TMI Blog2016 (4) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... backdrop, the detenu should not be sent back to undergo the remaining period of detention - Held that:- 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. 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. So, by keeping in view the principles stated in the case of Sunil Fulchand Shah v. Union of India [2000 (2) TMI 792 - SUPREME COURT OF INDIA] and Chandrakant Baddi v. ADM & Police Commr, the appropriate course for the nature of grounds on which the detention order was passed would be that the detaining authority should re-examine the matter. - Decided in favour of appellant - Criminal Appeal No.1251 of 2015 - - - Dated:- 29-1-2016 - DIPAK MISRA AND PRAFULLA C. PANT, JJ For the Petitioner : Ms. Ranjana Narayan, Adv., Ms. Sadhana Sandhu, Adv. And Mr. B. Krishna Prasad, AOR For the Respondent : Mr. K.P. Rajagopalan, Adv., Mrs. V.S. Lakshmi, Adv., Mr. Ganesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 Jai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te 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 2010 (1) KLT 230, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 (1974) 1 SCC 645 and for the second limb of submission, he has drawn inspiration from Sunil Fulchand Shah v. Union of India (2000) 3 SCC 409, State of Tamil Nadu v. Kethiyan Perumal (2004) 8 SCC 780, State of Tamil Nadu v. Alagar (2006) 7 SCC 540 and Chandrakant Baddi v. ADM Police Commr (2008) 17 SCC 290. 9. When the matter was taken up for hearing on 12.3.2015, Mr. Basant, learned senior counsel appearing for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 variou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (2000) 7 SCC 601 :- 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 vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (1975) 3 SCC 836, wherein a three-Judge B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly 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 (1975) 2 SCC 81 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 regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h are of rationally probative value . Machindar v. King AIR 1950 FC 129 = Cri LJ 1480. 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 AIR 1964 SC 72. 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 pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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). Succ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, consi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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