Judgment · High Court · 2012

(ii). In the year 2009, the officers of DRI got a reliable information that the Red Sanders were transported from Chennai to Tuticorin, which werestored in a Godown at Tuticorin and being exported by one Chitty Raja andone such consignment of Red Sanders procured by him were transported byroad from Chennai to Tuticorin with the help of the said T.P.Jothiprakash, driver, namely, Palani, the detenu and one Ravi. For one such consignment, the said Chitty Raja has filed a Shipping Bill dated 01.07.2009 in the name of M/s.MSD Manufacturing Company, Sivakasi, declaring the export goods as"Natural Wall Tiles" and the officers of DRI, Tuticorin, detained the export consignment by issuing a letter dated 05.07.2009, addressed toM/s.PSA Sical, Tuticorin. According to the petitioner, the seized container was opened by the DRI officers on 14.07.2009 and it was found that it contained declared wall tiles alone and no contraband was seized from the export container.

(iii). Summons dated 04.07.2009 was issued and on 07.07.2009, thedetenu appeared before DRI Officers and alleged to have given aconfessional statement that he knew Chitty Raja, who indulged in smuggling of Red Sanders and the detenu was entrusted with the work of maintenance ofa vehicle belonging to Chitty Raja and he used to get salary of Rs.5,000/-per month. On 01.07.2009, the detenu started from Chennai with one Palaniin a lorry with Red Sanders to Tuticorin Godown, belonging to Chitty Rajaand stayed in the said Godown on 02.07.2009. (iv). On the very next day, i.e., on 03.07.2009, he left for Chennai. Thereafter, on 07.07.2009, the detenu was arrested and later on, released on bail. Retracted statements of the detenu, other co-accused –T.P.Jothiprakash and the said Palani were made on 07.07.2009. Withoutplacing the said retracted statements, the Sponsoring Authority submitted aproposal for detaining the detenu under Section 3(1)(ii) of the Act,(Central Act 52 of 1974).

Based on the above proposal, the DetainingAuthority passed the impugned detention order.3. The impugned Detention Order is challenged on various grounds. Thefirst ground is that the show cause notice dated 04.11.2008 and the reply to the show cause notice dated 31.03.2009 were not placed before the Detaining Authority, who passed the Detention Order on 23.09.2009 and the same were also not placed before the Advisory Board in its meeting held on21.09.2011. Not placing the relevant documents before the DetainingAuthority while passing the Detention Order as well as before the AdvisoryBoard, which met on 21.09.2011 has vitiated the Detention Order as well as the confirmation order, as relevant materials were not placed before the https://hcservices.ecourts.gov.in/hcservices/ 3authorities concerned to arrive at a subjective satisfaction. 4. In support of his contention, the learned counsel for the petitioner has relied on the following Judgments:-(i).

Kurjibai Dhanjibhai Patel Vs. State, reported in 1985 (1) Scale136 SC (ii). Elizabeth Rani v. State of Tamil Nadu, reported in 2009 (4) MLJCrl 945 (iii). G.Krishnamoorthy v. State of Tamil Nadu, [H.C.P.No.2350 of2010], dated 01.08.2011. 5. The second ground raised in this Habeas Corpus Petition is that theretraction letter of the co-detenu, i.e., T.P.Jothiprakash, made prior to the order of detention, was not placed. On that ground, the detention order passed as against the said T.P.Jothiprakash on a similar ground was already set aside by this Court in H.C.P.No.1853 of 2009, dated 22.07.2010. Thegrounds, for which the said Habeas Corpus Petition was allowed, are equally applicable to the detenu herein also, and therefore, the impugned detention order is liable to be set aside. 6. The third ground raised in this Habeas Corpus Petition is that the representation dated 18.08.2011 sent to the Secretary to the Government, Ministry of Finance, Government of India, the second respondent herein, was disposed of in a callous manner only on 20.10.2011, after an inordinate and unexplained delay.

7. The fourth ground raised in this Habeas Corpus Petition is that the arrest of the detenu, pursuant to the detention order, was not communicated to the family members of the detenu. 8. The learned Additional Public Prosecutor appearing for respondents1 and 3, on the other hand, submitted that the delay is properly explained in the counter affidavit and the show cause notice dated 04.11.2008 and reply to the show cause notice dated 31.03.2009 as well as retraction letter of the co-detenu dated 10.08.2009 are not material for passing the detention order and the relatives of the detenu were given intimation regarding the arrest of the detenu on 08.07.2009. Heard the learned SeniorStanding Counsel appearing for the second respondent.9. We have considered the above rival submissions made by the learned counsel appearing for the petitioner, learned Additional Public Prosecutorappearing for respondents 1 and 3, learned Senior Standing Counselappearing for the second respondent and also perused the records carefully.10.

Admittedly, show cause notice was issued to the detenu on04.11.2008 and reply to the show cause notice was submitted by the detenuon 31.03.2009. Even though the Detention Order was passed on 23.09.2009,the said show cause notice and reply to the show cause were not placed by the Sponsoring Authority before the Detaining Authority as well as before the Advisory Board, which met on 21.09.2011. Thus, the Detaining Authorityand the Advisory Board were not appraised of full facts for arriving at subjective satisfaction. A similar issue came up for consideration before the Hon'ble Supreme Court in the decision in Kurjibai Dhanjibhai Patel Vs.State reported in 1985 (1) Scale 136 SC. In Paragraph No.6, the Hon'bleSupreme Court held thus:- https://hcservices.ecourts.gov.in/hcservices/ 4"6. It cannot be disputed that the show cause notice and the detenu's reply thereto, particularly the latter, though these documents formed part of adjudication proceedings constituted the most relevant material which was essential to beplaced before the detaining authority before the issuance of the impugned order and admittedly this has not been done.

All that has been stated on behalf of the respondent in the CounterAffidavit of Shri Agnihotri, Under Secretary to the Governmentof India, Ministry of Finance dated 11th April, 1985 is that this reply dated 5th March 1984 was considered by the detaining authority along with the detenu's representation made by him against the detention order. It has further been averred that the said representation of the detenu along with the reply was considered by the Advisory Board and after considering all the facts, the Advisory Board had opined that there was sufficient cause for detention. But, in our view, such post factoconsideration of the detenu's reply dated 5th March 1984 after the impugned detention order had been served upon the detenucannot fill up the lacuna of non-consideration thereof by the detaining authority before the issuance of the detention order. The relevant material, namely the detenu's reply dated 5 th March 1984 certainly had a bearing and would have influenced the subjective satisfaction of the detaining authority one way or the other before issuing the detention order and such relevant material was not placed by the sponsoring authority before the detaining authority at the appropriate time and this, in our view, would go to vitiate the subjective satisfaction of the detaining authority.

"11. In the decision in Elizabeth Rani Vs. State of Tamil Nadu reported in 2009 (4) MLJ Crl 945, this Court, relying on the Judgment in the decision in Rajeswari Vs. Joint Secretary to Government reported in 2000(3) CTC 97, also considered the issue and the order of detention, on asimilar ground, was set aside.12. Regarding retraction letter of the co-detenu was not placed before the Detaining Authority, this Court has already set aside the detention order passed against the co-detenu – T.P.Jothi Prakash @ R.Prabhu in the decision in T.P.Jothi Prakash @ R.Prabu vs. State of Tamil Nadu and others reported in CDJ 2010 MHC 4443. 13. Similar issue came up for consideration before the Hon'ble SupremeCourt in the decision in P.Saravanan vs. State of Tamil Nadu and others reported in 2001 (107) CRLJ 3285, wherein the Hon'ble Supreme Court setaside the order of detention. The operative portion of the Judgment of the Hon'ble Supreme Court reads as follows:-"7.

When we went through the grounds of detention enumerated by the detaining authority we noticed that thereis no escape from the conclusion that the subjective satisfaction arrived at by the detaining authority was the cumulative result of all the grounds mentioned therein. It is difficult for us to say that the detaining authority would have come to the subjective satisfaction solely on the strength of the confession attributed to the petitioner dated7-11-1999, particularly because it was retracted by him. It https://hcservices.ecourts.gov.in/hcservices/ 5is possible to presume that the confession made by the co-accused Sowkath Ali would also have contributed to the final opinion that the confession made by the petitioner on 7-11-1999 can safely be relied on. What would have been the position if the detaining authority was apprised of the fact that Sowkath Ali had retracted his confession, is not for usto make a retrospective judgment at this distance of time.8.

The second contention that non-placement of theretraction made by Sowkath Ali would not have affected the conclusion as the petitioner's confession stood unsullied, cannot be accepted by us. The detaining authority had relied on different materials and it was a cumulative effect from those materials which led him to his subjective satisfaction. What is enumerated in Section 5-A of the COFEPOSA Act cannot, therefore, be applied on the fact situation in this case.9. In this context, it is to be mentioned that the detention order passed against Sowkath Ali was quashed by this Court when he challenged that detention order under Article 32 of the Constitution (vide A. Sowkath Ali v. Unionof India).10. We are therefore unable to sustain the detention order passed against this petitioner and accordingly we quash the same. We order the petitioner to be set at liberty if his further detention is attributable only to the detention order challenged in the Writ Petition.

"Thus, the said ground raised by the learned counsel for the petitioner is also held in favour of the detenu.14. Insofar as delay in considering the representation dated 18.08.2011is concerned, the representation of the detenu was received by the Superintendent of Central Prison, Palayamkottai, Tirunelveli District, on23.08.2011. The Prison Authority forwarded the said representation on30.08.2011, which was received by the Central Government on 06.09.2011. TheCentral Government, in turn, called for remarks from the SponsoringAuthority on 06.09.2011 and the Sponsoring Authority forwarded the remarks, which were received by the Central Government on 26.09.2011. Furtherinformation was sought for on 27.09.2011 and the same was received on11.10.2011 and ultimately, on 20.10.2011, the Central Government rejected the representation of the detenu, which was communicated to the detenu on27.10.2011. 15.

Admittedly, between 23.08.2011 and 30.08.2011, there is a delay of seven days in forwarding the representation of the detenu by the PrisonAuthority to the Central Government. Further, the Central Government sought for remarks from the Sponsoring Authority and the same were received on26.09.2011. In the counter affidavit filed by the first respondent, four days, i.e., on 09.09.2011 – Onum, on 11.09.2011 – Sunday, on 17.09.2011 -Saturday and on 18.09.2011 - Sunday have been mentioned as "holidays" and there is no explanation for the remaining days. 16. The said issue was also considered by the Hon'ble Supreme Court in the decision in Rajammal v. State of Tamil Nadu reported in 1999 AIR SCW139 and held that any unexplained delay in disposal of the representation would be breach of constitutional imperative and it would render the continued detention impermissible and illegal. In Paragraph Nos.8 to 10, it https://hcservices.ecourts.gov.in/hcservices/ 6is held thus:-“8.

It is a constitutional obligation of the Government to consider the representation forwarded by thedetenu without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation the words “as soon as may be” in clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest. But that does not mean that the authority is pre-empted from explaining any delay which would have occasioned in the disposal of the representation. The Court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes. This position has been well delineated by a Constitution Bench of this Court in K.M.Abdulla Kunhi and B.L.Abdul Khader v. Union of India, (1991) 1 SCC 476 : 1991 AIR SCW 362. The following observations of the Bench can profitably be extracted here(para 12 of AIR):“It is a constitutional mandate commanding the concerned authority to whom the detenu submits hisrepresentation to consider the representation and dispose of the same as expeditiously as possible.

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 asense 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. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal.” 9. The position, therefore, now is that if delay was caused on account of any indifference or lapse in considering the representation such delay will adversely affect further detention of the prisoner.

In other words, it is for the authority concerned to explain the delay, if any, in disposing the representation. It is not enough to say that the delay was very short. Even longer delay canas well be explained. So the test is not the duration orrange of delay, but how it is explained by the authority concerned. 10. What happened in this case was that the Government which received remarks from different authorities submitted the relevant files before the UnderSecretary for processing it on the next day. The UnderSecretary forwarded it to the Deputy Secretary on the nextworking day. Thus, there is some explanation for the delay https://hcservices.ecourts.gov.in/hcservices/ 7till 9.2.1998. Thereafter the file was submitted before the Minister who received it while he was on tour. TheMinister passed the order only on 14.2.1998. Though thereis explanation for the delay till 9.2.1998, we are unable to find out any explanation whatsoever as for the delay which occurred thereafter.

Merely stating that the Minister was on tour and hence he could pass orders only on14.2.1998 is not a justifiable explanation, when the liberty of a citizen guaranteed under Article 21 of the Constitution is involved. Absence of the Minister at the Headquarters is not sufficient to justify the delay, since the file could be reached the Minister with utmostpromptitude in cases involving the vitally important fundamental right of a citizen.” 17. This Court in H.C.P.No.108 of 2011, dated 09.11.2011 (K.M.,J. andG.M.A.,J.), considered the issue regarding delay. In the said order, the order dated 27.11.2010 made in H.C.P.No.1385 of 2000 was relied on, wherein unexplained delay of four days was considered to be fatal to the further detention of the detenu and on that ground, the detention order was quashed. It is held in the said order dated 09.11.2011 that though no period is prescribed in Article 22 of the Constitution of India for the decision to be taken on the representation, the words "as soon as may be"contained in clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest.

It is not enough to say that the delay was very short. The test is not the duration or range of delay, but how it is explained by the authority concerned.18. In Ram Sukrya Mhatre v. R.D.Tyagi, 1992 Supp (3) SCC 65, the Hon'ble Supreme Court held thus;-"The right to representation under Article 22(5) of the Constitution of India includes right to expeditious disposal by the State Government. Expedition is the rule and delay defeats mandate of Article 22(5) of the Constitution of India.19. In Aslam Ahmed Zahire Ahmed Shaik v. union of India and others reported in 1989 SCC (Crl) 554 the Hon'ble Supreme Court has held as follows:-"The supine indifference, slackness and callous attitude on the part of the Jail Superintendent who had unreasonably delayed in transmitting the representation asan intermediary, had ultimately caused undue delay in the disposal of the appellant's representation by the government which received the representation 11 days after it was handed over to the jail Superintendent by thedetenu.

This avoidable and unexplained delay has resulted in rendering the continued detention of the appellant illegal and constitutionally impermissible.....................When it is emphasised and re-emphasised by a series of decisions of the Supreme Court that a representation should be considered with reasonable expedition, it is imperative on the part of every authority, whether in merely https://hcservices.ecourts.gov.in/hcservices/ 8transmitting or dealing with it, to discharge that obligation with all reasonable promptness and diligence without giving room for any complaint of remissness, indifference or avoidable delay because the delay, caused by slackness on the part of any authority, will ultimately result in the delay of the disposal of the representation which in turn may invalidate the order of detention ashaving infringed the mandate of Article 22(5). 20. In the decision in Tara Chand Vs.

State of Rajasthan, reported in1980 (2) SCC 321 and in the decision in Raghavendra Singh Vs.Superintendent, District Jail, reported in 1986 (1) SCC 650, the Hon'bleApex Court held that any inordinate and unexplained delay on the part of the Government in considering the representation renders the detention illegal.21. In the decision in Rashid sk. Vs. State of West Bengal reported in1973 (3) SCC 476, the Hon'ble Supreme Court has held as follows:

The ultimate objective of this provision can only be the most speedy consideration of his representation by the authorities concerned, for, without its expeditious consideration with a sense of urgency the basic purpose of affording earliest opportunity of making the representation is likely to be defeated. This right to represent and to have the representation considered at the earliest flows from the constitutional guarantee of the right to personal liberty –the right which is highly cherished in our Republic and its protection against arbitrary and unlawful invasion.

22. We have also considered similar issue in H.C.P.(MD).No.635 of 2011and by order dated 05.01.2012, set aside similar order of detention on the ground of unexplained delay.