an erroneous order should be excluded while computing the
total period of detention as indicated in the order of detention though
normally the period during which the detenu was free on the basis of such
an erroneous order may not be given as a “set-off” against the total period
of detention. The actual period of incarceration cannot, however, be
permitted to exceed the maximum period of detention, as fixed in the order,
as per the prescription of the statute.”
39. In Kethiyan Perumal (supra), a two-Judge Bench, after referring to
the Constitution Bench decision in Sunil Fulchand Shah (supra), directed as
follows:-
“… it is for the appropriate State to consider whether the impact of the
acts, which led to the order of detention, still survives and whether it
would be desirable to send back the detenu for serving the remainder period
of detention. Necessary order in this regard shall be passed within two
months by the appellant State. Passage of time in all cases cannot be a
ground not to send the detenu to serve the remainder of the period of
detention. It all depends on the facts of the act and the continuance or
otherwise of the effect of the objectionable acts. The State shall consider
whether there still exists a proximate temporal nexus between the period of
detention indicated in the order by which the detenu was required to be
detained and the date when the detenu is required to be detained pursuant
to the appellate order.”
40. In Alagar (supra), similar observations were made. In Chandrakant
Baddi (supra), a two-Judge Bench referred to the earlier decisions and
opined that:-
“A reading of the abovequoted paragraphs would reveal that when an order of
a court quashing the detention is set aside, the remittance of the detenu
to jail to serve out the balance period of detention does not automatically
follow and it is open to the detaining authority to go into the various
factors delineated in the judgments aforequoted so as to find out as to
whether it would be appropriate to send the detenu back to serve out the
balance period of detention. …”
41. In the present case, the detenu was initially detained for one year.
He remained in incarceration from 25.2.2013 to 24.10.2013. The High Court
has quashed the order of detention and he has been set at liberty.
Submission of Mr. Kaul, learned Additional Solicitor General is that
regard being had to the nature of grounds on which the detention order was
passed, this Court may direct that the detenu should surrender to custody.
Regard being had to the authorities cited by Mr. Basant, we are of the
opinion that the appropriate course would be that the detaining authority
should re-examine the matter keeping in view the principle stated in Sunil
Fulchand Shah (supra) and Chandrakant Baddi (supra) within two months from
today.
42. Consequently, the appeal is allowed in above terms.
.................................J.
[Dipak Misra]
................................J.
[Prafulla C. Pant]
New Delhi
January 29, 2016
-----------------------
[1] AIR 1982 SC 1029
[2] 2004 (2) KLT 1094
[3] AIR 2004 SC 2504
[4] 2011 (4) KHC 422
[5] 2010 (1) KLT 230
[6] (1975) 3 SCC 198
[7] (1982) 2 SCC 437
[8] (2002) 1 SCC 545
[9] 1952 SCR 756
[10] (1991) 1 SCC 476
[11] (1974) 1 SCC 645
[12] (2000) 3 SCC 409
[13] (2004) 8 SCC 780
[14] (2006) 7 SCC 540
[15] (2008) 17 SCC 290
[16] (2000) 7 SCC 148
[17] (1999) 8SCC 473
[18] (1990) 3 SCC 309
[19] (1979) 1 SCC 222
[20] (2000) 7 SCC 601
[21] (1975) 3 SCC 836
[22] (1974) 1 SCC 645
[23] (1975) 2 SCC 81
[24] AIR 1943 FC 75 = 45 CriLJ 341
[25] 1952 SCR 135 = AIR 1952 SC 16
[26] (1946) 2 All ER 201
[27] AIR 1950 FC 129 = Cri LJ 1480
[28] AIR 1964 SC 72
[29] (1982) 3 SCC 10
[30] (1982) 2 SCC 43
[31] (1981) 4 SCC 216
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