Faizal.. v. The Secretary to Government State of Tamil Nadu Public [SC] Department

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 27.07.2012CORAMTHE HONOURABLE MR . JUSTICE K.N.BASHAANDTHE HONOURABLE MR. JUSTICE P.DEVADASSH.C.P.No.518 of 2012Faizal..PetitionerVersus1.The Secretary to Government State of Tamil Nadu Public [SC] Department, Fort St. George Chennai 600 009.2.The Secretary to Government Union of India, Ministry of Finance, Department of Revenue, COFEPOSA UNIT, New Delhi.3.The Superintendent of Central Prison Central Prison, Cuddalore. ..RespondentsPrayer:- Habeas Corpus Petition filed under Article 226 of theConstitution of India praying for a Writ of Habeas Corpus callingfor the records relating to the detention order in G.O.No.S.R.I/815-6/2011 dated 06.02.2012 passed by the 1st respondent herein and quashthe same and direct the respondent to produce the body of the personof the detenu namely Mohamed Kassime aged about 33 years son ofAbdoul Lattif before this Court, now detained under section 3[1] ofthe COFEPOSA Act in the Central Prison, Cuddalore and set him atliberty.For Petitioner:Dr.S.PalanikumarFor RR1&3:Mr.K.P.AnanthakrishnaAdditional Public ProsecutorFor R2:Mr.N.SenthilkumarSenior Central Government StandingCounsel for Customs and Central Excise https://hcservices.ecourts.gov.in/hcservices/ O R D E R(Order of the Court was made by K.N.BASHA,J.&P.DEVADASS, J.)The petitioner who is the brother-in-law of the detenu, viz.,Mohamed Kassime, S/o.Abdoul Lattif, has come forward with thispetition challenging the detention order passed by the firstrespondent dated 06.02.2012 slapped on the detenu under the provisionof Conservation of Foreign Exchange and Prevention of SmugglingActivities Act, 1974.2.Mr.Palanikumar, learned counsel for the petitioner thoughraised several grounds, would mainly contend that there is aninordinate and unexplained delay in considering the representation ofthe detenu's wife, Shaheetha Banu, dated 02.03.2012 and therebyinfringed the fundamental rights to detenu under Article 25(5) of theConstitution of India. It is contended that in the counter affidavitfiled by the 2nd respondent, it is stated that the representationdated 02.03.2012 was received on 12.03.2012 and thereafter, parawarremarks and comments along with its English translation and otherrelevant informations were called for from the Sponsoring Authorityand the Detaining Authority on 13.03.2012 and the said informationsand records were received by the 2nd respondent on 20.03.2012. It ispointed out by the learned counsel for the petitioner that even afterthe receipt of such information and documents as early as on20.03.2012 from the Sponsoring Authority, the 2nd respondent waitedfor the receipt of the comments from the Detaining Authority and eventhe said comments from the Detaining Authority were received by the2nd respondent on 26.03.2012. It is contended that in spite ofreceiving all the required documents, the 2nd respondent sought forfurnishing complete information and even the said completeinformation was received by him on 28.03.2012. It is furthercontended that in spite of getting all the required documents andinformations, it is stated in the counter that after conducting adetailed examination of the issues raised in the representation, thefile was submitted to the Joint Secretary [COFEPOSA], who in turn,desired to seek for some additional information and the saidadditional information was also received by him on 19.04.2012 andultimately, the representation was rejected on 25.04.2012.3.Learned counsel for the petitioner would contend that there isno reason for seeking of further information or additional detailsafter receiving full particulars, documents, comments and informationfrom the Sponsoring Authority and the Detaining Authority on26.03.2012. There is no need for requiring any further completeinformation. But in spite of the same, they have sought for furthercomplete information and the same was also received on 28.03.2012.It is pointed out by the learned counsel for the petitioner thatafter receiving the entire documents on 26.03.2012, they have soughtfor the complete information only with a view to cover up the further https://hcservices.ecourts.gov.in/hcservices/ delay. It is submitted that from the date of receiving the completeinformation, there is no impediment for the 2nd respondent to considerthe representation of the wife of the detenu. But, with a view tocover up the further delay, the Joint Secretary [COFEPOSA] has soughtfor the additional information. Therefore, it is submitted thatthere is no explanation for the delay in considering therepresentation after receiving the full particulars, documents,comments and information as early as on 26.03.2012 from theSponsoring Authority and the detaining Authority. But, therepresentation was ultimately considered and rejected only on25.04.2012 and as a result, there is a delay of 30 days and there isabsolutely no explanation for such delay from the 2nd respondent andas such, the impugned detention order is vitiated on the grounds ofviolation of fundamental right under Article 22[5] of theConstitution of India and the same is liable to be set aside.4.Per contra, Mr.N.Senthilkumar, learned Senior CentralGovernment Standing Counsel [for Customs and Central Excise]appearing for the 2nd respondent would contend that there is no delayin considering the representation of the wife of the detenu dated02.03.2012. It is contended that sequence of events are clearlystated in the counter affidavit filed by the 2nd respondent. LearnedSenior Central Government Standing Counsel would contend that the 2ndrespondent took time for seeking the required information anddocuments and received the same from the Sponsoring Authority and thedetaining Authority. It is contended that after receiving the saidinformation, the Joint Secretary [COFEPOSA], on examination of therepresentation and other documents, desired to get some additionalinformation and as such, the same were called for through theMinistry's Letter dated 30.03.2012 and the said additionalinformation was received on 23.04.202 and accordingly, the rejectionorder was passed on 25.04.2012 and as such, there is no delay on thepart of the 2nd respondent in considering the representation.5.Heard Mr.K.P.Ananthakrishna, learned Additional PublicProsecutor appearing for the respondents 1 and 3 on the submissionsmade by the learned counsel for the petitioner and the learnedSenior Central Government Standing Counsel [for Customs and CentralExcise] appearing for the 2nd respondent. It is contended that thereis no lapse on the part of the State Government and the StateGovernment has furnished the required documents, comments and otherparticulars sought for by the 2nd respondent herein.6.We have given our careful and anxious consideration to therival contentions put forward by either side and perused the entirematerials available on record including the affidavit filed by thepetitioner, counter affidavit filed by the 2nd respondent and theimpugned detention order and its grounds. https://hcservices.ecourts.gov.in/hcservices/

7.At the outset, it is to be stated that the 2nd respondent hascome forward with a counter affidavit with vague and bald statementsand made a feeble attempt to explain the inordinate delay inconsidering the representation of the wife of the detenu dated02.03.2012. A perusal of paragraph 2.2 of the counter affidavitfiled by the 2nd respondent would demonstrate the indifferent andlethargic attitude of the 2nd respondent in considering therepresentation dated 02.03.2012. It is relevant to incorporate thesaid portion of the counter affidavit which reads as here under:-"2.2.With regard to the averments made in para 18 ofthe petition insofar as these relate to therespondent No.2, i.e., Union of India, it isrespectfully submitted that as per the recordsmaintained in the Cofeposa Unit of Ministry thepurported representation dated 02.03.2012 in TamilLanguage from Smt. Shaheetha Banu wife of ShriMohamed Kassime, COFEPOSA detenu was received in theCOFEPOSA Unit of the Ministry of Finance, Departmentof Revenue, New Delhi from the State Government ofTamil Nadu on 12.03.2012. A copy of the saidrepresentation was also received in the COFEPOSA unitfrom the Superintendent, Central Prison, Cuddalore on13.03.2012. Parawise comments on the representationalong with its English translation and other relevantinformation were called for from the SponsoringAuthority, viz., the Commissioner of Customs,[airport], Chennai and the Detaining Authority viz.,the State Government of Tamil Nadu, Chennai on13.03.2012. The comments of the Sponsoring Authorityon the representation, sent vide letter dated15.03.2012, were received in the COFEPOSA Unit ofMinistry of Finance, Department of Revenue, New Delhion 20.03.2012. The comments of the DetainingAuthority on the representation, sent vide letterdated 19.03.2012, were received in the COFEPOSA Unitof Ministry of Finance, Department of Revenue, NewDelhi on 26.03.2012. Since, the informationfurnished by the Sponsoring Authority was incomplete,vide Ministry's letter dated 26.03.2012, it wasrequested for furnishing the complete information.In the meantime, complete information of theSponsoring Authority, sent vide letter dated23.03.2012, was received in the COFEPOSA Unit ofMinistry of Finance, Department of Revenue, NewDelhi, on 28.03.2012. COFEPOSA section submitted thefile along with all the relevant records anddocuments to the Deputy Secretary [COFEPOSA] on28.03.2012 for examination. After conductingdetailed examination of the issues raised in the https://hcservices.ecourts.gov.in/hcservices/ representation and the comments of the SponsoringAuthority and Detaining Authority thereon, the DeputySecretary [COFEPOSA] submitted the file with acomprehensive note to the Joint Secretary [COFEPOSA]on 29.03.2012. For detailed examination of therepresentation, the Joint Secretary [COFEPOSA]desired for some additional information, which werethen called for from the Sponsoring Authority, videMinistry's letter dated 30.03.2012. SponsoringAuthority was reminded vide Ministry's letter dated10.04.2012 for sending the additional informationdesired by Joint Secretary [COFEPOSA]. The requisiteinformation from the Sponsoring Authority, sent videletter dated 19.04.2012, was received in the COFEPOSAUnit of Ministry of Finance, Department of Revenue,New Delhi on 23.04.2012. COFEPOSA section re-submitted the file to the Deputy Secretary [COFEPOSA]on 24.04.2012 for examination. Analaysing theinformation received from the Sponsoring Authority,the Deputy Secretary [COFEPOSA] submitted the file tothe Joint Secretary [COFEPOSA], in turn, submittedthe file same day to the Special Secretary andDirector General, Central Economic IntelligenceBureau, Ministry of Finance, Department of Revenue,New Delhi, on behalf of the Central Government andthe same was rejected by her on 25.04.2012......."A reading of the above said statements and averments in the counteraffidavit of the 2nd respondent would make it abundantly clear thatthe 2nd respondent has dealt with the representation dated 02.03.2012in a most, casual, callous and lethargic manner. It is pertinent tonote that the representation dated 02.03.2012 was received by the 2ndrespondent on 12.03.2012 and the parawise comments on therepresentation along with the English translation and other relevantinformation were called for from the Sponsoring Authority as well asfrom the Detaining Authority on 13.03.2012. It is seen that the saidcomments and information from the Sponsoring Authority along withother required particulars and documents were received by the 2ndrespondent as early as on 20.03.2012 and from the Detaining Authorityon 26.03.2012. Therefore, the crucial date of the receipt of therequired information and other particulars is 26.03.2012. But, forthe reasons best known to the authorities, it is stated that theyrequire further complete information from the Sponsoring Authorityand even the said complete information was received on 28.03.2012.At this juncture, it is to be stated that what sort of furthercomplete information they have sought for, is not given. Thereafter,it is seen that the entire documents coupled with the information andcomments from the Sponsoring Authority and Detaining Authoritystated to have been examined in detail and in spite of the same, onceagain it is stated that the Joint Secretary [COFEPOSA] desired for https://hcservices.ecourts.gov.in/hcservices/ some additional information. Here again, it is not stated as to whatsort of additional information they have sought for. In ourconsidered opinion, the authorities have come forward with such baldand vague statements. We have no hesitation to hold that suchinformations have been deliberately called for only with a view tocover up the delay in considering the representation. It is seenfrom the above said factors that from the crucial date of receivingall the required documents, comments and information, i.e., from26.03.2012, the Central Government took 30 days for passing the orderof rejection on 25.04.2012 finally. We are of the considered viewthat the 2nd respondent has not come forward with any acceptable andprobable explanation for such an inordinate and unexplained delay.8.At this juncture, it is relevant to refer the followingdecisions:-[a]The Hon'ble Apex Court, in its yet another decision inS.M.JAHUBAR SATHIK Vs. STATE OF TAMIL NADU reported in 1999 [II] CTC166, has held as here under:-"4..............A perusal of the original file placedbefore us reveals that the clarifications were sought inthe usual bureaucratic style only for the sake ofclarification without there being any need for it. Inthese circumstances, it cannot be said that therepresentation was disposed of with promptitude. On thecontrary, even the explanation offered by the respondentsin their counter affidavit filed before the High Courtindicates the lethargic attitude with which therepresentation was taken up, dealt with and ultimatelydisposed of after seeking clarifications thrice on issueswhich did really not arise nor where there any necessityfor seeking clarifications. The representation could havebeen disposed of without seeking clarification whichobviously was sought to cover up the delay in promptdisposal of the representation." (Emphasis supplied)[b]The Hon'ble Apex court in RAJAMMAL V. STATE OF TAMILNADUreported in 1999 AIR SCW 139 has held here under:"It is a constitutional obligation of theGovernment to consider the representation forwarded bythe detenu without any delay. Though no period isprescribed by Art.22 of the Constitution for thedecision to be taken on the representation the words"as soon as may be" in cl.(5) of Art.22 convey themessage that the representation should be consideredand disposed of at the earliest. But that does notmean that the authority is pre-empted from explaining https://hcservices.ecourts.gov.in/hcservices/ any delay which would have occasioned in the disposalof the representation. The Court can certainlyconsider whether the delay was occasioned due topermissible reasons or unavoidable causes. If delaywas caused on account of any indifference or lapse inconsidering the representation such delay willadversely affect further detention of the prisoner. Inother words, it is for the authority concerned toexplain the delay, if any, in disposing therepresentation. It is not enough to say that the delaywas very short. Even longer delay can as well beexplained. So the test is not the duration or range ofdelay, but how it is explained by the authorityconcerned. (Emphasis supplied)[c]In K.M.ABDULLA KUNNI AND ANOTHER Vs. UNION OF INDIA ANDOTHERS reported in AIR 1991 SUPREME COURT 574 : 1991 (1) SCC 476, theConstitution Bench of the Hon'ble Apex Court has held as here under:-"............20.It is necessary to mention that with regardto liberty of citizens the Cout stands guard over thefacts and requirements of law. But Court cannot drawpresumption against any authority without material.It may be borne in mind that the confirmation ofdetention does not preclude the Government fromrevoking the order of detention upon considering therepresentation. Secondly, there may b evidence caseswhere the Government has to consider therepresentation only after confirmation of thedetention. Clause [5] of Article 22 suggests thatthe representation could be received even afterconfirmation of the order of detention. The words'shall afford him the earliest opportunity of makinga representation against the order in clause [5] ofArticle 22 suggest that the obligation of theGovernment is to offer the detenu an opportunity ofmaking a representation against the order, before itis confirmed according to the procedure laid downunder section 8 of the Act. But if the detenu doesnot exercise his right to make representation at thatstage, but presents it to the Government after theGovernment has confirmed the order of detention,the Government still has to consider suchrepresentation and release the detenu if thedetention is not within the power conferred under theStatute. The confirmation of the order of detentionis not conclusive as against the detenu. It can berevoked suo motu under section 11 or upon arepresentation of the detenu. It seems to us https://hcservices.ecourts.gov.in/hcservices/ therefore, that so long as the representation isindependently considered by the Government and ifthere is no delay in considering the representation,the fact that it is considered after the confirmationof detention makes little difference on the validityof the detention or confirmation of the detention.The confirmation cannot be invalidated solely on theground that the representation is consideredsubsequent to confirmation of the detention. Nor itcould be presumed that such consideration is not anindependent consideration. With all respect, we arenot inclined to subscribe to the views expressed inV.J.Jain, Om Prakash Bahal and Khairul Haque cases.They cannot be considered to be good law and hencestand overruled."[d]In a latest decision in UMMU SABEENA AND OTHERS Vs. STATEOF KERALA AND OTHERS reported in 2012 [2] MLJ [Crl.] 149, the Hon'bleApex Court has held as here under:-"..............13..........This Court found that such delayvoids the continued detention of the detenus and thedetention order was quashed...................21.This facet of the writ of Habeas Corpus makesit a writ of the highest Constitutional importancebeing a remedy available to the lowliest citizenagainst the most powerful authority.22.That is why it has been said that the writ ofHabeas Corpus is the key that unlocks the door offreedom."9.It is also relevant to refer the other Catena of decisions ofthe Hon'ble Apex Court which are as follows “(i) The Hon'ble Apex Court in Rashid sk. v. State ofWest Bengal reported in 1973 (3) SCC 476 has held asfollows:“The ultimate objective of this provisioncan only be the most speedy consideration ofhis representation by the authoritiesconcerned, for, without its expeditiousconsideration with a sense of urgency the basicpurpose of affording earliest opportunity ofmaking the representation is likely to bedefeated. This right to represent and to havethe representation considered at the earliest https://hcservices.ecourts.gov.in/hcservices/ flows from the constitutional guarantee of theright to personal liberty – the right which ishighly cherished in our Republic and itsprotection against arbitrary and unlawfulinvasion.”(ii) The Honb'le Apex Court in Ram Sukrya Mhatrev. R.D.Tyagi, 1992 Supp (3) SCC 65 held that: "The right to representation under Article22(5) of the Constitution of India includesright to expeditious disposal by the StateGovernment......... Expedition is the rule and delay defeatsmandate of Article 22(5) of the Constitution ofIndia. So the authority is obligated toexplain the delay either by filing a counter-affidavit by the officer concerned on behalf ofthe appropriate Government or by producing therecord in dealing with the case."(iii) In Aslam Ahmed Zahire Ahmed Shaik v. unionof India and others reported in 1989 SCC (Crl) 554 hasheld:"The supine indifference, slackness andcallous attitude on the part of the JailSuperintendent who had unreasonably delayed intransmitting the representation as anintermediary, had ultimately caused undue delayin the disposal of the appellant'srepresentation by the government which receivedthe representation 11 days after it was handedover to the jail Superintendent by the detenu.This avoidable and unexplained delay hasresulted in rendering the continued detentionof the appellant illegal and constitutionallyimpermissible........When it is emphasised and re-emphasised bya series of decisions of the Supreme Court thata representation should be considered withreasonable expedition, it is imperative on thepart of every authority, whether in merelytransmitting or dealing with it, to dischargethat obligation with all reasonable promptnessand diligence without giving room for anycomplaint of remissness, indifference oravoidable delay because the delay, caused byslackness on the part of any authority, willultimately result in the delay of the disposal https://hcservices.ecourts.gov.in/hcservices/ of the representation which in turn mayinvalidate the order of detention as havinginfringed the mandate of Article 22(5) of theConstitution." (iv) In Tara Chand v. State of Rajasthan, 1980(2) SCC 321 and Raghavendra Singh v. Superintendent,District Jail, 1986 (1) SCC 650, the Apex Court heldthat any inordinate and unexplained delay on the partof the Government in considering the representationrenders the detention illegal.The Principles laid down by the Hon'ble Apex Court in a Catena ofdecisions cited supra make it crystal clear that the inordinate andunexplained delay in the disposal of the representation woulddefinitely amount to breach of the constitutional imperative and thesame would render a continued detention impermissible and illegal.As far as the case on hand is concerned, we have already pointed outthat there is inordinate delay of 30 days in considering therepresentation of the detenu and as such, the same would vitiate theimpugned order of detention. In view of the aforesaid reasons, wehave come to the irresistible conclusion that the impugned detentionorder is vitiated and the same is liable to be quashed.10.In view of the aforesaid reasons, the detention order passedby the first respondent in G.O.No.S.R.I/815-6/2011 dated 06.02.2012is hereby set aside and the Habeas Corpus Petition is allowed. Thedetenu, viz., Mohamed Kassime S/o.Abdoul Lattif, is directed to beset at liberty forthwith unless he is required in connection with anyother case. Sd/ Asst.Registrar //True Copy// Sub.Asst.RegistrarapTo1.The Secretary to Government State of Tamil Nadu Public [SC] Department, Fort St. George Chennai 600 009.2.The Secretary to Government Union of India, Ministry of Finance, Department of Revenue, COFEPOSA UNIT, New Delhi.3.The Superintendent of Central Prison Central Prison, Cuddalore. https://hcservices.ecourts.gov.in/hcservices/

4.The Public Prosecutor High Court, Madras.5.The Joint Secretary to Government, Public(Law & Order)Fort st.George, Chennai -9.1 cc to Mr. N.Senthil Kumar, Advocate, Sr.No.453501 cc to Mr.S.Palani Kuamr , Advocate, Sr.No.44730H.C.P.No.518 of 2012SP(CO)PMK.17.8.2012