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2016 (4) TMI 54 - SUPREME COURT

2016 (4) TMI 54 - SUPREME COURT - TMI - Whether non-communication of the order rejecting the representation in an effective manner would invalidate or vitiate the order of detention - order of detention passed u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) - Held that:- 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 consi .....

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ention order unsustainable.

Order of detention - Appellant contended that 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 - 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 .....

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e-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 D.G., Adv. And Mr. A. Venayagam Balan, AOR JUDGMENT DIPAK MISRA, J. Calling in question the defensibility of the judgment and order dated 24.10.2015 passed by t .....

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ssued 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, th .....

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reau, 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 dat .....

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king 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 representa .....

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ra-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 .....

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onstitutional 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 communic .....

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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 obtaini .....

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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 .....

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municated 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 (1975) 3 SCC 198, Ashok Narain v. Union of India (1982) 2 SCC 437, Gurdev Singh v. Union of India (2002) 1 SCC 545 and Ujagar Singh v. State of Punjab1952 SCR 756. 8. Mr. R. Basant, learned senior counsel appear .....

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jecting 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 .....

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nd 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, .....

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s 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, learn .....

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ing 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 .....

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l, 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 .....

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resentation 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 Bu .....

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e 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 .....

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with a view to preventing him from12 (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 .....

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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, .....

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ibed 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 COFEPO .....

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ied 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 shou .....

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nd. 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 commun .....

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ffective 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 .....

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unication . 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 dete .....

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rial. 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 represent .....

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e 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 disclosu .....

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u 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 exam .....

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hority, 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 abstenti .....

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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 .....

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nu 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 satisfa .....

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ary 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 a .....

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n 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 authori .....

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pensity 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 sa .....

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tention 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 oblig .....

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clusion, 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 .....

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e, 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 .....

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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 clearl .....

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re 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 .....

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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 consciou .....

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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 per .....

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ite 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 foun .....

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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 r .....

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e 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 .....

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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) .....

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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 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 .....

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t 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. (1974) 1 SCC 645 Krishna Iyer, J., speaking on behalf of a Division .....

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t 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 d .....

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y 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 Jo .....

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y 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 repre .....

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sfaction 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) .....

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ision 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 t .....

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thers (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 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 .....

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thority 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 AIR 1943 FC 75 = 45 CriLJ 341 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 t .....

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istry of Labour and National Service did in Simms Motor Units Ltd. v. Minister of Labour and National Service (1946) 2 All ER 201 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 o .....

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on 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 7 .....

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unicated 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 (1982) 3 SCC 10 while dealing with an order of detention passed the National Secur .....

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State of Jammu & Kashmir and others (1982) 2 SCC 43 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 m .....

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r. 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 whi .....

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d 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 M .....

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bt 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 dete .....

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d 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 sp .....

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ion 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 dete .....

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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 .....

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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 n .....

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