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CASE NO.:

Appeal (crl.) 21 of 2002

PETITIONER:

Union of India

RESPONDENT:

Paul Nanickan and Anr.

DATE OF JUDGMENT: 13/10/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT, J.

An order of detention under Section 3 (1)(i) of the Conservation

of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (in

short the 'Act') was passed on 26.4.2000 by the Secretary to Government

of Tamil Nadu, Public (Law and Order) Department. As a consequence of

such mittimus, Smt. Ratnamala (hereinafter referred to as 'the detenue')

was interned in Special Jail for Women, Vellore. In the grounds of

detention it was, inter alia, stated that on 26.2.2000 she was found to

be in possession of huge quantity of contraband articles. On her

personal search as well as search of her baggages it was found that she

was carrying gold in addition to the other articles like cellular phones

etc. without any valid permission or documents for importation of goods

and she was attempting to smuggle these articles by concealing them in

emergency lamp and by wearing crude gold on her person and there was no

declaration made. The articles were seized under the provision of

Customs Act, 1962 (in short the 'Customs Act') read with Foreign Trade

(Development and Regulation) Act, 1992. The detenu made voluntary

statements on 26.2.2000 which were recorded under Section 108 of the

Customs Act. The order of detention was passed purportedly with an idea

of preventing her from carrying out smuggling activities in future. On

11.5.2000 the respondent who is the detenu's father addressed a

representation on behalf of his daughter to the President of India. Four

days thereafter i.e. on 15.5.2000 a habeas corpus petition was filed

before the Madras High Court challenging the detention order. When the

matter was listed on 8.6.2000 notice was issued. It had been indicated

in the writ petition filed by the respondent that a representation by

registered post was sent to the State of Tamil Nadu and another was sent

to the Union of India represented by Secretary to Government, Ministry

of Finance (Department of Revenue) by speed post. They were the two

respondents in the writ petition. A grievance was made in the writ

petition that the said respondents were duty bound to explain to the

Court that the representation had been considered without any delay and

in accordance with the constitutional requirements. It was also

indicated that though in the representation a request was made to supply

various documents and details, nothing had in fact been furnished. The

delay and the failure indicated above constituted violation of

constitutional safeguards. It was brought to the notice of the High

Court by the respondents before it that there was no representation made

as claimed when the matter was taken up on 28.9.2000. Only three grounds

were urged by the present respondent before the High Court. It was first

contended that there was no material to support the conclusion that the

detenu is a remand prisoner as was contended by the present appellant.

Secondly, the materials/documents furnished to the detenu were illegible

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and this disabled the detenu from making an effective representation

resulting in violation of the protection guaranteed under Article 22(5)

of the Constitution of India, 1950 (in short 'the Constitution').

Finally, it was contended that the documents supplied were illegible

and, therefore, the detention order was vitiated and there was no

necessity of going into the question whether the documents were relied

upon or material documents or otherwise. The High Court did not find any

merit in the aforesaid three contentions and since no other point was

pressed, the writ petition was dismissed. An application for review was

filed on 8.12.2000. Notice was issued in the review application. For the

first time it was stated by the respondent in the review petition that

in fact no representation was filed before the concerned State

Government i.e. State of Tamil Nadu or the Union of India. In fact the

representation was made to the President of India. The Court considered

the periods spent from the date the representation reached the

President's Secretariat till its final disposal, and held that there

was an unexplained delay from the stage of dispatch from the President's

Secretariat till it reached the Government of Tamil Nadu and the Union

of India. This according to the High Court constituted violation of the

imperative requirement of dealing with the representation with utmost

expedition. Accordingly, the order of detention was quashed.

In the present appeal the Union of India has raised several issues

which need to be carefully considered. Firstly it is submitted that in

the order (grounds) of detention it was specifically indicated to the

detenu that she had a right to make a representation to the detaining

authority/State Government and also to the Government of India, if she

so desired, in writing against the order under which she was kept in

detention. It was also indicated that in case she wanted to make a

representation the same was to be addressed to the Secretary to the

Government of Tamil Nadu, Public (Law and Order) Department,

Secretariat, Chennai or to the Government of India, Ministry of Finance,

Department of Revenue, (COFEPOSA Unit), Central Economic Intelligence

Bureau, New Delhi, as the case may be, and it should be forwarded

through Superintendent of Prison, Special Prison for Women, Vellore in

which she was confined.

Strangely, the representation was not made to the authorities

clearly indicated in the order (grounds) of detention. For the first

time in review petition a stand was taken that representation was filed

before the President of India, though in the writ petition it was stated

representations were made to the Government of Tamil Nadu as well as to

the Union of India. This clearly constituted a suppression of fact and

the High Court was not approached with clean hands and fraud was

practised. Secondly, it was not open to the High Court to substitute its

original order by a fresh order which is impermissible in a review

application particularly on such grounds. Thirdly, the High Court having

accepted that there was no delay in dealing with the representation by

the State Government and the Union of India after it reached them, it

ought not to have held that there was unexplained delay in dealing with

the representation. A person should not be allowed to take advantage of

the concern shown by the courts to protect personal liberty resorting to

dubious and fraudulent methods to gain undeserved benefits by such

manipulations. He should not be permitted to gain any advantage from

such acts. It was further submitted that renegades who disturb peace and

tranquility of citizens are like termites which corrode financial

stability of the country with vicious designs file petitions full of

falsehood and at times approach this Court under Article 32 even without

approaching the jurisdictional High Court. It was in essence submitted

that prerogative writs should not be issued in such cases to encourage

the deceiters from gaining any advantage.

In response, learned counsel for the respondent submitted that the

detenu was really arrested on 27.2.2000 and the order of detention was

passed after two months i.e. on 26.4.2000 and the High Court's order on

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review is dated 13.2.2001. Therefore, the detenu has undergone the

detention for about the whole period. On that score alone, the appeal

has practically become infructuous and no decision should be rendered on

academic issues. It was submitted with emphasis that representation to

the President of India was sufficient and merely because the

representation was not sent to any of the indicated authorities that

cannot alter the position in law.

It was further submitted that detenu was already in custody and on

presumption and surmises that she may be released on bail the order of

detention was passed without proper application of mind regarding her

incarceration in custody.

Though technically speaking the detenu has suffered detention for

almost the whole period for which she was directed to detained, yet

considering the several important issues which have been raised by the

parties we think it appropriate to deal with them.

The writ of habeas corpus called by Blackstone as the great and

efficacious writ in all manner of illegal confinement, really represents

another aspect of due process of law. As early as 1839 it was proclaimed

by Lord Denman that it had been for ages effectual to an extent never

known in any other country. Lord Halsbury L.C. stated in Cox v. Hakes,

(1890) 15 AC 506, that the right to an instant determination as to the

lawfulness of an existing imprisonment is the substantial right made

available by this writ. Article 22 of the Constitution confers four

fundamental rights on every person, except in two cases mentioned in

Clause (3), as essential requirements and safeguards to be followed when

it is necessary to deprive any person, for any cause whatsoever and for,

however brief a period of his personal liberty by placing him under

arrest or keeping him in detention. Those are (i) to be informed, as

soon as may be, of grounds of such arrest; (ii) not to be denied the

right to consult and to be defended by a legal practitioner of his

choice; (iii) to be produced before the nearest Magistrate within a

period of twenty-four hours of such arrest excluding the time necessary

for the journey from the place of arrest to the Court of the Magistrate,

(iv) not to be detained in custody beyond the said period of twenty-four

hours without the authority of a Magistrate, Clauses (1) and (2) contain

the guarantee of the four fundamental rights enumerated above, Clause

(3) contains two exceptions and provides that the constitutional

guarantees do not apply to (a) enemy aliens, and (b) persons arrested or

detained under any law providing for preventive detention. Clauses (4)

and (7) are devoted to laying down certain fundamental principles as to

preventive detention and guaranteeing certain fundamental rights to

persons who are arrested under any law for preventive detention. The

fundamental rights guaranteed by Clauses (4) to (7) to persons detained

under any law for preventive detention relate to the maximum period of

detention, the provision of an Advisory Board to consider and report on

the sufficiency of the cause for detention and the right to have the

earliest opportunity of making a representation against the order of

detention. Preventive detention is an anticipatory measure and does not

relate to an offence while the criminal proceedings are to punish a

person for an offence committed by him. They are not parallel

proceedings. The object of the law of preventive detention is not

punitive but only preventive. It is resorted to when the Executive is

convinced on the materials available and placed before it that such

detention is necessary in order to prevent the person detained from

acting in a matter prejudicial to certain objects which are specified by

the law. The action of Executive in detaining a person being only

precautionary, the matter has necessarily to be left to the discretion

of the Executive Authority. It is not practicable to lay down objective

rules of conduct, the failure to conform to which alone should lead to

detention. In case of preventive detention of a citizen, Article 22(5)

of the Constitution enjoins the obligation of the appropriate Government

of the Detaining Authority to accord the detenu the earliest opportunity

to make a representation and to consider that representation speedily.

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The right to make a representation implies right of making an effective

representation. It is the constitutional right of the detenu to get all

the ground on which the order has been made. As has been said by

Benjamin Cardozo, "A Constitution states or ought to state not rules

for the passing hour but the principles for an expanding future". The

concept of grounds used in the context of detention in Article 22(5) has

to receive an interpretation which will keep it meaningful in tune with

contemporary notions of the realities of the society, and the purposes

of the Act in the light of concepts of liberty; and fundamental

freedoms. While the expression "grounds" for that matter includes not

only conclusions of fact but also all the basic facts on which those

conclusions were founded; they are different from subsidiary facts or

further particulars of the basic facts. The detenu is entitled to obtain

particulars as to the grounds which will enable him to make an effective

representation against the order of detention.

It has been said that the history of liberty has largely been the

history of observance of procedural safeguards. The procedural sinews

strengthening the substance of the right to move the Court against

executive invasion of personal liberty and the due dispatch of judicial

business touching violations of this great right is stressed in the

words of Lord Denning as follows:

"Whenever one of the King's Judges takes his seat,

there is one application which by long tradition has

priority over all other, Counsel has but to say: My

Lord, I have an application which concerns the

liberty of the subject and forthwith the Judge will

put all other matter aside and hear it. It may be an

application for a writ of habeas corpus, or an

application for bail but whatever form it takes, it

is heard first." (Freedom under the Law, Hamlyn

Lectures, 1949).

The constitutional philosophy of personal liberty is an idealistic

view, the curtailment of liberty for reasons of States' security, public

order, disruption of national economic discipline etc. being envisaged

as a necessary evil to be administered under strict constitutional

restrictions. In Smt. Ichhu Devi v. Union of India (AIR 1980 SC 1983),

this judicial commitment was highlighted in the following words:

"The Court has always regarded personal liberty as

the most precious possession of mankind and refused

to tolerate illegal detention, regardless of the

social cost involved in the release of a possible

renegade".

"This is an area where the Court has been most

strict and scrupulous in ensuring observance with the

requirement of the law and even where a requirement

of the law is breached in the slightest measure, the

Court has not hesitated to strike down the order of

detention".

In Vijay Narain Singh v. State of Bihar (AIR 1984 SC 1334), Justice

Chinnappa Reddy in his concurring majority view said:

".....I do not agree with the view that those who

are responsible for the national security or for the

maintenance of public order must be the sole Judges

of what the national security or public requires. It

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is too perilous a proposition. Our Constitution does

not give as carte blanche to any organ of the State

to be the sole arbiter in such matter......"

[Page 1336 (of AIR)]

".....There are two sentinels, one at either end.

The legislature is required to mark the law

circumscribing the limits within which persons may be

preventively detained and providing for safeguards

prescribed by the Constitution and the Courts are

required to examine, when demanded, whether there has

been any excessive detention, that is whether the

limits set by the Constitution and the legislature

have been transgressed.....".

In Hem Lall Bhandari v. State of Sikkim (AIR 1987 SC 762 at page 766),

it was observed:

"It is not permissible in matters relating to the

personal liberty and freedom of a citizen to take

either a liberal or a generous view of the lapses on

the part of the officers.....".

So far as the pivotal question whether there was delay in disposal

of the representation is concerned, same has to be considered in the

background of Article 22(5) of the Constitution. A constitutional

protection is given to every detenu which mandates the grant of liberty

to the detenu to make a representation against detention, as imperated

in Article 22(5) of the Constitution. It also imperates the authority to

whom the representation is addressed to deal with the same with utmost

expedition. The representation is to be considered in its right

perspective keeping in view the fact that the detention of the detenu is

based on subjective satisfaction of the authority concerned, and

infringement of the constitutional right conferred under Article 22(5)

invalidates the detention order. Personal liberty protected under

Article 21 is so sacrosanct and so high in the scale of constitutional

values that it is the obligation of the detaining authority to show that

the impugned detention meticulously accords with the procedure

established by law. The stringency and concern of the judicial

vigilance that is needed was aptly described in the following words in

Thomas Pacham Dales' case: (1881 (6) QBD 376:

"Then comes the question upon the habeas corpus. It

is a general rule, which has always been acted upon

by the Courts of England, that if any person procures

the imprisonment of another he must take care to do

so by steps, all of which are entirely regular, and

that if he fails to follow every step in the process

with extreme regularity the Court will not allow the

imprisonment to continue."

One of the points raised by the respondent was that detenu being

in custody, the anticipated and apprehended acts were practical

impossibilities.

So far as this question relating to procedure to be adopted in

case the detenu is already in custody is concerned, the matter has been

dealt with in several cases. Where detention orders are passed in

relation to persons who are already in Jail under some other laws, the

detaining authorities should apply their mind and show their awareness

in this regard in the grounds of detention, the chances of release of

such persons on bail. The necessity of keeping such persons in detention

under the preventive detention laws has to be clearly indicated.

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Subsisting custody of the detenu by itself does not invalidate an order

of his preventive detention, and decision in this regard must depend on

the facts of the particular case. Preventive detention being necessary

to prevent the detenu from acting in any manner prejudicial to the

security of the State or to the maintenance of public order or economic

stability, etc. ordinarily, it is not needed when detenu is already in

custody. The detaining authority must show its awareness to the fact of

subsisting custody of the detenu and take that factor into account while

making the order. If the detaining authority is reasonably satisfied on

cogent materials that there is likelihood of his release and in view of

his antecedent activities which are proximate in point of time, he must

be detained in order to prevent him from indulging such prejudicial

activities the detention order can be validly made. Where the detention

order in respect of a person already in custody does not indicate that

the detenu was likely to be released on bail, the order would be

vitiated. (See N. Meera Rani v. Govt. of Tamil Nadu: (AIR 1989 SC 2027:

Dharmendra Suganchand v. Union of India: AIR 1990 SC 1196). The point

was gone into detail in Kamarunnissa v. Union of India (AIR 1991 SC

1640). The principles were set out as follows. Even in the case of a

person in custody, a detention order can be validly passed (1) If the

authority passing the order is aware of the fact that he is actually in

custody; (2) if he has reason to believe on the basis of reliable

material placed before him; (a) that there is a real possibility of his

release on bail, and (b) that on being released, he would in all

probability indulge in prejudicial activities, and (3) if it is felt

essential to detain him to prevent him from so doing. If an order is

passed after recording satisfaction in that regard, the order would be

valid. In the case at hand the order of detention and grounds of

detention show awareness of custody and/or possibility of release on

bail.

Article 21 of the Constitution having declared that no person

shall be deprived of life and liberty except in accordance with the

procedure established by law, a machinery was definitely needed to

examine the question of illegal detention with utmost promptitude. The

writ of habeas corpus is a device of this nature. Blackstone called it

"the great and efficacious writ in all manner of illegal confinement".

The writ has been described as a writ of right which is grantable ex

dobito justitae. Though a writ of right, it is not a writ of course.

The applicant must show a prima facie case of his unlawful detention.

Once, however, he shows such a cause and the return is not good and

sufficient, he is entitled to this writ as of right.

In case of preventive detention no offence is proved, nor any

charge is formulated and the justification of such detention is

suspicion or reasonability and there is no criminal conviction which can

only be warranted by legal evidence. Preventive justice requires an

action to be taken to prevent apprehended objectionable activities. (See

Rex v. Nallidev (1917 AC 260); Mr. Kubic Dariusz v. Union of India and

others (AIR 1990 SC 605). But at the same time, a person's greatest of

human freedoms, i.e., personal liberty is deprived, and, therefore, the

laws of preventive detention are strictly construed, and a meticulous

compliance with the procedural safeguard, however, technical is

mandatory. The compulsions of the primordial need to maintain order in

society, without which enjoyment of all rights, including the right of

personal liberty would lose all their meanings, are the true

justifications for the laws of preventive detention. This jurisdiction

has been described as a "jurisdiction of suspicion", and the

compulsions to preserve the values of freedom of a democratic society

and social order sometimes merit the curtailment of the individual

liberty. (See Ayya alias Ayub v. State of U.P. and another (AIR 1989 SC

364). To lose our country by a scrupulous adherence to the written law,

said Thomas Jafferson, would be to lose the law, absurdly sacrificing

the end to the means. No law is an end itself and the curtailment of

liberty for reasons of State's security and national economic discipline

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as a necessary evil has to be administered under strict constitutional

restrictions. No carte blanche is given to any organ of the State to be

the sole arbiter in such matters.

Coming to the question whether the representation to the President

of India meets with the requirement of law it has to be noted that in

Raghavendra Singh v. Superintendent, District Jail, Kanpur and Ors.

(1986 (1) SCC 650) and Rumana Begum v. State of Andhra Pradesh and Anr.

(1993 Supp (2) SCC 341) it was held that a representation to the

President of India or the Governor, as the case may be, would amount to

representation to the Central Government and the State Government

respectively. Therefore, the representation made to the President of

India or the Governor would amount to representation to the Central

Government and the State Government. But this cannot be allowed to

create a smokescreen by an unscrupulous detenu to take the authorities

by surprise, acting surreptitiously or with ulterior motives. In the

present case, the order (grounds) of detention specifically indicated

the authority to whom the representation was to be made. Such indication

is also part of the move to facilitate an expeditious consideration of

the representations actually made.

The respondent does not appear to have come with clean hands to

the Court. In the writ petition there was no mention that the

representation was made to the President; instead it was specifically

stated in paragraph 23 that the representation was made by registered

post to the first respondent on 11.5.2000 and a similar representation

was made to the second respondent. Before the High Court in the writ

petition the first and the second respondent were described as follows:

"1. State of Tamil Nadu

Rep. By its Secretary,

Government of Tamil Nadu,

Public (SC) Department,

Fort St. George,

Chennai, 600 009.

2. Union of India,

Rep. By its Secretary

Ministry of Finance,

Department of Revenue,

New Delhi."

As noted supra, for the first time in the review application it

was disclosed that the representation was made to the President of India

and no representation was made to the State of Tamil Nadu or the Union

of India who were arrayed in the writ petition as parties. This appears

to be a deliberate attempt to create confusion and reap an undeserved

benefit by adopting such dubious device. The High Court also

transgressed its jurisdiction in entertaining the review petition with

an entirely a new substratum of issues. Considering the limited scope

for review the High Court ought not to have taken into account factual

aspects which were not disclosed or were concealed in the writ

petition. While dealing with a habeas corpus application undue

importance is not to be attached to technicalities, but at the same time

where the court is satisfied that an attempt has been made to deflect

the course of justice by letting loose red herrings the Court has to

take serious note of unclean approach. Whenever a representation is made

to the President and the Governor instead of the indicated authorities,

it is but natural that the representation should indicate as to why the

representation was made to the President or the Governor and not the

indicated authorities. It should also be clearly indicated as to whom

the representation has been made specifically, and not in the manner

done in the case at hand. The President as well as the Governor, no

doubt are constitutional Heads of the respective Governments but day to

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day administration at respective levels are carried on by the Heads

of the Department-Ministries concerned and designated officers who alone

are ultimately responsible and accountable for the action taken or to be

taken in a given case. It really the citizen concerned genuinely and

honestly felt or interested in getting an expeditious consideration or

disposal of his grievance, he would and should honestly approach the

really concerned authorities and would not adopt any dubious devices

with the sole aim of deliberately creating a situation for delay in

consideration and cry for relief on his own manipulated ground, by

directing his representation to an authority which is not directly

immediately concerned with such consideration.

It was nowhere indicated in the representation by the respondent

as to why the representation was not being made to the indicated

authorities and instead was being made to the President of India. This

appears to be a deliberate view to take advantage of the concern shown

by this Court in protecting personal liberty of citizens. Where however

a person alleging infraction of personal liberty tries to act in a

manner which is more aimed at deflecting the course of justice than for

protection of his personal right, the Court has to make a deliberate

balancing of the fact situation to ensure that the mere factum of some

delay alone is made use of to grant relief. If a fraud has been

practiced or perpetrated that may in a given case nullify the cherished

goal of protecting personal liberty, which obligated this Court to

device guidelines to ensure such protection by balancing individual

rights and the interests of the nation, as well.

In R. Keshava v. M.B. Prakash and Ors. (2001 (2) SCC 145) it was

observed by this Court as follows:

"We are satisfied that the detenu in this case

was apprised of his right to make representation to

the appropriate Government/authorities against his

order of detention as mandated in Article 22 (5) of

the Constitution. Despite knowledge, the detenu did

not avail of the opportunity. Instead of making a

representation to the appropriate Government or the

confirming authority, the detenu chose to address a

representation to the Advisory Board alone even

without a request to send its copy to the authorities

concerned under the Act. In the absence of

representation or the knowledge of the representation

having been made by the detenu, the appropriate

Government was justified in confirming the order of

detention on perusal of record and documents

excluding the representation made by the detenu to

the Advisory Board. For this alleged failure of the

appropriate Government, the order of detention of the

appropriate Government is neither rendered

unconstitutional nor illegal".

Another aspect which has been highlighted is that many

unscrupulous petitioners are approaching this Court under Article 32 of

the Constitution challenging the order of detention directly without

first approaching the concerned High Courts. It is appropriate that the

concerned High Court under whose jurisdiction the order of detention has

been passed by the State Government or Union Territory should be

approached first. In order to invoke jurisdiction under Article 32 of

the Constitution to approach this Court directly, it has to be shown by

the petitioner as to why the High Court has not been approached, could

not be approached or it is futile to approach the High Court. Unless

satisfactory reasons are indicated in this regard, filing of petition on

such matters, directly under Article 32 of the Constitution is to be

discouraged.

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In view of the fact that the detenu has suffered detention for

about the whole period of detention, we do not consider this a fit case

for interference. We dismiss it subject to the observations made above.