' UMMU SABEENA v. STATE OF KERALA & Ors.

Judgment

13 (ADDL.) S.C.R. 185 ' UMMU SABEENA v. STATE OF KERALA & ORS. (Criminal Appeal No. 2136 of 2011) NOVEMBER 17, 2011 A B [ASOK KUMAR GANGULY AND JAGDISH SINGH KHEHAR, JJ.] Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) - s.3 - Order C of detention under - Representation made by detenus - Central Government took two months to dispose of the detention representation - Held: Orders of detention quashed on the ground of delay on the part of the Central Government in disposing of the representation of the detenus - D Expression 'as soon as may be' in sub-clause (5) of Article 22 of the Constitution sufficiently makes clear the concern of the framers of the Constitution that the representation should be very expeditiously considered and disposed of with a sense of urgency and without any avoidable delay - Constitution of India, 1950 - Article 22(5). E Constitution of India, 1950 - Article 226 - Writs - Writ of Habeas Corpus -Technical objection of respondents on question of prayer in the Habeas Corpus Petition filed by the F appel/ants-detenus - Held: In dealing with writs of Habeas Corpus, such technical objections cannot be entertained - The writ of Habeas Corpus is the oldest writ evolved by the Common Law of England to protect the individual liberty against its invasion in the hands of the Executive or may be a/so at the instance of private persons - This principle of G Habeas· Corpus has been incorporated in the Indian Constitutional law - The writ of Habeas Corpus is a writ of the highest Constitutional importance being a remedy available to the lowliest citizen against the most powerful authority - In 185 H 186 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R A the instant case, if the technical objection made by the respondent in this proceeding is upheld and the matter is sent back to the High Court for re-agitation of this question, the same would deprive the detenus of their precious liberty, which has been invaded in view of the manner in which their B representations were unduly kept pending - Such technical objection accordingly over-ruled. An order of detention under Section 3 of the Conservation of Foreign Exchange and Prevention of C Smuggling Activities Act, 1974 (COFEPOSA) was served on the appellants-detenus on 10th March, 2011 who filed writ petitions before the High Court for issuance of writs of Habeas Corpus. Representations made by the detenus on the 30th D March, 2011 were rejected by the State Government on 8th April, 2011 and thereafter forwarded to the Central Government. The Central Government took time till 6th June, 2011 to reject the same. This oelay on the part of the Central Government in the rejection of the detention E representation was questioned and the detention of the appellants was assailed on the ground that the representations filed on their behalf were not disposed of in accordance with the mandate of Article 22(5) of the Constitution. F G The question which arose for consideration in the present appeal was whether the manner of consideration and rejection of detention representation by the Central Government was in accord with the principles laid down by this Court on this aspect in several earlier cases. Allowing the appeals, the Court HELD: 1.1. In the Constitution Bench decision of this Court in the case of Abdulla Kunhi*, the Court, after H noting the Constitutional provisions under sub-clauses UMMU SABEENA v. STATE OF KERALA & ORS. 187 (4) and (5) of Article 22 of the Constitution, held that A neither under the Constitution nor under the relevant statutory provision, any time limit has been fixed for consideration of representation made by a detenu. The time limit, according to the Constitution Bench, has been deliberately kept elastic. But the Constitution Bench laid B emphasis on the expression 'as soon as may be' in sub· Clause (5) of Article 22 and held that the said expression sufficiently makes clear the concern of the framers of the Constitution that the representation should be very expeditiously considered and disposed of with a sense c of urgency and without any avoidable delay. Considering the aforesaid provision, the Constitution Bench held that "there should not be any supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation 0 would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal". The same principles were re-iterated in two subsequent judgments of this Court in the case of Rajammal and in the case of Kundanbhai Dulabhai Shaikh. Going by the aforesaid precedents, it must be E held that the procedural safeguards given for protection of personal liberty must be strictly followed. The history of personal liberty, as is well known, is a history of insistence on procedural safeguards. [Paras 9, 10, 12, 13 & 14] [191-H; 192-A·H; 193-A·E] F

1.2. Following the said principle, it is clear that delay in these cases is for a much longer period and there is hardly any explanation. This Court, therefore, has no hesitation in quashing the orders of detention on the G ground of delay on the part of the Central Government in disposing of the representation of the detenus. [Para 15] [193-F] K.M. Abdulla Kunhi and B.L. Abdul Khader Vs. Union of H 188 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R. A India & Ors., State of Karnataka & Ors. (1991) 1 SCC 476: 1991 (1) SCR 102 - followed.