TMI Blog1999 (10) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... uashed. - WRIT PETITION (CRIMINAL) NO. 166 OF 1999 - - - Dated:- 14-10-1999 - K.T. THOMAS AND A.P. MISRA, JJ. JUDGMENT Misra, J. - The petitioner has challenged the detention order dated 28-4-1999 under section 3(1)( i ) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (the COFEPOSA ). The detention order was passed by Shri M.F. Farooqui, Secretary to the Government of Tamil Nadu Public (SC) Department, Chennai which reads as under : " Order - Whereas the Government of Tamil Nadu are satisfied with respect to the person known as Thiru Ahamed Nassar son of Thiru Ahamed, No. 10, Mariamman Koil Street, Pudsupattinam, Ramana-thapuram District now a remand prisoner in the Central Prison, Chennai that with a view of preventing him from smuggling goods in further, it is necessary to make the following order : Now, therefore, in exercise of the powers conferred by section 3(1)( i ) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974), the Governor of Tamil Nadu hereby directs that the said Thiru Ahamed Nassar, son of Thiru Ahamed, be detained and kept in custody in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamined the balance of State Express 555 cigarette cartons of 400/20 capacity and recovered ten packets of State Express 555 cigarette with 20 sticks in each and seven cellular phones from each of the said five cartons. Thereafter the said officer cut open all the cellular phone wrapper and found 23 numbers Samsung SGH cellular phones, 31 numbers Bosch GSM 908 cellular phones and 11 numbers Nokia 6110 cellular phones. Then his hand bag was also opened which contained transparent polythene duty free shop bag containing 14 numbers AIWA HSGS 183 walkmen and his personal effects. So in all total goods in baggage found were 65 cellular phones, 14 AIWA walkmen, 10 cartons of State Express 555 cigarette and one Soni Video CD player. 3. The case of the respondent is that the goods brought in were in trade and they were not bona fide baggage goods and the petitioner grossly misdeclared the type and quantity of goods brought by him. In fact he ingeniously concealed the cellular phones in cigarette cartons to evade detection by customs authorities and attempted to clear the goods without payment of appropriate customs duty. The aforesaid 65 assorted cellular phones, 14 AIWA walkmen, 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following documents : ( a )Detenu s letter dated 23-4-1999 addressed to the detaining authority which was given to the Jail authorities on the same day at 1745 hrs. ( b )The letter dated 19-4-1999 sent by his advocate to the customs authority was also not placed before the detaining authority. 6. Next he submits, on account of delay in considering detenu s representation dated 21-5-1999 both by the State Government and the Central Government, the detention order is liable to be set aside. For this he submits the following dates : ( a )Representation of the detenu to the State Government is dated 21-5-1999 which was received by the State Government on 22-5-1999. After receiving it, remarks were called for on 24-5-1999 from the sponsoring authority which was received only on 27-5-1999. The delay pointed out is two days for the dates 25/26-5-1999. ( b )Representation dated 21-5-1999 to the Central Government was received on 25-5-1999 and Central Government called for comments from detaining authority only on the 1-6-1999. Submission is, this delay could have been eliminated if the same were called through FAX or by E Mail . 7. The next submission is, the subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presentation must be considered and not that it is a magical formula, the slightest breach of which must result in the release of the detenu." (Para 7) 9. In K.M. Abdulla Kunhi v. Union of India [1991] (1) SCC 476, the Court held : "The words as soon as may be occurring in Clause (5) of Article 22 reflects the concern of the framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement however, is that there should not be supine indifference, slackness or callous attitude in considering the representation." 10. Within this sphere of legal premise we do not find that there was any callousness or undue delay caused by the State Government in disposing of detenu s representation. So far consideration of the detenu representation by the Central Government the relevant facts are, that the detenu sent his representation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be construed as callous, slack or casual disposition of his representation. For the respondent it was stated from the records that the communication between the Central Government at New Delhi and sponsoring authority and detaining authority at Chennai was through speed post. The stated delay was on account of vagaries of the postal department. It is not attributable to the States. Hence on the facts and circumstances of this case, it is not possible to hold, there was any delay in the disposal of detenu s representation by the Central Government. In our considered opinion there was no delay in consideration of detenu s representation both by the State and the Central Government. 12. Reliance has been placed on behalf of the detenu in Vemnathi Selvam (Mrs.) v. State of T.N. [1998] (5) SSC 510. In this case the Court held : "Though the delay is not long, it has remained unexplained. Though the delay by itself is not fatal, the delay which remains unexplained becomes unreasonable. In spite of this well settled legal position the State Government has failed to explain satisfactorily that it had dealt with the representation of the detenu as promptly as possible." 13. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent s reply with reference to letter dated 23-4-1999 is that this letter was given to the jail authority late in the evening on the 23-4-1999, which was dispatched the very next day by speed post, to the Secretary Public, which is prescribed and acknowledged mode for sending letters from jail. 25-4-1999 being Sunday, the letter reached the Secretariat on 26-4-1999 which after its segregation and processing reached the concerned Secretary at about 3.00 P.M. on the same day. This receipt was after the concerned Secretary signed his proposal for the detention on 24-4-1999, after it was sent to the Minister concerned, who being the detaining authority signed the same on 26-4-1999. Thereafter the grounds of detention were sent for translation to the Department of Culture which returned them back on 28-4-1999 on which date the formal order of detention was signed. Hence, the said representation letter could not be placed before the detaining authority. It is also submitted that after its receipt the Secretary found it containing retraction of the confession but it was only repetition of what was contained in detenu s bail application dated 1-4-1999, which was placed before the deta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bearing on the issue should be placed before the detaining authority. Sponsoring authority should not keep it back, based on his interpretation that it would not be of any help to a prospective detenu. Decision is not to be made by the sponsoring authority. The law on this subject is well settled, a detention order vitiates if any relevant document is not placed before the detaining authority which reasonably could affect his decision. 21. In Ashadevi wife of Gopal Ghermal Mehta v. K. Shivraj, Addl. Chief Secretary to the Govt. of Gujarat 1979 (1) SCC 222, the Court held : "If material or vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order are not placed before or are not considered by the detaining authority, it would vitiate its subjective satisfaction rendering the detention order illegal." 22. This is a case of preventive detention under section 3(1) of the COFEPOSA, where confessional statement retracted by the detenu was not placed before the detaining authority. 23. In Ayya alias Ayub v. State of U.P. [1989] (1) SCC 374, the Court held : "There would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is not whether the second part of the contents of those letters was relevant or not but whether they were placed before the detaining authority for his consideration. There could be no two opinions on it. It contains the very stand of the detenu of whatever worth. What else would be relevant if not this? It may be that the detaining authority might have come to the same conclusion as the sponsoring authority but its contents are relevant which could not be withheld by the sponsoring authority. The letter dated 19-4-1999 it reached the sponsoring authority and reached well within time for it being placed before the detaining authority. There is obligation cast on the sponsoring authority to place it before the detaining authority, which has not been done. Even the letter dated 23-4-1999 which reached the Secretary concerned at 3.00 P.M. on 26-4-1999 which was much before the formal detention order dated 28-4-1999. The Secretary concerned was obliged to place the same before the detaining authority. Respondent authority was not right in not placing it as it contains not only what is already referred to in the bail application dated 1-4-1999 but something more. 27. This shows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Advisory Board came into existence on 19-10-1991, i.e., between the aforesaid two dates. Non-placement of the opinion, which came into existence after signing of detention order before the detaining authority was held to vitiate the detention. Thus issuance of the formal order is held to be relevant date upto which if any relevant material comes in possession of the concerned authority has to be placed before the detaining authority. In the present case, we find the letter of detenu dated 23-4-1999 was received on 26-4-1999, i.e., before issuance of formal detention order dated 28-4-1999. It was incumbent for the Secretary concerned to have placed it before the detaining authority. So we conclude, non-placement of those two letters which were relevant, vitiates the impugned detention order. 30. Next submission is, the detaining authority while recording his subjective satisfaction recorded that there was likelihood of detenu being released on bail was based on no factual basis. Such recording in the absence of any material shows non-application of mind by the detaining authority. The facts are, the detenu moved the bail application on 1-4-1999, which was dismissed by the Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chieve this objective, in the national interest an obligation is cast on the State even to curtail the most sacred of the human rights, viz., his personal liberty. The source of power to curtail this, flows from article 22 of the Constitution of India within the limitation as provided therein. Every right in our Constitution within its widest amplitude is clipped with reasonable restrictions. Right under article 15 not to be discriminated on grounds of religion, race, caste, sex, etc. is clipped through its sub-clauses ( 3 ) and ( 4 ) while making provisions for women, children, socially and educationally backward classes, Scheduled castes and Scheduled Tribes respectively. Article 16 creates right for equality of opportunity in the matter of public employment which is curtailed through its sub-clauses (3), (4), (4A) and (5) by enabling the Parliament to make law confining to a class or classes for employment to an office even prior to such employment, permitting reservation in favour of backward class, Scheduled Castes and Scheduled Tribes or in the cases of religious denominational institution. Each of the most solemn rights of any citizens is cloaked with reasonable restrict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in mind to see that no such person escapes from the clutches of law. On the one hand, as it takes away ones liberty it should be strictly construed, on the other hand to subserve the objective of this Act, in the national interest it should be seen that no such person escapes. 37. In this backdrop of the Constitutional scheme, the preamble as also the objects and reasons of COFEPOSA we have to scrutinize and test the justiciability of the acts of every statutory functionary performing statutory obligations under the Act. It is well settled that whenever there are two possible interpretations of a statute, the one that subserves the objective of an enactment is to be accepted. The same principle shall with equal force apply in testing the credibility of the acts of a statutory functionary performing their statutory obligations. Such authorities, while performing their obligations under the preventive detention law must perform it on one hand with promptness, as not to further lengthen detenu s detention through their causal conduct, neglect, lethargy, etc. on the other hand all what is required to be done by it is if it has been done then in construing its conduct, conclusions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was passed the petitioner had not surrendered but when it was served petitioner had already surrendered. In this background subjective satisfaction of the order of detention was challenged as there was no likelihood of the detenu being released on bail. This Court held : "If a man is in custody and there is no imminent possibility of his being released, the power of preventive detention should not be exercised. In the instant case when the actual order of detention was served upon the detenu, the detenu was in jail. There is no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before the service of the order." 42. In this case there existed prima facie no scope to release him on bail as the offence was section 303 IPC. 43. In Rivadeneyta Ricardo Agustin v. Government of the National Capital Territory of Delhi [1994] (1) Suppl. SCC 597, reliance is placed on the following passage which approved the case of Kamarunnissa v. Union of India [1991] (1) SCC 128 held : "The decisions of this Court to whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detaining authority." 46. So before the detaining authority, there existed not only order dated 12-4-1999 rejecting his bail application but the contents of the bail application dated 1-4-1999. The averment made therein are relevant material on which subjective satisfaction could legitimately be drawn either way. Thus in spite of rejection of the bail application by a Court, it is open to the detaining authority to come to his own satisfaction based on the contents of the bail application keeping in mind the circumstance that there is likelihood of detenu being released on bail. Merely because no bail application was then pending is no premise to hold that there was no likelihood of his being released on bail. The words likely to be released connote chances of being bailed out, in case there be pending bail application or in case if it is moved in future is decided. The word likely shows it can be either way. So without taking any such risk if on the facts and circumstances of each case, the type of crime to be dealt with under the criminal law, including contents of the bail application, each separately or all this compositely, all would constitute to be relevant material ..... X X X X Extracts X X X X X X X X Extracts X X X X
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